Goulas v Glen Cameron Nominees Pty Ltd
[2017] VCC 1065
•9 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00443
| ILLIAS GOULAS | Plaintiff |
| v | |
| GLEN CAMERON NOMINEES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2017 | |
DATE OF JUDGMENT: | 9 August 2017 | |
CASE MAY BE CITED AS: | Goulas v Glen Cameron Nominees Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1065 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – Injury to lower back – unrelated injuries to right and left knee – disentanglement – pain and suffering
Legislation Cited: Accident Compensation Act1985;
Cases Cited:Philippiadis v TAC [2016] VSCA 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Humphries v Poljak [1992] 2 VR 129; Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group & Anor [2009] VSCA 108; Dwyer v Calco Timber (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Transport Accident Commission v Dennis (1998) 1 VR 702
Judgment: Application unsuccessful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Nowicki Carbone |
| For the Defendant | Ms R Kaye | Minter Ellison |
HER HONOUR:
Introduction
1 Mr Goulas suffered an injury to his lower back, as a consequence of driving a truck with poor suspension between February 2013 and May 2014. Unrelated to his lower back injury, Mr Goulas also suffers injuries to his right and left knees. His employer, the defendant in this proceeding, accepts that Mr Goulas initially injured his lower back whilst at work in May 2014. However, the defendant alleges that Mr Goulas’ lower back injury is now caused by an intervening event, which occurred at work in September 2016 and which is not the subject of this claim. In the alternative, the defendant disputes the seriousness of Mr Goulas’ lower back injury.
2 In order for Mr Goulas to be entitled to claim common law damages for pain and suffering, the impairment of his lumbar spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
3 Only Mr Goulas was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material, including an affidavit from his wife. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
4 It is apparent to me that the quality and enjoyment of Mr Goulas’ life has been impacted upon as a consequence of his three orthopaedic injuries, being his lower back, and right and left knees. In assessing his claim, however, I must disregard those consequences arising from his knee injuries. My sympathy for his predicament cannot be the basis of a favourable determination in this application.
5 For the reasons which follow, I am satisfied that the injury Mr Goulas sustained in his employment in May 2014, continues to be a cause of his lower back injury. However, I am not satisfied that the pain and suffering consequences to Mr Goulas from his lower back injury can be described as at least “very considerable”.
Relevant background
6 Mr Goulas is 50 years of age and lives with his wife and three daughters.
7 Mr Goulas left school in the middle of Year 10, at which time he moved to Greece with his family. He lived in Greece for a couple of years, during which he worked in hospitality.
8 In 1985, Mr Goulas returned to Australia and undertook a hairdressing apprenticeship. He later performed a variety of jobs in warehouses and factories. Mr Goulas said that he worked as a taxi driver for most of the 1990s, before commencing employment as a truck driver in 2001. He continued in such employment for numerous companies until February 2013, at which time he commenced employment with the defendant.
9 In early 2010, prior to suffering his lower back injury the subject of this claim, Mr Goulas suffered a right knee injury. Mr Goulas described experiencing a gradual onset of pain, which he attributed to having driven a small truck, from which he was required to get in and out on a regular basis. Mr Goulas said he experienced ongoing symptoms in his right knee from that time onwards, but that such symptoms did not become sufficiently troubling until July 2015, at which time he sought a referral to an orthopaedic surgeon. Mr Goulas subsequently consulted orthopaedic surgeon, Mr Peter Brydon, who performed a right knee arthroscopy on 17 September 2015. This surgery involved resection of a degenerative tear in the posterior horn of his medial meniscus.
10 Mr Goulas said he made a reasonable recovery from this surgery. However, his right knee pain has worsened since late last year, such that he is now proposing to undergo further arthroscopic surgery. Mr Goulas said he has not yet booked a date for this surgery.
11 In approximately November 2013, Mr Goulas also began to develop symptoms in his left knee. He attributed such pain to the use of a stiff clutch whilst driving a truck in the course of his employment. In November 2015, Mr Goulas lodged a WorkCover claim for this injury, as his left knee deteriorated over time. At that time, he underwent an MRI scan of his left knee, which he understood to demonstrate marked cartilage thinning in the patella and some swelling within the knee joint.
