James v Loreto Mandeville Hall Association Inc

[2015] VCC 434

THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-00577

CHRISTOPHER JAMES	Plaintiff
v
LORETO MANDEVILLE HALL ASSOCIATION INC (ABN 38 289 393 491)	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 February 2015
DATE OF JUDGMENT:	17 April 2015
CASE MAY BE CITED AS:	James v Loreto Mandeville Hall Association Inc
MEDIUM NEUTRAL CITATION:	[2015] VCC 434

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – injury to the spine – pain and suffering

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd& Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A MacTiernan	Zaparas Lawyers
For the Defendant	Mr N Griffin	Minter Ellison

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on 15 November 2009 and during the course of his employment with the defendant (“the said date”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. 

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The relevant body function is the lumbar spine.

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent.

7       The plaintiff bears an overall burden of proof upon the balance of probabilities. 

8 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

9       I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1] (2005) 14 VR 622

[2](2006) 14 VR 602

10      The plaintiff relied upon two affidavits and gave viva voce evidence.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material. 

The Plaintiff’s evidence

11      The plaintiff is presently aged thirty-one, having been born in November 1983. Following completion of Year 12, he as a builder’s labourer for about eighteen months and also worked part time at McDonald’s.  For three years thereafter, he worked full time as an assistant manager at McDonalds.

12      At some stage, the plaintiff was unemployed for about eight months because of depression.  Between 2003 and 2007, he had a lot of short-term work with companies such as Carpet Call, Telstra and Brumby’s.

13      From 2007 to 2008, the plaintiff worked as a labourer with a builder “Russell” at Design Line.  Russell had a contract with the defendant for twenty-two years and when the plaintiff worked with him, the plaintiff often worked for the defendant.  The plaintiff also worked for the defendant on a very casual part-time basis in between jobs, as his father was the defendant’s director of business operations.

14      In 2008, a vacancy came up in the defendant’s maintenance department and Russell suggested the plaintiff apply for the position because he had lost the contract.

15      The plaintiff commenced with the defendant on a full-time basis on 1 October 2008, after Russell’s contract expired.  The plaintiff worked with three people in the maintenance team, Monday to Friday, 8.00am to 4.30pm.  Infrequently, he worked weekends.  He worked on the said date at a ‘Jazz n Shiraz’, a fundraising event.

16      On that date, over a 12-hour period, the plaintiff was required to lift trestle tables, move stacks of chairs and move at least 80 boxes of cookbooks (“the duties”).

17      By the time the plaintiff finished the duties, he felt absolutely exhausted and tight across his back – not pain but more stiff.  The next morning, he felt back soreness.  He advised his co-workers that he felt sore but he did not think he was injured.

18      As his back pain worsened, the plaintiff felt intermittent leg pain.  He had difficulty with his work, so he attended Dr Jerome Dixon, a chiropractor, on 25 November 2009, whom he had seen in the past for neck and shoulder stiffness.

19      Whilst the plaintiff thought he continued normal duties, he had been advised Dr Dixon certified him unfit for lifting and carrying on 3 December 2009 and also certified he would be unfit for normal duties until 8 December 2009.  The plaintiff was sent home until after that certificate expired.

20      The plaintiff was involved in a transport accident on 5 December 2009 (“the transport accident”).  Following that accident, he did not attend any doctor but his back pain was worse for a few days.  He continued to see Dr Dixon.

21      The defendant approached the plaintiff in mid December 2009 suggesting he consider lodging a WorkCover claim because he had reached the threshold of chiropractic treatment which the defendant would fund.

22      The plaintiff attended his general practitioner, Dr Davidson, on 15 December 2009.  He organised investigations and prescribed Celebrex.  He gave the plaintiff light duties certificates under which the plaintiff worked until 11 January 2010.

23      The plaintiff returned to work in late February 2010, initially part time and on light duties.

24      Thereafter, while working normal duties, the plaintiff suffered many flare ups, particularly when raking leaves on 23 May 2011 (“the raking incident”), after which he had to stop work because of pain.  He thought he then had about six days off work.

25      In 2012, the plaintiff’s supervisor started to pick on him a fair bit and never appreciated what he was doing. 

26      The plaintiff also suffered an increase in low back pain in mid-2012, when lifting drama platforms with a co-worker.

27      In mid-2012, when the plaintiff went to court about the raking incident, the defendant was less sympathetic to his situation.  The plaintiff really loved his work with the defendant but he was getting very stressed and more depressed because of the way he was being treated.

28      The plaintiff agreed he managed with the defendant on a full-time basis in his pre-injury job, doing everything that was asked of him until he ceased work, but with restriction with his back injury, subject to him being careful.[3] 

[3]Transcript “T”36

29      The plaintiff started work at Bunnings on 15 September 2012, working a 30-hour a week contract, plus extra hours if he could get them.  When working with the defendant, the plaintiff was clearing about $1,570 per fortnight.  His base rate at Bunnings was $960 per fortnight and he earned up to $1,380 a week as of October 2013.

30      After commencing work at Bunnings, the plaintiff had had to move home with his parents. He had borrowed money from his mother and was getting financial advice.

31      The plaintiff’s main job at Bunnings was working in the tool shop and occasionally on the registers for 15 to 30 minutes over an 8-hour shift.  A 10-kilogram lifting policy applied.  No matter what the plaintiff did at work, he was on his feet all day.  He had to alter his position, swaying from side to side to try and stretch his back.  He had been provided with a back brace.

32      The plaintiff saw Dr Dixon in November 2012 because of increased back pain.  There were five or six visits in 2013 which the plaintiff funded through his private health cover. He had a couple of days off work that year with back pain.

33      The plaintiff thought Bunnings was a really nice place to work but it was not what he wanted to do with his life.  His passion had been to go into the Navy. 

34      The plaintiff’s initial application to the Navy was rejected because of depression, which he had suffered on and off since he was at school.  However, apart from a relatively short period off work in about mid 2000, that condition had not interfered with his work ability.

35      The plaintiff last provided material to the Navy about his psychiatric history in his letter of August 2012. He was then not having treatment and there was no more information to give.  He had given up trying to review the rejection on psychiatric grounds.[4]

[4]T117

36      Before the plaintiff started work with the defendant, Dr Davidson referred him to a psychologist, Therese Meallin, with whom he worked to improve his psychological state.

37      At one stage, the plaintiff thought he might have had a bipolar condition because he was not always sad and sometimes felt really good, but this diagnosis was not made.

38      The plaintiff agreed he stopped seeing Ms Meallin in September 2011 because he could not afford treatment.  He then said he stopped treatment for a few reasons.  He denied it had anything to do with his Navy application.  He did not need Ms Meallin anymore because he had learnt coping skills.[5]

[5]T107

39      The plaintiff could not recall being given a mental healthcare plan in March 2011.  He agreed Zoloft was prescribed until September 2011.[6]

[6]T109

40      It was after the plaintiff stopped seeing the psychologist in the short period at the end of 2011 when his back was better that he renewed his application to go into the Navy.

41      When the plaintiff advised the Navy in his August 2012 that he had not had Zoloft for six years, this was not true.  He agreed he was prepared to bend the truth in order to achieve his ambitions of getting into the Navy.[7] 

[7]T112

42      The plaintiff’s last applications to the Navy had been knocked back due to his back condition.  He thought, after he left the defendant and stopped heavy work, that his back was going to improve, but overall it did not.  He could not perform physical activities that a man his age ought to be able to do.  He also had flare ups which at times were quite severe and caused his back to lock up and become very stiff, even with fairly minimal activity.

43      If accepted by the Navy, the plaintiff would have liked to have been a boatswain’s mate – a role involving maintenance on the ship.  Alternatively, he would have liked to work as a communications officer like his grandfather.  In 2011, the plaintiff thought he would have been able to do these jobs.[8]  The Navy would have been a terrific job, because it involved four years’ on-the-job training and it was a job for life.

[8]T39

44      The plaintiff would be able to do these jobs, as he was good with hands-on work.  He had appealed the rejection by the Navy three times.  On each occasion, he thought he would be able to do maintenance work for the Navy.  He believed he could make a career in the Navy as his father, grandfather and uncles had done.[9] 

[9]T41

45      In about mid 2012, the plaintiff had a transport accident when he fell asleep at the wheel of his car and hit the car in front.  His vehicle was also hit from behind.  He was not injured and his back pain did not increase.  He did not have any treatment. 

46      As of October 2013 when he swore his first affidavit, the plaintiff’s sleep was disrupted at night, partly because of pain but partly because he had never been a good sleeper.  Since his injury, he had often felt very tired during the day and his energy levels were lower.

47      The plaintiff deposed he had resumed gym work and very light training.  He did not do any dead weights and if he did squats with weights, he used his back brace and had a trainer supporting him.  The plaintiff only worked out for about 30 to 45 minutes, whereas before his injury he worked out for considerably longer.

48      The plaintiff could not use the cross trainer or exercise bike for more than 15 minutes because of back pain.  Before his injury, he was able to use these machines for about an hour, only stopping out of boredom. 

