Heit v Water Rat Hotel Pty Ltd, The
[2013] VCC 979
•12 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01197
| DAVID ANDREW HEIT | Plaintiff |
| v | |
| THE WATER RAT HOTEL PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2013 | |
DATE OF JUDGMENT: | 12 August 2013 | |
CASE MAY BE CITED AS: | Heit v Water Rat Hotel Pty Ltd, The | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 979 | |
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, s134AB(16)(b), 134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69; Petkovski v Galletti [1994] 1 VR 436; Stijepic v One Force Group Australia Pty Ltd & Anor (2009) VSCA 181; Richards v Wylie (2000) 1 VR 79.
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Loftus | Henry Carus & Associates |
| For the Defendant | Mr D Myers | Minter Ellison |
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 in the course of his employment with the defendant on 25 March 2009 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.The body function relied on was the lumbar spine.
4 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.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(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”.
8 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.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti.[2]
[1](2005) 14 VR 622
[2] [1994] 1 VR 436
10 The plaintiff relied upon two affidavits and was cross-examined. He also relied on an affidavit sworn by his mother, Joan Heit, on 5 August 2013. 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
11 The plaintiff is presently aged forty-one, having been born in December 1971.
12 Having left school after Year 10, the plaintiff hoped to obtain an apprenticeship as a chef. He has always wanted to be a chef, but it was hard to get an apprenticeship in Torquay so he took up an apprenticeship with his mother in her hairdressing business. He completed that apprenticeship, and thereafter, worked for about seven years in the family hairdressing business.
13 The plaintiff deposed that, having decided then to pursue a career as a chef, he completed a Certificate 4 in Commercial Cookery and completed his apprenticeship. In cross-examination, the plaintiff explained that he still has four units outstanding in the course.[3]
[3]Transcript (“T”) 16
14 The plaintiff deposed that since finishing study, he has worked as a chef at numerous various restaurants, hotels, pubs and cafés. The plaintiff described the food industry as one where people often changed jobs and there was often short-term employment and cash jobs. The plaintiff’s jobs were of varying duration and at times he was paid in cash. He also had periods of unemployment.
15 The plaintiff never lodged any taxation returns. In cross-examination, he described how the hospitality industry was “very dodgy”.[4] He had been trying to chase up details of his previous earnings with his accountant but was told it was not worth chasing because half the places he had worked at had closed down.[5]
[4]T16
[5]T16
16 Prior to commencing work with the defendant, the plaintiff worked as head chef at Harrys Ramage “Harrys” restaurant in South Melbourne for about a year and a half full time.[6] Before that, he worked at either Grissini’s or the Charsfield Hotel. The plaintiff also worked as a caterer for a year or so prior to the said date.
[6]T19
17 Whilst working at Harrys, the plaintiff did some work at the Crowne Plaza in Torquay in 2007.[7] The plaintiff was unemployed for a short time before March 2009, when applied for work as a head chef with the defendant. It was agreed the plaintiff would work for a trial period with an outgoing chef. He was then offered a permanent position and paid about $1,100 gross per week.
[7]T25
18 In cross-examination, the plaintiff said he had been working for the defendant for about a month before injury, working anywhere between 40 and 50 hours a week as a chef. He disagreed he worked for the defendant for only a couple of days before the incident. After the agreed trial period, the plaintiff might have been on the books just for a week.[8]
[8]T20
Previous back condition
19 In his recent affidavit, the plaintiff deposed that he had since remembered that he strained his back several years ago whilst at work. He had an injection, which he believed may have been cortisone, although he could not be sure. The plaintiff recalled his back was sore for several weeks, but it got better and he had no further treatment until after the said date.
20 In cross-examination, the plaintiff confirmed he had prior back trouble roughly about ten to thirteen years ago after a lifting incident at work at Marios in Fitzroy.[9] He saw a local general practitioner and was referred by a specialist for an epidural injection at Epworth Hospital[10] after having undergone an MRI scan.[11] The plaintiff later said however that he had not had a CT or MRI scan before the injury the subject of this application.[12]
[9]T7
[10]T8
[11]T8
[12]T17
21 The plaintiff also had physiotherapy, maybe a couple of times.
22 The epidural seemed to work. It did have some effect and was of some help, and afterwards the plaintiff’s back symptoms settled and there were no ongoing back symptoms.[13]
[13]T8
23 The plaintiff’s current general practitioner could possibly know about that earlier episode, but the plaintiff could not recall whether he told him or not. However, the plaintiff’s condition in 2000 was a totally different set of circumstances. It was a different injury. It was in a totally different spot and area.[14]
[14]T9
24 At that time, the plaintiff just got some sciatic pain down his leg, although he could not remember which one.[15] It was ten to thirteen years ago. He was not sure. It could have been his right leg.
[15]T10
25 The plaintiff agreed he told medico-legal examiners that he had had no previous back injury or problems, and that was the correct situation. He had had some sciatic pain when he lifted boxes. However, he conceded that apparently sciatic pain related to the back but he had more of leg pain for which he was advised an epidural would help.[16] It was thirteen years ago and there would have been some small amount of back pain.[17]
[16]T11
[17]T11
The injury
26 On the said date, the plaintiff was working at the defendant’s hotel in both the ‘pans’ and ‘grills’ section, a job which involved a lot of twisting and turning. He also had to lift a number of heavy bags of produce. Having worked the lunch service, the plaintiff returned for the evening service, towards the end of which he developed pain into his back and right leg (“the injury”).
27 In cross-examination, the plaintiff agreed there was no single incident. He suffered the injury twisting and turning.[18] He confirmed his description of the injury set out in the Incident Report.[19]
[18]T17
[19]T18
28 By about 10.00pm on the said date, the plaintiff’s back pain was so bad that he could not stay back to order stock. The next day when he woke he had severe pain in his back and right leg. The plaintiff went to work but was in no condition to continue his duties. He completed an Incident Report and attended his general practitioner, Dr Kucuk.
