Jarvie v Sideliner Contracting Pty Ltd
[2023] VCC 1853
•17 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. 22-01582
| Graeme Jarvie | Plaintiff |
| v | |
| Sideliner Contracting Pty Ltd | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2023 | |
DATE OF JUDGMENT: | 17 October 2023 | |
CASE MAY BE CITED AS: | Jarvie v Sideliner Contracting Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1853 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – lumbar spine – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr A. Saunders | Hall & Wilcox |
HIS HONOUR:
Introduction
1The plaintiff is 63 years old. He lived in Victoria, but now resides in Western Australia. He suffered workplace injuries over a period of time ranging from 2002 to 2017, when as a plumber he was working as a line installer for Sideliner Contracting Pty Ltd in Victoria (the defendant). He installed lining into sewerage pipes. He was frequently required to lift and carry heavy equipment as well as operate heavy equipment. None of this account was challenged in Court.
2Pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate for pain and suffering for injury to the lumbar spine under paragraph (a).
3The plaintiff was represented by Mr Cvjeticanin of counsel. The defendant was represented by Mr Saunders of counsel.
4The proceeding commenced in a somewhat unusual, and in some respects, an unsatisfactory way. Mr Cvjeticanin pointed out that the plaintiff had travelled from Western Australia for the hearing of the Originating Motion in order to adopt his affidavit evidence and make himself available for cross-examination but when the matter was called on, Mr Saunders said that he did not require the plaintiff for cross-examination. Neither did Mr Saunders seek to cross-examine the plaintiff’s partner who swore an affidavit in support of the plaintiff’s application, and had also travelled from Western Australia, or Mr Wood, a friend of the plaintiff, who had made an affidavit in support of the application but who at least resides in Victoria.
5Mr Cvjeticanin told the Court that his instructors had as recently as the day before the hearing, been requested by the solicitors for the defendant to make available the two lay witnesses for cross-examination.
6I am unaware if the plaintiff’s solicitors at any point in time suggested to the solicitors for the defendant that either the plaintiff or his partner could be made available if required by zoom but whatever the position it has been a very costly exercise in bringing two people from across the continent and sending them back again for ultimately no forensic purpose.
Relevant legal principles
7The definition of “serious injury” contained in s 325(1) of the Act and on which the plaintiff relies reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
8The Court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s 325(1) of the Act.[1]
[1] Section 335(5) of the Act.
9To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[2]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[2] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (‘Barwon’).
[3] Barwon (2005) 14 VR 622, 638 [33].
[4] Section 325(2)(c) of the Act.
10The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
11The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[5]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
12In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
13In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[7]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[8]
[6] Section 325(2)(h) of the Act.
[7] Section 325(2)(j) of the Act.
[8] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
14In TTB SMS Pty Ltd v Reading Tate and T Forrest JJA,[9] had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[10]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[11]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[12]
[9] [2020] VSCA 203.
[10] Section 325 of the Act.
[11]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[12]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
The documentary evidence
15The plaintiff tendered the following evidence in support of his application:
· Two affidavits of the plaintiff, dated 10 December 2021 and 16 September 2023;[13]
[13]Exhibit P1, Plaintiff’s Court Book (‘PCB’) 5-18.
· Affidavit of Janet Sover, dated 16 September 2023;[14]
[14] Exhibit P2, PCB 19-21.
· Affidavit of Ross Wood, dated 19 September 2023;[15]
[15] Exhibit P3, PCB 22-25.
· TAL Attending Doctor's Statement of Dr Atef Abdelmalak, dated 26 October 2020;[16]
[16] Exhibit P4, PCB 27-30.
· Clinical Notes of Silverton Medical Clinic, dated 6 September 2011 to 8 July 2022;[17]
[17] Exhibit P5, PCB 31-45.
· Clinical notes of United Medical Centre, dated 30 August 2020 to 12 December 2020;[18]
· Clinical notes of Kenwick Medical Centre, dated 1 February 20203 to 3 February 2023;[19]
· Medico-legal report of Professor Paul D’Urso, dated 13 February 2023;[20]
· Medico-legal report of Dr James Rowe, dated 9 February 2023;[21]
· Four Radiology Reports:[22]
§CT scan of the Lumbosacral Spine, dated 7 October 2011;
§CT scan of the Lumbar Spine, dated 27 May 2016;
§CT scan of the Lumbar Spine, dated 27 June 2019; and
§CT scan of Lumbar Spine, dated 2 February 2023.
[18] Exhibit P6, PCB 46-51.
[19] Exhibit P7, PCB 52-53.
[20] Exhibit P8, PCB 54-58.
[21] Exhibit P9, PCB 59-65.
[22] Exhibit P10, PCB 66-70.
· Worker’s Claim Form, dated 29 September 2011;[23]
· Report of Dr Atef Abdelmalak, dated 3 October 2023;[24]
· Report of, and clinical attendances on Dr Quamrun Nahar Siddiqua Moushumi, dated 3 October 2023;[25]
· Clinical notes of Valewood Clinic.[26]
[23] Exhibit P11, PCB 71-73.
[24] Exhibit P12, PCB 79-80.
[25] Exhibit P13, PCB 81-86.
[26] Exhibit P14, Defendant’s Court Book (‘DCB’) 26-32.
16The defendant tendered the report of Professor Bryant Stokes, dated 1 August 2023.[27]
[27] Exhibit D1, DCB 33-38.
17In determining the outcome of the application I have had regard to the opening addresses of counsel, the affidavit evidence, the exhibits, and the final addresses of counsel. I have not found it necessary to refer to each document tendered, and this is particularly the case, as far as the historical clinical records are concerned as very few of the many entries were relied on which is not surprising because there is no dispute about the chronology of events, and the onset and development of injury, or that the plaintiff’s work has caused injury by way of degenerative changes to the lumbar spine. Rather the contest concentrated on whether the injury as it presently adjudged, is serious in light of the absence of clinical attendances by the plaintiff for medical care connected with his lumbar spine including the provision of prescribed pain relief medication and with the most recent clinical attendance by the plaintiff for his back occurring on 8 July 2022.[28]
[28] Exhibit P5, PCB 32.
The plaintiff’s first affidavit
The plaintiff
18The plaintiff attended Jordanville Technical school until 14 years of age after which he commenced working. Thereafter he was engaged in largely manual labouring roles in concreting, horticulture, farming, building and truck driving. He had his own nursery business for about 10 years but also experienced some periods of unemployment in the 1990s.
19The plaintiff is not married but he has a 36 year old daughter and a 31 year old son. He is presently in a relationship.
Employment with the defendant
20Around March 2002, the plaintiff commenced work with the defendant installing lining in domestic sewerage pipes. He worked full time. He attended domestic residences with a co-worker and accessed sewerage pipes to inspect for tree roots and other blockages with a camera. The plaintiff said that much of his work was done in a “bent over position” and was “very strenuous.”[29] The plaintiff said that he had “general soreness” in his back after a day’s work.[30]
[29] Exhibit P1, PCB 2-3, paragraph 5.
[30] Exhibit P1, PCB 4, paragraph 10.
