Gillett v University of Ballarat

[2010] VCC 796

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-05109

ROBERT LESLIE GILLETT	Plaintiff
v
UNIVERSITY OF BALLARAT	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Ballarat
DATE OF HEARING:	16 and 17 June 2010
DATE OF JUDGMENT:	23 June 2010
CASE MAY BE CITED AS:	Gillett v University of Ballarat
MEDIUM NEUTRAL CITATION:	[2010] VCC 0796

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(38)(a) and (b) – low-back injury – pain and suffering only – relevant principles – whether “serious”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A Jordan SC with	Slater & Gordon
Mr T J Seccull
For the Defendant	Mr P D Elliott QC with	Herbert Geer
Mr I S Gourlay
HIS HONOUR:

Introduction

1 By way of Originating Motion dated 28 October 2009, Robert Leslie Gillett (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to his low-back suffered by him on or about 28 April 2003 (“the injury”) arising out of or in the course of his employment with the University of Ballarat (“the defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.

3          The application was heard over two days, and the following evidence was adduced:

(a)	The plaintiff gave viva voce evidence and was cross-examined;
(b)	The plaintiff tendered pages 7 through to 46 of the Plaintiff’s Court Book: (Exhibit 1);
(c)	The defendant tendered the following evidence:

(i)      video films taken on 21 July 2009, 6 August 2009, 29 April 2010, 30 April 2010 and 7 May 2010: (Exhibit A);

(ii)      notes of Dr Scott-Taylor (complete record as at 27 January 2009 and running from 3 December 1999 to 22 June 2009): (Exhibit B).

Relevant Legal Principles

4          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).

5          The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:

“serious injury means—

(a) permanent serious impairment or loss of a body function ... .”

The part of the body said to be impaired is the low-back.

6          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by him arose out of or in the course of his employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” of the low-back impairment in relation to “pain and suffering” are “when judged by comparison with other cases in the range

of possible impairments ... may be fairly described as being more than

significant or marked, and as being at least very considerable”. (my emphasis): (see s.134AB(38)(a) and (b) of the Act). The test is sometimes referred to as the “narrative test”.

7          In determining the application, the Court:

(a)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(b)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(c)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in doing so disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).

The Issues

8          In his opening comments, senior counsel for the defendant stated that there were two essential issues:

(a)	whether or not the injury suffered by the plaintiff on 28 April 2003 (which was not in issue) caused an impairment which satisfied the test for “serious injury”; and
(b)	and in any event, and perhaps more potently, whether the consequences now suffered by the plaintiff in respect of his undoubted low-back injury, satisfied the narrative test.

The Background of the Plaintiff, “the Injury” and Medical Treatment

9          The Court refers to the affidavits sworn by the plaintiff respectively on 18 June 2009 (at page 7 of Exhibit 1 and from now on referred to as “the first affidavit”) and on 11 June 2010 (at page 13 of Exhibit 1 and from now on referred to as “the second affidavit”). The contents of these affidavits were sworn to be “true and correct” by the plaintiff: (see T15, L17-23). The plaintiff also gave evidence-in-chief that he is presently employed as a self-employed finance broker performing mortgage finance and general finance for the public: (see T15, L14-16).

10        In his first affidavit, the plaintiff gives the following evidence:

•  He is a fifty-seven-year-old (born 15 January 1953) man living in a de facto relationship with two children, aged sixteen and eleven.

•  He qualified as a fitter and turner after completing his apprenticeship at the age of twenty-one and thereafter had the following jobs:

(i)      as a maintenance fitter for various companies, including Bendix Mintex and Skilled Engineering;

(ii)      as a sales representative for a machinery company;

(iii)     self-employed in a used car business at Ballarat for about ten years up until 1990;

(iv)     as a maintenance fitter at RMIT in Melbourne for about two-and-a- half years: (see paragraph 6.1)

• He commenced employment with the defendant in September 1995 as a technical officer and sessional teacher in the Engineering Department at the TAFE division of the University of Ballarat – School of Mines, Ballarat (the defendant).

• His duties with the defendant involved looking after the store and tool room and some sessional teaching. He worked about 28 hours a week.

