Kesper v VWA
[2023] VCC 2057
•14 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04058
| Richard Kesper | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2023 | |
DATE OF JUDGMENT: | 14 November 2023 | |
CASE MAY BE CITED AS: | Kesper v VWA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2057 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – pain and suffering – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dressing v Porter [2006] VSCA 215; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 20.
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti KC Mr S. Carson | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr B. McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1Pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate for pain and suffering pursuant to paragraph (a) of the definition of serious injury, for injury to his neck/and or cervical spine. The plaintiff also claims to suffer from associated pain and sensory disturbance in his upper limbs, as a result of nerve root compromise in his cervical spine. The plaintiff had also sought the grant of a certificate pursuant to paragraph (c) of the definition of ‘serious injury’ for a psychological injury, including but not limited to, anxiety and depression sustained throughout the course of his employment with Eastern Health. However, prior to the commencement of the hearing, reliance on paragraph (c) of the definition of serious injury was abandoned, and a loss of earning capacity was not pursued. The application was therefore confined to one for pain and suffering under paragraph (a) of s 335 of the Act
2The plaintiff was represented by Mr Monti of King’s Counsel with Mr Carson of counsel. The defendant was represented by Mr McKenzie of counsel.
Relevant legal principles
3The relevant words of the definition of “serious injury” contained in s 325(1) of the Act read:
‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….
4The Court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s 325(1) of the Act.[1]
[1] Section 335(5) of the Act.
5To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[2]
[2] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[3] Barwon (2005) 14 VR 622, 638 [33].
[4] Section 325(2)(c) of the Act.
6The requirement to satisfy these elements is sometimes referred to as the “narrative test.”
7The question whether an injury satisfies the narrative test is largely one of impression or value judgment.[5]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
8In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
9In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[7]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[8]
[6] Section 325(2)(h) of the Act.
[7] Section 325(2)(j) of the Act.
[8] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
10In TTB SMS Pty Ltd v Reading,[9] Tate and T Forrest JJA, emphasised the essential aspects to which consideration be given on a serious injury application in a pain and suffering case and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[10]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[11]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[12]
[9] [2020] VSCA 203.
[10] Section 325 of the Act.
[11]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[12]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] (‘Stijepic’) per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
The plaintiff’s evidence
11The plaintiff relied on the following evidence:
(a) Three affidavits of the plaintiff sworn 29 March 2022, 22 May 2023, and 11 June 2023;[13]
(b) Affidavit of Graeme Smith dated 8 June 2023;[14]
(c) Medical Report of Dr Hazem Akil dated 27 March 2023;[15]
(d) Report of Dr Chris Madden dated 25 April 2022;[16]
(e) Two reports of Mr Craig Timms dated 16 February 2023,[17] and 23 May 2023;[18]
(f) Clinical records from Emerald Medical Centre;[19]
(g) Operation Report of Mr Craig Timms dated 8 September 2017;[20]
(h) Letter from Mr Craig Timms to Dr Chris Madden dated 15 August 2017;[21] and
(i) MRI Scan dated 20 June 2017.[22]
[13]Exhibit P1, Plaintiff Court Book (‘PCB’) 4-14.
[14]Exhibit P2, PCB 15-18.
[15]Exhibit P3, PCB 19-23.
[16]Exhibit P4, PCB 24-26.
[17]Exhibit P5, PCB 27-30.
[18]Exhibit P6, PCB 30.
[19]Exhibit P7, PCB 31-40.
[20]Exhibit P8, PCB 33.
[21]Exhibit P9, PCB 34.
[22]Exhibit P10, PCB 39.
The defendant’s evidence
12The defendant relied on the following evidence:
(a) Report of Mr Craig Timms dated 19 October 2017;[23]
[23]Exhibit D1, Defendant Court Book (‘DCB’) 5.
(b) Report of Dr Michael Lucas dated 22 December 2021;[24]
[24]Exhibit D2, DCB 6-16.
(c) Report of Dr Remy Glowinski dated 24 December 2021;[25]
[25]Exhibit D3, DCB 17-26.
(d) Report of Dr Rene Dupuche dated 8 June 2022;[26]
[26]Exhibit D4, DCB 27-35.
(e) Workers Injury Claim Form dated 14 October 2020;[27]
(f) Certificates of Capacity dated 5 October 2020 to 25 November 2020;[28]
(g) Health declaration provided to Monash Health dated 12 February 2021;[29]
(h) Workers Injury Claim Form dated 3 December 2021;[30]
(i) Certificates of Capacity dated 6 July 2022 to 19 April 2023;[31]
(j) Emerald Medical Centre attendance notes dated 24 August 2000 to 8 February 2023;[32]
(k) Hills Physiotherapy attendance notes dated 3 July 2017 to 2 December 2020;[33]
(l) Four Certificates of Capacity dated 11 May 2012,[34] 23 May 2012,[35] 26 April 2013,[36] 6 October 2014;[37]
(m) Three Reports of Mr Craig Timms dated 3 September 2021,[38] 21 October 2021,[39] and 15 December 2021;[40] and
(n) Nabenet Initial Return to Work Report dated 2 February 2022.[41]
[27]Exhibit D6, DCB 26-40.
[28]Exhibit D7, DCB 41-52.
[29]Exhibit D8, DCB 53.
[30]Exhibit D9, DCB 54-59.
[31]Exhibit D10, DCB 60-80.
[32]Exhibit D11, DCB 81-181.
[33]Exhibit D12, DCB 182-184.
[34]Exhibit D13, DCB 185-186.
[35]Exhibit D14, DCB 187-188.
[36]Exhibit D15, DCB 189-190.
[37]Exhibit D16, DCB 191-192.
[38]Exhibit D17, DCB 193.
[39]Exhibit D18, DCB 194.
[40]Exhibit D19, DCB 195-196.
[41]Exhibit D20, DCB 197-205.
13I have read and had regard to the lay and medical evidence relied on by the parties, the cross-examination, and re-examination of the plaintiff, and the final addresses of counsel. I have referred to so much of the evidence as has proved necessary to explain my reasons.
The competing arguments in a nutshell
14The plaintiff contends that despite suffering most gravely from a lumbar back injury that postdates the onset of his cervical spine injury, the consequences he is experiencing from his cervical injury should themselves be assessed as satisfying the statutory test for seriousness. The plaintiff argues that despite his lumbar injury besetting him and inhibiting him in certain activities of daily life, as well as in the pursuit and enjoyment of some recreational activities, and also being precluded because of the same from employment, nonetheless, the cervical injury has separate and serious consequences.
15The defendant challenges the plaintiff’s arguments, and it argues that he has not disentangled the consequences from the two impairments occasioned to his spine, sufficient to identify the cervical injury as a serious injury. Moreover, the defendant points to an absence of treatment, and lack of pain relieving medications prescribed for his cervical spine as opposed to his lumbar spine injury, with the result that, either the neck is no longer affecting the plaintiff to the degree he would have the court find or, if it is, that the consequences of such impairment occasioned by it, are not more than significant or marked, and at least very considerable.
The plaintiff, his employment, his cervical injury and its aftermath
16The plaintiff is aged 61. He worked as an operating theatre technician and was employed by Eastern Health from 2006, until January 2021. He left Eastern Health and commenced employment with Monash Health in February 2021.
17In his first affidavit sworn 29 March 2022,[42] the plaintiff deposed that his neck injury developed gradually while working with Eastern Health. He described the job of a theatre technician as one, that by its very nature, is heavy and often awkward. He was required to lift and move patients under anaesthetic. He could be handling patients who weighed 130 or 140 kilograms, or more. More broadly, the plaintiff said he was subjected to tight timelines in the performance of his duties.
[42]Exhibit P1, PCB 4-11.
18The plaintiff said he eventually sought medical treatment for his neck condition. He saw Mr Timms, who recommended surgery.
19In September 2017, the plaintiff underwent a cervical discectomy and fusion at the C5-6 and C6-7 levels of the cervical spine performed by Mr Timms.
20The plaintiff, thereafter, returned to work, but he said his neck was not the same, and has not been since. He has a creak and crunch in his neck, and he experiences sudden electric shock twinges of pain.
21A peculiar aspect of this application is that the plaintiff has not made a Workers Injury Claim for his neck injury.
The subsequent back injury and surgery
22The plaintiff suffered a low back injury. It required surgery in the form of an L4/5 microdiscectomy performed on 7 September 2021. The low back surgery was also performed by Mr Timms.
23The plaintiff described chronic back pain. He said that he experiences pain in the lumbar region, radiating to both hips and down his left leg.
24The plaintiff was very frank in his evidence and explained that it is the lower back injury that is more problematic and painful than is his neck injury. Indeed, the plaintiff deposed that “I am no longer able to work due to a low back injury.”[43]
[43]Exhibit P1, PCB 5, paragraph 5.
25Unlike the neck injury, the back injury, is the subject of two workers’ claims for injury.
The current state of the neck condition
26The plaintiff described his neck condition as presenting him with a constant and daily problem. He said that he is limited in the way in which he can move his head and neck. He said that moving his head up and down, and to the left and right, can be painful, particularly at the limits of movement in each direction.
27On a day-to-day basis the plaintiff says he is limited in what he does, but he attributes this as due more to his lower back than to his neck. That being said, the plaintiff deposed that tasks that require more than minimal movement of his neck become painful and are often impossible to execute. For example, he deposed that driving a car and looking around for traffic is frequently problematic as is looking up in order, for example, to reach for something from a cabinet.
28The plaintiff deposed that he had enjoyed growing and exhibiting African Violets and that it had been a hobby of his for some time, but its pursuit is now compromised by his neck, as well as his low back pain, after only a short time spent in the garden.
