Jackson v Warrnambool Pro Clean Pty Ltd

[2009] VCC 1021

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-00697

WARREN STUART JACKSON	Plaintiff
v
WARRNAMBOOL PRO CLEAN PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	6, 7 and 17 August 2009
DATE OF JUDGMENT:	28 August 2009
CASE MAY BE CITED AS:	Jackson v Warrnambool Pro Clean Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1021

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave to bring proceedings in relation to pain and suffering damages – allegation that injury sustained over the course of a particular year and/or on a particular date – these to be treated separately rather than cumulatively – denial of occurrence of injury – successful rehabilitation of plaintiff into the workforce – film then taken of plaintiff performing duties in employment to which he had been rehabilitated – credit of plaintiff – whether consequences satisfy statutory test – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC with	Brown McComish Solicitors
Mr N Bird
For the Defendant	Mr P Scanlon QC with	Lander & Rogers
Mr P Jens
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.

2          The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The particular injury relied upon is one to the low back.

3          I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. The plaintiff relies both on injuries sustained in the general course of employment throughout the year 2002 and/or upon a particular incident of injury on 8 November 2002. It was properly conceded by Mr Brookes on behalf of the plaintiff that these alleged bases for injury would have to be treated separately and not cumulatively. There was no argument but that the plaintiff bears the burden of proof in this matter.

4          Mr D G Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent (save for surveillance material which was tendered, but not in that fashion), which was a most successful and cost-effective manner in which to run an application such as this. In addition, counsel made thorough and very helpful submissions.

Factual background

5          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

6          I regard the plaintiff as being a frank and honest witness. He was quite open about his activities and at times provided information which had the potential to be detrimental to his case. I was impressed by the manner in which he gave his evidence, and formed the view that he was doing his best to answer questions in a forthright and accurate way. I consider him to be a reliable witness.

7          Prior to the plaintiff giving evidence, Mr Scanlon identified the issues as being causation, whether or not the plaintiff sustained injury during the course of his employment, whether any disability existed and stated that the case was a “range case” – that is whether, despite the presence of some pathology, the consequences to the plaintiff were sufficient to satisfy the statutory test. Alternatively, did the case belong in the range of cases that fall short of satisfying the requirements found in s.134AB(38) of the Act? Mr Scanlon also referred to some “very significant credit issues”, particularly arising from statements made in the plaintiff’s sworn affidavits.

8          In relation to this last-mentioned issue, I can understand why Mr Scanlon might have been of the view that such credit issues would arise. However, in my opinion, the oral evidence of the plaintiff diminished them very substantially.

9          The plaintiff is conducting his own window cleaning business and has obtained various contracts, mainly in relation to commercial premises. He employs others in this business, and also works himself. The business is successful. As shall be discussed, the plaintiff has some experience in commercial cleaning, including work with the defendant.

10        Following the onset of the more severe symptoms of his back injury in November 2002 and a period of recovery therefrom, the plaintiff actively participated in rehabilitation. A letter of 18 December 2003 from CRS Australia to the defendant’s insurer of 18 December 2003 refers to the assistance which CRS gave in identifying an opportunity for the plaintiff to return to work, and indeed he had been offered a position with a local window cleaning company (Warrnambool Window Cleaners). The plaintiff commenced this work on 15 December 2003 on a part-time basis and with a view to building up his hours. Apart from there being no secret about this, the job placement was extremely successful. With what appears to be the encouragement of the rehabilitation service, the plaintiff increased his hours whilst being careful with the duties which he performed. He was encouraged by CRS in his endeavours. Ultimately he built up to 30-35 hours per week and was happy to have his rehabilitation file closed. However, there was not sufficient work available with Warrnambool Window Cleaning regularly at that time. The plaintiff completed a course, and then set up his own business as “Jacko The Window Cleaner” in the latter part of 2004. Again, there is no secret concerning any of this.

11        Video material was shown to the court, and this was of the plaintiff performing window cleaning duties. I shall have some further observations to make in relation to the video material shortly. Suffice to say that I do not regard it as having damaged his credit.

12        However, where the credit attack was ultimately focused was essentially on paragraphs 28-30 of the plaintiff’s affidavit of 25 October 2008. In those paragraphs the plaintiff essentially swore that he did some of the manual work of the business on occasions and also had part-time workers to help; his wife had until recently worked full-time in the business, but had to take up other employment because the business was currently operating at a loss; initially the plaintiff worked with the other window cleaners as a team although he confined himself to the easy windows and avoided heavy lifting; and that over the last year it had been getting harder to do the physical aspects of the work and that he had had to decrease window cleaning duties performed by himself significantly due to the injury. This was principally why the business was then currently operating at a loss.