• On 28 April 2003, he suffered injury to his low-back. He describes the circumstances of his injury as follows:

“My job … involved cutting the lengths of steel into modules of various lengths to be used by the apprentices in their classes. That involved taking the six-metre lengths of steel from the racks to the stores, cutting them up and then stacking the cut modules in the racks ready for classes. I might have cut a hundred pieces at a time ready for the classes. The steel lengths were very heavy.

I injured my back while picking up a length of steel out of the rack to put it on the saw. It was an awkward place to lift as it was a small room with machinery in place on the floor and there wasn’t much room to manoeuvre. The lengths of steel were also very heavy. As I turned around I felt my back go ‘crack’ and I felt a sharp pain in my back.”

(see paragraphs 4.3 and 4.4).

• He stayed at work until about 5.00 pm and the next day consulted his general practitioner, Dr Scott Taylor, who prescribed analgesic and anti- inflammatory medication and referred him to physiotherapy.

• He was off work from 28 April 2003 to 5 May 2003 when he returned to work on “light duties”: (see paragraph 4.5).

• He describes his return to work as follows:

“I continue to have lower back problems from that time. I tried to keep working but I had difficulty coping. It was difficult for me to avoid heavy lifting as often there was no assistance or equipment available. Ultimately I got to the point where I was not able to keep going and I was also frustrated by the failure of the Engineering Department to install proper lifting equipment or devices. In January 2004, I gave notice of my intention to resign from my employment … [with the defendant] … .”

(see paragraph 4.6).

• His back injury has impacted on his “lifestyle, my day-to-day living activities and my quality of enjoyment of life”: (see paragraph 5.1).

• In early July 2004, he experienced a flare-up of low-back pain when bending over at home, and when the pain did not settle he attended Dr Scott Taylor who prescribed further anti-inflammatory medication.

• Over the next few days the back pain got worse and on Tuesday, 13 July 2004, he was unable to get out of bed and his partner called an ambulance which conveyed him to the St John of God Hospital where he came under the care of the orthopaedic surgeon, Mr John Nelson.

• At that time, he had severe pain in his right leg and Mr Nelson arranged for him to undergo a CT scan, and after reviewing the scan, Mr Nelson arranged for him to undergo a nerve root injection in his low-back.

• He was discharged from Hospital on 17 July 2004 and was reviewed by Mr Nelson on a number of occasions over the next six weeks or so.

• He describes the following consequences resulting from his low-back injury as follows:

“I have continued to have pain in my lower back and also symptoms affecting my right leg, including numbness in the right leg from my thigh to below my knee, pins and needles down the right leg to my right foot and weakness and loss of strength affecting the right leg. Activities involving bending or twisting are difficult for me because they cause back pain. My back gets stiff and sore if I sit for long. So I try to get up often enough to walk around. I try to walk each day for fitness. I walk about 2 kilometres but that is about as far as I can go because of back pain and my right leg becoming painful. On occasions my right leg has given way on me. My back gets sore if I stand for long and I try to sit down after about 15 minutes if I can. Simple everyday activities can be difficult for me. I have to be careful getting into and out of the car. I have trouble driving longer distances. I have to stop to get out and walk around. I am unsteady going up and down stairs. I have to be careful and rely on the handrails. I am now limited in what I can do around the house. I am not ready to do a lot of the maintenance work I used to do. I have difficulty mowing the lawns and rely on my partner to help me with that.

I was a very keen water skier and used to ski most Christmas and Easter holidays. I have not been able to go water skiing since I hurt my back. I also enjoyed snow skiing but had not skied for some years before the injury as my children were young. However, I intended to take up the sport again when the children were older. I would not be able to ski now because of my back. Prior to hurting my back I also enjoyed bike riding. I used to go out on weekends and ride 30 or 40 kilometres. I enjoyed it very much. It kept me fit. I have tried to keep up bike riding for exercising but I am now very limited in how far I can ride. I am now not able to ride much more than 5 kilometres. I also enjoyed a social game of golf with friends. I am not able to play golf now.”

(see paragraphs 5.3 and 5.4).

• When working for the defendant, he also performed some part-time employment as a mortgage broker and when ceasing work with the defendant in 2004, he went into his own business – Ballarat Finance Company. He has worked in that business since then and such work mainly involves office work which is easier on his back: (see paragraph 6.2).

