Hingeley v Victorian WorkCover Authority
[2023] VCC 79
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-17-05648
| LEIGH PHILLIP HINGELEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 February and 29 August 2022 | |
DATE OF JUDGMENT: | 8 February 2023 | |
CASE MAY BE CITED AS: | Hingeley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 79 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the spine – paragraph (a) of the definition of “serious injury” – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB(37)
Cases Cited:Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; De Bono v Victorian WorkCover Authority [2019] VSCA 85
Judgment: Application in relation to loss of earning capacity damages dismissed. Leave granted to the plaintiff to commence to recover damages for pain and suffering consequences
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr M Nightingale | Arnold Thomas & Becker |
| For the Defendant | Ms D Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1Leigh Hingeley seeks leave to start a proceeding under s134AB of the Accident Compensation Act 1985 (as amended) (“the Act”) to recover damages for injuries suffered by him arising out of or in the course of his employment with Paccar (Australia) Pty Ltd (“Paccar”). Despite that name, Mr Hingeley knew his employer as Kenworth, for it made those trucks.
2Mr Hingeley relies on paragraph (a) of the definition of “serious injury”. He also relies upon the pain and suffering and loss of earning capacity consequences. The injuries are to a part of his spine, being his lower back. Mr Hingeley suffers from another condition, postural orthostatic tachycardia syndrome (“POTS”). Although views differ as to its causation, Mr Hingeley does not rely upon the syndrome as part of his injuries for this application. Despite suffering from depression, Mr Hingeley does not rely on paragraph (c) of the “serious injury” definition.
3The defendant identified two main issues: whether the claimed injury arose out of or in the course of his employment (described as “causation”); and the loss of earning capacity consequence. Although the pain and suffering consequences were not conceded by the defendant, and its counsel made submissions against such a finding, if causation is resolved in favour of Mr Hingeley, then that consequence is easily resolved in his favour. He has undergone two major operations on his lower back, resulting in the fusion of two levels and the replacement of a lumbar disc and he is still experiencing pain and functional restriction. This will last into the foreseeable future.
4The hearing of this application was protracted. During cross-examination of Mr Hingeley on the first day of hearing, he became upset and broke the audio-visual link between his home and the courtroom.[1] It took more than six months for the hearing to resume.
[1]Transcript (“T”) 60-61
5The evidence was confined to the affidavits of Mr Hingeley, his oral evidence and a multitude of medical reports and other documents.
Circumstances
6Mr Hingeley is now thirty-nine. He is single. He was educated to Year 10 level. After leaving school and, for a year or more, he worked as a spare parts interpreter for Etheridge Ford in Ringwood. This involved selling spare parts to the public. Some knowledge of motor vehicles and parts was necessary.
7For about two years, he was apprenticed as an automotive spray painter to a business called Woods Accident and Repair. He did not complete his apprenticeship with that employer.
8On 23 September 2002, he started working for Paccar as an automotive spray painter. He worked 40-hour weeks, whether on day or afternoon shifts. His work involved some panel beating, even though he is not qualified as a panel beater.
9While employed by Paccar, he attended the Kangan Institute of TAFE and obtained a Certificate III in automotive spray painting. Curiously, his attendance at TAFE was his doing, not that of his employer. He used annual leave and rostered days off work to attend.
10As a spray painter with Paccar, his duties involved a lot of bending, stretching, twisting, working above shoulder height and repetitive lifting or pulling heavy objects. Generally, he stood but also knelt or squatted. It involved frequent climbing using ladders. Overall, he found the work strenuous and physically demanding.[2]
[2] Other aspects of his work are set out in the CoWork report at pp 14-15 (see below))
11In about 2004, Mr Hingeley first felt lower back pain. It occurred while he painted a chassis on the afternoon shift. It started as a dull ache which disappeared with rest at night. Over time, the pain worsened but he persisted working.
12On 21 April 2009, Mr Hingeley’s right index finger was x-rayed. No fracture or dislocation was found.
13On 1 July 2009, his general practitioner, Dr Edward Petrov prepared a mental health care plan for him and referred him to a psychologist. The practitioner prescribed the anti-depressant, Effexor, which he took.[3] Five days later, his practitioner certified unfitness for work due to anxiety and poor sleep.
[3]Defendant’s Court Book (“DCB”) 144
14Meanwhile, on 10 December 2009, Mr Hingeley accepted an offer of voluntary redundancy. He requested the offer because he “could not cope working there any longer”. His back was an issue then but he was uncertain then whether its state was due to his work.[4] There were other reasons for him seeking redundancy. At the time, he was working full-time, performing his normal duties. He did complain of his back pain to his team leaders and fellow employees[5] but none was prepared to confirm this to him. He never filled out an incident report as he did not know how to do it. He did not mention his back when filling out his redundancy application.
[4]T30
[5]T26
15During 2010, Mr Hingeley obtained a disability support pension because of his tiredness, lethargy, myalgia and depression.
16On 4 February 2010, Dr Petrov doubled the strength of the Effexor. In November 2010, Dr Raftis noted his anxiety and depression was impairing his concentration, memory and aggression. But, according to Mr Hingeley, the practitioners were wrong in their diagnoses. He suffered from the complications of POTS.[6]
[6]T56
17Also, during 2010, Mr Hingeley hurt his left shoulder, performing resistance training while studying to be a personal trainer. On 26 May 2010, an ultrasound revealed:[7]
“Subdeltoid bursitis with bursal bunching.
Changes of the acromioclavicular joint raise the possibility of previous arthropathy presumably on the bases of traumatic arthropathy with widening of the acromioclavicular joint space.”
[7] Report dated 26 May 2010
18In his oral evidence, Mr Hingeley downplayed its significance by saying the shoulder did not “go pop”.
19In early 2011, Mr Hingeley underwent CT scans of his brain. The clinical note stated:[8] “Traumatic head injury left lateral frontal area. Swelling around the left eye.” This injury came from a fight between Mr Hingeley and a “friend” over non-payment for work (24 March 2011). It is the subject of a brief report from a psychologist, Dr Bob Rich.[9] Dr Rich considered Mr Hingeley was deeply depressed before the fight.
[8] Report dated 1 March 2011
[9] Report dated 3 January 2012
20In about May 2011, Mr Hingeley suffered a stress fracture to his left foot. He was keen to resume football training.[10]
[10] Letter from Dr Conway to Dr Rafia dated 7 June 2011
21On 28 June 2011, his general practitioner, Dr Nihal Rafia, completed a standard form medical report for job capacity assessment. The report was for Centrelink. She noted the conditions with the most impact were psychological: depression, Post-Traumatic Stress Disorder and Anxiety. The effect of these conditions was to impair his cognitive functioning. She was uncertain about his prognosis. In answer to this question – “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” – she only identified a stress fracture in the left foot and the need to avoid playing sports for six to twelve weeks. Obviously, there was no mention of the back.
