Hayes v National Foods Milk Limited and QBE Workers' Compensation (Vic) Ltd
[2012] VCC 777
•5 June 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03087
| STEPHEN HAYES | Plaintiff |
| v | |
| NATIONAL FOODS MILK LIMITED | First Defendant |
| and | |
| QBE WORKERS COMPENSATION (VIC) LTD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 14 and 15 May 2012 | |
DATE OF JUDGMENT: | 5 June 2012 (Revised) | |
CASE MAY BE CITED AS: | Hayes v National Foods Milk Limited and QBE Workers’ Compensation (Vic) Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 777 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious
LEGISLATION CITED – Accident Compensation Act 1985; ss.134AB(16)(b), 134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendants | Mr P Elliott QC with Mr J Batten | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant from 2005 and in particular, on 20 May 2008 (“the said date”) until February 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(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 application 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 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering 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”.
10 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.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 The plaintiff relied upon two affidavits and he was cross examined. Further, he relied on an affidavit sworn by his daughter Jamie Lee Hayes on 19 September 2011. 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
13 The plaintiff is aged fifty-three, having been born in October 1958. He is a widower, his wife having died in 2007. He has three adult children.
14 The plaintiff attended high school to Year 11, struggling with basic subjects. Upon leaving school at eighteen, he worked at his father’s hotel for eighteen years. Thereafter, he worked in a number of casual jobs in factories, on building sites, as a storeman and as a forklift driver.
15 The plaintiff and his wife then moved to the Warrnambool area, where he worked for the first defendant for the next eleven years.
16 The plaintiff suffered a back injury in or about 1988 from which he believed he had recovered. In cross examination, he could vaguely remember bits and pieces of what happened at that time. He could recall seeing doctors. thereafter. He disagreed that he had really had intermittent back pain since then. He did not really have much trouble with his back after 1990 until around 2005.
17 In or about late December 2004, whilst working for the first defendant, the plaintiff twisted his left knee whilst walking down stairs in the filler room. He suffered a medial meniscus tear which was subsequently repaired by arthroscopy by Mr Mladenovic, orthopaedic surgeon.
18 The plaintiff continued to see his doctor throughout 2005 and 2006 in relation to his knee.
19 The plaintiff went ahead with the left knee surgery although WorkCover were not prepared to pay for it. He then saw Stringer Clark and a claim for medical expenses was accepted. The plaintiff had two weeks off work in relation to this injury.
20 The plaintiff has had only the one knee operation. He saw Mr Sundaram for his right knee, but he did not operate.
21 In cross examination, the plaintiff said his knees now seem to be alright. They ache occasionally, but he thought that was probably more to do with age.
The Injury
22 The plaintiff commenced work as a filler with Bonlac in about 2000 and continued with the first defendant in this role when it took over in around 2005.
23 Operating a filler was a very demanding job and most of the time the plaintiff was on his feet and under constant strain. Around the middle of 2005, he felt that work on this machine was taking its toll on his back. At first, the plaintiff felt a niggle and slowly over the next couple of years, his pain worsened
24 The plaintiff could remember talking to his doctor about his back at that stage. Possibly the plaintiff could have told Dr Olesen his back was stirred up when he jarred his right knee, as was set out in a note of 31 July 2006, but honestly the plaintiff could not recall.
25 In cross examination, the plaintiff agreed that before the incident he did not have a great deal of treatment for his back. It could be right that he did not see anyone else at the Warrnambool Medical Clinic about his back until the incident, save for Dr Olesen in July 2006.
26 Around 2006, the plaintiff reported to his manager that he was having problems doing his work. It was not until about a year later that the plaintiff was transferred to work which involved operating the blow moulder machine which made bottles. By this time, however, the plaintiff was in constant pain and finding it extremely difficult to get up and go to work. By the end of the day, the pain was almost unbearable.
27 However, the plaintiff was desperate to stay at work. His wife was critically ill with cancer and he was concerned about her and the future for their children.
28 The plaintiff was cross examined about his attendances at Warrnambool Medical Clinic with Dr Olesen around the time of the incident. During 2007 and into February 2008, there were problems noted with the plaintiff’s right shoulder. He could have made such complaints but he could not recall. That was a few months after his wife died so he was a little vague on things at that time.
29 During 2008, when the first defendant’s plant shut down for fourteen days, the plaintiff was engaged in very heavy work.
30 On or about the said date, the plaintiff was assisting in moving plywood cupboards which were heavy and awkward. Whilst doing so, he felt a sharp stabbing pain in his lower back (“the incident”).
31 The plaintiff has never recovered from this back injury.
32 The night of the incident, the plaintiff was in awful pain. He got up the next morning with a great deal of difficulty. He went to work and reported the incident to his supervisor. The plaintiff continued working.
33 The pain persisted, however, and a few days later, the plaintiff attended Dr Griffith, the work general practitioner, who prescribed anti-inflammatory and painkilling medication and referred the plaintiff to a physiotherapist.
34 The plaintiff initially had physiotherapy treatment from Mr Hill at Western District Physiotherapy and later, in November 2008, he received treatment for a couple of months from another physiotherapist, Mr Zeunert.
35 After rehabilitation, the plaintiff returned to work and was told he would be unable to work as a filler or blow moulder. Dr Griffiths told him he had to do something lighter. A work site assessment was carried out, after which it was agreed the plaintiff would work as a line forklift operator.
36 The plaintiff subsequently spent most of his time driving a forklift and working in the warehouse. He found the work difficult when he was not on the forklift, as walking around on the concrete seemed to aggravate his back pain. He also found it difficult climbing on and off the forklift and he was often asked to help lift something or remove products from the pallet.
37 During 2008, the plaintiff attended the Warrnambool Clinic for problems unrelated to his back that led to a colonoscopy. He also attended Dr Griffiths between May and October 2008.
38 In late 2008, the plaintiff stopped seeing Dr Griffiths because he was keen to get back to his normal duties. Further, there was talk the plant was in trouble and there would be redundancies and people would be put off. The plaintiff wanted to get back to normal duties as it would increase his chances of keeping his job.
39 During this period, the plaintiff’s pain persisted. He was coming home in pain and would collapse into a chair and literally not be able to move for a couple of hours.
40 Further, the plaintiff was sleeping badly and he was waking during the night in pain. His wife had died by that time and the only thing that kept the plaintiff going was his responsibilities to his children.