12 In January 2016, Mr Goulas was referred to orthopaedic surgeon, Mr Gerard Bourke, in respect of his left knee pain. Mr Bourke was of the opinion that Mr Goulas was suffering a patella-femoral chondral lesion, which was not amenable to arthroscopic debridement. Mr Bourke suggested that Mr Goulas undertake “behaviour modification”, in an attempt to decrease the stress on his left knee joint, as well as anti-inflammatory medication on an intermittent basis or the use of glucosamine.
13 In March 2016, Mr Bourke again reviewed Mr Goulas in respect of his left knee injury. At that time, he noted that Mr Goulas had returned to exercise, which had caused him to experience a new pain in the lateral side of his left knee joint. Such pain was different to the patella-femoral pain he had previously experienced when cycling. It was noted that running exacerbated his pain.
14 Mr Goulas said that he had not suffered any lower back pain prior to commencing his employment with the defendant.
15 In his first affidavit, Mr Goulas said that prior to suffering his lower back injury, he used to run regularly and had been very fit. Mr Goulas said he also enjoyed cycling and playing social golf and social tennis. However, in cross-examination, Mr Goulas conceded that he had discontinued his golf membership prior to suffering his lower back injury, as he had wanted to start working more Saturdays, which he subsequently did. He further conceded that whilst he had enjoyed playing tennis when he was younger, he was playing little at the time he suffered his lower back injury. Mr Goulas also acknowledged that he had ceased running because of his right knee injury.
Injury and its consequences to Mr Goulas
16 Mr Goulas’ work duties with the defendant involved delivering CHEP pallets to customers in the Melbourne metropolitan region, whilst driving a 2006 three-axle semitrailer UD Nissan truck. Mr Goulas said that as the truck cabin was an older model, and it had a spring rather than air suspension, this caused him to experience a good deal of movement and jolting whilst driving.
17 Mr Goulas claimed that he became aware of the onset of symptoms of lower back pain in May 2014.
18 In approximately June 2014, Mr Goulas consulted the company doctor, general practitioner, Dr Theja Seneviratne, who referred him for physiotherapy treatment. Mr Goulas underwent such treatment with Ms Jacqueline Gurr, which included undertaking Pilates, as well as home-based exercises.
19 Mr Goulas reported his lower back pain to the defendant, and was soon after provided with a more comfortable truck to drive, with air suspension.
20 On 9 July 2014, an MRI scan was taken of Mr Goulas’ lumbosacral spine. It was reported as demonstrating mild mechanical changes centred at L3‑4 and L4‑5 levels with no significant vertebral canal or neural exit foraminal stenosis identified.
21 The defendant paid for Mr Goulas’ medical treatment and physiotherapy expenses until approximately March or April 2015, at which time Mr Goulas commenced self-managing his symptoms. He considered this to cause his lower back condition to “go backwards”.
22 Mr Goulas said he subsequently sought legal advice and was advised to lodge a WorkCover claim in respect of his lower back injury. At about this time, Mr Goulas was preparing to undergo right knee surgery.
23 In approximately September 2015, whilst recovering from his knee surgery, Mr Goulas was advised that he had been transferred from the CHEP delivery run to the local fleet delivery. Mr Goulas believes the transfer was intended as a punishment for him taking legal action for his lower back injury, however, he acknowledged that the defendant had never directly said that to him. He also acknowledged that he was under restrictions in respect of his right knee condition at that time.
24 In September 2016, Mr Goulas drove with his family to Merimbula for a holiday. He said the drive was about six to seven hours and that he had to stop quite a few times along the way. Whilst there, he was able to do a lot of hikes and walks with his family. However, in re-examination Mr Goulas said he just ”hobbled along”.
25 On 27 September 2016, two days after returning to work, Mr Goulas suffered an exacerbation of his lower back pain, whilst moving gates onto his trailer. Mr Goulas said that his back pain has increased since this flare-up, and that it has made life more difficult in terms of his daily activities. However, he said it had not resulted in an increased dosage of Lyrica.
