Joyce v Aldi Foods Pty Ltd

[2014] VCC 1981

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No.  CI-12-04790

CHRISTOPHER JOYCE	Plaintiff
v
ALDI FOODS PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 25 September 2014
DATE OF JUDGMENT:	29 October 2014 (Revised)
CASE MAY BE CITED AS:	Joyce v ALDI Foods Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 1981

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

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

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 (2006) 14 VR 602; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kruisselbrink v Nationwide Services Pty Ltd (2010) VSC 501

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Thomson	Taylor & Preston Lawyers
For the Defendants	Mr C Miles	Lander & Rogers

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 during the course of his employment with the first defendant on 21 June 2009 (“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 body function relied upon in this case is the cervical 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 ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

9       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

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

[1](2005) 14 VR 622

[2](2006) 14 VR 602

12      The plaintiff relied on three affidavits of the plaintiff and also an affidavit from his friend, Timothy Tate, sworn 12 September 2013.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

13      The plaintiff is thirty-six, having been born in Australia in July 1978.  He is separated and has a seven-year-old son.

14      The plaintiff attended high school to Year 10.  In 1997, he completed a Certificate in Manual Welding and also a Certificate in Carpentry and Joinery.  He obtained a Responsible Serving of Alcohol Certificate in about 2006.

15      On about 1 October 2008, the plaintiff started work full time with the first defendant.  In his role as a warehouse officer, his duties included stock picking, order picking, operating forklifts and operating bulk machines.  His hours varied but were not limited to 25 hours a week plus overtime when available.

16      Prior to his employment with the first defendant, the plaintiff was generally employed in unskilled manual-type work and from about 2004 to 2007.  He worked in a number of hotels and bars as a chef and kitchenhand.

17      In about 1993, the plaintiff was diagnosed with dyslexia.  That condition did not cause him any significant interference with work or normal daily activities.

18      From about 2002 to around 2009, the plaintiff suffered depression, for which he attended his doctor.  At the said date, that condition was effectively managed or had resolved and did not cause any or any significant interference with his capacity to work or ability to undertake normal activities of daily living, nor did it require any specific treatment.  This situation was confirmed by the plaintiff in cross-examination.[3]

[3]Transcript (“T”) 4

19      The plaintiff then agreed he was seeing a psychiatrist and psychologist before his work injury and at the time thereof.  He started seeing Mr Oakes, psychologist, in 2006 and continues to do so.[4]

[4]T5

20      The plaintiff agreed, as he told Dr Paoletti, when he was younger he used to use a lot of drugs, especially ecstasy and speed, and now he indulged every now and again in a bit of marijuana.[5]

[5]T6

21      The plaintiff confirmed he had a number of criminal convictions dating back to 2006 including recklessly causing injury to his partner in 2006 and a number of court appearances thereafter related to either stalking or breach of intervention orders.  He agreed that whole scenario was stressful.[6]  There were further court attendances in November 2009, November 2010 and May 2011.

[6]T8

22      The plaintiff agreed he had been hospitalised at various times with quite severe psychiatric problems, including suicide attempts.  He confirmed an attendance at The Royal Melbourne (“the Royal Melbourne”) on 12 March 2002 after he overdosed.

23       At that time, the plaintiff was being prescribed 225 milligrams of Effexor, which he agreed was a high dosage.  He disagreed with the hospital note that he had not slept well since the age of eleven.[7]

[7]T12

24      The plaintiff also attended the Royal Melbourne on 29 September 2002.  It was then noted that the plaintiff had suicidal thoughts.  He was depressed and not sleeping well and had been using a lot of ecstasy.  On another attendance on 10 May 2002, it was noted the plaintiff had irregular and poor sleep; working odd hours; appetite disturbance and weight loss.  Problems sleeping were also noted at the Royal Melbourne in September 2004. 

25      Dr Priestly supported the plaintiff from 2005 in relation to his court proceedings with court orders, providing Dr Priestly carry out drug checks.[8]

[8]T17

26      The plaintiff could not recall taking an overdose on 30 May 2006.  He could not remember how things were going in early 2006.  If sleeping problems were noted at that time, when he was younger he was working irregular hours and partying a lot, so it would only be natural his sleep patterns would be irregular.[9]  Drug use at that time also did not help.[10] 

[9]T13

[10]T51

27      The plaintiff agreed he had been taken to St Vincent’s Hospital on 24 October 2008 with an overdose, and discharged back to Mr Oakes and Dr Owen.

28      It was noted by the plaintiff’s general practitioner, Dr Priestly, in October 2008 that the plaintiff could not tolerate Lexapro and was anxious and not sleeping, and valium was prescribed.  The plaintiff was still taking valium for anxiety at the time of the work injury.

29      The plaintiff was always a “skinny person” but his drug use did contribute a bit to that situation.[11]

[11]T10

30      From 2000 to 2002, the plaintiff suffered recurrent dislocations of his right shoulder.  On two occasions in 2000 and once in 2005, he suffered self-inflicted injuries to his right hand.  He agreed he had had a history of repeated hand injuries, usually from punching something.[12]

[12]T9

31      In about 2009, the plaintiff was diagnosed with Adult Attention Deficit Disorder (“AADD”) for which he saw his psychologist.  That condition had resolved at the time of the work injury and did not cause any significant interference with the plaintiff’s work capacity or his ability to undertake daily living activities.

32      The plaintiff denied smoking marijuana as of June 2009 – he then had a different lifestyle.[13]

[13]T38

33      The plaintiff described his work with the first defendant as physically demanding and strenuous, involving repetitive bending, stooping, crouching, reaching at various heights, heavy lifting, carrying, twisting, turning, sitting and standing for sustained periods.  He felt under constant pressure to meet the expected target.

34      The plaintiff was doing a lot of heavy lifting and a lot of picking in June 2009.  The hours on his timesheet were accurate.  His contract involved being on call for 112 hours’ work per month.[14]

[14]T37

The incident

35      On or about the said date, the plaintiff was doing his normal duties of stock picking by driving a bulk machine.  He had his head and neck twisted around so he could see behind him as he turned a corner, when he drove over a pallet which caused a jolt.  He then heard a cracking sound from his neck and experienced sudden pain (“the incident”).

36      As a result of the incident, the plaintiff suffered injury to his spine, in particular his cervical spine, and a mental and/or behavioural disturbance. 

37      The plaintiff completed his shift, although in pain, and continued on normal hours.  However, he felt his usual activities exacerbated his neck, shoulders and arm pain. 

38      In an incident report completed by the plaintiff on 21 June 2009, he set out he got neck pain over time, which got worse from picking.  The date of the incident was noted as 21 June 2009 at three o’clock.

39      In the plaintiff’s Claim Form signed and completed by him on 11 July 2009, he set out his neck and the right side of his arm and neck were stiff and he had a numbing pain in his fingers.  The incident occurred when picking.  He woke up with a really sore neck on the morning of 21 June 2009, after working the day before.  His neck became unbearable and he had to go home and he was extremely sore.  He was picking on the day of 20 June – 21 June 2009.  He became aware of his injury on 15 June 2009.

40      The plaintiff explained that picking involved driving a bulk machine.[15] The description in the incident report was pretty much what the plaintiff had been told to put in the form, to put in picking.[16]

[15]T24

[16]T27

41      When the plaintiff filled out the Claim Form, he did not really know exactly what caused his injury.  Thinking about it over time, he realised what actually happened that particular day.  It must have been the “leading cause” why his neck pain started.[17] It probably took him about four weeks to realise how he was injured.  He was in a hurry putting in the Claim Form.  He had figured out how he was injured by the time he saw the physiotherapist.[18]

[17]T33

[18]T33

42      The plaintiff agreed he attended his general practitioner on 22 June 2009 complaining of neck pain, and told her of no recent injuries.  He may have told her of paraesthesia down his left hand and fingers in the past but he could not recall.[19]

[19]T32

43      The plaintiff was then trying to work out how and why he started getting neck pain.  He thought about it, back to the actual incident.  That must have been the reason he started getting neck pain from the sudden crack.  There was an issue with the way he was forced to drive the machine in a different manner at that time, so that is why he did not see the pallet on the floor.  He was told to put down picking as the cause and, in any event, he was picking when injured.[20]

[20]T28

44      When it was suggested that the history given by him to Physio West on 24 July 2009 did not mention anything about sudden jolting, the plaintiff thought it was actually irrelevant.  He was attending for treatment of the actual injury.  The jolting would have been mentioned but it may not have been noted.[21] 

[21]T32

45      The plaintiff agreed he told Mr Han in September 2010 that some jolting was involved in his injury.  He agreed his history to Ms Riglar in January 2011 was really the first fully fleshed out recording of that event.[22]

[22]T34

46      The plaintiff described driving a bulk machine, a machine used solely by the first defendant, where he sat facing straight ahead with the controls and forklifts to his right and the steering wheel on his left.  He had to look over his shoulder when turning, to avoid hitting other people on the factory floor.[23]

[23]T79

47      The plaintiff was pretty sure his general practitioner put down the circumstances of the injury but they agreed to put it down as forklift driving because no one really knew what a bulk machine was.  So pretty much the whole job description was order picking.[24]

[24]T80

48      Originally, the plaintiff was told to put his injury down as picking.  He then thought it over and over and had to really think about what shifts he was doing and what led up to his injury.  There were real hints something was going to happen, and then he distinctly remembered the week leading up to the day he went home sick.  He was on the bulk machine.  He had had a heavy week, driving it at least three times leading up to the injury.  He distinctly remembered one occasion he ran over something and he believed that was probably what triggered the pain.  He did not think much about it at the time.[25]

[25]T81

49      The plaintiff could specifically remember after the injury he had at least two days off and then went back to work but then had to go home.  The first defendant would have noted what duties he was doing at the time.[26]

[26]T35

50      When the plaintiff attended the Royal Melbourne on 25 June 2009, just after the said date, he had a Family Court appearance coming up in the next couple of days.