29The plaintiff explained that he had enjoyed breeding and showing dogs, but that as a result of his neck condition he finds it difficult to show dogs.
30The plaintiff said that he has been unable to pursue archery because of his neck condition.
31The plaintiff deposed that his sleep is adversely affected. He said that although his lower back is more painful than his neck, it is very hard for him to get comfortable in bed because of the cervical fusion that he underwent.
32In addressing his medication, the plaintiff said that pain relief prescribed for his back also helps “to some extent with neck pain.”[44]
[44] Exhibit P1, PCB 9 paragraph 25.
The plaintiff’s further affidavits
33In further affidavits dated 22 May 2023,[45] and 11 June 2023,[46] the plaintiff deposed that his neck condition has remained much the same since the two-level cervical discectomy and fusion surgery performed by Mr Timms in 2017.
[45]Exhibit P1, PCB 12-14.
[46]Exhibit P1.
34The plaintiff says that his neck continues to creak and crunch, and intermittently gives him “electric shock type twinges or shooting feelings of pain.”[47] He said that moving his neck “up and down and/or to the left and right is still painful at the limits of movement in each direction.”[48] He described that his neck is a particular issue when he is driving a car in traffic, and when needing to look about. Furthermore, tilting his head back to look upwards is painful, and it becomes worse the further he tries to move his head.
[47]Exhibit P1, PCB 13, paragraph 4.
[48]Exhibit P1, PCB 13, paragraph 4.
35The plaintiff deposed that his back condition has continued to be a “major issue.”[49]
[49]Exhibit P1, PCB 13, paragraph 5.
36The plaintiff said that his medication helps address both his back and his neck pain. However, if his neck pain is particularly bad, then the tablets do not offer him much relief, “no matter how strong they are.”[50]
[50]Exhibit P1, PCB 13, paragraph 6.
37The plaintiff said that he was taking:
Oxycodone — mornings
Amitriptyline — 2 tablets at night
Panadol - 2 tablets each 4 hours
Targin — 5mg in the evening[51]
[51]Exhibit P1, PCB 13-14, paragraph 6.
38The plaintiff deposed that his sleep remains affected because of his neck condition. He said that he purchased a special pillow to cradle his head and it is of some assistance, although he needs to “take medication and place his head down on the right side,” in order to get off to sleep, but when he moves the wrong way he will wake with neck pain.[52]
[52]Exhibit P1, PCB 14, paragraph 8.
39The plaintiff deposed that following the cervical spine surgery performed by Mr Timms in 2017, he returned to work and initially performed light duties for a couple of weeks before returning to full duties although he said that he often needed to ask for assistance.
40Prior to the cervical spine surgery Mr Timms performed, the plaintiff consulted Hills Physiotherapy in Emerald for treatment for his neck. He said his physiotherapist provided him with exercises to perform at home. After surgery, and following his return to work, he said that he continued to perform the exercises on an almost daily basis, and also while at work. He said that he regularly makes use of a heat pack and a cold pack for his neck.
41The plaintiff deposed that after he suffered his neck injury he purchased a compound bow and arrow which he had intended to use to hunt, but he found that because of the pressure of the bow being set at 45 pounds, he could not draw the bow back because of the strain he experienced on his neck.
42The plaintiff deposed that before the neck injury he regularly bred and showed large dogs. He participated most weekends at dog shows in Cranbourne and occasionally interstate. He said that he used to have 10 dogs, but now has 5 dogs.
43He described an occasion in September 2019, when he tried to show his dogs at the Adelaide Royal Show. He said that he was dismissed from the ring, because he was unable to navigate the arena because of neck pain. He said that he could not bend down to straighten the legs of the dog or hold it still to enable the judge to inspect the animal. He could not run around the arena with the dog.
44Prior to his neck injury, the plaintiff said that he had enjoyed shooting foxes, but he can no longer do so because of the recoil of his 12-gauge gun.
45The plaintiff said he was unable to breed poultry because of his neck injury, and his inability to lift heavy bags of feed.
46The plaintiff lives on a farm of some three acres. He described how he had used his chainsaw to cut up fallen trees for firewood but had stopped doing so because the vibration from the chainsaw caused him neck pain.
47The plaintiff says that he is heavily reliant on mirrors when driving due to restrictions in turning his neck to the right so as to view oncoming traffic. Although, he admitted that his low back pain also makes driving difficult, the turning of his head to the right is very restrictive when he is driving. He said that in order to turn to the right, he often has to turn his whole upper torso. He also finds looking down difficult and it is a cause of pain.
48The plaintiff described heavy lifting as a cause of neck and shoulder pain, as well as adversely affecting his low back condition.
49The plaintiff says that because of his neck he is limited in the performance of some household chores, and he cited reaching up to cupboards, or performing repetitive mopping movements. He said that he is also restricted in gardening because of the need to look down for any lengthy period of time.
50The plaintiff deposed that his ongoing neck pain varies in intensity from day to day, but very often it is worse at the end of the day.
Graeme Smith
51Mr Smith swore an affidavit dated 8 June 2023.[53] He is the plaintiff’s long standing partner. He deposed that he had observed the plaintiff’s deterioration in regard to his neck, and subsequently his back.
[53]Exhibit P2, PCB 15-18.
52Mr Smith deposed that in or about late 2016, and in 2017, when the plaintiff was working at Eastern Health he began to mention more frequently that he was experiencing neck pain.
53Mr Smith deposed that based on his observations, the plaintiff was limited in moving his head and neck. Also he would often come home from work at the hospital in pain. Mr Smith said that the plaintiff appeared to deteriorate because he was moving increasingly carefully, and he would mention that his pain was getting stronger.
54Mr Smith and the plaintiff live on a property of approximately 3 acres that Mr Smith described as requiring a lot of maintenance. He said from around early 2017, the plaintiff was unable to do as much in the garden as he previously had because of limitations due to neck pain.
55Mr Smith deposed that it also in around early 2017, the plaintiff commenced to be less involved with his dogs which Mr Smith attributed to the plaintiff’s neck. He said that the plaintiff all but stopped showing dogs at around the same time, although he thought that the plaintiff had shown a dog once or twice since then. The plaintiff still owns a breeding business, although Mr Smith deposed that he now attends to it. He said that it was not a business that takes up much time and is effectively dormant, with the last litter of pups sold about 2 years ago.
56Mr Smith deposed that the neck surgery in 2017 proved a difficult and traumatic period for the plaintiff, as he was laid up after surgery for some time.
57Mr Smith deposed that the plaintiff moves his neck gingerly.
58Mr Smith deposed that he is aware of the plaintiff’s subsequent back injury, which the plaintiff told him “is what finally stopped his career in its tracks.”[54]
[54]Exhibit P2, PCB 17.
59Mr Smith said he has seen the plaintiff struggle with neck pain when looking around while driving a car.
60Mr Smith confirmed that the plaintiff has been using a special pillow to support his head and neck.
The plaintiff’s medical evidence
Dr Akil
61Dr Hazem Akil, neurosurgeon in a report dated 27 March 2023,[55] recorded that the plaintiff continues to experience the following symptoms:
1. He continues to have persistent left neck pain. The pain is described more often ache and worsens on the movement of his neck. The pain radiates towards the upper part of his left shoulder and goes all the way to his left arm all the way to the hand. The pain is less intense than prior to the surgery performed by Dr Greg Timms, but he finds it interfering with his everyday activity.
2. Persistent lower back pain. This pain continues to be severe with radiation towards the left leg all the way to the foot. He is unable to walk around without the aid of a walking stick. He feels that he is unable to do many activities at home and he relies on his partner to do so.[56]
[55]Exhibit P3, PCB 19-23.
[56]Exhibit P3, PCB 20.
62On examination of the plaintiff’s neck, Dr Akil reported that the plaintiff:
was very reluctant on the movement of his neck towards any direction. There was a severe restriction particularly on the right lateral rotation and the extension of his neck. I noted a previous surgical scar on the right anterior cervical region. He did not have any clear sensory or motor deficit affecting both upper limbs although his deep tendon reflexes were significantly reduced bilaterally.[57]
[57]Exhibit P3, PCB 21.
63Dr Akil expressed his diagnosis as follows:
It is clear from the history that he has aggravation of cervical spondylosis as well as aggravation of lumbar spondylosis. The aggravation of cervical spondylosis resulted in a left C6 radiculopathy caused by a disc protrusion and foraminal stenosis and the aggravation of the lumbar spondylosis resulted in a left L4 and L5 radiculopathy caused by foraminal narrowing and a disc protrusion.
The nature of his work as a theatre technician with its physically demanding aspect, in my opinion is a significant contributing factor to his symptoms and the need for two surgeries. Unfortunately, the surgeries did not eliminate the pain completely and it is in my opinion likely that he will continue to suffer the consequences of these two injuries in the foreseeable future.[58]
[58]Exhibit P3, PCB 22.
64Dr Akil considered the plaintiff’s prognosis to be poor, and that he would be subject to permanent restrictions.
65Dr Akil noted the impact on the plaintiff’s life from the two conditions he was suffering in these terms:
He is unable to walk or run his dogs. He used to be very keen on hunting, but he stopped doing so.
He finds it very difficult to drive distances longer than 50 to 60 km.
He lives in an acreage where he relies on his partner to look after it.
He can only sleep on the right side of his body.[59]
[59]Exhibit P3, PCB 22.
Dr Madden
66Dr Madden provided a report on behalf of the plaintiff dated 25 April 2022.[60]
[60] Exhibit P4, PCB 24-26.
