Keating v Victorian WorkCover Authority
[2023] VCC 281
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-01407
| BRETT DANIEL KEATING | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 February 2023 | |
DATE OF JUDGMENT: | 8 March 2023 | |
CASE MAY BE CITED AS: | Keating v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 281 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – sub-paragraph (a) – injury to lumbar spine – pain and suffering – substantial organic basis – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267
Judgment: Leave granted for pain and suffering under sub-paragraph (a).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr G Taylor | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr T Storey | TG Legal + Technology |
HER HONOUR:
Introduction
1On 17 October 2018, the plaintiff, Mr Brett Keating, suffered an injury to his back at work whilst building prefabricated houses for Pre-Built, seconded by his employer, InTouch Maintenance Group Pty Ltd (“InTouch”). Whilst carrying cement sheeting, he stumbled and twisted, falling backwards with the cement sheeting on top of him. He was taken to a doctor and had a CT scan which showed an L5-S1 disc bulge, and since the injury he has had constant low back pain.
2This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff. He seeks leave of the Court to commence common law proceedings pursuant to paragraph (a) of the definition of “serious injury” in s325(1) of the Act for pain and suffering for an injury to his spine.
3The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[1] the question whether an injury is a “serious injury”, considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least very considerable” and certainly more than “significant” or “marked”?
[1][1992] 2 VR 129 at 140
4The plaintiff’s case is his diagnosis is an aggravation of degenerative change in the low back. There are MRI scans which show degeneration at L3-4 and L4-5 as well as the 2018 CT scan showing L5-S1.
5The defendant disputes whether the plaintiff sustained a compensable injury on 17 October 2018 and submits the injury has resolved. The defendant submits there is now no substantial organic basis for the plaintiff’s injury to the lumbar spine under sub-paragraph (a).
6The defendant also disputes that the plaintiff’s impairment meets the relevant statutory threshold of being “more than significant or marked and...at least very considerable” in relation to pain and suffering.
The Plaintiff’s case
7The plaintiff provided three affidavits, dated 30 November 2021, 17 August 2022 and 13 February 2023, in support of his application.
8The plaintiff is now fifty-three years old. From 1993 until 2013, he worked either part time or full time in his own tiling business, Balwyn Tiling & Carpentry.
9After his injury, the plaintiff had approximately five weeks off work. He returned to work on restricted duties and hours. He eventually got back to five days a week on “light duty jobs”. He was terminated from his employment in October 2019.
10The plaintiff then returned to his own business, Balwyn Tiling & Carpentry, working within the restrictions of his constant low back pain. He could work between two and up to eight hours a day. Sometimes when starting or finishing a job he would work up to eight hours in a day, which causes increased pain.
11The plaintiff’s case is that the compensable injury “is a classic example of an aggravation of degenerative change, previously asymptomatic of the low back”.[2]
[2] Transcript (“T”) 104
12Since the injury, the plaintiff has been severely troubled by back pain. He takes Panadol every day, usually two tablets, but up to six or eight. He described his pain as 4/10 but up to 8 or 9/10. He uses heat packs and has massages, including on his massage chair, and he does yoga and swimming. When he is working, he tries to avoid jobs involving tiling on floors (which means getting down on his knees) and avoids jobs that involve working with bluestone.
13The long-term consequences for the plaintiff include that he is no longer able to play the drums. He is no longer able to do jujitsu for which he had achieved an orange belt. He is not able to do social dancing. He is less physically able, and the injury has affected his sleep, his libido and his sex life.
Does the Plaintiff have a compensable injury?
The Defendant’s argument
14The defendant argued the plaintiff does not have a compensable injury.
15The defendant submits the radiology reports support the absence of a compensable injury. There are three radiology reports: the CT scan from 17 October 2018, an MRI scan dated 6 January 2021 and an MRI scan dated 2 December 2022.