29 A few days after the said date the plaintiff was sacked.
30 Dr Kucuk referred the plaintiff for a CT scan, which was undertaken on 30 March 2009. The plaintiff then returned to see Dr Kucuk and was referred by him for physiotherapy, funded by WorkCover, which he undertook at Dr Kucuk’s clinic with physiotherapists, Ms Lane and Mr Hazelton.
31 The plaintiff saw an osteopath a few times in late 2009 but that treatment did not really seem to help much at all. The plaintiff did hydrotherapy at MSAC until payment was stopped by the insurer.
32 When he swore his first affidavit in September 2011, the plaintiff’s main treatment had been to see his general practitioner, whose advice he followed. He usually saw the general practitioner once a month for certificates and was in receipt of WorkCover weekly payments. The plaintiff had been prescribed medication but tried to avoid taking strong painkillers.
Pain
33 The plaintiff deposed he then had pain in his back and right leg, and on occasion, he also developed some left leg pain. The pain was in his low back and extended down the right buttock. It was made worse if he sat, stood or walked for too long. He had a base level of pain which fluctuated. At times he would describe the pain as “severe”.
34 In his further affidavit sworn on 16 July 2013, the plaintiff deposed he had constant low back pain which extended into his buttocks and down the right thigh and calf muscles, and sometimes down to his ankle. Sometimes he also got a tingling sensation in his thigh and foot. The level of pain was often what he would describe as 6 or 7 out of 10, and sometimes it was 8 out of 10.
35 The plaintiff thinks about the pain and injury constantly. It makes him feel worthless that he cannot work and do the things he used to be able to do.
Activities
36 In his first affidavit, the plaintiff deposed that he considered, prior to suffering injury, he was fit and healthy. He enjoyed surfing, inline skating and boxing. Because of the injury, the plaintiff had given up those hobbies and had lost a lot of fitness and put on weight.
37 In his second affidavit, the plaintiff confirmed he was quite active pre-injury. He grew up in the Geelong/Torquay area and was a keen surfer, boxer and skateboarder. He often surfed twice a day when time allowed. Surfing was one of his greatest pleasures.
38 Since injuring his back, the plaintiff hardly goes into the water at all. He may have gone into the water up to his knees on a hot day. He does not feel he could swim in a surf beach as he believes the force of the waves in any form of surf would be bad for his back. He has not returned to surfing since his back injury.
39 The plaintiff was a competitive surfer when younger. He has not surfed since the injury. As an adult he surfed, but not competitively. He described in cross-examination that surfing was like riding a bike and you never forgot how to do so at a certain level. At the time of the injury, the plaintiff was still surfing every weekend and every time he could get into the water at Torquay, Bells Beach or Winkipop, surfing with a group of friends in the morning.
40 The plaintiff agreed it would be difficult to surf much whilst working weekends with the defendant, but explained he could still surf as the rotating rosters were good.[20]
[20]T44
41 In cross-examination, the plaintiff said that prior to the incident, he was a member at a boxing gym but that was a long time ago – maybe ten years ago.[21] The plaintiff has not tried boxing since the injury as he believed it would be bad for his back.
[21]T41
42 The plaintiff still has a skateboard. He has tried skateboarding once since injury and fell off and hurt himself. When he was a young man, the plaintiff was in a professional skateboarding team at Torquay. As an adult, he used his skateboard for fun and to get around the local area in St Kilda on a day-to-day basis.[22]
[22]T42
43 Prior to the injury, the plaintiff was also a regular jogger, and between that and his surfing, he had kept in good shape. He had had to give up jogging because of his back injury. He finds it hard to keep in shape and has put on weight.
44 Since his injury, the only exercise the plaintiff can do is walking. He walks his dog around the St Kilda area about once a day for generally 2 to 3 kilometres.
45 In his initial affidavit, the plaintiff deposed to an interest in tattooing, drawing and painting. He could not sit for long to draw and paint and had done some of his own tattoos, but with difficulty.
46 The plaintiff recently deposed he has taken up tattooing since the injury. It is really more of a hobby than an attempt to find an alternative means of employment. He tried tattooing once in a tattoo shop but could not continue. He finds sitting in a chair for a couple of hours tattooing people causes him terrible back pain.
47 The plaintiff deposed that although he charges some people for the tattoo work, it is mostly just to pay for the ink involved and he does it as a hobby to keep him sane.
48 In cross-examination, the plaintiff explained he had never received cash for tattooing. He had tried a tattooing business, but had not been paid in cash, because he was not good enough. He confirmed mostly people just paid for the ink involved, and they do so by giving him beer, and he does not charge them cash.[23]
[23]T30
49 The plaintiff wanted to manage a tattoo shop. He had tried to do tattoos but it was just too sore on his back.[24] He drew tattoos for about six months after the injury at a shop in St Kilda, but did not get paid. He really just hung around the shop.
[24]T32
50 The plaintiff is a bit old to go out much at night but he still socialises, draws, paints and tattoos.[25]
[25]T40
Sleep
51 The plaintiff deposed in his first affidavit that his back injury interferes with his sleep and he has trouble getting to sleep and usually wakes in pain.
52 In his second affidavit, the plaintiff confirmed he does not sleep well. Because of back pain, he has to sleep on his stomach, and he wakes up almost every night. The best way he could describe his situation is that when he moves in his sleep it causes him pain and he wakes with a locked feeling in his back.
53 The plaintiff does not take any medication to sleep.[26]
[26]T40
Domestic situation
54 The plaintiff is single and lives alone. He does his own housework and cooking, but takes his time. At times when he does something around the house, he suffers afterwards with an increase in pain.
55 In his second affidavit, the plaintiff deposed he found it difficult to attend to basic domestic activities such as doing up his shoelaces because of the bending involved. He finds it hard to keep his flat clean and tidy. He finds the backward and forward motion of vacuuming difficult, and it causes him back pain.