67In response to having been asked to identify when he had first and last seen the plaintiff Dr Madden wrote:
• Initial consult with myself (and relating to this condition) was on 19/6/2017
• Last consult – regards this condition was 4/9/2017, my last consultation with Mr Kesper for any medical matters was 15/11/2019.
68Dr Madden diagnosed a “large central disc protrusion at C5-6 and degenerated disc at C6- 7.”[61]
[61] Exhibit P4, PCB 24.
69When asked if the plaintiff’s injuries had stabilised Dr Madden said:
symptoms were acutely painful in June/July 2017, when he presented with this problem. The condition was stabilised in the ensuing months with the painkiller and surgical management used and appeared to not present again after September 2017.[62]
[62] Exhibit P4, PCB 24.
70Dr Madden expressed his understanding as to how the injury has affected the plaintiff’s social and domestic activities:
at the time of the injury/pain condition in June 2017 Mr Kesper needed to take time off his manual role (1 week at least) as his role involved manual handling as a theatre technician. At the time he reported a difficulty in gripping objects with his dominant hand. He also suffered with regards to sleep due to pain and also his ability to do recreational activities such as caring for, breeding and showing dogs.[63]
[63] Exhibit P4, PCB 25.
71When asked if the injuries to the cervical spine were likely to be permanent, Dr Madden replied that the question was not applicable because “no symptoms mentioned to clinician in C spine after surgery in September 2017.”
Mr Timms
72Mr Timms, neurosurgeon furnished reports dated 16 February 2023,[64] and 23 May 2023,[65] that were relied on by the plaintiff. In the first report, that Mr Timms described as a Supplementary Report, he wrote:
Mr Richard Kesper had cervical disc osteophyte complexes causing neural compression and arm radiculopathy. He recovered from the surgery and returned to work as a theatre technician, but did have some residual mild symptoms.[66]
[64]Exhibit P5, PCB 27-29.
[65]Exhibit P6, PCB 30.
[66] Exhibit P5, PCB 28.
73Mr Timms also reported that the plaintiff “is likely to have some residual neck pain and some residual lack of range of movement.”[67]
[67] Exhibit P5, PCB 28.
74With respect to domestic or social activities Mr Timms reported that “unfortunately I am unable to be specific regarding his social, recreational and domestic activities.”[68]
[68] Exhibit P5, PCB 28.
75Mr Timms said his:
conclusion regarding Mr Richard Kesper is that I reviewed him in 2017 with neck pain, decreased range of movement and left arm radiculopathy. He had neural compression from disc osteophyte complexes at the levels of both C5/6 and C6/7, which was his diagnosis. He was treated surgically with anterior cervical discectomy and fusion and at the postoperative review had recovered quite well, in fact after further recovery he returned to work as a theatre operating technician. Mr Kesper's cervical condition has stabilised.[69]
[69] Exhibit P5, PCB 28-29.
76In his report dated 23 May 2023, Mr Timms said the following:
Mr Richard Kesper worked as an operating theatre technician, predominantly involved with the setting up and movement of patients from trolleys to operating tables and then the reverse. In doing so, as the weight and shape of patients over the last many years has increased and often patients reach excessive weights, well over 100 kg, in the plague of obesity affecting our society, this has become a very demanding role.
In this regard, it is entirely plausible that Mr Richard Kesper injured both his cervical and lumbar spines when frequently manoeuvring obese, sedated and drowsy patients on operating tables into various positions, and back on and off onto patient trolleys with minimal assistance. This type of repetitive lifting, and in awkward positions without electric assisted operating tables and lifting devices, is likely a significant contributing factor to Mr Richard Kesper's cervical and lumbar spine injuries.[70]
[70] Exhibit P6, PCB 30.
77Prior to the surgery he performed on the plaintiff’s neck, and in a letter written to Dr Madden dated 15 August 2017, Mr Timms said:
When I examine Richard, he has weakness in the left arm compared to the right, but sensation is okay, but he does report pins and needles down to the tips of the fingers in both the C6 and C7 distributions.
His recent MRI scan is very helpful. It shows a large central disc protrusion at C5-6 and interestingly a very degenerated disc at C6-7 with marked Modic changes.
I have shown him the films today. I think he can see where the problem is.
Given his deficit and the persistence of the symptoms, I think it is reasonable to offer him surgical decompression in the form of an anterior cervical discectomy and fusion at the levels of both C5-6 and C6-7.
This is a general anaesthetic, an hour and a half long procedure, he would be in hospital for two or three days, it would take about four to six weeks to heal up and three months to be at his best. There is a small risk of infection, bleeding, speech and swallowing disturbance, and a rare risk of a permanent weak voice change or a serious nerve injury.
Overall the risks are about 2% or 3% chance of complication and him ending up worse from the surgery and wishing he had not had it done.
I have given Richard some information to take home and read. I suspect he may be keen to have something done about it, and if that is the case, we can be touch with him to arrange surgical decompression if he so chooses.[71]
[71] Exhibit P9, PCB 34.
The defendant’s medical evidence
Dr Lucas
78Dr Lucas furnished a report dated 22 December 2021, addressing the plaintiff’s complaints of lower back discomfort and left leg symptoms.[72] He diagnosed the plaintiff with “mechanical low back pain with radicular symptoms. Post L4/5 microdiscectomy on 17 September 2021.”[73]
[72]Exhibit D2, DCB 6-16.
[73]Exhibit D2, DCB 11.
79Based on the history Dr Lucas was provided, he reported that the “indicated symptom concerns would appear in keeping with an aggravation of an underlying condition. A prior history of back discomfort concerns was indicated. A longstanding age related component to indicated multilevel degenerative changes may reasonably be considered.”[74]
[74]Exhibit D2, DCB 11.
80Dr Lucas recited that the plaintiff had reported restrictions for usual tasks such as gardening, interacting with his dogs, collecting eggs and domestic tasks and had not returned to lawn bowls. He said that the plaintiff “is currently maintaining a usual home presence, undertaking components of his usual daily activities, limiting more active tasks. Mr Kesper is undertaking required driving. On the basis of current review, a restricted/limited work capacity may reasonably be supported.”[75]
[75]Exhibit D2, DCB 12.
Dr Glowinski
81Dr Remy Glowinski is a consultant psychiatrist who provided a report dated 24 December 2021, in which he wrote that the plaintiff:
Is a 59-year-old man who lives with his long-term partner. He has submitted a back injury claim and there is a current question about the degree and nature of associated psychological consequences.
…
Mr Kesper injured his back at work. Surgery has not alleviated his pain and functional limitations. The degree to which psychological factors are contributing to pain is unclear. His history of trauma and abuse suggests heightened vulnerability to the development of central sensitisation.
Mr Kesper also appears to have developed a relatively severe adjustment disorder with mixed anxiety and depression subsequent to the back injury.[76]
[76] Exhibit D3, DCB 23.
82Dr Glowinski reported that the plaintiff had not slept well since the time of his back injury.
Dr Dupuche
83Dr Rene Dupuche, consultant physician furnished a report dated 8 June 2022.[77] Dr Dupuche’s diagnosis of the plaintiff’s lumbar spine was of:
• Disc annulus injury
• Disc prolapse
• Disc fragment
• Foraminal stenoses bilaterally
• Neurocompression left L5 and probably right L5.
• Neurocompression possible at other levels.[78]
[77] Exhibit D4, DCB 27-35.
[78]Exhibit D4, DCB 31.
84Dr Dupuche reported that “the worker has no current work capacity and this is because of his current clinical situation, as described above. He has chronic pain, difficulty standing, difficulty walking, difficulty lifting and requiring the assistance of walking aids. In addition, he has restricted driving ability and is unable to use public transport.”[79]
[79] Exhibit D4, DCB 33.
Mr Timms
85The defendant tendered as evidence additional reporting from Mr Timms. In a letter to Dr Madden dated 19 October 2017, Mr Timms said he had reviewed the plaintiff who was recovering well from his surgery and he was back at work. Mr Timms said that:
From my point of view it is just about using common sense after this type of surgery and protecting the neck, particularly for the first 12 weeks from the operative date.
After that it is bit more relaxing, and I am sure if he has a bit of a stir up, he just might need a few days off work or a week off work just to let things calm and settle, but at this stage he is doing all the right things and just exercising and using common sense.[80]
[80] Exhibit D1, DCB 5.
The plaintiff cross-examined
86The plaintiff agreed that he has not made a claim for compensation for weekly payments or medical and like expenses for his neck injury.
87In an effort to identify the plaintiff’s working capacity as a theatre technician, the plaintiff was directed to a Nabenet Report of the critical physical job demands of a theatre technician following an onsite assessment at Casey Hospital, that was commissioned in response to the plaintiff’s back injury.[81] The plaintiff was unsure if he was in attendance when the assessment was undertaken. He was questioned by Mr McKenzie about certain of the tasks reported by the author of the report. The plaintiff contested the applicability of some of the duties described, as well as the weights attributed to them, believing that some of them involved greater weight than was reported.
[81]Exhibit D20, DCB 197-205.
88The plaintiff completed a Workers’ Injury Claim Form for his back injury dated 14 October 2020.[82] Mr McKenzie directed the plaintiff to certificates of no capacity and of limited capacity that had been supplied because of his back from 5 October 2020, together with certificates certifying the plaintiff fit for his pre-injury duties as a theatre technician from 15 December 2020.
[82]Exhibit D6, DCB 36-40.
89The plaintiff agreed that he left Eastern Health and commenced with Monash Health in February 2021. Mr McKenzie questioned the plaintiff about a Health Declaration form he completed for Monash Health.[83] The declaration asked the plaintiff whether having read the position description supplied, he suffered from or had suffered from, any pre-existing injury, or disease which could be affected by the nature or tasks associated with the proposed job, to which the plaintiff wrote “No."