• If he had not suffered his back injury, he intended to continue working with the defendant and believed that he would “ultimately have succeeded in obtaining a full-time position: (see paragraph 6.3).

• He believes that he is now unable to perform work involving lifting, bending, twisting or turning and in particular, is unable to perform work as a fitter and turner.

• In 1984, he had an episode of back pain which coincided with a skiing holiday to the snow and the back pain –

“… kept me out of action while I was at the snow but then settled down over the next few weeks and apart from the occasional aches and pains I had not had any further back trouble prior to the incident on 28 April 2003.”

(see paragraph 7.1).

11        In his second affidavit, the plaintiff gives the following evidence:

• His condition has remained much the same since making his previous affidavit and he continues to have low-back pain and symptoms into his right leg, including numbness, pins and needles, weakness and loss of strength and condition.

• He still has trouble with activities involving bending or twisting and his back gets stiff and sore if he has to sit or stand for long.

• He tries to do “what I can to stay fit and active but I am restricted in the level of my activities”. He exercises at home with weights but it is “difficult for me”. His back gets sore when he walks for too long and his right leg in particular makes it difficult for him. He rides his bike for shorter distances.

• His right leg also gives him trouble walking down stairs and he has had –

“… falls on the stairs at home when my right leg has given way on me and I have also lost my balance and fallen on stairs elsewhere.”

(see paragraph 3).

• At work sometimes, he struggles to cope with the back pain and he needs to lie down, which could be for one or two hours a day.

• His office is next to where he lives so at those times he can go home and lie down on the bed or a couch and rest up for a while.

• He has not sought any further treatment for his back other than to attend on his general practitioner, Dr Scott Taylor, for medication when he needs it. He does not like going to the doctors and has not gone back to the physiotherapist as the earlier physiotherapy only made his pain worse.

• He tries “to stay off medication but when I needed it I take anti- inflammatories and Nurofen for the pain”: (see paragraph 5).

12        Under cross-examination, the plaintiff gave the following pertinent evidence:

•  He has one of those York workstations at home and mostly on a daily basis, he presses weights when lying down: (see T17).

•  He cannot walk as far as he used to but he tries to walk around where he lives every day over approximately one-and-a-half-kilometres: (T18, L4-9).

•  On long staircases he has had “a couple of falls”: (T19, L3-4).

•  The incident in July 2004 was “very painful”: (T21, L11).

•  In relation to the incident on 28 April 2003, the following evidence was given:

“Q:	Can you describe, you picked up some steel. How much do you say the steel weighed that you picked up?---
A:	I never actually weighed it but it’s quite heavy. It’s a solid bar and it’s – the – the full lengths were about 80 to 100 kilos I would think.
Q:	You attempted to pick up 100 kilos on your own?---
A:	Well, you drag them, yeah.
Q:	You dragged it and the situation was you felt some pain in your back then, did you?---
A:	Yeah. It felt like something broke and I just lost sort of, all strength, and I grabbed the bench and the saw, and just stayed there for about an hour or so, I couldn’t sort of – I was in a lot of pain.”

(see T21, L14-25).

• After leaving the University, he bought an office in Main Street, Ballarat to conduct his finance business and remained there until 2009 when he had a new office built on his domestic property: (see T23, L15 – T24, L3).

• He was the owner-builder of the office on his property and he organised the drawings, obtained the building permit and organised the workers to do the work: (T24, L6-11).

• His business performs all forms of financing, including mortgages, and he employs one person who writes loans.

• Sometimes he attends customers in person but mostly worked at his office and although it varies from day-to-day, he would probably spend “let’s say, a couple of hours a day” on a computer: (see T27, L18-20).

• He accepted that the video shown to him of 21 July 2009 showed him leaving the premises of his finance company, opening his car door and entering his vehicle, driving a short distance, walking a short distance, getting in and out of a car at a Telco shop, during which time he reversed the car looking over his shoulder. He further accepted that video shown to him of 6 August 2009 again showed him entering and driving his vehicle and entering Craig’s Hotel where he had lunch with a customer, and later returning in the afternoon where he was seen walking around the front of the premises and conversing with various tradesmen who were constructing his new office. He accepted that the videos showed him bending down on a number of occasions throughout that afternoon with some of the bending involving bending at the waist, reaching down to the ground and picking up various items. He accepted that the video of that afternoon also showed him pulling a little vibrator machine.