13        It was submitted that the video material showed the plaintiff in fact participating in most, if not all, aspects of window cleaning. It was also put that the plaintiff’s business was not operating at a loss, but a reasonable and increasing profit, and the plaintiff’s tax returns revealed this.

14        In his oral evidence the plaintiff freely admitted that he could perform most, if not all, of the duties required of a window cleaner, and had been so doing, but claimed that he was not as fast as he should be or as fast as those he employed. He also referred to the taking of breaks, the fact that he did not work in the afternoons, and the symptoms and restrictions from which he suffered. His explanation in relation to financial matters was that, because money seemed to be flowing out of the business and he and his wife never seemed to have any, he thought that the business was running at a loss and indeed sought professional financial advice and assistance in this regard. He essentially volunteered that his wife had left the business because she did not like the work.

15        Thus, there may be some inaccuracies or inconsistencies contained in paragraphs 28-30 of the affidavit. It would have been far better if the plaintiff had not sworn the affidavit without correcting these matters in the first place, or not adopted it as being true and correct in the witness box. This demonstrates the perils that can be associated with the drafting, swearing, and adopting of these important documents. It may well be that parts of the affidavit were drafted, whether because of a misunderstanding or on instructions, in a way which “gilded the lily”, even if this was not to any enormous extent. However, documents presented to the court, and particularly documents sworn on oath, should contain no such inaccuracies or exaggerations. Whilst in no way condoning what appears to have occurred, and bearing in mind the forthcoming and frank nature of the plaintiff’s evidence in all other regards, I do not regard his credit as having been severely damaged as a result of these particular inaccuracies.

16        I turn now to the video films themselves. As I said from the bench, certainly they show the plaintiff to be agile and having the capacity to clean substantial commercial windows. However, they also seem to me to show a person bending in such a way as to protect his back – that is, bending with the knees rather than from the waist, and lifting all or part of one foot from the ground when bending into a space such as a car boot. It also seemed to me that the plaintiff did not work as rapidly as his hired assistant, took breaks at times, and slowed down visibly as the work progressed. I am not suggesting that he ground to a halt, but he seemed to me to be working slower and with perhaps more restriction after approximately the first hour or two of work. I should add that he works from approximately 7am to 1pm daily, and effectively rests “or takes it easy” in the afternoons.

17        Video of this nature can have two areas of relevance. It can reflect on credit. It can be relevant in relation to impairment and consequences. As I observed from the bench, when video is used for credit purposes, much depends upon the presentation of the plaintiff and what he has told the court and various examiners. The film of a plaintiff running can be of little or no assistance in relation to credit if the plaintiff freely admits that capacity. Film of another plaintiff walking can be extremely damaging to credit if the plaintiff has insisted that he or she is confined permanently to a wheelchair or is paralysed from the waist down. In the present case, whatever assistance the video material may be in relation to impairment and consequences, I regard it as having minimal impact upon the plaintiff’s credit. He has told one and all that he is a window cleaner and participates in such work. That is exactly what the video material shows him doing.

18        The second observation I would make is this. One of the principal objects of the Act, and principal objectives of the Victorian WorkCover Authority which stands behind this defendant, is to make provision for the effective occupational rehabilitation of injured workers and their early return to work. The Victorian WorkCover Authority is also to behave as a model litigant. One might have thought that the plaintiff in this case was one of the Victorian WorkCover Authority’s success stories. We see so many cases where the complaint is that the plaintiff has not made a genuine attempt at rehabilitation, not sought work and the like. Here we have a man who, with the involvement and encouragement of the rehabilitation service provided, and having suffered an injury of some magnitude, is successfully rehabilitated into the workforce on the basis of gradually increasing hours, makes a success of that, and, when there are not enough hours of work available, undertakes a course, sets up his own business in the same area of endeavour, and makes a success of that.

19        Indeed, he makes a success of it to such an extent that no claim for pecuniary loss is open to him. He goes about the very type of work into which he has been rehabilitated. Video is then taken of him performing that very type of work to which he has returned with encouragement, and, despite the fact that he has been a rehabilitation success story and has done everything asked of him, the video is taken for the purpose of defeating his claim in respect of pain and suffering. As I said from the bench, there is no question but that the surveillance material was both legal and admissible. However, bearing in mind all of the above including the object of the Act and the role which is to be played by the Victorian WorkCover Authority and its agents, to adopt such a course is, to put it in neutral terms, interesting. It seems to me that, if I could mix two sporting metaphors, it may not be “dirty pool” but it does create the uneasy feeling that what has occurred may be “just not cricket”.