22On 16 October 2011, Mr Hingeley underwent an operation on the little finger to stabilise the DIP joint following a fracture. According to the history he gave, the finger was fractured while he played football in mid-August. He did not then seek medical treatment as he wanted to continue playing football.
23On 30 January 2012, CT scans were performed. The radiologist commented:
“The bony architecture of the vertebral bodies demonstrates defects of the pars interarticular at the level of L5 which are sclerotic and normally defined and longstanding. This is associated with a small spondylolisthesis of 7mm. The pars defects are associated with congenital non fusion of the lamina of L5 in keeping with most likely a longstanding defects of the pars interarticularis at that level.”
24Dr Petrov referred Mr Hingeley to the Spinal Unit at the Austin Hospital. In his letter of referral, he wrote: “He has chronic LBP, that recently much exacerbated by his football training”.[11] Dr Petrov wrote a somewhat similar letter to the neurosurgeon, Mr Armin Drnda.[12]
[11] Letter dated 6 February 2012
[12] Letter dated 21 February 2012
25Although unclear as to why it was necessary, MRI scans were performed on 19 October 2012. The radiologist concluded:
“Grade 1 anterolisthesis of L5 on S1 secondary to bilateral pars interarticularis defects and resultant moderate to severe bilateral L5 / S1 neural exit foraminal narrowing with compression of the exiting L5 nerve roots, right ≥ [greater than] left. No further neural impingement of the lumbar spine.”
26On 12 November 2012, Mr Hingeley received a CT-guided L5 nerve block, which gave minimal relief.
27Mr Hingeley lodged an injury claim form in 2012. He sent it to the Authority directly, not Paccar.
28In 2010 and, perhaps 2012, he sought retraining as a personal trainer. He tried an online course twice. He was able to spend half a day in front of his computer studying and did this four or five days a week over several months.[13] His back prevented him from passing the practical side of the course and he did not complete it. He has never worked in that capacity.
[13]T38
29Mr Hingeley suffers from an unrelated condition called POTS which causes dizziness from time to time.
30After his redundancy, he continued playing golf. He practised daily for a few hours, trying to improve his swing. He did not play in competitions: he did not see the point in competitions.[14] He trained or practised with the local football club. He did it for fitness purposes and did not play competitively. During the time he experienced back pain, Mr Hingeley played golf and trained for Australian Rules football.
[14]T38
31For four years his general practitioner is Dr Petrov. Although claiming he mentioned his back pain to Dr Petrov earlier, the first record of back pain occurs on 30 January 2012.[15] Apparently, he told the doctor his back was aggravated by football training. CT and MRI scans of the lumbar spine followed. The latter showed a Grade 1 spondylolytic spondylolisthesis of L5 on S1 with moderately advanced degenerative disc pathology at L5-S1. There was degenerative disc desiccation at L4-5 with a minor central disc bulge. There was moderate to severe bilateral L5-S1 neural and foraminal narrowing with compression of the exiting L5 nerve roots, right greater than left.
[15]DCB 153
32On 7 March 2012, he saw a neurosurgeon, Mr Armin Drnda. On 12 November 2012, his back was injected but there was no long-term relief.
33Further MRI scans on 1 February 2014 revealed:
(a) L4-5 disc – a broad based posterior central disc protrusion with annular fissure, causing some narrowing of the lateral recesses but no evidence of neural compression;
(b) L5-S1 disc – anterolisthesis of uncovered degenerate intervertebral disc. There is foraminal extension of the disc bilaterally with exiting L5 nerve roots bilaterally;
(c) a Grade one anterolisthesis of L5 upon S1, with forward slip of approximately 7 millimetres.
34On 30 July 2014, Mr Hingeley underwent an L5-S1 fusion at St Vincent’s Hospital. He was discharged two days later. Initial scanning suggested a satisfactory surgical result; however, during the next twelve months, he experienced pain. In early 2017, it was discovered the fusion had not united fully and there was significant desiccation of the L4-5 disc.
35As a public patient, Mr Hingeley waited until 4 March 2019 to undergo further surgery to repair the earlier surgery. This latter surgery involved the removal of the rods and cages at the L5-S1 level, an anterior interbody fusion at L5-S1 level, an arthroplasty at the L5-S1 level after discectomy of the L4-5 disc and placement of a prosthetic disc and re-instrumentation at the L5/S1 level. This surgery gave some relief.
Medical and other reports
Dr Petrov
36Dr Edward Petrov is a general practitioner. Between 2009 and 2013, he treated Mr Hingeley.[16]
[16] Report dated 3 April 2013
37As to the cause of Mr Hingeley’s back complaints, Dr Petrov noted:
“Mr Hingeley states that he first developed tightness in the lower back with radiation down the posterior thighs about 5 years ago. He complains his symptoms have worsened over the past two or three years. These symptoms could be consistent with his work as a spray painter for some years. He has not worked for the past 3 years.”
38A little later in his report, Dr Petrov notes Mr Hingeley is exercising “a lot”, saying “It has been notated that he is cycling approximately 50 kilometres weekly”.
Dr Trigg
39Dr Peter Trigg is a general practitioner at the Yarra Valley Clinic. In May 2013, he took over the treatment of Mr Hingeley from Dr Petrov.[17]
[17] Reports dated 4 February 2014 and 12 April 2018
40In his first report, and adopting the history given earlier, Dr Trigg said:
“Mr Hingeley states that he first developed tightness in the lower back with radiation down the posterior thighs about 5 years ago. He complains his symptoms have worsened over the past two or three years. These symptoms could be consistent with his work as a spray painter. In view of his known back pathology and the types of painting he was doing (Large trucks - involving the need for ladder climbing, bending into awkward spaces etc), there would have been a significant adverse affect on his condition by his work duties. My information is that he has not worked for almost 4 years.”
41Dr Trigg repeated that opinion in his second report.
Mr Drnda
42Mr Armin Drnda is a neurosurgeon. Following referral from Dr Petrov, Mr Drnda first saw Mr Hingeley on 7 March 2012.[18] Relying on the results of CT scans and his examination, Mr Drnda diagnosed an L4-5 disc protrusion and L5-S1 spondylolisthesis. Since surgery was not indicated, he recommended continuing with conservative treatment, avoid lifting heavy weights and objects in the gym, avoid contact sports and perform swimming and power walking.
[18] Report dated 18 November 2013
43As to causation, Mr Drnda said:
“At the time of the consultation the patient did not potentially have stated (sic) cause of his problem. However, exposure to physical strain working as a panel beater would be one of the contributing factors for aggravation of his potential pre-existing condition.”
44In an earlier report to Dr Petrov, Mr Drnda said:[19]
“… his work as a spray painter and panel beater has significantly contributed to him developing his spondylolisthesis. The basis of that was spondylolysis which is a congenital condition which appears in over 5% of people normally and is developed usually under physical strain later on in young adulthood or later in life.”