49      When he was at school, the plaintiff very much enjoyed rowing.  He agreed rowing caused him back problems and he did not row in senior school.  When at the gym before the incident, he used the rowing machine but had not done so for years because it caused too much pain.  He gave up club soccer in 2004.[10]

[10]T42

50      After his injury in 2011, the plaintiff obtained a gun licence and enrolled for membership at a shooting range at Little River.  His membership expired in 2012.  The plaintiff had not bothered renewing it because he could not shoot without experiencing increasing back pain because of the recoil from the rifle.

51      Sitting for long periods caused an increase in the plaintiff’s back and left buttock pain.  He had previously enjoyed long country drives of three to four hours.  He no longer liked driving for more than half-an-hour at a time.  A recent trip to Bendigo when the plaintiff had to drive the whole way caused him discomfort and he had to lie down for half-an-hour after he reached his destination.

52      As of October 2013, the plaintiff’s back, left buttock and leg pain could vary from day to day, week to week.  Some days it was not too bad but it was mostly present and often associated with stiffness or tightness across the low back.  There had been a few periods when the plaintiff did not have some symptoms of either pain or stiffness.  During one of those periods in late 2012, he renewed his application to the Navy. 

53      At times, the plaintiff’s back pain could be exacerbated by an activity such as light training or walking short distances but sometimes he woke with quite severe pain.  His left leg did not feel as strong and felt heavier than his right.

54      As of October 2013, the plaintiff was taking Panadol and Panadeine for the pain.  He did not need this medication every day, and some weeks he took tablets three or five times.  He also used Panadeine if his pain was more severe.

55      Because it was important for him to remain at work, the plaintiff used a lot of the time when not working resting, so his back could recover.  He could not be spontaneous about what physical activities he did and when.  The pain in his left leg and buttock was intermittent.

56      Even if the plaintiff had not been accepted into the Navy because of depression, he would have preferred to stay with the defendant where the work was more interesting and more enjoyable and he could earn more. 

57      Because of his injury, the plaintiff was far more limited in his exercise regime at the gym.  That regime had been good for him because he always wanted to keep very physically fit.

58      The plaintiff was only young and he worried about how his back would cope in the future and what type of employment would be open to him.  He knew he would not be able to return to heavy manual work as he had been doing in the past, except in his earlier years when working at McDonald’s.

59      The plaintiff attended the chiropractor twelve times in 2013 and fourteen times in 2014.

60      The plaintiff swore a further affidavit on 3 February 2015. 

61      The plaintiff deposed that his back condition has been much the same as it was at the time he swore his first affidavit.  There had been relatively short periods of pain where the discomfort in his back had not been too bad or minimal, but there was normally always a level of back discomfort which escalated to become quite painful on a regular basis. 

62      Initially in cross-examination, the plaintiff confirmed this situation but then qualified that answer, saying his pain had not remained much the same; the injury had not changed, but the pain had.[11]

[11]T25

63      There had been a change in the discomfort.  The effects of the injury are now worse.  The plaintiff’s back discomfort changes daily.  Sometimes it is not there at all and he is able to live a normal life.  On other days, he cannot move.[12] 

[12]T69

64      The plaintiff agreed he told Mr Flanc on examination in June 2014 that his back pain had not changed much since he stopped work, but that was not really accurate.[13] 

[13]T92

65      Before the incident, the plaintiff was of a very muscular build, particularly because of his gym work and partly because of the very physical nature of labouring that he performed whilst with the defendant and also as a builder’s labourer during his teen years.

66      The plaintiff is still severely restricted in his activities because of his level of back pain, which escalates with certain activities.  The plaintiff deposed that his gym work is now minimal because he cannot lift many weights or do squats. 

67      However, in cross-examination, the plaintiff said he stopped attending the gym a few months ago.  Up to then, he had been going sporadically.  He would go for a couple of days in a week, and sometimes there would be breaks of a month in between attendances, depending on how his back was feeling.  Gym had always been something important to him.[14]  He did not mention stopping gym in his second affidavit because it was “already common knowledge”.[15] 

[14]T63

[15]T64

68      Initially, before his injury, the plaintiff could be attending Third Space Gym, anywhere between two to four times a week for between one and two hours, doing a mixture of cardio and weights.  After his injury, the plaintiff could not do the exercises and he did not attend with that frequency.[16] 

[16]T65

69      However, the plaintiff confirmed his physiotherapist’s note in May 2011, that he had been bodybuilding for six to eight months and had no problems.[17]  He could not remember seeing Mr Battlay in July 2011 and could not confirm what his gym regime then was but he agreed he told Mr Battlay that he was then working out six days a week for two hours a day.[18]

[17]T88f–89

[18]T69

70      The plaintiff denied that he discussed his level of gym attendance with Dr Dixon in late 2012 or early 2013, but then agreed he must have told him and what he told him must have been an exaggeration.[19]  He agreed he told Dr Dixon about engaging in vigorous exercise and a weights program and that he was going to the gym and exercising regularly.[20]

[19]T119

[20]T126

71      In early 2013, the plaintiff would have told Dr Davidson he had been working out strenuously in the gym and been virtually full time in manual work with Bunnings over the past four to five months.  He would have told him what his work involved. He agreed physical examination by Dr Davidson then revealed a full and pain-free range of spinal movement and he did not report any pain.[21]

[21]T121

72      The plaintiff cannot do other activities he used to enjoy such as shooting and going away on long drives at the weekend.  If he performs those activities even on an extremely good day, he knows they can cause considerable pain and restriction of movement.  He cannot afford to be in pain because of his work.

73      Prior to injury, the plaintiff attended the shooting range twice a month.  He confirmed that he had problems with sitting and also the recoil of the rifle.  Both his membership and licence had lapsed because he did not use them.[22]  When asked to check his licence, the plaintiff advised it expired in October 2015.[23] 

[22]T57

[23]T59–60

74      The plaintiff agreed that he could adjust the seat to determine the angle of his body when shooting, but there was also the problem of having to drive to Little River.[24] 

[24]T60

75      The plaintiff agreed it was correct to a degree that he stopped shooting at about the time he started at Bunnings, but at that time, his friend was no longer available to go with him.

76      The plaintiff denied that he exaggerated his inability to continue shooting as he was in constant pain when he sat for extended periods, as short as 15 minutes.[25]

[25]T61

77      The plaintiff got a mountain bike from his parents at Christmas 2014 when he could not do gym because he wanted to try to lose weight and give it a try. He had always weighed about 95 kilograms but he was now carrying a lot more fat.[26]   

[26]T98

78      The plaintiff currently works 8-hour shifts which include a half-an-hour unpaid lunch break and two breaks of 15 minutes.  Sometimes he does not take the breaks because he is busy.  His shifts can start as early as 6.00am and as late as 1.00pm.

79      The plaintiff performs a variety of activities including meeting and greeting customers at the door, floor work, helping customers with their purchases or enquiries, and register work.

80      Bunnings are aware of the plaintiff’s back injury and they are very good, allowing him to adopt different postures and perform different tasks during his shifts.  He can swap between meet and greet and the register, but the register must always be attended.

81      If there is no one else to replace the plaintiff at the register he must stay there, but when there are no customers, he can move around, altering his posture, shifting his weight from side to side.  He used to sit on the bench at work but he did not think it was a “good look” for the store.

82      Occasionally, the plaintiff works an hour’s overtime.  Now, Bunnings rather than paying him overtime, puts those equivalent hours into “bankable hours” which can be used as time in lieu.

83      In July 2013, the plaintiff received a payment for overtime hours, but in the year ending 2014, he had used some of the bankable hours as well as sick leave because of time he needed off work due to his back.  The plaintiff used up his ten sick days during 2014.

84      The plaintiff also needed two days off work because of depression when he split from his partner. The plaintiff had been back on anti-depressants because of that issue, but had not lost any more time off work.  He felt, from a psychological viewpoint, he was managing work well.  In fact, it was good to be working, because it allowed him to take his mind off the split.  He had been back with his partner since the New Year.

85      Presently, the plaintiff earns between $1,200 and $1,400 net a fortnight.  His usual roster involves Tuesdays and Saturdays off work, or sometimes Wednesday and Saturday.  It is good to have single days off, because it means he can rest his back after working two or three days.  On those days off, he spends very long periods at home resting, lying flat on his back.

86      The plaintiff has continued to attend Dr Dixon. He would attend the chiropractor and physiotherapist more often if he was able to afford it.  There has been a dispute with CGU as to reimbursement for this treatment.

87      After chiropractic treatment, the plaintiff has more movement in his left leg and his back has a greater degree of movement.  His back pain is one issue, but the restriction in movement can be just as debilitating, and his back can become very stiff.  Prolonged postures are very uncomfortable, not just because of pain but also stiffness; thus he has to vary his position. 