20        In any event, I regard the plaintiff as a reliable witness whose credit was not damaged to any major extent and who did his best to assist the court with frank and accurate evidence.

(ii) The plaintiff’s background, education and training

21        As the plaintiff is only seeking leave in relation to pain and suffering damages, the amount of detail required under this heading is not as great as might otherwise be the case. Suffice to say that the plaintiff is aged 41 years, having been born on 15 December 1967. He is a married man with three children of school age.

22        The plaintiff was educated to Year 11 level, and thereafter worked as a fruit picker, a delivery van driver and then, having returned to the Warrnambool area, as a commercial cleaner. He worked in the area for a cleaning company, and stayed with that employer for approximately seven years.

23        The plaintiff commenced employment with the defendant on approximately 1 February 2000 as a permanent part-time cleaner. His duties involved the type of tasks one would associate with such work, and included vacuuming, polishing, sweeping, cleaning toilets and the like. The moving and lifting of cleaning equipment and large drums of detergent was involved. The plaintiff’s duties centred upon the cleaning of a school, namely, King’s College. He did this on a daily basis during the school year. The plaintiff continued in this work until the end of the 2002 school year when he ceased because of his back injury. He had missed some time in November 2002 for this reason, and this shall be discussed.

(iii) The injury

24        As stated, the injury relied upon, which is one to the low back, is alleged to have occurred throughout the course of the plaintiff’s employment with the defendant in the year 2002, or alternatively on 8 November 2002.

(a) The state of the plaintiff’s health prior to 2002

25        It is clear that the plaintiff did have an earlier back problem in approximately 1995 whilst working for Penguin Cleaning Services, this being the employment in which he was engaged prior to commencing with the defendant. The plaintiff has described this injury as a self-limiting back strain in the sense that it lasted for approximately a week or two and was “not too bad from then on”.

26        I have no reason to doubt the accuracy of the plaintiff’s evidence in this regard. I accept that nothing in the way of back symptoms of any significance troubled the plaintiff between 1995 and the re-commencement of work with the defendant in January 2002.

27        Thus, at the time of commencing the working year 2002 with the defendant the plaintiff was free of symptoms of any magnitude and was able to perform physically demanding work and carry out the usual activities of daily living without restriction.

(b) The injury

28        I shall deal firstly with the circumstances immediately surrounding the plaintiff’s cessation of work and what occurred thereafter before turning to a discussion of the separate bases upon which reliance is placed, namely, the general course of employment in 2002 or a specific incident on 8 November 2002.

29        In broad terms, the plaintiff alleges that he had some back difficulties throughout 2002 and was taking Celebrex in relation to them. He further alleges that on 8 November 2002, that day being a Friday, he attempted to lift a 25 litre drum of detergent, which had to be done in an awkward way because he was attempting to lift it in a confined space. He was aware of back pain. On Monday, 11 November 2002 he awoke with much greater back pain. There were also shooting pains down the back of his leg. He rang Mrs Sally Stephenson, an employee of the defendant, of which the proprietor is her husband, Mr Ken Stephenson. The plaintiff stated that he had suffered a back injury “over the weekend”, but did not describe exactly what had happened.

30        On 11 November 2002 the plaintiff attended at the Warrnambool Medical Clinic where he saw Dr Brett Ogilvie. Dr Ogilvie noted back pain radiating down the right leg but with no neurological symptoms. Whilst there was no neurological deficit, limitation of straight leg raising on the right was to 45 degrees. Dr Ogilvie referred the plaintiff to Mr Hedley Griffiths, a rheumatologist, and for physiotherapy, whilst also prescribing Celebrex.

31        Dr Ogilvie provided the plaintiff with a medical certificate which was in general terms, and not specifically a WorkCover certificate. In essence, it simply stated that the plaintiff was suffering from a medical condition which would prevent him from attending work from 11-15 November 2002. Also, at that consultation, Dr Ogilvie noted the following:

“Back pain worse with sciatica. Pain shooting down R leg. No motor/sensory symptoms. Can’t get comfortable. Just working – cleaning. ++ bending and stretching.”

32        The plaintiff revisited Dr Ogilvie on 15 November 2002 when he still had pain in the back but was much improved. His leg pain was similarly recorded. There is also the following entry:

“Discussed work and that having an impact on his functioning, and that maybe change of jobs is appropriate, as has no symptoms when not at work. Needs to go back to work – to do so but take it easy!”