56 In cross-examination, the plaintiff described how he does his household chores “sort of”.[27] He cooks for himself. As he has split up with his girlfriend, no-one now helps him with these tasks.
[27]T38
57 At the time of his first affidavit, the plaintiff regularly visited his parents in Torquay, as his father, a retired builder, was unwell. The plaintiff drove there, and if he was having a reasonable day with his back, he could make the trip in one go. If he was having a bad day, he had to break up the trip and his back was usually pretty sore by the time he got to Torquay.
58 The plaintiff’s father died in September 2012.
59 In his first affidavit, the plaintiff deposed that because of his injury, he found it difficult to bend and lift.
60 In his second affidavit, the plaintiff confirmed he is restricted in basic movements and cannot bend very far at all and he is always sore after bending. Twisting movements also leave him sore, and he avoids them when he can. If he is required to lift lightweight objects repeatedly, that also brings on pain. Lifting heavy objects is something the plaintiff avoids if possible. He deposed however, he is like his father, who taught him that he should put up with pain, so he does not complain.
61 The plaintiff also finds it difficult to carry heavy loads. He was buying groceries online for a long time so that he did not have to carry the shopping. However, he stopped doing so about eight months ago, as it was getting too expensive, and he now just buys smaller amounts of shopping. He usually carries no more than two bags. He has sometimes carried up to four bags but only if they are light in weight.
62 The simple act of sneezing is also very painful for the plaintiff.
63 The plaintiff deposed that he had recently broken up with his girlfriend, having been with her for over thirteen months. They talked about getting married and having children but she was concerned about how he could support her financially. The plaintiff has not had a steady job or a job lasting longer than a few days or a week or so in the time they were together. Eventually that resulted in the relationship ending.
64 Sex causes the plaintiff pain and he is limited in his sex life and the way he has sex as a result. His girlfriend was understanding but this was another strain on their relationship.
Treatment
65 The main doctor the plaintiff has seen about his back injury was Dr Kucuk at the Clinic which was located over the road from the plaintiff’s house. The plaintiff did not find Dr Kucuk very helpful in treating his back pain as the doctor was often very busy and the consultations were mostly of short duration.
66 The plaintiff saw another doctor at the Clinic, Dr Blashkie, in early to mid 2012. He was sympathetic and suggested a treatment plan. At about this time, the plaintiff’s father’s health was deteriorating and, as a result, he did not follow through and continue to see Dr Blashkie.
67 In cross-examination, the plaintiff agreed he had not been referred to a specialist in relation to the injury. Dr Kucuk had been his doctor and the plaintiff stopped seeing him because he was absolutely terrible and never referred him or helped him out.[28] Dr Kucuk did say once to the plaintiff “You’re not in a wheelchair, so you’ll be okay”.[29] Dr Kucuk was very arrogant and a very unhelpful doctor. He gave the plaintiff no real treatment and if the plaintiff had his time again he would not have seen him.[30]
[28]T12
[29]T12
[30]T48
68 In cross-examination, the plaintiff then went on to say he might have asked Dr Kucuk for a referral[31] but he did not have the dates. It might have been about a year-and-a-half ago, maybe two years ago, but the plaintiff did not follow it up and he was never referred to anyone.[32]
[31]T12
[32]T13
69 Dr Blashkie was just fantastic and he was going to do a whole plan for the plaintiff. [33] The plaintiff did not get a referral from Dr Blashkie because it was the end of his WorkCover physiotherapy treatment and he thought he would have to pay after that.
[33]T13
70 The plaintiff last saw Dr Blashkie in the middle or at the end of 2012. He gave the plaintiff a set of exercises to do.[34] The plaintiff is still doing the exercises at home every morning. When he deposed that he did not follow through when his father died, he meant he stopped seeing Dr Blashkie, not doing the exercises. He followed through with the treatment plan given to him.[35]
[34]T14
[35]T15
71 The doctors could not really do anything for the plaintiff. He had been told by doctors in this case not to ever work again in the industry he was in, as he could be doing more damage to himself.[36]
[36]T15
72 The plaintiff had not found any doctors to be that helpful; he did not want surgery – he was against it and was against any sort of drugs – so he just does physiotherapy and he takes Panadeine – over-the-counter.[37]
[37]T39
Headaches
73 After the injury, the plaintiff started to have a lot of headaches. He saw a specialist Dr Selvaratnam who told him that the headaches were caused by his back injury. The plaintiff saw him quite a few times and received deep-tissue massage, which helped with the headaches. The plaintiff was also advised by Dr Selvaratnam that he should have physiotherapy.
74 The plaintiff had some physiotherapy after that advice but there was a problem with WorkCover paying, and treatment stopped.
75 In cross-examination, the plaintiff confirmed Dr Selvaratnam did not prescribe any medication and told him the headaches were related to his back.[38]
[38]T39
Current medication
76 The plaintiff presently takes Panadeine regularly. He took some anti-inflammatories for a couple of days after the injury but stopped taking them. He does not like taking prescription drugs.
Vocational
77 In July 2009, the plaintiff was referred to Work Able Consulting for vocational assistance, but nothing much came from that. He had two attempts at work in late 2009 but each lasted for less than a day, as going back to kitchen work aggravated the plaintiff’s pain.
78 In cross-examination, the plaintiff agreed Work Able tried to get him a delivery job, driving and lifting things, but there was nothing suitable when he was with them.[39]
[39]T22
79 The plaintiff deposed in September 2011 that he could not now work as a hairdresser or as a chef as both jobs involved prolonged standing, bending and twisting. More recently, his general practitioner had been certifying him as fit to do 15 hours of modified duties. He would like to be at work. He worried about his financial future and how he would provide for himself.