[19] Report dated 7 March 2012
Mr Quan
45Mr Gerald Quan is a spinal and orthopaedic surgeon. He saw Mr Hingeley at the Austin Hospital on 12 July and 20 December 2012.[20] He, too, had access to the CT and MRI scans. He diagnosed a Grade 2 L5/S1 lytic spondylolisthesis with bilateral L5/S1 exit neural foraminal stenosis.
[20] Report dated 21 January 2013
46As to causation, in somewhat similar fashion to Mr Drnda, he qualified his expertise, but then said:
“… He has a lytic spondylolisthesis at L5/S1. The cause of the lysis (defect or gap in the pars interarticularis of the L5 vertebra) is a subject of congecture (sic). The gap in the pars defect are usually developmental. However, sometimes they can be caused by an acute fracture or trauma, or can be a stress fracture due to repetitive flexion and twisting and axial load movements. The fact that the pars defect were sclerotic and well defined on his CT scan suggests that this is a chronic, long standing problem.”
47In a later report, Mr Quan returned to causation:[21]
“Employment as a spray painter and panel beater, requiring work in awkward positions and requiring repetitive bending, twisting, heavy lifting and constant standing, may have contributed to the development of your client’s lower back injury and clinical symptoms.”
[21] Report dated 1 July 2013
Physiotherapist
48Ravi de Soysa is a physiotherapist. On referral from Dr Petrov, he treated Mr Hingeley in February 2012.[22] Apart from detailing his treatment, Mr de Soysa took this history:
“… with an interesting history of lumbar spine and bilateral leg pain which has troubled him in this pre-season of football. He reports a long history of lumbar spine pain over 8 to 10 years possibly related to five motor vehicle accidents … .”
[22] Report to Dr Petrov dated 16 February 2012
Dr Pandeli
49Dr Vicki Pandeli is a cardiologist. Between April 2016 and June 2018, she treated Mr Hingeley’s condition, which she describes as autonomic instability.[23]
[23] Reports dated 6 April 2018 and 21 February 2020
50Dr Pandeli considered his employment with Paccar did not cause his autonomic instability; however, periods of prolonged standing, hot environments or regular postural change may exacerbate its symptoms. Generally, autonomic instability would make it difficult for someone to work in hot environments or stand for prolonged periods. It is a chronic disorder with a prognosis being difficult to give.
Mr Kossmann
51Mr Thomas Kossmann is an orthopaedic surgeon. At the request of Mr Hingeley’s solicitors, he examined him on two occasions. His last examination occurred on 6 December 2019.[24]
[24] Report dated 6 December 2019
52Mr Kossmann says Mr Hingeley told him he developed back pain in mid-2009 and saw his general practitioner about this on several occasions.
53Mr Kossmann noted the procedures entailed in the revising surgery and the POTS, and diagnosed a failed back surgery syndrome.
54Mr Hingeley’s solicitors asked this question:
“The extent to which Mr Hingeley’s condition can be related to the course of his employment with Paccar Australia Pty Ltd.”
Mr Kossmann answered:
“I believe that Mr Hingeley’s lumbar spine condition is related to the course of his employment with Paccar Australia as outlined above. Mr Drnda expressed the same opinion as mentioned in his report dated 2 May 2012.”
55The expression “as outlined above” is probably a reference to the history he took from Mr Hingeley about the nature of his work: a lot of climbing, standing, squatting, painting and sometimes working in strange positions. It is also a reference to this sentence, which is factually disputed:[25]
“… He told me that he developed back pain in mid-2009 and saw his GP in regard to this on several occasions. Mr Hingeley told me that despite his treatment by his GP, he suffered from ongoing pain issues in his lumbar spine.”
[25] At p 1
56Mr Hingeley could not return to his pre-injury duties of a spray painter. There was a capacity for modified duties without any physical component. He should avoid activities involving prolonged sitting, standing, walking, driving or steering, repetitive bending or twisting and lifting. He should avoid walking long distances, on uneven ground, up and down stairs, on inclines or declines, up and down ladders, kneeling, squatting or carrying objects greater than 5 kilograms in weight. These restrictions would continue into the foreseeable future.
57His prognosis was guarded. He will need medicines. There may be further surgery due to the deterioration in his lumbar spine
Professor Bittar
58Professor Richard Bittar is a neurosurgeon. At the request of Mr Hingeley’s solicitors, he examined him on four occasions and provided four reports.[26] The last examination occurred on 19 November 2021.[27] This examination was performed by Telehealth and there was no physical examination. Professor Bittar relied upon his examination findings in March 2021.
[26] Reports dated 18 April 2018,
[27] Report dated 18 November 2021
59Professor Bittar took a history of full-time employment at the time of cessation and, at times, struggling to perform the work due to pain. He understood Mr Hingeley left Paccar to find other work not involving potentially toxic fumes and “a greater deal pf physical activity”.
60Professor Bittar took this history:[28]
“He began to experience back pain during the course of his workplace activities in around 2004 or 2005 … He also experienced pain radiating into his legs at the same time. His symptoms would vary according to the types of activities he was undertaking at work. In particular bending forwards, lifting, twisting and forceful pushing or pulling would precipitate lower back pain radiating into his legs. Typically his pain would progressively worsen with these types of activities during the course of a working day, and would improve at the end of the day once he went home. He would experience further improvement overnight, and hence he was able to resume his workplace activities the following day.”
[28] Report dated 18 April 2018 at p 2
61Mr Hingeley complained of suffering from lower back pain most of the time. On average, its severity was three out of ten, when zero is no pain and ten is the worst in Mr Hingeley’s eyes. The pain worsens by certain activities including sitting for more than 90 to 120 minutes, standing or walking for more than 120 minutes and repetitive or sustained bending or twisting or any heavy lifting. He suffers pain in the soles of both feet due to wearing shoes and walking.
62Professor Bittar diagnosed an aggravation of lumbar spondylolisthesis and pseudoarthrosis (failure of fusion), with Mr Hingeley’s employment with Paccar as a significant contributing factor to the aggravation of his longstanding, asymptomatic spondylolisthesis.[29] The employment was also a significant contributing factor to the need for revising surgery. He was likely to experience pain and restrictions for the foreseeable future.
[29] Earlier, he called it the dominant factor
63As to work capacity, Professor Bittar saw a permanent incapacity to perform his pre-injury duties or any realistic capacity for work with a significant physical or manual component. There was a theoretical capacity for limited sedentary work. Limited in terms of hours and days and activities.
Dr Middleton
64Dr David Middleton is an occupational health and rehabilitation consultant. He has examined Mr Hingeley on three occasions at the request of his solicitors, with the most recent being on 12 February 2021. This examination was performed audio-visually.