88      The plaintiff agreed that between May-June 2012 and January 2015, did not attend his general practitioners complaining of back pain. In that period, there were visits for unrelated matters, and at times discussion of the Navy appeal.  During that time, the plaintiff saw Dr Dixon, who treats his whole family.[27] 

[27]T104

89      The plaintiff only saw Dr Dixon when he needed treatment, not for general relaxation.[28]  There would be a number of attendances after a flare-up, three or four sometimes.[29]  He agreed that Dr Dixon had also treated him for his upper spine, an area which was Dr Dixon’s specialty.[30]

[28]T106

[29]T107

[30]T105

90      The plaintiff deposed that he gets pins and needles and a sort of numbness in his left thigh at times, and his left leg felt less agile than the right.[31]  He could not remember complaining of pins and needles in his left thigh before.  He then said there were only leg problems experienced for a time after the incident and the raking aggravation.[32]

[31]Problems of this nature were not mentioned in the first affidavit

[32]T55

91      In October 2014, the plaintiff was successful in getting a job as a site manager with Jovand Homes.  The job was to be more lucrative than Bunnings.  It was a site manager role involving the plaintiff visiting home sites and checking whether buildings were being completed according to plan and on time, although he did not have any qualifications in this regard.  He found out about the job from a representative from 3M who worked at Bunnings and also worked for Jovand.[33] 

[33]T26

92      The plaintiff told Mr Brooks at Jovand that he had applied to complete a Certificate III course through Holmesglen which he was starting later.[34]  He told him he was not qualified.[35]

[34]T28

[35]T81

93      When asked by Mr Brooks to look for certain documentation, the plaintiff was looking for a pre‑apprenticeship ticket, not details of his qualifications, because he was not qualified.  The plaintiff obtained the pre‑apprenticeship ticket when he had just finished school.  It set out that he knew how to use power tools.

94      The plaintiff denied he left because of the issue of his qualifications as he told Mr Brooks when interviewed he was not qualified.[36]  

[36]T38

95      The plaintiff worked for Jovand for two weeks.  He was given a payslip for both weeks he worked but he was only paid for the first week.[37]

[37]T86

96      The job at Jovand involved travelling “huge” amounts of kilometres from worksite to worksite, mainly doing maintenance jobs, but also calling contractors or calling Jovand’s owners to advise what was happening at various worksites.  The plaintiff quit the job as he could not tolerate the amount of driving. He could not explain why he could not stop on the road going to Rosebud or other places if he was in pain

97      The plaintiff was asked multiple times at Jovand to fit a handle or do other handywork on sites.[38]  He felt more like a gofer than a site supervisor.  He was in a van for six hours a day driving around, and he was doing handyman jobs.[39]  The amount of handyman work was partially the reason why he left the job.[40]

[38]T29

[39]T31

[40]T32

98      To the plaintiff’s knowledge, he was going to be a tradesman; he was going to be a site manager. The problem was that all the driving in a manual van disrupted his back pain.[41]

[41]T33

99      The plaintiff did not speak to Mr Brooks about wanting to leave the job as he was angry and emotional.  He felt Jovand was not living up to what the job was going to be.  He knew there would be some manual work, but he did not think he would be a carpenter or a labourer again.[42]  He liked those roles but he could not do them because of his back. 

[42]T34

100     The plaintiff was angry at Mr Brooks because he could not do that work.  The plaintiff had told Mr Brooks he had a bad back but he did not discuss with him how he was coping with his back.  He never complained to him about the driving involved in the job.  He was visiting multiple sites a day, travelling huge amounts of kilometres.[43]

[43]T35

101     The plaintiff was trying to be a good employee.  He felt angry and emotional because the job was not what he understood it would be. He did not mind doing that work when with the defendant, but that was his job.  He did not work with the defendant as a site manager.[44]

[44]T36

102     The plaintiff thought there would be manual work at Jovand but there would be others to do it.  He confirmed he quit because he could not tolerate the driving.  That was not entirely the reason.  It was mostly due to the driving and pain.  It was also because he felt like a gofer and he was not doing site manager duties.[45]

[45]T37

103     The plaintiff agreed that when he texted Mr Brooks he did not tell him why he was stopping work at Jovand.  He was too embarrassed to show up and talk to him about it because he was a coward.[46]

[46]T31

104     The plaintiff could not recall also writing a termination letter, because the whole thing was in so much haste and anger, and he could not really recall much of that day.[47]

[47]T81

105     The plaintiff confirmed the job at Jovand was isolating for him, with his previous work having been with other people. Predominantly, this was the reason he left the job.[48]

[48]T83

106     Whilst the plaintiff worked at Jovand, Bunnings had allowed the plaintiff to keep a Sunday shift.[49]  He went back to Bunnings on the Sunday following the Friday when he left the paperwork in Mr Brooks’ letterbox.  After November, the plaintiff resumed permanent status at Bunnings, where he was not only reliable but good at his job.

[49]T27

107     So far in 2015, the plaintiff has had two days off work because of back pain that he suffered on 24 January 2015.  Having spent that day with his partner, the plaintiff’s pain gradually developed to the point where he needed assistance getting dressed and undressed and getting in and out of the bath.  Earlier that day, he had only done household chores.

108     The following day, the plaintiff went to work in pain and had limited movement.  Within three hours, he was allowed to go home due to his condition.  He was meant to work on double pay on the Australia Day holiday but he called in sick due to back pain. 

109     When the plaintiff saw Dr Davidson the following day, he was prescribed Celebrex.  He also saw Dr Dixon the following day, and has had two or three visits with him since then.

110     The plaintiff agreed that on 24 January 2015, he had driven into the City. When he got home he would have either been playing video games or watching movies. The worst of the aggravation would have been the driving.  The plaintiff could not confirm whether he told his doctors about the driving problem or not.  It was sitting around and the driving that caused the problems.[50] 

[50]T95

111     The plaintiff had two days off after this incident. The following days were rostered days off.  He returned to work on the Thursday.[51]

[51]T97

112     The plaintiff is keen to keep his days off with Bunnings to a minimum, as he wants to keep that job secure, because the people he works with are nice, even though it is not the type of work he would be ideally performing.

113     As the plaintiff does not like taking painkillers, he takes a minimum amount, including Panadol, Nurofen and Panadeine.  The best thing is to lie down.  The plaintiff’s father was not aware the plaintiff took his Panadeine.[52]  

[52]T91

114     The plaintiff confirmed his problems with sleep earlier deposed to, and how he now feels tired during the day and lacks energy because of lack of sleep.

115     The plaintiff considers his emotional state has been good over the last couple of years until he split up with his partner at the end of 2014.  Prior to that time, he had not seen his psychologist in about September 2013.  He had not been taking anti-depressants until late 2014. 

116     The plaintiff confirmed he attended his general practitioner in November 2014 with his mother, when it was noted he was “coping okay”, and better than last time when he had had a breakdown.[53]

[53]T100

117     The plaintiff agreed in late 2012/early 2013 013 when examined by Dr Dixon, he had been able to move his back freely with no discomfort, as Dr Dixon noted.[54]

[54]T118

118     It must have been true, as Dr Davidson reported to the Navy on 21 January 2013, having seen the plaintiff twice in the preceding weeks, that the plaintiff had been symptom-free since June 2012 and that he had never suffered any lower limb pain referral. The plaintiff had been seeing Dr Dixon during that time.[55]

[55]T118

119     The plaintiff did not know why Dr Davidson had described his gym activities as “strenuous”. The plaintiff agreed he would have discussed this issue with Dr Davidson and would have overemphasised his gym involvement in a desperate attempt to get into the Navy.[56]

[56]T74

120     The description of vigorous working-out at the gym would have been the plaintiff lying to his doctor.  He was at a stage of doing anything he could to get into the career he wanted.[57]

[57]T75

121     The plaintiff was advised on 28 March 2013 by Colonel Wells, Director, Military Medicine, Joint Health Command, that a history of recurrent episodes of back pain associated with disc prolapse was considered a permanent bar to entry to the Australian Defence Force (ADF) and was considered to remain an issue in the plaintiff’s case.

122     The plaintiff thought this meant he would never be accepted into the Navy.

123     Colonel Wells also noted that although the plaintiff appeared to be managing well now, the risk and potential aggravation associated with service in the ADF was considered to be significant.

124     The plaintiff agreed he wrote to Dr Norton in early 2014 just after he had sworn his first affidavit of October 2013.[58]  When he advised Dr Norton that he had no back pain at all, that was incorrect.  He was giving his doctor his opinion, because he wanted to be in the Navy.[59]

[58]T122

[59]T123

125     The plaintiff denied he was no longer having any back issues in relation to pain.  He did not see it as lying when he told the Navy he was symptom-free. He saw it as desperation to get into the Navy.  He denied he was prepared to exaggerate in order to win his case.[60]

[60]T113

126     The plaintiff confirmed that in order to pursue appeals to the ADF he requested further investigations be done.[61] He agreed he told the radiologist who organised his CT scan in 2014 that he was clinically symptom free for some time.[62]

[61]T41

[62]T124

127     The plaintiff is not going to re-apply for the Navy because of the Colonel’s letter. Predominantly, it is because of the plaintiff’s back condition that the Navy refused his application.[63]

[63]T24

128     The plaintiff confirmed he did Tough Mudder, an endurance event.  He walked 20 kilometres, although he told the ADF in his August 2012 letter that he ran 20 kilometres.  He did climb over walls and crawl through tight and narrow spaces.  He exaggerating the level of activity involved in Tough Mudder to get into the Navy.  He agreed he was continuing bodybuilding exercises.[64]

[64]T114

129     The plaintiff believed he had the capacity to pass the Navy physical and he wanted to prove he could do it, but because of his back, they would not let him.[65] 

[65]T115

130     The plaintiff read the rejection in the October 2012 letter from the Navy as being on only physical grounds, because the other letters only basically referred to his back.  He agreed the first rejection letter related to both his physical and psychological conditions, and he addressed those two conditions in his response.[66]

[66]T115

131     When he wrote to the ADF that he had no symptoms, the plaintiff was doing anything he could to get into the Navy.  In some ways he was prepared to lie.  He was going to try everything to get the career he wanted, but unfortunately, because of the nature of his injury, he had no chance whatsoever of getting that career. 

