Hadley v Galzon Pty Ltd
[2014] VCC 651
•19 May 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03533
| GLENN CLAPTON HADLEY | Plaintiff |
| v | |
| GALZON PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 17 and 18 March 2014 | |
DATE OF JUDGMENT: | 19 May 2014 | |
CASE MAY BE CITED AS: | Hadley v Galzon Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 651 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – lumbar spine – pain and suffering – loss of earning capacity – partnership income
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Alter v Alcon Laboratories (Australia) Pty Ltd [2008] VCC 713; Husher v Husher (1999) 197 CLR 138; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Waugh | Harris Lieberman |
| For the Defendant | Ms K Galpin with Mr D Oldfield | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant from 2 June 2008 to 11 November 2010 (“the said period”), and in particular on 10 November 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
15 The plaintiff relied upon three affidavits and gave viva voce evidence. He also relied on affidavits sworn on 31 January 2014 by his wife, Karen, and his father John. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is presently aged thirty nine, having been born in December 1974. After he left school in Year 10, the plaintiff completed a motor mechanic’s apprenticeship in about 1994.
17 The plaintiff had four days off work in the third year of his apprenticeship in 1994 with back problems, which recovered in a couple of weeks. He then attended a chiropractor from time to time over the years because of shoulder and neck soreness. He had some neck pain from a fall from a horse.
18 After finishing his apprenticeship, the plaintiff worked as a truck driver and later found work with a company, building dairies. He also did relief dairy milking.
19 The plaintiff married in 2000 and has three children.
20 The plaintiff entered a partnership with his wife and parents to run dairies. Whilst doing so, he obtained a job working for a road construction company for about three years and then he went to Weipa for a season to work in the mines.
21 On his return, the plaintiff found another job driving earthmoving machinery. During that time, he was off work for three months, when he injured his finger.
22 The plaintiff worked for a further two weeks at Weipa but then returned to Victoria to start work with the defendant as a harvest operator in the High Country.
23 When the plaintiff started work with the defendant, he was very fit and was used to very heavy work and long hours of work. He was initially paid hourly for a 54-hour week. He was then put on a piece rate in November 2009. He started work at 6.30am and finished twelve hours or more later. He sometimes worked at night. He stayed on site two or three nights a week.[3]
[3]Transcript (“T”) 15
24 During the course of his employment, the plaintiff was required to operate two harvester machines. The first machine began giving him discomfort because of the jarring. In mid 2009, the plaintiff had low back pain caused by the seating in the first machine, which got worse over a weekend when he dug a number of fence post holes at his farm.
25 The plaintiff attended Albury Base Hospital on 21 June 2009 and over the following days, he had some chiropractic and massage treatment. He was off work for five days. On his return to work, at the plaintiff’s request, his seat was adjusted.[4]
[4]T13
26 The plaintiff injured his back on the harvester prior to the weekend he pulled out stumps at home.[5] He agreed he must have reported “increasing low back pain over the last couple of days, been digging holes over the weekend, now pain worse” when he attended the Albury Base Hospital. He denied he injured his back at that time digging holes on the farm.
[5]T9
27 The plaintiff could not recall telling a chiropractor at Alchin Chiropractic on 22 June 2009 that he had been gardening and that led to low back pain.[6] That was an “incorrect recording” of what happened to him. He did have low back pain in June 2009 but it was not caused by gardening and not by digging holes.
[6]T12
28 The adjustment made by the mechanic to the seat on the first machine made the ride much better until the plaintiff was given a second older model harvester in November 2009.
29 The plaintiff continued to work through the later part of 2009 into 2010. He agreed there was a method for reporting defects on the machinery. He agreed he did not report “on paper” that the seat on the second machine was defective because he thought he would lose his job.[7]
[7]T16
30 The plaintiff put a lambswool seat cover on the seat at his own expense, as the defendant refused to pay for it. The ride was still very rough. The plaintiff’s complaints about the second machine were not addressed by the defendant.
31 In addition to the defective seating, the second machine had the wrong boom which meant the machine had to be driven backwards and forwards over large distances, causing jarring to the plaintiff’s spine, increasing his back pain. The defendant tried to lessen the jarring by installing a tap or valve, but that did not really work.
32 When the plaintiff started on the second machine in November 2009, his back was fine.
33 The plaintiff operated the second machine for a year, and during that time, his back was severely damaged by the amount of jarring.
34 In mid 2010, the plaintiff was working on the weekends at his farm. He denied, in August 2010, he injured his back on a quad bike chasing a pig.[8]
[8]T16
35 By October 2010, the plaintiff was getting symptoms of low back pain operating the second machine. He saw Mr Seaton, a myotherapist, on 25 October 2010. He did not report these symptoms to a doctor.[9] The plaintiff could recall attending Mr Seaton again on 10 November 2010, the afternoon of the said date.
[9]T17
36 The plaintiff believed it was on Wednesday, 10 November 2010 when his pain became very bad, operating the harvester in a very rough area known as “Rocky Knob”. That day, he left work early and went to see Mr Seaton and reported to Shane Sheils that his back was sore. The plaintiff was told if he could not handle it, that he get another job. He went to work the following day but he could not stand the pain; it was unbelievable, and he went home.[10]
[10]T17
37 The plaintiff took the Friday off, rang the defendant and saw his chiropractor.
38 Over the weekend, the plaintiff’s symptoms persisted. He attended Central Medical Group, where he was referred for an MRI scan which was conducted on 16 November 2010.
39 The plaintiff was also referred for physiotherapy. He took the holidays he had already planned. He kept the defendant advised of his condition. He went to the work Christmas party and discussed his expectation that he would get better over the holidays. He advised he would use his holiday and sick leave and if his back got better, he would not need to make a claim.
40 By January 2011, the plaintiff’s back was no better and it was clear to him he could not return to his work. He lodged a WorkCover claim that was ultimately accepted. He was in a lot of pain and very restricted, using a lot of painkillers, and also using alcohol to dull the pain and help him sleep.
41 Since then, the plaintiff has had a lot of physiotherapy, tai chi physiotherapy, core strength exercises with gym, and also walking. This treatment had helped improve his pain and reduce his restrictions.
42 As of February 2013 when he swore his first affidavit, the plaintiff could do certain tasks around the farm. He could use the quad bike, especially if he did not stand and sit. He could feed the pigs but he had trouble handling cattle, especially in the yards. He could do some ploughing but not for a full day, with two hours being his limit.
43 The plaintiff could no longer ride a horse. He could walk long distances but had trouble with steep inclines. He had to be careful on rough ground. He could jog after a pig but he could not run long distances.
44 The plaintiff had an ache nearly all the time and his pain flared up easily. He got very painful sciatica when it flared up and it was worse if he stood for long in the one spot. His sciatica was bad when standing on concrete in the cattle yard. It was hard working with cattle because it required agility jumping and twisting which would certainly cause a flare up.
45 The plaintiff could do a longer trip in the Land Cruiser as he had purchased a seat with extra support but he was still sore the next day. He had more trouble in the Fairmont. He had even more trouble driving his father’s Commodore and Land Cruiser. He got very uncomfortable driving any distance in those vehicles and experienced pain after driving for more than an hour. That was the same situation with the cattle truck. Although the Land Cruiser was relatively comfortable, the plaintiff could not drive long distances in it on successive days or on a full time basis.
46 As of February 2013, the plaintiff had used Endone to help with pain relief but it made him feel woozy. He used Panadol and Nurofen several times a week. Voltaren had been helpful but it was expensive. He also took Sertraline for anxiety and depression, and that had helped.
47 The plaintiff’s back was very unstable. If he was careful, he could manage it but it did not take much for the pain to flare. On day in January 2012, he had to feed a calf that was in trouble because of the heat. That night, the plaintiff was in very severe pain and took sixteen Panadol. The next day he was in a lot of pain and he had to go to hospital.