21The plaintiff said that that the defendant was dependent on a large single contract with Yarra Valley Water and there was “great pressure” to keep them happy, which meant “doing the work as quickly as possible.”[31]
[31] Exhibit P1, PCB 4, paragraph 10.
The 2011 incident
22On 30 August 2011, the plaintiff was manually winding an inflating tube when he felt pain in his back. He said that he was told by one of the directors of the defendant, not to let Yarra Valley Water know he had been injured, “or the contract would be in danger.”[32]
[32] Exhibit P1, PCB 5, paragraph 11.
23After this incident, the plaintiff eventually “had to stop working because of the pain” in his lower back.[33] He saw his general practitioner, Dr Atef Abdelmalak on 6 September 2011, and was referred for a CT scan. He had a “little bit of time off work,” and lodged a WorkCover claim on 29 September 2011.[34]
[33] Exhibit P1, PCB 5, paragraph 12.
[34] Exhibit P1, PCB 5, paragraph 13.
24The plaintiff deposed that he was “keen to get back to work” and his employer was keen to have him back.[35] He returned to normal duties, however, hurt his back a few months later using a “sewer machine.” He saw his GP on 5 December 2011 and had “a little more time” off work before returning to “lighter duties like supervising.” A couple of weeks later he returned to normal duties.[36]
[35] Exhibit P1, PCB 5, paragraph 12.
[36] Exhibit P1, PCB 5, paragraph 13.
25The plaintiff continued to work in normal duties but with a sore back. He said that from time to time, he would perform less physical and more supervisory work. He said that he “just learnt to live with hard work and back pain.”[37]
[37] Exhibit P1, PCB 5, paragraph 14.
The 2015 exacerbation
26The plaintiff deposed that his back pain became a lot worse in late 2015 which he attributed to “all the hard work bent over the sewer machine or the launching machine.” The plaintiff attended his general practitioner on 2 December 2015. He told his GP that he had fallen over at home. The plaintiff said that “one of the owners” told him to say the injury happened at home, as they did not want Yarra Valley Water to know. He returned to work two days later.[38]
[38] Exhibit P1, PCB 5-6, paragraph 15.
The 2016 incident
27In May 2016, the plaintiff was “using the sewer machine to cut a hole in a lining on a “Y” junction when the special bit at the end of the coiled metal spring jammed.” He was bent over the sewer machine, and “felt his back go.”[39] The plaintiff described a “sharp pain” in his lower back, “like someone putting a stick into me.”[40]
[39] Exhibit P1, PCB 6, paragraph 17.
[40] Exhibit P1, PCB 6, paragraph 18.
28On 26 May 2016, he attended Valewood Clinic at the suggestion of the defendant and was referred for a CT scan the next day. He then attended his usual GP at Silverton Clinic, before returning to Valewood Clinic because his GP did not want to do WorkCover. He was given a clearance certificate on 31 May 2016.
Post-injury employment
29The plaintiff returned to work, even though his back was “actually still very sore.” The defendant ultimately lost its contract with Yarra Valley Water, and the business closed. A man named Mick Novak bought the business and asked the plaintiff to finish some of the jobs that were still on the books. The plaintiff told him that his back was “buggered” but started working with him doing the same type of work. The work dropped off and dried up altogether by November 2017.[41]
[41] Exhibit P1, PCB 7 paragraph 20.
30The plaintiff deposed that he chanced his hand in various employment, including at a fire door factory, as a spotter doing confined spaces work, and working with small engines but he said he couldn’t cope.
31The plaintiff returned to Silverton Clinic on 14 November 2018, and he attended that clinic “on and off through 2019.” He was referred for another CT scan on 27 June 2019. The plaintiff said he eventually became aware that he could commence litigation and did so.[42]
[42] Exhibit P1, PCB 7, paragraph 22.
Consequences of injury
32In his initial affidavit, the plaintiff deposed to “back pain almost all the time.” He said, “I get weeks here and there when I feel okay but then the pain comes back.” He said the pain can “be very bad,” and is now also in his right leg. He said the pain in his back can be so bad, that he walks awkwardly.[43]
[43] Exhibit P1, PCB 8, paragraph 23.
33The plaintiff did not believe that he could return to the heavy labouring work of the past. He obtained a heavy truck licence, and tried to do that kind of work, but his back pain flared up when he lifted a couple of plastic bollards and he experienced “a sharp increase in back pain and the strong leg pain became permanent.”[44] He said that he had tried everything that he could so as to work with, or work around his lower back injury, but did not think he would be able to work again.
[44] Exhibit P1, PCB 8, paragraph 23.
34When he swore his first affidavit, the plaintiff was living in a Winnebago and driving around. His appears for a time to have been an itinerant life.
35The plaintiff deposed that he could sit for a while, but was “very stiff and sore,” when he got up. He could walk “pretty well,” but he limped a bit when he first gets up. He said that back pain stopped him from sleeping properly, leaving him tired the next day.[45]
[45] Exhibit P1, PCB 8, paragraph 24.
36With respect to treatment, the plaintiff said that he was taking Panadol for back pain “quite regularly”, and Merysndol. He said, “if I can get a hold of some Endone off a friend, I will take it and it knocks me out for a day.”[46] He was otherwise seeing someone who was a remedial masseuse, who provided him free massage. He did stretches and exercises that he remembered from physiotherapy. He deposed that he was not getting any better and seemed to be getting worse.
[46] Exhibit P1, PCB 12 paragraph 25.
The plaintiff’s further affidavit
37After detailing some short and episodic work undertaken after he concluded employment with the defendant and its principal client, Yarra Valley Water in May 2016, and a subsequent period of unemployment, the plaintiff recounted that he drove his Winnebago to his daughter’s home in Apollo Bay. Then, at the end of March 2022, he drove to Perth to see his son, an exercise he said took him about a week due to the need to continually stop for breaks, because of increasing low back pain.[47]
[47]Exhibit P1, PCB 14, paragraph 1.
38The plaintiff said that by about mid-May 2022, he needed to find work because he had been using his savings and Centrelink benefits to make ends meet and his resources were running low.
39In about May 2022, he found a job with Total Waste in Perth, delivering skip bins. It was full time work Monday to Friday. He said that occasionally people would overfill bins and he would need to get out of his truck and push the bins off manually and this usually caused his low back pain to flare up, with the result that he needed time off work.
40The plaintiff described how on a couple of occasions he left the job only to return to it when his back felt a bit better and out of financial necessity, something he said, he came to regret because his low back pain would flare up again.
41The plaintiff said that he continued to look for a job, because the skip bin work was proving too much for his back. He said he applied for a job at a mine where his son worked. He said he did not disclose his back injury until he was required to attend a pre-employment medical assessment, and so he eventually withdrew his job application and continued to work at Total Waste.
42In about April 2023, the plaintiff found a job with Swan Ethos, managing a recycling plant. It paid less than Total Waste, but he had anticipated it would be easier on his back. He described the job involves making sure the recycling bins get emptied by the bin trucks. He is required to organise a staff of between two and six workers sorting plastics, bottles and cans that are then collected by different companies. Sometimes he needs to undertake deliveries by driving a truck with a crane, with bending sometimes required, which makes his low back pain flare up.