• After the video was shown, part of the evidence that followed included:

“Q:  The situation is that, as you have said in your affidavit at page 14, you said you have trouble with activities involving bending or twisting and your back gets stiff and sore if you have to sit and stand for long. I put to you that you seemed to be able to do the bending and the picking up of the debris on a number of occasions on that video, and it didn’t seem to be that you were having trouble with your back when you were doing that?---

A: Well, I’m not incapacitated but I am restricted, very

restricted.

HIS HONOUR:

Q:	What do you mean by that Mr Gillett?---
A:	There’s areas that I can’t bend because it hurts, there’s a spot there I just can’t go as I feel it sort of jumping out again or whatever happens to it but I’m just very careful what I do. I manage to do most things most days … .”

(my emphasis)

(see T36, L16-30).

• In relation to the incident on 7 July 2004, he describes that he was just bending over to do something and it –

“… just felt like something broke in the back and, like before, and it just let go. It just feels like something let go and you just feel weak and in a lot of pain.”

(see T37, L1-7).

• He was taken to a report of Mr Peter Nelson, his treating specialist in 2004, and was asked about a history given to Mr Nelson that, “I had some low-back issues in the past”. In response to some questions about that statement, the following evidence was given:

“Q:	I understand that when you’re talking about the episode at work, a year or so ago, is that the same as ‘a few low-back issues in the past’ or is where you talked about a few low- back issues in the past, is that something separate again?---
A:	No, it’s totally, totally different. I’ve had aches and pains but I’ve never had – it sounded like it broke to me, something broke that day at work. I just felt like that a bone break.
Q:	In 2003?---
A:	Yeah, but it never really got over it. It improved, but I had a lot of bouts between then and the 04 episode where I had flare-ups and I had to take anti-inflammatories and – for some reason that 04, I just – I’d been okay before that, I just bent over and hit the same sort of spot, and it just felt exactly the pain and the pain was incredible. I’ve never experienced anything like that.”

(my emphasis)

(see T38, L23 – T39, L7).

• He had suffered with gout for a number if years and has been treated by Dr Taylor for that condition.

• He accepted that he attended Dr Taylor on 29 April 2003 (after the work incident) and on 5 May 2003 (when he returned to work), although he could not remember exactly. He accepted that on 29 April 2003, he was probably prescribed Voltaren, some Feldene and Zyloprim (for his gout), and on 5 May 2003, was prescribed Vioxx tablets.

• He accepted that he next attended Dr Taylor in relation to his back injury on 7 July 2004 (following the home incident) and was prescribed Vioxx and Zyloprim (for gout) and again saw Dr Taylor on 19 July 2004 when he was prescribed some Panadeine Forte: (see generally T43 – T47).

• He has attended Dr Taylor over the years for his gout and also high blood pressure for which he also receives medication.

• He accepted that he is not taking Panadeine Forte anymore and states, “I only take anti-inflammatories when I get the pain that just gets a bit unbearable” which is “occasionally”: (see T47, L18-21).

• After the incident in 2003, he went back to his normal job at the University but avoided any heavy lifting: (see T48, L14-15).

• Prior to the work injury in 2003, he had not been water skiing for about two years and had sold his boat prior to going water skiing.

• Snow skiing he had not undertaken for a long time prior to his injury and he did not go quite so often as water skiing: (see generally T48, L30 – T50, L17),

• In relation to his bike riding, he has not got “much further than about 5 kilometres I would think, my leg gets really weak”: (see T52, L17-20).

• In relation to golf, he would play prior to his 2003 work injury “sometimes once a month; sometimes once every two months. A few of us would get together and have a day out” but he was not a member of a golf club or had a handicap: (see T52, L23 – T53, L4).

• His son, who is twelve, plays football on Sunday mornings and he watches him play. He has shown his son how to use various tools: (see T53, L23-28).

• He enjoys hobbies of metal fossicking and fishing.

• In relation to fishing, he drives to Portland and goes with a friend out in a boat using fishing rods: (see T55, L15-21).

