Kerss v Toyota Motor Corporation Australia Ltd
[2016] VCC 1909
•13 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03828
| BRETT KERSS | Plaintiff |
| V | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2016 | |
DATE OF JUDGMENT: | 13 December 2016 | |
CASE MAY BE CITED AS: | Kerss v Toyota Motor Corporation Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1909 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the cerviical spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi & Anor [2002] VSCA 161; Church v Echuca Regional Health (2008) 20 VR 566; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Hartley QC with Mr M Belmar | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr D Churilov | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 24 November 2014 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages for 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 injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application 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, in the sense that it is likely to continue into the foreseeable future.
7 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.
8 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd & Anor[2] and Peak Engineering & Anor v McKenzie[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
[3][2014] VSCA 67
10 The plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is presently aged forty-six, having been born in January 1972. He has two children, aged thirteen and ten.
12 Having finished school, the plaintiff worked as a roof tiler and in roof plumbing, completing a four-year apprenticeship. He then worked in cleaning and maintenance with a road crew.
13 In about 1996, the plaintiff started work with the defendant as an assembly worker on a full-time basis. This work involved manual handling that required him to be physically fit.
14 On 7 August 1997, the plaintiff suffered an injury to his back at work (“the 1997 injury”). He made a further claim in about October 2000 relating to low back pain from getting in and out of cars as part of his duties.
15 The 1997 injury occurred while the plaintiff was lifting weather strip seats onto vehicles. He saw his general practitioner and also had some chiropractic treatment for his back. He did not require surgery.
16 The plaintiff was off work for about three months and then able to resume lighter duties. He was able to get back to full-time work but continued to experience back pain, which he could manage.
17 The 1997 injury did have an ongoing impact on the plaintiff and caused a reduction in some of his recreational activities. Despite continuing symptoms of back pain, he was able to work full time doing meaningful modified duties with the defendant.
18 The plaintiff’s modified duties before the said date involved a lot of different tasks. He did quality control on the wharf and checked vehicles. He was basically assisting and helping the team member to fit parts correctly, but not fit the part himself.[4] He worked 7am to 3.30pm and occasionally did Saturday work.
[4]Transcript “T” 36
19 In cross examination, the plaintiff agreed that he was performing modified duties for fourteen years on a full-time basis up until the said date. These duties involved no twisting or repetitive movements and frequent rest breaks. The restrictions were imposed because his back continued to give him a lot of trouble over the years at work and also at home.[5]
[5]T16
20 The plaintiff agreed he had significant and ongoing pain and that his recreational activities were reduced.[6] Because of his back pain, he had difficulty sleeping and was often tired. He found prolonged postures such as sitting to watch a movie very hard.[7]
[6]T16
[7]T17
21 The plaintiff agreed he was limited to non-strenuous activities because of his lower back and he had a fear of hurting himself doing activities such as surfing, football and cricket. He had stopped playing competitive football and skateboarding because of his lower back.[8]
[8]T17
22 In April 2015 when he swore his first affidavit, the plaintiff could not remember a claim form submitted by him in November 2004 alleging some shoulder and neck injury as a result of applying stickers in the course of his work. He could recall over the years he had attended the work doctor from time to time, seeking treatment for neck pain, but was always able to keep working and there were times before the said date that he was free of neck symptoms but that has not been the case since.
23 Prior to the said date, the plaintiff also had chiropractic treatment for his back and neck from Merryn Morcombe, about which the defendant was aware. He attended for treatment from time to time, mainly in relation to his low back to keep him mobile.
24 The plaintiff could not recall attending Ms Morcombe on 2 and 23 November 2011 complaining of neck symptoms. In any event, he was able to attend for work on 24 November 2011.
The incident
25 On the said date, the plaintiff suffered injury trying to move a clear plastic film that had stuck to the back window of a car. Whilst doing so, he felt immediate pain in his neck, left shoulder and left arm (“the incident”).[9]
[9]T13
26 The plaintiff attended the defendant’s medical clinic for treatment of pain and numbness in his neck and left arm. Scans were arranged. At that time, he was in a lot of pain and distressed.
27 The plaintiff also reported his neck injury to his general practitioner, Dr Radich.
28 The plaintiff believed he attended Ms Morcombe in the days following the incident. She would not treat him and told him he needed scans and to see a surgeon. He did not believe he had seen her again.
29 The plaintiff was referred to Mr McMahon, neurosurgeon, whom he first saw in February 2012. At that time, the plaintiff had pain on the left side of his neck, into the left side of his shoulder and arm and into the three fingers of his left hand. His whole arm was quite numb.
30 After a cervical MRI scan showed problems at C5-6, Mr McMahon recommended surgery. On 5 March 2012, the plaintiff underwent a cervical discectomy and fusion at Cabrini Hospital (“the operation”).
31 The plaintiff has not been the same since the operation and continues to experience ongoing problems, including neck pain and loss of strength in his left arm.
32 As of April 2015 when the plaintiff swore his first affidavit, he continued to experience daily neck pain, left arm pain, loss of strength in his left arm and hand, interrupted sleep, loss of movement in his left shoulder and numbness involving the thumb and index finger of his left hand.
33 At present, the plaintiff continues to experience daily neck pain of varying intensity. He is never free of neck pain. He also experiences left arm pain, as well as reduced strength in his left arm. His sleep continues to be interrupted by more pain and discomfort. He also has ongoing numbness in the thumb and index fingers of his left hand.
