Gulifa v Victorian WorkCover Authority
[2024] VCC 1218
•16 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01219
| ADAM GULIFA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 July 2024 | |
DATE OF JUDGMENT: | 16 August 2024 | |
CASE MAY BE CITED AS: | Gulifa v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1218 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – spinal injury – pain and suffering – Medical Panel Opinion – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; s325(1); Evidence Act 2008, s55, s79
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Johns v Oaktech Pty Ltd [2020] VSCA 10; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sejranovic v Berkeley Challenge [2009] VSCA 108; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Woolworths Ltd v Warfe [2013] VSCA 22; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Wesfarmers Ltd v Lloyd [2016] VSCA 41
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for pain and suffering for injuries suffered in the course of his employment with Better Scaffolding and Truck Hire Company Pty Ltd between April 2016 and August 2017 and in particular in August 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC with Mr B Johnson | Maurice Blackburn Lawyers |
| For the Defendant | Mr B McKenzie | Minter Ellison |
HIS HONOUR:
Background to the application
1Mr Adam Gulifa is forty-three years of age. Mr Gulifa is married to Ms Amy Gulifa. Ms Gulifa works part time. The couple have two children aged three years and one-and-a-half years.
2Mr Gulifa commenced work with Better Scaffolding and Truck Hire Company Pty Ltd (“Better Scaffolding”) as a labourer in April 2016.
3Mr Gulifa said this job involved a great deal of heavy work.
4Mr Gulifa said, prior to commencing work with Better Scaffolding, he had undertaken a range of labouring jobs, including concreting, rendering and plastering. Mr Gulifa said he had suffered some intermittent back, neck and right shoulder pain over the years. Mr Gulifa said he had received treatment, and as a result of this treatment, these problems had settled.
5In the context of this application, Mr Gulifa said:
(a) in August 2017, he developed neck, upper back and shoulder pain;
(b) this was due to heavy lifting at work;
(c) he had a few days off work, but returned to normal duties;
(d) on or about 22 August 2017, he was required to undertake very heavy lifting at a construction site in Donvale and as a result suffered a lower back injury;
(e) while he tried to keep working, his lower back pain was so bad he sought medical advice and was certified off work;
(f) a WorkCover claim was lodged and liability accepted;
(g) apart from a short period when he endeavoured to participate in a return-to-work program in around June 2018, he has not worked since August 2017.
6Mr Gulifa says that, since August 2017, he suffered ongoing lower back pain and pain-related impairment. He said this impacts him in many ways. Mr Gulifa says that his spinal injury is a serious injury and the Court should grant him leave to issue common law damages for pain and suffering.
7The defendant, the Victorian WorkCover Authority (“VWA”), is the worker’s compensation insurer for Better Scaffolding. They deny Mr Gulifa has suffered a serious injury.
What is the nature of the proceeding?
8This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Gulifa relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his injury is a “permanent serious impairment or loss of a body function”.
9For Mr Gulifa to be successful, he must establish that the consequences from his injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable” as per the narrative test set out in s325(2)(b) and to s325(2)(c) of the Act.
What are the issues for the Court’s determination?
10The VWA admitted Mr Gulifa:
(a) suffered a compensable lower back injury;[1]
(b) suffers an ongoing lower back condition which is caused by his employment with Better Scaffolding.[2]
[1]Transcript (“T”) 3, Lines (“L”) 2
[2]T3, L3-4; T85, L19
11Having made these admissions, the VWA said:
(a) the nature and extent of Mr Gulifa’s lower back injury was in issue;
(b) Mr Gulifa’s credit and reliability had been impugned and the Court should not accept his evidence;
(c) the Court was bound by the Medical Panel Certificate of Opinion, dated 11 January 2022;[3]
(d) the Court should give no heed to the evidence of Ms Gulifa;
(e) Mr Gulifa did not satisfy the “serious injury” test.
[3]Exhibit “E”
12It was said on Mr Gulifa’s behalf:
(a) that the Court was bound by the Medical Panel’s Certificate of Opinion;
(b) his credit and reliability remain intact and the Court should accept his evidence;
(c) the Court should take heed of the evidence of Ms Gulifa;
(d) his lower back injury, and the consequence flowing from that injury, did satisfy the “serious injury” test.
13Thus, the issues for the Court to determine include:
(a) what is the impact of the Medical Panel’s Certificate of Opinion and Reasons for Opinion in the context of this application;
(b) as to Mr Gulifa’s credit and reliability and whether I can accept his evidence;
(c) given the Medical Panel’s Certificate of Opinion and Reasons for Opinion, what use can I make of the balance of the medical evidence and what assistance does it provide;
(d) what assistance does the evidence of Ms Gulifa provide the Court;
(e) whether the consequences alleged from Mr Gulifa as flowing from his lower back injury satisfy the “serious injury” test.
The Medical Panel Certificate of Opinion and Reasons for Opinion
The approach to be taken
14I shall:
(a) review the legal principles which govern the application of a prior Medical Panel opinion to the Court’s determination in a serious injury proceeding such as this one;
(b) analyse the Medical Panel’s Certificate of Opinion and Reasons for Opinion;
(c) set out how I will apply the Medical Panel’s Certificate of Opinion and Reasons for Opinion in the context of Mr Gulifa’s application.
The legal principles
15The Court of Appeal in Yirga-Denbu v Victorian WorkCover Authority[4] considered the application of a prior Medical Panel Certificate of Opinion to a subsequent serious injury application.
[4](2018) 57 VR 545 (“Yirga-Denbu”)
16While there are many similarities in the factual matrix and the issues in dispute between this application and Yirga-Denbu, there are also some differences.
17In both matters, the Medical Panel:
(a) was asked to provide an opinion in respect to the worker’s statutory benefit entitlement, rather than provide an opinion in the serious injury application;
(b) provided an opinion setting out the nature of the worker’s work-related injury;
(c) provided an opinion as to the worker’s work capacity and, in particular, capacity for suitable employment.
18Mr Gulifa’s serious injury application involves an application for leave for pain and suffering only. In Yirga-Denbu, the applicant sought leave for both pain and suffering and economic loss.
19Moving firstly to the question whether I am bound by the Medical Panel Certificate of Opinion and Reasons for Opinion.
20While both counsel in this application agreed I am, for completeness I make reference to the passage where the Court of Appeal in Yirga-Denbu articulate this. The Court of Appeal said:
“In the hearing before the primary judge, the applicant’s counsel conceded (correctly in our view) that the Court was bound by the third medical panel’s certificates of opinion. … .”[5]
(Emphasis added.)
[5]Yirga-Denbu at paragraph [41]
21Turning now to what I should do when the opinion of a witness conflicts with the Medical Panel Certificate of Opinion. The Court of Appeal said:
“… We accept that an opinion of a witness that conflicts with a certificate of the opinion of a medical panel cannot be used in any way to undercut the medical panel’s opinion as expressed in its certificate of opinion. That does not mean, however, that there may not remain admissible evidence of the relevant witness that is capable of bearing on a question not foreclosed by the medical panel’s opinion. In a case like the present, an expert’s opinion that there would be no physical improvement after a particular point in time (or at all) contains within it the opinion that if that opinion is not accepted then whatever improvement might ultimately occur will not be great. Consistently with what is said by trial judges to juries, when charging them about the acceptance or rejection of evidence, merely because the trier of fact might reject (or, as in this case, be required to reject) particular evidence from a particular witness does not mean that all of that witness’s evidence must be rejected in its entirety.”[6]
(Emphasis added.)
[6]Yirga-Denbu at paragraph [87]
22Thus, it would be impermissible for me and I would fall into error, should I use any of the balance of the evidence (and in particular medical opinions) which would “in any way … undercut the medical panel’s opinion as expressed in its certificate of opinion”.
23However, that is not the end of what the Court of Appeal said.
24In Yirga-Denbu, the main issue in dispute centred around the possibility of the applicant’s injury improving, something the Medical Panel had accepted was a possibility. The Court of Appeal was open, in those circumstances, for evidence subsequent to the Medical Panel’s determination to be considered by the court in making its determination. In this context, the Court of Appeal said:
“… The question of the precise extent of the applicant’s permanent incapacity was one that fell to be resolved by a consideration of all of the evidence.”[7]
[7]Yirga-Denbu at paragraph [89]
25Further, I must bear in mind that it is the consequences flowing from Mr Gulifa’s lower back injury which ultimately falls for my determination.
26That said, I accept, as long as care is taken by the Court not to adopt evidence which “undercuts” the Medical Panel’s Certificate of Opinion, the balance of evidence, including medical evidence, may be used by the Court in undertaking its determination.
What did the Medical Panel conclude in this matter?
27Moving now to the Medical Panel Certificate of Opinion.
28The Medical Panel Certificate of Opinion included the following:
“Question 1. What is the nature of the medical condition of [Mr Gulifa’s]:
(a) lumbar spine;
(b) right leg;
(c) left leg; and
(d) mind?
Answer: (a) non-specific low back pain;
(b) no intrinsic medical condition;
(c) no intrinsic medical condition; and(d) no diagnosable (i.e.: no DSM-classifiable) psychiatric condition.
Question 2. (a) Does any medical condition of the lumbar spine identified by the Medical Panel in to Question 1(a) continue to result from or be materially contributed to by the injury in employment with Better Scaffolding & Truck Hire Pty Ltd (‘the employer’) in the period up to and including 22 August 2017?
(b)Does any medical condition of the right leg identified by the Medical Panel in to Question 1(b) result from or is it materially contributed to the medical condition of [Mr Gulifa’s] lumbar spine as assessed by the Medical Panel?
(c)Does any medical condition of the left leg identified by the Medical Panel in answer to Question 1(c) result from or is it materially contributed to the medical condition of [Mr Gulifa’s] lumbar spine as assessed by the Medical Panel?
(d) Does any medical condition of the mind identified by the Medical Panel in answer to Question 1(d) result from or is it materially contributed to any medical condition of [Mr Gulifa’s]:
(i) lumbar spine;
(ii) right leg; or
(iii) left leg?