26 In February 2017, Mr Goulas’ general practitioner, Dr Maithri Wickramasinghe, referred him to neurosurgeon, Mr Armin Drnda. Mr Drnda obtained a history from Mr Goulas that he had suffered an injury to his lower back as a consequence of bad suspension on the truck he drove at work. Mr Drnda noted that Mr Goulas was trying hard to work, but that he found it very difficult with his lower back pain.
27 Mr Drnda arranged for a further MRI scan to be performed, which demonstrated degenerative disc disease and facet joint arthropathy at L3‑4 with right foraminal and lateral annular disruption and bulging lying adjacent to the right L3 nerve root. It was noted that no left-sided disc prolapse was identified. Mr Drnda considered this to demonstrate a very mild progression of disc protrusion at the L4‑5 level, without neurological deficit.
28 Mr Drnda considered that Mr Goulas was in chronic pain. He was of the opinion that Mr Goulas did not have full work capacity, but did not express an opinion on any work restrictions. Mr Drnda did not recommend surgery, but instead recommended that Mr Goulas undertake a multidisciplinary pain management assessment.
29 Dr Wickramasinghe then subsequently referred Mr Goulas to pain specialist, Dr B Shirazi. In March 2017, Dr Shirazi examined Mr Goulas and diagnosed him as suffering chronic pain with significant neuropathic overlay. Dr Shirazi recommended that Mr Goulas cease taking Palexia due to its cognitive side effects, and instead recommended that he take a lower dose of Lyrica, provided he could tolerate it whilst driving.
30 Mr Goulas said that, notwithstanding the injuries to his right and left knees, his major concern is his lower back pain. He had previously been prescribed Celebrex and Mobic, but now uses only Lyrica and Palexia. Mr Goulas said that if his back spasms, he may take a low dose of Lyrica midweek as well as the weekends, but that it does not do much for the pain. Mr Goulas said the Lyrica was prescribed for his back spasms, and is unrelated to either of his knee injuries.
31 Mr Goulas also said that he may sometimes use Palexia on the weekend, when he has nothing on and is able to sit at home on the couch and turn “into a zombie”.
32 Mr Goulas said that as a consequence of his lower back injury he is no longer able to cycle and cannot play tennis or golf. He has also had to cease running.
33 Mr Goulas said that he is restricted in his capacity to undertake tasks around the home. He said he still mows the lawns, but that he takes a break whilst doing so, depending upon his level of pain. Mr Goulas said that whilst he is still able to cook, the prolonged standing can hurt his back.
34 Mr Goulas said that the pain has disturbed his sleep and that he is tired and lethargic as a result. He also said that his intimate relations with his wife have been adversely affected.
35 Mr Goulas also relied upon an affidavit from his wife, who referred to the restrictions that she has observed to Mr Goulas both at home and recreationally. I note that as Mrs Goulas makes no mention of the knee injuries suffered by her husband, her affidavit fails to distinguish the cause of each of the consequences detailed therein. Mr McCredie correctly commented that Mrs Goulas is unable to provide such evidence, as it is Mr Goulas’ pain and not her own. However, in circumstances where there are three orthopaedic injuries, each of which have the capacity to impact upon the restrictions she identified in her affidavit, her affidavit is of little assistance to me.
Mr Goulas’ medico-legal evidence
36 Mr Goulas’ solicitors arranged for him to be examined by neurosurgeon, Mr Paul D’Urso, in June 2016. In his report dated 1 July 2016, Mr D’Urso obtained a history from Mr Goulas that he had suffered lower back pain as a consequence of poor suspension in a truck that he was required to drive for work.
37 Mr D’Urso recorded that Mr Goulas said he has “never really been the same since the initial injury”, and noted that he described chronic pain at 6 out of 10, which comes and goes. He noted that Mr Goulas was able to sit comfortably for an hour and that he can walk comfortably and sleep at night, but that he had difficulty standing, particularly in queues. At that time, Mr D’Urso noted that Mr Goulas worked approximately 50 hours a week and that he was able to cycle and go to the gym, as well as cook, shop, and do light gardening. He also noted that prior to his injury, Mr Goulas was able to run without restriction, cook more actively and engage with his children more often and more vigorously.