34 On a day-to-day basis, the plaintiff’s neck pain “bugs” him. The pain is annoying. His neck is sore and quite stiff and the pain runs down the left side. The top of his neck is sore. His neck always aches and there is not a day he is actually pain free at all in his neck.[10]
[10]T43
35 Sometimes the plaintiff gets a sharp burning sensation and some numbness on his left bicep, which always seems like it is tight. He has pins and needles down the forearm and very little, if any, sensation through his thumb and his pointer finger.[11]
[11]T42
36 The plaintiff described his back pain as like a feeling of someone putting pressure from their knee in his back and getting pushed inwards. It is pretty constant. On bad days it is severe, going down to the balls of his feet, and on those days he struggles. He does not have that sort of pain all that often these days. He might not have it for months.[12]
[12]T41
37 Lower back pain is always there as a dull pain, but the plaintiff can manage it. It is an experience he has had for many years of his life.[13]
[13]T43
38 The additional neck pain just makes the plaintiff’s life very difficult and very hard. He gets very frustrated and his mood swings are often pretty terrible. He struggles to concentrate due to his pain. There are good and bad days. However, on a day-to-day basis, the majority of the time he is never pain free.[14]
[14]T43
Activities with children
39 As of April 2015, the plaintiff did his best to keep himself active. He participated in his young children’s activities, particularly their BMX racing. He struggled driving long distances to their competitions due to his neck and left arm pain. In the past, he had set up PA equipment and done some commentary at these BMX competitions. He helped his children as best he could but paid the next day with increased pain and discomfort in his neck. They carried their own bikes which were very light.[15]
[15]T31
40 After his back injury, the plaintiff could do small things around the BMX track like mark lines or do some sweeping or lifting. He cannot do hands-on tasks of this nature now and has to allocate them to somebody else. It is basically his left arm and neck which causes the plaintiff to struggle, but he was able to manage these types of activities with his low back.[16]
[16]T52
41 Speedway racing is the children’s newfound passion. The plaintiff takes them to events and, to a certain degree, helps them set up. Another child’s father does the majority of heavy lifting and shares the driving.[17] This is not a weekly activity. There will be times where a month will go by and they will not attend the speedway.[18]
[17]T23
[18]T25
42 The plaintiff’s cooking skills are limited. He does whatever he needs to around the house as his wife is not in a position to do anything particularly since her problems with breast cancer and he gets little assistance from his children.[19]
[19]T26
43 Since his neck injury, the plaintiff takes longer to do household tasks. His back had stabilised to a certain degree after the 1997 injury. With his neck and shoulder, there are just times when he knows if he attempts to do whatever needs to be done, he is going to pay for it.[20]
[20]T53
44 The plaintiff received assistance with gardening due to the 1997 injury. He thought this ceased a couple of years ago and was not continuing at the time of the incident. However, he agreed if it was recorded that assistance continued for eighteen months thereafter, then that was probably correct. He is now able to do gardening to some degree.[21] He just pushes the lawnmower around most of the time with his right arm, and empties the catcher with that arm.[22]
[21]T31
[22]T57
Drumming
45 As of April 2015, the plaintiff enjoyed music and had been a drummer in a band. Apart from playing a short gig at his partner’s fortieth birthday in 2014, he had basically given up drumming and his kit was packed up. His neck and left arm pain and restrictions had caused him to stop his playing.
46 The plaintiff agreed that his back injury had an ongoing impact upon his ability to drum because of his problems with sitting. Before the incident he was playing a little, although quite infrequently. He had to be very careful how he went about this activity. Now his drumming is basically non existent. [23]
[23]T19
47 The plaintiff gave drumming lessons to a son of a friend until about six or eight months ago however, those lessons did not involve any physical activity on the plaintiff’s part.[24]
[24]T32
48 The plaintiff agreed, after the incident, he was involved in a band called ‘Middle Finger’. They rehearsed and played some gigs, but not that many because the singer ended up leaving. Most of the rehearsals took place at the plaintiff’s home where he had a small kit set up and there was no setting up or packing up of any big equipment.[25]
[25]T33
49 Three or four years before his partner’s 40th birthday party, the plaintiff performed here and there in a band called TMF. Sometimes they were paid. Their gigs usually went for 30 to 40 minutes.[26]
[26]T35
50 The plaintiff agreed that after the incident and prior to operation, he rehearsed and drummed.
51 With the back injury, the plaintiff was able to manage rehearsals. He did not doubt he probably would have done a few shows. The bulging discs in the plaintiff’s back remained but he had learned how to manage things a little better and had to be very careful how he did things.[27] With his neck injury, he has not done any paid work or any pub shows or any pub gigs.[28] He is devastated because he cannot do so anymore. He really enjoyed playing. Music probably took priority over his other activities.[29]
[27]T19
[28]T48
[29]T49
Surfing
52 Prior to the incident, the plaintiff enjoyed surfing despite his low back problems, but just not as much and he could not be in the water anywhere near as long as he would have liked.[30]
[30]T45
53 With his back injury alone, lying on the board tended to put more pressure on his back and that gave him problems. However, now his surfing is almost non-existent. He has been out a couple of times, but ends up paddling in circles because of his weak left arm, and he gets frustrated and upset and packs it in and goes home feeling disheartened.[31]
[31]T46
54 Before the neck injury the plaintiff went surfing a lot. Now he hardly goes at all. With the back injury, he could do 50‒60 per cent of his usual surfing and now, with the neck injury, only 5 per cent.[32]
[32]T46
Motorbike
55 As of April 2015, the plaintiff continued to ride a motorbike as best he could. He had to be more careful with respect to his left arm and neck. He rode with a club called the Comrades, a military servicemen’s support club. He did the minimum number of rides to remain an active member, which was about four or five a year.
56 As of November 2016, the plaintiff had given up riding with the Comrades as he could no longer keep up with them due to his pain on the long rides.
57 The plaintiff did struggle riding in the Comrades with his low back problem, but he could normally manage and sometimes pull over and let his fellow riders go and he would catch up. Since the incident, he just cannot do that and he is basically no longer in the club. Probably not long after he swore his first affidavit, he stopped riding with the Comrades. That decision was partly due to his low back problem, but mainly the struggle he had with his neck pain on longer rides.[33]
[33]T29
58 The plaintiff would love to continue long rides with the Comrades, however he found he could not keep up with his fellow riders.[34] He had to have a stretch and let his arm rest and he found that embarrassing. Trying to keep up was a bit degrading. Riding took its toll. He was okay with short rides, but on longer rides when he had to grip, his left arm got tired and lost strength and his neck tended to ache a lot more. Before the incident, riding was a joy. Since then, it became a chore. He got aches and pains and basically just had to stop.[35]
[34]T29
[35]T56
59 The plaintiff rides his motor bike to and from work. He prefers to ride his bike than drive a car because he does not have to turn his head too much.[36]
[36]T29
60 The plaintiff is worried about reinjuring his left arm. He cannot lift anything near what he used to be able to and his right arm does the compensating. If he uses his left arm, he just causes pain which is unnecessary.[37]
[37]T57
Domestic life
61 As of April 2015, with respect to daily activities, the plaintiff struggled to wash his hair at times due to neck and left arm pain. Getting dressed was also difficult at times.