Answer: (a) yes;
(b) not applicable;
(c) not applicable; and
(d) (i) – (iii) not applicable
Question 3. Is any medical condition of [Mr Gulifa’s]:
(a) lumbar spine;
(b) right leg;
(c) leg; or
(d) mind -
as identified by the Medical Panel ‘permanent’ meaning likely to last for, during or through the foreseeable future?
Answer: (a) yes;
(b) not applicable;
(c) not applicable; and
(d) not applicable
Question 4: Is [Mr Gulifa] incapacitated for work as a labourer?
Answer: Yes.
Question 5:If ‘yes’ to Question 4, does such incapacity result from or is it materially contributed to by any and if so which medical condition of [Mr Gulifa’s];
(a) lumbar spine
(b) right leg;
(c) left leg; or(d) mind?
Answer: (a) yes;
(b) not applicable;
(c) not applicable;(d) not applicable”[8]
[8]Amended Plaintiff’s Court Book (“PACB”) 189-191
29The Medical Panel went on to conclude, while Mr Gulifa was not able to work as a labourer by reason of his work-related lower back injury, he had the capacity to work thirty-eight hours per week in a range of suitable employment options.
30It is in this context Mr Richards told the Court that the Medical Panel Certificate of Opinion formed the basis of Mr Gulifa abandoning his application for leave to pursue economic loss damages.
31Referring back to the use I am to make of the Medical Panel Certificate of Opinion and Reasons for Opinion.
32In the course of the application, both Mr Richards and Mr McKenzie took me to parts of the Reasons for Opinion which they sought to use to advance their respective client’s cases.
33Mr McKenzie referred to, on a number of occasions, passages where the Medical Panel concluded Mr Gulifa’s lower back pain to be “non-specific” and by inference ꟷ and these are my words and not his ꟷ of very modest significance. For completeness, I will set out two extracts from the Medical Panel Reasons for Opinion relied upon by the VWA.
34Firstly:
“The Panel regards [Mr Gulifa’s] history of low back pain as non-specific, there is no specific restriction pattern to his movement-related pain, there are no objective examination indicators of a persisting physical injury (i.e.: no local tenderness, no resting muscle spasm, no involuntary guarding/ nonuniform restriction of motion) and he has a substantially resolved L4/5 disc pathology shown by the radiology. [Mr Gulifa] presents objectively as a fit and muscular younger man, who protests redeployment on the basis that he has lost confidence and that his body cannot take anymore. The Panel finds that there are no signs of central pain sensitisation (allodynia, dermographia). Accepting [Mr Gulifa’s] self-reported symptoms are factual, and notwithstanding the radiological indicators of a previous L4/5 disc injury (which the Panel considers now substantially resolved) the Panel therefore concludes that [Mr Gulifa] has non-specific low back pain.
[Mr Gulifa] reports no right leg symptoms (although he did have right leg pain in 2010) and has no objective abnormality of the left leg on physical examination nor radiology, despite also complaining of left leg pain. The Panel therefore concludes that [Mr Gulifa] has no intrinsic medical condition (sic) conditions of the left (or right) leg.”[9]
[9]Defendant’s Amended Court Book (“DACB”) 166
35The second extract being:
“The Panel makes the following clinical observations for the non-expert reader. Non-specific low back pain can be understood from many perspectives including in terms of 1) unresolved physical injury (for which there is little clinical evidence, however, as a tool to ascertain the extent of a physical injury, clinical examination lacks sensitivity to detect a very subtle persisting injury and cannot exclude minor, physical injury at a biological level), 2) ‘central sensitisation’ (referring to pain amplification, with or without a persisting physical injury), 3) psychological factors (if not an actual classifiable psychiatric pain disorder) and 4) social environment. For the purpose of assessing [Mr Gulifa’s] capacity, the Panel does not believe it is fruitful to speculate as to the objective accuracy of [Mr Gulifa’s] perceptions, and considers the clinical designation of ‘non-specific low back pain’ as the most appropriate descriptor. It is important to note that despite [Mr Gulifa’s] contrary perception, the Panel’s use of the descriptor ‘non-specific low back pain’, also indicates [Mr Gulifa] is considered to have a normally functioning lumbar spine. Thus, the Panel considers [Mr Gulifa] has no objective lumbar spine dysfunction.”[10]
[10]DACB 166-167
36Mr Richards referred to other passages from the Medical Panel Reasons for Opinion, which he said were supportive of Mr Gulifa having suffered discal injury and in particular a L4-5 disc injury. I will set out three such extracts relied upon by Mr Gulifa.
37The first extract is:
“The Panel noted MRI lumbar spine dated 28 August 2017, 16 July 2018, and 14 November 2018 and 4 October 2020. These disclosed a single level abnormality involving the L4/5 disc comprising disc desiccation and mild height loss, a small left paracentral disc protrusion, Modic change in the adjacent vertebral endplates, mild subarticular narrowing with effacement but no anatomic neurocompression of the left L5 nerve root, and no right sided neurocompression. Overall, the Panel’s opinion is that the most recent radiology indicates a substantially healed, chronic lumbar L4/5 disc injury.”[11]
[11]DACB 166
38The second extract is:
“The Panel notes that since the injury occurred in 2017, the underlying disc injury is substantially resolved, however non-specific low back pain persists although has improved. The Panel therefore concludes, [Mr Gulifa’s] current non-specific low back pain continues to result from and is materially contributed to by the injury in employment with ‘Better scaffolding and Truck hire’ (the employer) in the period up to and including 22 August 2017.”[12]
[12]DACB 167
39The final extract which I will reference is:
“[Mr Gulifa] has had non-specific low back pain for over five years and his current lumbar spine condition is expected to last for, during and through the foreseeable future. The Panel therefore also concludes that [Mr Gulifa’s] current lumbar spine condition is ‘permanent’.”[13]
[13]Ibid
40Returning back to Yirga-Denbu and the Reasons for Opinion.
41The Court of Appeal considered the use to be made of the Reasons for Opinion.[14] The Court said:
(a) It doubted the Reasons for Opinion needed to be admitted to evidence to give context to the Certificate of Opinion;[15]
(b) The Reasons for Opinion could be admitted as admissible evidence about a fact in issue in accordance with sections 55 and 79 of the Evidence Act 2008 (Vic).[16]
[14]See in particular the Court of Appeal’s discussion in Yirga-Denbu set out in paragraph [56]-[62]
[15] Ibid paragraph [58]
[16] Yirga-Denbu at paragraph [59]
42The Court of Appeal concluded:
“the Panel Reasons were admissible because they contained admissible evidence, the probative value of which was not outweighed by the danger that the evidence might be unfairly prejudicial to the applicant, or misleading or confusing, or cause or result in some undue waste of time.”[17]
[17] Ibid paragraph [62]
43Mr McKenzie, in final submissions, took me to the Reasons for Opinion and urged me to accept various aspects.[18] It is clear the VWA took the view I should give the Reasons for Opinion due consideration. Likewise, Mr Richards urged me to give the Reasons for Opinion consideration.
[18]T79, L16-29
44Finally, on this issue, I note the Court of Appeal in Yirga-Denbu acknowledged there remains a level of discretion for the Court when assessing all of the evidence in such applications. The Court of Appeal said:
“In the end, it is a matter of judgment — remembering again that one is conducting an analysis required by a gateway provision. … .”[19]
[19]Yirga-Denbu at paragraph [89]
Given the Medical Panel Certificate of Opinion and Reasons for Opinion, what conclusions do I reach for the purposes of this application?
45It follows from the Medical Panel Certificate of Opinion and Reasons for Opinion:
(a) Mr Gulifa suffered an injury to his lower back at work with Better Scaffolding, including injury to his L4-5 disc, comprising of disc desiccation, mild height loss and a small left paracentral disc protrusion;[20]
(b) there are many potential outcomes for a lumbar annular disc tear, including resolution, protrusion or extrusion, but the outcome in this case was eventual resolution, forming a scar;[21]
(c) that lesion has substantially healed, leaving Mr Gulifa with a chronic lumbar L4-5 disc injury;[22]
(d) there were, at the time of the assessment, no specific restriction patterns to Mr Gulifa’s movement-related pain;[23]
(e) there were, at the time of the assessment, no objective examination indicators (e.g. spasm);[24]
(f) while the underlying disc injury is substantially resolved, non-specific lower back pain persists;[25]
(g) Mr Gulifa has had non-specific lower back pain for over five years and his current lumbar spine condition is expected to last during, and through, the foreseeable future.[26]
[20]DACB 166
[21]DACB 167
[22]DACB 166
[23]DACB 166
[24]Ibid
[25]DACB 167
[26]Ibid
46Based on the Medical Panel Certificate of Opinion, I accept, put simply:
(a) Mr Gulifa’s work-related lumbar spinal condition is the cause of ongoing non-specific lower back pain;
(b) the condition is permanent.
47Having said that, it is permissible for me to consider the balance of the evidence in coming to my determination, as long as it does not undercut the Medical Panel Certificate of Opinion.
48It is through this lens that I undertake my further analysis of this matter.
What conclusions do I reach in respect to Mr Gulifa’s credit and reliability?
49As in a great number of cases of this type, Mr Gulifa’s credit and reliability is critically important.[27]
[27]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
50Indeed, to use the VWA terminology, they said Mr Gulifa’s credit:
(a) takes “central significance”;[28]
(b) is “front and centre”.[29]
[28]T80, L28
[29]T85, L25-26
51Given the issue of credit goes to the heart of the application, I will spend some time setting out my analysis.
52Mr Gulifa was subject to searching cross-examination by Mr McKenzie.
53In the course of cross-examination, two segments of video surveillance were put to Mr Gulifa.[30] The first segment of 1 March 2022 ran for six minutes and nineteen seconds. The second segment of 4 March 2024 ran for five minutes and three seconds.
[30]Exhibit 1
54The VWA said this video was significant evidence which undermined Mr Gulifa’s credit and reliability. The video evidence was used:
(a) in its own right going to function;
(b) as the foundation to many attacks on Mr Gulifa’s credit.