16The basis of the defendant’s argument is that the original CT scan “wrongly identified an injury”.[3]
[3] Transcript (“T”) 80
17The CT scan in issue is dated 17 October 2018, the day of the injury, and the report describes:
“The lumbar vertebrae are intact …
L5/S1 disc space: a broad based disc bulge is seen causing mild pressure on the thecal sac and abutting but not displacing both sides of the S1 nerve root.”[4]
[4] Plaintiff’s Court Book (“PCB”) 72
18The report of an MRI scan taken on 6 January 2021 states:
“No spinal stenosis or nerve root compression. No other cause to explain the patient’s neuropathic pain.”[5]
[5] PCB 74
19Following review of the MRI scan, Mr D’Urso, the plaintiff’s medico-legal neurosurgeon, notes:
“The MRI scan dated 6 January 2021 does not reveal any injury to the L5/S1 intervertebral disc. However, I do note that a CT scan report by Dr Sadik Rubae dated 17 October 2018 suggested a broad-based disc bulge at L5-S1 causing mild pressure on the thecal sac and abutting the S1 nerve root. The MRI does not exclude an injury to the L5-S1 disc as a result of a workplace injury on 17 October 2018 but would suggest that the injury had resolved at this time.”[6]
[6] PCB 46
20He further states “the condition has stabilised at this time”.[7] He recommends the plaintiff maintain good core strength and that anti-inflammatory and analgesic medication from his general practitioner is appropriate if the pain recurs or persists.
[7] PCB 47
21Mr Armin Drnda, the defendant’s medico-legal neurosurgeon, provided a report dated 28 September 2022.
22Mr Drnda noted the CT scan reported a broad disc bulge at L5-S1 while the MRI scan was entirely normal. [8] He states:
“The CT scan is generally not a good diagnostic tool for degenerative disc disease. So, it is very likely that findings were generically exaggerated and hence overreported by the radiologist.”[9]
[8] Defendant’s Court Book (“DCB”) 14
[9] DCB 16
23Mr Drnda’s opinion is that the plaintiff is suffering a lumbar myofascial strain.[10]
[10] DCB 17
24The defendant submits “… two experts effectively agreeing that there was no current compensable injury. If there was one, it has resolved.”[11]
[11] T 83
25Specialist radiologist. Dr Anthony Kam. prepared a report dated 9 December 2022. He reviewed the CT lumbosacral spine report and opined the degenerative changes and the L5-S1 disc contour change reported by Dr Sadik Rubae on the CT scan dated 18 October 2018 “were likely minor, as they are no longer detectable by the MRI scan dated 6 January 2021”. He also believed the changes reported by Dr Rubae were unrelated to the subject work history.[12]
[12] DCB 21
26He stated:
“The 17 October 2018 CT Lumbar spine report and 6 January 2021 MRI Lumbar spine images do not show any injury suffered by the worker on or about 17 October 2018.”[13]
[13] DCB 22
27The defendant submitted:
“… the L5-S1, the site of the supposed original injury identified we say incorrectly from the CT scan, and ultimately accepted by D’Urso at one point, there is no protrusion, no bulge, just degeneration.”[14]
[14] T85
The Plaintiff’s argument
28The plaintiff argued there was a compensable injury from the start.
29The plaintiff puts the injury as a classic example of an aggravation of degenerative change of a previously asymptomatic back.[15] He injured his back at work on 17 October 2018 and saw Dr Azam from the Colchester Medical Centre. Dr Azam noted:
“From work had a fall when his lower leg was caught and his upper torso twisted and he fell down and now sig lumbar to coccyx pain with radiculopathy to the right L4-5 and L5-S1 level … .”[16]
[15] T104
[16] DCB 45
30The plaintiff submitted the subsequent MRI scan identified disc degeneration in L4-5.
31The plaintiff further opined it is not necessary to identify which of the three lumbar vertebral discs is giving trouble. It is enough to be able to say that the plaintiff has a symptomatic aggravation of degenerative change in the lumbar spine.[17] The plaintiff submits each scan has shown some pathology at different levels of the lumbar spine.