132     The plaintiff denied that his chance of getting into the Navy was also affected by his psychiatric condition.  That condition was due to a terrible break-up he had with a former partner.  The plaintiff only received one letter from the ADF about his psychiatric condition; the others were in relation to his back.[67]

[67]T62

133     The plaintiff’s injury has been longstanding.  He is now aged thirty-one, having been injured when aged twenty-six.  There have been short periods when the pain and discomfort improved.  They had been relatively short-lived, and far outweighed by the more constant nature of his pain, stiffness, restriction in movement, and discomfort.

134     All of these symptoms have stopped the plaintiff doing the work that he would have preferred to do, especially being accepted into the Navy.  His occupational aims have gone backwards, and since the injury, there has been no hope of going forwards in a significant way.  It was never his plan to be working at Bunnings.

135     The plaintiff’s social and recreational activities are extremely limited because of his back dysfunction.  There is no more shooting, limited gym, no spending hours out with friends without discomfort or paying for it later, and most of his hours on days off are spent at home, where he lives with his parents.  He does not go to the pictures as frequently as he did prior to injury.[68]

[68]T127

Treaters

136     The plaintiff first consulted Dr Davidson on 15 December 2009 at Mont Albert Medical Centre (“the Clinic”) in relation to the incident injuries.

137     In his July 2011 report, Dr Davidson noted the plaintiff’s subsequent treatment, a period of light duties and a return to full-time work until 23 May 2011 when he developed sudden and severe pain in his lower back and left leg while sweeping up leaves.  There was then a further period off work.

138     Dr Davidson thought the plaintiff’s original condition was primarily work related but clearly aggravated by the transport accident.  He thought the aggravation with raking occurred in the course of manual employment and it was clear the plaintiff’s employment was the primary precipitating factor in the recurrence of the injury.

139     Dr Davidson diagnosed acute lower back pain and spasm secondary to underlying bulging intervertebral disc and associated soft tissue inflammation.  He then thought the prognosis was guarded.

140     The plaintiff resumed work on reduced hours by July 2011, two hours a day.  There was a complaint on 4 August 2011 of severe back spasm, and the plaintiff remained off work for two weeks.

141     On 15 August 2011, the plaintiff commenced a return to work program, and by 8 September 2011 he was working full hours with weight restrictions and short breaks.  On 29 September 2011, he had a full range of movement, was pain free and able to resume unrestricted work. 

142     As of May 2012, Dr Davidson diagnosed degenerative disc disease at L5-S1 with accompanying disc prolapse without nerve root compression.  He thought the plaintiff’s condition was stable.

143     Dr Davidson then considered the plaintiff was fit for pre-injury work within reasonable guidelines with avoidance of prolonged postures, lifting weights greater than 20 kilograms alone, and it was important he cared for his back and remained physically active and was in good physical shape. 

144     Dr Davidson then thought there was no necessity for further treatment and the plaintiff’s prognosis remained good, providing those measures were in place. 

145     Dr Davidson wrote to the Department of Defence on 21 January 2013 in relation to the plaintiff’s appeal.  He advised, as far as the lumbar spine problem was concerned, the plaintiff had remained symptom free since an episode in June 2012.  He had been working out strenuously in the gym and had been working virtually full time in manual work with Bunnings over the past four months, with a job involving lifting, stacking and stock organisation.  The plaintiff had reported no pain or other symptoms.

146     Dr Davidson advised physical examination revealed a full and pain-free range of spinal movement and normal neurological examination. 

147     Dr Davidson noted a recent CT scan had shown some minor changes at L5-S1 but there had been no change from a scan six months earlier.  He thought the plaintiff’s back was stable and should not prevent him from service in the defence force.

148     When he most recently reported in February 2015, Dr Davidson advised that the plaintiff had consulted the practice nine times since 13 August 2014, most times unrelated to his back.  There was a mention of depression related to personal issues on 12 November 2014. 

149     The only back-related attendance was on 27 January 2015 after an acute episode without any precipitating event.

150     Dr Davidson noted the plaintiff had an ongoing vulnerability to episodes of back pain, although the frequency of those episodes was clearly much less than it was a couple of years ago.  The plaintiff told him he had managed the workload at Bunnings satisfactorily and he avoided heavy lifting or vulnerable postures.

151     Dr Davidson confirmed the diagnosis of a chronic lumbar disc injury L5-S1 which is stable, with episodes of musculoligamentous strain which have occurred intermittently.

152     Dr Davidson thought the plaintiff was fit for work not involving heavy lifting over 10 kilograms or repeated bending and straining.  He was not fit to go back to heavy maintenance or gardening work.  In that context, the prognosis was good but the plaintiff should be vigilant in the care of his back.  Future treatment was dependent upon whether good back health core strength was maintained.  Thus, an exercise program in addition to visits with a physical therapist would be of ongoing benefit. 

153     When Dr Norton at the Clinic reported in August 2012, he thought the plaintiff’s back condition had responded to conservative management, noting he was able to return to work soon after the June 2012 aggravation.  Dr Norton did not anticipate there would be any long-term issues arising from this, as long as the plaintiff continued to be careful when avoiding activities that could cause an exacerbation.

154     Dr Norton last reported in April 2014. This report was also relied upon by the defendant.

155     The plaintiff was referred to Mr Justin Hunt, orthopaedic and spinal surgeon, on 11 August 2011.

156     The plaintiff told him of the incident and the transport accident which further aggravated his low back pain and prolonged his recovery.  He reported back and left leg symptoms.  There had been a subsequent flare up when raking leaves in May 2011.

157     The plaintiff complained of symptoms predominantly across the lower lumbosacral junction, describing mechanical back pain symptoms.  He had not had much in the way of leg symptoms but he was still incapacitated.  Celebrex was not helping much and he was taking Zoloft for depression.

158     On examination, the plaintiff was exquisitely tender over the lumbosacral junction with a restricted range of motion to a significant degree.  Bilateral straight leg raising was to 60 degrees with pain.  There was no neurological abnormality.

159     Mr Hunt noted review of the CT scan showed a central disc prolapse at L5-S1 which was in very close proximity to the left descending S1 nerve root. He assessed the plaintiff as having lower back and left leg radicular pain symptoms, with back pain more prominent.

160     Mr Hunt then suggested an MRI scan and further review.  That occurred on 2 December 2011, when the plaintiff was back at full-time work and he said he was coping with regard to his symptoms.

161     Mr Hunt noted the new MRI scan clearly explained the plaintiff’s left-sided symptoms.  There was evidence of degenerative disc disease and no other major findings.

162     Mr Hunt noted the plaintiff was certainly managing his symptoms well and he indicated he was over the worst of his pain and coping.  He protected his back. 

163     Mr Hunt then concluded that as the plaintiff was managing his symptoms successfully, he would not necessarily institute any further treatment and he hoped the plaintiff’s symptoms would gradually improve.  Mr Hunt thought the plaintiff was not particularly symptomatic. 

164     Mr Hunt diagnosed symptomatic lumbar spondylosis degenerative disc disease with prolapse, noting clinical presentation matched the imaging findings.

165     Mr Hunt noted the plaintiff was coping with pre-injury work and was likely to have further relapses of back pain due to the degenerative change at the disc, and his physical work.  He thought there would be restrictions with household and daily activities and the plaintiff would have difficulty with some sporting activities.  He then considered the plaintiff had a reduced capacity for unlimited physical work and therefore he may be restricted in his further work options.

166     Mr Hunt was then provided with the CT scan of the lumbar spine of 25 June 2012.  He was told of the initial incident, the transport accident, the raking incident, and exacerbation also in June 2012 when moving drama flats at work.

167     Mr Hunt believed the plaintiff’s lower back injury occurred during the work with the defendant performing heavy lifting activities during the incident.  If it were not for those activities, the plaintiff may not have developed back pain and leg symptoms and his workplace was therefore a significant contributing factor to his low back pain. 

168     Further, there were aggravations at work on 25 May 2011 and 15 June 2012.  Mr Hunt also thought the transport accident aggravated the plaintiff’s injury but, in his opinion, the workplace was responsible for the initial and ongoing symptoms.

169     Dr Dixon, chiropractor, saw the plaintiff’ before the said date on 31 October 2001, 8 March 2006, 12 May 2007, 29 April 2008 and 5 March 2009.

170     The plaintiff was seen on 25 November 2009 as a consequence of repetitive lifting at work, and on 5 December 2009 after a car accident. 

171     In his report of 27 May 2013, Dr Dixon advised the Defence Force that the plaintiff had no current incapacity to perform all daily living and work-related activities, including vigorous exercise, as evidenced by his full gym and weights program. 

172     Dr Dixon concluded that in the presence of a mild to moderate L5-S1 disc protrusion, full remission and stabilisation seemed to have resulted, giving the plaintiff recovery and compliance with home stretches and core strengthening exercises.  The plaintiff reported he had no low back pain episodes for many months and never suffered any lower limb referrals or radicular signs. 