80 In about mid July 2011, the plaintiff found work as a prep chef at Cicciolina’s Restaurant in St Kilda. He was working 15 hours a week over two days. He was in a lot of pain at the end of each day and particularly the end of the second day, but he was happy to be back in the industry he loved, even on a part-time basis.
81 The plaintiff’s employer offered him full-time work; however, the plaintiff did not believe he could manage more than 15 hours a week that he was then currently working.
82 In his second affidavit, the plaintiff deposed this job lasted about a month. He left because his back became too sore from the standing, twisting, bending and turning that the job required.
83 In cross-examination, the plaintiff confirmed he stopped working at Cicciolina’s because it was too hard on his back doing eight hour dayshifts.[40] He was then being certified fit to work 15 to 20 hours a week on light duties and was working two 8-hour shifts. However, this job never worked out, because his back was too sore.[41]
[40]T33
[41]T33
84 In cross-examination, the plaintiff was shown a number of certificates from Dr Kucuk. The plaintiff agreed, having seen the medical certificates, they were for modified duties with no hourly limit.[42] The plaintiff however, explained that he had to get a form when he worked at Cicciolina’s, because he was only working 15 hours.[43]
[42]T22
[43]T22
85 The job at Cicciolina’s was one of the longest jobs the plaintiff had held since the incident. It is a “Two Hat” restaurant and his technical skills are good enough to get a job in that capacity.[44]
[44]T46
86 In re-examination, the plaintiff described how he loves working as a chef. It is pretty much his whole life, and you have to love the work to stay in it.[45]
[45]T46
87 The plaintiff has only tried restaurant jobs since the injury because basically it is the only thing he knows what to do, although he has been advised against going back to chefing because he could injure his back further. That is why he is back and forth all the time.[46] He has to pay the rent, so he gets a job, then “buggers” his back and he is off for like a month or a few weeks and then he has to go back out there and do it again and it is painful.[47]
[46]T46
[47]T47
88 The plaintiff worked for about a month as a head chef at New Quay Hotel.
89 Apart from Cicciolina’s Restaurant and the New Quay Hotel, the plaintiff’s jobs since the injury generally lasted a few days or a week or two. The work varied from kitchen to kitchen, with some jobs being harder on his back than others.
90 The plaintiff had short periods of work at venues including Riva Restaurant in St Kilda, the Pier Hotel in Port Melbourne (one week), The Inkerman in Balaclava and the Prahran Hotel.
91 About three months ago, the plaintiff worked a thirty hour week at an Albert Park restaurant, ‘Dundas’. The plaintiff disagreed he was involved in management, as Mr Brearley had suggested. The plaintiff did some menu planning but also working hands-on.[48]
[48]T36
92 In May 2013, the plaintiff was offered work as a chef at the Metropolitan Hotel. He worked there for approximately a week on trial. He was asked to work four split shifts a week of twelve hour days, with a break between the lunch and dinner shift. His back could not cope with that amount of kitchen work and he could not continue in that role.
93 In the last few days the plaintiff has started working at the Bayview Hotel in Brighton.
94 The plaintiff could have applied for ten to fifteen jobs after the injury. When he applies for work, he does not go into detail about his back; otherwise he would never get a start anywhere.[49]
[49]T37
Capacity for other jobs
95 In cross-examination, the plaintiff was asked about his capacity for alternative work to chefing. He explained catering was no easier than chefing, because you are still standing on your feet all day.[50]
[50]T23
96 The plaintiff had not tried to get work as a food sales representative, a job he had undertaken before the injury. He could not do any work that involved him standing on his feet.[51]
[51]T24
97 In re-examination, the plaintiff confirmed he had not applied for a job as a sales representative or as a café manager. Management was basically the same as being a chef and involved being on his feet all the time. After a few hours doing so, his back became quite painful. The plaintiff has no experience as a restaurant manager.[52]
[52]T44
98 The plaintiff explained he tried to apply himself to everything that was going to be suitable for his back. He agreed he had not applied for any less physical work because he did not have any experience and there was nothing suitable.[53]
[53]T27
99 After his failed attempt at Cicciolina’s, the plaintiff was pretty much finally convinced to get out of the cooking industry. He was actually convinced after suffering the injury that he should do so because of his back, but he had to pay rent, he was still in his apartment and “between a rock and a hard place, and he had to keep trying and trying and trying.”[54]
[54]T34
100 The plaintiff obtained his forklift licence about six months ago through Centrelink, hoping to get a job. He passed the theory and practice in a three or four-day course. The problem was however, any job in that area required two years’ experience, which he did not have. Therefore, he had not applied for work in that regard although it had been suggested to him at Centrelink that he advise potential employers he had this experience. The plaintiff however was not happy doing that.[55]
[55]T45
101 The plaintiff had gone off Disability payments and went on to Newstart as the latter involved potential funding for retraining and it was on that basis he obtained his forklift licence.[56] The plaintiff always told Centrelink how many hours he was working.[57]
[56]T45
[57]T29
Lay evidence
102 The plaintiff’s mother, Joan Heit, swore an affidavit on 5 August 2013.
103 Mrs Heit and the plaintiff are very close. They regularly chat on the telephone and the plaintiff comes to visit whenever he can. Prior to his injury, the plaintiff had always been very helpful when anything was needed around the house.
104 In the last couple of years since the injury, the plaintiff finds it hard to do anything to help her. He struggles to lift anything or help move anything; even sitting on the couch is uncomfortable for him.
105 Prior to injury, the plaintiff was very much into sport and he loved surfing, which he did regularly. He was a champion athlete when he was younger and involved in Little Athletics. The plaintiff had always been very physically fit and slim. He would run and go for long walks and always had a lot of interests and kept busy.
106 The plaintiff has lost a huge lot of fitness since he was injured. He cannot be involved in the sports that he used to. He put on weight after his injury. He was always very slim before. The weight had crept on. However, she had noticed that he had lost a little bit of weight which she thought was because he was under stress.