33        As stated, the plaintiff in fact returned to work, continuing with his cleaning duties until the end of the school year which was effectively on 20 December 2002.

34        Following cessation of work for the Christmas break, the plaintiff’s symptoms improved, although he still had some back pain and stiffness of a morning. However, he had a marked flare-up of symptoms in January 2003, and consulted Dr Ogilvie on 6 January. Dr Ogilvie noted that, late on the preceding day, the plaintiff had back pain shooting down the leg again. He also noted: “Pain continual since November, with ongoing pain. Still worse in morning/as soon as stop moving. On Celebrex continually.” Apart from prescribing Panadeine Forte, Dr Ogilvie queried whether or not the plaintiff might have a prolapsed disc, and organised a CT scan of the lumbar spine. This was carried out on 8 January 2003, and the conclusion was that the plaintiff had an asymmetric right-sided L4 – transitional L5 disc prolapse compressing the right L5 nerve root. The body of the report refers to a right posterior disc bulge at that level significantly indenting the thecal sac with marked compression of the right L5 nerve root in the lateral recess. Some discussions took place between Dr Ogilvie and the plaintiff about any necessary treatment and referral to an orthopaedic surgeon, Mr Sundaram.

35        Whilst it is not entirely clear, it would appear that the plaintiff was then hospitalised between 10 January 2003 and 17 January 2003. Whilst he was an inpatient, he had another discussion with Dr Ogilvie. Dr Ogilvie obviously came to the conclusion that work was implicated in the plaintiff’s problem. Dr Ogilvie’s note of 15 January 2003 includes the following:

“Long discussion with Warren re W/Cover.

Although symptoms have been mainly occurring in the morning, I believe work is at least contributory, and most likely causative of symptoms.

Back pain started eight weeks before seeing me for the first time work definitely involved.

WRT back pain.

Explained to Warren that we’ll put in w.cover claim with letter attached to his employer/insurer.

Did have back pain a number of years ago with a previous employer, but sounds like minor back strain with short duration of symptoms, and complete recovery for a number of years b/w then and now.

W.cover certificate written.”

36        Dr Ogilvie did indeed supply the plaintiff with a WorkCover certificate dated 17 January 2003, referring to an L4/5 disc prolapse and including the comment that the certificate was written on 15 January 2003 in respect of ongoing back pain, and referring to an accompanying explanatory letter. This letter can be found at page 40 of the Plaintiff’s Court Book. I shall not set out the contents of that letter in full, but it refers to the attendance on 11 November 2002 with symptoms of low back pain and sciatica, a good recovery from this, and the severe exacerbation and hospitalisation in early January 2003. It also contains the following paragraph which I shall set out:

“It has become clear in retrospect, that Warren’s work, I believe, is at least a significant contributory factor and most likely entirely causative for his prolapsed disc. An original WorkCover claim was not made back in November, because his symptoms began at home; however, just because his symptoms did not begin at work, and there was not one specific event which occurred to cause his problem, I do not believe that Mr Jackson does not have a legitimate WorkCover claim. His job involves lifting and pushing significant weights and I believe it is entirely appropriate for him to be commenced on WorkCover.”

37        On 20 January 2003 the plaintiff completed a WorkCover claim form alleging, in essence, back injury arising gradually over a period of time due to frequent bending, twisting, lifting and pushing heavy equipment. The defendant also completed a form in which it was alleged that the injury occurred away from the workplace. Relevant material was then sent on behalf of the defendant to Mr John Henderson, orthopaedic surgeon, for his opinion as to liability. Material forwarded to him included the letter of Dr Ogilvie to which I have just referred, and also the plaintiff took to the examination the plates of the various radiological investigations. It should be said that on 11 January 2003 the plaintiff had undergone an MRI which showed a right sided disc protrusion at L4/5 which deformed the theca and impinged upon the right L5 nerve root but did not result in high grade central canal stenosis.

38        Mr Henderson saw the plaintiff on 19 February 2003. Mr Henderson took no history of the incident of 8 November 2002 but took a history of the plaintiff awakening on 11 November 2002 with acute low back pain. The plaintiff could not recall doing anything particularly different during the preceding few days at work to explain why this should have occurred. However, Mr Henderson also took a history of the fact that the plaintiff would normally wake up with a sore back in the morning, but on 11 November 2002 this was worse than before, and on this occasion there was pain radiating down the right leg. On the basis of this information and the material that was before him, Mr Henderson expressed the opinion that employment was, and remained, a significant contributing factor, commenting also that the L4/5 disc prolapse occurred in November 2002 when the plaintiff was working for the defendant. Thus, Mr Henderson, examining on behalf of the defendant, implicated work essentially on the basis of the general course of employment. It was following this that the defendant accepted liability.