55To complete my preliminary comments on the surveillance and video evidence, I note:
(a) the VWA admitted they had Mr Gulifa under surveillance for thirteen days for a total of 66.75 hours;
(b) of this surveillance, excluding “not sighting” and “spot checks”, the VWA had Mr Gulifa under actual surveillance for 35.25 hours over six days.[31]
[31]Exhibit “H”
56There were numerous attacks on Mr Gulifa’s credit and reliability. Indeed, on my assessment, no less than eighteen specific topics, as well as the general assertion that Mr Gulifa’s credit was impugned.
57To provide structure to my analysis, I note the attacks made by the VWA included assertions that:
(a) Mr Gulifa’s evidence in respect to his financial circumstances was inconsistent and misleading.
(b) Mr Gulifa’s assertions in respect to the availability of his general practitioner, Dr Gal Bhathawalla, were, in fact, hearsay and misleading.
(c) The frequency of Mr Gulifa receiving medical treatment, and, in particular, his attendances with his general practitioner, were misrepresented.
(d) The failure by Mr Gulifa to make reference to his ownership of a caravan and the trips interstate was a significant and deliberate oversight.
(e) The complaints of pain while driving were inconsistent with Mr Gulifa’s other behaviours and were not genuine.
(f) The failure by Mr Gulifa to disclose his overseas travel in his affidavit evidence was a significant and deliberate oversight.
(g) Mr Gulifa’s evidence in respect to the level of medication he was taking, in particular Endone, was inconsistent and unsatisfactory.
(h) The failure by Mr Gulifa to disclose his use of CBD oil in his affidavit, and to the majority of the doctors, was a significant oversight and his oral evidence when challenged was inconsistent.
(i) The video evidence showing Mr Gulifa riding a motorbike on 1 March 2022 was contrary to the balance of his evidence and the overall picture which he sought to paint.
(j) Mr Gulifa’s presentation to some doctors with a limp was contrary to the video evidence and his presentation to other doctors. Any limp was staged for the purpose of his application.
(k) The video evidence which showed Mr Gulifa riding an electric bike and picking up his son with no apparent difficulty was contrary to his evidence, his history to doctors and revealed a greater level of function than he was prepared to admit.
(l) Mr Gulifa’s evidence of sleep impairment was not genuine, given his failure to attend his general practitioner and seek assistance.
(m) Mr Gulifa’s evidence in respect to home renovations was unreliable and tended to the conclusion he was undertaking such work.
(n) Mr Gulifa’s evidence that he no longer went camping could not be accepted given the balance of the evidence.
(o) Mr Gulifa’s evidence of no longer going mountain-bike riding was unreliable and inconsistent with the video evidence.
(p) Mr Gulifa’s evidence in respect to his gym activities was a misrepresentation. The evidence of Dr David Barton, consultant occupational physician, in respect to Mr Gulifa’s presentation and activities in the gym, ought be preferred.
(q) The assertions in respect to Mr Gulifa’s social life were contrary to the video evidence, and much of the other evidence, and ought not be accepted.
(r) Mr Gulifa’s evidence in respect to the impact of his lower back condition on his sex life could not be accepted.
58In the circumstances, it is appropriate that I:
(a) analyse each of these specific attacks on Mr Gulifa’s credit and reliability;
(b) detail my thoughts following such analysis, including my overall assessment of the video evidence;
(c) set out my observations and conclusions of Mr Gulifa’s presentation in the witness box;
(d) explain my overall conclusions in respect to Mr Gulifa’s credit and reliability.
59I shall address each of the VWA attacks which I have identified.
Financial circumstances
60Mr Gulifa, in his affidavit evidence, said he was struggling financially. It was in this context he said that the family home had been sold and the family moved to live with Mr Gulifa’s parents.
61The VWA said this was an example of Mr Gulifa exaggerating, given:
(a) his purchase of a four-wheel drive and caravan subsequent to the sale of the family home;
(b) his evidence that, at the time he was renting out the family home, the rent “just barely” covered the mortgage;[32]
(c) the purchase of the electric bike;
(d) his evidence of not attending a general practitioner because of the associated cost.
To assess this attack, it is necessary to put Mr Gulifa’s circumstances into context.
[32]T62, L14
62Apart from a short return to work in 2018, Mr Gulifa has not worked since August 2017. His wife works part time. Ms Gulifa has had periods off work associated with child birth.
63In these circumstances, even if the rental income from the matrimonial home covered the interest expenses, given other household expenses and family commitments, I do not accept it to be an unreasonable proposition that Mr Gulifa would in fact have been struggling financially. Selling the family home was clearly not the preferred option for Mr Gulifa. Indeed, it was obviously a great loss to him.
64I do not accept the assertion Mr Gulifa would not have been struggling financially to service the commitments associated with the family home and family generally. I do not accept the proposition that I should not accept Mr Gulifa’s evidence that the sale of his family home was not due to financial pressures.
65As to the financial merits of purchasing a four-wheel drive and caravan, as Mr Richards said in submissions, it may not have been the best decision, nor one which others would agree with. However, the financial merits of this decision is not a matter for my determination. There may be a multitude of reasons why Mr Gulifa and his wife may have considered such purchases as being appropriate, having sold their family home.
66While I accept Mr Gulifa’s use of the four-wheel drive and caravan may be relevant to function and consequences, I do not accept the implication that the family have not struggled financially since Mr Gulifa’s injury.
67The purchase of an electric bike, in circumstances where Mr Gulifa says he is no longer able to go mountain-bike riding or trailbike riding, again raises issues of family value judgements. While I appreciate how Mr McKenzie sought to put the criticism, I do not accept the purchase of an electric bike, of itself, is in some way a black mark against Mr Gulifa. While Mr Gulifa’s use of the electric bike may be relevant to issues of capacity and function, I do not accept, having considered the totality of the evidence, the purchase of the electric bike itself goes to credit.
68As to matters involving the alleged financial stress associated with general practitioner attendances, I accept there was inconsistency in Mr Gulifa’s evidence. I accept this to be a valid criticism by the VWA.
69As far as this criticism morphs into an analysis of Mr Gulifa’s treatment and general practitioner consultations, in the context of the Court of Appeal comments in Tatiara Meat Co Pty Ltd v Kelso,[33] these are matters I will deal with later in this judgment.
[33][2010] VSCA 12 (“Kelso”)
Dr Bhathawalla
70I accept Mr Gulifa has not attended Dr Bhathawalla for his lower back condition since 1 May 2021.
71I accept Mr Gulifa’s affidavit evidence of 14 June 2024, that he did not see Dr Bhathawalla “much anymore”,[34] was misleading. The true state of affairs is that Mr Gulifa had not seen Dr Bhathawalla for his back for some three years at the time he swore that affidavit.
[34]Paragraph [13] at PACB 19
72Further, I found Mr Gulifa’s evidence that he was no longer seeing Dr Bhathawalla, as Dr Bhathawalla was no longer practising as a general practitioner, to be unsatisfactory.
73I accept there are deficiencies in Mr Gulifa’s evidence in respect to Dr Bhathawalla, which tend to the conclusion that Mr Gulifa, in the context of this medical treatment, was prepared to paint a more favourable picture than was actually the case.
The caravan
74In his oral evidence, Mr Gulifa said:
(a) he purchased the caravan in 2022;
(b) he had been on three trips in the caravan – to Queensland, South Australia and Healesville.
75Mr Gulifa did not make reference to his caravan trips in his affidavit evidence. He should have.
76Had Mr Gulifa not told consultant psychiatrist, Associate Professor Peter Doherty, of the Queensland trip, I would have taken a much dimmer view of this omission. It remains, however, a concern to me.
Driving
77Mr Gulifa said, in his affidavit evidence, he can sit for thirty to forty-five minutes before his back pain is aggravated.
78The VWA said that driving long distances, for example, to Queensland or South Australia, is inconsistent with such evidence and I should draw the conclusion that Mr Gulifa was exaggerating his intolerances.
79In cross-examination, Mr Gulifa said he suffered increased pain while either driving or sitting as a passenger, and on longer trips he would regularly stop and exercise to relieve his pain. Mr Gulifa explained that it took him a number of weeks to travel to Queensland. Mr Gulifa said during the five-week South Australian trip, he was not driving all of the time.
80For reasons which I will set out in greater detail later in this judgment, I accept Mr Gulifa does suffer increased pain when sitting for prolonged periods.
81I do not accept the thrust of this attack impacting on credit. It is, of course, a matter relevant to function, capacity and tolerances, which I will address when it comes to my determination of consequences.
Overseas travel
82Mr Gulifa did not make reference to his trips to Bali and Thailand in his affidavit evidence. The VWA was critical of this. I agree. He should have.
83Again, had Mr Gulifa not told Associate Professor Doherty of the trip to Bali (which was the most recent trip), I would have taken a dimmer view of such omission.
84In a case where functional capacity, tolerances and consequences are in issue, the failure to disclose such trips is a concern to me.
Medication (excluding CBD oil)
85The VWA said there were inconsistencies in respect to Mr Gulifa’s evidence touching upon the medication he was using, particularly Endone.
86For example:
(a) Mr Gulifa, in his affidavit evidence, said he occasionally took Endone;
(b) Associate Professor Doherty recorded Mr Gulifa telling him he takes two Endone per week;
(c) Dr Kilner Brasier, occupational and environmental specialist physician, recorded Mr Gulifa telling him he takes one Endone per week;
(d) the last prescription provided by Mr Gulifa’s general practitioner for opioids was back in May 2021;
(e) Mr Gulifa said he obtained his supply of Endone from a now-deceased family member who had cancer;
(f) in his oral evidence, Mr Gulifa said he took an Endone every four to six weeks.[35]
[35]T46, L18
87I agree there is a lack of consistency between Mr Gulifa’s affidavit evidence, his oral evidence, and what the doctors recorded.
CBD oil
88Mr Gulifa, in his oral evidence and history to Associate Professor Doherty, said he was using CBD oil with THC to help manage pain and sleep.
89Mr Gulifa did not:
(a) refer to his use of CBD oil in his affidavit evidence;
(b) tell all of the doctors he was using CBD oil.
Mr Gulifa should have. I am critical of his failure to do so.