48 The injury had been very stressful. When he was injured, the plaintiff had the lease of 3,000 acres. His plan was to build up the acreage and stock. He could no longer manage that amount of land because of his back. He was back to working the 180-acre property.
49 Furthermore, the plaintiff could not manage normal farm work such as fencing, boom spraying, major cattle work, pasture renovations and the like. He needed to hire contractors or get help from neighbours and friends. Those difficulties had caused him a great deal of financial worry. His wife had had to return to work. The plaintiff’s frustration and worry had made him bad tempered and stressed and that affected their marriage.
50 The injury had been extremely serious to the plaintiff and his whole family. It prevented him playing proper sport with his children. He no longer went horse riding.
51 The worst consequence, however, was the loss of income. The plaintiff had expected to keep building up the farm, as well as continuing to earn wages. But for this injury, he would have more income from the farm and, in addition, he would have had wages of at least $100,000 per year.
52 The plaintiff swore a further affidavit in July 2013. Essentially, that affidavit addressed issues of liability, confirming he had reported problems with the seat to the defendant.
53 The plaintiff then continued to suffer from back pain and problems. He had had a number of massages and had seen his general practitioner, Dr Gladman, for prescriptions for pain-relief medication.
54 The plaintiff had also had to buy Panadeine Extra and Nurofen over-the-counter. He took painkilling medication every day, especially at night, in order to help him sleep. He then remained incapable of retuning to pre-injury work and continued to be adversely financially affected by his injury.
55 The plaintiff swore a third affidavit in January 2014.
56 The plaintiff has back pain every day but the level of symptoms fluctuate. He has good and bad days. If he can move about but not jar his back and not lift anything heavy, he has a good day. Most days, however, he has to experience high levels of pain because he sits on a tractor or lifts a post or handles a pig that jerks away from him, or he steps on uneven or slippery ground or does something for too long or somehow jars his back. It is not possible to avoid flare ups.
57 The plaintiff needs painkillers every day. He takes Pain Xtra and Nurofen over-the-counter. He takes two or three Panadol in the morning or Panamax, and tries to get through the day without it. Then at night, he takes some Nurofen and Panadol and a couple of scotch cans to sleep.[11] Tramadol has recently been prescribed and he takes it when he gets really bad back pain, probably last having taken it a couple of weeks ago. He also takes Sertraline for anxiety and depression every morning.
[11]T29
58 The plaintiff also takes Celebrex a couple of times a week.[12]
[12]T69
59 The plaintiff has a constant ache in his back nearly all the time.[13] He agreed that on occasions, he was pain free for a few minutes or half an hour a day, and then his back soon flared up. Painkillers took the pain away for a little bit. If he took enough tablets, the pain goes away to give him a spell.[14]
[13]T28
[14]T28
60 If the plaintiff does not have a pillow under his legs at night they ache in the morning. He tries to put up with the pain without taking medication, as the medication “cannot be good for [him]”.[15]
[15]T30
The property
61 Until recently, the plaintiff employed an excellent farmhand who was very expensive. At the same time, the plaintiff still needed to get some other casual help. That good worker had now left and the plaintiff had to give the other workers more work. But for his injury, the plaintiff would not need any of this assistance. His son is only twelve but he has started being very helpful with the pigs and other tasks.
62 In cross-examination, the plaintiff agreed that the profitability of a cattle farm was a longer term prospect. He agreed in the meantime he chose to work for the defendant to get some cash in the door but it was a long term prospect to work for the defendant.[16]
[16]T20
63 After he stopped working for the defendant, the plaintiff sold off the cattle and decided to move into free-range pig farming in about the middle of 2011. He and his wife started with six pigs, increased the herd over the first year to 400 and then in the second year, by 2013, they had increased that number upwards of 700. The plaintiff’s father already had styes on the property.[17] The plaintiff employed contractors to build the fences, with his father bearing most of the cost.
[17]T21
64 The plaintiff agreed he could maintain fences, including electric fences, when required. He could also feed the pigs, explaining how he obtained milk from Murray-Goulburn, filled the tanker and then hosed out the milk in troughs to the pigs over the property.[18]
[18]T23
65 The plaintiff also half filled 15-litre buckets weighing 15 kilograms with hard feed and fed the pigs once in the afternoon. He basically rode a motorbike along to the back of the pen and poured the feed from the bucket.
66 Presently, the plaintiff, his father and a casual worker, Adrian Guns, work on the farm. There had been other workers up until November last year.
67 The plaintiff drives a tractor for probably half an hour or an hour a week on average.[19] He is careful getting in and out of the tractor. He used to use a quad bike but now he spends most of the time on a John Deere gator, which is like a golf buggy.[20]
[19]T24
[20]T25
68 The pig farm covers about 120 acres and the property is pretty flat.[21]
[21]T26
69 The number of hours a day the plaintiff works on the farm varies. He “pokes around” most of the day from 7.00am to 6.00pm. The tasks change with the seasons, save for routine tasks. Tasks like pulling out the stumps are not ones he would do any more.[22]
[22]T28
70 The plaintiff tries to stay away from tasks that require him to move heavy items like logs, or build fences. There is a lot of repeated bending with fences, and doing this work hurts his back, so he tries not to do it.[23]
[23]T27
71 The plaintiff agreed he could drive vehicles on the farm. He could build fences when he had to. He walked on uneven ground when measuring. He could bang in posts a little bit at a time. The plaintiff agreed he could handle the pigs but his father did the cattle work.
72 The plaintiff does not help his father much anymore but his father helps him all the time.[24] The plaintiff agreed it was probably in his father’s Will that he would take over his father’s farm.[25]
[24]T56
[25]T56
Loss of earnings
73 The plaintiff has lost more than forty per cent of his earning capacity. Had he not been injured, he would be earning at least $100,000. In the twelve months to November 2010, he earned $111,592, which he would have continued to earn outside the farm if he had not been injured. He would also have made money from cattle on his farm in the future.
74 The plaintiff’s home is on 5 acres cut out from his father’s property. His father owns 1,050 acres in two parcels. He also leases two parcels, which total another 500 acres.
75 A farmer’s income fluctuates a great deal with drought, flood and fire but the plaintiff estimated in a good year he could have made, but for his back injury, $40,000 to $50,000 and broken even on a bad year. His plan had been to build up the property over ten or so years and then take over his father’s parcel of land.
76 The best the plaintiff can now do is try and make the pigs profitable. He still owns a few cattle, which his father looks after. His pigs are on his father’s land which, unfortunately, reduces the land his father has for cattle. The pigs are not yet profitable and the partnership has had to extend the overdraft and the plaintiff’s wife needs to keep working.
77 The plaintiff can only carry out about forty per cent of the job needed to be done to make the pigs profitable. He recently had to round the pigs up for sale which was usually a two-hour job. It took him eight hours, as he did not have help. He had to do everything in slow motion because of his back injury and it just took too long. There are many jobs like that with which he gets help from his twelve year old son or from his wife if she is not at work, or from one of the other casual farm hands.
78 The long and short of it is that the plaintiff does less than half the farm work he would do if he was not injured and makes no money from outside work, plus he has to pay others to help do the little work he does.
79 The plaintiff would say he has lost eighty per cent of his earning capacity and at the moment, one hundred per cent, because he is not making a profit.
80 At the time of injury, the plaintiff and his wife had an overdraft on their $450,000 house of $50,000. That had been extended up to $200,000 and in addition, there was a loan of about $50,000 and credit card debts of $14,000 approximately. If he had not been injured, the overdraft, loan and credit card debts would be nil, or close to it.
81 The plaintiff’s problem is, if he tries to make the pigs profitable, he thinks he would be worse off. The infrastructure needed to make them profitable was expensive, with shelters, a trailer and a tank to get the milk to feed them, troughs and feeders and buying sows and boars.