39        In the meantime, on 7 February 2003 the plaintiff had been seen by Mr Sundaram, orthopaedic surgeon. The history taken by that specialist was of low back pain of three months duration, and of the plaintiff waking one morning with pain radiating down his right leg to the level of his ankle. “He did not perform any extra heavy work the previous day. There was no history of trauma.”

40        Mr Sundaram appears to have been in a position to compare x-rays taken on 23 January 2002 with those taken in 1995, and reached the conclusion that there had been further degeneration at the L4/5 level. Whether or not he had the benefit of the CT scan and MRI scan is not entirely clear, but Mr Sundaram did comment that investigations showed the presence of an L4/5 disc lesion. He made no comment as to employment contribution. He saw the plaintiff again on 14 July 2003, when there was significant improvement, although there was still some numbness existing in the L5 distribution with marginal weakness of the long extensors to the toes. He felt that the plaintiff’s condition had improved, although he still had some residual signs. Mr Sundaram does not seem to have examined the plaintiff thereafter.

41        Meanwhile, early attempts at a return to work plan were on foot. Effectively no alternative duties were available with the defendant, although the plaintiff expressed his keenness to return to work. Ultimately, as discussed above, he obtained the window cleaning position.

42        The plaintiff continued to attend the Warrnambool Medical Clinic although Dr Ogilvie departed and, from February 2003, the plaintiff’s treating general practitioner was Dr Michael Page. The plaintiff progressed reasonably well in relation to his capacity to perform modified duties, with the commencement of window cleaning in December 2003. He has continued to suffer from symptoms and to be reviewed by his general practitioner.

43        Between 4 July 2007 and 17 March 2008 the plaintiff was seen by Dr Murray Grave, musculoskeletal physician. The history obtained by that doctor was of an injury occurring when the plaintiff lifted a 25 kilogram drum of chemicals from the floor onto a bench. Dr Grave took a history of aching in the lumbar spine and lower back and a persistent area of numbness in the right lateral calf, these symptoms continuing since 2003. Dr Grave formed the view that the plaintiff had “quite a substantial sciatica related to an L4/5 disc prolapse which is impinging on his right L5 nerve root”. Initially the plaintiff was treated on a short course of a high dose of steroids and Endep which provided some improvement, but ultimately the plaintiff was unable to tolerate the Endep. A further CT scan was carried out on 19 October 2007, the conclusion being:

“Fairly severe discogenic disease at the L5/S1 level with associated mild right posterolateral disc prolapse causing some compromise to the right foramen and right nerve root. MR imaging is recommended to elucidate further…”

44        Dr Grave then administered two caudal epidural injections on 4 and 18 February 2008. A further caudal injection, although contemplated, was not carried out. Incidentally, Dr Grave referred to the fact that the plaintiff had a good work ethic and complained of genuine symptoms. Dr Grave diagnosed a lumbar disc prolapse to the right side impinging on the right L5 nerve root, stating that this resulted from lifting a heavy drum of chemicals in 2002.

45        As I understand the situation, since then the plaintiff has been reviewed by his general practitioner, but otherwise has had no active treatment.

46        I have gone through the medical history at some length, not only so as to assist in identifying the injury suffered and the consequences thereof, but also as a background to the questions of whether the injury arose out of or in the course of employment in 2002, and, if so, whether this occurred throughout the course of employment or as a result of an incident on 8 November 2002. In order to complete this analysis, I will now refer to two further medico-legal opinions that have been obtained.

47        Mr John O’Brien, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 29 September 2008. The history taken by him was that on 11 November 2002 (for some time the plaintiff had the wrong date in this regard – see his affidavit of 4 August 2009) the plaintiff was lifting a 20 litre container of detergent from the floor onto a shelf when he felt a sharp pain in the low back, this being of sufficient severity to cause him to sit down and rest for approximately 15 minutes before continuing with his normal duties. He saw his local medical officer at the time. The history then goes on to recount the return to work and the acute exacerbation of pain in January 2003. The ongoing and further history, including the return to work and the like, is largely as set out above. On the basis of the material and history available to him, Mr O’Brien expressed the view that the plaintiff’s employment in November 2002 was a significant contributing factor to his disc herniation, and continues so to be. He regarded the plaintiff as now having a long history of active disc pathology at the L4/5 level.