90Having said that, on careful review of the evidence (and I was not taken to this evidence by either counsel in the course of the application), there are two references in the medical records to Mr Gulifa using CBD/hemp oil. Specifically:
(a) in a consultation with Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 17 January 2018;[36]
(b) on 19 March 2018, in the course of the multidisciplinary assessment undertaken at the Dorset Rehabilitation Centre.[37]
[36]PACB 57
[37]PACB 62
91On the face of it, the ongoing use of CBD/hemp oil for the management of pain is something which would be seen to be of assistance to Mr Gulifa’s application. I have to assess this omission in this context.
Motorbike riding
92The video of 1 March 2022 showed Mr Gulifa riding a Harley Davidson motorcycle in Petric Street. Mr Gulifa said the motorbike belonged to his brother.
93Mr Gulifa was:
(a) riding at a slow speed;
(b) only gone for a short time.
94When cross-examined about this aspect of the video, Mr Gulifa said:
(a) he had ridden a motorbike a handful of times since his injury;
(b) he had only ridden a motorbike on a road and for short trips;
(c) he no longer goes trailbike riding.
95I note Mr Gulifa, in his affidavit of 14 November 2019, said he had tried riding a motorbike down the street. The video showed Mr Gulifa undertaking an activity he had previously conceded he had undertaken.
The limp
96The VWA said Mr Gulifa’s presentation to his medico-legal assessors, Professor Richard Bittar, consultant neurosurgeon, and Dr Brasier, both who recorded him as having an antalgic gait, was an exaggeration. Indeed, the VWA said that any limp was not genuine.[38]
[38]T105, L18
97In particular, the VWA said:
(a) there was no limp shown in the video evidence;
(b) Dr Barton, in his most recent report, said there was no limp.
98The VWA said I should draw the conclusion that Mr Gulifa, for the purposes of his application, feigned a limp in front of his medico-legal assessors and to the Court.
99On reviewing other evidence on this point, I note:
(a) Dr Barton, in his 3 May 2019 report, said “he walked with a slight limp favouring the right leg”;[39]
(b) Associate Professor Doherty, in his 22 February 2024 report, said “[h]e can limp a bit”;[40]
(c) the admission made by VWA that a 2018 video showed Mr Gulifa limping;[41]
(d) the clinical records of Dr Bhathawalla over the years made numerous references to Mr Gulifa limping;[42]
(e) both Professor Bittar and Dr Brasier, on clinical examination, found muscle spasm.
[39]DACB 33
[40]Paragraph [67] at DACB 19
[41]T69, L11
[42]2 May 2018, DACB 158; 25 June 2018, DACB 157; 6 October 2018, DACB 156; 22 January 2019, DACB 155; 26 March 2019, DACB 155; 2 June 2019, DACB 154 and 2 May 2020, DACB 150
100Mr Gulifa, in his affidavit evidence, said his pain varied and it was only “at times” the pain in his right leg went all the way to his right foot.[43]
[43]Paragraph [25] at PACB 12
101I should, for completeness, note that Professor Bittar and Dr Brasier said Mr Gulifa suffered an antalgic gait.[44] As is the norm in such applications, neither Professor Bittar, nor Dr Brasier, were called to give evidence and to explain what they meant by this term. For example, whether an antalgic gait necessarily involves a limp or whether an antalgic gait can be some other abnormality in gait due to pain.
[44]PACB 138 and PACB 185
102I accept that, at times, by reason of his lower back injury, Mr Gulifa may limp. I accept, at other times, he may not. I do not accept the video evidence which represents two brief snapshots in time, or Dr Barton’s evidence, as conclusive. I do not accept this attack on Mr Gulifa’s credit.
Electric bike
103The VWA said the video of Mr Gulifa riding the electric bike on 4 March 2024 was contrary to the thrust of his evidence and supported their case that he was disingenuous.
104Referring to the video, it showed Mr Gulifa:
(a) riding the electric bike on a footpath;
(b) riding very slowly;
(c) lifting his young son onto the bike.
105Referring firstly to the lifting of his son, I note:
(a) Mr Richards, in submissions, made the point that Dr Brasier had certified Mr Gulifa’s lifting tolerances at 15 kilograms and noted Mr Gulifa’s young son would have weighed much less than that.
(b) Various doctors had noted Mr Gulifa having well-muscled biceps. This in the context of a man who, pre-injury, undertook a significant amount of weight training and worked as a labourer.
106While lifting his son, I accept goes to function, I do not accept that it is a “knockout blow” on credit. Mr Gulifa, in his affidavit and oral evidence, conceded he still undertook a range of activities, including activities with his children. I accept lifting his infant son to be within his lifting tolerances, as set out in the evidence of Dr Brasier.
107Likewise, I accept the video of Mr Gulifa riding his electric bike on the footpath goes to the question of function. Again, I do not give it any real weight in respect to the question of credit. The use of the electric bike ought not be confused with Mr Gulifa’s evidence in respect to his inability to go mountain-bike riding, as he had prior to his injury. As a matter of commonsense, these are two different activities with different physical demands.
108I do not accept the video evidence of Mr Gulifa riding the electric pushbike as being outside Mr Gulifa’s tolerances, based on the conclusions which I have reached in respect to the nature of his lower back condition, and which I will expand upon later in this judgment.
Sleep
109The VWA said it challenged Mr Gulifa’s evidence in respect to his sleep impairment.
110The VWA said that if Mr Gulifa had a genuine problem with sleep he would attend his general practitioner, complain, and seek treatment. He has not done so.
111The VWA said the lack of general practitioner consultations meant Mr Gulifa’s evidence, in respect to his sleep impairment, ought not be accepted. They also referred to Mr Gulifa’s conflicting evidence about the use of Endone and CBD oil to assist with sleep.
112Mr Gulifa’s evidence in respect to his sleep impairment was corroborated by the evidence of his wife, Ms Gulifa.
113The VWA said, when explaining their failure to cross-examine Ms Gulifa on this issue, that their attack on Mr Gulifa’s credit was such that there was no utility in cross-examining her.[45] Having considered all of the evidence and having observed Mr Gulifa in the witness box, I do not agree.
[45]T108, L11-15
114Ms Gulifa is the one person who is in a position to provide direct evidence on such matters. I do not accept, in the circumstance of this case, there was no utility in cross-examining her. I consider it to be, in fact, quite the opposite. Ms Gulifa said:
“At night he is constantly changing his position in bed to try and get comfortable, and he frequently disturbs me during the night because he has woken up due to his back pain. I know this because he tells me his back is hurting.”[46]
[46]Paragraph [5] at PACB 24
Home renovations
115The VWA sought to raise an inference from Mr Gulifa’s most recent affidavit that, because he struggles to undertake any home maintenance or renovation jobs, it follows he was in fact undertaking home renovations.
116When cross-examined on this issue, Mr Gulifa said he tries to do things within the limits of his injuries. Mr Gulifa denied outright undertaking house renovations as such.
117Further, it was put to Mr Gulifa that the video evidence was conclusive evidence that he could do home-renovation work.
118I do not accept the inference sought by the VWA that Mr Gulifa undertakes home-renovation work, nor do I accept the video evidence establishes such a capacity. Further, the suggestion that Mr Gulifa could do unrestricted home-renovation work seeks to undercut the Medical Panel opinion.
Trail motorbike riding, camping and mountain-pushbike riding
119I will deal with the topics of trail motorbike riding, camping and mountain pushbike riding under this one heading.
120I understand the nature of the VWA attack on these fronts to be:
(a) Mr Gulifa’s credit was impugned generally and therefore he must be (and these are my words) lying and/or unreliable about such matters, with the inference being he was still undertaking such activities;
(b) based on Dr Barton’s description of Mr Gulifa as well-muscled, and again by inference, much fitter and active than he was prepared to concede, and as such, was capable of such activities.
121I do not accept the thrust of such submissions.
122Firstly, on the inference sought to be made based on Dr Barton’s description of Mr Gulifa being well-muscled, I note:
(a) Mr Gulifa said, prior to his injury:
(i)he was very health focused and had his own gym where he worked out at least four nights per week;
(ii)he worked as a labourer undertaking heavy work.
In the circumstances, there ought be no surprise that he is a man of big frame;
(b) Associate Professor Doherty commented that, on examination, Mr Gulifa:
“… is a stocky, not tall man with huge shoulders and biceps with the appearance of fitness, though not excellent muscle definition … .”;[47]
[47]Paragraph [118] at DACB 23
(c) it was my observation of Mr Gulifa in court, and without wishing to be unkind to him, that he has a “pot belly”. Perhaps, put another way, he did not present with an Arnold Schwarzenegger-type physique, as portrayed by Dr Barton.
123Secondly, there was no evidence before the Court that Mr Gulifa was actually going trail motorbike riding, camping or mountain-pushbike riding. Mr Gulifa denied he was undertaking such activities. There was no evidence to the contrary. The VWA chose not to cross-examine Ms Gulifa, who would have direct knowledge of these matters.
124For completeness, I note:
(a) Mr Gulifa agreed that he still has his trail bike. That the trail bike has not been sold, is not sufficient to form a proper basis that Mr Gulifa is indeed riding it in the mountains or out in the bush, as he had prior to his injury.
(b) The video evidence falls a long way short of establishing the capacity to ride a mountain pushbike or an offroad trail motorbike in the bush.
Gym
125Referring now to Mr Gulifa’s activities in his home gym.
126It was put by the VWA, Mr Gulifa continues to work out in his gym and indeed to a greater level than he cares to concede.
127Particular reference was made to Mr Gulifa’s capacity to do ten to fifteen push-ups. I also note Dr Barton’s comments about the callouses on Mr Gulifa’s hands (which was not put in cross-examination).
128Mr Gulifa said:
(a) he purchased new gym equipment for the purposes of his back rehabilitation;
(b) he was assessed and received advice at the Dorset Rehabilitation Centre;
(c) he undertook exercises in his gym roughly three times per week. His sessions were about thirty to forty-five minutes; sometimes longer.[48]
[48]T58, L2-27
129I do not accept that Mr Gulifa exercising in his home gym undermines his credibility. Mr Gulifa is undertaking this activity for the purposes of his ongoing rehabilitation and back management, as instructed at the Dorset Rehabilitation Centre and as referred to by Dr Nikil Charitra, osteopath, who has (as I will address later in this judgment) taken on the role of primary health service provider.