82 The plaintiff thought long and hard about this. The alternative was to get off the land and try some other outside work but he did not think this would work because he needed a job where he could avoid heavy lifting, frequent bending, prolonged sitting and standing. He needed to be able to rest when the pain was bad and be able move about at will. The plaintiff was confident that he was doing the best thing available to him in the circumstances but it was very hard financially.
83 In cross-examination, the plaintiff confirmed that he is currently running about 80 head of cattle on 180 acres and has the pigs on his father’s property. The plaintiff agreed he did not pay his father agistment for the pigs save for the first year, 2011.
84 The plaintiff was shown the partnership profit and loss statement for the year ended 30 June 2013. In 2009, the partnership income was $37,722 and in the following year, $29,925. He agreed those figures really involved the cattle stud.
85 The plaintiff agreed that income from the partnership in 2013 was $185,000. He did not know what the predominant source of income was. They would have sold off the cattle. He supposed he would call it just a “crash sale”. He tried to put the cattle on his father’s property until they were ready to sell.[26]
[26]T45
86 The plaintiff agreed that in the most recent financial year, the partnership expenses were greater than ever before, totalling $228,000, where previously they had been $84,000 to $85,000.
87 The plaintiff would have to check, but the agistment fee was payment to his father for a combination of pigs and cattle.[27] He would have paid his father about $5 a week for cattle and $1 a week for pigs. The agistment could have been for the cattle that had been sold. His father does not presently charge him for agistment.
[27]T45
88 The plaintiff thought it sounded right that for six months in 2014, the partnership income was $114,000.
89 The plaintiff explained the $12,000 spent on repairs in 2013 would be an ongoing expense. He could not predict what would happen with wages in future years.[28] He just could not currently afford to pay wages and he is calling on anyone just to give him a hand because the money is not there.
[28]T53
90 In re-examination, the plaintiff agreed he paid his father agistment costs when using his land. He had also given his father cattle valued at $80,000. Both the invoice for the cattle sale and agistment were about $85,000. That transaction took place without the exchange of any money.[29]
[29]T58
91 The plaintiff’s family is not travelling at all well financially. There is an overdraft of a couple of hundred thousand and the feed company is owed “a fair bit”. The credit card bill is $15,000 and “maxed out”. The plaintiff and his wife have been told not to buy any more feed.[30]
[30]T70
Video surveillance
92 There was surveillance for 45 hours from which 79 minutes and 38 seconds of film was obtained.
93 The plaintiff was shown half-an-hour of video surveillance taken on 21 February 2014 of his activities at the farm from which he operates his pig business. He remembered that day –“It was clearly stuff [he] had to do”.[31] He agreed the film showed him working on the property from 6.00am until about 3.00pm on his father’s property.
[31]T36
94 At 8.17am, the plaintiff was initially shown driving a ute on a track and giving the pigs milk with a relatively long, thin, stainless steel rod. He drove to a number of troughs along the fence line and filled them with milk.
95 The plaintiff agreed he would have driven across some uneven ground but that did not cause very much jerking.[32] When he is driving off the tracks, he just goes steady and slowly. He cannot drive with ease off-track, but he can for just a couple of minutes, and he puts up with it.
[32]T32
96 It takes about an hour and a half to collect the milk from Murray Goulburn and then distribute it. Just putting the milk in the troughs takes about twenty minutes. The plaintiff delivers milk to pigs in four paddocks. He does not have to drive the tanker back to Murray Goulburn.
97 Later in the film, the plaintiff moved onto a tractor where he was shown doing a bit of earthmoving. He explained he rang a contractor to bring an excavator to dig out the dam so the pigs could get water. The contractor did not come so the plaintiff had to do the job himself. He had lost a couple of pigs in the mud.[33]
[33]T35
98 The plaintiff agreed this task involved driving on clearly uneven ground. Jerking forward and reversing and moving some earth on uneven ground would have caused him a problem with his back.
99 In re-examination, the plaintiff confirmed that on the day of the film, a pig was stuck in the mud and there were some dead piglets and he had to dig to give the pigs access to water.[34] The contractor he arranged on that day still has not arrived. The plaintiff did not complete the job making the dam. Had he not been injured, he would not have called a contractor, he would have hired an excavator or got the truck to clean the dam out. He could not do that now because his back is too sore.
[34]T60
100 The plaintiff was then shown unloading steel posts off the front of the tractor. His father was shown approaching on a quad bike.
101 The plaintiff was then shown driving cross-pegs into the ground, trying to finish a fence. His father had been sick for a year so the plaintiff tried not to get him doing heavy stuff. It took the plaintiff a week to get the pegs in. He just did a few, and then his back got sore, so he had to come back to the job.
102 The plaintiff and his father tried pushing the posts in with the tractor bucket but the posts bent and this method did not work.[35]
[35]T38
103 The plaintiff agreed that this task was being performed in February in the heat of the summer when the ground was fairly hard. He thought the steel driver used to put in the pegs weighed about 7 kilograms. He could pick it up with one hand; it was not heavy.[36]
[36]T38
104 The plaintiff agreed he was shown using a significant amount of force to drive the pegs into the ground as the ground was hard. He was able to get the pegs in over the next week.[37]
[37]T39
105 The plaintiff agreed he was shown bending over quite a lot to pick up the steel rods or crossbar and also the driver. He was “touchy” at times there and he noticed he was rubbing his back. His back was pretty sore when he finished.[38]
[38]T40
106 There was extensive re-examination in relation to the activities shown on film.
107 The plaintiff explained he was putting up a fence to make cattle handling easier and that it would not have been necessary to get out of the cattle’s way had he not been injured.[39]
[39]T63
108 The plaintiff pounded thirty six fence posts in the fence that needed to be done. At 2.02pm, he agreed he put the first pot hole down using a picket driver. At 2.37pm, he agreed that he hit the post in about thirteen times. At 2.42pm, he put in a third post with a number of hits. He put in another post at 2.44pm, a fifth at 2.45pm and a sixth post at 2.46pm. He only did a handful of posts each day. It took him about five days to put in thirty six posts.
109 Had he not been injured, the plaintiff would have just stood on the back of a Landcruiser and got a sledgehammer and driven them in, but he could not do that because it hurt his back too much.[40] To construct that fence pre-injury would have been a three-hour job and he would also have had to put the wires through. The whole job would have taken five or six hours.
[40]T66
110 However, the fence had been down for twelve months. Had he not been injured, the plaintiff would have pulled it down one weekend and put it up the next. It has taken him five days to put in the fence posts that have been put in and all the posts are not up. He has got the majority of the wire. It would probably take a couple of days just to finish off the job but he has not done so because his back is too sore. He ran out of money to get the other men to help.
Financial documents
111 An invoice from J S & D L Hadley dated 14 September 2012 set out agistment and related costs of $78,383.90 addressed to the partnership for services provided over the period 1 July 2011 to 30 June 2012.
112 There was an invoice for $85,000 from the partnership G C & K A Hadley to the plaintiff’s father’s partnership dated 15 September 2012 for sale of cattle over the period 1 July 2012 to 14 September 2012.
Incident report
113 There was an incident report dated 10 November 2010. The location was noted to be Lawson Road, Koetong.
114 The plaintiff advised he had been operating a harvester since Monday. He had a site caravan and had been there since Monday night. The area was very rocky and caused the machine to slide off the rocks with a hard landing, jarring his body. He operated the machine for three hours and had pain. He could not work by 11.00am so he called Mr Seaton, remedial therapist. He notified Ryan Smith on site that he had a painful back and also notified Shane Sheil.
115 The plaintiff came back to work on the Thursday on the harvester and left the rest of the extremely rocky terrain and cut easier terrain. However, by 4.00pm, the pain was worse and he could no longer operate the machine.