62 The plaintiff’s neck injury had placed significant strain on his personal relationship in an intimate sense.[38] He had moved out of home on more than one occasion but he and his wife had been able to reconcile each time. He had become irritable and difficult to live with since his neck injury.
[38]T22
63 After the back injury, the plaintiff was able to participate in sex a lot more than is now the case. Since the operation, sex has been “very minimal” which is very frustrating for him.[39]
[39]T50
64 The plaintiff’s home life continues to be difficult. His wife is having her own health issues and he does his best to support her but that is difficult when they are both struggling.
Sleep
65 The plaintiff’s sleep continues to be interrupted by neck pain and discomfort. With his lower back pain, he struggled to get comfortable in bed. He woke up quite often. With his neck now, he really does struggle to get a decent night’s sleep. Before the incident, his sleep was mediocre but now it is very ordinary and often terrible.[40]
[40]T44
Treatment
66 In April 2015, the plaintiff regularly took strong painkilling medication and was never free of neck pain and symptoms in his left arm that interrupted all aspects of his life. He was then taking Tramal, Voltaren, Panadeine Forte, Valium and Pristiq, and he had also been on Lyrica.
67 The plaintiff now takes painkilling medication most days and is careful about his intake because his work involves driving. He takes Valium to help him with sleep but he does not get a restful sleep. He had taken Valium before the incident to cope with sleep difficulties caused by his back pain.
68 Medication helps both the plaintiff’s neck and back pain. His focus is probably more on his neck and shoulder. After the operation, the plaintiff backed right off on heavy painkillers. He takes Tramadol occasionally when he is really sore and when he feels Panadol or Panadeine Forte has not worked. Tramadol is mainly for his neck, shoulder and his arm. His back has sort of stabilised.
69 Dr Aman, whom the plaintiff has been seeing for the last five years, and lives near his home, prescribes Tramadol. The plaintiff now sees Dr Radich less frequently.[41]
[41]T21
70 The plaintiff could take up to six Panadeine Forte per day. Some days he might not have any. He is trying to get rid of all the tablets because he has to be clear headed to drive and does not want to jeopardise his job, which he is pretty lucky to have.[42] The only medication he takes maybe on a daily basis is Panadol during work hours.[43]
[42]T22
[43]T40
71 As a result of his ongoing pain and restricted movement related to his neck injury, the plaintiff became depressed and required treatment in this regard. At times he had suicidal thoughts due to pain and financial stress.
72 During 2015, the plaintiff had counselling with Ian Mackinnon for depression. This treatment assisted with his moods but now he no longer sees a counsellor because he cannot afford it.
Work
73 Following the 1997 injury, the plaintiff had been able to get back to work and have a reasonably full life. That had been the case until the incident, when he sustained a very bad injury to his neck, which had had a devastating effect on his life.
74 The plaintiff was unable to return to work after the operation and when a redundancy came up, he took it.
75 It was the plaintiff’s ambition to stay with the defendant as long as possible. He was paid a good wage of over $1,000 a week at the time of his injury. That had now been lost to him.
76 After the operation, the plaintiff was not sure what type of work he could perform. He had relied on his physical fitness his entire working life and that had now been lost to him and he was struggling financially.
77 The plaintiff was able qualify as a traffic controller and attempted to do those duties for about nine months.[44] The work was casual, only a few hours a day.
[44]T13
78 The plaintiff ceased working in traffic management because he needed a stable income. For about two months thereafter, he worked at Concept Logistics for six hours a day doing replenishment work behind a production line. He struggled with these duties. The lifting was not heavy but it was continuous and he just could not manage it. He had problems with basically his upper body, his neck and his arm gave him grief.[45]
[45]T14
79 The plaintiff worked three to five days per week in this job. Three days was manageable but the extra days took their toll. He struggled getting to work on those days but he was not in a position to knock back the work.[46]
[46]T15
80 From late 2015, the plaintiff has been working with Southern Cross Transport Equipment Group.
81 In that role, the plaintiff drives a 4-tonne van and delivers and picks up spare parts used to repair truck and other commercial vehicles. He has been working mostly five days per week and Saturday overtime if available. He works five 10-hour shifts and 4 hours overtime on Saturdays during which he gets things prepared, such as doing paperwork for the following Monday. He has been working these hours consistently over the last year.[47]
[47]T37
82 The plaintiff is in pain while working these long hours but he needs to work to provide for his family and to earn a reasonable income.
83 The plaintiff is also required to drive a forklift and might be on the vehicle 20 minutes per week.[48] He agreed his driving work could cover up to 150 kilometres per day, but it varied.[49]
[48]T37
[49]T38
84 The plaintiff had discussed his injuries with Dale, his immediate boss. Dale does not have a problem at all for the plaintiff to pull over and take a bit longer to get a delivery done, or have a rest or a quick coffee.[50] If the plaintiff does not have these breaks, his body aches. He probably starts to lose a little concentration, which is a problems as he needs to concentrate when he is driving, particularly a heavier vehicle. The aching is mainly in his neck and down the left arm, the back of the arm and the shoulder blade, and past the shoulder down the arm.
[50]T58
85 After 10 hour shifts, the plaintiff feels very lethargic and is very tired. He looks forward to getting home and just sitting down or lying down. The lower back “puts up” pretty well with the job. The ache is always there, a dull ache that can sometimes escalate a little, but the main concern after driving for a day is that the plaintiff is really sore in the shoulder, his neck is really stiff and he is looking forward to having a rest.[51]
[51]T59
86 The plaintiff is working too long hours to go and see his doctor. He even struggles to pay his bills because he starts work early.[52]
[52]T39
87 Prior to his neck injury, the plaintiff had learned to cope with back pain and enjoyed a reasonable quality of life. He was working full time, earning a good wage and helping to bring up his children. His neck injury had drastically altered his life for the worse.
88 Since the incident, the plaintiff has not been free of neck pain. Although he had pain in the past, it was not always present. He had now been left with permanent neck pain and discomfort, as well as symptoms in his left arm. Despite the operaton, his symptoms had not been alleviated entirely.
89 The plaintiff’s symptoms post incident are different to any prior symptoms. Whereas previously he had times when he was free of neck and left arm pain, since the incident he has not been pain free.