Social life
130Mr Gulifa said his social life had been impacted. In his affidavit evidence and during the course of the application, Mr Gulifa said he did not go to music festivals anymore. Mr Gulifa also said in his affidavit evidence he did not go to pubs and clubs as often as he had pre-accident. He attributed this to his lower back injury.
131There was no evidence before the Court showing Mr Gulifa attending such venues or engaging in social activities other than visiting his cousin’s home. Again, I note the VWA chose not to cross-examine Ms Gulifa, who would have been in a position to provide direct evidence on such matters.
132I do not accept Mr Gulifa’s evidence on such matters to be an exaggeration, or inconsistent with the Medical Panel’s Certificate of Opinion and the balance of the evidence.
Sex life
133In their attack on Mr Gulifa’s evidence of the impact of his lower back injury on his sex life, the VWA adopted a similar position as they did in respect to sleep impairment. That is, I am reliant upon Mr Gulifa’s evidence and that has been impugned.
134Ms Gulifa’s affidavit evidence[49] was direct and clear in respect to the impact of Mr Gulifa’s lower back condition on his sex life. This is a matter where Ms Gulifa has intimate knowledge.
[49]Paragraph [6] at PACB 24
135In circumstances where I am asked to draw the inference that Ms Gulifa is prepared to misstate the true state of affairs and by inference to conspire with her husband to mislead the Court, cross-examining Ms Gulifa and putting such matters to her would have provided a proper basis.
What conclusions do I reach about Mr Gulifa’s credit and reliability?
136I shall deal with the video evidence first.
137I accept that both segments of the video are open to different interpretations.
138The VWA said:
(a) they showed Mr Gulifa undertaking a range of activities without restriction and without any indications of pain;
(b) the video evidence was contrary to Mr Gulifa's affidavit and oral evidence, and history to doctors.
139Mr Richards said:
(a) There were thirty-five hours where Mr Gulifa was actually sighted and under surveillance. The Court was shown fifteen to twenty minutes (in fact a little over eleven minutes).[50]
(b) The video did now show anything contraindicated.
(c) The lifting of Mr Gulifa’s infant son was not outside his lifting tolerances.
(d) The video was, in reality, unremarkable.
[50]Exhibit 1
140Having reviewed the video evidence, I do not accept that, of itself, it establishes the adverse findings of credit urged upon me by the VWA.
141I do not accept the activities shown in the video evidence, of themselves, either individually or collectively, establish:
(a) Mr Gulifa is not suffering any ongoing lower back condition;
(b) Mr Gulifa is not suffering from lower back pain;
(c) Mr Gulifa’s lower back condition does not have any ongoing impact on a range of activities he either continues to undertake or would otherwise have been undertaking, and in particular, more strenuous or physically-demanding activities.
142That then takes me to the VWA attack based on Mr Gulifa’s affidavit evidence, oral evidence and history to doctors.
143There is, I accept, some merit in this attack. There are aspects of Mr Gulifa’s evidence and histories which are unsatisfactory.
144For example:
(a) the failure by Mr Gulifa to make reference to the purchase of the caravan and the trips away in the caravan;
(b) the inconsistent evidence in respect to the use of CBD oil;
(c) Mr Gulifa’s unsatisfactory evidence to Dr Bhathawalla;
(d) the inconsistent evidence in respect to his use of Endone.
These touch upon matters which are important to the Court’s determination.
145Having said that, there are many aspects of the VWA attacks which did not gain any traction. Indeed, some were speculative at best, and on a more critical interpretation, lacked proper basis.
146Referring back to Mr Gulifa’s evidence. I accept his affidavit evidence on a number of fronts was unsatisfactory. While those who draft affidavits ought take care to ensure all relevant matters are included at the end of the day, it is Mr Gulifa who swore the affidavit as true and correct.
147As I have already said, if not for the disclosures made to Associate Professor Doherty on a number of these contentious issues, I would have been more inclined to conclude dishonesty and deliberate misrepresentation.
148Further, at least one of Mr Gulifa’s omissions touched upon a matter which in fact would have been helpful to his application.
149The defects in Mr Gulifa’s affidavit evidence properly raise concern. I accept the VWA’s criticism.
150This now takes me to Mr Gulifa’s presentation in the witness box.
151As I have noted, Mr Gulifa was well tested in cross-examination by Mr McKenzie.
152Overall, I formed a generally favourable view of Mr Gulifa when giving his oral evidence. While Mr Gulifa, on a few occasions became irritated and defensive in response to lines of cross-examination, on balance, I thought he gave his evidence in a straightforward manner. For the majority of cross-examination, I thought Mr Gulifa defended his position when appropriate and was prepared to make concessions.
153When I balance Mr Gulifa’s presentation in the witness box and my conclusions in respect to the balance of the evidence with the criticisms, which I accept were validly made by the VWA, I do not accept that I must, as urged, treat Mr Gulifa’s credit and reliability as generally impugned.
154In summary, I accept:
(a) the majority of Mr Gulifa’s evidence as credible;
(b) for those aspects of Mr Gulifa’s evidence where I am critical, I do need to exercise care and make sure I review the balance of the evidence, and in particular, assess the corroboration and levels of consistency in that evidence, before coming to my final determination.[51]
[51]See, for example, the discussion of the Court of Appeal in Sejranovic v Berkeley Challenge [2009] VSCA 108, particularly at paragraphs [144]-[147].
The evidence of Ms Gulifa
155I have in evidence the affidavit of Ms Gulifa sworn 14 June 2024. This evidence addresses many of the consequences relevant to a pain and suffering application.
156As I have already identified, Ms Gulifa was not cross-examined.
157Ms Gulifa was in attendance at court and there was no issue taken that she was indeed available for cross-examination. The VWA made a strategic decision not to cross-examine her. After the VWA said Ms Gulifa was not required for cross-examination, she sat in the Court for the balance of the application.
158As I have already noted, when explaining their failure to cross-examine Ms Gulifa and test her evidence, the VWA said their attack on Mr Gulifa’s credit was such that there was no utility in cross-examining Ms Gulifa. I disagree.
159There are many aspects of the attack made on Mr Gulifa’s credit and the issues in dispute generally where Ms Gulifa’s evidence, based on her direct knowledge, is insightful and on the face of it, of assistance to me. For example:
(a) driving tolerances;
(b) family finances;
(c) sleep;
(d) participation in outdoor activities such as mountain-pushbike riding and trail motorbike riding;
(e) activities with their children;
(f) sexual impairment.
This list is clearly not exhaustive.
160In the circumstances of this application as I have found them, I will, in undertaking my determination, take heed of the evidence of Ms Gulifa.[52] I do not accept her evidence lacks probative value.
[52]On the issue of the Court’s obligation to take heed of such lay witness evidence, see for example: (i) the discussion of the Court of Appeal in Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, particularly at paragraph [79]; (ii) Woolworths Ltd v Warfe [2013] VSCA 22, particularly at paragraphs [132]-[152].
Which of the medical opinions over and above the Medical Panel Certificate of Opinion and Reasons for Opinion provide any and what assistance to me?
161It is appropriate that my analysis of the balance of the medical evidence be undertaken in the context of:
(a) my conclusions in respect to the Medical Panel Certificate of Opinion and Reasons for Opinion;
(b) my analysis of the use I can make of such Certificate of Opinion and Reasons for Opinion;
(c) the admissions made by the VWA..
162I shall:
(a) firstly review the relevant treating medical practitioner evidence; then
(b) undertake my analysis of the medico-legal evidence.
The treating medical practitioner evidence
163I had a large volume of materials from medical practitioners who have treated Mr Gulifa over the last seven years.
164Much of the treating medical practitioner evidence was very dated and relevant only in an historical context. While I have considered the totality of the evidence, I will only reference that evidence which I consider to be important and touching upon the issues for determination.
Dr Bhathawalla
165In his most recent report, dated 23 February 2024, Dr Bhathawalla stated:
(a) it was his diagnosis that Mr Gulifa was suffering from lower lumbar pain and right-sided sciatica;
(b) Mr Gulifa had received no treatment since his previous report (17 March 2020) apart from pain management;
(c) he considered Mr Gulifa’s prognosis to be guarded since the condition is now chronic.
166In addition to Dr Bhathawalla’s medical reports, I had his clinical records.
167Having reviewed these clinical records, for context, I note:
(a) there had been numerous discussions between Dr Bhathawalla and Mr Gulifa about spinal surgery and disc replacement;
(b) there had been numerous findings on examination of muscle spasm;
(c) there had been discussions about stem cell treatment;
(d) there had been discussions about the insertion of a spinal cord stimulator;
(e) Dr Bhathawalla was concerned that there may be muscle wasting;
(f) there has been a discussion about an epidural;
(g) there had been discussions about Mr Gulifa’s use of his home gym.
Mr Michael Johnson, orthopaedic surgeon
168Mr Gulifa consulted Mr Johnson at Dr Bhathawalla’s referral on 19 November 2017.
169Mr Johnson said:
“On examination he is a pleasant man with no deformity. He localises his pain to the low back radiating into the right leg. The range of thoraco-lumbar movement is forty percent of normal. Straight leg raising is full and there is no neurological abnormality in the lower limbs. There is a full range of non irritable hip movement.
I reviewed the recent MRI scan. This demonstrates a left L4/5 prolapse impinging on the left L5 root. There is no evidence of a right sided abnormality.
I have told Mr Gulifa and his partner that it would seem likely that his symptoms are in some way related to his L4/5 pathology. There is not however any evidence of actual nerve root compression on the right side and so I do not think there is a place for surgical intervention.
I think that his problem should be treated conservatively and I would recommend that he undertake a structured rehabilitation programme at the Dorset Hospital.”[53]
[53]PACB 47
Dr Thomas
170Mr Gulifa consulted Dr Thomas on 17 January 2018 on referral from Mr Johnson.