65As befits his speciality, Dr Middleton took a particular interest in the nature of Mr Hingeley’s work with Paccar:[30]
“This involved awkward, heavy work which he performed for the next two years, after which he was transferred to the main paint shop, painting the truck cabins. All work was manually handled including movement of sections of the vehicle which, because of the toxic nature of the paint he was required to wear specific personal protective equipment including a fresh-air helmet, such that by the end of the day he would have a sore back, which initially would recover overnight, but subsequently would build up over the week and take the weekend to recover.”
[30] Report dated 24 January 2018 at p 3
66Dr Middleton took a history of low back pain starting in about 2002, with regular pain developing about twelve months later (late 2003). By then, Mr Hingeley is spray painting the chassis of trucks.
67In his first report, Dr Middleton saw his work aggravating an asymptomatic spondylolysis/spondylolisthesis, possibly causing lytic changes in the L5 pars. It also caused lumbar instability at L5/S1. Whether through the instability or otherwise, the work caused moderate to severe L5/S1 neural exit foraminal narrowing. The instability at L5/S1 caused a derangement of the L4-5 disc and a bulge or protrusion.
68Since pain in Mr Hingeley’s lower back was first noticed in about 2004, Dr Middleton considered his condition started and is directly related to the course of his employment. By “condition”, Dr Middleton includes POTS, which developed due to the significant reduction in physical activity, presumably after his resignation.
69As I understand Dr Middleton’s reports, there are three aspects to his diagnosis:
(a) aggravation of the pre-existing spondylolisthesis at L5/S1. This condition was stable before its aggravation;
(b) aggravation of the lumbar spondylosis at L4-5 and L5/S1;
(c) the condition of his back significantly impaired his ability to remain fit and was a likely precursor to the onset of POTS. The existence of POTS has impeded the treatment of his back or it has aggravated his back injury because he has developed neuropathic pain.
70(a) and (b) caused lumbar instability and led to the fusion at L5/S1 and the insertion of a prosthetic L4-5 disc.
71His diagnosis encompasses the issue of causation or, as he put it, there is a definite relationship between the condition and employment with Paccar. In answer to another question posed by Mr Hingeley’s solicitors, Dr Middleton elaborated. He reiterated there were no back symptoms when Mr Hingeley started with Paccar. Symptoms emerged before and deteriorated after redundancy in 2009. As to his work, Mr Hingeley is tall. He wore protective equipment. His work was awkward, forceful and repetitive. He used heavy equipment above shoulder height and while reaching.
72Throughout, Dr Middleton considered Mr Hingeley permanently incapacitated for his pre-injury employment. His view as to capacity for suitable work varied. His initial view occurred before the rectifying surgery while his second and third occurred afterwards. At the second examination, and after considering the elements of the concept of “suitable employment”, he considered:[31]
“… Mr Hingeley’s residual and very limited transferable skills will not support him gaining a realistic job, and with the ongoing total lack of occupational rehabilitation services or vocational re-education, his capacity to procure and maintain any employment is negligible.”
[31] Report dated 10 February 2020 at p 15
73Even though the 15 April 2018 report of Dr O’Callaghan was provided to Dr Middleton for his second and third examinations, the importance of the link of POTS with his employment attained some significance in Dr Middleton’s third report. Notwithstanding the contribution of POTS, Dr Middleton maintained his view Mr Hingeley is incapacitated for work involving a significant physical component and, after again examining “suitable employment”, he expressed the same view.
74His prognosis was poor, given a history of conservative treatment and the surgeries. There is a definite likelihood of a deterioration in the state of his back because of the damage to his spine and his inability to undertake an adequate physical rehabilitation programme.
Mr Simm
75Mr Rodney Simm is an orthopaedic surgeon. At the request of the defendant’s solicitors, he examined Mr Hingeley on 15 October 2013, 28 January 2020 and 2 March 2021.[32]
[32]Reports dated 15 October 2013, 18 November 2013, 28 January 2020 and 2 March 2021. The report dated 18 November 2013 was a supplementary report and did not arise from an examination.
76With his first examination, Mr Simm considered Mr Hingeley’s condition was due to the spondylolytic spondylolisthesis of L5 on S1 and associated degenerative changes to the L4-5 and L5/S1 discs. There was also L5/S1 foraminal narrowing. There were no signs of radiculopathy.
77The pars defects occurred in Mr Hingeley’s early adolescence. These defects caused the spondylolisthesis. The instability caused by these conditions is frequently associated with some acceleration of degeneration of the L4-5 and L5/S1 discs. The foraminal narrowing is due to the forward slip of L5 on S1. To Mr Simm, Mr Hingeley’s disability was due to the above pathology and an adverse pain response.
78Mr Simm saw Mr Hingeley’s incapacity for employment as the combination of developmental pathology (that is, spondylolisthesis) and the possible acceleration of the degenerative pathology in the L4-5 and L5/S1 discs. Whether referring to the combination or the discs, he commented:[33]
“… however, the contribution from employment is difficult to determine considering that the condition, although symptomatic and present at the time he ceased work, has obviously deteriorated markedly in the years that have followed cessation of his employment.”
[33] At p 5
79Later in his report, Mr Simm returned to the possibility of acceleration of the clinical course of Mr Hingeley’s condition but could not say how long this possible acceleration lasted, except that absent the effects of his employment, he expected:[34]
“… that he would be in his current position at some time in the not too distant future. He was an active man who was keen to continue with strenuous sporting activities and even in a sedentary, light, non-physical job I would have expected that his condition would have become problematic.”
[34] At p 6
80With his second examination more than six years later, unlike his first examination, Mr Simm was able to examine Mr Hingeley’s thoraco-lumbar movements, which were full and without apparent pain. His diagnosis remained the same: a combination of developmental structural change (spondylolytic spondylolisthesis) and secondary constitutional degenerative change (the degeneration of the L4-5 and L5/S1 discs).
81Mr Simm remained troubled by the lack of reported problems while Mr Hingeley worked. Absent a record of significant symptoms associated with his work duties, he doubted whether his employment significantly influenced the clinical course of the underlying pathology. As to his earlier view of possible acceleration, he now rejected it after reconsidering the duration of the employment and his age at the time.
82On 2 March 2021, Mr Simm examined Mr Hingeley for a third time. He did this audio-visually, owing to the restrictions caused by the pandemic. He told Mr Simm of daily back symptoms, from discomfort to pain. Even with the pain, he does not take pain-relieving medicines. The pain occurs to left and right of his lower back rather than the centre. There were no neurological signs.
83Mr Simm did not ask Mr Hingeley to demonstrate motions of his lower back. He accepted Mr Hingeley’s reluctance due to the effects of POTS. He accepted Mr Hingeley’s assurance his back was flexible and he could touch his toes without difficulty.