43The plaintiff said there is a limited range of jobs for which he can apply.
Pain and Suffering Consequences
44The plaintiff said in his further affidavit that he experiences back pain almost all the time and even when his pain is not so bad, he feels as if he is “walking on eggshells waiting for it to go again.” As to the pain in his right leg, he said it is there “all the time.”[48]
[48] Exhibit P1, PCB 16, paragraph 7.
Treatment and Attendances
45The plaintiff said that when required, he sees a doctor at Kenwick Medical Centre in Western Australia although not for his low back pain because, as he described it, he has learned to cope with the pain and he knows what will set it off.
46The plaintiff said he had not had a prescription for Mersyndol for some time, and that he found Panadol Osteo was just as effective as controlling his low back pain as anything else.
47The plaintiff said that he is aware that specialists who provided opinions for his solicitors, as well as the Defendant, think he might need surgery on his spine if he proves unable to manage his pain, however, he said that he would want to put off surgery for as long as is possible.
48The plaintiff said that he can tolerate most of his pain, and when he suffers a flare up he will take Panadol Osteo and eventually, the flare up settles.
49The plaintiff deposed that as a result of the injury to his lower back, he is limited in how long he can sit. If he drives for too long, he gets quite stiff and sore. If he bends too much, he can experience a flare up of pain, which can last for as little as a few minutes, or up to a few days.
50The plaintiff said that he walks with a bit of a limp. This is corroborated by Professor D’Urso and Professor Stokes.[49]
[49] See: Exhibit P8, PCB 56; and Exhibit D1, DCB 35
51The plaintiff said his sleep is still affected by low back pain and he described it as:
just part of my life now. I get woken through the night by low back pain. I just roll over and get a twinge and I wake up. That can happen several times in a night. I feel tired and under Slept the next day. I am grumpy during the day. When I was living on my own, I did not notice it much. Now that I am in a relationship, I can tell how much my mood changes and affects Janet.[50]
[50] Exhibit P1, PCB 17-18, paragraph 11.
52The plaintiff said that he used to have motorcycles and he was:
quite fond of them. I especially liked old British motorcycles like Triumphs and Nortons. I also liked Harley Davidsons. I sold my last Triumph Bonneville in February this year. I had to sell it because I could not start it. It was a kick start and I could not do that anymore because of low back pain. I still have a Harley Davidson but I do not ride it anymore. If I go on a long ride, I can barely walk the next day because of low back pain and right leg pain. I have just let the registration run out on that motorcycle.[51]
[51] Exhibit P1, PCB 18, paragraph 12.
Affidavit of Janet Sover
53The plaintiff relied on affidavit evidence from Janet Sover, who is his partner. She has known the plaintiff since March 2022.
54Ms Sover deposed that because of his injury the plaintiff “is almost always walking on eggshells so that he doesn’t irritate or aggravate his back.”[52] She said that his demeanour changes when he is in pain. He becomes “irritated and frustrated. He tries to rest and sit when he is in pain and will take pain killers when he needs to.”[53]
[52] Exhibit P2, PCB 20, paragraph 6.
[53] Exhibit P2, PCB 20, paragraph 7.
55She said that when the plaintiff is at her home, he is unable to do mopping and vacuuming because of his back pain. However, she said that “he will do light tasks such as washing the dishes or other light chores around the house.”[54]
[54] Exhibit P2, PCB 20, paragraph 8.
56She deposed:
I have observed him struggling to put on his shoes. He walks with a limp and struggles to walk long distances. When I take out my dog for a walk, he will not join me if it's going to be a long walk due to his back injury.[55]
[55]Exhibit P2, PCB 20, paragraph 9.
57Ms Sover described her understanding of the plaintiff’s love of motorbikes. She said the plaintiff told her that he had downgraded his motorbikes a few times due to his back injury, and he had sold one “that was a kickstart because he was unable to start it due to his back injury.” She said the plaintiff had told her that “he really enjoyed going for long motorbike rides prior to his injury. He rode quite often and did rallies,” and that “he had one of his bikes transported on a trailer and back to a motorbike event that he won a trophy for as he couldn’t ride it.”[56]
[56] Exhibit P2, PCB 20, paragraph 10.
58Ms Sover deposed that their intimate life had been affected by the plaintiff’s injury.
59She described the plaintiff as a stoic individual, who tries to cover up his pain “and get on with things.”[57]
[57] Exhibit P2, PCB 20, paragraph 12.
Affidavit of Ross Wood
60The plaintiff relied on the affidavit evidence of Ross Wood who described himself as a “close friend” of the plaintiff, having known him for 20 years.[58]
[58] Exhibit P3, PCB 23, paragraph 3.
61He deposed that the plaintiff first complained about his back prior to 2015, and that his “complaints gradually got worse” over the years and started to affect him more.[59]
[59] Exhibit P3, PCB 23, paragraph 5.
62Mr Wood noticed that the plaintiff began to attend the Vale Hotel in Springvale, which was their local, “less and less.”[60] He said that when plaintiff attended the Vale, he wouldn’t stay for long and Mr Wood said he would “see him hobble off.”[61]
[60] Exhibit P3, PCB 23, paragraph 5.
[61] Exhibit P3, PCB 23, paragraph 7.
63Mr Wood deposed that he would visit the plaintiff at his house perhaps once a week, “because that was easier for him.” On these visits the plaintiff “would mainly wear thongs because he told me they were easier to put on rather than shoes.” He said that when the plaintiff was in pain, he would grimace and he observed the plaintiff take painkillers.[62]
[62] Exhibit P3, PCB 23, paragraph 8.
64He described the plaintiff as a “very keen gardener,” who took “great pride” in his garden, however “stopped taking much care of his garden,” as the years went on. As a result, Mr Wood and a friend “Macca” would go to the plaintiff’s house to do weeding and to mow the lawns.[63]
[63] Exhibit P3, PCB 24, paragraph 9.
65Mr Wood deposed that the plaintiff had “a real passion for motorbikes.” He would always be “working and restoring motorbikes.” However, around 4 years ago the plaintiff had to sell a Triumph, that he had restored, “because he had great difficulty kickstarting the engine because of his back.”[64]
[64] Exhibit P3, PCB 24, paragraph 10.
66Mr Wood provided a similar account to Ms Sover, that is, that in around 2019, the plaintiff had won a “People’s Choice” award for his motorbike. However, he “couldn’t even ride it to the awards because of his back,” and it had to be towed on a trailer.[65]
[65] Exhibit P3, PCB 24, paragraph 10.
67Mr Wood deposed that the plaintiff replaced his old Triumph with a later model electric start. Mr Wood said he went on a couple of rides with the plaintiff, but the plaintiff could only last about a “one to one and a half hour round trip, stopping along the way.” He said that the ride hurt the plaintiff’s back, and he sold that bike around 3 years ago. They have not ridden motorbikes together since.
68Mr Wood lives in Victoria and following the plaintiff’s move to Western Australia in early 2022, he said they speak on the telephone about once a month.[66]
[66] Exhibit P3, PCB 24, paragraph 12.