90 The plaintiff thinks he would struggle with his pre incident duties. He may or may not get through a full day of his old job. He would possibly struggle with strength issues and tasks requiring the use of his left arm.[53]
[53]T54
91 In his second affidavit, the plaintiff commented on his activities shown in a number of DVD surveillance films.
92 On 25 June 2014, the plaintiff was shown checking fluid levels on a vehicle, an activity he does from time to time. It does not aggravate his neck pain. He was also shown with a bicycle tyre over his left shoulder, an activity he can do.
93 Film taken on 25 June 2014 showed the plaintiff tidying up his garage and the surrounding area and, as a part of the clean-up, he slipped a fridge with another person to the back of a trailer. Also, with that person’s assistance, he lifted and placed an old lawn mower on the back of the trailer. Neither of the activities involved heavy lifting. The plaintiff also picked up two metal ramps used to raise the vehicles. They were not heavy. He also lifted a tub onto the trailer which was not heavy.
94 The plaintiff was shown at work on 7 July 2014. He agreed he was performing traffic management duties, which he could do because they were relatively light and did not aggravate his pain.
95 Footage on 7 July 2014 showed the plaintiff sweeping, using a shovel and dragging a piece of equipment a couple of metres. He did not think these were his usual duties and he would have done them so that his co-workers could pack up. His normal duties were traffic management.
96 The plaintiff was shown again doing these duties on 9 July 2014. The film showed him setting up mobile road signs and lifting mobile road signs, an activity that did not aggravate his neck pain. The footage also showed him holding the road sign in his left hand, which he did, as he found using that hand did not aggravate his symptoms.
97 The plaintiff agreed he was shown on 10 July 2014 performing duties including setting up temporary traffic management signage.
98 The plaintiff agreed he was shown on 10 June 2015. That day, he recalled he had been involved in a minor traffic collision which had done some damage to the other vehicle’s front guard. He was being assisted by a friend when they made the other vehicle driveable by moving the fender guard so it did not touch the wheel. The plaintiff’s symptoms were not aggravated by that incident.
The Plaintiff’s medical treatment
99 In a report of 7 November 2016, Dr Morcombe, chiropractor, contrasted the plaintiff’s presentation on 23 November 2011 with his presentation on 7 December that year.
100 On the earlier date, the plaintiff attended complaining of neck pain, the exact mechanism of which was unknown, but he felt he might have slept in an odd position and woken up with pain and stiffness.
101 In December 2011, the plaintiff appeared to be suffering from significant neurological symptoms following the incident. They appeared to be of a different nature to any past episode.
102 Dr Radich, treated the plaintiff prior to the incident for lower lumbar back disease (longstanding lower back myalgia).
103 Dr Radich’s notes indicated the plaintiff developed pain and paresthesia in his neck and left arm in the incident. At that time, he was on restricted duties due to his back condition.
104 On his last visit on 9 June 2016, the plaintiff was then working as a truck driver and was still experiencing neck and left arm pain, with numbness of his left thumb and left index finger. By the end of the day, the plaintiff was usually quite fatigued but had to work long hours, including Saturday mornings, because of financial difficulties which had become worse, as his wife is no longer working as she has breast cancer.
105 Dr Radich noted the plaintiff required analgesics constantly and he was no longer seriously depressed, having expressed suicidal ideation in the past, but he was under strain from pain, financial issues and anxiety about his family.
106 The plaintiff attended LifeCare Westgate Physiotherapy from August 2012 until February 2013. Treatment was ceased at that stage, because the plaintiff required further review by his surgeon.
107 On 9 March 2012, Mr McMahon, neurosurgeon, performed a left C6 radiculopathy. On earlier examination on 1 February 2012, he thought the main pathology was at C5-6, where there was a left-sided C5-6 disc and osteophyte complex, with severe compression of the left C6 nerve root.
108 On examination on 10 May 2012, Mr McMahon noted the plaintiff’s symptoms had significantly improved and physiotherapy was recommended.
109 Mr McMahon diagnosed cervical spondylosis and left C6 radiculopathy, secondary to acute disc prolapse. He thought the plaintiff’s presentation was completely consistent with the incident, following which there was an acute left C5-6 disc prolapse with compression of the left C6 nerve root.
110 Mr McMahon thought the plaintiff was ready to return to light activities and could be involved in a graduated return to some of his previous activities. Given the degree of spondylosis, as well as the recent surgery, he felt the plaintiff should return to light work initially, and then a graduated increase in work activities. In the long term, the plaintiff would need to continue various restrictions such as lifting of 20 kilograms and not being involved in repetitive work above head height or repetitive work below knee height.
111 Overall, Mr McMahon thought the plaintiff’s prognosis was quite good and his symptoms significantly improved following the surgery. He thought the plaintiff would be able to return to the majority of his previous work activities with the appropriate restrictions.
112 Mr McMahon last saw the plaintiff in early January 2013. At that stage, he noted, unfortunately, the plaintiff had ongoing left-sided brachialgia, sensory disturbance and weakness. Mr McMahon felt post-operative investigations would be of some benefit, and he organised an MRI scan and cervical spine x‑rays and recommended the plaintiff see Dr Lim, consultant in rehabilitation and pain management, noting there had been very little initial improvement with physiotherapy.
113 The plaintiff reported chronic sensory loss involving his left thumb, although his index finger sensation had significantly improved. He felt some ongoing pain over his left arm and had some generalised left upper limb weakness.
114 Following a review of the cervical spine MRI scan, Mr McMahon noted there was a satisfactory fusion at C5-6 but there was some ongoing bilateral foraminal stenosis at that level, as well as mild to moderate left C3-4 exit foraminal stenosis.
115 Mr McMahon did not feel any further surgery was warranted and, overall, the plaintiff’s condition had stabilised. He thought the plaintiff required ongoing pain management with Dr Lim, who had recommended the pain rehabilitation program.
116 Dr Lim saw the plaintiff in February 2013 about the persistence and severity of pain affecting the left paracervical shoulder girdle and upper limb, associated with paresthesia in the C6 distribution, as well as a numb thumb.
117 Dr Lim thought the plaintiff had evidence of multiple exquisitely tender muscular triggerpoints affecting the left paracervical shoulder girdle and upper limb muscle associated with persistent muscular hyperirritability and reflecting the development of central sensitisation which was now perpetuating, as well as amplifying his pain.