• In relation to metal fossicking, he uses a metal detector and goes walking but has difficulty with the digging of the ground and hopes that his son may be able to do some digging later on: (see T54, L19-25).

• Over the last two years his business has been “very difficult because of the world downturn” and he is probably “doing about 50 per cent of what we used to be able to do and there’s only two of us now and there were three of us [for] quite a while when things were good”: (see T56, L16-23).

• The business now turns over about $60,000 to $80,000 less costs and “we’re all hoping that it’ll turn around and come back soon but it’s a bit hard to say how long it’ll take”: (see T56, L24-28).

13        During re-examination, the plaintiff gave the following pertinent evidence:

•  He has been water skiing since the age of sixteen and misses being unable to perform such activity. He has friends who have boats to go skiing: (see T58, L20-27).

•  He would love to develop his various sporting interests with his son but is limited in what he can do.

•  In relation to the consequences that he suffers because of his back injury, the plaintiff gave the following evidence:

“Q:	You were asked about a number of things Mr Gillett. What do you say is the major consequence to you of the back injury that you sustained at work?---
A:	Well, I’ve learned to live with it as best I can, but – and I’ve got fairly strong pain barriers, and I need to put up with it quite often, it’s not real pleasant, but … .
Q:	Of the things that you’ve mentioned or been asked about, what do you say is your major loss?---
A:	I think, like in times when the business is hard like now, it would’ve been nice to go back to my trade, because I know I can earn good money at that. I certainly wouldn’t do it now and I’ve just got to bear with what I’ve got, so I’m limited with that area apart from the pain.”

(see T62, L8-20).

• In relation to when he has to “lie down” for an hour or two because of a bad back, he estimates that on average this would occur “at least once a fortnight, I need to take a bit of time …”: (see T63, L17-19).

14        The Court refers to the affidavit of Barbara Ellen Conrick sworn 11 June 2010 (at page 16 of Exhibit 1). Ms Conrick is the de facto partner of the plaintiff and they have been together for about twenty-four years and have two children, aged seventeen and twelve. She describes in her affidavit that the low-back problems suffered by the plaintiff has “prevented him from doing many things I know he would like to be doing”: (see paragraph 5). In particular, she refers to his reduced ability to be working in his toolshed, his inability to go water skiing and the limitations he has performing activities with their son.

15        I refer to a report of the orthopaedic surgeon, Mr Wilton Carter, dated 5 November 1984 (see page 18(a) of Exhibit 1) in relation to an examination on 24 October 1984. The history obtained by Mr Carter that the plaintiff, about five weeks prior to the consultation, became “aware of discomfort in the low- back and particularly in the right buttock” some physical treatment had been carried out and on driving back from a skiing holiday he was aware of persisting and worrying paresthesia on the lateral border of the foot.

16        At the time of the examination, the plaintiff was essentially pain-free and Mr Carter thought any neurological signs were improving and he ultimately took the view it was “reasonable to wait and not interfere”. The report from Mr Carter would suggest no further attendances after that initial consultation.

17        Dr Scott Taylor has supplied reports dated 7 October 2004 (see page 19 of Exhibit 1), 26 May 2004 (see page 21 of Exhibit 1) and 25 August 2006 (see page 23 of Exhibit 1). I also refer to Exhibit B, which is a photocopy of the clinical records of Dr Scott Taylor running from 3 December 1999 to 22 June 2009.

18        Dr Taylor, in his report dated 7 October 2004, notes, consistent with Exhibit B, that he initially consulted with the plaintiff on 29 April 2003 when he obtained a history of a lifting incident at work. Clinically, Dr Taylor was of the opinion that the plaintiff had suffered a small disc tear in his lower lumbar spine. Through a combination of exercises, heat, physiotherapy, simple analgesia, and non- steroidal anti-inflammatory drugs, he “recovered” over the next five to six weeks and resumed employment. His notes would also suggest that he saw the plaintiff on 5 May 2003.

19        Dr Taylor then reports that he next saw the plaintiff on 7 July 2004 when he obtained a history of an increase in his low-back pain but without any specific aggravating events. He was again treated with exercises, heat and anti- inflammatory drugs. On 13 July 2004, he received a telephone call from the wife of the plaintiff, saying that the plaintiff was unable to get out of a bed and arrangements were made for him to be transferred to the St John of God Hospital under the care of the orthopaedic surgeon, Mr John Nelson.