84Mr Simm did not relate Mr Hingeley’s current condition with his employment with Paccar after considering these factors:
(a) he was employed for between six and eight years;
(b) his work was physically demanding, with frequent climbing, bending, twisting, reaching and lifting;
(c) there was no documentation of him experiencing back pain while working;
(d) his history of experiencing back pain and tightness did not prevent him from doing his normal duties until he resigned;
(e) these symptoms did not cause him to undergo any treatment;
(f) in the years following his resignation, he was very physically active and was training for football in 2011.
85In his discussion, Mr Simm focussed on Mr Hingeley’s original pathology, being bilateral L5 spondylolysis. This is a defect of the L5 pars interarticularis process, which develops in childhood or adolescence and is usually established by eighteen. The defect is due to stress fractures which do not unite. He believes the spondylolysis occurred before Mr Hingeley started his employment with Paccar. The spondylolysis predisposes to back pain and to secondary degenerative changes in the intervertebral discs. He noted 5 per cent of the general population suffered from spondylolysis and only 10 per cent of that 5 per cent suffer from significant pain. Even if Mr Hingeley had pain while working, it was mild and did not interfere with his activities. Mr Hingeley’s present condition is a “reflection” of the clinical course of L5/S1 spondylolitic spondylolisthesis.
86Physically, Mr Hingeley could perform the occupations of spare parts interpreter, customer service officer, call centre operator, insurance clerk (automotive) and ICT customer support officer. He would need some flexibility with static postures and be confined to light work. If retraining was required, he could do that.
Dr Wood
87Dr Timothy Wood is a sports and exercise medicine physician. At the request of the defendant’s solicitors, he examined documents but not Mr Hingeley.[35] He relied upon the statement of Mark Tate, a paint shop supervisor, and the statement of another employee, Mr McDonald.
[35] Report dated 24 March 2021
88Dr Wood examined the clinical notes of the Yarra Valley clinic. Despite 64 visits between 2003 and 2011, none related to his back. The first attendance concerning the back was on 30 January 2012. His general practitioner noted: “… complaint of severe low back pain, longstanding bilateral, left worse than right, long discussion”. Subsequent CT scans revealed a 7 millimetre spondylolisthesis at L5/S1 due to bilateral defects of the pars interarticularis both of which were sclerotic and longstanding.
89In May 2011, his general practitioner diagnosed a stress fracture of metatarsal bone of the left foot. Dr Wood commented:[36]
“… For a metatarsal stress fracture to develop it requires significant running loads from which one could reasonably assume Mr Hingeley was not suffering from significant back pain at that time, nearly 18 months after finishing work at Paccar.”
[36] At p 4 of the report
90Dr Wood considered it likely Mr Hingeley was playing golf at about the time of this fracture.
91Dr Wood concluded Mr Hingeley’s employment with Paccar was not a significant contributing factor to his claimed lower back condition because:
(a) the findings of the CT scan on 30 January 2012 show pars defects which were likely to have existed before Mr Hingeley started work with Paccar;
(b) from experience he found pars stress fractures develop from repetitive lumbar extension. Few of Mr Hingeley’s work activities involved the extended position; more commonly the flexed position. His employment did not predispose the development of bilateral stress fractures or defects;
(c) there is no record of Mr Hingeley complaining at work of a back injury or pain. There is no indication he took voluntary redundancy because of back pain;
(d) it is more likely Mr Hingeley’s football, golf and other activities has been a significant contributing factor to the onset of his back pain rather than his employment ending more than over two years earlier;
(e) in answer to the question – “Do you consider the worker was likely to have come to his present condition in any event notwithstanding the described injury?” – he replied:
“The majority of individuals who have spondylolisthesis in their lumbar spine, usually at L5/S1, are unaware of this condition because the body adapts to the spondylolisthesis. A small percentage of patients with spondylolisthesis do become symptomatic often without any obvious precipitating event, i.e., through the course of normal daily activities.”
92The parties tendered reports from two specialists dealing with POTS. This was done, even though Mr Hingeley did not rely upon the condition in this application.[37] Mr Hingeley’s non-reliance upon the condition had implications for his case about the loss of earning capacity consequence.
[37] See transcript at p 3 and at p 110
Associate Professor O’Callaghan
93Associate Professor Chris O’Callaghan works in a clinic which deals with cardiovascular and autonomic conditions.[38] He has treated Mr Hingeley, first seeing him on 19 September 2013.
[38] Reports dated 5 April 2018 and 28 June 2021
94Associate Professor O’Callaghan diagnosed Mr Hingeley as suffering from orthostatic intolerance.[39] The condition is due to the blood circulation being inadequate to cope with the effects of gravity. It causes dizziness and faintness when upright. The condition is frequently a consequence in the reduction of physical activity. Since his symptoms developed after he developed back pain, Associate Professor O’Callaghan concluded Mr Hingeley’s back pain caused the reduction in physical activity and was the most likely cause of the orthostatic intolerance.
[39]He noted it is sometimes called postural tachycardia syndrome, dysautonomia or neurally mediated hypotension
95Since most occupations require employees to maintain an upright posture, Associate Professor O’Callaghan considered the condition would be a problem for Mr Hingeley if he returned to work.
96Associate Professor O’Callaghan expected this condition to be unchanged for the foreseeable future, with the possibility of deterioration.
Dr Hammond
97Dr Jeremy Hammond is a physician with extensive experience in internal medicine, hypertension and cardiovascular diseases. At the request of the defendant’s solicitors, he examined affidavits, clinical notes and many medical reports to advise about Mr Hingeley’s POTS.[40]
[40] Report dated 27 January 2022
98After his review, Dr Hammond:
(a) diagnosed POTS;
(b) considered the level of his symptoms were relatively mild;
(c) did not regard Mr Hingeley’s back injury as a specific contributing cause to his orthostatic/POTS. He identified Mr Hingeley’s psychological state and its treatment as contributing factors or causes to the condition. He disagreed physical deconditioning due to inactivity was a significant contributing factor. A further possible contributing factor was Mr Hingeley suffering a viral infection in 2008;
(d) did not arrive at a definite prognosis. He noted the usual course of the condition in patients generally. He also noted the adverse impact of a person’s psychological and psychosocial state.
(e) considered Mr Hingeley could perform a wide range of occupations which are sedentary or involve light to moderate physical activity including repetitive moderate physical activity. He cannot perform work involving prolonged standing or hot environments.
CoWork
99Kaye Jones is a rehabilitation consultant. She was engaged by CoWork Pty Ltd to prepare a vocational assessment and labour market analysis report concerning Mr Hingeley.[41] Apart from interviewing Mr Hingeley audio-visually for nearly two-and-a-half hours, she was provided with a large number of medical reports.