[83] Exhibit D8, DCB 53.
90The plaintiff lodged a Second Claim Form for a low back injury dated 26 November 2021.[84]
[84]Exhibit D9, DCB 54.
91The plaintiff agreed that for all intents and purposes, by either May or early June 2021, he had progressed from a permanent part-time working arrangement to permanent full-time employment, and he was performing the usual duties of a theatre technician.
92Mr McKenzie suggested to the plaintiff that despite not having lodged a claim for his neck, nonetheless, he exhibited a preparedness to lodge certificates for capacity for conditions that included anxiety, and an injury to his ring finger, in addition to his injury to his low back. The provision of WorkCover Certificates of Capacity for these other conditions consisted of a:
(a) Certificate dated 23 May 2012 for anxiety;[85]
(b) Certificate dated 26 April 2013 for a soft tissue ring finger injury;[86] and
(c) Certificate dated 6 October 2014 for a low back strain suffered at Angliss Hospital.[87]
[85]Exhibit D14, DCB 187-188.
[86]Exhibit D15, DCB 189-190.
[87]Exhibit D16, DCB 191-192.
93The plaintiff gave two reasons why he had not made a claim for weekly payments or medical and like expenses for his neck: First, he had an unfavourable opinion of Eastern Health and its attitude to Workcover, and second, Mr Timms would not treat him under WorkCover, and so he paid to be operated on as a private patient. The plaintiff said:
I'm well aware of Eastern Health and WorkCover and how they've treated their staff, and the second reason is that Craig Timms, my neurosurgeon, would not look at me under WorkCover in the public system. I was in so much agony and it was huge pain which is ongoing that I had to seek to get Craig Timms to operate on me, which he agreed to, in a private capacity using my private health insurance. [88]
[88] T23, L21-28.
94Mr McKenzie directed the plaintiff to a report by Mr Timms dated 16 February 2023.[89] Mr Timms had related that at his initial consultation with the plaintiff on 15 August 2017, and for no identifiable reason, the plaintiff had complained that in the last few months he had been experiencing severe pain in his neck and left arm weakness and numbness, which was affecting his ability to work. The plaintiff had reported dropping things and although he had tried a number of therapies, these symptoms persisted. Mr Timms reported that his examination revealed weakness in the plaintiff’s left arm, together with pins and needles.
[89]Exhibit P5, PCB 27-30.
95Mr Timms also reported that on 8 September 2017, he performed an anterior cervical discectomy and fusion at the levels of both C5/6 and C6/7. He described the surgery he performed as “routine.”
96Mr Timms reported that on a postoperative review conducted on 19 October 2017, the plaintiff was recovering well from the surgery. He had already returned to work, and his symptoms had significantly improved.
97Mr McKenzie directed the plaintiff to the contents of his first affidavit, where he had deposed that unfortunately the surgery had not been as successful as he had hoped, and that despite being able to get back to work, his neck was not the same and had not been the same since. [90] However, Mr McKenzie suggested to the plaintiff that if he had been experiencing a significant ongoing neck condition, then he would have returned to see Mr Timms just as he had proved willing to do with his lumbar spine, to which the plaintiff said, “I don't believe so, no.”[91] The plaintiff said that he recalled a conversation with Mr Timms about being cautious with lifting and bending, and undertaking a gentle return to work.
[90]Exhibit P1, PCB 4-11.
[91] T27, L22.
98Mr McKenzie directed the plaintiff to Mr Timms report dated 16 February 2023, where he recorded that his next review of the plaintiff occurred several years later on 3 September 2021, but in relation to the lumbar spine injury that the plaintiff suffered whilst working as a theatre technician at the Casey Hospital. [92]
[92]Exhibit P5, PCB 27-30.
99Mr McKenzie referred the plaintiff to the very limited extent of physiotherapy treatment for his neck, which consists of an entry dated 3 July 2017 and another attendance for his neck on 15 October 2020.[93] Mr McKenzie suggested to the plaintiff that if he had been experiencing an ongoing neck condition of any significance, he would have seen the physiotherapist at some point between 3 July 2017 and 15 October 2020. The plaintiff said he could “not recall, no.”[94]
[93]Exhibit D12, DCB 184
[94]T21, L1.
100The entry from the physiotherapist dated 15 October 2020 recorded:
SHx: [Social History] theatre nurse on call at Angliss, partner graham runs 5 villas in Bali for weddings and stays, also a farmer over there, 200 chickens in Gembrook and breeds dogs.[95]
[95]Exhibit D12, DCB 184.
101The plaintiff said his partner oversaw the properties in Bali, but he did not own them.[96]
[96]T30, L1-3.
102The plaintiff said that he believed he had last travelled to Bali in 2020. He had not mentioned this in his affidavit evidence, because he said it had not been asked of him.[97]
[97]T30, L15-22.
103The plaintiff explained that he once had a farm in Bali but “it went bankrupt because of Covid” and he “lost the farm.”[98]
[98]T30, L31 – T31, L6.
104When asked by Mr McKenzie if the reason he had been unable to travel to Bali since 2020 was because of his back, the plaintiff said it was due to “both neck and back.”[99] However, when Mr McKenzie asked the plaintiff if there was a present problem with him travelling to Bali due to difficulties with prolonged sitting because of his back, the plaintiff answered, “that is correct. That's why I am not doing it now.”[100]
[99] T30, L19-20.
[100] T30, L26-27.
105The plaintiff agreed that Dr Madden from the Emerald Clinic had looked after his neck. Records from the Emerald Clinic recorded that the plaintiff’s first consultation for his neck was on 19 June 2017, with the last recorded consultation for his neck occurring on 4 September 2017. Mr McKenzie put to the plaintiff that “I suggest if you had a neck condition of significance, you would have continued to see Dr Madden about your neck condition after that. What do you say? --- I believe that might be correct, yes”.[101]
[101]T32, L14-17.
106On 21 September 2018, Dr Madden recorded the reason for the plaintiff’s contact as left lumbar pain with a history of five weeks of constant pain above the left hip, and mid lower back that was “worse with movement, had been affecting his sleep, was currently six out of ten in severity, with occasional shooting pain down the left leg and that the plaintiff had been using non-steroidal anti-inflammatory medication with minimal relief.”[102] Mr McKenzie asked the plaintiff if he could explain why Dr Madden, who having treated the plaintiff for his neck, and who had also seen the plaintiff for left lumbar pain, had recorded “nil other symptoms,” to which the plaintiff suggested he did not have neck symptoms “at that time.”[103]
[102] Exhibit D11, DCB 116.
[103]T34, L9.
107On 9 July 2019, the plaintiff saw Dr Lapchine, who prescribed Endone and recorded "fell from horse on Sunday, pain over low back, greater on left side, no neurological symptoms."[104] The plaintiff said that a horse had knocked him to the ground, and that he had not fallen from a horse.[105]
[104]Exhibit D11, DCB 120.
[105]T35, L29-30.
108Mr McKenzie suggested to the plaintiff that apart from a post-operative period in September 2017, there had been no other occasion that his neck condition had precluded him from working as a theatre technician. The plaintiff agreed with this, but said that he had worked with pain in his neck “all the way through.”[106]
[106] T36, L22.
109On 29 July 2019, the plaintiff was seen by Dr Madden who recorded, "history, fell from horse in WA a few weeks ago. Got sciatic pain and Endone was prescribed. Since then, been to Bali, got back yesterday, had X-ray this AM. Ongoing pain on walking and left lateral buttock and leg, no red flags. On ING service leave and back to work next week. Used Targin 15 milligrams by two last night and slept. Run out of Endone. Had same about a year ago, known C spine" – cervical spine – "disc disease and discectomy in the past. Examination non-tender spine, range of motion reduced, straight leg raising ++ left-sided."[107]
[107]Exhibit D11, DCB 121.
110Dr Madden prescribed Endone, and Solone, which Mr McKenzie suggested was for the plaintiff’s back. Although, the plaintiff said he believed that it had been prescribed for his back and neck.[108] Mr McKenzie suggested to the plaintiff that his medication since September 2018, had been prescribed for his low back and not his neck, but the plaintiff maintained the medication also helps with his neck.[109]
[108]T38, L17-18.
[109]T40, L2-4.
111On 1 August 2019, the plaintiff was seen by Dr Madden who recorded that the plaintiff was “pain-free, very happy with this.”[110] The plaintiff disagreed with this account.[111]
[110]Exhibit D11, DCB 122.
[111]T39, L3-9.
112In August 2019, Dr Madden recorded that the plaintiff presented with a flare up of lumbar pain for which he again was prescribed Solone. A referral was made to a Mr Eric Ee, and an MRI of the lumbar spine organised. Dr Madden also recorded that he wanted a referral to Mr Timms. There was no reference to the neck. The plaintiff agreed with Mr McKenzie that the clinical note accurately reflected the scope of the consultation.[112]
[112]T39, L25.
113On 9 December 2019, the plaintiff attended a Dr Unmack as a result of experiencing an aggravation of his back pain from a fight in which he had been involved. On 10 December 2019, the medical record recorded that the plaintiff was “still sore in back and arm, headachy both sides, front or behind eye, some nausea, no head strike in the physical altercation. Left arm improving, regular paracetamol and Ibuprofen.”[113]
[113]Exhibit D11, DCB 124.
114Mr McKenzie suggested to the plaintiff that the clinical notes up to and including the most recent attendance with Dr Lapchine from the Emerald Medical Centre on 20 January 2023, recorded references that his back had remained the same, that he was receiving physiotherapy up to three times a week, that there had been an improvement in his balance since using inserts in his shoes, and there had been an improvement in the plaintiff’s symptoms of Bell's Palsy, and the prescribing of Endone and Targin, but an absence of any reference to the plaintiff’s neck.