107 The plaintiff still enjoys the football and he tries to walk every day to keep as fit as he can, walking his dog.
108 Since a child, the plaintiff was interested in cooking and was really good at it and wanted to be a chef from a young age.
109 The plaintiff went into hairdressing when he left school, mainly because that work was available. He worked in her hairdressing business for about seven years.
110 The plaintiff then decided to go into hospitality and complete an apprenticeship, working at several places. He was very happy to be doing that sort of work in his chosen profession, and told her this was the case. He also loved new foods he was cooking. He was very passionate about being a chef and still is.
111 The plaintiff reported the injury to her. She never thought it would be as serious as it had turned out to be. She thought the plaintiff would recover, as at the time of the injury, he was young, fit and healthy.
112 The plaintiff’s back did not improve in any way and he only got worse over the years. She noted that it was tragic that he was debilitated in that way at such a young age when she was sixty-seven and could lift things and do things he could not do.
113 Mrs Heit was very distressed recently at her husband’s funeral because the plaintiff told her he would not be able to carry the coffin with his back injury and he merely stood by, not taking any of its weight.
114 The plaintiff and his father had a good rapport, both loving sport, and they talked about sport and football all the time. The plaintiff was devastated when he lost his father and really wanted to be part of the funeral.
115 The plaintiff complains to her about the pain in his low back and that he is scared he will damage himself even more.
116 The plaintiff has been very down since he was hurt and also been under enormous stress, worrying about doing anything that would make his back worse. The injury changed the way the plaintiff was and the way he lived his life and he is more serious now, having a burden.
117 The plaintiff cannot help her at home and lift things like he used to. He has trouble trying to get comfortable and he often lies down on the couch instead of sitting if they are watching television or talking.
118 The plaintiff has been financially affected because of his injury as he cannot work full time and can only get part-time work here and there. The stress of not being able to work and that financial pressure has made the plaintiff more serious than what he used to be.
119 The back injury has impacted on every area of the plaintiff’s life and that is why she feels so helpless. For a young person that is terrible. The plaintiff updates her weekly as to what is going on with him and his back injury, but all she can really do is listen to him.
Medical evidence
120 Dr Passlow from St Kilda Super Care Clinic (“the Clinic”) reported on 4 August 2009.
121 Dr Passlow noted that the plaintiff had been seeing Dr Kucuk at the Clinic regarding his injury and saw her on 22 June 2009 as that doctor was away. At the plaintiff’s request, he was deemed unfit for two months as he stated there were no alternative duties at the workplace.
122 Dr Passlow advised that the plaintiff needed to be re-assessed before being deemed fit for normal duties; however, she did not believe he would be able to return to pre-injury duties for at least the next month as bending, twisting and heavy lifting aggravated his pain. She thought he might need to find a job with less physical demands.
123 The plaintiff saw Dr Selvaratnam at the Headache Centre of Victoria on 16 November 2009 in relation to headaches in the frontal and vertex regions, muscle tightness, cervical pain and anaesthesia in the right foot.
124 In his report of 14 December 2009, Dr Sevaratnam noted the plaintiff’s low back and sciatic pain from the incident. He also noted the plaintiff had treatment to the occipital region and cervical region and was recommended for a deep neck flexor program.
125 On review, the plaintiff reported he had improved. Dr Selvaratnam noted that since the plaintiff’s lumbar spine had been slow to respond, he recommended the plaintiff consult a musculoskeletal physiotherapist to enhance his recovery, and also recommended he consult a neuro-physiotherapist for his vertigo.
Investigations
126 Dr Kucuk organised a CT scan of the plaintiff’s lumbar spine on 30 March 2009.
127 It was reported there was a central disc bulge at the L4-5 level and a central and right disc bulge at the lumbosacral level causing some exit foraminal narrowing on the right at that level. No bony or facet joint abnormality of significance was demonstrated.
Medico-legal evidence
128 Mr Kenneth Brearley, orthopaedic surgeon, initially examined the plaintiff in June 2011.
129 On examination, the plaintiff complained of constant discomfort or pain in the lower back, with restriction in various movements and prolonged activity. He also complained of pain in the back of the right leg to the foot, where he had a sensation of pins and needles.
130 Mr Brearley noted the CT scan of the lumbar spine of 30 March 2009 was reported as showing a central canal disc bulge at L4-5 and a right-sided disc bulge at the lumbosacral level, causing some exit foraminal narrowing on the right at that level.
131 On examination, there was marked limitation of flexion and some flattening of the thoracolumbar spine.
132 Mr Brearley diagnosed mechanical lumbar pain resultant from damage to the L4-5 and L5-S1 intervertebral discs. He noted there was some evidence of nerve root irritation as the plaintiff had quite marked right leg pain and neurological symptoms in that leg.
133 Mr Brearley suggested an MRI scan, and assuming there were no markedly altered features, that the plaintiff continue with conservative treatment and that he would benefit from a further course of hydrotherapy and physiotherapy. He noted the plaintiff avoided medication.
134 Mr Brearley reported that prior to the incident, the plaintiff had no back pain at all so that incident was a significant contributing factor to his injury and present condition.
135 Mr Brearley thought the plaintiff was not fit for his pre-injury work as a chef and noted great difficulty with domestic activities. He thought the plaintiff was fit for some suitable light work, at least part time, with restrictions in terms of bending, stooping and twisting and lifting beyond 5 kilograms.
136 Mr Brearley then considered there was no likelihood any employer would be prepared to offer the plaintiff paid employment when his work history, age and ongoing incapacity from the back injury were taken into account. He thought the plaintiff had no capacity for suitable employment and that his prognosis was not good and he would require vocational assessment and retraining and assistance in finding a permanently lighter job.
137 On re-examination in May 2013, the plaintiff told Mr Brearley that there had been no basic change in his condition, and that he had the same level of discomfort.