Plaintiff’s Medical Evidence
Professor D’Urso report dated 13 February 2023
69Professor D’Urso said that the plaintiff injured his lumbar spine on 30 August 2011, when he was working to unblock a pipe and developed back pain. He was unable to work for a couple of weeks before returning to his normal duties.[67] Next in approximately 2014, the plaintiff was “lifting a piece of machinery during his employment,” and again he injured his back, and was unable to work for approximately a week before returning to normal duties.[68] Then, on 25 May 2016, the plaintiff was “again pulling on a sewer cable” and when doing so, he further aggravated his back condition and he was unable to work for several weeks.[69]
[67] Exhibit P8, PCB 55.
[68] Exhibit P8, PCB 55.
[69] Exhibit P8, PCB 55.
70The plaintiff told Professor D’Urso that he suffers from chronic back pain, which on an average day “can be 1/10 but on some days can be up to a 7/10.”[70] His pain radiates into his right lumbar region, and into his right buttock, and down into the lateral aspect of his right thigh. It prevents him from sitting for more than 30 minutes, or walking for more than 30 minutes, and at night he sleeps poorly because of symptoms.
[70] Exhibit P8, PCB 55.
71Professor D’Urso reported that the plaintiff is “able to go shopping. He can perform cooking, cleaning and washing. He does not perform any gardening.” The plaintiff also “watches television, he reads and he uses a computer.”[71]
[71] Exhibit P8, PCB 55.
72Professor D’Urso said the plaintiff explained that prior to his injury, he had been able to work in an “unrestricted fashion as a plumber. He was able to lift without restriction and he was able to ride his motorbike,” but can no longer do such things.[72]
[72] Exhibit P8, PCB 55.
73On examination Professor D’Urso reported that the plaintiff walked with a limp, favouring his left leg. His reflexes were preserved at the knees and ankles. Plantar responses were downgrading. Sensation was intact. His right straight leg raise was positive at less than 30 degrees to buttock, to back pain. On the left it was limited to 60 degrees by back pain. He could stand on his heels and toes. He could flex his spine and came to 10cm from touching his toes. He could extend his spine to 20 degrees. His hips were mobile and non-tender.[73]
[73] Exhibit P8, PCB 56.
74In addressing the radiological investigations, Professor D’Urso observed that:
(a) an x-ray of the lumbar spine of 3 February 2009, revealed degenerative change in the lumbosacral disc level.
(b) a CT scan of 27 May 2016, revealed advanced degenerative change at the L5-S1 level with left sided foraminal stenosis for the exiting L5 nerve root. There was a broad-based L4-5 disc prolapse, without significant canal stenosis.
(c) a CT scan of the lumbar spine from 27 June 2019, was reported to show foraminal stenosis for the left L2 and L3 nerve roots and degenerative subarticular stenosis, more prominent on the right than the left at the L4-5 level, with compression of the right L5 nerve roots.
(d) a CT scan dated 2 February 2023, revealed advanced degenerative change at the L5- S1 level with disc and osteophyte complex causing some foraminal stenosis for the L5 nerve roots bilaterally. There was broad-based disc prolapse at the L4-5 level, with bilateral subarticular stenosis. Degenerative change was also noted at the L1-2 and L2-3 disc levels, without neural compromise.
75Professor D’Urso regarded the work related activity as a plumber during the course of the plaintiff’s employment, “aggravated an underlying degenerative condition of the lumbosacral disc,” and possibly contributed to “the development of a disc prolapse at the L4-5 level,” that has led to the plaintiff presenting with chronic back pain and some right sided sciatic symptoms.[74]
[74] Exhibit P8, PCB 56.
76Professor D’Urso recommended prescribing anti-inflammatory and analgesic medication under the supervision of a general practitioner, and that the plaintiff should participate in a self-management program of core strength exercise under the supervision of a physiotherapist. Professor D’Urso wrote that if the plaintiff’s symptoms were to progress and neurological deterioration occur, consideration could then be given to a two-level minimally invasive instrumented interbody and posterolateral fusion at L4-5 and L5-S1.
77Professor D’Urso considered that the plaintiff’s prognosis was likely to be satisfactory with appropriate management. However, he noted that the plaintiff:
will be prone to degenerative progression with time which, on the balance of probabilities, is more likely than not. Graeme will be at risk of progressive disc prolapse at the L4-5 motion segment and the risk of disc rupture which can be difficult to determine and predict. Graeme's condition will need to be managed by a general practitioner, physiotherapist and spinal surgeon into the future. Should there be significant deterioration of the condition, surgical intervention could well be required.[75]
[75] Exhibit P8, PCB 58.
78Professor D’Urso reported that the plaintiff’s condition would appear to have had a mild to moderate effect on his social, domestic and recreational spheres.
Report Dr James Rowe, Occupational Physician, dated 5 February 2023
79Dr Rowe said that “over the years of performing exertional, heavy work,” the plaintiff developed low back pain.[76] He reported that the incident of injury was first noticed in 2011, and on 6 September 2011 the plaintiff obtained medical treatment from the Silverton Clinic. The plaintiff then made a WorkCover claim for compensation dated 29 September 2011, and his claim was accepted.
[76]Exhibit P9, PCB 60.
80Dr Rowe recited that the plaintiff’s back symptoms “resolved to the extent that he could work again but from that day onwards he would experience infrequent back pain episodes in the course of his work.”[77] The plaintiff told him that “from time to time he would perform lighter, supervisory work which he says his employers preferred,” as opposed to him taking time off.[78]
[77] Exhibit P9, PCB 60.
[78] Exhibit P9, PCB 60.
81Dr Rowe reported what the plaintiff described as a further significant aggravation of back pain on 24 May 2016. The plaintiff tried to keep working because he explained that his employer was reliant on a large contract with Yarra Valley Water, and that there was great pressure to perform work for the client which was cheap and quick. By the middle of 2016, the contract with Yarra Valley Water had been lost, and the plaintiff said he eventually stopped being offered work.
82He attempted other kinds of work but was unable to continue due to low back pain and had not worked consistently since. He re-trained as a truck driver in Cairns, receiving his truck license in August 2021, and he commenced casual truck driving work for Total Waste in around May 2022. He then found full time employment at T & G Earth Moving driving trucks, however he told Dr Rowe that he had recently been forced to resign due to an inability to perform the duties because of his ongoing back pain.
83Dr Rowe addressed the radiology including a CT scan of the lumbosacral spine dated 7 October 2011, that demonstrated severe chronic degenerative changes at L5/S1. The CT scan of the lumbar spine dated 27 May 2016 demonstrated marked disc degenerative change at the L5/S1 level with relatively mild changes elsewhere and no significant canal stenosis or direct nerve root compromise. The CT scan of the lumbar spine dated 27 June 2019 demonstrated:
Mild osteoarthritic changes of mid and lower lumbar facet joints and bilateral SI joints especially superiorly. There are disc degenerative changes at multiple levels. The left exiting L2 and L3 nerve roots come into contract with the bulged left far lateral disc. There might be mild compression of the nerves at these levels. There is bilateral degenerative subarticular recess narrowing more prominently on the right side at L4/L5 level with definite compression of right descending L5 nerve root. Otherwise, no neural compromise is seen in lumbar region.[79]
[79] Exhibit P9, PCB 61.