38 Mr D’Urso was of the opinion that Mr Goulas’ workplace activities had aggravated, and likely accelerated, pre-existing degenerative change in the L4‑5 and L3‑4 intervertebral discs and L4‑5 facet joints. He considered Mr Goulas’ long-term prognosis was likely to be satisfactory, but thought that he would have a partial incapacity of a permanent nature. He was also of the opinion that Mr Goulas would be unable to perform moderate or arduous domestic, cleaning, or gardening activities, and considered he would also need to avoid vigorous sporting activities, particularly those on a hard court surface.
39 Mr Goulas’ solicitors also arranged for him to be examined by orthopaedic surgeon, Mr John O’Brien, in April 2016. In his report dated 11 April 2016, Mr O’Brien detailed Mr Goulas’ three orthopaedic injuries. He noted that Mr Goulas had experienced lower back pain after driving a truck with poor suspension, and that he had been referred for physiotherapy treatment which “over time did slowly improve the severity of low back pain”.
40 Mr O’Brien noted that at the time of the examination, Mr Goulas complained of constant lower back pain which fluctuated in severity. He noted that in the previous week (ie early April 2016), Mr Goulas had experienced an episode of acute severe pain after having lifted gates onto his semitrailer. It was noted that Mr Goulas’ pain was usually 5 out of 10, but that with exacerbations, it could reach 7 to 8 out of 10.
41 Mr O’Brien also noted that Mr Goulas complained of intermittent right knee pain at that time, which was aggravated by prolonged standing and any attempts at running, and some intermittent pain in his left knee, which was aggravated when he went up and down stairs.
42 Mr O’Brien considered that Mr Goulas was suffering chronic non-specific back pain, and noted that there were no signs of definitive pathology to explain his current pain generation.
43 In relation to his right knee, Mr O’Brien considered it likely that the condition would be progressive, and thought that Mr Goulas may require a total knee replacement in the future.
44 In support of his claim, Mr Goulas also relied upon a report which the defendant had obtained from occupational physician, Dr James Economos, in December 2016. This report had been commissioned after Mr Goulas lodged a separate WorkCover claim in relation to the aggravation of his lower back injury on 27 September 2016. In his report dated 19 December 2016, Dr Economos detailed Mr Goulas’ three orthopaedic injuries and the impact they had upon him.
45 Dr Economos was of the opinion that the work incident on 27 September 2016, was an aggravation of Mr Goulas’ pre-existing lower back injury. Dr Economos also considered the contribution from the new incident to be modest, in circumstances where Mr Goulas had suffered constant pain prior to this incident.
46 On examination, Dr Economos noted reduced sensation to light touch and pinprick in Mr Goulas’ left S1 dermatome. He recommended a repeat MRI scan to investigate whether there was a left-sided focal disc pathology.[1]
[1]This MRI scan was subsequently taken on 30 January 2017 and did not demonstrate any neural compression
47 Dr Economos was of the opinion that Mr Goulas was capable of working full-time in his truck-driving duties.
Defendant’s medico-legal evidence
48 The defendant arranged for Mr Goulas to be examined by occupational medicine consultant, Dr Sam Soliman, in September 2015. In his report dated 2 September 2015, Dr Soliman noted that Mr Goulas complained of lower back pain which was 6 to 7 out of 10, which worsened with prolonged sitting, standing, and bending. He noted that Mr Goulas’ back was better with cycling and swimming.
49 Dr Soliman was of the opinion that Mr Goulas developed mechanical back pain from driving a truck with poor suspension. He considered the MRI scan to demonstrate mild degenerative changes, which he thought were essentially normal for a person of Mr Goulas’ age. Dr Soliman considered Mr Goulas’ mechanical pain to have resolved and thought that employment was no longer a materially contributing factor to his underlying mild degenerative disc disease. Dr Soliman also expressed an opinion that the difficulties Mr Goulas experienced when driving long distances without a break, were as a result of his long career driving taxis and trucks.