[17] T103
32The plaintiff relies on his general practitioner Dr Azam’s referral to a physiotherapist dated 10 June 2020. Dr Azam in his report states the plaintiff has a disc disease at the L5-S1 level.[18]
[18] PCB 40
33Dr Simon Journeaux, consultant trauma and orthopaedic surgeon, prepared a medico-legal report for the insurer dated 10 December 2018. Dr Journeaux cited the CT scan report by Dr Rubai dated 17 October 2018 noting “mild spondylosis affecting the lumbar vertebrae with small osteophyte formation”.[19]
[19] PCB 93
34The plaintiff submitted that the CT scan showed a bulge at L5-S1 –
“But importantly, it’s seen at that time that there is spondylosis in the back. That’s what you may expect for a man in his late 40’s. Asymptomatic spondylosis. But now symptomatic, as this man’s had a fall and a twist, and the pain has been unrelenting. … .”[20]
[20] T105
35In Dr Journeaux’s opinion, prior to the injury, the plaintiff:
“… had a degenerate L5-S1 disc, but the injurious event of 17 October 2018 caused a prolapsed intervertebral disc and right S1 neural impingement.”[21]
[21] PCB 94
36He describes the condition:
“… represents a new injury causing an aggravation/acceleration of a pre-existing although previously asymptomatic degenerate L5-S1 disc.”[22]
[22] PCB 95
Analysis
37I am of the view the plaintiff has a compensable injury for the following reasons.
38Firstly, his workplace injury occurred on 18 October 2018 and in response to his onset of pain, on the same day, he saw his general practitioner, Dr Azam, and had a CT scan which identified the mild spondylosis affecting the vertebrae and a disc bulge at L5-S1.[23]
[23] PCB 72
39The plaintiff then saw a physiotherapist at the same practice on 23 October 2018, noting “pain is gradually getting better. [U]sing [V]oltaren only. [C]annot move much due to pain however.”[24] He was off work for about five weeks and then returned on light duties for a few days a week.[25]
[24] DCB 45
[25] T26
40I note Mr D’Urso’s opinion:
“The work incident was of significant severity and is likely to cause disruption to the intervertebral disc in the lumbar spine.”[26]
[26] PCB 51
41Less than two months after the accident, the plaintiff is seen by Dr Journeaux for the defendant’s insurer, who diagnoses the plaintiff with “right sided L5-S1 disc prolapse causing back pain and right radicular pain (sciatica)” and confirms an aggravation of a pre-existing although previously asymptomatic degenerate L5-S1 disc.[27]
[27] PCB 95
42I accept his opinion regarding the plaintiff’s degenerate L5-S1 disc and that the injurious event of 17 October 2018 caused a prolapsed intervertebral disc and right S1 neural impingement.
43Mr D’Urso was also of the opinion, once an intervertebral disc has been damaged, there is likely to be degenerative progression of that intervertebral disc, and the degenerative progression is “more likely than not after an initial injury to the intervertebral disc”.[28]
[28] PCB 51
44Mr Drnda noted in his first report that there “were no radiological investigations for my review”.[29]
[29] DCB 16
45In his second report dated 17 December 2022, Mr Drnda states:
“I also read the official report on the MRI scan … performed 2 December 2022. I did not have the opportunity to directly visualise the imaging.” [30]
[30] DCB 24
46Dr Kam noted the CT images dated 17 October 2018 were unavailable for his review and assessment.[31]
[31] DCB 21
47I give less weight to the medical opinions relied on by the defendant, namely Mr Drnda and Dr Kam. They have prepared their reports without reviewing all of the relevant imaging. In Mr Drnda’s first and second reports, he did not view the CT scan images, however, he has made conclusive findings about the CT scan. Mr Drnda stated the findings on the CT scan were likely to be “exaggerated” and “overreported” by the radiologist; however, he has made this assumption without viewing the imaging himself.[32] Dr Kam did not have the CT scan images either. I note in Mr D’Urso’s report dated 8 February 2023, he is cautious about commenting on radiology when he has not viewed the imaging.