48        Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor on 12 March 2009. Mr Dooley took a history of the plaintiff lifting a drum of chemicals whilst in the course of his employment and noting the onset of a sharp pain in the low lumbar region. The plaintiff continued to work, the back pain worsening in time, and the plaintiff attended his local hospital. The history thereafter is unremarkable. Mr Dooley diagnosed degenerative disease of the lumbar spine, and made the following remarks:

“The absence of the right ankle jerk and the alteration of sensation in the right L5 distribution are in keeping with the previous disc prolapse. Disc prolapses occur in degenerating discs. They necessarily involve some aggravation of the underlying degenerative disc disease and this accounts for ongoing intermittent low back pain.”

49        Mr Dooley, having been alerted to the fact that the plaintiff was not working on 11 November 2002, referred to the fact that disc prolapses can occur spontaneously and also observed, understandably, that a doctor has to take a patient on face value until such time as the history provided is proven to be inaccurate or erroneous. Based on the history given to him, he believed that the plaintiff’s employment has been a significant contributing factor to the lumbar spine injury. He also observed that the plaintiff was fit to continue in his employment as a window cleaner.

50        It seems to me that the weight of evidence establishes that the plaintiff suffered from degenerative disc disease of the lumbar spine, and, save for the episode in 1995, this had essentially been asymptomatic until early 2002. In November 2002 he suffered a disc prolapse involving the L5 level, and both back pain and right sided sciatica resulted. He still suffers symptoms which are consistent with this. The more recent expert examinations would confirm that this is so.

Permanence

51        I am satisfied that the impairment and consequences resulting from the injury and from which the plaintiff suffers are permanent within the meaning of the Act. Mr Dooley has stated that the plaintiff will continue to note intermittent low back pain and some intermittent lower limb pain. Dr Grave, whilst not commenting directly upon prognosis, has stated as follows:

“He has sustained a serious disc injury that has affected him now for six years. Heavy manual work is not advisable in this gentleman. He will need to take all due care with his work if he is to avoid further injury.”

52        Mr John O’Brien has commented as follows:

“It indeed would appear that this patient’s clinical condition is stable. The patient appears to report very little, if any, change in the severity and distribution of pain over a number of years…I would certainly at present remain guarded in relation to the prognosis as this patient now has a long history of active disc pathology…Indeed this patient has significant impairment of the function of the lumbar spine and this in my opinion has certainly a substantial, permanent effect on the patient’s general, domestic, social and recreational activities.”

53        Given the fact that the plaintiff’s condition has remained comparatively unchanged in recent years, the pathology that exists, and the opinions set out above, I am of the view that the plaintiff’s impairment and consequences will persist for the foreseeable future and are permanent within the meaning of the Act.

Psychiatric and psychological factors

54        Pursuant to s.134AB(38)(h) of the Act, these can only be taken into account in an application based upon paragraph (c) of the definition. Dr Grave, in his report of 17 September 2008, referred to the plaintiff as suffering from a chronic pain syndrome. In the same report he has referred to the plaintiff’s symptoms as being genuine, to a serious disc injury, and to the plaintiff’s good work ethic. Whether by mentioning a chronic pain syndrome he was referring to psychological or psychiatric factors is not clear, although it seems unlikely when the balance of his report is considered. I might say that the plaintiff’s presentation in court, worth ethic, approach to rehabilitation and the like gives the clear impression of psychological or psychiatric factors being absolutely minimal, and the contrary was not argued. As required by the Act, any such factors shall be disregarded, but I do not regard them as being of any significance.

Aggravation

55        The plaintiff suffered from a transient back injury whilst working for Penguin Cleaning Services in 1995. The radiological investigations also indicate the presence of degenerative disc disease, although the number of years that such disease had been present is not entirely clear. I would also point out that the records of the Warrnambool Medical Clinic reveal that the plaintiff was seen by Dr Waldron on 22 January 2002 for upper lumbar back pain and x- rays were apparently arranged. The plaintiff was also commenced on Celebrex. Dr Waldron noted that the plaintiff “works as cleaner”. The plaintiff seems to have continued on Celebrex, at least intermittently, thereafter.

56        That visit to Dr Waldron occurred very early in 2002, which is the school or working year relied upon insofar as the claim is based upon the general course of employment. It is also noteworthy that the attendance of 22 January 2002 would appear to have been the first attendance of the plaintiff at the Warrnambool Medical Clinic, at least for some years, at which any complaint of back pain was made. Certainly an examination of the available records between 25 October 1999 and 22 January 2002 reveals that the plaintiff attended that clinic on a number of occasions with respiratory complaints, pneumonia, dermatitis and other complaints not related to this application. The opportunity to mention back problems to his doctor existed. No such complaints seem to have been made during that time.