20        Dr Taylor, in his report dated 7 October 2004, states, in part:

“His new job as a mortgage broker is clearly very sedentary in nature and there does not appear to be anything in his usual duties that would be expected to cause this particular problem. I am almost certain that his injury which has led to this began with the lifting of the 100-kilogram steel bar during his employment with Ballarat University. As previously stated, he has now returned to his job full-time and is managing without any other special ongoing treatment. I am unaware of any previous history of back injury.”

(my emphasis)
(see page 20 of Exhibit 1).

21        In his last report dated 25 August 2006, Dr Taylor notes that the plaintiff attended on 28 June 2005 in relation to his back and right leg pain. The history obtained at that time from the plaintiff was that he reported –

“… no change in his symptoms compared to the last twelve months, stating that he had minimal or no back pain, but had persistent altered sensation over the anterior part of his right leg extending approximately 20-centimetres above and below the knee.”

(my emphasis)
(see page 23 of Exhibit 1).

22        Clinical examination at that time revealed a range of movement which was “close to normal without any pain”.

23        Dr Taylor comments:

“I have not seen him since regarding his back and so, am presuming he is managing to continue working full-time in his job as a mortgage broker without undue impairment.”

(see page 23 of Exhibit 1).

24        Mr John Nelson, the orthopaedic surgeon, has supplied a report dated 13 September 2006 (see page 29 of Exhibit 1) and a variety of letters have been tendered, and there is also a series of letters from Mr Nelson to Dr Taylor.

25        In his report dated 13 September 2006, Mr Nelson notes that he first saw the plaintiff on 13 July 2004 at the request of his general practitioner when the plaintiff was admitted to the St John of God Hospital. He obtained a history on that day as follows:

“He was admitted … on that day because of severe pain which developed in the previous few days. Particularly in his right leg. He had had some ongoing low-back issues in the past, but nothing of major concern as far as sciatica. He said that he had had a jarring episode a year or so previously, and his back had been somewhat irritable. However, he described an incident after bending over in the garden a few days previously, that was associated with developing back pain. Without further event he developed quite severe pain in his right buttock and thigh as far as the knee. He had not been aware of any numbness or weakness. The pain had been so severe that he had difficulty sleeping and the usual pain relief was not effective.”

(see page 29 of Exhibit 1).

26        Mr Nelson arranged for the plaintiff to undergo a CT scan which was undertaken on 14 July 2004: (see page 31 of Exhibit 1). The conclusion of such scan was:

“1	Large right lateral disc protrusion at L3-4 compromising L3 distal to the exit foramen.
2	L4-5 and L5-S1 disc degenerative change.”

27        The plaintiff underwent a specific nerve root block which gave “quite good relief” and over a period of outpatient treatment up to 28 September 2004, the plaintiff continued to make “a good recovery with only a mild degree of leg symptoms and no ongoing back concerns”.

28        In particular, Mr Nelson gave the following opinion:

“On the basis of the history, it is possible that he may have had some lumbar spine injury from a work incident as described, but the specific problem I was treating him for was more likely to be related to his bending injury whilst at home. This has subsequently produced a disc herniation which I was hopeful at the time may resolve permanently with some symptomatic treatment.”

(see page 30 of Exhibit 1).

Medico-Legal Reports

29        The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the orthopaedic surgeon, Mr Stanley Schofield, on 5 November 2009: (see report dated 11 November 2009, at page 25 of Exhibit 1).

30        Mr Schofield obtained the history of both the work incident and what he referred to as “an acute flare-up of back pain whilst bending over at home”. In his opinion, Mr Schofield states:

“This patient has been involved in physical work all his adult life. Apart from minor, intermittent back problems in the past, he denies any history of any significant problems with his back until the lifting episode, which occurred on 28 April 2003. The symptoms involving that lift, which involves extension and arching of the back, is consistent with the development of a disc prolapse. Although initially his symptoms were mainly in the back, they eventually caused right sciatica, which is likely due to further extension of the prolapse towards the right side. CT scan of July 2004 diagnosed a large prolapse on the right at L3-4.