41 The plaintiff was treated at the Warrnambool Medical Clinic for potential melanoma in 2009 and during that year he tried to stop smoking. He also underwent blood tests.
42 The plaintiff tried not to have any time off work at all after the incident, but he might have had the odd sick day off, but had never had certified time off.
43 By January 2010, the plaintiff was worried he would not be able to continue with work. There had been a number of redundancies at the Cobden plant and he felt anyone working on light duties would be the first to go, so he did not take any time off despite his pain.
44 The plaintiff pushed himself and continued to work in the warehouse as a forklift driver and was doing so when he was eventually made redundant on 2 February 2010. At that time, he was almost at the point of resigning.
45 In cross examination, the plaintiff agreed he had never received any WorkCover payments for his back because he had tried not to take any time off work. He was not sure whether he had ever been certified by a doctor that he was totally unfit for work. He agreed Dr Griffiths certified him fit for full time modified duties.
46 Whilst in May 2009 the plaintiff was certified the plaintiff fit for normal duties, he was cleared to work on a forklift, the job he was then doing anyway. The plaintiff continued to experience a fair degree of pain whilst carrying out this work. He did things and there were then consequences.
47 The plaintiff described how he struggled just getting in and out of the cabin of the forklift all the time and he struggled to keep his job. He continued working without complaint. The issue of redundancies was in the air. He tried his best to get back to full time work, like normal duties, as he could not afford not to work.
48 The plaintiff continued to work full time as a forklift driver until he was made redundant. However, he was being paid as a filler operator which was probably an extra $7 per hour. The plaintiff was then taking home $1,140 per week. Whilst not sure of his current gross wage, the plaintiff presently takes home between $800 and $900 per week.
49 Because of his age and his back complaint, it was never going to be easy for the plaintiff to find another job. He did not have much choice in taking the redundancy and did not put in for it. It was the first defendant’s decision and the plaintiff wanted to continue working. The plaintiff was upset about being made redundant. He felt it was only because of his back condition and he considered that unfair.
50 The plaintiff did not seek much treatment following the incident whilst working for the first defendant because he wanted to keep his job. The plaintiff agreed that he could not be sacked because of his back condition but he could be made redundant because of his injuries.
51 The plaintiff agreed he had sought legal advice but he did not bring proceedings for unfair dismissal.
52 When the plaintiff was made redundant, the first defendant’s plant manager told him that whilst he was not going to give the plaintiff advice, he suggested the plaintiff see Stringer Clark, because he thought the first defendant had a case to answer.
53 After being made redundant, despite his back pain, the plaintiff looked for work in the newspapers and with employment agencies. Eventually, through Skilled Employment Agency, he managed to obtain work at Dairy Farmers cheese plant on a part time causal basis. The most hours he worked in that job was thirty two in one week in August 2010.
54 This job involved checking the cheese as it went past on the line. The plaintiff had to unwrap the cheese, cut the plastic and then turn the cheese over, but there was no lifting involved in his work.
55 The plaintiff was only allocated ten days’ work in total by Skilled. He was advised there was no further work for him at Dairy Farmers. The plaintiff later learnt this was not because the work dried up but because Dairy Farmers, who are owned by the first defendant, had become aware of his injuries.
56 The plaintiff was cross examined about his attendances at Dr Olesen’s clinic in 2010.
57 On 2 February 2010, the plaintiff advised Dr Olesen that he was not happy about the redundancy and was pursuing legal advice via Stringer Clark.
58 There was treatment for unrelated matters in February, March and July. On 24 August 2010, the plaintiff complained to Dr Jo of chronic backache and was then prescribed Tramal.
59 In cross examination, the plaintiff explained that he started taking Tramal since working with Harvey Norman because up until then he could not really afford it, so he was just using Panadol.
60 On 9 September 2010, Dr Olesen noted the plaintiff was starting a new full time job at Harvey Norman warehouse the following day.
61 The plaintiff deposed that due to his financial situation, he found full time work, starting at the Harvey Norman warehouse in about October 2010. He took the job because he had warehouse experience. He was a hopeless student and found learning anything at school extremely difficult.
62 At the end of 2010, the plaintiff was only just coping most days with the use of Tramadol. He usually took two tablets, but on better days he took one.
63 When the plaintiff saw Dr Jo on 11 October 2010, he told him he was managing with taking Tramadol and by the time he had finished work and got home at the end of the day, he had quite severe pain.
64 In cross-examination, the plaintiff explained that losing weight around that time had not stopped his pain entirely but had lessened it a bit.
65 Over the following months, Tramal continued to be prescribed.
66 As of December 2010, the plaintiff felt the most work that he could comfortably do was about twenty four hours a week. When he came home from work after a day undertaking storeman duties, he was “absolutely knackered”, partly as a result of the constant pain and partly as a result of throughout the day trying constantly to avoid activities that would aggravate his back pain.
67 The plaintiff has only ever done manual work and had grave concerns about how long his body would be able to cope with the warehouse work. That was particularly concerning, as he doubted he would be capable of retraining for a clerical or office position.
68 In cross examination, the plaintiff confirmed he worked thirty eight hours per week at Harvey Norman. The work as a storeman was fairly manual. He was required to move a lot of fridges and other whitegoods, televisions and furniture using a trolley. He was not dealing much with customers. When goods were delivered, he had to take them to the warehouse. He put items as large as a 42-inch television set into customers’ cars at the back of the warehouse.
69 In re examination, the plaintiff explained that he was not moving heavy items like refrigerators on a continuous basis.
70 In December 2010, just after he started the Harvey Norman job, the plaintiff deposed in his first affidavit that he went to the tip every couple of weeks to get rid of the rubbish so he did not have to push the wheelie bin out weekly. His son put the rubbish on the trailer, then took it off.
71 The only real social interest the plaintiff had at this time was watching Collingwood. Since commencing work in the warehouse, the plaintiff had decreased even further his participation in any active social or recreational sports or pastimes.
72 As of December 2010, the plaintiff had pain in his low back all the time and was acutely aware of it immediately when he woke in the morning. He had a deep seated ache in his low back constantly and it took him ages to get going in the morning. It was only after the plaintiff had a shower and had a bit of a stretch that he could get mobile.
73 The plaintiff’s pain level increased when he was in the car and was aggravated when doing something minor like leaning over and washing the dishes.
74 The plaintiff’s sleeping routine was shocking, waking every night with pain in his back and cramps in his legs. He spent a lot of time in his bedroom watching boring television on a large screen.