Claim documentation
116 The plaintiff signed a Claim for Compensation on 6 January 2011, setting out that he was operating a timber harvester on rocky terrain, slipping off rocks and jarring his back, resulting in lower back injury. The incident was reported to Ryan Smith on site. At the time of the incident, the plaintiff was working on the right hand side of Lawson Road Plantation on rocky road.
117 Liability was disputed on the Employer Claim Form as the plaintiff left work on 10 November 2010 due to back pain but only stated it was work related on 5 January 2011. He had previously had time off work for back pain that was not work related.
118 A Claim for Impairment Benefits for the back was signed by the plaintiff on 16 February 2011.
119 By letter dated 11 May 2012, Allianz advised the plaintiff that in relation to the injury dated 10 November 2010, pursuant to s98C, liability had been accepted for his lower back.
120 There was a Conciliation Outcome Certificate dated 14 March 2013 setting out that it was advised that the authorised agent had confirmed the plaintiff’s pre-injury average weekly earnings were calculated to be $2,146 and the plaintiff had accepted that calculation.
Financial documentation
121 An invoice from JS and DL Hadley to the partnership dated 14 September 2012 related to agustment and other costs totalling $86,222.29 (inclusive of GST.
122 The partnership provided an invoice to JS and DL Hadley dated 15 September 2012 for the sale of cattle from July to September 2012.
Summary of the Plaintiff’s taxation returns
Financial Year
Employer
Total Taxable Income
2007 Tallangatta Construction & Maintenance $69,075 2008 Tallangatta Construction & Maintenance $9,350 Weipa Earthmoving Pty Ltd $35,962 Wyanga Holdings Pty Ltd $17,263
$5,300
Total income for 2008
$67,875
2009 Galzon Pty Ltd $70,835 2010 Galzon Pty Ltd $89,460 2011 Galzon Pty Ltd
(ceased work 10 November 2010)
$62,944 2012 Galzon Pty Ltd $42,870 TAL Life Ltd $42,000 Primary Production Loss
(from partnership loss)
$23,298 Total income for 2012
$55,423
2013 Primary Production Loss
(from partnership loss)
$21,760 Lump sum payment and arrears $10,655 Total income for 2013
$10,655
Lay evidence
123 The plaintiff’s wife, Karen Hadley, swore an affidavit on 31 January 2014.
124 Mrs Hadley confirmed that before the incident, the plaintiff had always been a very physical man, good with his hands and he enjoyed manual work.
125 Since the incident, the plaintiff has become increasingly depressed. They tried to spend a lot of time figuring out what he could do to get back working, as he could do some activities for a time but then had to rest.
126 The plaintiff spends a lot of time walking around rubbing his back. He goes out for half an hour to an hour and then has another break. There are lot of half-done jobs, which is frustrating.
127 Mrs Hadley confirmed the plans to start a cattle farm and later changing from cattle to pigs. Because of financial pressure, she has had to go back to work. If not for the injury, the plaintiff would have continued to work outside as well as run the farm.
128 The plan was to have the farm well set up by the time the plaintiff’s father retired and they would take over his property. The plan has been shattered by the plaintiff’s injuries.
129 There has been a large price paid by the entire family. Mrs Hadley is no longer at home with the children like she would have been. She enjoys her job and the children are seeing a lot of the plaintiff’s parents but she is not there with them.
130 The plaintiff’s father, John Hadley, swore an affidavit in January 2014 confirming the plaintiff’s active pre-injury status and his hardworking nature and background. He also confirmed the plans for the cattle farm. The plaintiff’s back injury had ruined the plaintiff’s plan entirely and he had to give up the 3,000 acres.
131 Mr Hadley does what he can to help the plaintiff, whereas the plaintiff was supposed to help him. He confirmed the plaintiff is very depressed by his situation.
Co workers’ affidavits
132 Nicholas Gladstone, machine operator employed by the defendant between 2008 and 2009, used the same type of Tigercat harvester machine the plaintiff used. He found it gave him a very rough ride and the main problem was with the seats.
133 Greg Mansell was employed by the defendant as a mechanic at the same time as the plaintiff. The plaintiff made numerous complaints about the seats in the Tigercat harvester machine he drove.
134 Mr Mansell and the plaintiff attempted to make some adjustments to his seat in the first harvester. There were no adjustments made to the second machine. The next employee who used that machine also complained of back pain.
135 Mike Sheil said to Mr Mansell that the gas struts under the seat “were fucked” and he ordered new ones but they still had not arrived by the time Mr Mansell gave notice on 17 March 2011.
136 Ryan Smith was employed by the defendant as a forwarder operator, working with the plaintiff, who was operating the harvester machine. They often worked in very rough country, containing rocks and tree stumps, which made driving a forwarder or harvester in the area a very rough ride when you drove over the top of them.
137 In early November 2010, they were working in the area around Wallace’s Road, out behind the Koetong Pub. The area was referred to as “Rocky Knob” as it contained a number of large rocks. It was either Wednesday, 10 or Thursday, 11 November 2010 when the plaintiff told him that his back was sore after his harvester slipped off rocks. The plaintiff had earlier given him a warning to look out for rocks. When he saw the plaintiff later in the day, the plaintiff appeared to be in some discomfort.
138 Melvin Webb worked for the defendant between 2008 and 2009. He had driven both harvesters and forwarders.
139 The seat was the main problem with the Tigercat. Mr Webb had known many young men to start the job without back problems but within a year or two, they started to get back pain.
140 Shane Stock worked in the forestry industry for a number of companies and had driven both a forwarder whilst working for the defendant and a Tigercat harvester when working for another company.
141 Mr Stock found the seat in the Tigercat to be very uncomfortable and it was a very rough machine to drive. The driver was constantly jolted and rocked about and the seat did not provide adequate protection or support. When Mr Stock drove the Tigercat, he had a lot of problems with lower back pain.
Treaters
142 The plaintiff attended Albury Base Hospital Emergency Department on 21 June 2009. It was noted there was a previous history of lower back pain.
143 The plaintiff reported increasing low back pain over the last couple of days and it was noted:
“… been digging holes over weekend now pain worse. Had back pain once before a few years earlier … works on a harvester, sitting all day.”
144 Dr Gladman reported to the Accident Compensation Conciliation Service in April 2011, noting the plaintiff had suffered L4-L5-S1 discogenic low back pain consistent with jarring injury as described, at work. He certified the plaintiff had a standing and sitting tolerance of thirty minutes. He noted the plaintiff first attended for that condition on 15 November 2010.
145 Dr Gladman noted that the plaintiff presented to Central Medical Group on that date, apparently describing a sudden onset of low back pain while at work related to an incident at work. He described a sudden drop in height while driving.
146 The plaintiff was diagnosed with disc related low back pain. There were no previous notes relating to low back pain so that appeared to be an acute episode related to the work incident.
147 Dr Gladman reported that the plaintiff had been unable to return to work since then as prolonged sitting and rough driving further exacerbated his symptoms.
148 As mentioned in medical certificates, Dr Gladman thought the plaintiff would be suitable to return to light duties but needed to avoid prolonged sitting and driving over rough terrain. With ongoing management, a gradual return to full recovery was expected.
149 Dr Gladman reported in February 2012 to the plaintiff’s solicitors. He noted that the plaintiff had presented on a monthly basis for review and was compliant with management. Frustration over WorkCover issues had affected his recovery.
150 Dr Gladman thought the plaintiff would be suitable to return to light duties but would need to avoid prolonged sitting and riving over rough terrain. He considered that with ongoing management, a gradual return to full recover was expected.
Investigations
151 Cervical spine, thoracic spine, lumbar spine and pelvis x-rays were carried out in June 2009 at the request of the plaintiff’s chiropractor.
152 It was reported that lumbar lordosis was straightened with disc space narrowing at L5-S1 and there was no curvature on the frontal projection.