Since then, there has been no significant improvement. His current clinical signs are consistent with the injury and a probable prolapse at L3-4 with absence of the right knee jerk, weakness of the quadriceps muscle and positive stretch test.”

31        The solicitors for the defendant (or its agent) arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)	Mr Paul Kierce, an orthopaedic surgeon, on 11 July 2007: (see report of same date, at page 32 of Exhibit 1);
(b)	Mr Michael Polke, an orthopaedic surgeon, on 1 April 2010: (see report of same date, at page 40 of Exhibit 1).

The plaintiff relies on such reports in support of his case.

32        Mr Kierce was essentially retained to supply an AMA assessment of any permanent impairment for purposes not relevant to a serious injury application. However, it is to be noted that he diagnosed a lumbar disc herniation at the L3-4 level causing pressure on the right third lumbar nerve root. Furthermore, he found neurological deficit in relation to the right leg and had made an allowance for radiculopathy in the impairment assessment.

33        Inferentially, Mr Kierce related the impairment to the work injury on 28 April 2003.

34        Mr Polke also obtained a history of the work injury on 28 April 2003 and a “severe recurrence of his low-back and right leg pain” when bending at home although he incorrectly states this to be in 2005 rather than 2004: (see page 42 of Exhibit 1).

35        Mr Polke was of the opinion that the plaintiff suffers from right-sided L3-4 nerve root compromise probably due to a right L3-4 disc prolapse with some degenerative changes at other levels. In particular, he notes that the incident on 28 April 2003 “appears to have been a significant aggravation”. He does note that the 1984 injury “could have been the initial injury”.

Analysis of the Evidence

36        I am satisfied that the plaintiff suffered a compensable low-back injury arising out of or in the course of his employment with the defendant on or about 28 April 2003. Furthermore, as at today’s date, I am satisfied that the plaintiff has a low-back impairment giving rise to physical consequences. So much is not disputed by the defendant.

37        Consistent with all medical opinion, I am also satisfied that the nature of the low-back injury causing the permanent impairment is most probably an L3-4 disc prolapse with some degenerative changes at other levels. I also note that such injury has given rise to neurological deficit: (see in particular, report of Mr Schofield, at page 25 of Exhibit 1, and report of Mr Kierce, at page 32 of Exhibit 1).

38        The defendant agitates two issues:

(a)	Whether the plaintiff had suffered a causal link between the compensable injury on 28 April 2003 and the low-back impairment and resultant consequences presently suffered by the plaintiff; and
(b)	If such causation is established, whether such “consequences” are “serious” within the meaning of the narrative test.

39        In relation to the first issue, I refer to Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, and in particular at paragraphs 57-58, whereat Ashley JA states:

“[57] Returning to that difference, it cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible — it will be a matter for determination according to the evidence in the particular case — that each of two or more compensable injuries is a legally sufficient cause of the same consequences.

[58]     The second of those propositions turns on the words of the Act. Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. The concept of ‘material contribution’ was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words ‘results from’ had been construed to require much less than that injury be the sole cause of a consequence. It is argued by Hill & Bingeman that, given such a history of construction, the causal requirement imported by ‘material contribution’ should be taken to be a lesser requirement still than that encompassed by decisions construing the words ‘results from’. It is unnecessary to say whether that proposition should be accepted. It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”

(my emphasis).

40        After consideration of all of the evidence, I am satisfied that the compensable injury on 28 April 2003 is a cause of the low-back impairment and consequences now suffered by the plaintiff. In reaching such a view, I have taken the following matters into account:

(a)

The evidence of the plaintiff that when he suffered the incident on 28 April 2003 it felt like something had “broke” and that he “never really got over it”: (see T38, L27-31). Furthermore, the incident in 2004 was in the “same sort of spot” and it just felt “exactly the same”;

(b)

The evidence of the general practitioner, Mr Schofield, Mr Kierce and Mr Polke all support the proposition that the injury on 28 April 2003 has played a medically significant role in his present condition. Notwithstanding the opinion of Mr Nelson, I am persuaded on the weight of evidence that a sufficient causal link exists between the injury on 28 April 2003 and the present impairment and consequences.