75 In cross examination, the plaintiff confirmed that his sleep is still affected and he would be really lucky to get six hours’ sleep a night. He had trouble sleeping after his wife passed away. He has never been prescribed sleeping tablets.
76 The plaintiff could not stand in the one spot for very long and consequently, could not queue to go to the pictures or the football. In any event, he did not go to the pictures because he could not sit comfortably for longer than half an hour. He could not recall when he last sat watching television for an hour.
77 In cross examination, the plaintiff agreed his sitting tolerance had improved marginally, but he still does not sit in the one spot for a prolonged period of time. He normally gets up and walks around because he gets uncomfortable in the legs and gets a cramp.
78 The plaintiff tried to play golf but usually had to give it away after 9 holes. As of 13 February 2012, when he swore his second affidavit, the plaintiff had recently tried playing golf but really struggled. He was in a lot of pain the next day and was not intending to play golf again, which was a real disappointment for him.
79 The plaintiff confirmed that three months ago he played golf at Peterborough, but after 4 or 5 holes, he just gave it away. He has never been a member of a golf club.
80 For most of his life, since his twenties, the plaintiff enjoyed water skiing, Before the plaintiff was injured, he and is children went water skiing, weather permitting, on the weekends to a local river where there was a ski run. They went out for an hour, or sometimes half a day, maybe once a weekend. The plaintiff would usually have two skis for five minutes. He and his family sometimes enjoyed a barbecue afterwards
81 The plaintiff’s skiing since his injury was now reduced to driving the boat for his children. He even struggled in the boat because of the jarring feeling when the hull hit the water.
82 The plaintiff sold the boat a couple of months ago. His children still go water skiing but do so in friends’ boats. After his injury, the plaintiff’s son towed the boat. The plaintiff did not put it on and off the trailer. The plaintiff does not use the boat for fishing.
83 The plaintiff agreed there was less reason to have a boat with his children going off to water ski with other friends. He sold the boat because it “no longer got used that much”.
84 When he was young, the plaintiff was a very keen sportsman, playing basketball, football, golf and social tennis. As his children are now grown up, he had no doubt that but for his back injury, he would be involved in playing social sport. The plaintiff had tried to join in a social game of lawn bowls and adjusted his stance and tried to keep his back straight but it still hurt.
85 The plaintiff explained that he was toying with the idea of playing bowls at the club in Timboon where he had a couple of social games, playing barefoot bowls. He enjoyed playing but he suffered with low back pain afterwards.
86 The plaintiff and his wife used to go ten pin bowling with their children when they were young. The plaintiff tried ten pin bowling in 2009 and hobbled around in pain for the next two or three days.
87 The plaintiff tried to walk his dog but he found it a constant strain. If the dog pulled on the lead, the plaintiff’s back immediately flared-up. By the time the plaintiff arrived home, his back was aching more than usual and he had left leg pain and a numbing sensation down to his feet.
88 The plaintiff had trouble with basic day-to-day activities like putting on his shoes and socks. He had to hold onto a bench to pull up his trousers and lean against a wall when washing himself.
89 In cross examination, the plaintiff confirmed he dresses with discomfort, sitting on the bed. When he is washing himself, he puts his leg on the wall of the shower, propping himself up so he does not fall over. He still has difficulty leaning forward to do the dishes.
90 The plaintiff had had to learn now how to cope with a lot of aspects of his life. He could not clean the house all in one go but did so one room at a time.
91 The plaintiff recently deposed that on the weekends, he does not do much other than a little housework. He does the mowing with a ride-on mower.
92 In cross examination, the plaintiff agreed he is able to do his housework and he does his own cooking. He has two acres of lawn which he mows using a ride-on mower. He has never been a gardener.
93 The plaintiff has five grandchildren, aged eight to four months, with whom he would love to have more interaction, but he is limited in what he can do because of his back.
94 The plaintiff has lived in the Nullawarre area for thirteen or fourteen years. He is not involved in local activities but he might go to home games occasionally when his son plays football. The plaintiff very occasionally goes to a café or places like that. He has a drink with his son in his garage. He can do his own shopping.
95 The plaintiff does not really have any other social activities and just the other day he thought he was becoming a hermit.
Current Work
96 The plaintiff has continued to work even though he is in pain, as he cannot afford to live on a Centrelink pension.
97 Since November 2011, the plaintiff has worked at TNT Monday to Friday, starting work at 6.00 am and finishing between 2.30 and 4.00 pm. He is supposed to work thirty eight hours per week but he sometimes works more hours if he has extra parcels to deliver.
98 The TNT depot is in Warrnambool, thirty three kilometres from the plaintiff’s home.
99 The plaintiff applied for the job at TNT whilst still at Harvey Norman because he thought that job was more suitable for him as at Harvey Norman there was far more lifting, unloading two furniture trucks a week.
100 Port Fairy is about the furthest away from Warrnambool that the plaintiff has to travel for work. He would probably do around three to four hours’ driving in a work day of eight to nine hours.
101 The plaintiff’s current job is a lot kinder on his body than the work at Harvey Norman. Anything that is too heavy for him to lift at TNT goes on the forklift. Some items are already on the pallet so they go straight onto the forklift. If there is no forklift at the other end, the plaintiff gets someone to lift with him. It is not often there is a package over 25 kilograms and the plaintiff really tries to avoid lifting anything weighing 20 kilograms or more himself. The truck is at a good height for loading.
102 The plaintiff drives his car to the depot and then he does two delivery rounds in a smallish manual Hino truck and has to climb in and out of the cabin. The truck is comfortable. At one time, the longest the plaintiff would be driving would be fifteen to twenty minutes.
103 He loads up and does a Warrnambool delivery and then comes back to the depot at about 11.00 am and then delivers to the Port Fairy area. He delivers a variety of articles and has a set run.
104 The items the plaintiff is required to lift or move around are a lot lighter than those at Harvey Norman where he agreed he agreed he was manoeuvring heavy refrigerators and other items. Now if there is a heavy item to lift, it gets put on a forklift, whereas at Harvey Norman the plaintiff had to manoeuvre it around himself.
105 The plaintiff plans to continue working in his current job as long as he possibly can. One of the main reasons he went to see Mr Carey earlier this year was to find out if there was anything he could do to prolong his work life. The plaintiff found sitting around when he was redundant for seven months, his back started to seize up. It was better to keep moving. That may cause discomfort but it was either a case of “use it or lose it”.