115Mr McKenzie put to the plaintiff that medical certificates were provided for his back claim for “no capacity” for work from 7 July 2022 to 4 August 2022, and 20 April 2023 to 18 May 2023.[114] Furthermore, the same certificates provided as a description or diagnosis, an L4-5 disc prolapse impinging left L5 nerve root, and an injury on 19 July 2021 at work when heavy lifting, together with anxiety/depression.
[114]Exhibit D10, DCB 60-80.
116Mr McKenzie directed the plaintiff to report by Mr Timms dated 15 December 2021, that followed a telehealth consultation with the plaintiff due to the worsening COVID-19 crisis.[115] Mr Timms reported that the plaintiff “is at home and struggling with a lot of pain into the right hip region but the right leg pain remains normal. He has persistent chronic pain across the back and symptoms down the lateral aspects of the left leg. He is on some OxyCodone and Targin and he is really not sleeping so well. I believe that Temazepam sleeping tablets are a bit too strong for him, the 10 milligrams, and he was hoping to use a lower dose."[116] The plaintiff agreed with Mr Timms account.[117]
[115]Exhibit D19, DCB 195-196.
[116]Exhibit D19, DCB 195.
[117]T44, L27.
117The plaintiff agreed that he had undergone pain management with Dr Barry Slon, whom he had seen for treatment for his back.
118Mr McKenzie questioned the plaintiff about a report from Dr Dupuche in June 2022.[118] Dr Dupuche had seen the plaintiff for his back condition and recorded that the plaintiff told him that he had no prior health issues, apart from occasional back pain from work. The plaintiff said this was “incorrect.”[119]
[118]Exhibit D4, PCB 27-35.
[119] T47, L19.
119When asked by Mr McKenzie why he had not seen a treating practitioner about his neck since September 2017, the plaintiff said “I didn't go back to see the doctor because there's very little they could do for me. I was relying on prescription – over-the-counter medication to get me through.”[120]
[120]T58, L27-30.
120Dr Dupuche reported that the plaintiff’s account of his ongoing back condition was of “low back pain radiating to both hips, tingling sensation in the left leg, discomfort in the right hip, cannot sleep lying on his left side or on his back and sleeps on his right side; however, this does not really relieve his pain and he cannot sleep for significant periods. He often wakes at 2 a.m. and cannot get back to sleep.”[121]
[121]Exhibit D4, DCB 29.
121The plaintiff agreed that Dr Dupuche was correct to have mentioned in his report that the plaintiff needed the use of a walking stick. As to use of a walking stick and of a presentation that included a limp, the plaintiff said that this was due to a combination of his back and his neck,[122] but he also said, “there is no restriction to my walking when it comes to my neck.”[123] However, a few questions later in cross-examination, when Mr McKenzie put another part of the report from Dr Dupuche to the plaintiff, that included a functional capacity to walk 250-300 metres with a walking aid, something which Mr McKenzie suggested was caused by the plaintiff’s lumbar spine, the plaintiff said, “and neck.”[124]
[122]T49, L1-2.
[123]T49, L16-17.
[124]T50, L9-10.
122When Mr McKenzie put to the plaintiff a series of restrictions on functional capacity that Dr Dupuche had reported, and that Mr McKenzie suggested to him were caused by his back condition, and not his neck, the plaintiff disagreed.
123Mr McKenzie questioned the plaintiff about an examination and the findings made in the report dated 27 March 2023, prepared by Dr Akil at the plaintiff’s solicitor’s request.[125] Dr Akil reported that the plaintiff was completely reliant on a walking stick while standing and walking, and the plaintiff answered, “on that particular date, yes.”[126] The plaintiff agreed his affidavits failed to record the use of a walking stick, and he said the omission was due to him not having been asked about it.[127]
[125]Exhibit P3, PCB 19-23.
[126]T51, L4-5.
[127]T51, L9-10.
124Addressing the plaintiff’s symptoms at the date of examination, Dr Akil recorded, "he continues to have the following symptoms – 1. He continues to have persistent left neck pain. The pain is described more often ache."[128] Dr Akil said that the plaintiff told him that he has “a consistent ache and worsens on the movement of that, particularly in the p.m. and in the cold.”[129] To the lack of reference in his affidavits to neck pain worsening in cold weather, the plaintiff again said that he had not been asked.[130]
[128]Exhibit P3, PCB 20.
[129]T51, L19-21.
[130]T51, L25-26.
125Dr Akil recorded that the plaintiff’s neck pain radiated towards the upper part of the left shoulder and “goes all the way to his left arm, all the way to the hand. The pain is less intense than prior to the surgery performed by Mr Greg [sic] Timms but he finds it interfering in his everyday activity.”[131] To Mr McKenzie’s question that Dr Akil had made no reference to the plaintiff experiencing ongoing problems with his left arm or hand, he said, “I believe it is in those affidavits.”[132]
[131]Exhibit P3, PCB 20.
[132]T52, L10.
126Mr McKenzie put to the plaintiff that Mr Timms had not mentioned left arm symptoms when he reviewed the plaintiff following his neck surgery, to which the plaintiff said that any omission on his part in having mentioned the same to Mr Timms would be because “at that time the pain in my back was so significant, it had overtook my neck. The neck was ongoing.”[133]
[133]T52, L27-29.
127The plaintiff denied that the neck surgery performed by Mr Timms had resolved any left arm or hand symptoms.[134]
[134]T53, L27.
128The plaintiff said that his inability to make use of his compound bow was because of his neck and not his back condition. Further that the inability to use his 12 gauge shot gun was because of its recoil and its effect on his neck.
Re-examination
129In re-examination, the plaintiff was asked to clarify any limitations in performing normal duties as a theatre technician upon his return to work following neck surgery. He said that these included limitations on the movement of patients from lateral to supine, supine to lithotomy, lithotomy back to supine, pushing the bed back up for the anaesthetist, and patient transport.[135]
[135]T61, 19-23.
130The plaintiff described his ongoing neck pain as, pain in his neck into his left shoulder, down to his left arm and pain, pins and needles going into his left finger through activity. He said that left arm pain could occur three or four times a week, depending on what he had done.
The defendant’s submissions
131Mr McKenzie submitted that in order for leave to be granted to the plaintiff to commence proceedings for common law damages for pain and suffering, the plaintiff was required to demonstrate that his pain and suffering is in consequence of an impairment to his neck, that when judged by comparison with other cases in the range of possible such impairments, might fairly be described as more than significant or marked, and at least being very considerable.
132Mr McKenzie contended that the plaintiff’s injuries to his lumbar and cervical spine have affected the same body function, but on different occasions, that is, the one body function injured in different ways at different times.
133Mr McKenzie anticipated that the plaintiff would rely on having undergone surgery to the cervical spine as an indica of seriousness. He submitted that despite the fact that surgery occurred, there is an absence of medical reporting from any treating practitioner in relation to the neck for some years.
134In support of the defendant’s submissions, Mr McKenzie referred to Dr Madden who had treated the plaintiff for his neck condition and who in his report to the plaintiff’s solicitors dated 25 April 2022 noted that “the initial consult with myself (relating to the neck condition) was on 19/6/2017. Last consult - regards this condition was 4/9/2017, my last consultation with Mr Kesper for any medical matters was 15 November 2019."[136]
[136]Exhibit P4, PCB 24.
135Mr McKenzie observed that Dr Madden’s chronology of treatment for the neck correlates with the clinical records tendered in evidence, that identify that although the plaintiff attended the Emerald Clinic on a reasonably regular basis after 19 June 2017, it was for conditions other than the neck.
136Mr McKenzie next submitted that if contrary to the defendant’s submission, the plaintiff continues to be troubled by a neck condition. I should be satisfied that it had not been of a sufficiency to have warranted him attending on Dr Madden and reporting it to him, by contrast with his medical attendances on Dr Madden for his lumbar spine.
137Mr McKenzie submitted there have been many occasions and opportunities for the plaintiff to have complained about his neck, and to have sought treatment for it, but he had not done so. For example, on 9 July 2019 the plaintiff attended Dr Lapchine, and on 29 July 2019 he attended Dr Madden, for what was recorded as an attendance due to a fall from a horse that had occurred in Western Australia a few weeks previously.
138Mr McKenzie also referred to an attendance on Dr Madden on 1 August 2019, for lumbar osteoarthritis. Dr Madden recorded the plaintiff’s history as one of “pain-free, very happy with this.”[137] On 27 August 2019, the plaintiff’s clinical attendance on Dr Madden included a reference to the lumbar spine having flared again.[138] On 15 November 2019, there was a reference to the plaintiff’s left large toenail.
[137] Exhibit D11, DCB 122.
[138]Exhibit D11, DCB 122-123.
139On 9 December 2019, a note concerned the plaintiff having become involved in a fight and it included, “pre-existing back pain aggravated, pain in left arm and some swelling, possibly that arm may have been hit last night, no fall.”[139] Mr McKenzie submitted that in the event it would be suggested on behalf of the plaintiff, that left arm symptoms on that occasion were related to his neck, the contemporaneous note indicates otherwise and implicates it as a result of the altercation.
[139]Exhibit D11, DCB 124.
140On 10 December 2019, the plaintiff’s record of clinical attendance included, “still sore in the back and arm, headache both sides frontal behind eyes, some nausea, no vomiting, no head/left arm pain improving.”[140] Mr McKenzie submitted that subsequent clinical notes were of a similar nature, and that despite references to the plaintiff’s back and other conditions, together with the prescribing of medication, there is an absence of reference to the plaintiff’s neck.