173     The plaintiff attended with an acute flare up on 25 November 2013. 

174     In his report of 20 January 2015, Dr Dixon noted the plaintiff had continued periodic chiropractic care since he last reported in May 2013 for episodic aggravation of mechanical low back pain, predominantly related to the lumbosacral and sacroiliac joint dysfunction and hypomobility.  Aggravation tended to occur with repetitive bending and twisting, as well as prolonged sitting while driving, and stress and cold could also have been cited as aggravating factors. 

175     Dr Dixon confirmed the work relationship and noted the L5-S1 disc protrusion was quite possibly related to the original injury but it was unlikely to be involved in symptoms, as there had been no obvious radicular symptoms.

176     Dr Dixon thought the plaintiff was physically fit and had good core muscular support for almost all work-related activities.  In light of the history and radiological findings however, it made sense to modify duties by avoiding heavy and or repetitive lifting.

177     The plaintiff attended Liana Cope, physiotherapist, for treatment on 23 May 2011 after the raking incident.  She thought, based on the clinical picture and CT scan findings, it was likely he had an exacerbation of his disc injury.  She also saw him in June and August that year.  

Medico-legal evidence

178     The plaintiff was seen by Mr Charles Flanc, vascular and general surgeon, initially on 18 April 2012. 

179     The plaintiff then gave a history of the incident, the transport accident and lower back injury when raking.  He had returned to full duties at the end of 2011 and was now doing his usual job as a maintenance man.

180     The plaintiff complained of pain more severe than before the raking incident.  Low back pain was intermittent and mainly when lifting heavy loads and after prolonged posture.

181     On examination, there was no deformity of the lumbosacral spine.  There was tenderness and limited flexion and moderate restriction of extension.  Neurologically, the plaintiff was normal.

182     Mr Flanc thought the plaintiff’s condition had not stabilised.  He thought he should be able to continue with his work with the defendant into the foreseeable future, providing he continued to exercise precautions to avoid further injury.  Nevertheless, the plaintiff was vulnerable to further episodes of back pain.

183     Mr Flanc was subsequently provided with the June 2011 CT scan, noting the same findings in October 2011 and also July 2011.  He considered the injury which occurred in the incident as an aggravation of pre-existing degenerative condition of the lumbar spine.  There was a further aggravation by the transport accident but he doubted whether that was a significant contribution, and then a further and significant aggravation with the raking.  He noted left leg pain had resolved on examination in April 2012.

184     On re-examination on 30 January 2015, the plaintiff complained of discomfort in the lower back most of the time and intermittent episodes of increased back pain, although no specific episodes at work.  He was careful with activities and knew how to lift carefully.  Pain was aggravated by prolonged postures.

185     The plaintiff advised he had had intermittent time off work but these periods last several days only.  The maximum over the last two years was three or four days at one time.

186     The plaintiff complained of a constant discomfort with intermittent flare ups since the incident. 

187     On examination, there was significant local tenderness. There was a moderate limit of flexion and severe restriction of extension.  Examination of reflexes was difficult, but Mr Flanc did not think there was a neurological problem.  He noted the sciatica had resolved.  He suggested further treatment, noting the back pain was chronic.

188     Mr Flanc thought it likely the plaintiff would continue to suffer from low back pain and it was quite possible that his back pain would gradually become more severe over the years as the degenerative process progressed due to its natural history.  He thought the plaintiff would continue to be vulnerable to recurrent episodes of low back pain.

189     Having been provided with further material, Mr Flanc thought it more likely the plaintiff had minor degenerative disease at an earlier age than usual, although it had been asymptomatic until the aggravation by the incident.  Mr Flanc suggested further orthopaedic opinion in this regard.

190     The plaintiff saw Mr Kossmann, orthopaedic surgeon, in May 2014.

191     The plaintiff then complained of persistent lumbar back pain with acute exacerbations every one or two months.  He denied radicular symptoms. He was currently reliant on Nurofen and Panadeine Forte about twice monthly for analgesia.

192     On examination, there was tenderness to palpation, there was some restriction of movement and lower limb neurological examination was unremarkable. 

193     Mr Kossmann diagnosed degenerative disc disease and disc bulge at L5-S1 directly related to the incident.  He noted that the plaintiff was currently working full time at Bunnings and recommended he abstain from repetitive bending and heavy lifting.  He also recommended ongoing physiotherapy and chiropractic treatment, further acupuncture and a trial of hydrotherapy.  Mr Kossmann thought the prognosis was guarded, noting lumbar pain had persisted since its onset in 2009.

194     Mr Kossmann was provided with the February 2014 CT scan of the lumbar spine. He recommended an MRI scan as a matter of urgency, noting the limitations of a CT scan, and also he suggested referral to a neurosurgeon or an orthopaedic surgeon with interest of spine for review if there was any indication for an operation.

Investigations

195     A number of CT scans of the plaintiff’s lumbar spine have been undertaken since January 2010.

196     A CT scan of the lumbar spine was organised by Dr Norton in November 2012.  It was reported there was a mild to moderate left paracentral disc protrusion at L5-S1 with mild compression of the left anterolateral theca. It was noted there had been no significant change from the previous study of 25 June 2012.

197     Following the most recent CT scan in February 2014, it was reported that there was a moderate sized protrusion of the L5-S1 disc in the left paracentral and midline position compressing the descending S1 nerve root in the lateral recess.  It remained unchanged from the 2012 scan.

The Defendant’s medical evidence

Clinical notes

198     The plaintiff had physiotherapy treatment at Auburn Spinal Centre on about fifteen occasions between 24 December 2009 and 28 April 2010.

199     On 24 December 2009, the plaintiff’s back problems relating to the incident were noted.  On 23 May 2011, it was noted “back pinched that morning when sweeping - body building for six to eight months with no problems”. 

200     On 11 August 2009, Dr Norton noted that the plaintiff had not been to work for the last two weeks because of worries about his financial situation and relationship problems.  The reason for the contact was depression, and Zoloft was prescribed.

201     On 18 March 2011, Dr Bennie at the Clinic noted consent for a mental health plan was obtained and a mental state examination was carried out.

202     Dr Davidson recorded on 29 September 2011 that the plaintiff‘s back was in good shape, he was moving freely and he needed a WorkCover certificate for clearance.

203     On 11 February 2012, Dr Davidson noted a long discussion with the plaintiff and his father about mounting an appeal to the Navy.

Medical reports

204     On 23 November 2011, Dr Davidson reported to the ADF.  In that letter, he detailed the plaintiff’s attendances following the incident from 15 December 2009, subsequent treatment and a return to full duties until the raking incident in May 2011.

205     Thereafter, the plaintiff made a full recovery and was performing normal duties, and no further treatment had been suggested.

206     Dr Davidson noted it was advisable in the long term for the plaintiff to undertake regular exercise and use appropriate back care in his future work life and activities.  He noted investigations did not reveal serious underlying structural damage and the plaintiff’s prognosis should be good if due care was taken in the long term.

207     Dr Meallin gave information to Defence Force recruiting about the plaintiff’s mental state by letter dated 14 November 2011.

208     Dr Meallin noted the plaintiff’s presentation for psychotherapy in November 2006 following job loss and a relationship breakdown and therapy until January 2007.  There was further therapy from February 2008 for depression and support through issues in his new relationship and then when it broke down, dealing with adjustment. 

209     The initial diagnosis was Adjustment Disorder with mixed disturbance of emotion and conduct.  This diagnosis was considered, as was a Major Depressive Disorder.  However, the plaintiff later reported having previously had a period of uncontrolled spending, which suggested the presence of Bipolar 2 Disorder, and further clinical observations across the time revealed the presence of personality features consistent with Borderline Personality Disorder.

210     Dr Meallin concluded the plaintiff remained vulnerable to mood disturbances in the presence of significant interpersonal stresses.  His progress in therapy towards understanding the basis of this vulnerability and his demonstrated capacity for reflexion and behaviour change, as evidenced by his handling of his recent relationship breakup difficulties, indicated a positive outlook.  She would encourage him to seek further support in times of relationship stress as a strategy for preventing relapse.

211     Dr Meallin wrote to Dr Davidson in February 2012 thanking him for the last referral.  She met with the plaintiff regularly until September last year, when he decided to stop therapy.

212     Dr Meallin advised that overall, the plaintiff’s mood remained stable and the primary focus of their work in 2011 was on building self-esteem.  The last visit was later in the year following a request for a report to accompany the plaintiff’s Navy application.

213     Dr Dixon wrote to the ADF on 9 December 2011.

214     Dr Dixon advised that the plaintiff had no current residual incapacity to perform his daily living or work-related activities. It was unlikely he would suffer from any future incapacity to perform his duties. 

215     Given previous CT scan results and recent MRI scans, there was no defined neural compression, and minor disc displacement only, and Dr Dixon suggested correct lifting and postural techniques should be encouraged.

216     Dr Dixon advised in the long term, it was advisable for the plaintiff to undertake regular exercise and use appropriate back care in his future work and life activities.  He advised the ADF that investigations did not reveal serious underlying structural damage and the prognosis should be good if due care was taken in the long term.

217     Dr Dixon wrote to the ADF on 4 January 2013.

218     Dr Dixon advised the plaintiff had received treatment for mild episodic back pain due to work and exercise-related activities and there was also the 2009 transport accident from which he had made an excellent recovery.

219     Treatment had generally been intermittent and infrequent, with full remission of symptoms each time. The plaintiff reported he had been asymptomatic over the last few months and never suffered lower limb pain referral.