Medication
106 The plaintiff deposed that he initially could not afford medicine. Because of his redundancy, he was not entitled to Centrelink benefits and consequently did not have any money. He could barely afford to pay the rent and look after his one child living at home.
107 Currently, the plaintiff’s medication consists of Tramal, 100 milligrams slow- release in the morning, prescribed by Dr Olesen.
108 The plaintiff has not been bothered claiming the cost of medication on a regular basis as he often finds it is too much hassle with the insurer. He does not think there is any way he could get through a days’ work without medication.
109 There was a period when the plaintiff tried taking medication only on the days when he was working. He found that even a day without medication was too painful and he had to go back to taking it daily.
110 In cross examination, the plaintiff confirmed he takes one Tramal in the morning and that has been his regime since it was first prescribed. He pays for it himself He might take two tablets a day just depending on the pain when he gets home from work.
Recent Treatment
111 The plaintiff has not had physiotherapy since January 2009. He has not done stretching exercises for a while but does them every now and again when he remembers to. He has never had hydrotherapy, nor has anyone suggested it.
112 In January 2012, Dr Olesen thought that the plaintiff might benefit from seeing a back specialist who was not involved in the legal process.
113 The plaintiff was referred to Mr Carey, an orthopaedic surgeon, to see whether there are any further treatment options. Mr Carey was the first specialist to whom the plaintiff was referred. He had seen two specialists for his knee problems.
114 The plaintiff agreed Mr Carey did not offer any treatment advice until he had seen the MRI scan.
Video Surveillance
115 In cross examination, the plaintiff essentially confirmed his level of pain, discomfort and restrictions deposed to in his affidavits. He agreed he was unable to bend and flex his back and do things of that nature.
116 The plaintiff was then shown 53 minutes of film taken on Saturday, 17 December 2011 at his home in Timboon Road, Nullawarre. The plaintiff could recall his activities that day.
117 Initially, the plaintiff was shown from 11.45 am picking up a number of items on the veranda in preparation for cleaning the vinyl cladding on the front of his house. It was necessary to clean the house as it got dirty from the dust thrown up by passing milk tankers.
118 The plaintiff agreed he was shown moving a ladder, picking up a chair and then wheeling a barbeque along the veranda. He picked up a number of items, including a gas bottle, a car jack, a Karchur pressure washer and a pressure bottle containing weed spray, then walked down a couple of steps and placed the various items on the ground. He also moved a wooden bench away from the wall on the veranda. These activities were performed freely and with no apparent difficulty.
119 The plaintiff explained that these various items had been dumped on the veranda by his adult children.
120 For about two minutes from 11.58 am, the plaintiff used a broom to sweep the front veranda. He did so without apparent difficulty.
121 At 12.06 pm, the plaintiff then started cleaning the front of his house with a long handled cobweb broom. For about five minutes he cleaned above head height, at times above shoulder height and also at waist and below waist height.
122 The plaintiff then commenced cleaning the front of the house with a high-pressure hose with an attached nozzle. He agreed he used the hose like a broom over his head at various times, He also cleaned at waist height and at times with his back slightly flexed whilst cleaning the lower part of the walls. He was able to stand in the one spot for several minutes whilst hosing.
123 The plaintiff stopped hosing the house at about 12.41 pm, when he received a call on his mobile. He then resumed hosing, holding the phone in his hand. At times when not cleaning, he bent down picking up further items whilst on the phone. He sat down and continued talking from 12.51 pm until the film ended nine minutes later.
124 The plaintiff agreed he was shown in the film bending on many occasions. He was holding the hose in an outstretched position for some time whilst standing.
125 In re examination, the plaintiff explained that after breakfast that morning, he had taken a tablet at about 9.00 am. He only cleaned the front of the house and he still had to clean the rest as he had not felt up to finishing it that day. There was no further cleaning beyond what was shown on the film.
126 Probably before he was injured the plaintiff would have cleaned his house two or threes times a year and it would take him a couple of hours to do the whole lot. Now he only cleans the house about once a year.
127 When asked about the difference between washing dishes and what he was shown doing on the film, the plaintiff explained that when washing dishes he stands over the sink for five minutes, which he finds a lot harder to do than actually bending and quickly picking up something.
128 The plaintiff would not say he was overly active on the film. Unfortunately, what he was shown doing had to be done and he was the only one to do it, so he did. The activity did cause him pain while doing it and afterwards, but it was one of the things that had to be done. It was a lot easier using a high pressure hose than a hose and a broom. He would not say he was breaking any records washing his house down in the manner shown, which was the easiest way he could it.
Lay Evidence
129 The plaintiff’s daughter, Jamie Lee Hayes, who is aged twenty, swore an affidavit on 17 September 2011. She then lived with the plaintiff at Nullawarre.
130 The plaintiff was then able to work full time at Harvey Norman but she saw it took a toll on him. He took painkillers before he went to work in the morning.
131 By the time she saw the plaintiff when he got home from work, he was generally tired and grumpy and was often in a bad mood due to back pain.
132 Ms Hayes noted the plaintiff’s pain seemed to worsen at night, when the painkillers wore off. He tended to recline in a chair and watch television and when it was time for him to get out of the chair, he struggled. He seemed to be like an old man and there would always be plenty of grunting.
133 The plaintiff struggled to vacuum, mop and sweep around the house. He tried but did not do it often. She sometimes helped him. She did a fair bit of cooking for him when she was home.
134 The plaintiff’s sleep seemed to be poor. Ms Hayes often heard him getting up during the night and he complained a lot about his back cramping.
135 Before his injury, the plaintiff used to enjoy walking the dog regularly, but Ms Hayes now does so the majority of the time. The plaintiff also used to walk with Ms Hayes, her sister-in-law, and her sister-in-law’s children to the local playground. He does not do so any more and Ms Hayes cannot remember the last time he did. In any event, this stopped about six months ago, as Ms Hayes’ sister-in-law changed jobs, but the plaintiff was certainly not walking with them at that time.
136 After his injury, the plaintiff tried to play golf with his son, Nicholas, and others at Peterborough. However, the plaintiff no longer does so. In fact, the last time Ms Hayes could recall the plaintiff playing was in late 2010. When Ms Hayes used to go with them on occasion, she noticed the plaintiff would really struggle to play.
137 Before his injury, the plaintiff used to enjoy water skiing. He now only drives the boat, and even then a lot of the time he just wants to sit on the riverbank.