[140]Exhibit D11, DCB 124.
141Mr McKenzie also relied on the post operative assessment by Mr Timms, who recorded that the plaintiff’s surgery on 8 September 2017, had proceeded quite routinely. At a post-operative review of the plaintiff on 19 October 2017, Mr Timms reported that "he is recovering very well from his cervical surgery, I am delighted with his progress, and he is already back at work… from my point of view, it's just about using common sense after this type of surgery and protecting the neck, particularly for the first 12 weeks from the operative date."[141]
[141]Exhibit D1, DCB 5.
142Mr McKenzie in addition referred to the report by Mr Timms dated 16 February 2023 and when in response to being asked, "are the injuries likely to be permanent?" said, "Mr Kesper's cervical spine injury has stabilised and he had successfully returned to work as a theatre technician. He is likely to have some residual neck pain and some residual lack of range of movement."[142]
[142]Exhibit P5, PCB 28.
143Mr McKenzie observed that Mr Timms has not examined the plaintiff’s neck since 19 October 2017, and Mr Timms said that his “…next review was several years later on 3 September 2021 in relation to a lumbar spine injury."[143]
[143]Exhibit P5, PCB 28.
144Mr McKenzie submitted that the plaintiff has exaggerated his consequences associated with the neck.[144]
[144] T 79, L 12-13.
145Mr McKenzie submitted that Mr Timms did not think there was ongoing radiculopathy and I should not conclude there is, despite the plaintiff having made a recent complaint to Dr Akil of symptoms in his left arm. Mr McKenzie relied on the absence of such symptoms in clinical records, or the consultation notes of the treating general practitioner or the report from Dr Madden dated 25 April 2022.[145] Mr McKenzie submitted that the complaint is not borne out in the plaintiff’s affidavit material with the plaintiff having deposed in his most recent affidavit that, “I continue to suffer ongoing neck pain which varies in intensity."[146] Mr McKenzie submitted that the extent of involvement of the left arm is no more than is described by the plaintiff in his affidavit who said that, “heavy lifting causes neck and shoulder pain as well as causing low back pain.”[147]
[145]Exhibit P5, PCB 24-26.
[146]Exhibit P1, PCB 45.
[147]Exhibit P1, PCB 44.
146Mr McKenzie submitted that although the treating physiotherapist had not provided a report, the only clinical note that refers to the plaintiff’s neck is dated 3 July 2017.[148] A note from the physiotherapist dated 15 October 2020, that referred to a lumbar workplace injury, did not include a complaint of cervical spine symptoms.
[148]Exhibit D12, DCB 184.
147Mr McKenzie submitted that despite the plaintiff having been referred to a pain management specialist, Dr Barry Slon, the plaintiff had confirmed Dr Slon had treated him for his back.
148In furtherance of Mr McKenzie’s submission that the pain and suffering consequences of the plaintiff’s neck injury are not of the degree that the plaintiff would have the Court find, Mr McKenzie highlighted that a number of medical histories taken of the plaintiff’s lumbar condition failed to recount other health conditions, including, notably, his neck. Mr McKenzie referred to Dr Remy Glowinski, psychiatrist whose report dated 24 December 2021, included "Mr Kesper stated there is no significant medical history aside from his back concerns."[149]
[149]Exhibit D3, DCB 21.
149Mr McKenzie also referred to a history taken by Dr Michael Lucas, Occupational Physician, who in a report dated 22 December 2021, under “current complaints/ symptoms” details lower back discomfort, left leg symptoms.[150] Under "past Injury history,” he recounted that, “Mr Kesper outlined a past history of back concerns, confirming he has a previous work injury claim. Mr Kesper recalled no previous leg symptom concerns. Mr Kesper advised a past history of cervical surgery undertaken by Mr Timms in 2017, undertaken privately."[151] Thus, although he was made aware of the past history of cervical surgery, he did not record having been provided an account of ongoing neck symptoms.
[150]Exhibit D3, DCB 9.
[151] Exhibit D3, DCB 9.
150Similarly, when the plaintiff saw Dr Dupuche in June 2022, he recorded under the heading of “medical history”, that "the worker stated he had no prior health issues apart from occasional back pain, following work, which he considered to be ‘normal.’"[152] Under "work characteristics," Dr Dupuche described back symptoms radiating to both legs but recounted no issue in relation to the neck. As well, Dr Dupuche addressed limitations on functional capacity and activity/lifestyle in relation to walking, standing, sitting, bending, lifting weight, kneeling, squatting, traversing stairs, all of which Mr McKenzie submitted, Dr Dupuche had recorded as presenting in the context of the plaintiff’s back, but that the plaintiff would have the Court in some way find has been caused by virtue of his neck condition.
[152]Exhibit D4, DCB 28.
The plaintiff’s submissions
151Initially, Mr Monti accepted that a disentangling of the plaintiff’s neck and back conditions is required, however, his submission would come to change.
152One of the two principal pillars relied on by Mr Monti in final address, was a lack of challenge by the defendant in cross-examination to the plaintiff’s account of the effects on him of his neck.
153Mr Monti developed his submission when he asked rhetorically, why should the plaintiff’s evidence not be accepted, when it was not challenged. Mr Monti submitted that the plaintiff had not been challenged on his account of pain and limitations, including that when he returned to work and despite not taking prescription medication for neck pain, he was taking Panadol and Nurofen throughout the day and on most days. Mr Monti submitted that the plaintiff had also testified about his sleep interference, and the purchase and use of a special pillow.
154Mr Monti submitted that the plaintiff had exhibited stoicism in that having undergone what he described as “not far short of massive cervical spinal surgery with a double-level fusion, had six weeks off work, goes back to work on light duties for two weeks and then returns to full duties.”[153]
[153] T 99, L 10-13.
155Mr Monti submitted that confined only to the consequences of the neck, the plaintiff has identified a number of specific activities and recreational pursuits and day-to-day activities for which he has been taking over-the-counter medication, and that this together with the effects of the prescribed pain relief for his back, has provided him with some relief by way of pain remediation.
156Mr Monti pointed to the plaintiff’s evidence that he purchased an expensive compound bow, only to find that he was unable to pursue the activity of archery, because of the pressure on his neck associated with pulling back the bow.
157Mr Monti submitted that the plaintiff had enjoyed shooting foxes for sporting and conservation reasons, but that he testified that he had not fired a gun since his neck injury.
158Mr Monti submitted that the plaintiff was not challenged about his stated inability to chainsaw firewood for his open fire because of his neck condition.
159Mr Monti also highlighted that of a lesser significance but nonetheless, important, was that the plaintiff had deposed to and was not challenged on some limitations with housework because of his neck, especially reaching up and mopping.
160Mr Monti submitted that undoubtedly the back injury is a severe injury, and the plaintiff after having been hospitalised for three weeks following back surgery, had required the use of a wheelchair. He currently requires the use of a walking stick, and the back interferes with many activities which the plaintiff would otherwise have been able to perform, but that Mr Monti said he “can't do because of the existence of neck pain.”[154]
[154]T101, L1.
161Mr Monti submitted that the extent and the severity of the injury to the plaintiff’s cervical spine should not be understated. He referred to the radiology, which he described as multi-level severe facet degenerative changes, including a disc extrusion at C5-6 on the left and multi-level bilateral foraminal stenosis and high-grade nerve root impingement.
162Mr Monti referred to the operation report by Mr Timms, in which he described having performed an anterior cervical discectomy and fusion, and a partial vertebrectomy and of the pre-operative diagnoses - the C5-6, C6-7 disc osteophyte complex causing left arm radiculopathy.[155] Mr Monti submitted that the operation report identifies that the plaintiff underwent significant surgery to two levels of the cervical spine.
[155] Exhibit P8, PCB 33.
163Mr Monti relied on the report by Dr Akil dated 27 March 2023, whose account is that the plaintiff continues to have persistent left neck pain.[156] Dr Akil described the pain as more often an ache but that worsens on movement of the neck, and with pain that radiates towards the upper part of the plaintiff’s left shoulder and goes all the way to his left arm and to the hand.
[156]Exhibit P3, 19-23.
164Mr Monti accepted that although the plaintiff’s neck pain is less intense than prior to the surgery performed by Mr Timms, it continues to interfere with everyday activity.
165Mr Monti relied on the plaintiff’s evidence that he had performed regular exercises as prescribed by his physiotherapist from the time he recovered from the surgery, including when he went back to work. Furthermore the plaintiff uses a heat pack and a cold pack and he had used a considerable amount of over-the-counter medications for his neck up, until he suffered the back injury and after which he was prescribed pain relief that he also finds beneficial for his neck pain.
166Mr Monti submitted that the plaintiff’s ongoing consequences from his neck should not be diminished by reason of him not having recounted them when he was examined by doctors to whom he was sent for his back injury. Mr Monti questioned why it should be thought that the plaintiff needed to mention his neck pain to doctors to whom he was sent to be examined for his lumbar spine.
167Mr Monti submitted that it would be a very hard judgment to treat the plaintiff’s failure to make a claim for the cervical spine as an adverse consideration, given his explanation. Mr Monti argued that the plaintiff had exercised determination and stoicism to get back to work as soon as he could after neck surgery. He was earning income such that an incentive to submit a claim when the surgery had been paid for by his private health insurer, was not a pressing matter.
168Mr McKenzie in reply, briefly submitted that the plaintiff was challenged in cross-examination in relation to sleep, the lack of prescription medication, and the result of the cervical surgery.