138 The plaintiff told Mr Brearley that he had returned to part-time cooking and worked about twenty hours a week at a restaurant Dundas in Albert Park. Mr Brearley noted that work involved mainly the management of the restaurant and, to a lesser extent, the cooking. The plaintiff reported he could not increase the hours he was doing because of increased back pain on long standing.
139 On re examination, there was even more marked limitation of flexion and there was flattening, as before.
140 Mr Brearley confirmed his earlier diagnosis and his views as to the plaintiff’s employment capacity and the need for referral for vocational assessment and retraining.
141 Mr Brearley considered the plaintiff needed physiotherapy during periods of exacerbation of his symptoms and for the supervision of his home exercise program, which he practised assiduously.
142 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in June 2013.
143 The plaintiff told Mr Miller of an episode of back pain about ten years ago and he thought he possibly he had an epidural. The plaintiff stated his back symptoms settled following that procedure and they were not ongoing.
144 On examination of the lumbar spine, there was diffuse tenderness. There was restriction of movement. There was no neurological deficit.
145 Mr Miller noted the CT scan of 30 March 2009.
146 Mr Miller thought the plaintiff suffered a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease in that area. He thought it would be unlikely the plaintiff would be assisted by surgery. In his view, there was no evidence of radiculopathy or neurological deficit.
147 Mr Miller considered, on the basis of the described ongoing symptoms, the prognosis was only fair.
148 Mr Miller noted that the plaintiff did have some back symptoms in the distant past but he did not believe they were of direct relevance to this case.
149 Mr Miller believed the plaintiff suffered a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine in the incident. He believed that effect persisted and accounted significantly for the plaintiff’s current clinical status.
150 Mr Miller thought conservative treatment would need to continue indefinitely.
151 Mr Miller noted the significant ongoing symptoms in the lumbar spine. He thought the plaintiff would have difficulty with work involving repetitive bending and lifting of weights of more than 5 kilograms. He noted the plaintiff would also have a requirement to shift his posture on a regular basis.
152 Mr Miller thought the plaintiff could not return to pre-injury duties on any significant full or part-time basis and a return to work would be problematic due to his lumbar spine problems, which Mr Miller thought were significantly work related.
153 Mr Miller considered the plaintiff’s injuries were substantially stabilised.
154 Mr Miller also concluded the plaintiff had not been able to resume his sporting activities and would have a significant reduction in his capacity for pre-injury leisure and recreational pursuits.
The incident
155 In an Incident Report completed by the plaintiff on 27 March 2009, the plaintiff noted he was:
“… working pans and grill, twisting and turning back and forth from one bench to another for the duration of service, which is over an hour has stuffed my back. I can’t sleep without pain and I’m limping and in lots of pain.”
156 The plaintiff submitted a Worker’s Injury Claim Form signed by him on 14 April 2009. He set out that he suffered injury while working at his normal workplace on 25 March 2009.
157 The plaintiff answered “No” to the question whether he had previously had another injury, condition or personal injury claim that related to this injury or condition.
Summary of surveillance
158 There was 20 hours of surveillance undertaken in August 2012, of which there was no film taken.
159 On 14 July there was total of 16 minutes of film with surveillance of 17 and a half hours undertaken over that day and on 23 and 31 July 2012.
The Defendant’s medico-legal evidence
160 Mr Jonathan Hooper, orthopaedic surgeon, initially examined the plaintiff in May 2009, and reviewed him in October 2010.
161 The plaintiff told Mr Hooper he had never had any previous backache prior to the injury.
162 Mr Hooper noted the 2009 CT scan revealed a disc bulge at L4‑5.
163 At the first examination, Mr Hooper concluded the plaintiff had evidence of backache and discogenic leg pain arising out of the course of his employment, with no non-work-related factors.
164 Mr Hooper then thought the plaintiff had the capacity to return to light work in the near future but should not return to heavy work and was not fit for his pre-injury employment.
165 Mr Hooper considered the plaintiff should continue with medication, physiotherapy, and a self-exercise program, and hoped he hoped the plaintiff’s condition would improve further, and gave a moderately optimistic prognosis.
166 In a supplementary report of February 2010, Mr Hooper noted the plaintiff had never had any trouble with his back prior to the injury, and since then had been unable to get back to lifting and turning work. He thought that it could be regarded the incident precipitated the plaintiff’s back discomfort, but the underlying cause of it was degenerative, and that had been demonstrated radiologically.
167 Mr Hooper thought the incident could be regarded as a contributing factor to continuing symptoms. He considered that the plaintiff was fit for suitable employment, clearly not the work of a chef in a busy kitchen, and that he may have to accept some lighter form of work and require vocational guidance.
168 On re‑examination, the plaintiff reported his back was not improving; he tried several jobs, but had been unable to cope.
169 Mr Hooper concluded that the plaintiff had evidence of chronic back pain that was precipitated by an incident at work. He thought the plaintiff was quite capable of light work if such a job could be found for him. He then considered the plaintiff should continue with a self-exercise program and be reviewed by his local doctor periodically.
170 Mr Hooper thought the plaintiff had degenerative disc disease in his lumbar spine. He had discogenic back pain, aggravated by the incident, and was unable to return to work as a chef. Mr Hooper thought the plaintiff had a work capacity for a suitable job that did not involve lifting, bending, standing for a long time or sitting for a long time.
171 Dr Elder, consultant in occupational and environmental medicine, saw the plaintiff in August 2010 for the purposes of an AMA assessment.
172 The plaintiff denied any past history of his current complaint or any other injury or accident.
173 On examination, there was decreased motion in the lumbosacral spine. There was no tenderness and no evidence of spasm.
174 Dr Elder noted he viewed the 2009 CT scan that showed disc bulges at L4‑5 and L5‑S1.
175 Dr Elder concluded the plaintiff had mechanical back pain with no clinical evidence of radiculopathy relevant to the accepted lower back (aggravation of degenerative condition) injury.