138 Watching the plaintiff walk, Ms Hayes thought he seemed to walk heavier on one foot and he complained of having numbness. On one particular occasion, she noticed that the plaintiff did not seem to be able play much with his grandchildren. Living with the plaintiff, Ms Hayes got the impression he was in pain a lot of the time.
Medical Evidence
139 The plaintiff received physiotherapy treatment from Jason Hill at Western District Physio. Mr Hill diagnosed acute low back pain. He last treated the plaintiff in May 2008.
140 Mr Ian Zenuert, physiotherapist, first treated the plaintiff on 28 November 2006. He saw the plaintiff a total of six visits until 9 January 2009.
141 The plaintiff has received treatment from Dr Olesen at the Warrnambool Medical Clinic.
142 Dr Olesen reported on 4 May 2010, detailing the plaintiff’s previous medical history. Dr Olesen noted that the exacerbation of a chronic back problem mentioned solely in the consultation of 31 July 2006, settled with conservative therapy.
143 Dr Olesen reported that since August 2006, there had not been any further consultations regarding work-related injuries. As far as Dr Olesen was aware, the plaintiff continued to perform his normal duties at work in an unrestricted capacity from August 2006, henceforth on a full time basis. Furthermore, there had not been any consultations indicating social, domestic or recreational restrictions due to any work-related injury.
144 Dr Olesen reported on 18 May 2011. He advised, apart from chronic low back pain managed with Tramal, 100 milligrams, there had been no other physical issues.
145 In a report of February 2012, Dr Olesen noted that the plaintiff had been seen at the clinic on four subsequent occasions since he last reported. The plaintiff presented for unrelated matters on 22 June and 24 August 2011. On the latter date, prescriptions for chronic stable low back pain were renewed. There was a further unrelated attendance on 30 September 2011.
146 The plaintiff was seen on 17 January 2012 for prescriptions and discussion of recent correspondence relating to the independent medical examination that had been assessed by Stringer Clark for the plaintiff’s low back symptoms.
147 Dr Olesen reported that at the time of his most recent consultation, the plaintiff was noted to be dressed in his TNT work gear. The plaintiff stated he had left Harvey Norman and was now working full time as a delivery driver for TNT. At that consultation, it was agreed that the plaintiff might benefit from the opinion of a back specialist acting in a treating capacity and an appointment was made for him to see Mr Carey.
148 Dr Olesen noted that since his last report, the plaintiff’s back symptoms had remained stable with a modest daily requirement of one Tramal, 100 milligrams.
149 Dr Griffiths from the Curdie Street Clinic reported on 4 December 2010 that the plaintiff presented on 29 May 2008, a week after injuring his back moving some cupboards at work.
150 Dr Griffiths noted the plaintiff had been treated for two disc prolapses twenty years earlier. The plaintiff had lumbar disc disease and he was put on modified duties and referred for a CT scan. Dr Griffiths last saw the plaintiff on 20 October 2008, when he was still on modified duties because of back pain.
151 Dr Griffiths also saw the plaintiff on 13 June, 11 July and 12 August 2008.
152 Mr Mladenovic, orthopaedic surgeon, from South West Health Care wrote to Dr Olesen in April 2005 thanking him for referring the plaintiff with his left knee problem. There was a surgical admission on 25 May 2005 for the left knee.
153 Mr Sundaram, orthopaedic surgeon, wrote to Dr Olesen in July 2006 after the plaintiff had been referred to him in relation to his right knee. He noted the plaintiff was suffering from back trouble at that time.
154 Mr Carey saw the plaintiff on referral from Dr Olesen on 29 February 2012. Mr Carey reported that the plaintiff’s history was similar to that given to Mr Schofield.
155 The plaintiff felt he was getting worse while sitting at home, having been made redundant by the first defendant and he felt better having lost twenty kilograms and in particular, since he started working at TNT as a courier driver in late 2011.
156 The plaintiff’s situation now was that he had a chronic low backache. He did get some right leg symptoms down to the foot and toes when his back was bad, but his left leg was almost never affected.
157 The plaintiff described his sleep as “shit” because of his back and he felt he was unable to do anything like the exercise he did beforehand, including basketball, water skiing and golf. The plaintiff battled on with home duties.
158 On examination, the plaintiff had some restriction and irritability of the lumbar spine motion in all directions because of low back pain and there was lumbosacral tenderness. He had no evidence of neurological irritation. On the other hand, the plaintiff had altered sensation over the whole of the right lower limb distal to the groin and global weakness around the right foot and toes. The plaintiff had no calf wasting so Mr Carey did not think that constituted a radiculopathy.
159 Mr Carey examined the 2008 CT scan which he noted showed terminal degeneration with retrolisthesis, loss of disc height and intradiscal gas at L4-5 with some minor degenerative changes elsewhere.
160 After discussion, the plaintiff, having indicated his desire to see if there was anything further that may help, Mr Carey arranged some x-rays and an MRI scan. He advised that he was happy for the plaintiff to continue as he was at home, socially, and particularly at work until the investigations were to hand.
Medico-Legal Examinations
161 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 4 February 2011.
162 The plaintiff told him that his work with the first defendant was described as light duties but much of the work involved the type of stresses that caused back pain over the next eight months, including continuing to drive a forklift.
163 Mr Schofield noted the plaintiff was made redundant in February 2010, after which he was able to obtain a much lighter job working for Harvey Norman in the store room.
164 The plaintiff complained to Mr Schofield of low back pain, varying from day to day but always worse after a day at work. He got cramps in both legs but the back pain was worse.
165 On examination, the plaintiff had a loss of normal lumbar lordosis and tenderness to the left of the midline at the lumbosacral level. Flexion was to 70 degrees, extension was painful to 20 degrees, and other movements were restricted. Straight leg raising was to 90 degrees bilaterally with reproduced pain. The plaintiff had normal power, sensation and pulses in his lower limbs. There was no wasting of either leg and the only neurological change was the reduction of the right ankle jerk.
166 Mr Schofield noted he saw a CT scan of 2008 which showed a central prolapse at L4-5.
167 Mr Schofield noted the original injury the plaintiff suffered was a prolapse at L4-5. The plaintiff returned to work after about six months and continued doing a very similar type of physical work for the hotel industry until 1999. He then continued to perform physical duties working for the first defendant until 2008, following which he continued to perform light duties until dismissed in February 2010.
168 On the basis the plaintiff returned to his work at the hotel six months after the injury and then continued to do physical work, albeit with probable minor pains until 2008, Mr Schofield did not believe the original injury had played any significant role in the current one. Therefore, he disagreed with Mr Gale’s opinion.