[41] Report dated 23 February 2021
100Consistent with the evidence he gave in court, Mr Hingeley maintained he needed to rectify his health condition before contemplating retraining or returning to work.[42] Ms Kaye concluded:[43]
“Mr Hingeley presented as having no motivation to return to the workforce. At the conclusion of the interview, when asked directly if he wanted to work, he stated, ‘I don’t know if I could be bothered to be honest. I honestly think, is it worth it?’… .”
[42]DCB 82
[43] At p 17
101Based on what Mr Hingeley told her and what she gleaned from the medical reports, Ms Kaye formed a view of his physical capacity. She gained an understanding of his transferable skills, including personal attributes. Subject to medical approval, she considered five occupations as examples of potentially suitable occupations for Mr Hingeley: spare parts interpreter; customer service officer; call centre operator; insurance clerk, and ICT customer support officer.
Injury and causation
102Section 134AB of the Act allows a worker to recover damages in respect of an injury arising out of, or in the course of, employment provided the injury is a “serious injury”. “Injury” is defined in s5. The definition contemplates an injury simpliciter and an extended injury. Mr Hingeley relies on an extended injury, being the aggravation of a pre-existing injury, spondylolisthesis.
103Relying on an extended injury requires Mr Hingeley to prove his employment with Paccar was a significant contributing factor to the occurrence of the injury. He must also prove that the injury arose out of or in the course of his employment with Paccar. However, in a case like this one, if he proves his employment was a significant contributing factor to his injury, he will also establish that the injury arose out of or in the course of his employment.
104In assessing the evidence, unusually for these types of cases, the credibility of Mr Hingeley was not in issue. This is understandable from the defendant’s perspective in view of the extraordinary answers he gave during cross-examination about his capacity for work.
105Turning to the medical evidence.
106In his 2013 report, Dr Petrov said the symptoms could be consistent with his work as a spray painter for some years but then noted he has not worked for the past three years and he was doing or had been doing a lot of exercise. This is slender support for the causal connection between employment and injury. Using the words “could be” is tentative.
107Dr Trigg has had a much longer association with Mr Hingeley than Dr Petrov. His views are stronger, expressing the view his work had a significant adverse effect on the condition of his lower back.
108Although Mr Drnda introduced his report to the solicitors with a qualification, it did not stop him expressing a view about the causal connection. The defendant submits Mr Drnda’s view that Mr Hingeley’s work was one of the contributing factors does not meet the “significant contributing factor” requirement. Although medical practitioners, especially those providing medico-legal reports, use the expression “significant contributing factor”, whether the required test has been satisfied is a matter for me as a question of mixed fact and law. Whether Mr Drnda’s opinion satisfies a test in its own right is immaterial. His opinion is a piece of evidence only and, rarely, is conclusive of anything.
109The defendant submitted it is unclear from his report whether Mr Drnda understood the nature of Mr Hingeley’s work as a spray painter. It is true he did not spell out the nature of his duties. That is understandable. Mr Drnda is not, for instance, an occupational physician. He was aware Mr Hingeley worked as a spray painter and a panel beater. In the context of this application, this is not a basis to reject Mr Drnda’s opinion, for one supposes he had some understanding of the duties of each activity.
110Mr Quan believes Mr Hingeley’s spondylolisthesis is longstanding. At the time of Mr Quan’s examinations, Mr Hingeley was twenty-nine. He started his employment with Paccar at nineteen. The language of Mr Quan is imprecise. The word “develop” could mean Mr Hingeley’s work initiated the pars defects, which led to the spondylolisthesis forming. It could mean the defects preceded the start of his employment but they and the spondylolisthesis were made worse by the employment. In the passage I cited from Mr Quan’s second report, he asserts the possible contribution of Mr Hingeley’s work to the development of his lower back injury and clinical symptoms.
111As to causation, Dr Kossmann answered the question asked by Mr Hingeley’s solicitors. Since the question was vague, seeking an answer as to the whether the condition was related to the employment, the answer was equally so. At least an aspect of the history taken by Dr Kossmann is inaccurate – “He told me that he developed back pain in mid-2009 and saw his GP in regard to this on several occasions.” Mr Hingeley placed the start of his pain earlier. He may have told his then general practitioners of it but no complaint was recorded and no treatment provided.
112The defendant submits Dr Kossmann was unaware of the broken toe, the injured shoulder and the activities which caused them, and his ignorance undermines the validity of his conclusion on causation. It is not a question of disregarding Dr Kossmann’s opinion but one of its usefulness in resolving the issues facing Mr Hingeley in this proceeding. Its usefulness has its limitations because of the language in which his opinion on causation is couched. Because it does not touch upon other activities of Mr Hingeley, I cannot use it to weigh the respective contributions of factors raised by the expressions “arising out of or in the course of employment” and “significant contributing factor”. But it does not prevent the use of his opinion as evidence supporting the employment as a contributing factor to the injury.
113The defendant submits Professor Bittar does not refer to Mr Hingeley’s sporting activities except to say that he stopped them. Those activities were sufficiently significant to cause two fractures. Without that knowledge. Professor Bittar could not evaluate their contribution, if any, to Mr Hingeley’s condition. Although not spelt out in these terms, the submission goes to the dual questions of whether the injury arises out of or in the course of his employment and whether his employment is a significant contributing factor to the injury. And for the same reason I gave in relation to Dr Kossmann, it is evidence supporting contribution.
114The defendant submitted similarly in relation to the opinion of Dr Middleton on causation. There is only a brief mention of Mr Hingeley being a keen golfer in his youth and stopping work in order to pursue a golfing career.
115This is the same consideration. Dr Middleton had a better basis to be definite about the causal connection. He achieved a significant understanding of the nature of Mr Hingeley’s work with Paccar.
116As I said earlier, Mr Simm relied on several factors in denying the causal link: the length of his period of employment, being between six and eight years; the nature and physical demands of that employment; the lack of documentation of his experiencing back pain while working; his experience of back pain and tightness did not prevent him from doing his normal duties until he resigned; these symptoms did not cause him to undergo any treatment, and in the years following his resignation, he was very physically active and was training for football in 2011.
117Mr Simm looked for documentary evidence and there was none. This desire is understandable in relation to some plaintiffs but not necessarily for Mr Hingeley. I do accept his evidence of pain and discomfort from the early years of his employment with Paccar and his complaints to his fellow workers. His ability to work normal duties and not seek treatment are factors in my assessment of the causal link but is insufficient to reject, with the other factors, any such link.
118Dr Wood has considerable experience with sportspersons. He emphasises extension as a cause of spondylolisthesis. Certain sports do involve extension: football, gymnastics and aspects of cricket (bowling). Whether his speciality is too narrow to express the view in general terms, I cannot say because I did not hear from him. One expects Mr Hingeley’s work with Paccar involved extension as well as flexion in the activities such as pulling. I daresay flexion would have been the more frequent of those two spinal movements.