51      On about 10 July 2009, the plaintiff returned to normal hours doing light sheltered duties.  He found this generally exacerbated his condition, yet he did not want to lose his job, so he pressed on working with difficulty.  He regularly found himself taking medication to alleviate at least some of his neck, shoulder and arm pain.

52      There were then problems with the union.  The plaintiff had nothing really much to do at work.  He was just pushing a broom around and management was putting pressure on him to get back to normal duties.[27]

[27]T83

53      When the plaintiff returned to full duties in October 2009, he struggled but he did not want to lose his job.  The first defendant was being quite difficult with him when he was on light duties.  It was hard to find things to do.  Even walking around gave him a problem.[28]

[28]T82

54      The plaintiff agreed that his doctor certified him fit for normal duties from 30 October 2009.  He then had a normal range of activities with a normal range of movement.  He asked her for that certificate and he then felt better.  He continued to work normal duties until he was sacked.  He liked the job, but not so much management.[29]

[29]T39

55      The plaintiff agreed he was sacked for misconduct on 2 December 2009.  There was a dispute about him wanting time off to have access to his son and then he had an argument with the manager and swore at him.[30]

[30]T40

56      The job with the first defendant was demanding but the plaintiff enjoyed it and would have liked to have remained working there in a similar position indefinitely to retirement. 

Treatment

57      Dr Priestly was the plaintiff’s general practitioner from about 2004 to 2010.  Dr Nicolaai first treated the plaintiff in about June 2009.  Dr Pokharel has been his general practitioner since about 2010.

58      Initially the plaintiff saw Dr Nicolaai on or around 22 June 2009, with his neck, shoulder and arms being very sore and he had some numbness.

59      Whilst the plaintiff deposed Dr Nicolaai referred him to a spine specialist, Mr Carey, who provided him with treatment and advice in about 2009, the plaintiff had no recollection of these attendances.[31]

[31]T4

60      Investigations were arranged including a CT scan and an MRI scan in June 2009.

61      On about 26 August 2009, the plaintiff attended Emergency at Western Hospital for treatment of his work injury.

62      Dr Priestly referred the plaintiff to Mr Han, a neurosurgeon, who provided treatment and advice relating to his work injury from about June 2010.

63      The plaintiff used Dr Priestly’s practice to support him through his various court appearances.  When she saw him for a mental health review on 22 October 2009, the plaintiff agreed anxiety was still a major problem.[32]

[32]T17

64      The plaintiff consulted physiotherapist, Emily Riglar, for his work injury from about 17 January 2011.

65      Dr Pokharel referred the plaintiff to Mr Khan, orthopaedic surgeon, whom he saw from about November 2011.  There was also a further MRI scan in that month.

66      In January 2012, the plaintiff saw Mr Kavar, neurosurgeon, on referral from Mr Khan, and in about March 2012, he saw Mr Khan again about his neck pain.

67      In about July 2012, the plaintiff consulted Dr du Toit, a pain specialist, who recommended injections but WorkCover would not pay for them.

68      At that time, the plaintiff was taking Tramadol, valium and Panadol for his neck, which helped, but did not make the pain go away.  He had ceased physiotherapy, which he had previously found beneficial, as it was no longer funded.

69      The plaintiff continued to experience constant, though varied, pain in his neck made worse by physical work and lifting.  He also at times had numbness in his fingers made worse by physical activity.

70      When he got home from work, the plaintiff had to have a hot shower to help with his neck pain.  Although he could attend to self-care, activities such as leaning over the sink to shave caused him problems.

71      The plaintiff previously was a proud, hardworking and productive team member at work and respected by family and friends as a provider and contributor.  He continued to be frustrated and annoyed by his neck pain but was no longer crying as had earlier been the case. 

72      The plaintiff confirmed ongoing problems with sleep; physical activity; driving shorter distances and having problems reversing; restriction in his activities with his young son; avoiding many of the sporting activities he previously enjoyed, such as downhill mountain bike riding and downhill bike riding generally.

73      The plaintiff had noticed he had put on weight since his injury.  His ability to do work around the house continued to be affected.  He sometimes took his pain out on those around him and he got frustrated and angry at times. 

74      As of his first affidavit in May 2012, the plaintiff was taking Panadol and valium but had to take stomach medication to deal with digestive problems.

75      The plaintiff described disruption with mood; feelings of depression; disruption with sleep; problems with self-care; increased pain and difficulty with prolonged postures and physical activity; problems with mobility; household tasks; caring for his young son; ability to participate in sports and hobbies such as bike riding, playing football and rugby and his injury affecting his social life.

76      The plaintiff deposed that prior to the onset of his injuries, he was a happy and lively person who enjoyed socialising.  He used to take pleasure in going out for meals, watching movies, attending concerts and functions such as weddings, christenings and parties and regular social gatherings with family and friends but by that stage, he tried to avoid leaving the house.

77      The plaintiff worked in a variety of jobs since leaving the first defendant.  Some involved forklift driving and hours varied from part time to full time.[33]  Other jobs involved only picking and the plaintiff had also worked in machine operating positions.[34]

[33]T41

[34]T43

78      The plaintiff had done what forklift driving was required and if he was asked to do a couple of hours, he did so.  If he was asked to do more, he also did so.[35]

[35]T44

79      The plaintiff’s ability to drive a forklift after he left the first defendant depended on the machines involved.  Sometimes they were all right and it was a bit easier but it was still painful towards the end of the day but he would just push on as he needed to make an income.[36]

[36]T83

80      In about October 2010, the plaintiff started work with Visy through Randstad Agency as a warehouse operator.  His duties generally involved forklift driving, loading and unloading trucks and wrapping stock.  At that stage, he had no capacity to return to pre-injury duties.

81      In his second affidavit sworn 4 September 2013, the plaintiff described that while working at Visy and other employment agencies after his injury, he found warehouse and physical work tended to increase his neck pain and he avoided heavy lifting.  He found forklift driving and physical work tended to cause increased neck pain.  He had to rest when he got home and cut down his activities. 

82      In mid-2012, the plaintiff had to undergo a physical organised by Randstad, following which he was told it could not supply him with work that involved unloading containers which he was advised involved lifting material over 15 kilograms.

83      Thereafter, the plaintiff obtained work with Kings Transport on a casual basis performing forklift driving and stock replenishment. 

84      In about July 2013, the plaintiff obtained casual warehouse work with Living Spirit where he did picking and packing and some forklift driving on average five days a week.  He was lucky to be on a forklift a couple of hours a day in this job.[37]

[37]T44

85      The work involved bending and lifting and being on his feet for long periods, although there was some rotation reasonably frequently, which helped the plaintiff’s neck pain. 

86      The plaintiff found this work tended to increase his pain, particularly with lifting and prolonged standing, and his neck became increasingly sore as his shift progressed.  He got frustrated and needed to lie down when he got home.  He was then concerned about his ability to continue working in that job due to his pain and restriction.

87      Following an argument with his manager, the plaintiff’s employment was terminated. 

88      As at the time of his second affidavit, the plaintiff had an appointment to attend an induction for further picking and packing work but he was concerned about his ability to do physical work.

89      Living Spirit was probably the plaintiff’s last forklift job.  He then worked at Kathmandu, doing only hand picking.  

90      In his most recent affidavit sworn 22 September 2014, the plaintiff deposed he was not able to continue working with the agency due to an inability to cope with the work due to his injury.

91      The plaintiff found it difficult to get a permanent job because employers were requesting physical and psychological tests and medical histories be done prior to considering job applications.  Having advised of his injury, the plaintiff never got a call back.[38] 

[38]T45

92      The plaintiff agreed the availability of work was also due to the marketplace.[39] He confirmed he thought he was being offered less work in recent times because he was not able bodied.[40]

[39]T84

[40]T84

93      In about December 2013, the plaintiff started his own business, C & B Services Mobile Car Detailing (“the business”), performing mobile car detailing.  He does most of his work for Europcar Rentals.  His duties involve either limited or full detailing using a vacuum, steam cleaner, and degreasing engines with a pressure washer gun.

94      Hours vary but the plaintiff normally works between 15 and 25 hours a week but sometimes as little as 5 hours.  He works with difficulty and regularly finds himself taking medication to try and relieve some of his pain.  He is concerned his condition in his hands is worsening due to his detailing work and he is worried about his ability to continue working in his current job which aggravates his pain. 

95      When the plaintiff first saw Dr Sutcliffe in August 2013, he was working 20 to 38 hours a week in a storeman-type job.  He agreed he told Mr Myers he was working 25 hours a week and Dr Sutcliffe up to 30 hours a week car detailing in August 2014.  It was the best estimate he could come up with.[41]

[41]T69

96      The plaintiff did not really realise how hard it would be as a car detailer until he actually started doing the job.[42]

[42]T47

97      The plaintiff advertises his services for jobs ranging from $40 to $260.[43]  He advertises his business on Facebook and Gumtree.  Hours of operation are 8.30am to 5.00pm Monday to Thursday, Friday 8.30am to 2.30pm and Saturday 10.00am until 4.00pm. 