169 Mr Schofield thought the history of injury and the incident was consistent with the development of acute lumbar disc prolapse. He noted the CT scan in March 1990 was reported as showing a central posterior bulge of the disc encroaching upon the dura without specific encroachment upon the nerve roots. The CT scan in 2008 reported moderate facet joint degenerative change at L3-4, L4-5 and lumbosacral levels, and there was a small broad-based bulge at the disc at the level of L4-5.
170 Mr Schofield thought it therefore more likely than not that the injury occurred at the L4-5 level, which had previously healed, on the basis the plaintiff was able to perform physical duties for the previous seventeen or eighteen years.
171 Mr Schofield diagnosed a lumbar disc prolapse suffered following an injury in the incident. He thought, as a consequence of the physical injury and impairment, the plaintiff was permanently restricted in relation to physical work activities, being limited in the degree of lifting and bending he could do. He considered, as a result of his physical injury and the impairment of the plaintiff’s back, the plaintiff did not have the capacity, on a permanent basis, to perform his pre-injury duties.
172 Mr Schofield thought the plaintiff did have the capacity to perform suitable employment and was able to perform suitable light physical duties on a full time basis. In his view, the plaintiff was restricted in relation to social, domestic and recreational activities, noting he had not been able to return to some sport and had reduced his golf activities.
173 Mr Schofield advised further treatment would depend on an up-to-date investigation to form a diagnosis. Therefore, he considered the plaintiff needed an x-ray of the lumbar spine, including erect functional views and an MRI scan. He thought the plaintiff’s prognosis remained guarded.
174 Mr Huffam, orthopaedic surgeon, examined the plaintiff on 24 April 2012.
175 The plaintiff told him that around the middle of 2005, while performing work requiring a lot of bending, he started to get pain in his lower back. He continued working but the pain became worse. He spoke to a plant manager about being put on another machine, but initially his work was not changed. In 2008, the plaintiff was transferred to operating a blow moulding machine which was considerably easier on his back, and he continued that work until the date of the incident.
176 The plaintiff told Mr Huffam that following the incident he was transferred to operating a forklift and put on modified duties, continuing that work until he was made redundant on 2 February 2010.
177 The plaintiff looked for work until September 2010, when he obtained a job at Harvey Norman with work involving more trolleying than lifting, which he coped with until November 2011, when he started work with TNT. His current job required him to drive a truck locally in Port Fairy and Warrnambool. The truck was loaded with a forklift and mostly unloaded with one. The plaintiff was able to cope with that work but he did have back pain all the time, with some radiation down the right leg and some numbness in his right foot.
178 On physical examination, the plaintiff stood with a little flattening of the lumbar spine. There was no tenderness. Lateral flexion of the back and extension were limited, although the plaintiff had an almost full range of flexion.
179 On neurological examination, there was a little weakness of extension of the big toe but no other impairment of power in the lower leg and there appeared to be some diminution in sensation down to the dorsum of the right foot and the outer aspect of the right leg.
180 Mr Huffam noted there had been a CT scan on 25 May 2010, but the film was not available. He made reference to the March 1990 CT scan, which Mr Schofield had reported as showing a central posterior disc bulge pressing on the dura without specific encroachment on the nerve roots.
181 Mr Huffam noted the 2008 CT scan reported moderate facet joint degenerative change at the L3-4 and L4-5 levels and a small broad-based bulge at the disc at L4-5.
182 Mr Huffam thought that the diminished sensation on the top of the plaintiff’s right foot and the outer side of the leg indicated a mild radiculopathy affecting the fifth lumbar nerve root on the right side.
183 Based on the information made available to him and his examination of the plaintiff, Mr Huffam considered the plaintiff would have sustained an injury to the L4-5 intervertebral disc in 1989 but he made a complete clinical recovery, although the disc would not have been restored to complete normality.
184 The plaintiff then sustained aggravation of that area of his lower back performing work requiring him to stand in a bent position in 2005 and a further more severe injury in the incident.
185 Mr Huffam accepted the plaintiff had had pain in the back since then. The plaintiff had marked limitation of movement and some neurological signs indicating involvement of the fifth lumbar nerve root on the right side. He noted the plaintiff continued to have back pain but was coping with work with some difficulty.
186 Mr Huffam diagnosed both chronic low back strain working in a bent-over position performing heavy work from mid-2005 and an acute lower back injury in the incident. He thought those injuries had probably been to the L4-5 disc with protrusion of disc material and pressure on the fifth lumbar nerve root causing a radiculopathy to the right leg.
187 Mr Huffam considered the plaintiff had considerable restrictions in relation to any form of work or related activity requiring mobility of his back and heavy lifting. He did not think that the plaintiff had the capacity to do his pre injury work bending over in a bent position. He noted the plaintiff was now permanently unable to play sports such as golf or water skiing.
188 Mr Huffam considered the most important aspect of the plaintiff’s treatment was for him to continue with work within his capabilities. He thought the plaintiff would require analgesic medications and it was possible his back condition would be responsible for premature retirement. He considered the plaintiff could be expected to continue to suffer from considerable disability in his lower back but provided that he kept active with work within his capabilities, there may be little change in his condition within the foreseeable future, although he thought the plaintiff’s back must be regarded as being more susceptible to injury than normal.
The Defendants’ Medical Evidence
189 Mr Hill, physiotherapist, thanked Dr Griffiths on 16 July 2008 for referring the plaintiff. The plaintiff then reported a history of low back pain with prolapse at L4-5 at the age of thirty.
190 The plaintiff told Mr Hill that prolonged sitting, standing and lifting heavy weights were a major aggravating factor. Physiotherapy treatment from Mr Hill involved mobilisation of L4 and L5 segments combined with soft tissue release.
191 Mr Hill noted that the plaintiff’s current role as a blow moulder was considerably easier for his lumbar spine than work as a filler.
Medico-Legal Examinations
192 The plaintiff was examined by Dr Richards and Mr Speck in 1990.
193 Mr Gale also examined the plaintiff on 3 April 1990. The plaintiff told him of an injury at work in 1989 moving full barrels of beer.
194 On examination, the plaintiff had residual symptoms. Mr Gale noted there was significant improvement in the back symptoms but the plaintiff suffered from some aching in the mid lumbar region towards the end of the day, aggravated when straightening up, having bent over, and also aggravated by heavy lifting. The plaintiff was then being treated by a physiotherapist and was not taking any medication.