176 Mr Robin Williams, consultant orthopaedic surgeon, examined the plaintiff on 2 March 2011.
177 The plaintiff complained to him that his back was really sore, particularly in the morning, with the level of pain varying in intensity throughout the day.
178 On examination, the main pain was to the right of the mid line at the lumbosacral level. There was no muscle spasm. The range of movement of the lumbar spine was about a third of what would be expected for normal, and appeared to be limited by pain.
179 Mr Williams commented that the 2009 CT scan showed minor degenerative changes, including disc bulges in the lower lumbar region, which he regarded as developmental in nature and not a consequence of the incident activities.
180 Mr Williams did not see any point in the plaintiff having any further physiotherapy, noting he had a program of exercises to do at home.
181 Mr Williams thought the plaintiff suffered a type of Chronic Pain Syndrome affecting his lower back and right lower limb, which was initiated by the strains at work. He considered the plaintiff probably could not return to pre-injury duties now, but he had a capacity for suitable employment and could probably return to modified pre‑injury duties in another situation. If such a position could be found, he considered the plaintiff could probably work full hours where he could change his posture and avoid heavy lifting.
182 Mr Williams noted he formed the opinion that the plaintiff believed he should not attempt any return to work as a normal chef because of the pressure of that type of work. Mr Williams did not believe the plaintiff required any further specific treatment, but a suitable rehabilitation program with assistance may help him.
183 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in July 2013.
184 The plaintiff told Mr Simm that he experienced pain every day, which varied from mild to moderate, and to some extent, he said he had learned to put up with it.
185 Mr Simm noted a past history of back pain ten years ago but in the year leading up to the injury, the plaintiff had no significant pain or restrictions on his activities.
186 Mr Simm noted the plaintiff presented his history in a straightforward manner, and presented features of chronic pain when physically examined. Flexion and extension were virtually absent. There was mild tenderness to palpation in the lower back. Neurological examination of the lower limbs showed no clinical signs of radiculopathy, and there was no wasting or focal weakness.
187 There was an inconsistency between performance of the slump test and the plaintiff’s ability to lie on the couch.
188 Mr Simm was provided with the 2009 CT scan report. He noted that that was probably an incorrect investigation for the plaintiff’s clinical condition. He thought an MRI scan may give more meaningful information regarding the state of the plaintiff’s intervertebral discs, and he would expect it to show degenerative lumbar disc dislocation with disc bulging or protrusions at L4‑5 and L5‑S1 levels.
189 Mr Simm thought there might be right-sided features as the plaintiff did have pain extending into the right foot. Mr Simm noted the disc bulging on the CT scan could be indicative of lumbar disc degeneration, and that might be quite severe, but not evident on the CT scan. He thought the plaintiff’s symptoms were consistent with discogenic pain causing referred pain.
190 Although that diagnosis had not been confirmed, Mr Simm thought the plaintiff probably had lumbar disc degeneration prior to the onset of symptoms and, due to the physical demands of his work, the strain of his lower back was exacerbating symptoms from that underlying degenerative pathology.
191 Mr Simm thought the severity of the pain and persistence for some considerable time indicated the possibility that work duties may have damaged the degenerate intervertebral disc structure.
192 Although he believed there was originally a physical injury, Mr Simm thought the subsequent clinical course had features of a chronic adverse pain response in the environment of a compensable back injury. He noted the clinical presentation showed some inconsistencies which suggested that non-organic and/or psychological factors were contributing to the plaintiff’s chronic pain.
193 In the absence of evidence to the contrary, Mr Simm noted he would have to assume the plaintiff was not capable of undertaking unrestricted heavy physical activity, and that he would struggle with his pre-injury employment as a chef. He believed the degree of pain and disability was probably less than that portrayed by the plaintiff on formal medical examination.
194 Mr Simm concluded the plaintiff’s persistent symptoms were consistent with unresolved aggravation of pre-existing lumbar disc degeneration in association with a chronic adverse pain response. In the absence of evidence to the contrary, he would have to conclude that on the basis of the plaintiff’s clinical presentation, the plaintiff could not sustain unrestricted employment as a chef, which was physically demanding. However, considering the plaintiff’s age, one would expect him to be able to adapt to chronic pain and associated limitations and find suitable light employment.
195 Mr Simm thought the plaintiff had the physical capacity to undertake the occupations set out in the NES vocational assessment report of June 2009, and he could work as a forklift driver providing he did not have to manually handle goods.
Overview
196 There is no dispute that the plaintiff suffered a compensable injury in the course of his employment in March 2009, following which he received weekly payments.
197 The issue in this case is one of range, namely whether the plaintiff’s present impairment in relation to his lumbar spine meets the statutory test of seriousness.
198 Save for Mr Simm, who thought that to some degree there was an adverse pain reaction and Mr Williams fleeting and unexplained comment that there was a type of chronic pain syndrome, the consensus of medical opinion is that the plaintiff’s lumbar condition is organically based.
199 Mr Brearley diagnosed mechanical lumbar pain as did Dr Elder. Mr Miller described the plaintiff’s condition as a musculoligamentous strain and aggravation of degenerative disc disease in the back, a similar diagnosis to Mr Simm.
200 Whilst there was an earlier back/sciatic complaint in about 2000 as a result of the plaintiff’s work in a kitchen in Fitzroy, there was no evidence that he had any ongoing problems in relation thereto and it was not submitted that the issues in Petkovski v Galletti[58] arose.
[58]Supra
201 Having been told by the plaintiff of a previous history of sciatica, Mr Miller did not think the plaintiff’s previous problems were of any relevance to the plaintiff’s current situation.