50 Dr Soliman considered that Mr Goulas was fit to return to his pre-injury duties.
51 In addition to the medico-legal reports obtained in respect of Mr Goulas’ lower back injury, the defendant also relied upon medico-legal reports obtained in relation to his unrelated right knee injury. The defendant tendered a report of occupational physician, Dr Ralph Poppenbeek, dated 30 December 2015. The relevant WorkCover insurer had commissioned this report in relation to the compensation claim Mr Goulas made for his right knee injury. In his report, Dr Poppenbeek considered the right knee injury alone, and on that basis, was of the opinion that Mr Goulas had the capacity for full-time modified duties. He stated that Mr Goulas should be careful with squatting, kneeling, the use of ladders, and getting in and out of trucks. He also thought it was best that Mr Goulas undertake long rather than short trips, in an attempt to minimise the number of times he would need to get in and out of his truck.
52 The defendant also relied upon a report of orthopaedic surgeon, Mr Michael Dooley, which had also been obtained in relation to Mr Goulas’ right knee injury. In his report dated 13 February 2017, Mr Dooley stated that the underlying osteoarthritis Mr Goulas suffered in his right knee would evolve over time, such that it would possibly develop into a situation of significant osteoarthritis that required further treatment. He was also of the opinion that, based on his experience, an arthroscopy for pain in the knee joint was unlikely to improve knee pain.
53 Finally, the defendant relied upon a report of orthopaedic surgeon, Associate Professor Bruce Love, in respect of Mr Goulas’ right knee injury. He detailed the difficulties Mr Goulas had experienced in relation to his right knee injury, and considered that it would be appropriate for an arthroscopy to be performed to diagnose and, if appropriate, treat a meniscus tear.
Is Mr Goulas’ employment in May 2014 still a cause of his lower back injury?
54 The defendant alleged that Mr Goulas’ lower back pain was no longer caused by the period between February 2013 and May 2014, during which he was required to drive a truck with poor suspension. Instead, it alleged that his lower back pain was caused by either unrelated degenerative changes, or by the work incident of 27 September 2016.
55 I accept Mr Goulas’ evidence that he has suffered ongoing lower back pain since May 2014. I am also satisfied that his condition relates to an aggravation of pre-existing asymptomatic degenerative changes. I consider the work incident of 27 September 2016, to be a temporary exacerbation of his ongoing and permanent lower back injury.
56 I note that Dr Soliman is the only one to express an opinion that Mr Goulas’ employment is no longer a materially contributing factor to his ongoing lower back pain. However, Dr Soliman did not explain the manner in which he came to decide when and how the employment ceased to be a contributing factor. In such circumstances, I find it improbable that, if his employment had caused the onset of the lower back symptoms in May 2014, and the symptoms have persisted throughout, that Mr Gourlas’ employment is no longer a cause of such symptoms.
Disentanglement of the consequences from Mr Goulas’ three orthopaedic injuries
57 I am satisfied that Mr Goulas suffers permanent injuries to his lower back, right knee and left knee.
58 I note that further surgery has been proposed for his right knee, and that, despite his optimism, there is no medical opinion as to the impact this surgery will have upon the ongoing function of Mr Goulas’ right knee. Mr Dooley and Mr O’Brien both consider it likely that Mr Goulas’ right knee will continue to deteriorate over time.