[43]T70

98      The plaintiff also has private clients.  When filmed last week, he worked on only three cars.  The DVD was “edited massively” so there was quite a bit of time between working on the cars.  It should only take half an hour to do a car.  He was basically spot cleaning the stains and marks on the car and that was relatively simple.  This job should take less time than it took him but he worked at his own pace without someone telling him to hurry up.[44]

[44]T66

99      The plaintiff used to get the majority of his work from Europcar, usually up to 25 hours per week.[45]  The business is something he is just trialling because he cannot work or get a job anywhere else.[46]

[45]T66

[46]T67

100     The plaintiff confirmed in re-examination, he had done one full detail in the last three months.  He had been given the Europcar work by someone else and the level of work available had changed over the course of the year.[47]

[47]T71

101     Europcar cut back the amount of work available.  Sometimes the plaintiff would get eight cars over the course of a week, but he is now lucky to get three, as was the case last week.  He was maybe lucky to get one car in a week.[48]  He did not think he worked other days last week.  He might have had one private job.[49]

[48]T71

[49]T72

102     The plaintiff was pretty happy with the work he had at Europcar and he did not really need much other work.  It was enough to keep him going, without him overexerting himself but now he pretty much does not know where the work is going.  Setting up the business was a gamble he had to take.[50]

[50]T77

Current treatment

103     The plaintiff continues to see Dr Pokharel.  He had physiotherapy until March 2013, when funding ceased.

104     The plaintiff agreed when he was having physiotherapy he was not having significant difficulty doing domestic personal tasks.  Physiotherapy helped him get along for a little bit but it did not seem to solve the problem.  He cannot afford to continue treatment.[51]  Further, he has not been able to afford injections of cortisone suggested by Metro Spinal Clinic, as WorkCover will not pay for them.

[51]T55

105     The plaintiff continues to take valium for spasms in his neck and also for anxiety.  He takes Tramadol to help with pain; however, it does not stop his pain completely.  He takes Tramadol and valium at night.  He also takes two Panadol Osteo three times a day.

106     The plaintiff continues to experience constant though varied pain in his neck which radiates into both upper extremities and particularly his shoulders, arms and hands.  He also continues to suffer pins and needles in his hands and fingers.  His neck has been “out” since he had a medico‑legal examination arranged by the insurer. 

107     The plaintiff’s pain is worse when performing physical work.  It becomes severe two or three times a week and he has to stop work for about half-an-hour and do exercises.

108     The plaintiff has lower back pain but not a great deal.  His back is just not comfortable.[52]

[52]T56

109     On about Christmas Eve 2013, the plaintiff had to attend Casualty at St Vincent’s Hospital because of severe neck pain, and he was given medication.

110     The plaintiff confirmed he had put on over 20 kilograms since suffering injury.  He now weighs 100 kilograms.[53]

[53]T69

111     The plaintiff continues to feel depressed, anxious and at times, emotionally distressed, and he has feelings of hopelessness.

112     The plaintiff confirmed he continues to have very disturbed sleep.[54]  He cannot get comfortable because of his injury and wakes many times during the night and often only has three hours of sleep.  Sleeping is more of a problem in the winter.  He does not take any medication for sleeping and has not asked his doctor for it but the valium helps him.[55]

[54]T19

[55]T52

113     The plaintiff has been denied access to his son since late last year.  Recently, the plaintiff has been accused by his former partner of sexual molestation of their son.  This allegation had already been proven to be false.[56]

[56]T20

114     The plaintiff was to attend the Family Court the day of this hearing but that matter had been adjourned.  His next Family Court appearance is on 29 October 2014.  The plaintiff continues to pay maintenance for his son but pays less now with his unpredictable smaller income.

115     To a degree, these family-related issues interfere with the plaintiff’s sleep but not so much these days.  He is no longer surprised with anything his former partner does.  It concerns him not seeing his son but his former partner is not a problem to him anymore.[57]

[57]T23

116     The injuries have resulted in a restriction in the plaintiff’s social and recreational activities, significantly reducing the time spent on them as he is too tired due to work and he now goes out very little.

117     The plaintiff has problems using a computer because of muscle spasms and increased pain.  When this occurs, he increases his Panadol when that happens but the pain is constant. 

118     The plaintiff does not go to the pictures because he cannot get comfortable in the seat because he is so tall and he has too much pain; however, he had taken his son to a film at Northland a year ago.[58]

[58]T65

119     The plaintiff is still restricted in activities with his son and he is frustrated and depressed by his restrictions.  The plaintiff can have a limited kick-to-kick with him but he would like to be able to do more with his son, teaching him how to play cricket and football.[59]

[59]T88

120     The plaintiff lives alone and it is not hard to keep his place tidy, as it is small.  He does not have to do the lawn and yard and he would not be able to do it.[60]  He takes longer to do housework and that is why he chooses to live in a unit.

[60]T50

121     The plaintiff was a keen cyclist previously but he now rides nowhere near as much as he used to.[61]  As a young man, he used to ride competitively at a high level, downhill cross-country trail rides, but he has not done so for years.  However, until 2008 he was going for rides in the bush on a mountain bike.[62]

[61]T48

[62]T87

122     Prior to his injuries, the plaintiff was able to support himself and his son financially but he now has financial hardship and is suffering anxiety about his uncertain future, as he is finding work so difficult.

123     The plaintiff agreed that his earnings in the three years prior to 2009 ranged from $27,274 to $36,321 in 2009.[63]  He also agreed from 2010, he earned more every year including 2013, with the highest earnings in 2012 of $50,838 and $40,359 in 2013.

[63]T44

124     The plaintiff thought his taxable income for the last financial year was about $10,000, made up of earnings with Living Spirit, Tusk labour-hire agency and income from the business.

125     Whilst the plaintiff deposed the quality of his relationship with his partner had suffered enormously as a result of his work injury, he agreed that his relationship with her is pretty much non-existent.  He agreed that he was at war with her for many years and he was not blaming the work incident on their relationship problems.[64]

[64]T48

126     The plaintiff does not think he will be able to continue his current work as it aggravates his neck and hand pains.  He does not think he will ever be able to return to his pre-injury work as a forklift driver and he cannot do any hard manual work or work requiring repetitive movement.

127     It has also become harder to find work as, due to his injuries, employers are hesitant to hire the plaintiff as there is a high risk that his workplace injury will be aggravated and he will not be able to work.

128     The plaintiff is not able to work in any position that requires repetitive bending, stooping and rotation of his neck or shoulders.  Any of those tasks will aggravate his stiffness and neck pain and other injuries.  He is only able to work on average between 15 and 25 hours a week but sometimes only as little as 5 hours because of his pain.  Due to his age and limited prior education, opportunities for work are limited.

129     The plaintiff confirmed he had to be careful about the way he does things and the way he moves.  Sitting for prolonged periods is a problem because of neck pain, as is turning his head, stooping, bending, reaching, prolonged twisting and leaning, lifting, pushing and pulling and reversing looking over his shoulder. 

130     The plaintiff has less of a social life and usually does not do anything, just stays at home.[65]  He works because he has bills to pay and “mentally we need to do something”.[66]

[65]T57

[66]T58

Video surveillance

131     The plaintiff was shown 39 minutes of film taken on 16 September 2014 of him doing detailing work at Europcar from 10.20am to 12.49pm.

132     The parties agreed that there was further film taken on 30 May, 13 and 14 July, 30 August and 1 August 2013, totalling about 20 minutes, which was not shown. 

133     The plaintiff explained that on 16 September 2014, he was just doing a quick shampoo of a car, just spot cleaning basically.  A full detail took a lot longer. 

134     The plaintiff agreed he was shown moving his neck freely, bending freely and kneeling and squatting freely, “but it does not mean [he] is not paying for it”.  He could not do that work every single day, five or six days a week.  He needed the money.  The film was taken over only three hours.[67]  Whilst it may not show restriction, it does not mean he was not feeling the pain.  He had to make money and had to work.

[67]T59

135     The plaintiff was then shown ten minutes’ film of him working on his own car on 31 July 2014.  He was working under the bonnet.  He thought this activity was not inconsistent with what he had deposed as being largely unable to perform activities in and out of the house as he used to.[68]  By this comment, he did not rule out car maintenance, but meant heavy car maintenance.  He was only fixing a leaking headlight and it was pretty easy.  It was a half-hour job and he could not afford to pay anyone else to do it.

[68]T63

136     The plaintiff agreed he was bending from the waist and looking down into the engine for ten minutes.  He had to agree he was shown with no restrictions.  He did not say he could not do it, but he felt pain doing it, but things had to be done.  He asked rhetorically – What did he have to do, sit around and be a vegetable?  He struggled but he had to do certain things.[69] 

[69]T64

137     The plaintiff agreed his level of activity on the film was not exactly consistent with what he had sworn, but he had to earn a living.  It does not mean he was not in pain.  He had Panadol in his pocket all the time and tried to manage activities.[70]

[70]T64

138     The plaintiff explained how leaning over the bonnet was not as hard as getting under a car.  What he was shown doing in the video was not too hard, unless he was getting in and pulling engine bits out, which was hard.  He could not really do that because he had to really stretch.  He would not do things like that if he was sore.  If he felt up to it, he would try do them.[71] 

[71]T86

139     The plaintiff disagreed that he could move his head from side to side with relative ease, as Dr Barton reported in 2010.  His neck had started to deteriorate and it felt like it was just getting a lot worse because he had pushed it a bit too hard.[72] 

[72]T54

Lay evidence

140     Timothy Tate, a friend of the plaintiff, swore and affidavit on 12 September 2013.  He has known the plaintiff for more than seven years and they met whilst working at the same restaurant.

141     Prior to his injury, Mr Tate saw the plaintiff every two or three weeks and now sees him on average once a fortnight.  Prior to injury, the plaintiff was an active and capable man who used to enjoy his busy work in the kitchen without restriction.  He enjoyed mountain bike riding and he was physically active and he enjoyed activities such as working on his car.

142     Since the injury, the plaintiff has complained of sharp neck pain.  Mr Tate had observed him taking medication.

143     Since the work injury, the plaintiff is no longer as active as he used to be.  When they spend time together, the plaintiff at times grimaces and moves his neck from side to side and complains about neck pain.  He has a tendency to get up and change his position if sitting for too long.