[32] DCB 16
48I accept the plaintiff’s submission he has suffered an aggravation to a previously asymptomatic condition.
49I accept Mr D’Urso’s final report, where he states:
“…it would appear likely that this workplace accident resulted in an injury to the intervertebral disc in the lumbar spine and subsequent degenerative progression that has been identified by serial imaging.”[33]
[33] PCB 51
Is the injury permanent?
50I further note Mr D’Urso’s opinion the plaintiff’s condition has stabilised. In his final report, he noted an injury to the intervertebral disc in the lumbar spine can result in an unpredictable recovery and can lead to persistent disability and incapacity.[34] He noted the more likelihood than not of degenerative progression after an injury to the intervertebral disc.[35]
[34] PCB 51
[35] PCB 51
51I also note the consistent nature of the plaintiff’s evidence regarding the ongoing nature of his pain symptoms and that he has had no significant improvement over the past four and a half years.
52I am satisfied the injury is permanent for the foreseeable future.
Do the consequences meet the test for a “serious injury”?
53As noted, the onus of proof is on the plaintiff, and I have referred to the test in Humphries and Anor v Poljak.[36]
[36]Supra at 140
54The defendant referred to the four matters commonly considered when assessing pain and suffering and referred to Haden Engineering Pty Ltd v McKinnon.[37]
[37] (2010) 31 VR 1
55The four matters are: What the plaintiff says about the pain, what he does about the pain, what the doctors say about the pain and what the objective evidence shows about the disabling effect of the pain.[38]
[38] Haden Engineering Pty Ltd v McKinnon (ibid) at paragraph [11]
Physical pain
56In the plaintiff’s first affidavit dated 30 November 2021, the plaintiff estimated his pain on a good day at about 3-4/10, and on a bad day at about 8/10. He estimated he was having one or two bad days a month, depending on his work activities.[39]
[39] PCB 14
57In his second affidavit dated 17 August 2022, he estimated he was having about seven bad days a month and estimated his pain at 8-9/10.[40]
[40] PCB 25
58In his third affidavit dated 13 February 2023, he estimates a bad day at 8-9/10, and that he has up to eight bad days a month.[41]
[41] PCB 31
59In terms of personal and household tasks, he does vacuuming but only in stages, and the same for sweeping and emptying the dishwasher.[42]
[42] PCB 32-33
60Putting on his shoes is increasingly difficult, and he is at times reduced to tears.[43]
[43] PCB 33
61He is no longer able to drum which he used to do daily as he was in a band.
62He is also no longer able to train in jujitsu or work out at his home gym,[44] which he used to alternate and do four to six times a week.[45] When he worked out in his home gym, he would do so for about 40 minutes up to 1.5 hours.
[44] PCB 32
[45] PCB 16
63He is very cautious with physical exertion and limits his activities.
64His pain increases when he sits for too long and he cannot drive long distances. He has difficulties sitting or standing for too long. He struggles to walk the dog as he is in pain when the dog pulls, and he can no longer dance.[46] He has also stopped riding motorbikes as he does not like sitting and feeling the vibrations through his lower back.[47]
[46] PCB 33
[47] PCB 34
65He has problems sleeping and his ability to have intimate relations with his wife are affected.
Current treatment
66The plaintiff takes between two and eight painkillers a day.
67In his second affidavit dated 17 August 2022, he stated he was taking Nurofen almost on a daily basis, five to six tablets a day.[48]
[48] PCB 22
68In his third affidavit dated 13 February 2023, he estimates taking up to 40 tablets a week of Panadol or Nurofen.[49]
[49] PCB 30
69The defendant noted the omission of reports from the plaintiff’s treating general practitioner.