59 I note that no surgical treatment can be offered for his left knee injury and that his surgeon, Mr Bourke, simply recommended behaviour modification. Although Mr Bourke did not expressly state what he meant by such treatment, I took it to mean the avoidance of activities which aggravated Mr Goulas’ left knee injury. In assessing Mr Goulas’ claim I must consider only the consequences which arise from his lower back injury. It is impermissible to aggregate impairments or losses of different body functions.[2]
[2]Philippiadis v TAC [2016] VSCA 1
60 The need for disentanglement was considered by the Court of Appeal in Peak Engineering v McKenzie.[3] That case involved a plaintiff who, subsequent to suffering a left hand injury at work, also developed an unrelated left knee injury. The plaintiff then suffered numerous restrictions, some of which were attributable to both injuries. In considering the plaintiff’s serious injury application in respect of his left hand injury, the Court of Appeal stated that the court should assess those consequences referrable to the compensable injury, whilst excluding those consequences referable to any unrelated non-compensable injuries. The onus is on the plaintiff to disentangle such consequences.
[3]Peak Engineering & Anor v McKenzie [2014] VSCA 67;Poholke v Goldacres Trading [2016] VSCA 232
61 I am satisfied that, as a consequence of his right knee injury, Mr Goulas stopped running prior to suffering his lower back injury. I am also satisfied that he cannot now return to running as a consequence of his right and left knee injuries.
62 Mr Goulas accepted that he is unable to play tennis as a consequence of his right and left knee injuries.
63 I am also satisfied that Mr Goulas’ ability to cycle has been impacted upon by his right and left knee injuries. In Mach 2016, Mr Bourke recorded that cycling caused Mr Goulas pain in his left patellofemoral joint. Since that time, Mr Goulas has also suffered a worsening of his right knee pain. There is no medical opinion which suggests that either knee injury is likely to improve. Having considered all of the evidence, I am satisfied that, notwithstanding his lower back injury, it is unlikely Mr Goulas would still be cycling as a consequence of his knee injuries.
Pain and suffering consequences to Mr Goulas from his lower back injury
64 To succeed in his case, Mr Goulas must satisfy me, on the balance of probabilities, that the impairment he claims to suffer to his spine is permanent and serious. The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[4] When considering if Mr Goulas’ spinal impairment is “serious”, the consequences must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[5]
[4]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
[5]Humphries v Poljak [1992] 2 VR 129 at [140]
65 In Sabo v George Weston Foods,[6] the Court of Appeal observed that in considering whether or not an impairment is at least ‘very considerable’, weight must be given to the adverb ‘very’.[7]
[6][2009] VSCA 242
[7]Ibid at [73]
66 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[8] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, regard should be had as to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain. In undertaking this assessment, the plaintiff’s credibility is an important factor.
[8][2010] VSCA 69 at [9]–[12]
67 I accept that Mr Goulas was a creditworthy witness. He gave frank answers and did not seek to understate the pain and restrictions his knee injuries have caused him.
68 I did, however, have some reservations as to the reliability of Mr Goulas’ evidence in relation to when and for what reason he stopped cycling. In cross-examination, Mr Goulas was adamant that he had stopped cycling in June 2016. However, Mr D’Urso, who examined Mr Goulas on 20 June 2016, obtained a history that he was cycling at that time. I also note that in his first affidavit, sworn 28 September 2016, Mr Goulas stated that he was concerned about the adverse impact his lower back injury may have on him “as the summer months come on.” He also stated “I now find riding also places increased strain on my left knee when going up hills and inclines.” Although I accept that Mr Goulas now genuinely believes that he had stopped cycling in June 2016, the contemporaneous evidence suggests that he is likely to be confused as to when this actually happened. In any event, for the reasons explained above, I accept that all three orthopaedic injuries impact upon his current ability to cycle.
69 In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[9] Chernov JA stated that it is ordinarily very difficult for a plaintiff to establish a serious injury where the plaintiff has returned to alternate employment.[10]
[9][2006] VSCA 292
[10]Ibid at [24]
70 This decision was subsequently considered by the Court of Appeal in Stijepic v One Force Group & Anor.[11] In that case, Ashley JA and Beach AJA stated:
“It is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.”[12]
[11][2009] VSCA 181
[12]Ibid at [47]
71 In addition, they took Chernov JA’s statement in Sumbul to mean that a worker successfully returning to alternate duties:
“will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious.”[13]
[13]Ibid
72 In this case, Mr Goulas is still working in his pre-injury duties as a truck driver, however, I note that he is now on a different delivery run. Mr Goulas did not express any regret for his old delivery run, but was simply upset by the manner in which he had been transferred. This is not, therefore, a situation where the plaintiff has lost his chosen occupation[14] or is missing his pre-injury duties.