84Dr Rowe noted that the plaintiff had commenced physiotherapy treatment in June 2016, and had been prescribed medications including Mersyndol Forte, Lyrica and Prednisolone.
85Dr Rowe’s findings on examination were that the plaintiff’s “right leg was weak and wasted. There was a 3cm difference between the right and left legs at the thigh and calf level, when compared at equal points. There was flattening of the lumbar lordosis. Extension was to 10, Flexion was to 40, LR to the left was 10 as was the movement to the Right” [80]
[80] Exhibit P9, PCB 62.
86Dr Rowe diagnosed:
an aggravation of lumbar spondylosis, particularly about the L5/S1 and L4/5 levels with degenerative changes also about the lower facet joints and bilateral sacroiliac joints. On CT scan there is definite compression of the right descending L5 nerve root, consistent with radiculopathy about the right leg.[81]
[81]Exhibit P9, PCB 62.
87Dr Rowe said that it did not appear to him that the plaintiff had been referred to any specialists, and he said he also did not have any correspondence from the plaintiff’s physiotherapist, although the plaintiff said that he had been undergoing massages from a previous partner at one stage.
88Dr Rowe said he understood that the plaintiff was attending a local GP from time to time, and was prescribed medication including Lyrica, Endone and Mersyndol, and was taking medication for hypertension, which is under control.
89Dr Rowe observed that there had been no recent investigations, and the plaintiff appeared not to have been assessed by an orthopaedic surgeon, or pain management consultant, something which Mr Rowe regarded as a deficiency.
90Dr Rowe reported that the plaintiff:
takes care of himself at home, but does report some struggle with dressing. He is able to shower and use the toilet independently. He does not require any help with meal preparation, doing the dishes, doing his laundry, vacuuming or mopping. He says he requires occasional help with grocery shopping, making beds, cleaning the bathroom and gardening. He is able to drive. He did not describe any particular interests or hobbies. He says that he travelled around in his Winnebago which he was able to afford from a previous settlement. He is currently living in Western Australia, in his Winnebago.[82]
[82] Exhibit P9, PCB 62.
91Dr Rowe wrote that as a consequence of the injuries to his lower back, “there has been considerable compromise” of the plaintiff’s “social, domestic and recreational capacity.”[83]
[83]Exhibit P9, PCB 64.
Defendant’s Medical Evidence
Professor Bryan Stokes, Neurosurgeon, report dated 1 August 2023
92Professor Stokes examined the plaintiff on 12 July 2023. He said that the plaintiff is single, but he has a partner and was living in a Winnebago on her property, and that he manages satisfactorily the housework associated with living in his Winnebago.
93The plaintiff said that “he used to be very interested in vintage motorcycles but cannot start them and he knows he cannot kickstart them without hurting his back.”[84] He has a Harley Davidson motorcycle which is an electric start, and he can still ride that. Although, he reported after “a period of half-an-hour his back is very sore and uncomfortable.”[85]
[84] Exhibit D1, DCB 34.
[85] Exhibit D1, DCB 34.
94Professor Stokes also recorded the chronology of the incident of injury. He said that the plaintiff was involved in a good deal of “heavy work, including working bent over and pulling heavy cables from time to time and each time he had injured his back had about two weeks off work because of back pain.”[86]
[86]Exhibit D1, DCB 34.
95Professor Stokes further recorded that:
he has tried working in a doorframe factory but he could not handle the doorframes and then he turned to driving a water truck in South Australia but his back gave way when he was handling the hoses. He has had very little in the way of treatment except for some physiotherapy in the past as well as Bowen therapy.
…
He used to take Mersyndol for his attacks of acute back pain. He has not seen a pain specialist and has had no other treatment.[87]
[87]Exhibit D1, DCB 34.
96Professor Stokes recorded the plaintiff’s complaints as consisting of “a dull ache in his low back and intermittent pain in his left leg which is in the left buttock and the lateral aspect of the left thigh. There is no weakness in his legs and he sleeps satisfactorily.”[88]
[88]Exhibit D1, DCB 34.
97The plaintiff remained capable of looking after himself in the Winnebago and prepared his own meals. He was working as a truck driver and supervising a recycle plant over the course of a 38 hour a week. The truck had a crane and there was no heavy lifting involved.
98On clinical examination Professor Stokes wrote that the plaintiff presented:
very sensibly and gave a good account of himself. He weighed 73 kg and he walks with a slight limp in his left leg. There appeared to be no abnormality in his head, neck or upper limbs. In his spine, he could flex to his mid tibia only and lateral flexion to the right and left was painful as was rotation, although that was only moderately well performed. There was no spinal tenderness. In the lower limbs, straight leg raising was 60° right and left due to low back pain. His reflexes were intact and sensation was normal as well as the power.[89]
[89] Exhibit D1, DCB 35.
99Professor Stokes said that the multiple CT scans which he had been sent for review identified that the plaintiff has “significant disc degeneration at L5/S1 and facet joint degenerative changes in the facet joints above and you will note there has been a comment by Dr D’Urso, Neurosurgeon that he may require fusion at L5/S1 in the future and I would agree with that that if his symptoms cannot be managed.”[90]
[90]Exhibit D1, DCB 35.
Clinical Records
100The clinical records embrace a number of clinics at which the plaintiff has attended and these are:
(a) Silverton Medical Clinic;[91]
(b) United Medical Centre;[92]
(c) Kenwick Medical Centre;[93] and
(d) Valewood Clinic.[94]
[91]Exhibit P5, PCB 31-45.
[92]Exhibit P6, PCB 46-51.
[93]Exhibit P7, PCB 52-53 and Exhibit P13, PCB 81-86.
[94]Exhibit P14, DCB 26-32.
Defendant’s Submissions
101The defendant’s address was directed to the Court making a finding that the plaintiff’s injury to the lumbar spine does not satisfy the threshold for the grant of a certificate for pain and suffering consequences. Mr Saunders put the matter in the following terms:
In summary, it is my submission that the claimed consequences do not reach the statutory threshold. They cannot be fairly described as at least very considerable. Whatever the state of the plaintiff's back in the period shortly after he ceased work, it is evident from the medical evidence - and in particular the clinical records - that the plaintiff's condition has continued to improve with an extended period away from heavy employment.[95]
[95]Transcript (‘T’) 17, Line (‘L’) 15-23.
102Mr Saunders submitted that the plaintiff’s affidavits disclosed him as suffering from relatively mild symptoms, for which he receives no formal treatment and, moreover, he has been able to return to full-time light manual employment.
103Mr Saunders referred in particular, to a number of paragraphs of the plaintiff’s affidavit in which he described his condition overall as “manageable” and, despite him having deposed to experiencing pain almost all of the time, he went on to depose that he has learned to cope with the pain and that he “can stand most of the pain and try to avoid flaring it up.”[96]
[96]Exhibit P1, PCB 17, paragraph 9.