119According to Dr Wood, a small percentage of persons with spondylolisthesis become symptomatic through the course of daily activities, often without an obvious precipitating event. A somewhat similar opinion is given by Mr Simm. Spondylolisthesis is present in 5 per cent of the general population and 10 per cent of that 5 per cent experience significant pain.
120Dr Wood relies upon the absence of documentary evidence of complaint and the evidence of no complaint to two of Mr Hingeley’s fellow employees. Since I accept Mr Hingeley’s evidence of pain at work, the lack of documentary evidence loses a great deal of significance. The statements of the fellow employees is not in evidence. Since their negative statements are not before me, it does tend to undermine Dr Wood’s opinion. Mr Hingeley’s comment in his affidavit that he took redundancy because he could not cope begs the question: cope with what?
121From the evidence, Mr Hingeley suffers from bilateral defects of the pars interarticularis at the L5 vertebra. In January 2012, these defects were considered longstanding. They are associated with the congenital non-fusion of the lamina of L5. Caused by the defects is a Grade 1 or 2 spondylolisthesis. There is bilateral narrowing of the foramina causing flattening of the exiting L5 nerve roots. The spondylolisthesis has uncovered the L5/S1 disc which is degenerate, consisting of a broadbased central posterior protrusion with annular fissure.
122On the evidence, I could not find Mr Hingeley’s employment with Paccar caused the pars defects. It is more likely they formed before he commenced that employment; however, the pars defects caused the spondylolisthesis. Again, it is uncertain whether that condition first occurred before his employment. However, the defects and the spondylolisthesis were aggravated by Mr Hingeley’s employment with Paccar. The process of the degeneration of the disc was caused or, if not caused, aggravated by his employment.
123Pausing there. As has happened in this application, there are criticisms of the accuracy or completeness of the sub-stratum of fact assumed by an expert. Plainly, a discrepancy can affect the validity of an expert’s opinion. This was the thrust of counsels’ submissions, especially those on behalf of the defendant. In evaluating those submissions, one should bear in mind what the High Court said in Paric v John Holland Constructions Pty Ltd:[44]
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence … But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the question is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal … to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
As Wigmore states …, ‘the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect’. … .”
(citations omitted)
[44] [1984] 2 NSWLR 505 at paragraphs [9]-[10]
124The issue is whether Mr Hingeley’s employment with Paccar is a significant contributing factor to his injury, bearing in mind, the “injury” is an extended injury. This involves the factors set out in the provision relating to the expression “significant contributing factor”:
(a) the duration of the worker’s current employment; and
(b) the nature of the work performed; and the particular tasks of that employment; and
(c) the probable development of the injury occurring if that employment had not taken place; and
(d) the existence of any hereditary risks; and
(e) the lifestyle of the worker; and
(f) the activities of the worker outside the workplace.
125Apart from the existence of hereditary risks (there are none), the other factors have been already mentioned. The nature, tasks and duration of his employment might easily have led to the injury. His activities outside of the workplace, both during his employment and after leaving it, could also have led to the injury. As Mr Simm and Dr Wood point out, the spondylolisthesis could become symptomatic for reasons other than Mr Hingeley’s employment.
126The use of the indefinite article means that there can be more than one “significant contributing factor”. This is such a case. Mr Hingeley performed work which has been comprehensively described by Dr Middleton. Invariably, it was physical work with occasional heavy aspects. It was performed over nine years on a full-time basis. Its performance was accompanied by pain and discomfort. Mr Hingeley mentioned his symptoms to his general practitioner but not in a way to lead to any treatment or even cause an entry to be made in the clinical records. He mentioned his problems to some of his fellow employees but never reported it formally or sought treatment from Paccar. His problems were not mentioned when applying for a voluntary redundancy. Since redundancy is the elimination of a particular job, that is unsurprising. He engaged in sporting activities after leaving Paccar and they resulted in discrete injuries. Finally, I have had the benefit of various medical opinions, which have been discussed. On balance, I consider Mr Hingeley has established his employment with Paccar was a significant contributing factor to his injury.
127I am satisfied Mr Hingeley suffers from an injury arising out of or in the course of his employment with Paccar and in respect of which his employment with Paccar is a significant contributing factor.
128For completeness, I will consider the other issues raised.
129I would draw no adverse inference through the failure to provide the evidence of two of Mr Hingeley’s fellow employees. They would not help him at his request. Since the solicitors could not compel those persons to give affidavits, then the absence of such documents is understandable. In my experience, solicitors do not subpoena such persons to give evidence in this type of application.
Consequences
Pain and suffering
130It seems to me undergoing the operations Mr Hingeley has undergone to his lower back and the impairments he has been left with, satisfies the narrative test as to pain and suffering consequences. His pain is virtually constant. Its intensity varies. Frequently, he takes pain-relieving and anti-inflammatory medicines to relieve it. He uses back packs but they do not always relieve the pain. The pain is significantly increased if he vacuums or scrubs the floor. Sometimes, the pain increases spontaneously. Sitting and standing for “longer” periods and walking more than short distances increases his pain. He avoids heavy lifting or repetitive or sustained bending and twisting. Travelling by public transport causes increased pain.
Sleep
131Occasionally, his pain wakes him from sleep. He takes strong painkillers and applies ice in order to go back to sleep. Nevertheless, it takes him a long time to go back to sleep, and he wakes fatigued and unrefreshed.
Treatment
132Notwithstanding two bouts of major surgery, he still sees his general practitioner once or twice a month, who, from time to time, prescribes medicines. He receives treatment, including specialist treatment, for his POTS. From time to time, he attends the St Vincent’s Hospital Neurosurgery Department about his lower back. He sees a psychologist.
133He uses ice packs and takes Panadol and Ibuprofen to relieve the pain. He has been prescribed Endone.[45] It was originally prescribed for his kidney stones but they have not troubled him since 2020.
[45]T70
Employment
134Mr Hingeley has not worked for many years. He cannot return to his employment of an automotive spray painter, which has been his main employment.
Golf
135He was a keen golfer. He has played since he was in primary school. He was very good at golf. So much so, others suggested he turn professional. His father was responsible for him stopping golf and other sports at eighteen. His father wanted him to work.
136He did not think he was that good. He cannot now play. He last played before his surgery. He has either sold or given his golf clubs away.
Football
137He can no longer play kick-to-kick football socially.
Cycling
138He cannot cycle as he did before, where he would cycle between 50 and 60 kilometres per week. However, he cycled to the shops. He was then living some distance from the town. He stopped normal cycling because of the pain. He now uses a recumbent cycle at home. However, that kind of cycle is not easy to use in Healesville with its narrow and undulating roadways.
Motorcars
139He liked working on motor vehicles. He cannot do that now.
Dog
140He has a dog which he walks daily for about 30 minutes. He does that every second or third day.