118 In a letter to Mr McMahon, Dr Lim advised that the plaintiff would benefit from attending the NERC Pain Rehabilitation Program and he had, in the meantime, commenced the plaintiff on a trial of Lyrica aimed at reducing the amplification of pain due to central sensitisation.
Investigations
119 An MRI scan of the plaintiff’s cervical spine was organised on 24 November 2011.
120 It was reported there was multi-level degenerative disease at C3‑4, C4-5 and C5-6, most marked at C5-6 where there was a moderate sized left paracentral posterolateral disc protrusion causing some subtle indentation of the cervical cord on the left and impingement on the left C6 nerve root.
121 Dr Radich organised a CT scan of the plaintiff’s cervical spine in March 2012.
122 It was reported there was cervical kyphosis replacing the normal lordotic curve. There was left paracentral posterior disc protrusion and endplate osteophytes at C3-4 indenting the theca. There was central postero disc protrusion indenting the theca at C4-5. It was noted there was a previous disc implant at C5-6 and endplate osteophytes at C5-6 narrowing the intervertebral foramina bilaterally.
Medico-legal evidence
123 Mr D’Urso, neurosurgeon, first saw the plaintiff in November 2015.
124 The plaintiff told him of current neck pain on a daily basis of 7 out of 10 and left brachialgia of 6.5. He also complained of paresthesia in the left upper limb and weakness, and problems sleeping because of headaches.
125 On examination, there was one-centimetre wasting on the left mid arm. Left biceps and triceps reflexes were diminished compared to those on the right. Sensation was altered in the left arm in a C6 distribution. Cervical movement was 75 per cent in flexion, extension and rotation.
126 Mr D’Urso thought the plaintiff was symptomatic from a C5-6 disc prolapse causing a left C6 radiculopathy.
127 Mr D’Urso noted that, unfortunately, after the operation the plaintiff appeared to have developed pseudarthrosis and had ongoing disability and symptoms. Mr D’Urso thought it likely there was a degree of ongoing C6 and possibly C4 and C5 nerve root compression contributing to the plaintiff’s presentation. It was likely that there was ongoing mobility at the index level causing nerve root compression and generating pain.
128 Mr D’Urso recommended a CT bone scan as to the investigation of the new condition.
129 Noting it was commendable the plaintiff had returned to employment, Mr D’Urso thought he would have a permanent capacity of at least a partial nature into the foreseeable future and will not be able to return to pre-injury employment. He would place a restriction on the plaintiff’s capacity to climb at height and he should not be required to climb ladders or steps. He would need to avoid awkward or repetitive neck movements as much as possible and should not be required to lift weight above shoulder level or in excess of 20 kilograms.
130 On re-examination in mid-2016, the plaintiff reported, if anything, his symptoms seemed a little worse, with chronic neck pain at 5 out of 10 and intermittent headaches becoming more frequent. There was pain deep in the left biceps and radiating into the forearm, and paresthesia down the arm to the fingers of the left hand.
131 On examination, there was some global weakness in the left upper limb. There was still the wasting and diminished left biceps and supinator reflex. There was a similar limitation of movement as on the previous examination.
132 Mr D’Urso thought the restrictions he previously suggested continued to apply. The prognosis remained guarded.
133 Mr D’Urso thought that the injury was of a significant nature and appeared to have left the plaintiff with a permanent neurological disability. If indeed the C6 motion segment had fused, it was of lesser significance than if indeed a pseudarthrosis were to be present.
134 It would appear the plaintiff does have weakness of the left upper limb and persisting disability which would be of a significant nature given his pre-injury employment history and his ability to maintain employment at the present time.
135 The investigations previously suggested by Mr D’Urso were again noted.
136 Mr D’Urso provided a supplementary report, having been shown a number of segments of surveillance. He noted the film demonstrated the plaintiff working in his duties in traffic management, as well as performing activities such as parking a car, performing maintenance on a car and socialising and attending a retail outlet shop. In the films, Mr D’Urso thought the plaintiff appeared to have a somewhat stiff neck but otherwise he did not display any particular neurological disability.
137 Mr D’Urso noted when the plaintiff was reviewed on 27 November 2015, he said he was working full time as a delivery driver and able to do light physical activity. When he was subsequently reviewed in July 2016, he stated he was employed as a motorcycle courier.
138 Mr D’Urso did not see any reason to change his previous opinion. He thought it appeared the plaintiff had a permanent incapacity of a partial nature and the surveillance film had not altered his opinion.
139 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in January 2016.
140 The plaintiff then described neck pain at an intensity of 7 on a visual analogue scale, increasing to an intensity of 8 at times. He had low back pain of 5, and in the legs, at an intensity of 2 to 5.
141 Following examination, Dr Sutcliffe thought the plaintiff continued with the effects of C6 radiculopathy and cervical disc lesion.
142 Dr Sutcliffe thought the plaintiff could continue his current job where he has no requirement to lift other than occasionally and loads a forklift on and off, and he also has the ability to rest after an hour before recommencing driving. Otherwise, she thought he had no capacity for manual handling or capacity for any work in the open market, taking into account his age, education, past work experience and the nature of his incapacity.
143 Based on his neck alone, Dr Sutcliffe noted the plaintiff had demonstrated he was able to return to full-time modified work but the question remained whether that could be performed on a consistent and sustainable basis. She believed the plaintiff was able to maintain his current employment, but would point out the ability to do so and relied solely on the restricted duties informally arranged by his management.
144 When re -examined in July 2016, the plaintiff described pain of 6 to 7 usually, and occasionally to 10.
145 On examination, there was some left forearm wasting and some decrease in power in the left upper limb, with some restriction in cervical movements.
146 Dr Sutcliffe noted the type of employment the plaintiff presently undertakes is selected and not typical of the usual delivery-driver-type of work.
147 In her view, the plaintiff had sustained a very substantial adverse impact on his capacity for activities of daily living and domestic, social and leisure activities, and had dedicated himself to assisting the family and providing financial support.
148 Dr Sutcliffe believed the plaintiff had sustained a very serious and significant injury as a result of the incident. His prognosis was poor and future medical treatment would continue to be related to the provision of analgesic medication.
Vocational evidence
149 Ms Katrine Green prepared a vocational assessment report of 4 February 2016 to identify alternative vocational options. She noted the plaintiff was demonstrating a partial capacity to perform his current occupation on a full-time basis and she commented that a number of suggested jobs were unsuitable for him.