104Mr Saunders submitted that overall the plaintiff’s description is one of symptoms at the mild end of the range, and moreover, it is evident from the plaintiff’s description of his symptoms that there are long periods when the pain is not so bad, a state of affairs reflected in paragraph 7 of the plaintiff’s second affidavit.[97]
[97] Exhibit P1, PCB 14-18, see also paragraph 8.
105As far as the experience of flareups is concerned, Mr Saunders submitted that there is no evidence at all about the extent of them. Similarly, in relation to the plaintiff having deposed to experiencing some leg pain, the nature and extent of leg pain is not particularised. In such circumstances Mr Saunders submitted, it is not possible to make a sensible finding about the leg pain, other than that there is a complaint of it in some fashion.
106Mr Saunders submitted that consistent with a finding that the consequences from the injuries are at the mild end of the spectrum, the plaintiff explained in his second affidavit that he is not seeing a general practitioner for his lumbar pain, but rather is managing it by modification of activities to keep his symptoms in check and by using Panadol Osteo.
107Mr Saunders next referred to the accounts recorded by medicolegal consultants.
108Mr Saunders referred to Professor D’Urso, who reported that the plaintiff said he suffered “chronic back pain which on an average day can be 1/10,” although as Mr Saunders conceded, Professor D’Urso had also reported that “on some days can be up to a 7/10”.[98]
[98] Exhibit P8, PCB 55.
109Mr Saunders referred to the history obtained by Professor Stokes, which is of a dull ache and intermittent pain in the left leg. A characterisation Mr Saunders submitted, was not even at the moderate level.[99]
[99] Exhibit D1, DCB 35.
110Mr Saunders submitted that to the extent Professor D’Urso recorded symptomology and consequences related by the plaintiff, of symptoms preventing him from sitting for more than 30 minutes or walking for more than 30 minutes, and at night sleeping poorly because of symptoms, these had not featured in the plaintiff’s affidavit. Mr Saunders submitted that I should give little weight to the history recorded in Professor D’Urso’s report, where the plaintiff having already given a comprehensive account in his affidavits, made no reference to such symptoms.
111Mr Saunders relied on the limited medication in the form of over-the-counter medication, which he submitted was indicative of an improvement in the plaintiff’s experience of pain and his management of the same over time given that he had previously taken stronger prescribed pain relief. Moreover, Mr Saunders submitted that it was unclear how frequently Panadol Oseto is needed.
112Mr Saunders addressed the clinical records commencing with those of the Silverton Clinic, that showed no attendance by the plaintiff after 8 July 2022 despite previous attendances that recorded back pain and the prescribing of Panadeine Forte.
113As far as the Kenwick Medical Centre records are concerned, Mr Saunders relied on an absence of any complaint by the plaintiff of low back pain recorded in them.
114Mr Saunders addressed the consequences from injury on the plaintiff’s ability to work in an unimpeded manner. He submitted that the matter needed to be assessed by a consideration of not just what has been lost but what has been retained by the plaintiff. He submitted that the plaintiff has a clear capacity for light manual work which he has been able to maintain for some time although it was accepted that the plaintiff is no longer fit for heavy manual work.
115As to the prospect of surgery, Mr Saunders addressed the opinion by Professor D’Urso, which is that the plaintiff’s prognosis is likely to be satisfactory against a backdrop in which he will be “prone to degenerative progression,” considered to be more likely than not.[100] However, Mr Saunders contended that what the progression would look like is difficult to determine or to predict, and it would only be if the plaintiff’s symptoms were to progress and neurological deterioration to occur, that consideration might be given to surgery. Accordingly, Mr Saunders submitted that the possibility of surgery is heavily contingent on a symptomatic worsening, including the development of neurological signs, but even so, surgery would remain a possibility as was also endorsed by Professor Stokes.
[100] Exhibit P8, PCB 58.
116In terms of the plaintiff’s reliance on the interruption to sleep, Mr Saunders submitted that there is no evidence of any medication to remediate the interference with sleep, and that I should give its consideration little weight.
117Regarding interferences with the activities of daily living, Mr Saunders submitted that there an absence of evidence of the plaintiff experiencing any notable interference, and that the lay affidavits do not take the matter further.
118Mr Saunders submitted that the plaintiff’s evidence of previous pursuits of sporting, or recreational pursuits was scant, and was limited to vintage motorcycles and his inability to ride the same, but Mr Saunders pointed out there is no account given by the plaintiff as to how frequently he rode, or how important riding was to him as opposed to what others have attributed. In addition, there is nothing to suggest that the plaintiff has been inhibited in any other area of social activities.
119Mr Saunders submitted that the affidavit by Mr Wood is unhelpful, because on the face of it, he has not had close contact with the plaintiff for more than 12 months. The assistance he offered the plaintiff some two or three years ago, cannot stand as evidence that reflects any current or future restriction experienced by the plaintiff.
120Mr Saunders submitted that the plaintiff’s partner’s affidavit is of such brevity, as to be of no real assistance. As far as an interference in their intimate life, Mr Saunders submitted that it was not a consequence relied upon by the plaintiff in his affidavit.
Plaintiff’s Submissions
121Mr Cvjeticanin pointed out that the plaintiff in his first affidavit described his right leg pain as, “almost all the time… The pain can be very bad.”[101]
[101] Exhibit P1, PCB 12, paragraph 23.
122To the criticism that the plaintiff’s affidavits had not echoed accounts recorded by those whom he had attended for medico-legal purposes, Mr Cvjeticanin referred to paragraph 24 of the plaintiff’s first affidavit in which he described limitations on sitting, and at paragraph 10 of his second affidavit, where he described walking with a limp, an observation corroborated by each doctor who has rendered an opinion concerning the plaintiff.[102] As far as interference to sleep is concerned, Mr Cvjeticanin submitted that the plaintiff’s sleep is continually interrupted and, contrary to Mr Saunders’s submission, the plaintiff had deposed in paragraph 24 of his first affidavit, and in paragraph 11 of his second affidavit, to effects on his sleep.[103]
[102]Prof D’Urso and Prof Stokes both recorded the plaintiff limping see: Exhibit P8, PCB 56; and Exhibit D1, DCB 35. Dr Rowe recorded that the plaintiff’s right leg was weak and wasted, Exhibit P9, PCB 62.
[103] Exhibit P1, PCB 12 & 17.
123Mr Cvjeticanin submitted that the plaintiff should not be criticised because his condition is manageable. The plaintiff has shown that he is not a man prone to complaint, but rather as one who gets on with life as best he can. He has worked and has looked for work, and has obtained work, and carried out work in the face of significant degenerative changes.
124Mr Cvjeticanin submitted that in his second affidavit the plaintiff maintained that his pain is largely the same as when he swore his first affidavit, meaning that the plaintiff is suffering from back pain “almost all the time,” and “even when it is not so bad, I feel like I am on eggshells waiting for it to go again,”[104]
[104] Exhibit P1, PCB 16, paragraph 7.
125Mr Cvjeticanin observed that the plaintiff had deposed that in his current employment, despite it not involving heavy lifting, the process of bending down that he is called on to perform from time to time can cause a flareup of back pain.