144     Since the injury, when the plaintiff does physical activity, such as working on his car for short periods, he often bends and moves slowly and more carefully.  The plaintiff tends to avoid carrying heavy objects and asks for assistance.

145     Since the injury, the plaintiff avoids strenuous activity.  Previously, he went go-karting with Mr Tate and friends.  He no longer does so and was advised that activity would increase his neck pain.

146     The plaintiff is concerned about his ability to do physical work, such as warehouse, work due to neck pain and he now seeks to choose what work he performs, seeking to avoid heavier work. 

147     Mr Tate lived with the plaintiff for a couple of weeks after the injury, during which time the plaintiff was generally quite inactive and he took medication and complained of neck pain.

Treaters

148     Dr Nicolaai from Caroline Springs Medical Centre noted on 5 June 2009, the plaintiff felt quite stressed and required a day off work.  He was on Ritalin, 10 milligrams daily, and valium, 5 milligrams daily.  He was seeing a psychiatrist and psychologist.  The diagnosis was stress.

149     On 22 June 2009, a CT scan of the cervical spine was discussed with the plaintiff and he was to be referred for an MRI scan. 

150     On that date, it was noted the plaintiff was a thirty-year-old male with symptoms of neck pain.  There were no recent injuries.  In the past, he had some paraesthesia down the left-hand fingers and no other symptoms.  He was working as forklift driver.  He had neck discomfort from cervical spine vertebrae at C4-7 and a limited range of movement.  He declined a prescription for non-steroidal anti-inflammatory drugs (“NSAIDs”). 

151     A note of 25 June 2009 set out the plaintiff was in for review of the CT scan of the cervical spine and the MRI scan.  A referral to the Emergency Department of Royal Melbourne was suggested, as pain was worsening and there was now paraesthesia intermittently down the right arm.  It was noted the plaintiff had ADHD and was on Ritalin.  He had some headaches.  He was smoking marijuana occasionally.  Clinically, he had no neurological signs. 

152     It was noted on 26 June 2009, that the plaintiff was seen at the Royal Melbourne.  He was not happy and would like an opinion from the Western Hospital Emergency Department.

153     It was noted on 7 July 2009, the manager at work required a list of duties the plaintiff was able to do, given his present medical condition, and he was to return to work on Thursday.

154     It was noted on 10 July 2009, the plaintiff had completed two weeks of modified duties and had an appointment with a neurosurgeon in a week.  Neck movements were still limited, but there were no neurological signs.  The plaintiff was doing light and modified duties on 15 July 2009.

155     There were numerous attendances over the following months until, on 30 October 2009, the plaintiff attended with a request for a return to normal duties after neck injury as pain settled with physiotherapy.  A medical certificate was given.  There was a normal range of neck movements and the plaintiff was certified fit for normal duties from 30 October 2009.

156     In October 2008, Dr Priestley thanked Dr Owen for seeing the plaintiff for assessment and management of anxiety.  On 17 November 2008, Dr Priestley completed a mental healthcare plan.

157     The plaintiff attended Carlton Medical Centre from 2004, but was not seen there regarding his work injuries of 21 June 2009 until 20 April 2010.  He saw Dr Priestley regularly after May 2010. 

158     In a report of December 2010, Dr Priestly noted the plaintiff was complaining of continuing neck pain and intermittent tingling in his right arm.  He continued to work for most of that time and managed to cope with some analgesics and avoiding movements which aggravated the problem.

159     Dr Priestley then noted the plaintiff’s symptoms had improved slowly, with him now having a good range of neck movement and normal power and reflexes in his upper limbs.

160     Dr Priestley noted the plaintiff was referred to specialist neurosurgeon, Mr Han, who felt surgery was not indicated and thought the plaintiff should have minimal symptoms provided he avoided repetitive bending and twisting movements of his neck. 

161     Dr Priestly then thought the plaintiff had some cervical disc disease as a result of the work injury, which should be able to be managed conservatively although there would be some limitations in the type of work he was able to do.

162     In her most recent report of March 2011, Dr Priestley noted that the plaintiff had disc derangement at C4-5 and C5-6 levels.  She considered those lesions were, in all probability, the cause of the plaintiff’s neck pain and likely caused by the work injury.

163     Dr Priestley noted the plaintiff suffered from dyslexia and it was also suggested that he suffered from AADD.  She thought his education suffered as a result of these conditions and his employment opportunities were therefore limited to manual jobs, noting his previous jobs had all been as an unskilled labourer and he had no vocational training.

164     Dr Priestley then thought the plaintiff should be able to remain in the workforce as long as he was careful with his neck.  In her view, he needed to avoid repetitive bending or twisting of his neck, which probably limited his ability to drive machinery for long periods.  She thought he should not be limited in social, recreational or domestic activities provided they did not involve repeated neck movements.

165     Dr Priestley noted the plaintiff found physiotherapy helpful and recently restarted it.

166     In Dr Priestley’s view, the plaintiff’s background was tragic, with the loss of his father at nine and a physically abusive mother.  She noted over the past few years, the plaintiff had struggled with relationship issues with his former partner and mother to his child.  He had worked hard to come to terms with these problems.  He was a conscientious worker and had managed to remain employed despite his problems.

167     Mr Han, consultant neurosurgeon, wrote to Dr Priestley in September 2010.

168     Mr Han noted the plaintiff described a practice of driving sideways with his neck turned to view the direction he was travelling and often bumping into pallets and causing some jolting movements.

169     Mr Han noted the plaintiff did not recall a specific incident, but reported a gradual onset of neck pain which quickly became worse in around June 2009.  Initially, he described posterior neck pain with some left arm pain and tingling in the outer three fingers of his left hand.

170     The plaintiff currently presented with problems of some mild posterior neck pain and a cracking sensation in his neck, which he described as “popping”.

171     Mr Han noted the plaintiff was able to manage all personal and domestic tasks.  He was able to drive without difficulty, although he rested his right arm on his knee during long trips.  He was able to turn his head from side to side with relative ease.

172     Mr Han noted the plaintiff was working full time casually without limitations in a different role to pre-injury, which he felt better suited his needs.

173     On examination, the plaintiff had normal power in both upper limbs and a very good range of cervical spine movement.  He had some tenderness over the posterior aspect of the neck.

174     Mr Han noted the MRI scan the previous year showed disc degeneration at C4-5 and C5-6 without any significant prolapse.  He thought the plaintiff had an annular tear and he was sure that these disc prolapses were responsible for his pain.

175     Mr Han then considered the plaintiff’s pain was relatively minor and he was able to return to work.  He thought his condition should be managed conservatively and surgery was not necessary.  He had asked the plaintiff to avoid repetitive bending and twisting his neck, and did not arrange any follow up.

176     The plaintiff attended Ms Emily Riglar, musculoskeletal physiotherapist, from January 2011, having earlier been seen at her practice in November 2010. 

177     In her report of February 2011, Ms Riglar noted that the plaintiff reported the onset of cervical pain along with pain radiating down both arms following driving over a bump in a forklift with his head turned around on 21 June 2009.  The pain initially settled, but then returned approximately two weeks later following repetitive lifting at work.

178     When Ms Riglar last examined the plaintiff in March 2012, his symptoms were far less severe than was reported in his May 2012 affidavit.  She felt the plaintiff’s presentation was primarily physical.

179     At the time of the last examination, the plaintiff was capable of work and he was managing his current forklift driving job, although that was at times exacerbating his symptoms.

180     Ms Riglar noted, prior to that job, the plaintiff had been employed in a job which had less lifting and reported his symptoms in April 2011 to be 70 to 80 per cent resolved.

181     Ms Riglar thought the plaintiff would be best suited to jobs which did not require repetitive or heavy lifting or repetitive or sustained head turning.

182     Ms Riglar noted the plaintiff’s most recently documented flare-ups of cervical pain had been in relation to recreational activities, like playing with his son, fishing and doing push-ups.  She thought the reduced strength in neck muscles and poor posture would contribute to exacerbation of his symptoms in completing recreational tasks.

183     At the time of the last review on 9 March 2012, the plaintiff was not reporting any significant difficulty in completing domestic or personal care tasks.  Ms Riglar thought his presentation suggested he would be able to maintain his current level of function or improve it further by continuing postural management and maintenance of cervical and upper limb strength.  She would not expect him to have ongoing significant constant pain issues if he was self-managing as she had suggested.

184     Ms Riglar concluded that the plaintiff presented with a discogenic in nature initial injury with no neural involvement.  This progressed over time to include facetogenic pain due to the postural and strength changes that occurred with his initial injury.

185     Ms Riglar thought that during his treatment at her clinic, the plaintiff made good functional progress.  He was being treated only when he had aggravated his symptoms leading up to when he was last treated.  She thought it important to note, with his radiological changes, it was likely that there would be recurrent episodes of neck pain in an ongoing manner.  She thought that further upper limb and ongoing strengthening were required to maintain the plaintiff’s functional status.

186     Mr Bhadu Kavar, neurosurgeon, wrote to Mr Khan in January 2012, thanking him for the referral of the plaintiff, who presented with neck pain secondary to spondylitic pathology.  At that time, Mr Kavar did not believe surgery should be contemplated.

187     Mr Kavar noted the plaintiff first sustained injury in 2009 while driving a forklift when he went over a rough surface, probably a pallet, which resulted in a jarring injury to his neck.

188     Mr Kavar noted at the time of examination, the plaintiff had returned to work as a manual labourer and forklift driver, but did find that as he increased his activity, he was likely to get more pain.

189     On examination, there was limitation of head and neck movements.  There was patchy altered sensation in the right upper limb, namely in the C6 and C8 nerve root distributions.  The plaintiff had a give-way weakness of his right upper limb, which was generalised.