The Defendant’s evidence
150 The plaintiff swore an affidavit on 13 March 2003 in relation to the 1997 injury described as an injury to his back, buttocks and legs.
151 The plaintiff deposed that he resumed modified duties following that injury. He had suffered pain, distress and anxiety, in particular sleeping difficulty. He had problems with prolonged postures. He was frustrated he was no longer able to pursue vigorous activities and was limited to non-strenuous activities. He feared engaging in sports as he might hurt himself again. He was concerned about his ability to care for his young baby.
152 The plaintiff’s pre injury employment had been affected and he was restricted from repetitive bending and twisting and not able to lift more than 10 kilograms. As a result of his injuries and impairment, he was restricted in pursuing his hobbies, recreations, sporting pursuits and domestic activities. He could no longer play football and go skateboarding. He was restricted in his ability to go surfing; however, he tried to when able to. Further, his sexual relationship with his partner had been adversely affected.
153 WorkCover household help carried out an occupational therapy assessment in March 2010 to review gardening assistance to the plaintiff. It was noted the plaintiff had difficulty with lawn mowing and general garden maintenance, including edging of the lawns and gardens, and pruning tasks. He was then receiving one to one-and-a-half hours of garden service a month.
154 Following the review assessment, it was recommended that that assistance be maintained. It was noted the plaintiff had a long-term back injury which he managed carefully by monitoring his participation in all activities of daily living, at home and work and that it was unlikely there would be any significant improvement in the future.
The Defendant’s medico-legal evidence
155 Dr Chris Baker, occupational therapist, first saw the plaintiff in 2011 and most recently in March 2016.
156 Dr Baker noted that when he saw the plaintiff in June 2015, the plaintiff was receiving NewStart. He had financial problems, with the bank wanting to foreclose on his mortgage and since then, had obtained employment at Southern Cross Transport Equipment Group in August 2015.
157 At the March 2016 examination, the plaintiff reported his hand, forearm and bicep muscles were affected, the whole of his neck was affected and he had limited movement of the neck.
158 On examination, the plaintiff had a reasonable range of neck movement. He had a permanent burning sensation in the left arm and had restricted use of the left shoulder.
159 Dr Baker thought the plaintiff should work within medical restrictions, with no repetitive frequent movements of the neck, no lifting of more than 5 kilograms in the left hand and no use of the left arm above shoulder height repetitively, as well as no prolonged tight gripping with the left hand. He thought the plaintiff’s current job appeared appropriate and reasonable.
160 Dr Baker then commented on a number of jobs suggested by the vocational assessor and also ten DVDs.
161 Having reviewed the documents, his previous report and the DVDs, Dr Baker thought the plaintiff could undertake pre-injury duties of wrap guard maintenance, CS driving and picking up parts as detailed in the document provided, headed “Pre-Injury Duties for Brett Kerss”.
162 Dr Baker then commented on the CoWork report of 29 July 2016.
163 In that report, the following were recommended as examples of suitable employment for the plaintiff, namely:
(i) truck driving
(ii) road traffic controller
(iii) ride-on mower operator
(iv) radio controller; and
(v) palet co-ordinator.
164 In terms of road traffic control work and ride-on mower operator work that the plaintiff had previously done, Dr Baker thought he might be able to handle it in the future although he had concerns about manhandling of heavy pieces of equipment and also the effect of whole body vibration.
165 Dr Baker thought the plaintiff had the capacity to undertake truck driving, radio control and palet co-ordinator operations full time. He suspected he would be limited to around four hours a day working as a road traffic controller or ride-on mower operator if those activities tended to cause him aggravation of his symptoms.
166 Dr Baker noted the plaintiff is currently working as a truck driver and he considered he had the capacity to work full time in this role and the roles of radio controller and palet co-ordinator; that is, he had the capacity to undertake full-time work currently in those occupations.
167 In terms of road traffic controller and ride-on mower operator, Dr Baker thought if the plaintiff could work initially reduced hours in those roles he may be able to increase to full-time employment within a six month period if the work was not aggravating the symptoms.
168 Following the last examination, Dr Baker noted the plaintiff continued to complain of symptoms in the neck and left arm and had ongoing brachialgia of the left arm.
169 Dr Baker diagnosed a large left-sided C5-6 disc and osteophyte complex, resulting in severe compression of the left C6 nerve root, resulting in radiculopathy. He noted the surgery but post-operatively, the plaintiff developed ongoing brachialgia of the left arm and continued to have symptoms.
Overview
170 There is no dispute the plaintiff suffered an injury to his cervical spine in the lifting incident, following which he required surgery. His claim for weekly payments was accepted as was his claim pursuant to Section 98C in relation to the neck, left arm/hand and scarring and a psychological condition.
171 In the incident, the plaintiff suffered C5/6 disc prolapse.[54] Neurosurgeon Mr D’Urso considered there is ongoing physical pathology at that level.[55] Dr Lim also diagnosed central sensitisation of an organic nature.
[54]Confirmed in the MRI scan of 24 November 2011
[55]T77
172 There is no suggestion of any neck problems predating the incident.
Credit
173 Counsel for the defendant did not really suggest the plaintiff’s credit was in issue. Whilst it was conceded the plaintiff may have had some issues with his memory, it was submitted there was some “approbation and reprobation” by him in the witness box about his level of restriction in terms of his activities such as drumming, seeming to change his evidence in re-examination.[56]
[56]T62
174 Counsel for the plaintiff submitted that the plaintiff was a straightforward and cooperative witness, and “the worst that could be said was that there were some issues with his memory.”[57]
[57]T87
175 In my view, the plaintiff was a truthful, credible witness who did not overstate the extent of his pain and restrictions and was prepared to make appropriate concessions as to the difficulties he faced pre incident in relation to his low back condition. He is a man who has tried hard to get on with his life after the operation and continues to work long hours to support his family despite his pain and restrictions.
176 I consider the plaintiff to be somewhat of a stoic.
177 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2):[58]
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[58][2008] VSCA 260 at paragraph [4]
178 Further, in the numerous surveillance DVDs the plaintiff was not shown displaying a level of movement, or undertaking activities inconsistent with, his evidence as to his pain and disability. As counsel for the plaintiff submitted, there was no “hot point” about credit in the film and what was shown was largely consistent with the way the plaintiff put his case. He is “not catastrophically injured but that does not preclude a serious impairment. “ There were 190 hours of surveillance from 2011 to 2015 and little film.[59]
[59]T91
Are the consequences of the neck impairment “serious”?