153 Dr Mandal organised an MRI scan of the plaintiff’s lumbar spine on 16 November 2010.
154 It was reported there was minor narrowing of the left L5 and S1 lateral recesses. The corresponding nerve roots contacted the disc protrusion at L4‑5 and disc osteophyte complex at L5-S1. It was noted that this may cause irritation.
155 A printout from Wodonga Pharmacy detailed the supply of the following:
· Paracetamol/codeine tablet in January 2012
· Codalgin Forte in February 2012
· Comfarol Forte on 1 April 2013
· Paracetamol-codeine tablets on 6 May 2013, 14 October 2013 and 14 January 2014
· Celebrex on 21 January 2014
· Tramadol hydrochloride capsules on 21 January 2014, 7 February and 7 March 2014.
· Celebrex capsules on 7 February 2014.
Medico-legal examiners
156 The plaintiff was examined on behalf of the defendant’s solicitors by Mr Ian Jones, orthopaedic surgeon, in December 2013.
157 The plaintiff told him of the injury in 2009, after digging a few holes in the garden, and then attending Albury Hospital. The plaintiff also told Mr Jones on the said date that he was driving his harvester, which slipped sideways on a large rock, causing further jarring to his back.
158 The plaintiff reported that he had pain which varied from a sharp to dull ache and varied from month to month. His back pain was not too bad a few months ago but since then, he experienced varying degrees of back pain.
159 The plaintiff told Mr Jones he could walk for unrestricted distances on flat surfaces but not on slopes. He found it uncomfortable, in terms of back pain, to stand for more than twenty minutes at one time. His sitting capacity varied with the type of chair. He estimated a thirty-minute to one hour sitting period, beyond which he had to get up and move around. The plaintiff was able to drive a vehicle, particularly if it was fitted with a good seat and he had modified his own vehicle.
160 The plaintiff told Mr Jones that he and his wife ran a pig farm with three casual workers, whom the plaintiff relied on for heavier work. They cleaned out the sties and shovelled the straw. The plaintiff could spend twenty minutes on a lawnmower every few months as required and could maintain the fences, including the erection of electric fences when required.
161 On examination by Mr Jones, there was restricted lumbar movement and straight leg raising. Neurologically, the plaintiff was normal.
162 Mr Jones thought the plaintiff suffered from chronic lumbar back pain with episodes of more severe pain symptoms from time to time. He considered the basis of the plaintiff’s back complaint was as a result of degenerative disc disease at L4-5 and particularly L5-S1, with some associated minor disc prolapses.
163 Mr Jones thought there were no functional symptoms or signs.
164 Mr Jones concluded that the plaintiff was fit for physical work excluding lifting above 10 kilograms and the requirement to repeatedly bend and lift. He noted that activities the plaintiff was performing the past in the form of rough driving and, particularly work at his former job, would be beyond the capacity of his lumbar spine. Mr Jones thought the outlook was one of continuing and gradually deteriorating back pain symptoms in the long term.
165 Dr James Rowe, occupational physician, examined the plaintiff on behalf of Allianz in April 2012.
166 The plaintiff told Dr Rowe of working as a harvester operator and jarring his back in November 2010. He had seen a masseur a few weeks earlier because of back pain, which he related to the poor seating on the harvester.
167 The plaintiff had returned to work to some modified duties on his own property, looking after free-range pigs, but he had to give up most of the acreage. The plaintiff told Dr Rowe he did a little bit of tractor work, some work at home, and that he avoided heavy lifting, having a lifting limit of 15 kilograms.
168 The plaintiff told Dr Rowe that he could drive but sometimes with difficulty and if he sits for too long, his back is aggravated.
169 On examination, there was some limitation of lumbar movement but neurologically, there were no abnormalities.
170 Dr Rowe thought that the plaintiff had two-level disc derangement which followed an incident that happened at work in 2010. He had been left with a permanent long term impairment of his back.
171 Dr Rowe thought the plaintiff could not return to work as a motor mechanic or heavy equipment mechanic and could not go back to driving heavy equipment. He may be able to drive a truck, depending on the seating, and he may be able to be retrained as a trade teacher.
172 Professor Hart, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in May 2013.
173 The plaintiff told Professor Hart that in November 2009, he was given an older harvester with defective seating and it had a short boom. In October 2010, he began to develop low back pain and saw a myotherapist.
174 On the said date, the plaintiff’s back pain increased when he was operating the old harvester on very rough terrain, causing constant jarring of his back.
175 The plaintiff told Professor Hart that in June 2011, he bought a small number of pigs and established a piggery. He had been able to cope with difficulty looking after the pigs, whereas looking after cattle was more difficult. He had now managed to extend the piggery to 400 pigs. He supervised the management of the pigs but also did some hands-on work with assistance from farmhands.
176 The plaintiff then complained of intermittent low back pain, which extended down the left low extremities of the knee but not beyond.
177 The plaintiff told Professor Hart that he had had another episode of low back pain in mid 2009, which was aggravated by digging post holes and resulted in five days off work. He attended Albury Base Hospital with back pain and was referred to a chiropractor. Back pain had resolved and he had no low back pain when he started work as a harvest machine operator in November 2009.
178 The plaintiff told Professor Hart that he could sit for two hours and stand for half an hour. He could walk unlimited distances and found walking helped rather than aggravated the pain. He could run, but in a limited fashion. He was able to drive without difficulty and able to climb stairs and ladders and able to use public transport.
179 The plaintiff helped his wife with housework but found activities which involved bending, such as loading the dishwasher and vacuuming, aggravated his pain. His wife also looked after the garden and lawn.
180 The plaintiff told Professor Hart that he managed the piggery on his father’s property with the assistance of two casual farmhands. In addition to looking after the pigs, he also did some maintenance work on the property within the limits of his back pain. He now rode a quad bike rather than a motorbike, and did that standing up.
181 On examination, there was tenderness at L5-S1 but no spasm. There was a full range of movement, except for lateral flexion to the left. Neurological examination was normal.
182 Professor Hart noted the 2010 MRI showed a small protrusion at L4-5 and an annular tear but no evidence of any spinal canal or exit foraminal stenosis. At L5-S1, there was narrowing of the disc posteriorly, with a small paracentral disc protrusion associated with an annular tear and plate osteophytosis.
183 Professor Hart thought the plaintiff suffered an injury to his back when he was driving a harvester machine on very rough terrain. He noted the plaintiff presented with persistent low back pain with annular tears and small protrusions at the lower two levels of the lumbosacral spine but without any neurocompression on the imaging. There was a mild residual radiculopathy affecting the right L5 nerve root.
184 Professor Hart considered the alleged injury was caused by the work duties. He noted there was a past history of low back pain and the disc lesion at S1 in particular may have been pre-existing but was at least aggravated by the incident.
185 Professor Hart did not detect a significant functional component.
186 Professor Hart noted the plaintiff was working full time on his father’s property, managing the piggery. He had expanded the number of pigs from 400 to 600 and now operated the piggery, assisted by two casual farmhands. The plaintiff tried to avoid the heavy work as much as possible but still had direct contact with the pigs and undertook maintenance work on the property within the limits of his back pain.
187 Professor Hart thought the plaintiff would be best to avoid work which involved repetitive bending, heavy lifting and heavy pushing and pulling. He noted intermittently the plaintiff had been exposed to some of those activities in his role as a manager of the piggery. He thought the plaintiff would not be fit to work as a harvester operator.
188 Mr Brearley, orthopaedic surgeon, examined the plaintiff in November 2013.
189 The plaintiff told Mr Brearley that with his work with the defendant, he sat on a harvester for most of the day. On the said date, while operating the harvester in a very rough area, it slipped sideways on a large protruding rock, causing a jerking and jarring injury to his back.
190 The plaintiff told Mr Brearley that he had very frequent low back pain. On some days, his back felt virtually normal, but most of the time there was discomfort or pain. He frequently had night pain.