190     Mr Kavar noted the MRI scans of the cervical spine of 2009 and November 2011.

191     Mr Kavar advised he would be very reluctant to advocate surgery.  Theoretically, he thought the plaintiff may have been a candidate for disc replacement, although the loss of cervical lordosis would be a worry.  Fortunately, that was not available.  He thought the role of cervical fusion was debatable, and at present would discourage the plaintiff from considering cervical spine surgery as the efficacy was debatable when it is primarily neck pain and non-compressive arm pain.  He thought the plaintiff would be much better served with a regular exercise program.

192     Dr Pokharel from the Northcote Medical Group has been seeing the plaintiff for the last couple of years.  According to the records, the plaintiff injured his neck in June 2009 and since then had had pain, stiffness and pins and needles and had seen various specialists.  A cervical spondylosis-related neck problem was diagnosed.

193     Dr Pokharel noted that symptoms first occurred while the plaintiff was driving over rough surfaces at work in a job that required frequent turning or rotation of the neck.

194     In a report of May 2012, Dr Pokharel noted he had not treated the plaintiff recently in relation to his neck problem and therefore was not able to comment on his work capacity.

195     In February 2013, Dr Pokharel reported the plaintiff had been going through recurrent pain, stiffness and spasm in his neck and he was on the muscle relaxant, Diazepam, and the analgesic, Tramadol, to control his symptoms.  He thought the plaintiff would benefit from physiotherapy.

196     As of September 2013, Dr Pokharel thought the plaintiff was unable to handle full-time, unrestricted manual or pre-injury employment that involved repetitive movements of his neck, such as bending, twisting, stooping, rotation, etc as a forklift driver.  In his view, hard manual work and work involving repetitive neck movements would not be suitable and the plaintiff would not be able to work as a forklift driver at full capacity.

197     Dr Pokharel reported the plaintiff had constant pain and stiffness of varying severity and managed with muscle relaxants, painkillers and other general measures.  He also avoided aggravating activities.

198     Dr Pokharel noted the plaintiff had varying degrees of chronic pain and stiffness and gets recurrent flare-ups, largely managed conservatively.  He did not believe the plaintiff would ever be 100 per cent and not have symptoms.  He then thought the plaintiff unable to engage in pre-injury full-time work.  He also thought the plaintiff’s physical injury was impacting upon his enjoyment of life.

199     Dr Pokharel concluded the plaintiff had a high tolerance to pain, a positive attitude towards life and a good work ethic.  However, at times he got upset, frustrated and emotionally distressed due to the lack of a full capacity to do pre-injury work and engage in social activities, such as sports, and the prospect of finding suitable employment under his circumstances of chronic pain and suffering had created uncertainty in his life, both financially and otherwise.

200     In Dr Pokharel’s view, there was no doubt the injury had created physical suffering and emotional distress which led to an inability to fully enjoy life with a loss of earning capacity and future uncertainty for the plaintiff.

201     Mr Khan referred the plaintiff to Dr du Toit, sports physician at the Metro Pain Clinic in July 2012.

202     Dr du Toit thought the plaintiff’s pain was somatic in nature, most likely coming from the known disc disease with a possible facet joint contribution to his pain.

203     Dr du Toit recommended that the plaintiff consider bilateral C3-4-5 medial branch blocks to assess facet joint contribution to his pain.  If he responded well to that diagnostic test, then radio-frequency neurotomy was a treatment option available.  If the plaintiff got no relief from that intervention, then everything was pointing towards the known disc disease with possible disc replacement or fusion surgery being the only options open to him.

204     Mr Khan first saw the plaintiff on referral from Mr Kavar in October 2011.  He again saw him in December 2011 and March 2012.

205     On initial examination, the plaintiff mentioned he was driving a large pallet machine which went over an irregular projection and, as it did so, he felt a severe jarring to his neck and a cracking sensation in the cervical spine.

206     On the last examination in March 2012, Mr Khan thought the plaintiff was not fit to perform heavy, strenuous types of work requiring excessive bending, twisting and turning of his spine or lifting unduly heavy weights.  He noted the condition had mainly affected the plaintiff’s cervical spine, but also his lumbar spine to some extent.

207     Mr Khan thought the plaintiff would require further pain management and possibly local anaesthetic and steroid injections to the facet joints in his neck and lumbar spine and the affected areas under radiological control.  He may also require further evaluation in a pain management clinic.  Mr Khan noted the plaintiff had been referred to see Dr Vivian, but he had not heard from him.

208     Mr Khan noted the pain and numbness had been along the distribution of the C6, C7 and C8 dermatomes, but it disrupted the discs at C4-5 and C5-6 levels, as shown on MRI but without radiculopathy, and the plaintiff had sustained severe musculoskeletal and ligamentous injuries to his neck with referred pain along the facet joints. 

209     Mr Khan considered the plaintiff’s injuries were work-related and employment had been the main significant contributing factor to his present condition.

210     In Mr Khan’s view, the plaintiff was not totally unfit for his employment.  He was unable to return to his unrestricted manual or pre-injury employment as an after effect of his injury to his neck and lower back with referred symptoms down his upper limbs, as well as his right lower limb.

211     The physical aspects of the injuries had also resulted in an inability to engage in pre-existing social, recreational and domestic activities.

212     Mr Khan thought, on the balance of probabilities, the plaintiff was not able to perform all of the duties on a regular, sustained basis for the foreseeable future for duties such as machine operator, mailroom clerk, product assembler, forklift driver, warehouse administrator and data entry officer.  The possibility of being left with a partial permanent impairment of function as an after-effect of his injury could not be ruled out.

Medico-legal evidence

213     Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on 28 November 2012.

214     The plaintiff told him that his work was of a fairly heavy nature, requiring much bending, stooping, twisting, turning and heavy lifting.  He told Mr Brearley that on 21 June 2009, whilst driving his forklift, he ran over a piece of loose timber.  As he drove over it and while looking back over his left shoulder, he suffered a jolting injury to his neck.

215     At the time of this examination, the plaintiff had joined Randstad, a labour hire organisation, and was awaiting further placement.

216     The plaintiff described to Mr Brearley constant pain of a variable grade in the neck, made worse by twisting, turning, leaning forward and heavy lifting.  He drove a forklift at times, but reversing for long periods caused a great increase in his pain.

217     On examination, there was slight limitation of cervical movements, particularly to the right.

218     Mr Brearley noted the CT and MRI scans of the cervical spine of June 2009 and also the MRI scan of 10 November 2011.

219     Mr Brearley diagnosed mechanical neck pain consequent upon injury to the C4-5 and C5-6 intervertebral discs.  He thought there was no objective evidence of radiculopathy, but nerve root irritation was suggested by the occasional pain the plaintiff had in his right arm and numbness in the little and ring fingers in both hands.

220     Mr Brearley thought it appeared the plaintiff suffered disc damage as a result of the jolting injury which occurred on the said date and he was not aware of any psychological contribution to his pain and suffering.

221     Mr Brearley noted the plaintiff was then carrying on with unrestricted and pre‑injury type employment and was capable of remaining in employment, noting he found some job postings more difficult than others physically.

222     Mr Brearley thought sporting activities were significantly disturbed, with the plaintiff unable to play with his small son, not able to ride a bike, play football or cricket, and he avoided social outings.

223     Mr Brearley considered there was no likelihood of any improvement in the symptoms in the foreseeable future and thought the plaintiff’s condition would stabilise.

224     Professor Kenneth Myers, vascular surgeon, first examined the plaintiff in August 2013. 

225     The plaintiff told him the injury occurred at about midday on 21 June 2009 when he was driving a bulk machine.  As he turned a blind corner, he ran over a broken pallet on the ground, causing the machine to jump up in the air, and as it came down, he injured his neck with a cracking sensation.

226     The plaintiff described pain in the neck that was always there and not improving.  It could be quite sharp and sometimes caused a massive pinching at the back of his neck.

227     Professor Myers noted the plaintiff could no longer go mountain bike riding, but could still cycle locally with his son.  Inactivity had resulted in considerable weight gain from 87 kilograms to 105 kilograms.

228     On examination, there was approximately 25 per cent restriction of the expected range of cervical movement. 

229     Professor Myers thought the plaintiff had suffered aggravation of previously asymptomatic degenerative intervertebral disc disease and spondylitis in the cervical spine following a jarring injury.  He considered all the pain and suffering in relation to the neck resulted in physical disability quite independent from any psychological component.

230     Professor Myers noted the plaintiff had a current capacity for pre-injury employment through his agency, but would have times when he would be unable to cope and the physical effects of his neck injury would make it difficult for him to obtain more secure employment.

231     Professor Myers then thought there was no reason to anticipate any future improvement of the plaintiff’s condition.

232     On re-examination in July 2014, the plaintiff told Professor Myers he was working on average about 25 hours a week as a car detailer.  He described the work as heavy and stated he was starting to get trouble with both hands.

233     Professor Myers noted the plaintiff’s general practitioner recently referred him to the Austin Hospital for investigation by nerve conduction studies with a possible diagnosis of bilateral carpal tunnel syndrome.

234     Professor Myers also noted the plaintiff had not undergone injections as funding had been denied.  There had been a severe flare-up at Christmas 2013 when the plaintiff attended St Vincent’s Hospital with severe neck pain.

235     Again, on examination, there was approximately 25 per cent restriction of the range of movement of the neck and there was changed sensation of the ulnar nerve one and a half fingers on each side.

236     Professor Myers confirmed the diagnosis in relation to the cervical spine and noted possible nerve root irritation causing altered sensation into both hands and possibly ulnar neuritis at the elbow on both sides.

237     Noting the disability resulted from strains placed on the neck in his work with the first defendant, Professor Myers commented it was commendable the plaintiff had resumed self-employment as a car detailer, advising Professor Myers that it would be impossible for him to gain employment otherwise.  However, Professor Myers believed that work had aggravated the plaintiff’s problem, particularly in relation to his hand disability.