Analysis and findings
169This application calls to be considered in the context of the plaintiff having suffered injuries to the function of the spine, but on separate occasions. Of course, the spinal column in its entirety is a single body part and as a matter of anatomy and of legal principle, should not ordinarily be divided into separate regions for the purposes of paragraph (a) of the definition of serious injury. However, the matter is complicated by the fact that the plaintiff sustained a serious injury to his back subsequent to the development of his cervical neck injury, and in such circumstances, it is necessary that the plaintiff is able to identify each of the injuries sustained by him and to delineate the consequences of each injury, in terms of the pain and suffering consequences.
170Although Mr McKenzie submitted that it would be open for me to find that the plaintiff exaggerated the severity of the symptoms associated with his neck, I think the contention that there was exaggeration, calls to be considered separately from any consideration of the plaintiff’s overall credit.
171I am satisfied that the plaintiff gave a largely credible and honest account of his circumstances. He did not shy away from the fact that in many respects, his lumbar injury is more egregious in its effects on him in terms of pain, than his cervical injury, and indeed, to the point that he is not working because of the state of his back, but he was also adamant that the pain in his neck is itself of sufficient quality and constancy as to separately interfere with his enjoyment of life, and not exclusively by way of pursuits and activities that have been later impacted by his back condition. I accept that the plaintiff’s neck injury continues to visit consequences on the plaintiff, but that fact of itself is not the test for the grant of a serious injury certificate.
172Although in final address Mr Monti initially submitted that the plaintiff’s application is the type of case envisaged by the Court of Appeal in Peak Engineering & Anor v McKenzie,[157] where no disentangling is necessary, he did not explain why. Later, however, when I asked Mr Monti if he accepted that I was tasked with disaggregating the effects of the neck from the effects of the low back, Mr Monti said, “of course.”[158] He accepted that the injury to the low back is, as he put it a “very, very severe injury.”[159] However, Mr Monti submitted that the back injury “undoubtedly interferes with many activities which the plaintiff would otherwise have been able to perform but can't do because of the existence of neck pain.”[160]
[157] [2014] VSCA 67 (‘Peak Engineering’).
[158] T100, L16.
[159]T100, L21.
[160]T101, L1-3.
173The Court of Appeal said in Peak Engineering, that it is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury, that no ‘disentangling’ of the former and the subsequent injuries is necessary.[161] However, this is not such a case because there is considerable evidence that certain of the pain and suffering consequences relied on by the plaintiff, are attributable to the subsequent low back injury, and not the earlier cervical injury.
[161] Peak Engineering [2014] VSCA 67, [25].
174Because I am satisfied that two different injuries occurring at different times are concurrently producing pain and suffering consequences for the plaintiff, I am required to separate out the components of the injury on each occasion of injury, and it is necessary for me to make findings about all of the pain and suffering consequences which are operative at the date of the hearing. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
175A matter of further relevance is the decision of Dressing v Porter,[162] in which the Court of Appeal said that “what his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[163]I have kept this in mind in light of the plaintiff’s evidence in cross-examination when he said, "well, if my neck was 100 per cent I could not now do that because of my back."[164]
[162] [2006] VSCA 215 (‘Dressing’).
[163] Ibid, [47].
[164] T3, L 23-24.
176The Court of Appeal in Dressing went onto say that:
In the second key paragraph of his reasons, the judge concluded, as I noted earlier, that it was difficult, as matters stood, to differentiate the then consequences of the neck injury and the “multiplicity of other conditions which significantly impair [the appellant’s] ability to work and enjoy life”. In my respectful opinion, however, examination of the evidence does not support a conclusion that there was any such difficulty. His Honour’s conclusion did not sit comfortably with his apparent acceptance that the appellant was incapacitated by his neck injury to the extent which he had indicated. In any event, the plaintiff complained, so far as his neck injury was concerned, of pain and disability affecting his neck and left arm. His other main problems were arthritis affecting the left hip – it had already been the subject of successful surgery – and disability of the right knee. The symptoms affecting the hip and knee of which the appellant complained must surely have been susceptible of disentanglement from his complaint of symptoms deriving from his neck injury. The same could be said about symptoms of gouty arthritis affecting the right big toe and joints in the hands. [165]
[165] Dressing [2006] VSCA 215, [48].
177I am satisfied that the plaintiff has separately identified pain and suffering symptoms that are attributable to the ongoing consequences from the neck injury, separate to the ongoing symptoms of his back injury for the reasons that follow.
178I find that in 2017 the plaintiff suffered an aggravation of cervical spondylosis that resulted in left C6 radiculopathy caused by a disc protrusion and foraminal stenosis. Surgery followed in the form of an anterior cervical discectomy and fusion performed by Mr Timms.
179I find that the plaintiff returned to work following surgery, and he remained able to perform his employment as a theatre technician. I note the plaintiff’s evidence in re-examination in which he referred to having encountered certain limitations on the movement of patients from the lateral to supine, the supine to lithotomy, lithotomy back to supine, and pushing the bed back up for the anaesthetist, along with patient transport. However, even accepting these limitations, and I note that they were not identified in the plaintiff’s affidavits, and neither do the complications appear to have been of a quality that warranted a medical attendance or came to be mentioned in clinical notes following the plaintiff’s return to work from neck surgery, I consider that they more sensibly fall into that description that Mr Timms said he discussed with the plaintiff and that required the taking by the plaintiff of sensible precautions, but I am not satisfied they reveal pain and suffering consequences of note.
180I find that when the plaintiff ceased work with Monash Health, he did so because of the consequences of the lumbar back injury suffered in 2021, and not because of his cervical injury, in 2017.
181The plaintiff deposed that his sleep is affected by the ongoing effects of his cervical injury. He deposed that although “the lower back is the more painful, it is very hard to get comfortable with the neck being fused.” He went on to say that “I spend ages in bed trying to find a comfortable position to rest the head and/or neck.”[166]
[166] Exhibit P1, PCB 10, paragraph 28.
182Subsequently, the plaintiff deposed that his “sleep is also still affected. I have purchased a special pillow that has a raised section that fits under my neck and then a lower scooped out section to cradle the head. This seems to help to some extent, although it isn't a total cure. I still have to take medication and lie my head down on the right side if I am to get off to sleep. It is also still inevitable that I will flare up pain during the night when I move the wrong way and will wake up with neck pain.”[167]
[167] Exhibit P1, PCB 14, paragraph 8.
183I am satisfied that the plaintiff’s lower back injury is the substantial cause of the plaintiff’s sleep disturbance and not the neck. The evidence in support of this finds expression, for example, by Dr Dupuche who reported that the plaintiff’s account of his ongoing back condition was of “low back pain radiating to both hips, tingling sensation in the left leg, discomfort in the right hip, cannot sleep lying on his left side or on his back and sleeps on his right side; however, this does not really relieve his pain and he cannot sleep for significant periods. He often wakes at 2 a.m. and cannot get back to sleep.”[168] I accept that the current condition of the neck is such that when the plaintiff is woken by back pain he can experience neck pain. Despite having been taken to histories that recorded the impact of his lower back injury on his sleep, the plaintiff was not challenged on his account that the condition of his neck has resulted in the need for the use of a hollowed out neck supporting pillow. I accept that the plaintiff’s neck is assisted at sleep time with the use of his pillow. Although the plaintiff’s evidence did not identify the frequency with which his sleep is broken either by back or neck pain, the implication from his evidence set out above, is suggestive that his sleep is interrupted more often than it is not. I recognise that regular interference with sleep and the diminution in the recuperative benefits of the same on a consistent basis, is a matter of some consequence. However, I am unable to find that the plaintiff experiences regular disturbed sleep caused by the neck, as opposed to his back or that it is such as to be assessed as more than marked or significant. It seems very much the case that it is his back that wakes the plaintiff, and when he is woken, he may experience some neck pain.
[168]Exhibit D4, DCB 29.
184The plaintiff bred and showed dogs with the pursuit bringing personal enjoyment as well as commercial reward. The plaintiff said he showed dogs up until he suffered his neck condition, and not thereafter.[169] He referred to one instance where he was dismissed from the ring at the Adelaide Royal Show because his neck pain precluded him from bending down and straightening the legs of the dog he was showing, and neither could he run around the ring because of neck pain. However, the plaintiff did not seek any medical attention as a result of it, because he explained, the pain subsided and he relied on over the counter pain medication. However, he said that he has been “totally unable” to show dogs since September 2019.[170] The plaintiff conceded that because of the use of a walking stick caused by his back condition, that irrespective of his neck condition, as matters now stand, he could not bend down to straighten the legs of a dog in show, nor of course could he run around the ring. I accept that the plaintiff no longer participates in the breeding and showing of dogs, and although he identified one occasion whereby the effects of his neck condition was an issue, I find that it is the parlous condition of the plaintiff’s back that prevents the breeding and showing of dogs. There is simply a lack of evidence that permits me to be positively satisfied that the current condition of the plaintiff’s neck would preclude the plaintiff in showing or breeding dogs.
[169] T58, L 1-5.
[170] T59, L 7.
185I accept that because of the plaintiff’s ongoing neck condition, he has proved unable to use the compound bow he purchased to pursue hunting. I accept that the inability do so is capable of being attributed to the restrictions caused by his neck, and the restrictions to his upper body strength in consequence of the pressure at which the bow was set. Whether the plaintiff is precluded for the same reason from the pursuit of archery more generally is not known.
186The plaintiff also testified to having derived enjoyment from growing and exhibiting African Violets, and that this pursuit has been compromised by both his back and his neck injuries.
187The plaintiff said that his breeding of poultry has been “affected,” because it involved the lifting of heavy bags of feed.[171] The extent of this was not better pursued in evidence. However, on balance, it seems this would be more likely than not due to the plaintiff’s back.