191 The plaintiff told Mr Brearley that he managed daily activities but had difficulty helping his wife with heavier housework and gardening. He could not ride a horse or a motorbike. He could not play football or cricket and he avoided social outings, such as going to the movies and going out for dinner, as he could not sit for long.
192 The plaintiff told Mr Brearley of four days off work in 1994 and an episode of low back pain in 2009 when he was digging in his garden. He had some chiropractic treatment and massage and returned to normal work duties. About a month prior to the incident, he developed some low back pain and had some massage.
193 On examination, there was no tenderness or deformity of the back and slight restriction of movement. There was some limitation of straight leg raising.
194 Mr Brearley noted the 2010 MRI.
195 Mr Brearley diagnosed mechanical lumbar back pain due to aggravation of pre-existing degenerative changes in the two lower lumbar discs. He thought that these showed some prolapse and annular tear. He considered they may have occurred at the time of the incident.
196 Mr Brearley believed the system of work had certainly contributed to the plaintiff’s back injury. Whilst operating the second harvester from November 2009 to the following year, there was not only defective seating but there was a problem with the boom and more frequent jarring.
197 Mr Brearley thought the jumping and jarring and driving of the harvester in a flexed position would have imposed a very significant strain on the plaintiff’s lower lumbar spine. Repetitive minor trauma to those discs, already the seat of dehydration as shown on MRI, would be sufficiently traumatised for annular tears to occur. That would then cause some traumatic swelling of the disc and protrusion thereof.
198 Mr Brearley thought there was no indication for surgery. The plaintiff required simple pain relief and needed to maintain back mobility. He would probably benefit from a low impact exercise and fitness program, although the work he did on the pig farm was quite physical.
199 Mr Brearley thought the plaintiff’s back was likely to remain the same. There was not likely to be significant improvement. Rather, as he got older, there would be some gradual deterioration.
200 Mr Brearley considered the plaintiff was quite unfit to carry out his previous work as a harvester operator, which did cause repeated minor trauma to his lower back because of the very rough ride over irregular terrain and the jerking backwards and forwards during operation. It was for that reason the plaintiff also could not operate other plant equipment, such as excavators and bobcats.
201 Mr Brearley thought that the plaintiff was fit to continue work as a pig farmer. He noted that the plaintiff now avoids the heavy labouring work for which he employs two other workers and basically he is able to carry on with the work.
202 Mr Brearley thought that the plaintiff’s incapacity for work as a harvester operator was total.
203 With regard to pig farming, Mr Brearley thought the plaintiff needed to avoid heavy and repetitive lifting, prolonged stooping and bending and standing for long periods. He should no do any lifting beyond 10 kilograms and should be varying his work continually during the day.
Vocational evidence
204 Margaret Leitch, occupational therapist, prepared a vocational report for Evidex on 10 August 2012. She concluded that the plaintiff did not have a capacity for suitable employment.
205 The Job Markets Australia website as of August 2012 indicated the average full time weekly earnings for people aged between thirty five and thirty nine working as a sales assistant were ($974), service station attendant ($793), café worker (721), telemarketer ($961) and sales clerk ($930).
The Defendant’s medical evidence
206 Daniel Seaton, myotherapist, reported on 11 March 2011 that the plaintiff first attended on 25 October 2010 with complaints of lower back pain in the region of his waist. The plaintiff returned on 10 November 2011 with low back pain, and was still very sore.
207 Mr Seaton did not hear from the plaintiff until 6 January 2011, when he informed him that within two days of the last session on 10 November 2010, his back worsened at work. The plaintiff informed Mr Seaton that scans taken had revealed disc bulges at three levels and that he had not been able to work since the start of November 2010.
208 The plaintiff attended the myotherapist on 3 March 2011 and advised that he had not returned to work and was still suffering from pain, worse at night.
209 The plaintiff attended Scot Hargraves on 23 June 2009 and 2 February 2010 complaining of low back pain.
210 When the plaintiff attended Alchin Chiropractic on 12 November 2010, low back pain with right leg paraesthesia was noted. On 22 June 2009, there was a note of “gardening, low back pain.”
Medico-legal evidence
211 The plaintiff was examined by Dr Clive Kenna, consultant in musculoskeletal pain management, in January 2010.
212 The plaintiff told him of a back problem in 1994 and that he had worked for the last sixteen years without any ongoing problems and then there was, subsequently, the incident when operating a timber harvester on rocky terrain.
213 On examination, Dr Kenna noted the plaintiff had some slight restriction of lumbar spine mobility. He was tender more at L4-5 than at L5-S1. Neurologically, there was no deficit.
214 Dr Kenna thought there was good functional mobility but some residual tenderness at L4-5, with the plaintiff being neurologically distally intact and no clear sign of dual tethering.
215 Dr Kenna thought the plaintiff had sustained injury to his lower back as a result of his duties on the said date and x-ray now confirmed discogenic pathology. In view of the clinical presentation and subsequent clinical assessment, Dr Kenna thought most likely the L4-5 was the symptomatic level.
216 At that stage, the plaintiff had not worked for two months. He acknowledged that he had a farm and stated that, generally, the activities were not physical. He was previously working thirty hours a week for the defendant and he also worked as a self-employed cattle stud farmer.
217 Dr Kenna diagnosed discogenic low back pain.
218 Dr Kenna accepted the plaintiff’s current clinical presentation was related to the nature of his work duties and his employment was a cause and contributing factor to his current clinical presentation.
219 Dr Kenna thought the plaintiff was then unfit to work and certainly could not return to his pre-injury duties or modified pre-injury duties if modifications were not possible. He thought that the plaintiff would now be capable of performing alternative duties but, as essentially the work was manual, he believed it unlikely that there would be any alternative duties.
220 At that stage, Dr Kenna was hopeful of a substantial improvement, if not resolution of symptoms.
221 Dr Kenna was provided with a circumstance investigation report which set out that there were witness statements confirming the plaintiff suffered from a non work related injury at the end of August 2010, prior to the incident.
222 Dr Kenna confirmed the history that the plaintiff gave him and the findings on MRI.
223 Dr Kenna noted the plaintiff’s injuries are often not of recent affect and he noted, with regard to witness statements, they appeared to confirm that the plaintiff had suffered previous injuries to his back, such as a non work related injury at the end of August 2010. The statement from the witnesses was that the plaintiff complained when he was on annual leave and returned to work at the end of August 2010, telling two of his co workers whilst he was off work that he had come off of his quad bike whilst chasing a pig and hurt his back.
224 Dr Kenna thought it may well be that the incident at work may have been an aggravation of what was an ongoing problem at the time, and the original injury may not have been specifically work related but just a temporary aggravation.
225 Similarly, superimposed upon that, on subsequent review, Dr Kenna thought that the x-ray changes were not compatible with the injury stated; that is, the jarring injury as a one off incident, and that is much more related, usually, to chronicity of symptoms and may be of longer term and not specifically related to the pathology or the incident.
226 Dr Kenna thought, similarly therefore, there were clearly other factors in play with regard to the plaintiff’s back condition.
227 Dr Kenna concluded that it may well be possible the incident at work may have resulted in an exacerbation but not causation of the problem. The ongoing chronicity of the symptoms explained by the radiological findings was due to a longstanding condition, not specifically work related to the plaintiff’s employment with the defendant, as he only started there in approximately 2008.
228 After reviewing the investigation report, Dr Kenna thought it was well possible the ongoing clinical condition now pertaining to the plaintiff’s back was not specifically work related at all to his employment with the defendant. The plaintiff may have sustained some jarring or temporary exacerbation but that was a general one off event, so it was very possible his current presentation was not at all representative of current events at work but due to a long term problem.
Surveillance
229 Exhibit 1 was 37 minutes and 33 seconds of DVD-surveillance film of the plaintiff taken on 21 February 2014:
Time Event 8:17am Plaintiff shown working on a farm, lifting a large metal pole connected to a hose.