141I am satisfied Mr Hingeley has suffered a “serious injury” from the perspective of pain and suffering consequence. I will now examine his claim in relation to loss of earning capacity consequence.
Loss of earning capacity consequence
142To establish the loss of earning capacity consequence, Mr Hingeley must establish:
(a) his loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and at least very considerable (the narrative test); and
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38); and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[46]
[46] De Bono v Victorian WorkCover Authority [2019] VSCA 85 at paragraph [47]
143Given the state of his back, Mr Hingeley could not return to his pre-injury employment as a spray painter with some panel beating.
144In assessing his capacity for other suitable work, there are three factors involved. First, there is the state of his lower back. Second, there is his POTS. Third, there is his motivation.
145As to the first, I have already spoken of the nature of the pain he experiences. His lower back pain is virtually constant. Its intensity varies. Frequently, he takes pain-relieving and anti-inflammatory medicines to relieve it. He uses back packs but they do not always relieve the pain. The pain is significantly increased if he vacuums or scrubs the floor. Sometimes, the pain increases spontaneously. Sitting and standing for “longer” periods and walking more than short distances increases his pain. He avoids heavy lifting or repetitive or sustained bending and twisting. Travelling by public transport causes increased pain.
146On Mr Hingeley’s evidence, the second plays a large part in his inability to return to work:[47]
Q:“So, is it the case that the reason you can’t return to work is because of your postural hypertension condition?---
A:Well, at the moment it plays a big role. But so, there’s the back and all other problems. But, you know, I would like to test it in the future but, you know, I’ve got to see more doctors.”
[47] T77
147Again:[48]
Q: “And did you tell him [Mr Simm] about that in respect of the prospect that you might start looking for work? That is, you wouldn’t start looking for work until your health improved to the point where you can get out of bed and walk and not faint?---
A:That’s a pretty big part, being able to walk and not faint.”
[48] T83
148Mr Hingeley’s counsel excluded POTS as an injury relied upon in this application. That necessitates the exclusion of its effects when looking at the effect of his back injury. This undermines Dr Middleton’s opinion as to his capacity for work, for he linked the inability to exercise due to POTS as a major cause of his work-related incapacity.
149As to the third, Mr Hingeley is not interested in retraining to perform other work. He has not sought any work. He has not spoken to his medical practitioners about the kind of work he could do or the training necessary to do it. Although saying he cannot afford retraining courses, he does not say he has searched for, examined and evaluated such courses online. He looks at pamphlets from local learning centres if they come in the mail, adding “I’m not really focused on doing any learning at the moment”.[49]
[49] T86
150Mr Hingeley has a technical capacity. He built 90 per cent of his own desktop computer. He acquired this ability by watching his father. He bought the necessary parts online or at a computer shop. He possesses five computer-related devices. He uses three of them (desktop, laptop and tablet) but has not used any to examine courses online. He has not spoken to any doctor about what kind of work he could do.
151CoWork spoke about a course in cybersecurity. In his oral evidence, Mr Hingeley was asked:[50]
Q: “At p 90 of the court book she talks about a course being available for Cyber Security, a free course. Would you be interested in such a course?---
A:No.
Q: Why not?---
A:I don’t believe in security, I think it’s a fad.
Q: Just explain to us what that means, please?---
A:Windows has its own type of security stuff that works and is good enough. You don’t need to spend hundreds of dollars on monthly subscriptions, which I think are a rip off.
Q: `But no one’s asking you to spend money, we’re talking about a course that you can undertake?---
A:Yeah, I’m just not interested in security.”
[50] T90
152When asked about courses associated with computers, he rejected them because the area is extremely competitive and he is skilled in other areas, spray painting and working with his hands. Intense competition means he would not make money:[51]
“It’s got to be worthwhile but. It’s got to be – like, I’m skilled at the moment, I’m worth a fair bit of money to do it. I don’t want to work for half as much as what I used to work for.”
[51] T91
153Despite saying in his affidavit about his ability to work limited hours, he does not think he can. His explanation of those statements in his affidavit is unusual – he read and signed the affidavit but he did not write it. It is a bizarre variation of the complaint that it is not his document. He does not think about work because he does not want to waste time doing so. He maintains it is not good practice working from home. He is not interested in retraining to work from home.
154Mr Hingeley would not seek work as a spare parts interpreter because it does not pay enough. This is an extraordinary answer given he receives about $1,050 per fortnight from Centrelink and pays $720 per fortnight in rent. When told by counsel the job of a spare parts interpreter pays $1,200 per week, Mr Hingeley doubted that that was so.
155Mr Hingeley rejected working in a call centre job because people are annoying. When told how much a call centre operator earns ($1,201 per week), he said it was not enough money, being less than he earnt at “Kenworth”. When asked hypothetically if he would take the job if it paid $5,000 per week, he doubted it, saying he would not be consistent and reliable and would not be able to work until after lunch. When pressed as to what he does in the morning after he gets up, he declined to answer. He added that sometimes he cannot feel his arms or legs and falls over. He must lie on the floor paralysed. To him, this may be due to POTS, which is a condition I must ignore.
156He could work as an ICT customer support officer but would not want to do it because he lacks the patience. Potentially he could do that job when he got fitter.
157He could not afford retraining. He could not consistently and reliably hold down the job of spare parts interpreter.
158Mr Simm considered Mr Hingeley had the capacity to perform the jobs identified by CoWork. He may need some retraining. He was capable of being retrained.
159Professor Bittar considered he would need considerable retraining if he was to find suitable employment. Implicitly, he considers Mr Hingeley has the capacity to be retrained.
160Depending on the success of the surgical revision, Dr Trigg considered there is an ability to retrain.
161Dr Middleton considered he was capable of performing sedentary, non-manual duties that need to be performed in a self-paced manner with rest breaks as required and the ability to change posture frequently.[52]
[52]Report dated 10 February 2020 at p 15
162Dr Kossmann considered Mr Hingeley may have regained a capacity to perform modified duties without any physical component. Once rehabilitated and retrained, he could start on reduced hours and, if possible, build up his hours.
163The burden of proof of the loss of earning capacity consequences rests with Mr Hingeley. His answers in cross-examination do not establish no capacity for work or even the limited capacity set out in his affidavit and agreed to by Professor Bittar. Mr Hingeley has no desire to return to work or undertake retraining. Putting aside his lack of motivation and the effects of POTS, he is capable of being retrained and undertaking suitable employment, possibly on a full-time basis. There is no legitimate basis to reject the view of Mr Simm as to his capacity for work.
164I would reject Mr Hingeley’s claim insofar as it relates to loss of earning capacity consequence.
Conclusion
165I will grant leave to Mr Hingeley to commence to recover damages for pain and suffering consequences. I will hear the parties on the form of my order and the question of costs.
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