126In terms of managing pain, the plaintiff has tried various medications but has found that Panadol Osteo performs as well as other prescribed medications.
127Mr Cvjeticanin relied on the fact that the plaintiff has been required to gradually reduce his involvement with motorcycles and has been left with just one but which is not registered. Ms Sover’s affidavit described the plaintiff as loving his motorbikes as did Mr Wood, who mentioned the surrender of the Triumph motorbike that the plaintiff had displayed, and for which he had won an award. Mr Cvjeticanin submitted that on any view, the plaintiff’s interest in motorcycles was much greater than simply owning them and storing them in his garage.
128Mr Cvjeticanin referred to the report by Dr Rowe and his measurement of the plaintiff’s leg, and his finding that the right leg was weak and wasted,[105] in addition to his altered gait, with a 3 cm difference between the two legs and of evidence of radiculopathy.
[105] Exhibit P9, PCB 62.
129Mr Cvjeticanin submitted that the plaintiff presents as suffering significantly more than a back strain injury but has a severely degenerative lumbar spine.
130Mr Cvjeticanin referred to Professor D’Urso’s report that included recommendations of permanent restriction on the plaintiff’s physical activity in repetitive bending, twisting or lifting, and lifting from below the knee to above the shoulder. He said the plaintiff should avoid “lifting weights in excess of 10 kgs… prolonged sitting, standing, walking activity beyond 30 minutes,” and as well avoid climbing stairs and ladders, working in confined spaces. Moreover, these restrictions would be permanent.[106]
[106] Exhibit P8, PCB 57.
131Lastly, Mr Cvjeticanin Mr Cvjeticanin submitted that regard should be had to the issue of the plaintiff’s prognosis and a real risk, that is to say, one that on the balance of probabilities, is more likely than not, that in the face of progression in symptoms and of neurological deterioration, consideration would need to be given to the plaintiff undergoing a two level minimal invasive instrumental interbody posterolateral fusion at L4-5 and L5-S1.[107] In short, Mr Cvjeticanin submitted that the plaintiff’s condition is permanent and serious.
[107] Exhibit P8, PCB 57.
Analysis and Findings
132The dispute is a narrow but important one, namely, whether the plaintiff’s pain and suffering consequences satisfy the well-known “very considerable” test. There is no dispute of incident and injury.
133As regards the plaintiff’s evidence, commencing with an obvious comment, in circumstances where he was not cross-examined, and this not being a case where the plaintiff’s credit was put in issue by the defendant, the plaintiff’s evidence should therefore be considered in that light. However, the fact that a defendant made a forensic decision not to cross-examine, should not be elevated to something that it is not. Effectively Mr Saunders said that there was no need to cross-examine the plaintiff, because his evidence did not elevate the consequences to “very considerable.”
134There is no contest of course, that it is the plaintiff who bears the evidentiary onus to establish serious injury. There is no dispute that the assessment of serious injury is a value judgement informed on the evidence, but also informed in part by reference to what a plaintiff says about the injury, or in this case, the plaintiff’s level of pain, the level of impairment and impairment consequences, but, of course, in the context of a consideration of the broad range of possible impairments and impairment consequences.
135I make the following findings. I accept that the plaintiff suffered injury in the form of an aggravation of lumbar spondylosis, particularly about the L5/S1 and L4/5 levels.
136I find that the plaintiff’s pain is not constant but that it comes and goes. I note in his further affidavit, the plaintiff deposed that he experiences back pain almost all the time, and when the pain is not so bad, he feels like he is “walking on eggshells” that is, he is anticipating the next flareup.[108] I prefer the plaintiff’s other description provided in his first affidavit that “I get weeks here and there when I feel okay but then the pain comes back”.[109] I also find that this description by the plaintiff better fits with the opinion of Professor D’Urso, who in his report on behalf of the plaintiff dated 13 February 2023, recited that the plaintiff explained to him that he was suffering from “chronic back pain, which on an average day can be 1/10 but on some days can be up to 7/10.”[110] Allowance must also be made for the fact that the plaintiff said that he can tolerate most of his pain but I accept that on some occasions when a flare up is experienced, the pain can be “very bad.”[111] I find on the balance of probabilities that the duration of the severity of pain is more often than not of short duration and can be managed by paracetamol. Moreover, I am satisfied the plaintiff is conscious of and can very largely anticipate, and mostly avoid the circumstances of functional activity that can trigger a flare up.
[108] Exhibit P1, PCB 16, paragraph 7.
[109] Exhibit P1, PCB 12, paragraph 23.
[110] Exhibit P8, PCB 55.
[111] Exhibit P1, PCB 12, paragraph 23.
137My findings should not be misunderstood as meaning that the plaintiff should be penalised for having come to accept and tolerate living with pain, or for finding ways to moderate as many activities as he is able to, in order to reduce the risk of flare ups of pain. Rather the point is, whether that which he experiences by way of pain, and the frequency of it, and its intensity, and the implications it has on his activities of daily life and his enjoyment of life, generally satisfies the statutory threshold.
138I accept that the plaintiff walks with an observable limp. I saw it myself when he walked to the witness stand to adopt his affidavit evidence. He said, however, it comes on after prolonged sitting and when he rises.
139In his first affidavit the plaintiff expressed a concern that he would not be able to work again. He has proved himself wrong through his commendable resilience. The fact that the plaintiff remains in employment is not itself a disentitling reason for the grant of a serious injury in a pain and suffering application, but that he is able to work fulltime in lighter manual work, is a relevant consideration as part of the totality of circumstances,[112] and this includes, when assessing pain and suffering consequences, the whole of the individual plaintiff including background, abilities, skill sets and the like.[113]
[112] See for example: Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.
[113] See, Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326.
140The plaintiff does not attend any doctor for medical treatment for his back because, as he explained it, he has learned to cope with the pain and he knows what will set it off. The plaintiff has stopped the prescribed use of Mersyndol because he finds that the use of Panadol Osteo when required, is just as effective at controlling his low back pain.
141I accept that on examination of the plaintiff, Dr Rowe identified right leg weakness and wasting.
142I accept that the plaintiff has a sitting tolerance of no more than 30 minutes and the same for walking.
143I accept that there are nights when his pain can result in him sleeping poorly, although I concede the validity of the point made by Mr Saunders, that the frequency of his sleep disturbance was not deposed to and neither has the interference to it been of such order to have prompted the plaintiff to seek medication to aid his sleep.
144I accept that radiologically there is corroboration for the plaintiff’s account of pain, and this is apparent from the CT scan dated 2 February 2023. As well, Dr Rowe by reference to radiology noted, “definite compression of the right descending L5 nerve root, consistent with radiculopathy about the right leg.”[114]
[114] Exhibit P9, PCB 62.
145There is some discordance between Professor D’Urso and Professor Stokes, not on matters medical, but rather on Professor Stokes account of pain and sleep he recorded the plaintiff having related to him. Professor Stokes reported that the plaintiff complained of “a dull ache in his low back and intermittent pain in his left leg which is in the left buttock and lateral aspect of the left thigh. There is no weakness in his legs and he sleeps satisfactorily.”[115]
[115] Exhibit D1, DCB 35.