57        I do not regard the incident which occurred in 1995 as being of any great moment. There is nothing to suggest that the plaintiff was suffering from lower back symptoms of any magnitude in the years prior to 2002. He may have felt occasional aches and pains, but I am of the opinion that he was basically asymptomatic prior to 2002 and was able to carry out quite demanding physical duties.

58        I shall bear in mind the approach that is to be adopted in relation to aggravation as set out in decisions such as Petkovski v Galletti [1994] 1 VR 436 and R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51. I am also mindful of the apparent reservations in relation to this type of approach expressed by Maxwell P in Spence and Transport Accident Commission v Gomez [2006] VSCA 48.

59        In the present case I am of the view that the injury in question has caused direct injury to the plaintiff’s spine and also rendered a previously asymptomatic condition symptomatic. In those circumstances, impairments and consequences of the injury in question and which are to be considered remain essentially the same regardless of whether or not the injury is in the nature of an aggravation.

Does the injury in question result from the general course of employment, the incident of 8 November 2002, or each of them as separate and distinct causes?

60        Bearing in mind that the impairment and consequences of the separate “injuries” – course of employment or specific incident – are to be viewed individually and not cumulatively when considering whether the statutory test has been satisfied, the next question is whether that impairment and those consequences arise principally from one or the other, or whether each can be said to have produced them. The answer to this question is not made easier by the fact that Dr Ogilvie and Mr Henderson have implicated employment without reference to, or even any recorded history of, the incident of 8 November 2002. Further, liability has been accepted on the basis of the course of employment. However, Mr O’Brien and Mr Dooley have directed their attention to the specific incident. Whilst not nominating a date, Dr Grave would also appear to have adopted this approach. Of course, as discussed by Mr Dooley, the history given plays an important role in the formulation of medical opinion.

61        I accept that an incident did occur on 8 November 2002. It may be that the plaintiff, when subsequently searching his memory as to why he was stricken with more severe symptoms on 11 November 2002, later recalled the lifting of the drum of detergent on 8 November 2002. As I regard him as an honest witness, I accept that such an incident happened even if it was not mentioned in contemporaneous accounts.

62        However, it was not an incident of such traumatic impact as to impress itself upon the plaintiff’s mind when he was seeing Dr Ogilvie and Mr Henderson in the days and months immediately following the onset of more debilitating symptoms on 11 November 2002. This is not to say that the incident of 8 November 2002 did not play some role in the onset of such symptoms. Whilst he was experiencing aches and pains and taking Celebrex, the plaintiff was managing to perform quite strenuous duties prior to that date. However, overall I am of the view that the opinions expressed by Dr Ogilvie and Mr Henderson are correct. The basis upon which liability was accepted is correct. The plaintiff suffered symptoms throughout 2002 and it was the general course of his employment, involving the duties that it did, which contributed in a significant way to his injury. The lifting of the detergent on 8 November 2002 was part of that general course of employment. The onset of severe symptoms occurred not immediately following it but upon the morning of 11 November 2002, without any further incident. This may be seen as underling the proposition that what occurred on 8 November 2002 was simply part of the injury sustained by the plaintiff during the course of his employment, but happened to be the last incident prior to the onset of more severe symptoms. On balance, I am not of the view that it has been established that what occurred on 8 November 2002, when viewed in isolation, was solely responsible for the consequences from which the plaintiff suffers.

The plaintiff’s rehabilitation and other developments subsequent to the injury

63        As leave is not sought in relation to pecuniary loss damages, little need be added in this regard. The plaintiff’s rehabilitation and return to the workforce have already been discussed. The course of his medical treatment has also been set out above.

Ruling

64

The remaining question is whether the plaintiff has discharged the burden of proof in relation to his application for leave to bring proceedings for pain and suffering damages. In my opinion, when the impairment and consequences from which he suffers are considered, he has discharged that burden. When the required comparison is made, the impairment and consequences from which he suffers could fairly be described as being more than significant or marked and as being at least very considerable.