238     Professor Myers doubted the plaintiff would be able to continue with his present self-employment for much longer and did not anticipate he would ever be able to return to any form of paid employment because of ongoing disability.  He thought it unlikely the plaintiff would be able to remain in employment for much longer and there would be a restriction of social, recreational and domestic activities.  He considered the prognosis was of ongoing disability relating to the cervical spine.

239     Associate Professor Paoletti, psychiatrist, examined the plaintiff in August 2013. 

240     As far as psychiatric history was concerned, the plaintiff told him he was diagnosed with AADD and anxiety, a lot of it due to Family Court processes, and he had had a number of Magistrates’ Court charges for domestic issues, as well as intervention orders.  He had had suspended sentences of three months and six months respectively.

241     The plaintiff told Associate Professor Paoletti the AADD was apparently diagnosed by Dr Owen, psychiatrist.  The plaintiff also saw Dr Oakes for anxiety and stress relating to the Family Court and all the stress his partner put him through.

242     The plaintiff told Associate Professor Paoletti that he used to party a bit and took recreational drugs.  He stated the only thing he may indulge in every now and then is marijuana.

243     The plaintiff told Associate Professor Paoletti that on 21 June 2009, he was driving a bulk machine, doing picking, when he took a blind left corner.  A bit of pallet must have broken off from another machine and he ran over it, with his bulk machine jumping in the air which shook him a little bit.

244     At the time of this examination, the plaintiff had not been referred to a psychologist or psychiatrist for the injury.  He no longer saw Dr Owen, who had retired, nor Dr Oakes, because he was pretty well after the court case was over.

245     The plaintiff told Associate Professor Paoletti his weight had increased from 87 kilograms to 105 kilograms.

246     From a psychiatric point of view, Associate Professor Paoletti thought the plaintiff suffered from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.  He noted the plaintiff did report a past history of dyslexia, AADD and depression, with an associated history of psycho-social issues, but the depression improved once the court proceedings with his ex-girlfriend were over.  The residual issues with the plaintiff’s ex-girlfriend probably, in Associate Professor Paoletti's view, contributed to the plaintiff’s current state, but it was probable that the affective disorder associated with his injury affected his ability to deal with that in return.

247     Associate Professor Paoletti noted the plaintiff’s genuineness with his sterling efforts to return to work and remaining at work with some limitations.

248     In Associate Professor Paoletti's view, there was no psychiatric contraindication to the plaintiff continuing in whatever duties –

(i)    which were in keeping with previous training and experience or consonant with those or other vocationally suitable occupations after further training;

(ii)   he is assessed as capable of performing from a physical point of view; and

(iii)     he can perform without aggravating the pain or the physical state.

249     Associate Professor Paoletti noted, however, the affective state may variably affect the plaintiff’s motivation and overall work capacity and performance.  He thought it may be advisable to consider the plaintiff seeing a psychologist experienced in pain management and rehabilitation.

250     When re-examined in August 2014, the plaintiff had started his own business as a sub-contractor in a car wash and also with Europcar.  He worked 15 to 25 hours a week, sometimes as little as 5 hours, depending on the availability of work and also on his level of pain.  The plaintiff stated it was getting harder to get a job because everyone wants to know your medical history and they do tests, and he felt there was too much caution to reduce employer risks.

251     The plaintiff told Professor Paoletti that his injury seemed to be getting worse since he was last seen.  The pain always started in the neck and then went down the right or left side, which started pinching and cramping and he got pins and needles in his hands.

252     The plaintiff said it was just depressing when there were things he could not do and he had not seen his son for eight months so felt depressed.  His healthy weight was 82 kilograms and it now sat at around 105 kilograms.

253     The plaintiff reported his sleep was disturbed most of the time because he could not get comfortable in bed, then he woke again.  He also thought a lot in bed and it may take an hour to get shut down and go to sleep.

254     Associate Professor Paoletti reached the same diagnosis as on earlier examination, noting employment would have been a contributing factor to the precipitation of the plaintiff’s condition to the same extent as what it was for the physical condition, and it remained so through continuity of symptoms and through the content of the mental processes.

255     Associate Professor Paoletti repeated his comments about the relevance of the plaintiff’s past history.  He noted the psycho-social impact of the neck injury was one of frustrated enjoyment of fatherhood with no current access to his son, much reduced socialisation and restrictions in recreational pursuits and, overall, there had been a decrease in the plaintiff’s quality of life.  He confirmed his previous comments about work capacity and the relevance of the affective state.

256     Dr Helen Sutcliffe, occupational physician, examined the plaintiff in August 2013 and re-examined him in August this year.

257     On initial examination, the plaintiff told her his current job involved undertaking some light picking and packing, as well as process work of decanting and packaging.

258     The plaintiff described how he was driving a bulk machine with the first defendant and, as he turned sharply to the left, he ran over a pallet while looking to the rear, with the immediate onset of neck pain which did not resolve.

259     On examination, there was tenderness to palpation in the cervical spine, extending to the upper shoulder.  There was muscle spasm that was notable on the left side of the neck, radiating to the left shoulder, which increased with movement.  There was restriction of cervical movement and there was no neurological abnormality in the upper limbs.

260     Dr Sutcliffe noted the report of the CT and MRI scans of June 2009 and a number of other reports from Mr Khan, Mr Brearley, Dr Barton and Dr du Toit.

261     From the history obtained, and following examination and perusal of the investigations, Dr Sutcliffe believed the plaintiff sustained a jolting injury to his neck in the course of his occupation with the onset of disc derangement at C4-5 and C5-6 levels, but without radiculopathy.  She noted, however, there were some symptoms of dysthesia in the fourth and fifth fingers of both hands at times.

262     The plaintiff told Dr Sutcliffe he was able to manage in his current job where there was controllable lifting and movement of the cervical spine under pressure.  However, she thought he sustained loss of capacity to undertake his pre-injury duties or any occupation requiring persistent heavy bending, lifting, twisting, turning and general manual handling. 

263     In Dr Sutcliffe’s view, the plaintiff is able to undertake light warehousing work that he currently performs associated with some process work and he is also able to undertake some forklift driving without high-reach duties.

264     Dr Sutcliffe believed the plaintiff’s injuries were related to employment.  She thought he may not be able to persist with his current job into the foreseeable future and that he had some minor restriction of capacity for domestic and recreational activities.  She believed the symptoms would continue into the foreseeable future, as would the plaintiff’s incapacity for any heavy manual handling pre-injury work.

265     When re-examined in June 2014, the plaintiff was then working in his own business in the mobile detailing of cars which he had been doing for about six months for about 30 hours a week.

266     The plaintiff advised Dr Sutcliffe he had persisting pain in the neck and across the shoulder girdle.  He complained of constant pain, which woke him at night and restricted his sleep to about 3 hours each night.

267     Dr Sutcliffe noted the plaintiff was able to manage self-care and able to undertake some household care of his one-bedroom residence.  He had limited social activity as he was too sore and too tired, and was restricted in sporting activities.

268     The plaintiff told Dr Sutcliffe that he was unsure if he was able to tolerate the work he had been undertaking as a car detailer because of the increased pain with reaching and stretching.

269     On examination, there was a minor decrease in the range of cervical movement.  There was mild sensory alteration in the right hand compared to the left, with no particular pattern noted.

270     Dr Sutcliffe believed the plaintiff sustained aggravation of degenerative change at C4-5 and C5-6 without radiculopathy.  She noted he was now able to undertake his own business and she believed he had no capacity for pre‑injury employment as a picker and packer in heavy warehousing but was able to undertake his current occupation and, more likely than not, would be able to undertake that work at his own pace into the future.

271     In Dr Sutcliffe’s view, the plaintiff’s injury continues to be related to his employment.  She considered he could work up to about 30 hours a week developing his business and probably increase his hours in a gradual manner to near full-time if he could take breaks and pace his work.

272     Dr Sutcliffe thought the plaintiff’s symptoms would continue into the foreseeable future and would continue to result in substantial adverse impact on his capacity for work and his activities with daily living in a social, leisure and domestic capacity.

273     On 11 August 2011, the Medical Panel determined the plaintiff had a whole person impairment of 5 per cent resulting from the accepted cervical spine injury.

The Defendant’s medical evidence

274     When the plaintiff first attended Physio West physiotherapy on 24 July 2009, it was noted:

“Patient states 15 June 2009 woke with sore neck.  Had busy week prior.  Work involves driving machine, prolonged lifting up to 15 kilograms repetitively.  Patient settled as the week of work was quite light.

21 June patient worsen due to increase in workload.  Had difficulty moving his neck.  Also started to experience pins in the left hand.”

Medico-legal evidence

275     Mr Timothy Gale, surgeon, saw the plaintiff in November 2010 for the purposes of an impairment assessment.

276     The plaintiff told him of an incident in June 2009 while driving over an irregular surface, he suffered a jolting injury to the upper part of his body.

277     At the time of that examination, the plaintiff had ongoing symptoms with episodic sharp pain occurring a few times a week, often associated with a cracking noise in the neck and often with bilateral occipitofrontal headaches without visual disturbance or nausea.

278     Examination of the head and neck revealed free spontaneous neck movement and, on formal examination, there was a full range of neck movement without complaints of pain, although the plaintiff was somewhat apprehensive about that movement.  There was no tenderness, muscle spasm or palpable abnormality in the neck.  There were no neurological abnormalities.

279     Mr Gale thought, with regard to the spinal injury, the region affected was the cervicothoracic region, noting imaging had not shown any features of a disc or facet joint arthrosis and current physical examination did not demonstrate any features of a physical radiculopathy.