146I am mindful that the present application was not conducted in the manner that a trial of a proceeding would be, and that applications of this type are sometimes inelegantly referred to as a “gateway proceeding”, but more particularly, because the plaintiff was not cross examined there is no means of testing the accuracy or completeness of the account attributed to him by Professor Stokes. On balance, I regard the plaintiff’s account of variable pain and of interruptions to sleep, the frequency of which are not known, as likely more consistent than not, with the radiological evidence of degenerative change.
147I am not satisfied that the effect of injury on the plaintiff’s domestic activities of everyday life are of a degree that is measurably serious, but instead that they are relatively modest. I regard the recitation by Dr Rowe as a reasonable accounting of the same. Dr Rowe is largely in accord with Professor D’Urso on such matters. The latter specialist reported that the plaintiff is “able to go shopping. He can perform cooking, cleaning and washing. He does not perform gardening,” and he “watches television, he reads and uses a computer.”[116] I note that Mr Wood deposed that the plaintiff had been a “very keen gardener,” but this had stopped as the years went on.[117] The plaintiff did not refer to gardening as a consequence adversely affected by his work injury, but I have observed that at one stage in his working life the plaintiff operated a nursery.
[116] Exhibit P8, PCB 55.
[117] Exhibit P3, PCB 24, paragraph 9.
148I am satisfied that in consequence of his injury, the plaintiff has lost the capacity to enjoy his previous pursuit of riding his motorbikes. He said he used to have vintage motorcycles and was quite fond of them. He said that he sold his last Triumph Bonneville in February 2023, because it was a kick start bike that he could not manage because of his low back pain. Although, he still owns a Harley Davidson he does not ride it, because as he explained, if he goes on a long ride he can “barely walk the next day because of low back pain,” and so he has allowed the registration to expire.[118]
[118] Exhibit P1, PCB 18, paragraph 12.
149I have had regard to the plaintiff’s prognosis, and the extent to which it is more probable than not that his degeneration will worsen, and the potential that he will eventually come to fusion surgery. The medical opinion is expressed in different ways, although the potential for surgery is a matter on which Professor D’Urso and Professor Stokes agree. Mr Saunders urged me to conclude that although the potentiality for surgery cannot be excluded, the probability of the potentiality coming to fruition is very debatable. In reality the language used to express an opinion on the risk of surgery by both medico legal reporters was less than helpful.
150For example, Professor D’Urso said he regarded the plaintiff’s prognosis was likely to be “satisfactory with appropriate management,” but he then went on to say that the plaintiff will be prone to degenerative progression with time, and such a state of affairs was something he believed would be more likely than not. He also said that the plaintiff will “be at risk of progressive disc prolapse at the L4-5 motion segment,” but with the risk of disc rupture difficult to predict.[119]
[119] Exhibit P8, PCB 58.
151Notably, however, Mr Saunders relied on Professor D’Urso who went on to say, that it was only if there was “significant deterioration of the condition, surgical intervention could well be required.”[120] Mr Saunders pointed out that the opinion was not only dependent on a significant worsening of symptomology, but of neurological implications as well.
[120] Exhibit P8, PCB 58.
152Mr Saunders also sought to obtain further support from Professor Stokes, who when reporting on the various CT scans he had been supplied said, the plaintiff has “significant disc degeneration at L5/S1 and facet joint degenerative changes in the facet joints above and you will note there has been a comment by Dr D’Urso, Neurosurgeon that he may require fusion at L5/S1 in the future and I would agree with that that if his symptoms cannot be managed.”[121] Mr Saunders contention of course, was that the evidence indicates that the plaintiff has been capably managing his symptoms with lesser interventions and no prescribed medications in contrast to the past.
[121]Exhibit D1, DCB 35.
153As his Honour Jude Purcell put it in Jiwani v 7 Chefs Pty Ltd, “there are some case that are clearly serious, and there are some that are clearly not. There are some that fall somewhere in the middle of the range of possible impairments and impairment consequences, and the proceeding before me is one such example.”[122] I adopt his Honour’s incisive observations.
[122] [2023] VCC 1127, [53].
154My findings have also been informed by Haden Engineering Pty Ltd v McKinnon,[123] in which Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’ [124]
[123] (2010) 31 VR 1 (‘Haden’).
[124]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27].
155Adopting that passage, I am not persuaded that the extent to which pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life, when due consideration is afforded to what has been lost with what has been retained, results in the plaintiff’s losses attributable to an ongoing aggravation injury being serious, although I accept that they are not trivial.
156In addressing the effects of impairment to work, the President said:
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.85 What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].[125]
[125]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [25].
157The plaintiff was absent from his employment with the defendant for some limited periods. Following the initial 2011 incident he had “a little” time off work, before returning to lighter duties, and a couple of weeks later he returned to normal duties.[126] He had around two days off work following the 2015 exacerbation, and in 2016 he had around 5 days off work before returning to usual duties. Despite, reporting that his back was “buggered,” he continued in the same work duties with Mr Novak, until the work dried up around November 2017.
[126] Exhibit P1, PCB 5, paragraph 13.
158Since then, the plaintiff described some periods of employment in different industries, which he said he could not continue due to his back. He also described a period of unemployment, owing in part it seems, to the itinerant lifestyle the plaintiff was then living. The plaintiff says that out of financial necessity, he commenced work with Total Waste around May 2022. He has described needing some time off work due to flare-ups of back pain and returning to work when his back was feeling better. These periods off work have not been described in any detail.
159In April 2023, the plaintiff commenced employment with Swan Ethos, where he remains employed on a full time basis. His work with Swan Ethos pays less than Total Waste, however he anticipated that the work would be “easier” on his back.
160I am not satisfied that, for example, the plaintiff can be said to “suffer a continuous substantial level of pain.”[127] In addition my assessment, is that pain cannot be said to dominate the plaintiff’s life. He is able to engage in full time employment, although not in heavy labouring roles, like the duties he had performed with the defendant, but instead in what can be described as lighter manual handling roles. He has demonstrated an ability to substantially perform the suite of duties required of his roles with Total Waste, and with Swan Ethos in Perth.
[127] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [48].
161Considered overall, even if there are impairment consequences and pain consequences for the plaintiff that could be described as marked or significant, I am unable to accept that the pain and suffering consequences could be said to dominate his life or be at a level where his experience of pain and the impairment consequences of his condition, within the range of possible impairments, can be fairly described as very considerable.
162The application is refused. I will hear the parties on costs.
would apt physical activity ped in the workplace precipitated the onset of
symptoms and aggravated an underlying degenerative condition of the lumbar spine and
possibly contributed to the development of an L4-5 intervertebral disc prolapse. Graeme's
condition has essentially stabilised at this time, although he will be prone to degenerative
progression with a risk of progressive disc prolapse at the L4-5 motion segment which
could be difficult to determine and predict. Graeme would appear to have capacity for light
employment as a truck driver at this time. Graeme's condition would appear to have had
a mild to moderate effect on his social, domestic and recreational spheres
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