220     Lumbar range motion was full with no discomfort and no radicular signs.

221     Dr Dixon advised the plaintiff had no incapacity to perform all daily living and work-related activities, including vigorous exercise, as evidenced by his full gym and weights program.  The investigations demonstrate no evidence of arthritic changes, only localised moderate L5-S1 disc protrusion without progression and without radiculopathy.

222     On examination in late December 2012 and January 2013, there were no radicular clinical range or symptoms upon orthopaedic and neurological testing and, as always, correct lifting and postural techniques were encouraged.

The Defendant’s medico‑legal evidence

223     Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff in July 2011, two months after the raking incident. 

224     Following the original incident, the plaintiff told Mr Battlay he resumed light duties for two weeks and normal duties subsequently, and he had no ongoing symptoms at all and was able to return to bodybuilding without any untoward effects. 

225     On examination, the plaintiff performed slightly restricted back movements but there was no spasm and no tenderness.

226     Mr Battlay thought, with the level of body building two hours a day and the raking, on balance, the plaintiff had a pre-existing injury from his outside activities, and he did not believe there was any aggravation of that through his work.  He thought the plaintiff had aggravated his pre-existing lower lumbar disc derangement. 

227     Mr Battlay noted the plaintiff told him he had made a full recovery following the previous claim and resumed intensive body building. Mr Battlay thought it was far more likely that his work-related injury, the fact that he injured himself outside work and he did not think employment was a cause.

228     Dr Mary Wyatt, occupational physician, examined the plaintiff in February 2010.

229     The plaintiff then complained of ongoing soreness across his lower back and there was no radiation of pain into his leg.  On examination, there was mild restriction of lumbar movement, no muscle spasm and there was tenderness at L5-S1.  Straight leg raising was normal.

230     The plaintiff told Dr Wyatt of the incident and later reduced duties.  He reported his back problem was gradually improving; however, on 5 December, he was involved in a significant car accident after which his back pain worsened.  His back had been gradually improving and now he was pretty much how he was before the accident. 

231     Dr Wyatt did not think examination findings showed a severe worrying back problem.  She thought the plaintiff had non-specific low back pain without clinical features of disc protrusion or sciatica.  That had probably occurred through the incident and the transport accident worsened it, although the plaintiff said he has been gradually improving.  She thought the incident had stirred up his back condition.

232     Dr Wyatt then thought the plaintiff was capable of working on modified or alternative duties, noting he was then working 12 hours.  A graduated return to normal hours was recommended over ten weeks.

233     Dr Isaac Taubman, consultant physician, examined the plaintiff in July 2012.

234     Dr Taubman had a history of the incident, six weeks off work thereafter and no radiation to the lower limb.  There was treatment with physiotherapy over a six-week period, and chiropractic treatment.  Then there was a return on modified duties and increase to full duties and hours within a further two weeks after the month of modified duties. 

235     The history was that the plaintiff’s condition remained stable for a year and there were moments when his back would tighten up and he would do exercises.

236     During 2011, about eleven months after the incident, the plaintiff had an episode of tightness in the lower lumbar region and had sharp pain when raking leaves.  He was given a certificate of incapacity for six weeks, during which time he took Panadeine Forte and had physiotherapy.  The symptoms lasted for only 30 seconds.  He had no further problems but since then, was worried about further aggravation. 

237     The plaintiff told Dr Taubman his injury had ruined his life and he had to abandon his hope of a Nay career. He reported constant pain, and the severity appeared to change.  He had returned to full duties and the heaviest weight handled was 10 kilograms.

238     When at school, the plaintiff was involved in rowing but had to give up twelve years ago.  He had stopped playing soccer eight years ago and he no longer enjoyed long drives.  He had taken up shooting the previous year but had not been able to do it any longer because of the recoil from the rifle.  He had a limited social life.

239     On examination, there was no detectable spasm.  Light touch was associated with discomfort.  Movements were full in range and there were inconsistencies on straight leg raising.

240     Dr Taubman thought the plaintiff was suffering from a disc bulge between the L5-S1 vertebrae with a probable protrusion at that level.  He noted the plaintiff stated he suffered an injury while moving props on 15 June 2012 with a full recovery after a week.  Dr Taubman thought the plaintiff suffered a minor muscular sprain in that incident, which completely resolved.  In his view, that incident would not have caused permanent injury to the lumbar spine.  He did not believe the plaintiff had suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of the original incident injury.  There was a new injury due to minor muscle sprain following the June 2012 incident which had completely resolved.

241     Dr Taubman noted, however, that Mr Battlay had the history that the plaintiff was able to return to bodybuilding without untoward effect in 2010.  There were also 2012 statements by co-workers that the plaintiff was able to continue weight training at the gym. 

242     Dr Taubman thought the plaintiff’s back soreness could be attributable to weights.  He concluded physical examination revealed no impairment of lumbar spinal function.

243     Dr David Fish, consultant occupational and environmental physician, examined the plaintiff in June 2013. 

244     The plaintiff then complained of continual low back discomfort subject to exacerbation and remissions, with no current lower extremity symptoms.

245     The plaintiff told Dr Fish he wore a back brace most of the time at work and he needed to keep walking because of constant restlessness.  Prolonged posture for more than 30 minutes aggravated his back pain and he was most comfortable when lying flat.

246     The plaintiff was then having no medication and was doing daily stretches.  He saw a chiropractor every two to four weeks for exacerbations as required. 

247     The plaintiff told Dr Fish that in the past he had suffered occasional tightness in his back throughout the day, particularly after rowing, but this would resolve in one to two weeks.  He was also previously active in an exercise program and frequently went to the gym.  He said he had never been involved in bodybuilding but in fitness training and had to give up the gym on a regular basis because of his problems.   He also had to give up golf and shooting.

248     On examination, there was tenderness over the left lower lumbar spine with muscle spasm.  Neurologically, the plaintiff was normal.  Dr Fish noted the investigations showed a right paracentral disc bulge but no evidence of neural compression. He did not think there had been any significant change in radiology since 2009.

249     Unlike Dr Taubman, Dr Fish thought there was no significant evidence there was any complete and or full recovery from the 2009 incident, and there had been exacerbations with remissions since but overall, the plaintiff’s condition was attributable to the incident from which he was suffering an aggravation of lumbar disc degeneration.

250     The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in September 2014.  He noted the plaintiff presented as a sensible and genuine historian.

251     The plaintiff told Mr Dooley of the incident injury and light duties thereafter for about six weeks.  There was then ongoing low back pain but no sciatica and he required occasional Panadeine and anti-inflammatories.

252     The plaintiff told Mr Dooley he had further episodes of increased pain that required time off work and he now works full time at Bunnings.

253     The plaintiff told Mr Dooley he notes ongoing continuing intermittent lower back pain. He does stretching exercises and has been told to use weights, and he uses occasional analgesics.  In terms of activity, he no longer enjoys the gym any more.  Prolonged sitting aggravated his low back pain.  He had learnt to pace himself at work, and sometimes he wore a back brace.

254     The plaintiff told Mr Dooley of a transport accident in December 2009, after which his back tightened for a period of time. The plaintiff advised he had intended to join the Navy but did not believe he would be able to do so due to his spinal condition.  In the past, he had enjoyed rifle shooting but he could no longer engage in it. 

255     On examination, there was no deformity of the spine and there was tenderness of the right low lumbar region.  There was some restriction of movement and 50 degrees straight leg raising on the left with low back pain.  Neurologically, the examination was normal.

256     Mr Dooley noted the previous radiology and CT scanning in November 2012 reported a moderate central and left paracentral disc protrusion at the lumbosacral level, and that had not changed from the June 2012 CT scan.

257     Mr Dooley diagnosed naturally occurring degenerative disc disease of the lower lumbar spine, noting the plaintiff then had ongoing intermittent low back pain with exacerbation.

258     Whilst Mr Dooley thought there was a possibility those prolapses at L4-5 shown in July 2011, June 2012 and February 2014 at L5-S1 on the left  occurred during the plaintiff’s work, on balance, he thought they had occurred as part of the natural evolution of the underlying degenerative disc disease.  He noted the stability of those findings and the fact the plaintiff did not report sciatic pain.  From research studies, unless the prolapse was associated with major sciatic pain, Mr Dooley considered it was not of clinical relevance. 

259     Mr Dooley believed exercise and walking was appropriate and that would reduce the frequency and intensity of exacerbations.

260     Mr Dooley considered the plaintiff’s condition had stabilised and he would not expect deterioration over and above the natural evolution of underlying degenerative disc disease.

261     Mr Dooley thought the plaintiff would note difficulty carrying out regular physical work on a full time basis and he would have difficulty with a lot of bending and manoeuvring.  He noted, however, in an ordinary clinical practice, people with low back problems say the worst type of work for them is sitting, and it would be good to mix their activities.  He thought the future involved ongoing intermittent low back pain, even after a cessation of the so-called aggravating factor. 

The Navy – correspondence

262     The Navy requested a report on 24 October 2011 from the plaintiff’s general practitioner to determine his fitness to become a member of the ADF.

263     That report was requested, addressing the plaintiff’s mental health history, current mental status and current future risk for episodes of mood disorder, anxiety and work-related stress.