65

I have borne in mind that the plaintiff is actively engaged in his business as a window cleaner and that surveillance of him performing these duties has revealed him to be quite agile, although with the qualifications that I have referred to above. I have also borne in mind the observations of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd (2006) VSCA 292, but would point out that these were made in the context of an application where the credit of the plaintiff seems to have suffered some damage. I do not regard his Honour’s remarks as meaning that plaintiffs who are engaged in suitable employment on a full-time basis are in some way precluded from obtaining leave in relation to pain and suffering damages. Indeed, the Act clearly countenances the situation where a plaintiff might not succeed in relation to pecuniary loss damages but can be granted leave in respect of pain and suffering damages – see s.134AB(38)(17) of the Act. I would also refer to the very recent decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

66

Whilst having given consideration to those matters, I have arrived at the conclusion which I have set out above, namely that the burden of proof has been discharged. My reasons for so finding include the following, which are not set out in order or priority:

(a)	The plaintiff has suffered a lumbar disc prolapse, signs and symptoms of which have now been persisting for in excess of six and a half years. He has identifiable pathology which would explain the symptoms and restrictions of which he complains.
(b)	Whilst the plaintiff is self-employed and running what appears to be a successful business, and the surveillance material shows him displaying considerable agility in so doing (a fact which he does not deny), it is to be borne in mind that he works in the order of six hours per day with some breaks during that period. I accept that, after finishing his work at about lunchtime, he goes home, organises the next day’s work, sits down and relaxes. I also accept his evidence that, as far as he is concerned, the work that he was performing at King’s College for the defendant was harder than the window cleaning work. When he is so working, and whilst the bending and stretching which he performs can be helpful, he is not free of symptoms and, to quote the plaintiff in respect of his working hours: “The longer I’m up, the worse it gets”. Usually after finishing work he takes a Nurofen or Panadol to try and relieve the pain. In addition, if he did not have his back complaint, he would be able to work at a faster rate. I might say that his evidence concerning some deterioration in his condition as the day goes on seemed to me to be confirmed by the surveillance material. Thus, he may be involved in daily work that requires bending, stretching and general agility, but that does not mean that he is free of pain, symptoms and restrictions. Even allowing for the fact that he appears to bend in a proper and cautious manner, it does not mean that he can carry out his duties in the manner and at a speed that he would prefer or in an unrestricted, pain-free fashion.
(c)	I would refer to paragraph 31 of the plaintiff’s affidavit of 25 October 2008. In that paragraph, the plaintiff has sworn as to the pain and restrictions from which he suffers on a regular or, in many instances, daily basis. I accept the accuracy of these complaints, and at least some of them were not the subject of any challenge. The list of these consequences of injury and impairment includes constant back pain which never disappears but only changes in intensity; leg pain precipitated by standing for more than approximately 15 minutes or sitting for more than approximately 30 minutes, with constant right leg numbness and nights disturbed by leg cramps; and difficulties getting started and moving of a morning. The impact upon the plaintiff’s lifestyle manifests itself in such things as a restriction in relation to lifting and shopping; difficulty performing some household chores and increased back pain following performance of some of them; the inability to pursue recreational hobbies including activities with his children and activities in which he used to engage prior to injury; and frustration and anger because of the restrictions and pains from which the plaintiff suffers. Furthermore, the injury is also affecting the plaintiff’s marriage with an adverse impact on his sex life. It is to be borne in mind that these consequences have not only affected the plaintiff over the last six and a half years, but will persist for the foreseeable future.
(d)	It is the opinion of Mr O’Brien that, at some stage, consideration may have to be given to surgery. This is despite the fact that Mr O’Brien also considers the plaintiff’s condition has been stable. In addition, Mr O’Brien makes the following observation:

“Indeed I think it is very likely that with this patient’s continuing pathology, he would be excluded from working full-time as an employee even on modified duties.”

Whilst this is not an application in which pecuniary loss is sought, the comment of Mr O’Brien is nevertheless instructive. Firstly, it means that the plaintiff will be deprived of the satisfaction of being able to work on a full-time basis with the attendant benefits that result from such employment. Secondly, it is a barometer of the level of symptoms and restrictions from which the plaintiff suffers. I note that Mr Henderson, examining on behalf of the defendant, also raised the possibility of surgery.

67        When all of the above is taken into account, it seems to me that the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, could fairly be described as being more than significant or marked and as being at least very considerable. When making the required comparison and bearing in mind all that has been set out above, it is also to be remembered that the plaintiff is currently 41 years of age, has already suffered for the period described, and it was not suggested that he has anything other than a normal life expectancy. In other words, many years of suffering these consequences, involving pain, restrictions and loss of enjoyment of life, appear to lie ahead.

Conclusion

68        The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect of pain and suffering damages. I will hear the parties as to any ancillary orders that are required.