280     Mr Gale thought the plaintiff showed features of fear avoidance behaviour.

281     Dr David Barton, consultant occupational physician, examined the plaintiff initially on 24 January 2012.

282     The plaintiff told him of an incident on 21 June 2009 when he possibly drove over a pallet of wood that was on the concrete floor.  Sitting sideways, looking to the left, he heard a crack in his neck.

283     At the time of the examination, the plaintiff was working normally, doing a variety of warehouse and forklift duties through an agency. 

284     The plaintiff told Dr Barton that he felt his problems had not really changed much, although they fluctuated, and some recent forklift activity resulted in a lot of cracking and pulling.  From time to time, his problem gets aggravated and he sleep is disturbed.

285     Dr Barton noted, based on what the plaintiff had told him, the plaintiff felt he was unlikely to ever recover and his problems were only going to get worse.

286     The plaintiff was somewhat symptom focussed during the examination.  He moved his head and arms in a free and easy manner.  Specific examination of the neck showed mild tenderness and all neck movements were reduced by about a third, with the plaintiff being somewhat tentative.  There was some generalised collapsing weakness through the right arm.

287     Dr Barton noted there were several features that did not fit with a straightforward physical problem and pointed towards a degree of illness behaviour, such as the giving way weakness in the right arm, the increase in reported symptoms with axial loading and the rather tentative way the plaintiff moved his neck, which seemed somewhat contrived.

288     Dr Barton thought none of the investigations identified any significant pathology that would either justify the plaintiff’s claimed level of incapacity and apparently poor prognosis.  He then did not believe the plaintiff had any clear evidence of any significant ongoing physical problems and believed he had a strong illness behaviour and had been poorly advised about the apparent underlying problem.

289     Dr Barton did not believe the plaintiff presented with any clear evidence of any ongoing work injury that would have been caused by the activities described and there was certainly no indication for surgery.  He thought ongoing physiotherapy was counter-productive and simply likely to reinforce the plaintiff’s illness belief.  He could not see any reason why the plaintiff could not stay at work or why he could not undertake activities of daily living, regardless of treatment.  He needed simple reassurance, encouragement to cease his medication and simply self-manage by exercise.

290     Dr Barton noted a CT scan of the lumbar spine of 10 October 2011 which was reported as being normal.

291     Dr Barton re-examined the plaintiff in June 2013.

292     The plaintiff said that since last examined, he had worked for just over half the time.  At times, he needed to not work because of troublesome symptoms.  He was also selective about his work and he would not do jobs lifting more than 15 kilograms or if the duties were too repetitive.

293     The plaintiff described pain in the lower neck, present all the time, and also talked about referred shooting pain extending down the back of the arms and into the little fingers.

294     The plaintiff said he could drive a car for up to 30 minutes.  He could do the necessary chores around the unit, but spread them out over a longer period of time, and he did not do any gardening or lawn mowing.

295     Dr Barton noted there were several findings which, to some extent, were still present, indicating a degree of functional overlay was playing a part.

296     Dr Barton then did not believe there was any medical condition of the neck relevant to the original claimed injury.  He did not believe the episode described would have caused any particular physical problem that would be accounting for the plaintiff’s current symptoms.  In his view, the plaintiff did not have any particular problem and he could not see why he could not undertake normal life and work activities.

297     On re-examination in August 2014, the plaintiff told Dr Barton, having previously done some occasional forklift and warehouse duties, in view of his ongoing difficulties with work, ten months ago he had changed to part-time casual car washing or detailing.  He was only able to work 15 hours a week as that was all he could cope with.

298     The plaintiff described generalised pain in the lower neck, spreading equally to both sides.  He told Dr Barton he was generally getting worse with time and, in particular, was experiencing generalised pins and needles and numbness around the ulnar side of both hands.

299     On examination, the plaintiff was somewhat symptom and disability focussed.  Similar features to the previous examination were noted, suggesting a degree of overlay, namely, the lack of any clear objective evidence of any particular physical problem which could explain his widespread symptoms, the widespread area of marked tenderness which made little medical sense, the increase in reported symptoms with axial loading, the generalised weakness throughout the right arm, which was clearly feigned, and the non-anatomical sensory changes on the right side.

300     Dr Barton did not believe there was any work injury affecting the plaintiff’s spine or arms.  Any problem that may have occurred in 2009, he believed, had long ceased to be relevant.

301     Dr Barton noted the plaintiff reported some worsening of his symptoms, which Dr Barton believed to point to the non-physical basis of his problems.  The fact that the plaintiff struggled to do 15 hours’ car washing per week highlighted the non-physical basis for his complaints.  He did not believe there was any condition of the neck or arms that would impact on the plaintiff’s activities and physically he believed the prognosis was excellent.

302     Dr Kevin Fraser, rheumatologist, examined the plaintiff in July 2013.

303     The plaintiff told Dr Fraser of the specific injury at work on 21 June 2009.

304     On examination, spontaneous movements did not appear to be painful or restricted.  However, there was some restriction on formal examination.  There were no neurological abnormalities.

305     Dr Fraser did not believe there was any ongoing work-related injury.  He noted, in general, the history was rather vague, with the letter of instruction mentioning differing accounts relating to the onset of neck pain.

306     In any event, Dr Fraser thought there was significant over-reaction on physical examination, leading to the impression that non-organic factors were now contributing to the plaintiff’s signs and symptoms.  In his view, if at some stage the plaintiff did develop work-related neck pain, it was due to a soft tissue injury strain now long since resolved.

307     Dr Fraser considered the radiological signs were consistent with age-related degenerative changes and he thought it unlikely they were contributing to the plaintiff’s symptoms, and they had certainly not been caused by his work.

308     It therefore followed Dr Fraser did not consider any treatment was necessary.  Further, he did not consider there was any functional incapacity as a result of any such injury.  In his view, the plaintiff was fit for pre-injury duties or any other form of work for which he was otherwise suited without restriction.

309     Dr Fraser concluded, given that non-organic factors were contributing to the plaintiff’s symptoms, it was unlikely there would be any significant improvement in the foreseeable future and certainly not whilst litigation was pending.

310     On re-examination on 15 August 2014, the plaintiff reported his neck pain had not resolved and his symptoms were worse than previously, particularly the paresthesia. 

311     Movements of the cervical spine were again somewhat restricted.  However, there did not appear to be any discomfort with spontaneous neck movements.  There was no neurological abnormality save that sensation to light touch was said to be diminished diffusely over the fourth and fifth fingers and along the ulnar border of the hand and lower third of the forearm bilaterally.

312     Dr Fraser’s conclusions remained unchanged.  He thought the plaintiff had had some minor age-related degenerative changes in the cervical spine, but he did not consider they had been caused or aggravated by work.  There was no neural impingement in the MRI scans and he thought it unlikely there was any organic basis for the plaintiff’s forearm and hand symptoms. 

313     In Dr Fraser’s view, any punitive soft tissue injury sustained as a result of the work-related incident had long since resolved.  He did not consider there was any ongoing functional incapacity as a result thereof and, in his view, the plaintiff was fit for pre-injury duties or any other form of work for which he was otherwise suited.

314     Dr Fraser thought non-organic factors were probably contributing to the current symptoms and, in this regard, the prognosis was poor and it was unlikely there would be any improvement in the foreseeable future and certainly not whilst litigation was pending.

Timesheets

315     The timesheets for the days in June 2009 set out that the plaintiff worked 4.5 hours on 15 June; 7.25 hours on 16 June; 6.5 hours on 19 June; 3.5 hours on 20 June and 3.25 hours on 21 June 2009.  It was also noted the plaintiff was sick on Monday, 22 June; Tuesday, 23 June and Wednesday, 24 June 2009 and there were some unpaid days following.

Overview

316     There is an issue in relation to the circumstances of the plaintiff’s injury in this case.

317     I am mindful of the fact that the defendants accepted liability for the payment of statutory benefits in relation to injury suffered on 21 June 2009, described in the Claim Form as the gradual onset of pain due to picking.[73]

[73]T26

318     This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd & Anor v Taylor,[74] 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.”

[74][2006] VSCA 171

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

320     The focus in an application of this nature is on the effects of the compensable injury and not upon the cause of action the plaintiff may have.[75]

[75]See Kruisselbrink v Nationwide Services Pty Ltd (2010) VSC 501 per Forrest J at paragraph [45]

321     Whilst the plaintiff did not report suffering injury, having driven over a pallet on his bulk machine, until he saw Mr Han in 2010,[76] in the Incident and Claim Form, in a number of histories and in his affidavit, he described suffering injury whilst picking – an activity undertaken whilst driving the bulk machine.

[76]T93

322     In these circumstances, I am satisfied this was the mechanism of the plaintiff’s compensable injury.

323     The consensus of medical opinion is that the compensable injury involves an aggravation of pre-existing asymptomatic cervical spondylosis, with the first MRI scan in June 2009 showing longstanding degenerative changes.  Mr Han is the only practitioner who diagnosed an annular tear in the disc.  There has been no finding of radiculopathy on examination.

324     I accept the plaintiff did not have any problems with his neck prior to the incident.  While he had a significant psychiatric history and ongoing relationship problems involving intervention orders and court attendances, I am satisfied the plaintiff was able to work without any reported restriction.

Credit

325     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[77]

“… 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.”

[77](2010) 31 VR 1 at paragraph [12]

326     Counsel for the defendants submitted that in addition to the plaintiff’s version of the incident, the surveillance film raised issues as to his credit.[78]

[78]T93

327     There was 39 minutes of film taken over a two-hour period on 16 September 2014 when the plaintiff was shown working as a car detailer.  He was earlier shown for 10 minutes on 31 July 2014 working under the bonnet of his car at home. 

328     In my view, the level of activity shown on the films was more relevant to the issue of capacity rather than credit.  Whilst the plaintiff was not shown doing any heavy work, at times he was bent over and leaning into cars and under the bonnet carrying out detailing and cleaning of vehicles, without apparent difficulty – tasks he deposed aggravated his neck pain and stiffness and other injuries.