171In his medical report dated 21 August 2018, Dr Thomas said:
(a) he concurred with Mr Johnson’s opinion that “the L4-5 disc level was the culprit here”;[54]
(b) the disc bulge at L4-5 was “fairly diffuse”;[55]
(c) he referred Mr Gulifa to the Dorset Rehabilitation Centre for a pain management program;
(d) Mr Gulifa’s condition is consistent with the stated cause;[56]
(e) it was his prognosis that Mr Gulifa was likely to suffer pain in the similar distribution indefinitely.[57]
[54]Question 1 at PACB 52
[55]Question 3 at PACB 53
[56]Question 5 at PACB 53
[57]Question 7 at PACB 53
172I also had Dr Thomas’s clinical records. I note these clinical records made reference to:
(a) Mr Gulifa spending $10,000 on gym equipment;[58]
(b) discussions about gym workouts;[59]
(c) that hemp oil had been ordered.[60]
[58]Consultation dated 3 August 2018 at PACB 56
[59]Consultation dated 25 July 2018 at PACB 56
[60]Consultation dated 17 January 2018 at PACB 57
Dorset Rehabilitation Centre
173Subsequent to seeing Dr Thomas, Mr Gulifa attended the Dorset Rehabilitation Centre.
174I had:
(a) the Dorset Rehabilitation Centre Team Assessment dated 19 March 2018;[61]
(b) the Dorset Rehabilitation Centre Discharge Summary dated 9 August 2018.[62]
[61]PACB 61-67
[62]PACB 58-60
175The Team Assessment provided context in respect to:
(a) Mr Gulifa’s pre-injury function and activities;
(b) the impact on his function and activities as reported by him at that time.[63]
[63]See the various commentaries by the occupational therapist, physiotherapist and psychologist at PACB 59-67.
176In particular, Mr Gulifa told the multidisciplinary team that his pre-injury activities included an active night life (bands/concerts), trailbike riding, bike riding and camping.[64]
[64]PACB 62
177Further, it is apparent from my review of these records:
(a) there was much focus on an ongoing self-management program which included functional exercise and stretching;
(b) Mr Gulifa said he remained restricted and dissatisfied with his progress.
178Referring now to the Discharge Summary.
179In the context of issues in dispute in this application, at the time Mr Gulifa was discharged from Dorset Rehabilitation Centre, it was recommended that he:
(a) continue with daily walking and a structured exercise program;
(b) increase his weights’ program on a fortnightly basis.[65]
[65]PACB 58
Dr Dan Bates, sports and exercise medicine physician
180Mr Gulifa consulted Dr Bates on 10 July 2018.
181Dr Bates said:
(a) he thought Mr Gulifa’s problems with right L5 radiculopathy likely arose due to some dural adhesions post a left L4-5 disc protrusion;[66]
(b) he suggested ongoing treatment in the form of:
(i)duloxetine;
(ii)a transforaminal epidural.[67]
[66]PACB 49
[67]Ibid
Dr Charitra
182Dr Charitra has been Mr Gulifa’s longtime osteopath.[68] Indeed, it became clear in the course of the application, Dr Charitra had assumed the role of Mr Gulifa’s primary health service provider.
[68]Mr Gulifa’s contact with Dr Charitra goes back to at least 25 November 2009.
183In the context of the 22 August 2017 lower back injury, Dr Charitra was the first practitioner consulted by Mr Gulifa. Dr Charitra, in his report dated 29 August 2017, said:
“This is to confirm that [Mr] Gulifa has sustained a L4-L5 disc extrusion after performing heavy lifting while at work on the 23rd August 2017.
[Mr Gulifa] will therefore not be work attendance from the 28/08/17 to the 08/09/17.
I will Review [Mr Gulifa] on the 11th of September 2017.”[69]
(sic)
[69]PACB 35
184Dr Charitra has seen Mr Gulifa regularly between August 2017 and the date of the hearing. While there are numerous reports in evidence, I will go to the most recent report of 15 July 2024.
185Put simply, Dr Charitra, in respect to Mr Gulifa’s lower back condition, said:
(a) he maintained the diagnosis of a L4-5 disc extrusion caused directly by Mr Gulifa’s work with Better Scaffolding seven years prior;[70]
(b) Mr Gulifa suffers chronic lower back pain and leg pain.[71]
[70]Question 1 at PACB 206 and Question 4 at PACB 207
[71]Question 5 at PACB 208
186Dr Charitra confirmed Mr Gulifa continues to consult him for his lower back condition.[72]
[72]PACB 206
The medico-legal evidence
187Moving now to the medico-legal evidence. I had:
(a) reports from Professor Bittar, dated 27 April 2020, 17 February 2021, 1 July 2021 and 10 May 2024;
(b) reports from Dr James Rowe, occupational physician dated 25 August 2020 and 25 March 2021;
(c) a report from Dr Brasier dated 17 May 2024;
(d) reports from Associate Professor Doherty dated 23 October 2020 and 22 February 2024;
(e) reports from Dr Barton dated 26 April 2018, 3 May 2019, 7 July 2020 and 29 February 2024.
188I will review this evidence in this sequence.
Professor Bittar
189While Professor Bittar provided reports dating back to 2020, I will focus on his most recent report of 10 May 2024.
190On examination, Professor Bittar recorded:
“On re-examination today, he walked with an antalgic gait. He had an elevated body mass index.
He continued to change positions several times during the consultation, alternating between sitting and standing. Standing was more comfortable than sitting.
He had moderate restriction of lumbar spine flexion with mild restriction of lumbar spine extension. Flexion was more painful than extension.
He had bilateral lumbar paravertebral tenderness and muscle spasm.
Straight leg raising was normal bilaterally.
There was no evidence of radiculopathy or myelopathy and there was no abnormal illness behaviour.”[73]
[73]PACB 138
191I note, in particular, Professor Bittar’s finding of bilateral lumbar paravertebral tenderness and muscle spasm.
192Under diagnosis, Professor Bittar said Mr Gulifa presents with lower back pain and leg pain secondary to the L4-5 intervertebral disc prolapse.[74]
[74]PACB 138
193Professor Bittar sought to postulate the mechanics of Mr Gulifa’s right leg pain. Given the Medical Panel Certificate of Opinion, I do not take such evidence into consideration.
194Professor Bittar said:
(a) Mr Gulifa had a number of restrictions imposed upon him by reason of his organic lower back injury;
(b) the condition was a permanent one.
Dr Rowe
195The late Dr Rowe last consulted Mr Gulifa back on 25 March 2021.
196In Dr Rowe’s most recent report, there was much debate and consideration of the mechanics of Mr Gulifa’s injury, particularly in respect to a dispute which had arisen with Associate Professor Graeme Brazenor, a consultant neurologist who had reported to the VWA.
197Again, given the Medical Panel Certificate of Opinion and Reasons for Opinion, I do not take regard to that aspect of Dr Rowe’s evidence.
198Moving to Dr Rowe’s physical examination of Mr Gulifa. Dr Rowe recorded:
“On examination today, Mr Gulifa was 168cm tall and weighed 92.7kg.
He demonstrated limited movements of the lower back. Flexion, extension and lateral rotation and flexion, particularly to the right side were restricted.
Straight leg raise was limited on the right side.
He demonstrated weakness of movement of the right foot and ankle and there was wasting of the right thigh and calf. There was a difference of 3cm in size in both the thigh and calf when compared to the left side at equal points.
This is a significant difference.
There was some impaired sensation about the right foot.”[75]
[75]PACB 179
199Dr Rowe said his diagnosis was “L4/5 disc degeneration with a left sided disc protrusion, with possible irritation of the L5 or S1 nerve root”.[76]
[76]PACB 180
200Dr Rowe outlined a range of functional activities where he considered Mr Gulifa would, by reason of his lower back condition, be either precluded or restricted. They being:
“- Heavy and repetitive lifting;
- Repetitive bending and twisting;
- Prolonged static postures i.e. sitting and standing;
- Prolonged periods of driving or being a passenger in a car;
- Operating heavy equipment including a truck or forklift.”[77]
[77]Ibid
201Dr Rowe said he thought Mr Gulifa’s condition was permanent.
202Where Dr Rowe has expressed opinion in the context of work, I take no regard. I accept Mr Gulifa’s work capacity to be in accordance with the findings of the Medical Panel.
203Dr Rowe, when considering Dr Barton’s assertions of functional overlay and a presentation belying clinical findings, said:
(a) he did not find such evidence;
(b) he reached different conclusions.
Dr Brasier
204Dr Brasier assessed Mr Gulifa for his solicitors on 11 April 2024.
205Without reciting all of the clinical findings reported by Dr Brasier, I note he found “significant paravertebral muscle spasm”.[78]
[78]PACB 185
206Consistent with the Medical Panel, Dr Brasier said Mr Gulifa was not fit for his pre-injury work as a labourer.
207Under diagnosis, Dr Brasier said Mr Gulifa’s “very consistent signs and symptoms strongly suggest L4/L5 disc prolapse is the source of his discogenic pain”.[79]
[79]PACB 186
208Dr Brasier said he would apply the following restrictions to any activities Mr Gulifa might choose to undertake:
“- No lifting of more than 15 kg at waist level;
- No lifting from ground level;
- avoid prolonged sitting, walking or standing;
- avoid repetitive bending, twisting or stooping;
- avoid squatting kneeling and crouching;
- avoid heavy or repetitive pushing/pulling;
- avoid whole-body exposure to vibration;
- avoid driving a motor vehicle for periods greater than 90 minutes;
- avoid prolonged use of stairs or steps;
- avoid working at Heights; and
- avoid ladders.”[80]
[80]Ibid
209Dr Brasier also said:
(a) he was in agreement with the opinions expressed by Professor Bittar and Dr Rowe;
(b) Mr Gulifa’s injury was consistent with the stated cause;
(c) Mr Gulifa suffered an organic back injury;
(d) Mr Gulifa’s restrictions were permanent.
Associate Professor Doherty
210I note firstly this is not a paragraph (c) application.