195 On examination, the plaintiff moved quite freely. There was a full range of pain free movement of the spine in all directions. There was no local tenderness, muscle spasm or palpable deformity in the lumbar region. Neurological examination was normal. Mr Gale had available the CT scan taken in March 1990. He considered, as a consequence of the 1989 incident, the plaintiff had developed low back pain which he thought was likely a musculoligamentous strain and may well have involved also some disruption of an intervertebral disc with later posterior prolapse of disc material.
196 Mr Gale then thought the plaintiff was physically capable of work of a physically light nature, not requiring repeated bending and twisting. He thought the plaintiff would be capable of returning to work after Easter 1990 with a restriction on his work at least in the early months.
197 Mr Gale re-examined the plaintiff on 18 June 2010.
198 The plaintiff told him that since the incident, he had had recurring low back discomfort, compromising work and domestic activities. There was daily pain in the lower back, worsening in the morning, affected by being in the one position for too long.
199 The plaintiff told Mr Gale he had had eight months of physiotherapy with marginal symptomatic improvement and at no stage was referred for specialist medical evaluation and treatment.
200 The plaintiff told Mr Gale of the awkward position in which he worked and that following the incident, repeated crouching, bending and twisting aggravated his back and he was not able to return to his pre injury duties. He was off work for about two months, then returned to driving a forklift, but he was made redundant in 2010, allegedly because of an economic downturn.
201 Since then, the plaintiff had had two brief jobs of a manual nature which significantly aggravated his back discomfort and he was currently unemployed.
202 On examination, there was restricted range of movement of the lumbar spine with forward flexion only 5 degrees at the hips, some minor restriction of rotation to both side, Waddell’s signs were negative and there was no specific tenderness in the lumbar region. There was no neurological abnormality or any wasting.
203 Mr Gale noted the CT scan of June 2008.
204 Mr Gale concluded, as a result of the incident, the plaintiff may have suffered symptomatic aggravation of degenerative changes in the lower lumbar spine area where there were features of degenerative change involving disc and facet joints, in part probably as a consequence of a congenital anomaly of the articulation between the L5 and S1 and in part probably a consequence of the effects of an earlier industrial accident in 1989 and also probably contributed to by the plaintiff’s obesity. He thought the plaintiff’s condition had stabilised.
205 Mr Gale noted it was relevant the plaintiff had the earlier work-related incident with a demonstrated disc abnormality at the same level, L4-5, as currently demonstrated, and the only difference in the radiology was probably that degenerative changes were now seen at numerous levels in the lumbar spine compared to the initial injury of 1989. He noted on imaging results a month subsequent to the incident, the plaintiff had multi-level degenerative changes involving both disc spaces and facet joints, and as a consequence, Mr Gale thought that the plaintiff’s currently assessed level of impairment was largely as a consequence of the incident.
Certificates
206 Following an examination on 29 May 2008, Dr Griffiths certified the plaintiff was expected to be fit for modified duties, diagnosing his condition as lumbar disc disease, noting a previous back injury. Similar certificates were provided following examinations on 13 June, 11 July and 13 November 2008. Dr Griffiths also noted from November 2008 that the plaintiff was fit for modified duties according to IPAR recommendations, save for items 4 and/or 5.
207 On 20 May 2009, Dr Griffiths certified he expected the plaintiff to be fit for normal duties from that date.
Investigations
208 There was a CT scan of the lumbar spine organised by Dr Richards on 15 March 1990. It was reported there was posterior herniation of the L4-5 and L5-S1 intervertebral discs.
209 On 20 June 2008, Dr Griffiths organised a CT scan of the lumbar spine. It was reported there were mild facet joint degenerative changes at the L3-4 and L4‑5 levels and there was a small broad-based bulge at the disc at the L4-5 level.
Compensation Documents
210 The plaintiff lodged a Claim for Compensation on 29 May 2008 setting out he suffered from low back pain after “moving cupboards from filler change room”. He described a similar injury twenty years ago.
Video Surveillance
211 In addition to the 53 minutes of surveillance taken on 17 December 2011 shown, there was also 29 minutes and 44 seconds of film taken on 29 April 2012 in which the plaintiff was filmed seated.
Overview
212 I am satisfied the plaintiff suffered a compensable injury to his lumbar spine, particularly at L4-5, in the incident.
213 Prior thereto, the plaintiff had noticed niggling pain in his back which he reported to Dr Olesen in July 2006 and following which he was taken off duties on the filler machine.
214 Whilst the plaintiff has never put in a claim for weekly payments in relation to the back injury and no payments have been made in relation thereto, liability was accepted for a back condition pursuant to s.98C, following an examination by Mr Gale.
215 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, 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.”
216 No such explanation has been forthcoming in the present case.
217 The plaintiff suffered an injury to his back many years ago in 1988. However, there is no suggestion that he had any significant ongoing problems in relation thereto, thus issues of aggravation do not arise and were not relied upon by the defendants.
218 The issue for consideration is whether the consequences of the plaintiff’s back injury relating to his work and in particular, the incident, are serious and permanent.
219 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… 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.”
220 Relying on the surveillance film, counsel for the defendants submitted that the plaintiff had overstated his level of disability.
221 During that time, the plaintiff was seen bending frequently and then carrying a number of items a short distance. Also later that morning, he was shown standing, cleaning the exterior of his house with a cobweb broom and then operating a pressure hose for some time, holding it at various heights. He was shown standing for a couple of minutes on several occasions with his back slightly flexed, bending forward, carrying out that cleaning.
222 I accept that standing in a set posture with the strong hose would have put strain on the plaintiff’s back – a similar posture to that involved when washing dishes. The plaintiff was however able to maintain this stance for some time without apparent restriction or pain.
223 Whilst I accept the plaintiff was not working at a blistering pace, as his counsel pointed out, and he may have done this cleaning more frequently prior to his injury, the plaintiff did not demonstrate any pain or restriction carrying out various activities, moving freely at all times.
224 I accept that the plaintiff’s affidavits did not “gel” with the film. Whilst the activities shown on film are far less strenuous than the plaintiff’s work activities, had I read the affidavit and not seen the film, I would have been left with a different and inaccurate impression of the extent of the consequences of the plaintiff’s back condition, particularly in relation to his ability to perform daily activities, such as housework, putting out the rubbish, washing himself and dressing.