70Since November 2021, the plaintiff has seen his general practitioner four times about his back.[50]
[50] PCB 22
71In his third affidavit dated 13 February 2023, the plaintiff noted he had not seen his general practitioner since September 2022.[51]
[51] PCB 29
72In his second affidavit, he states after a bad day of back pain he has a hot bath or applies heat packs, he stretches and takes painkillers.[52]
[52] PCB 25
73The plaintiff states he has been prescribed Endone by his general practitioners, Dr Azam and Dr Patel. I n his second affidavit, the plaintiff states since November 2021, he has been through two packets of Endone.[53] This was disputed by the defendant. There is no record of Dr Patel prescribing Endone. The clinical records show the last prescription for Endone was in December 2018. There is a handwritten note by Dr Patel dated 21 December 2021 referring to Mobic; however, it does not state whether it was prescribed.
[53] PCB 27
74When the plaintiff wakes up stiff, he does regular exercises for between 10 and 40 minutes.[54]
[54] PCB 27
75He has been to a remedial massage therapist twice since a flare up of his back pain in June 2022.[55]
[55] PCB 27
76His wife gives him regular massages when he becomes stiff or in pain, and he has a massage insert for his chair.[56]
[56] PCB 27
77In his third affidavit dated 13 February 2023, the plaintiff stated he had three deep tissue massages at the Bulleen Plaza.[57] His wife or son give him massages, so he has about three or four massages per week. He uses his massage insert on a chair almost every day on at least two cycles that each last approximately 12 minutes.[58]
[57] PCB 29
[58] PCB 30
78He uses heat packs and takes baths. He has started yoga and does this three or four times per week for between 20 to 45 minutes. He rents a house with a pool so he can swim for five or six times per week in warmer weather.[59]
[59] PCB 30
Medical evidence regarding pain
79As the defendant pointed out, there is no report from the plaintiff’s treating general practitioner. The plaintiff states he has not seen his general practitioner regarding his back since September 2022.[60]
[60] PCB 29
80All of the medical evidence about his pain is from the medico-legal reports.
81In Mr D’Urso’s first report dated 7 September 2020, Mr D’Urso notes since the workplace injury, the plaintiff “suffers from chronic back pain which he rates between 2-4/10, depending on his physical activity levels”.[61] He further notes the plaintiff has conservative treatment and has physiotherapy and anti-inflammatory medication on an ‘as needs’ basis.[62]
[61] PCB 42
[62] PCB 43
82Dr Joseph Slesenger, specialist occupational physician, in his report dated 9 September 2022, notes the plaintiff has:
“… residual lower back pain that is moderate to severe, centred in the lower back with pain radiating into the right leg and occasional discomfit in the left leg … The pain is aggravated by activity and cold weather … He advised that on 1-2 days a week, he has severe difficulty functioning and generally will spend the day at home resting at home.”[63]
[63] PCB 55
83Dr Slesenger also noted the plaintiff was taking Nurofen, Panadol and anti-inflammatories, and in the past he has taken prednisolone and Mobic. He noted the plaintiff has ceased physiotherapy, has not had an injection into the lumbar spine, has not had a ketamine infusion, he has not completed a pain management program and has not seen a pain specialist.[64]
[64] PCB 56
84In terms of work, the plaintiff reported to Dr Slesenger that he selects his job tasks and avoids jobs requiring flooring or heavy tiling. He works alone and is required to move boxes weighing up to 10 kilograms. He also has to access adhesives and grouting. His productivity is affected as he works three to four hours a day up to four to five days a week. His clients accommodate the slow pace and at times his variable attendance.[65]
[65] PCB 57
85The fact the plaintiff does not have a treating medical practitioner may be a reflection of his stoicism rather than his lack of credit.
Other evidence about pain
86The plaintiff’s wife, Mrs Jiwon Lee Keating, prepared an affidavit dated 15 February 2023. She noted the plaintiff takes Panadol regularly. She gives him massages three to five times a week. He uses the massage chair regularly and she confirmed she sees him doing yoga at least three times a week, as well as swimming in the summer. She does most of the housework and notes the plaintiff has an increase in pain when he tries to help. She was candid in acknowledging that she became annoyed by his complaints, stating “he seemed to be in almost constant pain”.[66]
[66] PCB 80-81
87She further says he often comes home from work stiff, sore and in pain.[67] She confirmed he struggles to work, and he does not accept as many jobs as he would like to because of his back condition.