211Associate Professor Doherty’s report was relied upon by the VWA as a part of their attack on Mr Gulifa’s credit and reliability. I refer to the comments which I have made earlier in my judgment in this regard.
212Relevantly, Associate Professor Doherty concluded that Mr Gulifa did not suffer any diagnosable psychiatric condition.[81]
[81]Question, 4 at DACB 24
213Associate Professor Doherty said there was no psychiatric contradiction to Mr Gulifa returning to pre-injury employment. However, he said that an increase in pain will worsen his mental health and Mr Gulifa should be advised to avoid such activity.[82]
[82]Question 5(a) at DACB 24
Dr Barton
214Dr Barton examined Mr Gulifa on behalf of the VWA on:
(a) 3 April 2018,
(b) 2 May 2019;
(c) 28 February 2024.
215Dr Barton also visited Mr Gulifa’s former worksite.
216Of the medical evidence, it is Dr Barton who is the outlier.
217Dr Barton, put simply, said Mr Gulifa was not credible and he was clearly feigning symptoms.[83]
[83]DACB 42
218Dr Barton was at odds with:
(a) the Medical Panel’s Certificate of Opinion and Reasons of Opinion in respect to ongoing lower back pain and work restriction;
(b) the opinions expressed by Professor Bittar, Dr Rowe, Dr Brasier, Dr Bhathawalla and Dr Charitra.
219I note Dr Barton, on examination of Mr Gulifa, said there was no paraspinal muscle spasm.[84] This can be contrasted with the recent findings of Professor Bittar and Dr Brasier.
[84]On the date of his examination, Mr Gulifa said there was no paraspinal muscle spasm.
220Further, Dr Barton said Mr Gulifa:
(a) had recovered from any physical problem;[85]
(b) looked “exceedingly fit and well”;[86]
(c) had an excellent prognosis;[87]
(d) could undertake his former work as a labourer.[88]
[85]Question 3 at DACB 42
[86]DACB 42
[87]Question 5 at DACB 43
[88]Question 6(a) at DACB 43
What conclusions do I reach from the balance of the medical evidence?
221As I have already set out in this judgment, I must exercise care not to adopt and take heed of any evidence that “undercuts” the Medical Panel Certificate of Opinion and Reasons for Opinion.
222In this context, I note:
(a) Professor Bittar, Dr Rowe, Dr Brasier, Dr Bhathawalla and Dr Charitra are generally consistent in their opinion that Mr Gulifa has suffered an injury to his L4-5 disc in the course of his employment with Better Scaffolding. That, of itself, does not undercut the Medical Panel Certificate of Opinion and Reasons for Opinion and is, indeed, consistent with them.
(b) Where Professor Bittar, Dr Rowe, Dr Brasier, Dr Bhathawalla and Dr Charitra seek to go beyond where the Medical Panel finally landed in respect to Mr Gulifa’s ongoing lower back condition, in the absence of evidence of change subsequent to the Medical Panel assessment, I disregard and take no heed of such evidence.
(c) Where Professor Bittar, Dr Rowe, Dr Brasier, Dr Bhathawalla, and Dr Charitra expressed opinions as to Mr Gulifa’s work capacity that is inconsistent with the Medical Panel conclusion, I disregard and take no heed of such evidence.
(d) Where Professor Bittar, Dr Rowe, Dr Brasier, Dr Bhathawalla and Dr Charitra express opinions in respect to Mr Gulifa’s function, restrictions and tolerances in circumstances where the Medical Panel was silent, but where such evidence in respect to function, restrictions and tolerances is consistent with the Medical Panel Certificate of Opinion and Reasons for Opinion, I do take heed of such evidence.
(e) The evidence of Dr Barton, expressed in his most recent report, does seek to undercut the Medical Panel Certificate of Opinion and Reasons for Opinion. Dr Barton says Mr Gulifa has no ongoing condition, has fully recovered and is fit to work as a labourer. That is inconsistent with the Medical Panel findings. Indeed, it is inconsistent with the admissions made by the VWA and the balance of the medical evidence. I take no heed of such evidence of Dr Barton.
223In this application, which was “hotly contested” on the issue of credit and consequences, the evidence of Professor Bittar, Dr Rowe, Dr Brasier, Dr Bhathawalla and Dr Charitra is of assistance to me within the boundaries identified. Their evidence is consistent with Mr Gulifa suffering:
(a) an injury to his L4-5 disc in the course of his employment with Better Scaffolding;
(b) continuing to suffer consequential pain and pain-related impairment.
Some general observations on the “serious injury” test
224Before moving to complete my determination of Mr Gulifa’s application, I make some general comments in respect to the “serious injury” test.
225It is Mr Gulifa who has the onus of proof.
226To establish “serious injury”, the threshold is high.
227As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[89] while the evidence may disclose pain and suffering consequences which are both “marked” and “significant,” for Mr Gulifa to be successful, I have to be persuaded that the consequences due to spinal injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[89][2009] VSCA 181 (“Stijepic”)
228The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[90] The observations made by Maxwell P provide me with assistance in respect to the tasks which I am to undertake in the completion of my determination.[91]
[90](2010) 31 VR 1 (“Haden”)
[91](Ibid). See, in particular, Maxwell P at paragraphs [9]-[17].
229Further:
(a) It is the “collective nature” of the pain and suffering consequences which must be considered. That is, I must consider “globally” all of Mr Gulifa’s:
(i)actual experiences of pain; together with
(ii)the disabling and debilitating effects of the impairment.[92]
[92]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [114] (per Hargrave AJA)
(b) In considering Mr Gulifa’s impairment and impairment consequences, I must consider the broad spectrum of injuries and impairments, and not just those that come before the Court.[93]
[93]TTB SMS Pty Ltd v Reading [2020] VSCA 203
230As a part of my analysis, I must give consideration to, not only what it is that Mr Gulifa says that he has lost, but also what it is that he has retained.[94]
[94]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
231Finally, as the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor.[95] in relation to range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[96]
[95][2013] VSCA 326 (“Ellis”)
[96](Ibid) at paragraph [59]
Is Mr Gulifa’s lower back injury a serious injury for pain and suffering purposes?
232In completing my analysis, I will in general terms follow the template set out by Maxwell P in Haden.
233Referring firstly to pain.
234That Mr Gulifa has a level of ongoing non-specific lower back pain is not in issue. The Medical Panel said so and the VWA, in their admissions and in their final address to the Court, made such concession.[97]
[97]T81, L6-20
235What is in issue is the level of pain and pain-related consequences.
236In summary, Mr Gulifa said:
(a) he had chronic lower back pain which fluctuated in intensity;
(b) he suffered flare-ups of pain from time to time;
(c) various activities aggravated his pain.
237The VWA said I ought not accept Mr Gulifa’s evidence and that he exaggerated. Further, the VWA, in line with what the Court said in Kelso, took aim at the level of treatment Mr Gulifa was receiving. Indeed, I accept it is not just what an applicant says about their pain, but also what they do about it, that must be considered.
238In this regard, it was the VWA case:
(a) Mr Gulifa had not attended his general practitioner since 21 May 2021.
(b) Mr Gulifa had not been prescribed medication since 21 May 2021.
(c) The Court ought not accept Mr Gulifa’s evidence in respect to his use of Endone.
(d) Any medication which Mr Gulifa used was at the lower end of the spectrum.
(e) Mr Gulifa had not attended for any pain management since 2018.
(f) Mr Gulifa had not told any doctor of his use of CBD oil and that aspect of his evidence ought not be given any weight.
(g) The video tended against Mr Gulifa suffering pain of any significance.
239Regarding what weight I should give the Medical Panel Certificate of Opinion and Reasons for Opinion, the VWA referred me to what the Court of Appeal said in Wesfarmers Ltd v Lloyd.[98] In particular, the passage where the court said:
“Identification of the pathology of injury in the general way which occurred here may encourage a conclusion that the injury has no more than modest consequences. But it does not compel that conclusion.”[99]
[98][2016] VSCA 41
[99](Ibid) at paragraph [23]
240The VWA, in the context of that observation by the Court of Appeal, urged me to accept the proposition that Mr Gulifa was merely suffering a condition of non-specific lower back pain and that diagnosis tended to the conclusion his condition was a modest condition and did not form the basis of a finding of serious injury.
241True it is that Mr Gulifa has:
(a) not been seen by a general practitioner or any specialist orthopaedic surgeon, neurosurgeon, pain management specialist, et cetera, since May 2021;
(b) has not received a formal prescription for opioid medication since May 2021;
(c) has no current pain management program, nor any proposed surgery or other more interventionist treatment in the pipeline;
(d) has been managed only by his osteopath Dr Charitra.
242I pause here to note that, regularly in such applications, applicants are criticised for being overly dependent on medication and/or various forms of medical treatment, including over attendance on a range of health service providers. Often there is medical evidence, usually, but not exclusively, from defendants’ experts, that there is an overreliance on various modalities of treatment and the applicant should be self-managing.
243Turning back to Mr Gulifa’s circumstances. Mr Gulifa said he:
(a) Previously attended a pain management program.
(b) Had discussed surgery and other invasive treatment options with his doctors, but did not wish to pursue such treatment options.
(c) Has, at his own expense, continued to attend Dr Charitra for ongoing conservative treatment. Dr Charitra’s evidence corroborated this.
(d) Continues to adopt a range of techniques to manage his pain. One such technique adopted is to regularly lay the floor with his legs bent and elevated. This was corroborated by Ms Gulifa’s evidence.
(e) Continues to suffer flare-ups and at these times his pain is severe. The finding of paravertebral muscle spasm by both Professor Bittar and Dr Brasier tends to confirm periods of increased muscle tone.
(f) Has purchased gym equipment and undertakes a remedial gym program three times a week in accordance with the Dorset Rehabilitation Centre recommendation.
(g) Continues to undertake the exercises and stretching programs which he has been provided every second day for about thirty to forty-five minutes.
(h) Continues to take Voltaren and Advil at least twice a week.
(i) Intermittently takes Endone and uses CBD oil.
244It is important the Court does not lose sight of the fact that there are more ways to manage pain than high doses of prescription medication or attendances upon general practitioners.