329     As the plaintiff agreed, his level of activity shown on the film was not entirely consistent with his affidavit evidence, he had to earn a living.[79]

[79]T64

330     I accept that the plaintiff understated his level of psychological treatment as at the said date, describing it as essentially resolved when this clearly was not the case.[80]  Further, as the plaintiff conceded in cross-examination, his incident injuries had not impacted “enormously” on his relationship with his ex-partner as he had deposed.[81]

[80]T91

[81]T92

331     Given these matters, I have some concerns about the plaintiff’s evidence as to his level of pain and restriction.  I note, however, no medical practitioner suggested there was any exaggeration or embellishment on the plaintiff’s part when examined.  Further, the affidavit evidence of the plaintiff’s friend, Malcolm Tate, was unchallenged. 

Pain

332     As Maxwell P said in Haden Engineering v McKinnon,[82] 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).

[82](supra) at paragraph [11]

333     I accept the plaintiff has suffered neck pain from the date of the work injury of varying degree aggravated by physical activity.

334     I do not accept the opinion of Dr Barton and Dr Fraser that any work aggravation has ceased.  Neither explain how they come to that conclusion or when that occurred.

335     The plaintiff’s pain causes restriction in certain movements as detailed by the plaintiff and various doctors.

Treatment

336     The plaintiff had physiotherapy which was of some benefit until funding was ceased in 2013.  He has been referred to neurosurgeons, Mr Han and Mr Kavar, who thought conservative treatment was appropriate.  Diagnostic injections have been recommended by the Metropolitan Spinal Clinic but funding was denied.

337     The plaintiff presently takes Tramadol and Panadol Osteo for both neck and hand pain.

338     In December 2010, the plaintiff’s general practitioner, Dr Priestly, thought he had a pretty good range of movement.  When she last reported in March 2011, she thought the plaintiff should not be limited in social, recreational or domestic activities provided they did not involve repeated neck movements and that he should be able to remain in the workforce as long as he was careful with his neck.[83]

[83]T99

339     Dr Pokharel has only seen the plaintiff in relation to his neck injury since 2012 and most recently reported in September 2013.  He noted the plaintiff had varying degrees of chronic pain and stiffness and had recurrent flare ups, largely managed by conservative treatment.  He did not comment on the plaintiff’s work capacity other than he would not be able to engage full time in his pre-injury work at the present time.

340     Dr Pokharel did not describe any deterioration in the plaintiff’s neck condition in recent times.

Work

341     Whilst it was conceded the plaintiff’s earning capacity had not been totally destroyed, counsel for the plaintiff submitted it had been severely impaired in a man who was fragile and vulnerable because of his lack of clerical ability and administrative work, his upbringing, problems with dyslexia and his history of mainly manual work.[84] 

[84]T109

342     However, for a number of reasons, I am not satisfied that any employment-related consequences are “serious”.

343     This is not a case where the plaintiff has been unable to do physical work or pre-injury duties since injury.

344     At the time of injury, the plaintiff was only working 25 hours a week with the first defendant.  After three weeks or so off work, the plaintiff returned to light duties until October.  He then asked his doctor for a clearance to return to full duties.  On examination at that time, the plaintiff reported feeling better and he had a full range of neck movement.

345     The plaintiff was sacked shortly thereafter for misconduct.  He was then working normal duties.  A rostering issue, not any problem with his neck was the reason he left the first defendant’s employ.

346     Thereafter, the plaintiff has been able to obtain employment in a range of jobs, including forklift driving and store work, sometimes working longer hours than he did with the first defendant.  As the plaintiff admitted, he was able to do whatever was required of him in these jobs.  Significantly, every year until 2013 when he started his own business, the plaintiff earned more than he did working for the first defendant.

347     Although the plaintiff found work at his last job at Living Spirit at times increased his neck pain, he left that job because he had an argument with the manager, not because he was unable to perform his duties because of his neck condition.

348     When Mr Han last saw the plaintiff in September 2010, he noted the plaintiff’s pain was relatively minor and he was able to return to work not involving repetitive bending and twisting of his neck.

349     When seen by Dr Barton in January 2012, the plaintiff told him he was working normally doing a variety of warehouse and forklift duties though an agency.

350     When last examined in May 2012, Mr Khan thought the plaintiff’s inability to return to pre-injury work was an after effect of both his neck and lower back symptoms.

351     On the last visit with Ms Riglar, physiotherapist, in April 2012, she thought the plaintiff was capable of work and he was managing forklift driving although at times, this was exacerbating his symptoms.  The plaintiff was then not reporting any significant difficulty in completing domestic tasks or personal care tasks.

352     Ms Riglar then thought the plaintiff’s symptoms were far less severe than the plaintiff reported in his May 2012 affidavit.

353     The plaintiff told Mr Brearley in late 2012 that he had been working full time finding some jobs more difficult than others, carrying on with unrestricted and pre-injury-type employment.  He told Dr Sutcliffe he was working 20 to 38 hours as a storeman when he saw her in August 2013.  He told Mr Myers he was working 36 hours per week at that time either in a warehouse or operating machinery.

354     Whilst employed from 2010 to December 2013, the plaintiff did not require any medical restrictions on his duties nor did he require any time off for neck related problems.

355     Counsel for the plaintiff was unable to point to any medical evidence of any deterioration in recent times of the plaintiff’s condition or the need for increased medication.  It was simply submitted that there may be a realisation on his behalf it was getting more and more difficult to obtain sufficient work.  If he was not unfit, he would go back to seeking the work he was doing.  He is a stoic and tried to get on with things despite pain.[85]

[85]T106

356     Whilst the plaintiff told medico-legal examiners of a recent worsening in his condition, this situation was not recorded by any treating practitioners.

357     The plaintiff made the choice to go into the business.  Initially, it was successful, with Europcar providing plenty of work.  The recent decline in the plaintiff’s workload is due to the amount of work available, not any physical restrictions suffered by him.[86]

[86]T94

358     The plaintiff’s evidence as to the number of hours worked in this business is somewhat unclear.  However, at times he has been able to work significant hours.

359     In August 2014, the plaintiff told Dr Paoletti he worked 15 to 25 hours per week and sometimes as little as 5 hours a week, depending on his pain and the availability of work.  He told Dr Barton he was only able to work 15 hours per week. 

360     However, the plaintiff told Dr Sutcliffe in August 2014 he was working about 30 hours per week in his business.  She then considered eventually, the plaintiff could be able to increase his hours to full time if he could self-pace and take appropriate breaks.

361     The plaintiff told Mr Myers in July 2014 he was working 25 hours per week on average in his business.  Whilst he doubted the plaintiff would be able to continue in his present business for much longer and would ever be able to return to any form of paid employment because of ongoing disability, Mr Myers gave no explanation for this conclusion.  

362     The plaintiff’s unrelated hand condition is interfering with his work and daily activities at present and he takes medication for that condition, as well as neck pain.  He was referred for nerve conduction studies by his general practitioner to address this problem.  

Other consequences

363     Although the plaintiff can no longer go mountain bike riding, a sport he enjoyed as a young man, he is still able to cycle with his son and kick a football with him.  The plaintiff still manages household chores and self-care, as noted by Dr Barton, Mr Han, Ms Riglar and Dr Sutcliffe.  

364     Although the plaintiff complains neck pain interferes with his sleep, he does not require sleeping medication, continuing to take valium for assistance, as he did prior to his injury.  The plaintiff does not have any problems with intimate relations as a result of his neck condition. 

365     Taking into account all the evidence, I am not satisfied any consequences of the plaintiff’s neck condition are “serious”.  Accordingly, his application is dismissed.

Appendix “A”

Exhibit 1

DVD Video Surveillance Film of the Plaintiff

Surveillance DVD Exhibit 1 – Length: 39 minutes 34 seconds

Date	Time	Event
16 Sept 14	10:22am	Plaintiff filmed cleaning a van at Europcar
10:35am	Plaintiff filmed walking around the car park at Europcar pushing a vacuum cleaner around
10:53am	Plaintiff leans into a van and sprays the boot area using a spray bottle and wipes the interior of the van using a cloth.  Plaintiff leans into the rear of the van and vacuums
10:57am	Plaintiff enters the front driver’s side of a van and drives the van forward briefly
10:58am	Plaintiff leans into another vehicle and cleans the interior
11am	Plaintiff leans into the vehicle on both knees and continues cleaning
11:03am	Plaintiff leans into the front driver’s side of the vehicle and continues to clean using both hands
11:04am	Plaintiff kneels onto the ground to reach lower into the vehicle
11:06am	Plaintiff raises his arm to close the boot of the vehicle
11:16am	Plaintiff filmed walking around the Europcar car park pushing a vacuum cleaner around
11:20am	Plaintiff re-positions a number of vehicles
11:30am	Plaintiff filmed leaning into another van
11:40am	Plaintiff leans into a car and cleans the front and back seats
12:21pm	Plaintiff filmed cleaning on his feet and knees and leaning into a vehicle from various angles

Surveillance DVD Exhibit 2 – Length: 10 minutes 15 seconds          

Date	Time	Event
31 July 2014	11:39am	Plaintiff squatting on both knees and leaning into the engine bay area of his vehicle to conduct maintenance
11:43am	Plaintiff squats down and pulls up on the front bumper of his vehicle with his left hand
11:44am	Plaintiff continues repairs whilst bending into the engine bay area of his vehicle
11:45am	Plaintiff bends over and searches for items in a red toolbox
11:47am	Plaintiff continues repairs whilst bending into the engine bay area of his vehicle
11:48am	Plaintiff closes the bonnet and boot of his vehicle and walks away.