[14]Eg Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
73 I accept that Mr Goulas suffers ongoing lower back pain, which fluctuates in severity. However, I note that Mr Goulas is not currently receiving any ongoing treatment for his lower back pain, and has not attended a physiotherapist since mid-2015. He does not take pain killing medication on a daily basis, but might use it midweek and sometimes on the weekends. I accept that his lower back pain sometimes affects his sleep, but not to the extent that Mr Goulas takes medication at night to assist in his sleep. I also note that there was no evidence that Mr Goulas’ sleep deprivation had resulted in occasional absences from work, and note that he has not complained about it to the doctors.
74 In assessing Mr Goulas’ claim, I must look not only at what he has lost, but also at what he has retained.[15]
[15]Dwyer v Calco Timber (No 2) [2008] VSCA 260
75 Mr Goulas is still able to work full-time, which usually involves him working 50 to 60 hours per week. He also regularly does overtime, which he never knocks back when offered. Mr Goulas said that he suffers increased lower back pain from long drives, and that when he gets out of the truck he is in increased pain and has to walk around to settle it down.
76 Mr Goulas is still able to cook, shop and garden, although he said he has to take it slower than he did before. Mr Goulas is also able to take his children to sporting activities and watch them play. However, he said that when he had a kick of the football with his youngest daughter, it caused him to suffer an increase of lower back pain.
77 Mr Goulas said that he stopped playing golf prior to suffering his lower back injury.
78 Mr Goulas said that he has tried swimming, but that he does not get any benefit from it nor overly enjoy it. Mr Goulas also said that he has previously done light-weight work in the gym, but that he has not done so for quite a long time, in part due to his right and left knee injuries, but predominantly as he is scared to hurt his lower back.
79 In considering all of the above, and applying the principles enunciated in Stijepic, I do not consider Mr Goulas has satisfied me that there is sufficient “other relevant evidence” to demonstrate that he suffers very considerable consequences.
80 Mr McCredie urged me to find that Mr Goulas was a stoic man, who endured pain in order to keep working. As was noted by Maxwell P in Haden, such a plaintiff should not be viewed as less serious, merely because he manages to remain more active than might have been expected given the level of pain.[16]
[16]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [13]
81 Mr Goulas is not working against medical advice. Further, he is able to work up to 60 hours per week without the need for daily pain killing medication or the need to take any time off work. In such circumstances, I do not consider Mr Goulas’ situation to be of the kind contemplated by Maxwell P in Haden.
82 Mr Goulas stated that his intimate relations with his wife have also been adversely impacted by reason of his lower back pain. However, I consider it likely that the ongoing right and left knee pain from which Mr Goulas suffers to be a contributing factor in his ability to be intimate with his wife. I note that his wife confirmed their intimate relations had been adversely impacted by reason of “his symptoms of pain”, but that she did not state which symptoms. Further, none of the medical reports refer to Mr Goulas complaining of his lower back pain impacting upon his ability to be intimate with his wife.
83 I accept that Mr Goulas’ lower back injury may impact upon his sexual life, and consider this to be a consequence of some note. However, when considering collectively the consequences to Mr Goulas from his lower back injury, I am of the opinion that he does not satisfy the requisite threshold.
Conclusion
84 As the Court of Appeal acknowledged in Transport Accident Commission v Dennis, [17]
“Many impairments are considerable, in the sense that they are important or substantial without being very considerable.”[18]
[17](1998) 1 VR 702
[18]Ibid at 703
85 I accept that the consequences to Mr Goulas from his lower back injury could be described as either considerable, significant or marked. However, in considering all of the evidence, when judged by comparison with other cases in the range of possible impairments or losses, I am not satisfied Mr Goulas’ pain and suffering consequences can be fairly described as at least very considerable or more than significant or marked. In such circumstances, his application is dismissed.
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