245In the circumstances of this case, I accept that Mr Gulifa continues to have a range of strategies to manage his pain. I do not accept the lack of attendance upon his general practitioner as being conclusive that Mr Gulifa does not suffer pain. It is not as if Mr Gulifa is doing nothing to manage his condition.
246To summarise, I accept Mr Gulifa:
(a) has suffered a work-related lower back condition over the last seven years;
(b) to this day Mr Gulifa continues to suffer pain related to this lower back condition;
(c) the pain:
(i)is variable;
(ii)at times flares up;
(iii)is properly described as chronic;
(iv)is aggravated by activity;
(v)is aggravated when in a static position for extended periods;
(vi)is, for the purposes of this application, permanent.
247Given Mr Gulifa’s relatively young age and given I accept his back condition to be permanent, I accept Mr Gulifa’s pain consequences to be a very significant consequence.
248Moving now to sleep.
249Mr Gulifa said his sleep was impacted by his lower back condition. He said it was difficult to get comfortable. Mr Gulifa said he used the CBD oil on a regular basis to help him sleep. This varied depending on the state of his back. In his oral evidence, Mr Gulifa said:
(a) if he really needed to sleep he would take Endone;
(b) that occurred every four to six weeks.
250On the sleep issue, I was assisted by the evidence of Ms Gulifa. She said:
“At night he is constantly changing his position in bed to try and get comfortable, and he frequently disturbs me during the night because he has woken up due to his back pain. I know this because he tells me his back is hurting.”[100]
[100]Paragraph [5] at PACB 24
251I accept Mr Gulifa’s sleep is impacted. I accept this is a significant consequence.
252Moving now to mobility and movement.
253Mr Gulifa said at times he had reduced movement. For example, at times he struggled to put on his shoes and socks. Mr Gulifa said at times he limps.
254I note the Medical Panel, at the time of their examination, found:
(a) there was, at most, minimal restriction of movement;
(b) no resting paraspinal muscle spasm.
255This can be contrasted to Professor Bittar and Dr Brasier, who both found:
(a) restricted movement;
(b) antalgic gait;
(c) muscle spasm.
256I also note the video evidence, which did not show any obvious limitation of movement.
257I accept that, intermittently, Mr Gulifa will have periods where his lower back condition flares up and that will impact on his mobility and movement. At other times, he will move freely.
258I give some weight to this consequence.
259Turning now to work.
260I accept that Mr Gulifa:
(a) has, in effect, what I term to be a “light work back”;
(b) by reason of his lower back condition, is no longer able to work as a labourer or in many of the roles he had worked prior to his injury.
261I accept Mr Gulifa, prior to his injury:
(a) was a man who used his physical capacity to earn income;
(b) enjoyed such work.
262While this is not an application for leave to pursue pecuniary loss damages as set out in Ellis and Haden, it is permissible for me, within confines, to consider the impact on Mr Gulifa’s work capacity. For example:
(a) the pain that may be experienced at work or while performing particular types of work;
(b) the inability to perform certain work may be indicative of what injury has been sustained by the worker;
(c) the loss of enjoyment of life suffered by the worker in being unable to perform work which he or she used to enjoy.[101]
[101]See the discussion at paragraphs [41]-[52] of Ellis and particularly at paragraph [44].
263I accept such principles have application in this matter. Indeed, I accept, given Mr Gulifa’s relatively young age, in the context of work, the pain and suffering consequences of his lower back condition are very significant.[102]
[102]See also the discussion in Stijepic.
264Moving now to cognitive function. This did not feature in this application. I give this no weight.
265Turning now to Mr Gulifa’s capacity for self-care and self-management.
266I accept Mr Gulifa is able to live and function independently.
267However, I also accept there are many aspects of his life on a daily basis which:
(a) are impacted by his pain;
(b) at times are affected by reduced movement and mobility;
(c) need to be continually managed by reason of Mr Gulifa’s lower back condition.
268I move now to household and domestic activities.
269Mr Gulifa said there are various activities around the home which placed stress on his lower back, such as mopping and drying dishes, and which are problematic. Having said that, Mr Gulifa agreed he could use a Dyson vacuum. It was clear Mr Gulifa continues to undertake a range of indoor domestic activities.
270I give only limited weight to the impact of Mr Gulifa’s lower back injury on his capacity to undertake inside household chores.
271Moving to outdoor home activities such as gardening, house maintenance and home renovations.
272Mr Gulifa said he was restricted in anything that required physical exertion for extended periods. Having said that, Mr Gulifa conceded he could:
(a) mow lawns using a self-propelled mower which he had purchased;
(b) use a battery-powered whipper-snipper which he had purchased.
273Mr Gulifa said he could not do physical work overhead.
274Mr Gulifa said he had not done, and could not do, home renovations. Mr Gulifa said he had previously renovated houses. Mr Gulifa said it was his intention to do so again in the future. Mr Gulifa said, prior to his injury, he had the skills and physical capacity to do all home maintenance, except plumbing and electrical work. Mr Gulifa said, because of his lower back condition, he now struggles and has to pay people to undertake tasks which he could easily do in the past.
275I accept, prior to his injury, Mr Gulifa was a very capable man around the house and could do, and indeed did, undertake a wide range of activities. I accept he is now limited to lighter activities. I accept he still endeavours to undertake such lighter activities. Indeed, he has purchased equipment to enable him to do so.
276I accept, in the circumstances, the adverse impact on Mr Gulifa’s capacity to undertake outside household activities such as home maintenance, is a significant consequence.
277Moving now to family activities.
278I accept Mr Gulifa still undertakes a range of activities with his family. For example, going on caravan trips.
279However, I accept that some aspects of his family life have been adversely affected by reason of his injury. Again, I am assisted by the evidence of Ms Gulifa.[103]
[103]Paragraph [8] at PACB 25
280I give some weight to this consequence.
281Moving now to the impact of Mr Gulifa’s lower back condition on his capacity to participate in recreational activities he previously enjoyed.
282I consider this to be an important aspect of the application.
283I accept, pre-injury, Mr Gulifa participated in and enjoyed what I consider to be more physically-demanding and hardcore recreational activities.
284I turn firstly to offroad trail motorbike riding.
285Mr Gulifa said, prior to his injury he enjoyed riding his trail motorbike with his mates at places like King Lake, Mount Disappointment and Lake Eildon. Mr Gulifa said he no longer goes trailbike riding. I accept that to be so. I accept this to be a significant loss to him.
286Referring now to mountain-pushbike riding.
287Mr Gulifa said, in the summer months, he used to go mountain-pushbike riding. He would go to places like Brimbank Park or Macedon. Mr Gulifa said he would ride for 15 to 20 kilometres.
288Mr Gulifa said he has tried to go mountain-pushbike riding, but it led to increased pain and burning in his lower back. He said he no longer goes mountain-bike riding. I accept this to be so. I also accept this must be distinguished from his use of an electric bike around suburban streets.
289I accept Mr Gulifa’s inability to go mountain-pushbike riding as a loss of some consequence to him.
290Moving to camping.
291Mr Gulifa said, prior to his injury he regularly went camping. He slept in a swag. Mr Gulifa said there were times when camping was associated with trailbike riding.
292Mr Gulifa said he no longer goes camping.
293That said, I note Mr Gulifa now has two young children and has purchased a caravan. He has had trips away in the caravan. I give only limited weight to the impact of Mr Gulifa’s lower back injury on his capacity to go camping.
294I refer now to Mr Gulifa’s gym activities.
295Mr Gulifa concedes that he still works out in his home gym. Mr Gulifa said, prior to his injury he trained at least four nights per week. He was very fitness conscious.
296Since his injury, I accept the focus on Mr Gulifa’s gym workouts are of a more remedial basis. Mr Gulifa said he trains less now and undertakes a modified program. This, I accept, is consistent with the advice of the Dorset Rehabilitation Centre.
297To a man who was invested in fitness and what I accept was serious weight training, his inability to continue training as he had, I accept to be a significant consequence.
298Turning now to Mr Gulifa’s social life.
299I accept that Mr Gulifa has had to modify his social life around his lower back condition. I accept that he is conscious of not exposing himself to circumstances where his pain would be aggravated.
300In this regard, I take heed of the evidence of Ms Gulifa, who said bluntly, “[o]ur social life is very limited by his back injury”.[104]
[104]Paragraph [10] at PACB 25
301I accept there is an adverse impact on Mr Gulifa’s social life.
302I now address the impact of Mr Gulifa’s lower back condition on his sex life.
303I accept that there has been an impact on Mr Gulifa’s sex life. Again, I am assisted by the evidence of Ms Gulifa.[105] I give weight to this consequence.
[105]Paragraph [6] at PACB 24
304As I have noted earlier in this judgment, I must also take heed of what Mr Gulifa has retained. He is clearly able to participate in a wide range of activities. For example:
(a) driving his four-wheel drive and caravan interstate;
(b) undertaking a range of gardening activities;
(c) undertaking a range of indoor domestic activities;
(d) riding an electric pushbike;
(e) riding a road motorbike;
(f) travelling overseas.
This is not an exhaustive list.
305I accept there are retained capacities which must be considered and synthesised with the consequences which I accept Mr Gulifa suffers by reason of his lower back condition.
306I must also make an assessment of the impact of Mr Gulifa’s lower back condition on his overall enjoyment of life.
307Having been in the unique position of observing Mr Gulifa in the witness box and considering all of the evidence, I have formed the view that the cumulative effect of Mr Gulifa’s lower back condition does adversely impact his general enjoyment of life.
308In summary, I accept:
(a) Prior to the injury, Mr Gulifa was a very fit, very active, ambitious and capable person.
(b) The consequences of the lower back condition impact Mr Gulifa in many ways. Indeed, they dominate aspects of his life. Put bluntly, he is no longer the man he was.
309I accept the pain and suffering consequences to Mr Gulifa are “at least very considerable”.
310Leave will be granted to Mr Gulifa to pursue common law damages for pain and suffering.
Consequential orders
311I will hear from the parties in respect to the consequential orders to be made.
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