8:18am Plaintiff gets in a ute and drives a small distance.
8:19am Plaintiff picks up large metal pole again and briefly uses it, then returns metal pole to the trailer on the ute.
Plaintiff walks back to his car again and drives off.
8:32am Plaintiff filmed from a distance stopped in his ute [unclear what he is doing from this footage]. Plaintiff gets out of the ute briefly then a minute later drives off again.
8:35am Plaintiff pulls over and walks over to a barrel of what appears to be hay, returns to truck and drives off.
8:50am Plaintiff filmed from a distance walking to his ute and driving off.
8:55am Plaintiff filmed from a distance driving a tractor.
10:04am Plaintiff filmed walking to and from his tractor.
10:08am Plaintiff steps into the tractor and operates it.
10:17am Plaintiff filmed using tractor, hauling dirt for 3 minutes.
12:05pm Plaintiff filmed from a distance standing beside his tractor for 10 minutes [unclear what he is doing from this footage].
1:48pm Plaintiff shown walking to and from his tractor.
1:50pm Plaintiff [appears to] lift objects off the front of his tractor and place them on the ground.
1:51pm Plaintiff walks a short distance carrying a long pole in his left hand.
1:53pm Plaintiff appears to measure out steps with pole in one hand.
1:54pm Plaintiff shown walking beside his tractor.
1:58pm Plaintiff walks a short distance and stops to talk to a person in a 4-wheel tractor.
2pm Plaintiff shown leaning on a fence talking to person in the 4-wheel tractor.
2:02pm Plaintiff appears to be lifting a large long pole above his head using both hands, jabbing it into the ground four times.
2:31pm Plaintiff lifts large pole again above his head, then holds pole for about 30 seconds, then leans (rests) on the pole using one arm with his other hand rested on his hip for approximately 4 minutes.
2:35pm Plaintiff uses both hands and appears to push the pole into the ground.
2:36pm Plaintiff again rests on pole with one arm for 30 seconds.
2:37pm Plaintiff jabs the pole into the ground fourteen times, then raises the pole high above his shoulders and finishes.
2:38pm Plaintiff shown walking, his father is driving the tractor.
2:42pm Plaintiff picks up large poles and inserts one into the other.
2:43pm Plaintiff jabs the pole into the ground thirteen times, then raises the pole high above his shoulders and finishes.
2:44pm Plaintiff appears to be working with the pole again; however the view is obstructed by a tree.
2:45pm Plaintiff jabs the pole into the ground fifteen times, then raises the pole high above his shoulders and finishes.
5-year Profit and Loss Statement for G C & K L Hadley
Year 2013 2012 2011 2010 2009 Income
$185,134.58
$38,083.08
$71,321.72
$29,925.00
$37,722
Gross profit from livestock trading $228,656.72 $84,677.81 $85,709.55 $62,369.58 $58,754.22 Net operating profit
or loss$43,522.14 $46,594.73 $14,387.83 $32,443.70 $21,031.97 50 per cent distribution to partners $21,761.07 $46,594.73 $14,387.83 $32,443.70 $21,031.97
230 In 2013, there was an agistment fee listed in the partnership’s expenses of $78,383.90. There were also repairs and maintenance of the pigsty yard of $12,190.09 and wages of $3,613.04.
231 The income of $185,134.58 from 2013 comprised $180,846.28 from livestock trading, and the balance from contracting.
232 Five-year income and expenses projections were prepared by the plaintiff’s accountant in late 2013. It was estimated that in 2014, the partnership income would total $114,050; in 2015 – $121,550; in 2016 – $125,935; in 2017 – $130,882; and in 2018 – $137,051.
233 It was noted in the financial year 2014, that wages and superannuation were to be $21,409. It was projected there would be a net operating loss in 2014 of $41,114 and in 2015, $10,301. It was estimated that there would be a net operating profit in 2016 of $515, $9,816 in 2017, and $19,343 in 2018.
Overview
234 I accept that the plaintiff suffered a compensable injury to his lumbar spine in the incident and during the course of his employment with the defendant when driving the second harvester.
235 Dr Kenna is alone in the view that there were clearly other factors in play with regard to the plaintiff’s back condition, having been told of reports by co workers that the plaintiff injured his back whilst riding a quad bike on his property. This issue was not pursued by the defendant’s counsel in addresses.
236 Counsel for the defendant, whilst submitting the plaintiff had earlier injured his back in other non compensable circumstances, digging in the garden at home, conceded that the incident had occurred.[41]
[41]T76
237 Co worker, Ryan Smith, confirmed the plaintiff reported suffering injury to his back when they were working together at the Rocky Knob on the said date. Other co workers confirmed ongoing problems with the seat on the second harvester.[42]
[42]T100
238 Counsel for the plaintiff submitted there were at least two operating causes of the plaintiff’s present back condition: the incident, which was undoubtedly dramatic, and driving with the defective seat in the preceding twelve months.[43]
[43]T102
239 Counsel for the defendant disputed whether the incident injury was causally connected to the degree of damage which the medical practitioners have identified.[44]
[44]T76
240 It was submitted the plaintiff had attempted to link all previous treatment to the work related injury; however, the objective contemporaneous material did not support this was the case, with the plaintiff suffering a back injury at home while digging in 2009.
241 It is of note however, when the plaintiff attended the hospital on 21 June 2009 complaining of back injury digging holes, it was also recorded he had increasing low back pain over the last couple of days and his pain was now worse. This entry suggests that whilst digging there was a worsening of an existing condition.
242 In any event, whatever the cause of the plaintiff’s back pain at that time, as of November 2009, when he commenced work on the second harvester, as the plaintiff deposed, his back was fine.
243 The consensus of medical opinion is that driving the harvester with the defective seat was causative of the plaintiff’s back condition.
244 Liability was ultimately accepted for the plaintiff’s claim, and weekly payments paid, as were medical expenses. The plaintiff’s claim pursuant to s98C was also accepted.
245 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[45] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[45][2006] VSCA 171
246 No such explanation has been forthcoming in the present case.
247 There is no dispute that the plaintiff’s lumbar spine condition has a substantial organic basis. It has been diagnosed as an aggravation of previously asymptomatic degenerative disc disease at L4-5, and particularly L5-S1, with some associated minor disc prolapses. His condition has also been described by some examiners as mechanical lumbar back pain due to aggravation of pre-existing degenerative changes in the two lower lumbar discs.
248 There is no suggestion of any previous lumbar spine pain of any relevance prior to the period of employment.
Credit
249 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[46]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[46](2010) 31 VR 1 at paragraph [12]
250 Counsel for the defendant submitted the plaintiff’s presentation in the witnessbox was inconsistent with what was shown on the surveillance film, and that the plaintiff could not do what he was shown doing if his condition was as bad as he described.[47]
[47]T83
251 Whilst I indicated my initial impression of the surveillance film was that it showed the plaintiff exhibiting a level of movement inconsistent with his complaints of pain and restriction, on closer examination of all the evidence, I accept that the level of activity shown on the film was consistent with what he described in his affidavit and to doctors, and the film did not undermine the plaintiff’s credit.[48]
[48]T119
252 Further, there was surveillance over 45 hours on four dates in 2013 and twice this year, of which nearly 80 minutes of film was taken. Only 37 minutes of film was shown.
253 I found the plaintiff to be a credible witness who did not overstate the extent of his pain and restrictions.
254 I accept the plaintiff was able to do very physical work, driving in the posts for only a very short time and out of necessity. His present capacity is in stark contrast to his extremely active life prior to injury, where he was able to work outside the property, earning significant income, and also work on his 3,000-acre cattle stud.
255 As counsel for the plaintiff submitted, it is uncontradicted that the plaintiff has always worked two jobs, at the farm and outside, working extremely hard, thirteen hours a day, seven days a week. He has always been an extremely physical person, who enjoyed an active life.