[67] PCB 81
Effect of employment
88Following his termination from InTouch, the plaintiff returned to his own tiling business, Balwyn Tiling & Carpentry. This allowed him flexibility and he worked between two to eight hours a day, depending on how he was feeling.[68]
[68] PCB 13
89In his work at Balwyn Tiling & Carpentry, he stated he tries to avoid heavy physical work and repetitive bending, twisting, or lifting activities. On occasions when this type of work is required, he suffers with increased pain.[69]
[69] PCB 14
90The plaintiff estimates he has lost 40 to 50 per cent of his physical power in doing tiling or carpentry tasks.[70] He has scaled back on carpentry jobs.
[70] PCB 16 and PCB 33
91Consequently, any job he accepts take much longer than normal.
92Since November 2021, the plaintiff has noticed overhead work is causing him more pain to his lower back.[71] He tries to avoid lifting heavy items, avoiding tiling floors, prefers tiling tasks that are below shoulder height, avoids stonework and avoids bluestone work.[72]
[71] PCB 25
[72] PCB 26
93In his second affidavit, the plaintiff stated his work capacity is up to five days a week, working a maximum of five hours a day.[73]
[73] PCB 27
94In his third affidavit dated 13 February 2023, the plaintiff estimates since September 2022, he has been working five to six days a week, between five to eight hours per day.[74] He struggles doing these days and hours and has taken less work since September 2022 because he struggles with the heavy work.[75] He has the same restrictions as per his previous affidavit in relation to avoiding lifting heavy items and avoiding floor work. He also says if he works too long or hard, it takes him up to three times as long to recover to a functioning level.[76]
[74] PCB 30
[75] PCB 30-31
[76] PCB 31
Analysis of impairment consequences
95In this case, the plaintiff runs his own tiling business.
96I note in Stijepic v One Force Group Aust Pty Ltd & Anor,[77] the Court of Appeal stated:
“… if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[77] [2009] VSCA 181 at paragraph [47] (Ashley JA and Beach AJA)
97The fact the plaintiff is able to work in his own business is relevant to the question whether the pain and suffering consequence of the injury is “serious”, but it is not determinative, and it is necessary to consider the evidence as a whole.[78]
[78] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26] (Ross AJA)
98In Haden Engineering Pty Ltd v McKinnon,[79] the President of the Court of Appeal noted “the cases recognise that some plaintiffs may be more ‘stoical’ than others,” and that the injury is not to be viewed as any less serious merely because he/she manages to remain more active than might have been expected given the level of pain. It could be said, in effect, he has been “prepared to put up with his pain and suffering and get on with his business as best he can”.[80]
[79]Supra at paragraph [13] (Maxwell P)
[80] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3] (Nettle JA)
99Although working in his own tiling business, the plaintiff’s evidence is he has modified his work routine to accommodate his injury. Whilst he was cross-examined about increasing his workload, I accept his evidence it takes him longer to do the same tasks.
100He states he is in continual pain and the pain experienced is commensurate to the number of hours he is working. Consequently, he scales back his hours and his clients are aware that a job will take longer than normal. He prefers, but is not always able, to avoid work such as flooring or overhead work as well as work involving blue stone or stonework.