179 In determining this issue, given the plaintiff’s pre-existing back condition, it is necessary to isolate the consequences referable to his neck condition alone and decide whether they are serious.
180 It was contended on the defendant’s behalf that the plaintiff’s earlier back injury curtailed a lot of recreational activities prior to the incident and continued to do so.[60] It was submitted the consequences of the neck injury should be examined through “the prism” of pre-existing back consequences.[61]
[60]T20
[61]T63
181 In this regard, reliance was placed on the Court of Appeal decisions in Peak Engineering & Anor v McKenzie[62] and Bezzina v Phi & Anor.[63]
[62][2014] VSCA 67
[63][2012] VSCA 161
182 In Bezzina v Phi & Anor, Harper JA and Beach AJA stated that when examining the consequences of the claimed serious injury, the Court was bound:
“… to look at how they affected the plaintiff as he was and would likely to have been absent the injuries he sustained in the accident. This including looking at and considering the effect (and likely effect in the future) of the applicant’s pre existing injuries.”[64]
[64](Supra) at paragraph [23]
183 In Peak Engineering & Anor v McKenzie,[65] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[65](Supra) at paragraph [1]
184 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[66]
[66](Supra) at paragraph [1]
185 The President found that the judge was:
“(a)bound to identify, and exclude, the continuing consequences for the plaintiff of the non compensable injury; and
(b)when the consequences properly referable to the relevant injury were identified, identified them as ‘serious’.”[67]
[67](Supra) at paragraph [2]
186 Counsel for the defendant submitted the plaintiff had accepted he had significant ongoing lower back problems that affected him in all aspects of his life before the incident. He had medication for sleeping and had problems bending, twisting, standing and walking.[68]
[68]T63
187 Reliance was placed on the WorkCover household occupational report of 2010 which detailed significant restrictions due to the plaintiff’s back condition at that time. Also it was submitted the plaintiff’s 2003 affidavit relating to his 1997 injury detailed problems “starkly similar” to those described by him in relation to the incident.[69]
[69]T70
188 It was submitted it had to be thought that, because of the back injury alone, the plaintiff might have got to the point where he was not going to be able to do much anyway. His back problem was not going to go away.[70]
[70]T64
189 It was submitted the plaintiff could not discharge the onus because it could be seen that he was so compromised before the incident, he would not be doing many activities anyway given the constant knee-like pressure in his back that he described, and radiation down his legs.[71]
[71]T64
190 Pre-incident, the plaintiff had to be very careful about surfing and drumming, and he had given up skateboarding and football. It was submitted any extra consequences in relation to these activities as a result of the incident are not serious.[72]
[72]T65
191 It was also submitted the neck impairment was not “serious” when one looked at what the plaintiff had retained. There are some consequences but it just does not “hit the mark”.[73]
[73]T11
192 It was submitted there were a lot of retained capacities and residual physical capacities borne out by the surveillance. If the plaintiff can disentangle what is related to his neck from other problems, he faces the difficulty of showing that that the consequences thereof are serious.[74]
[74]T71
193 In response, counsel for the plaintiff submitted prior to the incident, the plaintiff had learned to cope with back pain and enjoyed a reasonable quality of life. He was working full time, earning a good wage and helping to bring up his children. However, his neck injury had drastically altered his life for the worse. He had no work and no income and was uncertain about what his future held.
194 Comparing the whole picture of the plaintiff’s his pre and post-incident position, he had gone from a full-time worker able to do a range of employment activities to someone in protected employment with the ever present risk of loss of work. He has a range of substantial impairments and limitations and his prognosis is poor as Mr D’Urso and Dr Sutcliffe confirmed.[75]
[75]T92
195 Counsel for the plaintiff submitted Dr Radich’s views as to the consequences of the plaintiff’s neck rather than back were of particular relevance because he has managed the plaintiff over the whole period and is well placed to comment in that regard.[76]
[76]T81
196 Reliance was also placed on treating chiropractor Dr Morcombe’s comments about the significant shift in the plaintiff’s clinical presentation with significant neurological symptoms on examination in December 2011 that were absent on examination in November before the incident.[77]
[77]T85
Clinical findings
197 Counsel for the defendant submitted there was little to be found on clinical examination, noting Dr Baker found no wasting when he examined the plaintiff in June 2015. At that examination, he also commented that the plaintiff seemed to be active and there was no marked radiculopathy.[78]
[78]T74; on examination in 2016 Dr Baker did not carry out any measurements
198 However, on examination in 2016, Dr Baker thought the plaintiff had continuing symptoms of brachialgia of the left arm.
199 When Mr D’Urso examined the plaintiff in mid 2016, he found one-centimetre of wasting and thought the plaintiff appeared to be symptomatic from left C6 radiculopathy.
200 In clinical terms, I prefer Mr D’Urso’s opinion and findings as a neurologist to those of Dr Baker occupational physician.[79]
[79]T80
Pain
201 As Maxwell P said in Haden Engineering v McKinnon,[80] 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.
[80](2010) 31 VR 1 at paragraph [11]
202 In my view, the plaintiff’s condition has not improved significantly since the operation. Whilst Mr McMahon thought the plaintiff’s prognosis was quite good when he saw him in May 2012, when he last saw him in early January 2013, the plaintiff was complaining of ongoing upper limb pain and finger and hand sensory disturbance. Although he thought the plaintiff’s condition had stabilised, Mr McMahon considered he required pain management.
203 The plaintiff continues to experience constant, daily neck pain of varying intensity and is never free of neck pain. He also experiences left arm pain, with a sharp burning sensation and some numbness on his left bicep. Strength in the left arm is reduced and he has numbness in his thumb and pointer finger.[81]
[81]T43
204 There was no challenge to the plaintiff’s complaints of persisting pain.[82]
[82]T87
205 The plaintiff was candid as to ongoing back problems – a constant dull ache which is manageable with very infrequent severe pain.[83]
[83]T41
206 In my view, this experience of back pain suffered does not in any way detract from the level of pain and discomfort experienced as a result of the compensable neck injury.[84]
[84]Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 at paragraphs [110] onwards
Treatment
207 Whilst the plaintiff is no longer undergoing active treatment,[85] he required the operation in March 2012 and physiotherapy before and after. Because of ongoing pain, he was referred by his surgeon to Dr Lim for pain management in 2013.