225 I accept that no doctor mentioned any exaggeration or inconsistencies on examination. Further, the plaintiff’s evidence was supported by his daughter, who was not cross examined. However, she, too, described a level of restriction at home that was inconsistent with the level of the plaintiff’s activity shown on the film and required in the performance of his work duties.
226 Whilst I otherwise found the plaintiff to be a generally credible witness, I do not accept that he suffers from the level of pain and restriction deposed to when one looks at his level of daily activity, particularly his work in recent years.
227 I accept the plaintiff suffers some ongoing pain and restriction that is significant or marked, as conceded by counsel for the defendants, but if this was at the level he described, the plaintiff would not be able to engage in manual work on a full time basis without the ongoing need for substantial medication.
228 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [10]:
“In addition to the plaintiff’s own account of pain, the court must take into account other objective matters of fact and what the evidence showed about the effects of the pain on the plaintiff’s capabilities. Relevant factors in this regard included what the plaintiff did about his pain in terms of medication, rest and seeking treatment and what the objective evidence shows about the disabling effect of the pain.”
229 I do not accept that the plaintiff’s level of activity can be explained as stoicism as submitted by his counsel, who relied in this regard on the plaintiff’s keenness to remain on normal duties when his left knee was aching, as noted by Dr Olesen on 15 March 2005, and that doctor’s note on 15 February 2008, that it was hard to penetrate the plaintiff’s stoicism in relation to his wife’s death.
230 In terms of consequences, counsel for the plaintiff relied largely upon the effect the plaintiff’s back injury had on his work capacity.
231 Whilst Chernov JA, in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24], stated that if a plaintiff was physically able to return to alternate employment, unless there was some evidence of significant pain or the plaintiff significantly suffered physically from the injury, it would be difficult to conclude the pain and suffering consequences were serious. As Maxwell P stated in Haden Engineering Pty Ltd (supra) at paragraph [15]:
“An ability to return to full time work does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.”
See also Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at paragraph [25].
232 In the present case, although the plaintiff has been unable to return to duties as a filler, having been transferred from blow moulder duties a year or so before the incident because of his back complaint, he has managed to continue in manual employment, sometimes quite physical work, from that time, save for the part time light work at Dairy Farmers.
233 Following a short period of rehabilitation, until mid 2009 when he certified the plaintiff fit for normal duties, Dr Griffiths certified the plaintiff fit for full time modified duties. During that time, the plaintiff’s condition was not of such severity that Dr Griffiths certified him totally unfit for work or restricted his hours.
234 The plaintiff continued full time work as a forklift driver, not a light job, until he was made redundant in February 2010.
235 The plaintiff did not have a medication regime to keep him at work, nor did he have physiotherapy or hydrotherapy treatment to keep him going. He simply kept on working, operating a forklift thirty eight to forty hours per week.
236 Between October 2008 when the plaintiff stopped seeing Dr Griffiths until August 2010, the plaintiff continued to attend the Warrnambool Medical Clinic. In the ten visits during that period, the plaintiff made no mention of back pain nor sought any treatment or medication in relation thereto.
237 I do not accept that if the plaintiff was struggling at work in the manner he described he would not have complained to a doctor or sought a modification of his duties, despite his evidence as to his keenness to keep working in the face of his wife’s terminal illness and the fear of redundancy.
238 Having ceased work with the first defendant, the plaintiff had a period of unemployment and then undertook lighter, part time work with Dairy Farmers at the cheese factory.
239 The plaintiff then worked for little over a year as a storeman at Harvey Norman in what he agreed was a manual job. His full time duties involved moving heavy whitegoods, televisions and furniture on trolleys around the warehouse and into customers’ cars. Whilst the plaintiff stated there was not continuous movement of heavy items, he explained in re-examination that he left that job to go to TNT because at Harvey Norman there was far more heavy lifting, unloading two furniture trucks per week.
240 Whilst working at Harvey Norman, the plaintiff saw Dr Olesen once in October 2010 complaining of backache. During 2011, he attended Dr Olsesn in relation to unrelated health matters on three occasions. Tramal continued to be prescribed during that period, having first been prescribed by Dr Olesen in August before the plaintiff started work at Harvey Norman.
241 Whilst the TNT job which the plaintiff obtained in November 2011 is not as heavy as his job at Harvey Norman, as the plaintiff conceded, he is still required to drive a truck, handle parcels and packages weighing up to 20 kilograms and deliver them to customers at various locations in Port Fairy and Warrnambool five days a week.
242 Whilst I accept the plaintiff has a strong work ethic, I do not accept that he could work in this job, let alone the heavier job at Harvey Norman if he had the level of pain he describes. His ability to carry out these full time duties cannot be explained by stoicism as his counsel submitted.
243 In terms of other consequences, the plaintiff complained of an inability to sleep due to back pain. However, he has not consulted any doctor in relation to problems in this regard nor has he taken any sleeping medication.
244 The plaintiff has had very little treatment. Until he was referred to Mr Carey, orthopaedic surgeon, earlier this year, Dr Olesen had not referred the plaintiff for specialist opinion.
245 Having seen the plaintiff in February 2012, Mr Carey was happy for him to continue as is at home, socially et cetera, and particularly at work until his investigations were at hand. Although he diagnosed chronic low back pain, Mr Carey thought there was no evidence of neurological irritation or radiculopathy. He thought there was not a lot on x-ray and he wanted to arrange another MRI scan.
246 The plaintiff has not undergone any recent physiotherapy, last having treatment in January 2009.
247 The prescription of 100 milligrams of Tramal per day since August 2010 has been described by Dr Olesen as a modest daily requirement.
248 The plaintiff’s affidavit evidence of significant restrictions in his ability to do housework is at odds with the level of activity shown on the film.
249 Whilst there is some interference with the plaintiff’s recreational pursuits because of back pain, I do not accept the consequences thereof are serious.
250 Prior to injuring his back, the plaintiff had played limited social golf and was not a member of club. He did not play lawn bowls and had only tried to do so in more recent times.
251 The plaintiff’s main recreation was water skiing, which he enjoyed on a regular basis with his family prior to injury. He has recently sold his boat as it was not getting used as much because his children were going out in friend’s boats. Whilst he enjoyed water skiing before his injury, I do not accept the plaintiff’s inability to water ski thereafter is a serious consequence in terms of the statutory definition.
252 Taking into account all the evidence, I am not satisfied that the impairment to the plaintiff’s back has consequences in relation to pain and suffering 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”.
253 Accordingly, the plaintiff’s application is dismissed.
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