264     In a document headed “Report to ADF”, the plaintiff emailed Dr Meallin on 14 November 2011 asking for a few changes, leaving out the sexual preference part and that he had had suicidal thoughts on the breakup, although he had not had those for a long time.  He also suggested she put something in about him needing to be organised structured, although he knew what he was doing and he worked with routines very well and easily.  The plaintiff told Dr Meallin about his strong desire to join the Navy, and how he felt comfortable at a recent open day. 

265     Dr Meallin then sent a draft report for the plaintiff to read and for comment.

266     By letter dated 29 November 2011, the ADF Medical Officer advised that, unfortunately, the plaintiff’s medical history questionnaire indicated he had a history of recurrent depression and a history of recurrent back pain associated with spinal disc abnormalities on imaging studies which affected his ability to join the forces and, as a result, he had been assessed as medically unfit for the ADF.

267     The plaintiff was advised as to the appeal process.

268     By letter dated 12 February 2012, the plaintiff advised the ADF he was lodging an appeal against the decision of 29 November 2011. He referred to Dr Davidson’s letter in which he stated both episodes of depression stemmed from relationship issues, low self-esteem and poor sleeping.

269     The plaintiff advised his first episode of depression was in Year 12, dealing with the demands of that year and ongoing strain and low self-esteem as a result of constant harassment and bullying.

270     The second depression episode in August 2004 was caused by loss of employment for a significant length of time.

271     On 18 June 2006, the plaintiff was again treated for depression as a consequence of low self-esteem caused by yet another loss of employment and a very significant relationship breakdown.

272     Through psychological therapy, the plaintiff maintained at that time, he learnt ways to strengthen his self-esteem and overcome the related depression, and since 2006, had maintained a very determined and positive mindset.

273     In terms of his back pain, the plaintiff referred to the MRI scan and the report from Dr Davidson dated 23 November 2011 and Dr Dixon’s report of December 2011.

274     On 7 March 2012, Dr Bisas, Regional Senior Medical Officer with Defence Force Recruiting advised the plaintiff that he considered the history of recurrent depression and lumbar spine discography were each significant.  

275     While the plaintiff might have improved with a familiar home environment, experience had taught at the ADF, there is a high likelihood of recurrence during military service, often as early as initial training, especially so with recruits with a history of recurrent episodes of depression and also significant self harm in association with a history of depression is viewed unfavourably.  Further, back pain was a common occurrence in a military environment where training was extremely arduous and experience showed those with a past history of back problems were prone to a recurrence when training. 

276     While it was noted the plaintiff’s back was apparently asymptomatic, he was considered to have an increased risk of suffering further injury to his back doing arduous training and there was also an absolutely essential duty of care to protect him against further injury.

277     Dr Bisas confirmed that the plaintiff did not meet the entry medical standards for the ADF.

278     The plaintiff replied to this rejection letter by letter dated 22 August 2012.  He advised, in response to the comment that there was “history of recurrent episodes of depression”, that the last such episode was in 2006 and he had not had any episodes for six years without the need for medication, and the only reason for the episode was bullying and a significant relationship breakup. 

279     The significant self harm described by the ADF was a token gesture and not a serious suicide attempt, as Dr Davidson explained.  Further, Dr Davidson had confirmed there was no evidence of substance abuse, no sign of self harm or serious suicide-like ideation or intent.

280     The plaintiff explained he did not require a lot of periods off work. There was actually six weeks spent on reduced hours or restricted duties but he was still able to perform required duties at work and he no longer had any issues in regard to back pain. 

281     The plaintiff also advised he had done the Tough Mudder challenge not that long ago and he completed it on his own without any issue; namely, a 20-kilometre walk with 16 military-style obstacles along the way, some of which included climbing over walls and crawling through very tight and narrow and sometimes enclosed spaces.

282     The plaintiff included the competitor numbers to prove that he was not only physically fit but also physically able to perform such a task, and he advised he also continued with bodybuilding training without any issues or restrictions either.

283     By letter dated 10 October 2012, the ADF thanked the plaintiff for his letter. 

284     The plaintiff was advised that the grounds of a new appeal were new evidence indicating the condition was no longer evident and that the risk of recurrence was low; or evidence that the original assessment was based on an incorrect diagnosis; or evidence that standards had been inappropriately applied. 

285     The plaintiff was advised that while he had provided a significant amount of personal historical detail, it was not inconsistent with that already provided and upon which the original application and determination was made, and the original decision was upheld. 

286     The plaintiff was advised he could seek a further appeal on the same grounds.

287     The plaintiff wrote to Dr Norton in early 2014.  He asked if he could write a letter stating the latest findings from his scan.  The plaintiff noted even though there was no healing, there was also nothing worse, so he personally believed that showing “that’s been stable all this time is a good sign and my movement is perfect and I am in no pain with my back at all”.

288     The plaintiff requested Dr Norton provide his professional opinion as to  whether he thought the plaintiff’s back would continue to stay stable and cause no issues or not, and post it back to him so he could compile another appeal.

289     In response, Dr Norton wrote to the plaintiff on 28 April 2014.  While he could comment that the plaintiff was symptom free and the CT scan result is stable, he would be unable to contradict the statement of Colonel Wells that the risk of further recurrence is considered to be significant and say that the plaintiff’s back will continue to stay stable and cause no issues as requested.

290     Dr Norton noted that, unfortunately, as Colonel Wells indicated, there is a potential for further disc injury in a patient with a history of disc prolapse, and Dr Norton advised he certainly could not guarantee this would not occur in the plaintiff’s case, particularly with vigorous activity.

Work documents

291     The plaintiff and Jovand signed an employment contract on 13 October 2014 in which Jovand agreed to employ the plaintiff as a site supervisor.  The job specifications included general carpentry and handyman work.

292     The plaintiff wrote a letter of resignation to Mr Brooks on 28 October 2014.  The plaintiff thanked him for the job but advised it was just not for him. It was not what he was expecting or hoping – the job was isolating for him. The plaintiff advised he did not wish to discuss the matter any further and requested not to be contacted.

293     The plaintiff’s weekly timesheet for 13 to 17 October 2004 set out he worked eight and a half hours daily attending sites in Metropolitan Melbourne, Cranbourne and Rosebud.

Overview

294     It is not disputed the plaintiff suffered injury to his lumbosacral spine in the incident.  There were further aggravations in 2011 and 2012 whilst in the defendant’s employ.

295     The defendant accepted liability for the payment of weekly payments and medical expenses.  Liability was accepted pursuant to s98C in relation to the lower back injury sustained on 15 November 2009. 

296     This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[69] such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

[69][2006] VSCA 171

297     No such explanation has been forthcoming in the present case.

298     There is no dispute as to the plaintiff’s diagnosis, with disc involvement at L5‑S1 shown on all investigations since 2009. The consensus of medical opinion is that there has been no change or progression in those findings between then and the most recent investigations in 2014. 

299     There was no issue the plaintiff aggravated an asymptomatic underlying degenerative condition and there was a consistency in all the medical reports that as a consequence upon that condition, the plaintiff should avoid positions of heavy lifting, bending and twisting and prolonged postures.[70]

[70]T173

300     There is no suggestion of any non-organic factors in the plaintiff’s current presentation.

301     There were only a small number of medical attendances relating to spinal pain prior to the incident, and no suggestion of any aggravation in the incident.[71]

[71]T164

302     The defendant’s primary submission was that the plaintiff does not satisfy the “very considerable” requirements of the narrative test.[72]

[72]T165

Credit

303     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[73]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[73](2010) 31 VR 1 at paragraph [12]

304     The plaintiff’s credit is a real issue in this case.

305     The plaintiff admits he lied to his doctors, chiropractor and the Navy when he advised them he was pain free and able to engage in vigorous physical activities having deposed to, and presented his case as suffering constant back pain with restrictions on a wide range of activities, particularly work.

306     In general terms, I accept the submission by counsel for the defendant that the plaintiff at times was deliberately evasive and his memory of matters in re-examination was in contrast to his performance in this regard in cross-examination.[74]

[74]T170

307     Clearly, there was an inconsistency between the plaintiff’s recent affidavit evidence as to his gym involvement being minimal and his viva voce evidence that he had ceased attending the gym months ago.[75]

[75]T171

308     Further, the plaintiff’s evidence that he had never thought of how he would cope in the Navy if he was accepted was not credible and, in my view, could not be explained by his lack of maturity as his counsel submitted.[76]

[76]T185

309     Taking all these factors into account, I have great difficulty accepting the plaintiff’s evidence without some corroboration.

Pain

310     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[77] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.

[77](Supra) at paragraph [11]

311     The plaintiff’s description of his pain has varied greatly at different times and to different examiners.  This situation has not been explained on any medical grounds.

312     The plaintiff’s case at its highest does not involve complaints of ongoing, constant significant pain.

313     Earlier this year, the plaintiff deposed that his back condition has been much the same as it was at the time he swore his first affidavit.  He had earlier described relatively short periods of pain where the discomfort in his back had not been too bad or minimal, but there was normally always a level of back discomfort which escalated to become quite painful on a regular basis. 

314     However, in cross-examination, the plaintiff explained the pain had changed.[78]  He maintained that the effects of the injury are now worse.  His back discomfort changes daily.  Sometimes it is not there at all and he is able to live a normal life.  On other days, he cannot move.[79] 

[78]T25

[79]T69

315     Whilst the plaintiff appears to describe a worsening of his symptoms, he has not complained to any treating practitioners to this effect nor has he required any increase in painkilling medication.