256 Also relevant to the plaintiff’s credit is that there was no suggestion by any medical examiner of any embellishment or exaggeration on examination. Neither the plaintiff’s wife nor his father, who provided affidavits confirming the plaintiff’s evidence of his pain and restrictions and his level of activity on the farm, were required for cross-examination.
257 In Haden Engineering Pty Ltd v McKinnon,[49] Maxwell P noted that the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about his pain both in court and to doctors.
[49](supra) per Maxwell P at paragraph [11]
258 I accept the plaintiff continues to suffer significant ongoing lumbar pain of varying intensity, worsened by activity.
259 Due to his back pain, the plaintiff is significantly restricted in activities involving repeated or heavy bending and lifting compared to his pre-injury level of activity. He also has difficulty with prolonged posture.
260 The plaintiff has undergone physiotherapy treatment and gym and exercise routines with little improvement.
261 Of recent times, the plaintiff’s medication regime has become more significant, now regularly taking Celebrex and Tramadol, having previously relied upon Panadol and Nurofen.
262 In Kelso v Tatiara Meat Company Pty Ltd,[50] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[50][2007] VSCA 267 at paragraph [199]
263 The plaintiff is now aged only thirty nine.
264 In Stijepic v One Force Group Aust Pty Ltd,[51] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[51][2009] VSCA 181 at paragraph [43]
265 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
266 The plaintiff is significantly restricted in his activities around the house and, more particularly, the farm, but persists in those activities and also work on his father’s property, as there is no one else to do those tasks and the partnership can no longer afford to employ workers, as had been the case in the past following the plaintiff’s injury.
267 I accept that the plaintiff is somewhat of a stoic who has tried to get on with his life as best he can in the face of significant pain and restriction. As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2,[52] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[52][2008] VSCA 260 at paragraph [4]
268 Although there is no recent report from the treating general practitioner Dr Gladman, I am satisfied on all the other medical evidence available, that the plaintiff has ongoing back pain and restriction and that he no longer has a capacity for unrestricted manual work. He would be unable to return to work as a harvester operator. He can undertake farm duties on a limited basis, pacing himself and taking much longer to perform tasks than was the case prior to the injury.
269 Further, the only evidence is that the plaintiff intended to continue work indefinitely outside the farm after the stud was established, contrary to counsel for the defendant’s submission that the plaintiff was only doing excavating work “to get some cash in the door” while he built up his cattle farm.[53]
[53]T86
270 In my view, the plaintiff has satisfied the narrative test in relation to loss of earning capacity, having lost the capacity to earn in excess of $100,000 in outside employment and also having to give up his long term plan of developing his cattle stud, having to downsize his landholding considerably and now pursue the role of a pig farmer.
271 I accept that as the plaintiff’s pain and restriction has continued for some time, without improvement, his spinal impairment is permanent.
Loss of earning capacity
272 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
273 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
274 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
275 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
276 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
277 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - Barwon Spinners Pty Ltd & Ors v Podolak.[54]
[54](supra) at paragraph [70]
278 I am therefore required to determine a “without injury” earnings figure.
279 In 2010, the plaintiff was earning $113,117.36 or $2,175 per week for piecework with the defendant.
280 In my view, this is an appropriate without injury earnings figure which most fairly reflects the worker’s earning capacity.
281 Sixty per cent of that figure is $67,680.
282 Post injury, the plaintiff’s only income has been from the partnership as he has been unable to resume his harvesting work outside the farm. However, the partnership has suffered a continuing loss since that time with the loss for the 2012/13 financial year of $43,000.
283 There was a dispute as to the approach which should be taken when considering the plaintiff’s post-injury earnings from the partnership.
284 In this regard, counsel for the defendant relied upon the decision of Judge Misso in Alter v Alcon Laboratories Australia Pty Ltd,[55] where his Honour took the gross amount income from personal exertion in s134AB 38(f) of the Act as meaning the gross income without deducting expenses incurred.
[55][2008] VCC 713
285 In the present case, it was submitted $185,000 profit from 2012/13 was the appropriate figure post injury figure.
286 It was submitted that if the definition of income from personal exertion including “the proceeds of any business carried on by that person either alone or in partnership with any other person” was meant to meant exclude expenses of a business, that would have been incorporated into the Act.[56]
[56]T97
287 If the alternative approach relied upon by the plaintiff was taken, it was submitted there should be a close analysis of the partnership’s expenditure in 2013. The $78,383 spent on agistment should be ignored, as the plaintiff’s father deposed he did not charge agistment. Further, the invoice in this regard was a notional one and did not reflect ongoing expenditure, and ought be excluded.[57]
[57]T97
288 It was submitted the repairs and maintenance of the pigsty/yard of $12,190 was an unusual expense, as was the substantial increase in the cost of fodder to $32,779, when previous years that expense was less than $5,000.
289 On this analysis, it was submitted that the partnership in fact made a profit in 2012/13 of $80,000 rather than a $43,000 loss. That profit should not be split with the plaintiff’s wife given the application of Husher v Husher.[58]
[58]T98; (1999) 197 CLR 138
290 Therefore, the plaintiff had not suffered the requisite loss, as his income of $80,000 exceeded 60 per cent of his “without injury” earnings figure, namely $67,800.
291 Counsel for the plaintiff relied on the different approach taken by Judge Coish in Guthrie v Campion Education (Aust) Pty Ltd,[59] where his Honour held that income from personal exertion under s134AB(38)(a) and s134AB(38)(f) of the Act and s6(2) of the Transport Accident Act 1986 meant income less expenses earned in self-employment.
[59][2009] VCC 1141
292 Counsel for the plaintiff submitted that the logic of Judge Coish in Guthrie[60] was compelling and that his Honour had the advantage of the decision in Alter[61] to consider when he decided Guthrie.[62]
[60]Supra
[61]Supra
[62]Supra
293 Counsel for the plaintiff submitted Judge Coish wanted to make the scheme work smoothly, getting rid of any absurdity or injustice – an approach recently taken by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[63] It was submitted there was a fairness about his Honour’s approach.
[63]T123; (2013) 303 ALR 64
294 It was submitted the use of the word ‘proceeds’ means profit, because if there is no profit, there are no proceeds.[64]
[64]T123
295 In my view, the approach taken by Judge Coish is fairer and a more realistic figure upon which to base the required comparison. Expenditure is a prerequisite for a person’s ability to earn and should be taken into account when looking at income in a real sense.
296 As Judge Coish explained, it is necessary to compare like with like. This will only be achieved in the case of the plaintiff who has been a wage earner but is now self employed only, if his income before tax without injury is compared to his income before tax after injury such income being his earnings after deduction of relevant expenses.
297 The comparison then is of the without injury earnings of $67,800 and a partnership loss of $43,000. On this basis the plaintiff has clearly suffered the requisite loss.
298 I am satisfied that the plaintiff is doing his best as a pig farmer, exercising his full capacity in suitable employment.[65] Many of the tasks the plaintiff previously performed on the farm are beyond the capacity of his lumbar spine, as Mr Jones described and he has to modify and pace his activities.
[65]T131
299 Counsel for the defendant chose not to argue the plaintiff’s capacity for suitable employment outside the present partnership arrangement. It was submitted the plaintiff had chosen not to rehabilitate in any way in any other field and the partnership was the avenue he had chosen to go down.[66]
[66]T94
300 In any event, I am satisfied that the plaintiff does not have the capacity to earn in excess of $67,680 in other more sedentary work, given his pain and restriction and his lack of any clerical or office skills, or experience in those areas.[67]
[67]T131
301 Therefore, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of forty per cent.
302 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
303 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
304 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[68] and Advanced Wire & Cable Pty Ltd v Abdulle.[69]
[68][2009] VSC 454 at paragraph [147]
[69][2009] VSCA 170
305 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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