41        In relation to the second issue – that is determining whether such “consequences” are “serious” within the meaning of the narrative test, I am assisted by several Court of Appeal decisions:

(a)  In Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 (delivered on 14 August 2009), Ashley JA and Beach AJA, by way of dicta, stated:

“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”

(see paragraphs [40}-[42].

(b) In Stijepic (op cit), Ashley JA and Beach AJA also refer to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, wherein, at paragraph [27], it is stated:

“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”

(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at paragraph [24] whereat his Honour stated:

“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”

In Stijepic (op cit), Ashley JA and Beach AJA commented, in relation to those words:

“… The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”

(d) I also refer to Sabo v George Weston Foods (op cit) where Neave and Mandie JJA made reference to the decision of TAC v Dennis [1998] 1 VR, and adopted the words of Callaway JA, when he discusses the weight which must be given to the adverb “very” in the words “at least very considerable”. Callaway JA, at page 703, stated:

“Many [impairments] are considerable, in the sense that they are
important or substantial, without being very considerable.”

42        I accept the plaintiff as essentially a witness of truth and in particular, made appropriate concessions when the video material and others matters were put to him in cross-examination. On hearing his evidence, which I found to be frank, it did not go perhaps as far as some of the statements in his affidavit (for example, compare his evidence to water skiing prior to the injury and that contained in the affidavit). As submitted by senior counsel for the plaintiff there was some degree of stoicism on the part of the plaintiff, and I bear in mind the dicta of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) (op cit), at paragraph [3], where he said:

“Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

43        Senior counsel for the plaintiff, although agreeing with senior counsel for the defendant that there was “no knockout blow here” (see T87, L20) in relation to any one particular “consequence”, submitted that taking into account all the consequences suffered by the plaintiff in respect of his low-back impairment, the narrative test is satisfied. These consequences included:

(a)	That although the plaintiff has had a paucity of treatment, that there is no other treatment that is open to him which he has not undertaken;
(b)	The plaintiff was a “frank witness” and did not embellish any of his “consequences”;
(c)	That he “wisely and deliberately” limited his activities in relation to riding his bike and walking;
(d)	He has lost the ability to perform his trade as a “fitter and turner” and although “he’s got more strings to his bow”, he has lost the “fallback position” of being able to go back to fitting and turning;
(e)	He has not resumed water skiing, snow skiing or golf;
(f)	His capacity to perform renovations and activities around the house has been diminished;
(g)	He has sensibly and prudently diminished a variety of activities to reduce his symptoms;
(h)	He has a diminished capacity to perform various enjoyable activities with his son.

44        Against that, senior counsel for the defendant submitted:

(a)	The plaintiff is performing alternative full-time work as a self-employed finance broker and has been performing that work on a full-time basis since ceasing with the defendant;
(b)	That he has had very little medical treatment from either his general practitioner or treating specialist and only occasionally takes medication for pain relief;
(c)	That the video film revealed him being able to bend his back and on occasion hold deep bends while he is reaching for various things on the ground. The video also showed him capable of walking around and supervising the building of his new office on the site of his domestic dwelling;
(d)	The video also revealed him being able to get into and out of cars without apparent difficulty and drive;
(e)	He had not been water skiing for some two years prior to his back injury and indeed, had sold his boat prior to his back injury;
(f)	He had not been snow skiing for quite a long time prior to his low-back injury;
(g)	He is still able to walk some distance and ride a bike and interact with his children, although his capacity for that activity is diminished.

(h) He is able to drive to Portland and go fishing with his friend.

Conclusions

45        It may be that the totality of the evidence reveals that the plaintiff has suffered and continues to suffer “pain and suffering consequences which are both “marked” and “significant”, but the Court is not persuaded that these consequences can be fairly described as being more than “marked” or “significant” or at least being “very considerable”.

46        Even allowing a degree of stoicism on the part of the plaintiff, the impression I gained of the plaintiff is that he leads a reasonably active life both in pursuing his work activities and some recreational activities albeit in a diminished way. As he said: “I manage to do most things most days” (see T 36, L 16-30).

47        Although accepting as I have, a degree of stoicism on his part, I do consider it relevant that the plaintiff has had little ongoing medical treatment and indeed, infrequent medication for pain symptoms. A point is reached between stoicism and a situation where symptoms are not that severe that treatment is not required.

48        I dismiss the application and I will hear the parties on the question of costs.

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