316     The most significant complaint of pain was to Mr Kossmann in May 2014, when the plaintiff complained of persistent lumbar back pain with acute exacerbations every one or two months, denying radicular symptoms.

317     In September 2014, the plaintiff told Mr Dooley he noted ongoing continuing intermittent lower back pain.

318     The plaintiff agreed he told Mr Flanc in February 2015 that his back pain had not changed much since he stopped work, but then said that was not really accurate.[80] 

[80]T92

319     However, both to his treaters and also the Navy, the plaintiff has described himself as symptom free on various occasions.

320     Dr Davidson noted in early 2013, the plaintiff did not report any pain.[81]

[81]T121

321     When the plaintiff wrote to Dr Norton in early 2014, he advised Dr Norton his movement was perfect and he was in no pain at all with his back.

322     In February 2012, the plaintiff advised the Navy that he had resumed full duties and had no ongoing problems.  In August that year, he advised the Navy of his involvement in Tough Mudder and that he no longer had any back issues in regards pain.

323     Also relevant to the pain assessment is what the plaintiff’s doctors say about his pain.

324     When he wrote to the plaintiff in April 2014, Dr Norton advised he could tell the Navy the plaintiff was symptom free and the CT result was stable, but he could not contradict the statement that the risk of further recurrence was significant.

325     When he most recently reported in February 2015, Dr Davidson advised there had been only one recent back-related attendance. Whilst there was an ongoing vulnerability, the flare ups were clearly much less than a couple of years ago. He thought the plaintiff’s condition was stable with episodes of intermittent musculoligamentous strain.

326     In January 2015, Dr Dixon thought the plaintiff was physically fit and had good core muscular support for almost all work-related activities, avoiding heavy and/or repetitive lifting.

327     Thus the plaintiff’s treaters, whilst of the view there was a vulnerability to further recurrences of back pain, did not consider the plaintiff had a significant ongoing back problem.

328     In all the circumstances, it is obviously very difficult to accurately assess the plaintiff’s true level of pain. 

329     I do not accept the plaintiff’s back pain is significant, nor do I accept that the his back was a rollercoaster and he never knew what it was going to be like from day to day, as his counsel submitted.[82]

[82]T188

330     Recent examination findings also do not support a significant problem with pain and restriction of back movement.

331     While the plaintiff agreed he lied to his general practitioners and to Dr Dixon, I accept he had a close relationship with each of them and they had also examined him on numerous occasions.[83]  It is highly unlikely the comments that they make about his symptomatology are anything other than fact.[84]

[83]T165

[84]T167

332     In early 2013, examination by Dr Davidson then revealed a full and pain-free range of spinal movement.[85]  Dr Dixon, in late 2012/early 2013, reported a full range of movement, no discomfort and no radicular symptoms.

[85]T121

333     Medico-legal examiners have not found any major abnormality on examination, noting some restriction of movement and tenderness.

Left leg

334     Save for immediately after the incident, and also following the raking incident, there was little mention by the plaintiff of any left leg complaint.  He specifically denied sciatic pain when recently examined by Mr Dooley.[86]

[86]T55, T172

335     Although in his recent affidavit the plaintiff deposed to experiencing pins and needles and a sort of numbness in his left thigh at times, and his left leg felt less agile than the right, he agreed only had left leg problems for a time after the incident and also after the raking incident and he had no pain since.[87]  

[87]Having described intermittent left leg and buttock pain in his first affidavit, T55

Treatment

336     The plaintiff’s post-incident treatment has been predominantly from his chiropractor, Dr Dixon, the plaintiff not having seen Dr Davidson for his back complaint between 2012 and early 2015.

337     Whilst there have been numerous chiropractic attendances,[88] the plaintiff  conceded parts of his spine other than the lower back have been treated.  In any event, as Dr Dixon most recently reported following examination in January 2015, the plaintiff was physically fit and had good core muscular support for almost all work-related activities. 

[88]T181

338     There has been one referral for specialist treatment, with the plaintiff having been seen by Mr Hunt, orthopaedic surgeon who suggested conservative treatment. He has not seen the plaintiff since December 2011.

339     There is no suggestion that the plaintiff has required significant painkilling medication since the incident.  His current regime involves a minimal amount of over the counter medication.

Activities

340     The plaintiff claimed a range of sporting activities had been significantly affected by his incident injury; however, his evidence in this regard was also somewhat contradictory and therefore unreliable.

341     I have difficulty accepting the plaintiff’s evidence that since the incident his attendance at the gym has been significantly compromised and that he is no longer is able to attend – evidence given for the first time during the hearing and at odds with his affidavit sworn the week prior thereto.

342     The plaintiff conceded he was still doing significant gym work in 2011, two years after the incident.

343     I am not satisfied this situation altered greatly over 2012-2014 when the plaintiff reported to his treaters and the Navy that he was continuing to engage in vigorous gym work.  He also told the Navy of engaging without difficulty in the very onerous Tough Mudder activity and also body building training without any issues or restrictions.[89]

[89]T173

344     Recreational shooting has not been a long-time passion of the plaintiff.  He only became a member of a shooting range and obtained his gun licence after the incident.  It is unclear why he ceased this activity, initially deposing he did so because of problems sitting and the recoil from the rifle and then in his viva voce evidence describing problems driving to the range in Lara.[90]  

[90]T173

345     I find it difficult to accept the plaintiff would have had to cease this activity due to his back condition given his ability to continue work full time in his normal duties with the defendant until September 2012, and later work full time at Bunnings and also engage in significant activities at the gym.  In any event, shooting was a weekend activity which the plaintiff would have difficulty attending because of his work commitments.

Work

346     There is no issue that consequent upon the aggravation of an asymptomatic underlying degenerative condition, the consensus of medical opinion is that the plaintiff should avoid positions of heavy lifting, bending and twisting. Accordingly, Mr Hunt and other doctors have imposed restrictions consistent on heavy manual duties in this regard.[91]

[91]T175

347     Despite these restrictions, since the incident, the plaintiff’s employment has continued on a full-time basis and with little need for time off work due to his back.

348     As the plaintiff advised the Navy, after the incident, he had a “mere” six weeks off work, during which time he worked some reduced hours and duties.  The plaintiff was then able to resume full-time normal duties. The plaintiff told Mr Hunt he was coping with pre-injury duties in December 2011.

349     The plaintiff continued to work in his pre-injury duties with the defendant until September 2012, leaving because he was unhappy at the way he had been treated, not because of difficulties due to his back condition.

350     The plaintiff was then able to work at Bunnings on a 30 hours’ contract, plus he tried to get extra hours.  He only had to have a couple of days off work in 2013 because of back pain.  He continues in this job working 8-hour shifts carrying out a range of duties, the nature of which are not very light as the his counsel suggested.[92]

[92]T187

351     Whilst the plaintiff deposed he took ten days’ sick leave in 2014 because of his back pain, he did not seek any medical attention nor request certificates during this period imposing any further restrictions on his duties.

352     The plaintiff left the job at Bunnings to take up the role at Jovand, not because he was not coping physically, but the new job was to be more lucrative.  In any event, he kept the weekend work at Bunnings.

353     I do not accept the plaintiff left Jovand because of back problems with the driving work involved.  He was there for only a week and the limited driving he undertook did not involve “huge” kilometres as he described. [93]

[93]T166

354     In my view, the plaintiff left that job because it did not meet up to his expectations of what would be involved in a site manager role, feeling more like a “gofer” than a site manager.  Further, it was “isolating” not working with a team, as he had done in the past.[94]

[94]T166

355     There was no attendance with Dr Dixon whilst the plaintiff worked at Jovand complaining of an aggravation of his back in that job.  During that short period, the plaintiff also worked 8 hours a weekend at Bunnings.[95]

[95]T165

356     The plaintiff maintains he has been unable to achieve his dream of joining the Navy because of his back condition, yet he claims he would be physically capable of passing the physical and doing the duties involved in Navy service.

357     Whilst the plaintiff’s back condition was one of the grounds upon which his  application was rejected, that rejection was based on the Navy’s view that he had a vulnerability to further episodes of back pain, not the plaintiff’s condition at the time of the applications.  In considering the plaintiff’s applications, the Navy had before it evidence from both the plaintiff and his treaters that he was pain free and strong physically.

358     Further, the application was knocked back on psychiatric grounds.  As he had nothing further to provide to the Navy in relation to this issue, the plaintiff chose not to pursue a review of this decision beyond his first letter.

359     I am required to consider the plaintiff’s impairment as at the date of hearing. Whilst there may be some vulnerability to flare ups in the future, in my view, that is not a situation which meets the statutory test of serious.

360     The plaintiff is capable of full-time work and has been so, save for a few weeks after the incident.  He requires minimal pain medication and his treatment is limited to chiropractic attendances with Dr Dixon, who earlier this year described the plaintiff as physically fit.

361     Given my concerns as to the plaintiff’s credit, I do not accept that he continues to experience significant back pain interfering with his activities as he has described.

362     Taking into account all the evidence, I am not satisfied any impairment to the plaintiff’s lumbar spine is serious.

363     Accordingly, the application is dismissed.

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