101The plaintiff’s credit was described by the defendant’s counsel as “combative” and “less than forthright”, particularly regarding his working hours and whether they had increased or decreased.[81] It was put he was “combative” about “fairly uncontroversial matters”, such as he denied he advertised his business on Facebook when there are clearly posts of his work for the world at large. It was urged that his evidence as it related to his extreme levels of pain, the frequency, daily restrictions, limitations and working capacity should not be accepted.[82]
[81] T93
[82] T94
102With respect to his Facebook page for ‘Balwyn Tiling & Carpentry,’ I do not accept the plaintiff’s evidence that he does not “advertise” on social media.[83] He agreed in cross-examination the purpose of posting photos was to show off his work.[84] I do not accept the photograph of an unfinished timber deck dated 5 July 2019[85] was from five years before that date as stated by the plaintiff in cross-examination.[86] The commentary “Just a little decking job. Always good to be outside in the [emoji] sunshine” is inconsistent with posting a photograph from five years prior. A photograph dated 26 March 2021 of a marble tiled floor appears to be an example of the plaintiff’s floor work.[87] There are many photographs of floor and veranda tiling work tendered by the defendant; however, the plaintiff’s evidence is he now prefers to avoid this type of work.
[83] T17
[84] T59
[85] DCB 97
[86] T60
[87] DCB 96
103The plaintiff’s credit was also questioned with respect to his pain medication regime. I accept he was initially prescribed with Endone, however, there is no evidence that he has had any Endone prescribed recently. Whilst the lack of medical reports from treating doctors does not assist his case, neither I am of the view the absence impugns his credit.
104I note his evidence regarding being very cautious with physical exertion and activities at home is in contrast to the physicality of his tiling work. His evidence that he cannot sit for too long or drive for long distances is consistent with his evidence that he limits his work jobs to the suburbs surrounding Balwyn.[88]
[88] T46
105The plaintiff’s counsel, on the other hand, submitted he gave his evidence in a straightforward and credible manner.[89] His work record indicates a highly credible man.
[89] T97 and T114
106I note there was 57 hours of surveillance of the plaintiff,[90] of which 15 minutes and 49 seconds was played to the Court. In the first segment, the plaintiff is on the phone and at one point appears to be holding or rubbing his back. In the other footage he appears to be moving freely getting on with work tasks, carrying buckets and getting under his car.
[90] T96
107The effect of the surveillance was to confirm both his pain and his ability to get on with things. He has not stated that he was not able to do the activities seen in the footage.
108Tiling is a highly physical trade. The valid question for this case is how the plaintiff’s work in that industry reconciles with his claim to be suffering the consequences of a serious injury.
109The plaintiff’s case is he is doing all he can, firstly, by returning to work after the injury and secondly, when he is terminated returning to his tiling business. He is continuing to work, but never without pain. The variation in his hours is explained, as he cannot work as effectively as he used to and too much activity increases his pain. It is not a matter of choice: that is his trade, and he has no support or other options.[91]
[91] T50 and T68
110The plaintiff’s counsel referred to Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd,[92] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[92][2007] VSCA 267 at paragraph [199]
111A consideration in this case is the plaintiff’s stoicism, borne out of necessity of having to work to support his family. Although he does not see a general practitioner regularly or partake in invasive pain management, he takes large quantities of over-the-counter pain medication. He also has a regime of exercise and massage at home and has had to forsake important pastimes such as drumming, jujitsu training and motor bike riding.
112He is stoic with regards to work and treatment. He rarely sees his general practitioner and has a conservative treatment regime. As he does not have treating medical practitioners, it was his wife who has corroborated his reports of pain, and how he manages it, both at home and from her observations of the effects of his work, coming home “stiff, sore and in pain”.[93]
[93] PCB 81
113This is a borderline line case; however, the plaintiff has just established his case on the balance of probabilities, considering the evidence as a whole.
114He takes significant amounts of medication for pain, some 40 tablets per week. He has had to forego pursuits he enjoyed such as drumming and jujitsu. He is working as a tiler from necessity; however, he is always in pain, which varies between 4/10 and 8/10 with some eight 8/10 days a month.
115His prognosis is poor, and his symptoms have not improved since 2019. It appears his condition is permanent for the foreseeable future.
116Whilst the consequences individually may be less than the sum of the whole, I am satisfied by the evidence, on the balance of probabilities, that these consequences, when judged by comparison with other cases in the range of possible impairments, can fairly be described as at least very considerable and certainly more than significant or marked.
117I grant leave to the plaintiff to commence proceedings at common law under sub-paragraph (a).
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