[85]T66
208 The plaintiff continues to require significant painkilling medication although of recent times not of the stronger type he was prescribed following the operation. He is also concerned about his intake as he needs to be clear headed for his driving work.
209 The plaintiff takes Tramadol occasionally, prescribed by Dr Aman, when Panadol or Panadeine Forte is not effective. He could take up to six Panadeine Forte per day. Whilst the medication also helps his back pain, Tramadol is mainly for his neck, shoulder and his arm as he has learned to manage his back pain.[86]
[86]T20; T82 – Dr Radich thought the need for medication for both conditions may coincide
210 Whilst pre incident the plaintiff had restricted movement due to his lower problems – issues with lifting, twisting and bending, as a result of his neck injury there are further significant restrictions relating to movement of his neck and use of left arm.
211 Since the incident, the plaintiff has had increased difficulty with sleep, now describing it as terrible, having been mediocre before his additional neck problems.
212 The plaintiff’s difficulties with his intimate relationship with his wife have increased as a result of his neck injury.
213 Washing his hair and dressing are problems at time due to the plaintiff’s neck and left arm discomfort. His evidence in this regard was not challenged.[87]
[87]T88
214 Although the plaintiff still does some cooking and housework, he is slower in performing the tasks that need to be done and his wife cannot do because of her illness.
215 The plaintiff is still able to participate in his children’s activities, taking them to the speedway and assisting them to a limited extent with their racing. However, he relies on other parents to undertake any heavy lifting and shares the driving to events.
216 I accept the plaintiff has reduced his drumming activities even more as a result of his neck injury, no longer performing and practising only on a limited basis. This loss has been a devastating for him as music was his main interest.[88]
[88]T88
217 The plaintiff’s surfing is now almost non-existent as a result of his neck pain and the restrictions on using his left arm to paddle – another significant loss for him.[89]
[89]T89
218 Due to his neck and arm pain, the plaintiff is no longer able to keep up with the other members of the Comrades on their regular long rides and has had to quit the club.
219 As a result of his neck injury, the plaintiff had to cease his job of 15 years with Toyota. Until commencing his current job in late 2015 with Southern Cross Transport, the plaintiff had qualified as a traffic controller working on a causal basis for a few hours a day for a short period. He left that role because he needed a stable income.
220 The plaintiff struggled with the repetitive duties in his next job at Concept Logistics where he worked for about two months replenishing a line. Performing these light duties, three to five days a week, he had problems with his upper body, his neck and his arm but had to keep working to support his family.[90]
[90]T15
221 In his current job with Southern Cross, the plaintiff works long hours driving a van delivering small parts. Counsel for the defendant submitted this situation was a “significant pointer” away from the plaintiff having a serious injury for pain and suffering.[91] Working 50 to 54 hours per week with no time off or need for treatment did not suggest the plaintiff’s pain was severe.[92]
[91]T67
[92]T66
222 It was submitted the plaintiff was earning a great wage at the time of the incident and still is, and has not claimed loss of earning capacity.[93] There had been no loss of vocation and vulnerability in terms of future employment was not a relevant pain and suffering consequence. [94]
[93]T69
[94]T68
223 Reliance was placed on Dr Baker’s view that the plaintiff could do his pre incident duties and had the capacity for a range of the jobs suggested by the vocational assessor.
224 Before the incident, although working on modified duties, the plaintiff was still able to undertake a range of duties in quality control – duties he felt he would struggle with at the present time because of his neck and arm problems.
225 In his current job, whilst the plaintiff may work long hours, I accept he continues to have neck and left arm pain and has to take breaks during the day although performing relatively light duties.
226 Whilst Dr Radich did not comment specifically on the plaintiff’s capacity for employment, he noted that the plaintiff complained of pain at the end of the day’s work and had been forced to do this job for financial reasons.[95]
[95]T82
227 In my view, as Dr Sutcliffe noted, the plaintiff would have difficulty working for other than a sympathetic employer who provides him with breaks when required. This is not a typical delivery job and requires no manual handling. The plaintiff has been able to continue in this role, albeit with pain, because of the special nature of the job.[96]
[96]T83
228 In Dr Sutcliffe’s view, the plaintiff’s neck injury alone would result in an inability to perform many of the usual duties in relation to truck driving.
229 Counsel for the plaintiff also relied on Mr D’Urso’s view that the plaintiff is unfit for unrestricted employment and requires permanent restrictions as to work above shoulder height and climbing ladders. Mr D’Urso thought the plaintiff’s persistent weakness and disability of his upper limb were significant given his pre injury employment and his ability to maintain work presently.[97]
[97]T79
230 I accept the plaintiff’s evidence that he would struggle with his pre-incident job. In my view, he would also be unable to do the other jobs which Dr Baker thought were suitable, as was evidenced by his problems at Concept Logistics and also his present difficulties working even the lightest of jobs.
231 The loss of ability to enjoy activities, including work, and frustration at that loss are relevant to assessing pain and suffering.[98]
[98]See Haden Engineering Pty Ltd v McKinnon (supra); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35] and Peak Engineering & Anor v McKenzie (supra) at paragraph [38]
232 Further, in my view, the risk of future employability is a very significant consequence.[99] As counsel for the plaintiff submitted, on his neck complaint alone, the plaintiff is in a perilous position in terms of work if for some reason his current job is no longer available.[100]
[99]T82
[100]T85
233 Although the earlier back injury had significantly restricted the range of activities the plaintiff could do, he has suffered further disability and limitations on his activities arising from the neck injury.[101] The further limitations, resulting from the plaintiff’s neck injury, are not insubstantial. The new injury has resulted in deprivation of a significant degree of the plaintiff’s residual capacity.[102]
[101]See Poholke (supra) at paragraph [110]
[102]Ibid at paragraphs [112]-[113]
234 As the plaintiff’s neck problems have continued for over five years with little significant improvement despite the operation, I am satisfied his impairment is permanent and accept the views of Mr D’Urso and Dr Sutcliffe that the prognosis is guarded.
235 Taking into account all the evidence, in my view, the consequences referable to the neck injury, excluding those referable to the back injury, meet the statutory test of seriousness.[103]
[103]Poholke (supra) at paragraph [1]
236 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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