202 Mr Simm thought there was disc degeneration prior to the onset of symptoms, but as a result of the incident, there was a strain of the lower back, exacerbating those symptoms from the underlying degenerative pathology, and he accepted the plaintiff’s present symptoms are consistent with discogenic pain.
203 Counsel for the defendant submitted that little reliance should be placed on the ultimate conclusions of Mr Brearley and Mr Hooper because they were told by the plaintiff that he had no back problems prior to the injury. However, whilst it may not be possible to relate the disc bulge at L4-5 to the injury with any certainty, both practitioners accepted the genuineness of the plaintiff’s ongoing complaint and its relationship to the injury at work.
204 In any event, the impairment not the injury is the relevant matter for consideration[59] and to succeed in this application, the plaintiff is not required to establish there is a link between the bulge at L4-5 shown on the 2009 CR scan and the injury.
[59]Richards v Wylie (2000) 1 VR 79 at 86 per Winneke P
Credit
205 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[60]
“… 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.”
[60](2010) 31 VR 1at paragraph [12]
206 The plaintiff’s denial of this earlier back problem to Mr Brearley and Mr Hooper was relied upon by counsel for the defendant as a matter of credit.
207 However, I found the plaintiff to be a generally credible witness, who was not evasive. He gave his evidence truthfully and in a forthright manner. He had understandable difficulty remembering details of the many jobs he had undertaken both before and after the injury.
208 I accept the plaintiff’s explanation that he did not consider his problem in 2000 to be related to his back but was principally a problem with sciatica involving his leg, and that was why he denied any previous back complaint to some doctors. He did, however, tell Mr Miller of the earlier complaint of sciatica.
209 In Haden,[61] President Maxwell stated:
[61]Supra
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
· (a) what the plaintiff says about the pain (both in court and to doctors);
·(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
·(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
·(d) what the objective evidence shows about the disabling effect of the pain.”[62]
[62]Paragraph 11
210 I accept that since the injury the plaintiff has continued to suffer from constant low back pain of varying intensity referred into his right buttock, thigh and calf and at times to his ankle.
211 There was no real attack in cross-examination as to the level of pain deposed to and described by the plaintiff. Further, whilst there was surveillance of the plaintiff and film taken, no film was relied upon by the defendant.
212 There was no evidence challenging the plaintiff’s evidence as to his level of pain and restriction. The plaintiff’s mother confirmed his evidence of his pain and disability. She was not cross-examined.
213 I accept that in addition to pain, the plaintiff has been restricted in his level of movement since the injury in particular in relation to bending, twisting and lifting and prolonged sitting and standing.
214 The problem with sitting has affected the plaintiff’s ability to drive for extended distances without discomfort and the need to take breaks on longer drives.
215 The plaintiff underwent eighteen to twenty-four months of physiotherapy, and he continues to do home exercises, which Mr Hooper considered appropriate. The plaintiff explained he does not take medication as he has an aversion to it.[63]
[63]T64
216 Whilst in cross-examination the plaintiff said he was not taking sleeping tablets,[64] he deposed in both affidavits to problems with sleep.
[64]T40
217 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[65]
“[It was] ... a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[65](Supra) at paragraph 45
218 The plaintiff’s sexual relationships have been affected by his back pain.
219 Whilst the plaintiff can self care and do household tasks, he does those tasks slowly and suffers afterwards with an increase in his back pain. He does his shopping in small batches. He previously had his groceries delivered by Coles, ordering them online, but that became too expensive.
220 Prior to suffering injury, the plaintiff was an active sportsman, as he deposed and his mother confirmed.
221 The plaintiff’s main sporting activity was surfing, which he continued to enjoy as a thirty-seven‑year-old most weekends when visiting his family in Torquay. Having been a competitive surfer as a young boy, the plaintiff continued that interest as an older man, albeit not competitively, surfing with friends at Bells Beach and Torquay and neighbouring beaches. He has not tried surfing since the injury, because he knew of the difficulties he would have with his back when doing so.
222 At the time of the injury, the plaintiff used his skateboard as a means of transport around St Kilda, having been a competitive skateboard rider in his youth. When he attempted to skateboard post the injury, the plaintiff fell of his skateboard and grazed his hands so has not persisted using it.
223 The plaintiff is no longer able to jog and keep fit as he did prior to the injury and, as a consequence, has lost fitness and put on a lot of weight.
224 The plaintiff, at forty-one, is still a relatively young man.
225 In Stijepic v One Force Group Aust Pty Ltd,[66] 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.
[66][2009] VSCA 181 at paragraph 43
226 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.
227 The main consequence of the plaintiff’s injury has been in relation to his work.
228 Whilst there were no wage documents provided by the plaintiff and no taxation returns filed by him, I accept that he was working full-time in various periods leading up to the said date and thereon and was able to work unrestricted as a chef.
229 Since the injury however, the plaintiff has been unable to resume full-time normal duties for any extended period, having had a number of jobs and attempts at jobs which were short lived because of back pain.
230 The consensus of medical opinion is that the plaintiff cannot return to work on a full-time basis during his normal job as a chef.
231 The plaintiff’s back injury has resulted in difficulty working in any job that involves heavy lifting, bending of weights greater than 5 kilograms, and any job where he would need to shift his posture, as Mr Miller described.
232 I accept that the plaintiff is motivated and loves his work as a chef, as evidenced by his numerous attempts to return to work after the injury.
233 Cooking is the plaintiff’s passion and vocation, as evidenced by his continuing, numerous attempts to stay working in the hospitality industry. He is repeatedly accepted for work but just cannot keep up jobs because of his injury.[67]
[67]T63
234 In my view, the plaintiff’s back pain and restricted movements and his inability to work as a result thereof as a chef full time, are consequences which meet the statutory test of seriousness.
235 As the plaintiff’s symptoms have persisted for in excess of four years and the medical evidence does not suggest the likelihood of any further improvement in the plaintiff’s condition, I am of the view that his condition is permanent.
236 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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