[171] Exhibit P1, PCB 44, paragraph 8.
188I accept that the state of the plaintiff’s neck interferes with growing specimen flowers because of the practical requirement to be regularly looking down when engaged in the steps associated with seeding and growing plants, but I am satisfied that the inability to do so, as opposed to difficulties accompanying the same, is due to his restricted capacity to bend due to his back.
189I find that the inability to lift bags of feed is due to the plaintiff’s back and not his neck.
190I accept that the plaintiff’s neck condition to some extent, adversely impacts his driving because of the loss of an unencumbered capacity to turn his neck without some accompanying pain. I accept that the plaintiff’s ability to use the full range of movement of his neck renders the act of driving more problematic, but that limitations in the duration of his driving of a car, is due to his back and not the ongoing consequences of his neck. The plaintiff continues with the ability to drive.
191The plaintiff testified that he had enjoyed shooting foxes with his 12 gauge shotgun, and that this is an activity he was required to cease after the neck injury developed because of the recoil of the firearm. The plaintiff described shooting regularly, that is, one or two nights a week and every weekend, if he was not otherwise showing his dogs. I accept that this is a loss that resonates with him, and it is one attributable to the ongoing effects of his neck injury.
192I accept that the plaintiff’s neck condition continues to visit on him some pain and discomfort when engaged in certain but very limited domestic activities, for example, mopping or reaching up high to cupboards.
193I am not satisfied that the evidence leads to a conclusion that the ongoing effects from the plaintiff’s cervical injury interferes with his capacity for personal self-care, such as being able to wash and dress and cook for himself.
194I am also satisfied that the plaintiff’s lack of travel, such as by plane to Bali, is due to his back and not the pain and limitations occasioned by the extent of his ongoing neck condition.
195The plaintiff is not receiving any treatment for his neck, whether by way of prescribed pain relieving medication or ongoing physiotherapy. However, I accept that it is reasonable to think that the medicines that have come to be prescribed for his back, likely have benefits for his neck, despite the absence of any medical report or opinion of the efficacious and complimentary effects of them for his neck pain, or that any treating doctor is aware of the plaintiff’s use of them for his neck as opposed to his back. However, their frequency of use for the consequential benefits they afford neck pain, as opposed to the back specifically, was not identified. However, I am satisfied that the evidence favours a finding that they are taken for the very bad back pain the plaintiff suffers, and that they have a complimentary and modifying effect on neck pain, as opposed to them being taken on specific and regular occasions for neck pain.
196Because I am satisfied that the plaintiff’s evidence has separately identified pain and suffering consequences that are attributable to the neck injury, then in respect of his application for leave to commence proceedings for common law damages for pain and suffering, the question is reduced to whether the plaintiff has proved on the balance of probabilities that such of the pain and suffering consequence to him, as a result of the impairment to his neck, when judged by a comparison with other cases in the range of possible such impairments, might fairly be described as more than significant or marked, and as being at least very considerable.
197Mr Timms’ historical reporting was that the plaintiff’s cervical spine injury stabilised, and that he had successfully returned to work as a theatre technician following surgery. Mr Timms thought that the plaintiff was likely to have some mild residual neck pain, and some residual restricted range of movement.
198In my assessment, Mr Timms’ prognosis proved accurate, because the plaintiff was able to continue in employment until he suffered the injury to his lumbar spine in 2021, and for which he came to surgery, and which has incapacitated him for employment and is the subject of a separate claim but that is not part of this application. Unfortunately, there is no recent opinion regarding the plaintiff’s neck from Mr Timms or from Dr Madden, the latter of whom in his medical report that was requested by the plaintiff’s solicitors and dated 25 April 2022, wrote that the plaintiff’s neck had “Not been mentioned/consulted about with me or other GP at Emerald Medical Centre since late 2017. Therefore there is no evidence that the cervical spine (neck) condition requires any further treatment or investigation currently.” In any event, such of the reporting of Messrs Timms and Madden when they were attending to the plaintiff’s neck, was that the neck had very largely settled post-surgery.
199I note that Mr Monti challenged why the plaintiff should be criticised, as he was by the defendant, for not having referred to the troublesome state of his neck when he was examined by doctors to whom he was sent by the defendant in regard to his back claim. For example, Dr Remy Glowinski, psychiatrist reported on 24 December 2021, that "Mr Kesper stated there is no significant medical history aside from his back concerns."[172] Dr Lucas, Occupational Physician, in his report dated 22 December 2021, under the heading, "past Injury history,” recounted that, “Mr Kesper outlined a past history of back concerns, confirming he has a previous work injury claim. Mr Kesper recalled no previous leg symptom concerns. Mr Kesper advised a past history of cervical surgery undertaken by Mr Timms in 2017, undertaken privately."[173] Thus, although the plaintiff made Mr Lucas aware of the cervical surgery, the plaintiff did not recount ongoing neck symptoms. Dr Dupuche in June 2022, under the heading of “medical history,” wrote that "the worker stated he had no prior health issues apart from occasional back pain, following work, which he considered to be ‘normal.’"[174] Addressing "work characteristics," Dr Dupuche described back symptoms radiating to both legs, but recounted no issue in relation to the neck. As well, Dr Dupuche addressed limitations on functional capacity and activity/lifestyle in walking, standing, sitting, bending, lifting weight, kneeling, squatting, traversing stairs, and which Dr Dupuche recounted as presenting in the context of the plaintiff’s back condition.
[172]Exhibit D3, DCB 21.
[173] Exhibit D3, DCB 9.
[174]Exhibit D4, DCB 28.
200I think these histories are instructive in the sense that they tend to confirm my ultimate finding, which is that the state of the plaintiff’s neck, does not intrude on him in a manner and to the extent that would satisfy the test for seriousness. Contrary to Mr Monti’s submission, I think it is reasonable to presume that the plaintiff might be expected to have alerted one or other of the doctors refereed to, to the condition of his neck when asked about any previous medical history, despite the examinations being conducted in regard to his back.
201I have considered the effects of Dr Akil’s recent medico-legal report dated 27 March 2023. In his report, he recorded that the plaintiff continues to have persistent left neck pain that the plaintiff described as more often an ache and it is “a consistent ache and worsens on the movement of that, particularly in the p.m. and in the cold.” [175] Dr Akil also recorded that the plaintiff’s neck pain radiated towards the upper part of the left shoulder and “goes all the way to his left arm, all the way to the hand. The pain is less intense than prior to the surgery performed by Mr Greg Timms but he finds it interfering in his everyday activity.”[176] Whether the reference by Dr Akil to radiating pain should be attributed to the cervical condition, given the absence of any reference to it by Mr Timms following on from surgery, nonetheless, such of the interferences or symptoms of pain which I have already addressed that remain from the neck injury, even if on occasions radiating to the left shoulder and left arm and hand, do not elevate the injury to a serious injury.
[175]Exhibit P3, PCB 19-23.
[176]Exhibit P3, PCB 20.
202Dr Akil wrote that on examination of the neck that the plaintiff:
was very reluctant on the movement of his neck towards any direction. There was a severe restriction particularly on the right lateral rotation and the extension of his neck. I noted a previous surgical scar on the right anterior cervical region. He did not have any clear sensory or motor deficit affecting both upper limbs although his deep tendon reflexes were significantly reduced bilaterally.[177]
[177]Exhibit P3, PCB 21.
203However, in addressing the plaintiff’s back, Dr Akil reported that the plaintiff has:
Persistent lower back pain. This pain continues to be severe with radiation towards the left leg all the way to the foot. He is unable to walk around without the aid of a walking stick. He feels that he is unable to do many activities at home and he relies on his partner to do so.[178]
[178]Exhibit P3, PCB 20.
204Dr Akil went on to accumulate the impacts on the plaintiff’s life, but without attribution to the neck, and as reflected in the passage above, it is to the back that he attributed substantial effects to the plaintiff’s everyday life. He also made overall comments about the plaintiff when he said:
He is unable to walk or run his dogs. He used to be very keen on hunting, but he stopped doing so.
He finds it very difficult to drive distances longer than 50 to 60 km.
He lives in an acreage where he relies on his partner to look after it.
He can only sleep on the right side of his body.[179]
[179]Exhibit P3, PCB 22.
205I adopt my reasons expressed earlier in regard to the cause of these impositions experienced by the plaintiff and to which Dr Akil referred.
206My findings have also been informed by Haden Engineering Pty Ltd v McKinnon,[180] in which Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[181]
[180] (2010) 31 VR 1 (‘Haden’).
[181] Dwyer (No 2) [2008] VSCA 260, [27]; see also Stijepic [2009] VSCA 181, [44].
207Adopting that passage from Haden,[182] I am not persuaded that the extent to which pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life, when due consideration is afforded to what has been lost with what has been retained as a result of the neck injury, results in the plaintiff’s losses attributable to it being serious. Although I accept that they are not trivial, I am not satisfied that, for example, the plaintiff can be said to “suffer a continuous substantial level of pain.”[183] Rather, I am satisfied that the plaintiff suffers neck discomfort and there are instances when the pain is elevated, but it certainly does not dominate the plaintiff’s life.
[182] Haden (2010) 31 VR 1, [14] – [15].
[183] Stijepic [2009] VSCA 181, [48].
208Considered overall, even if there are impairment consequences and pain consequences for the plaintiff that could be described as marked or significant, I am unable to accept that the pain and suffering consequences could be said to be at a level where his experience of pain and the impairment consequences of his condition, within the range of possible impairments, can be fairly described as very considerable. In Jiwani v 7 Chefs Pty Ltd,[184] his Honour Judge Purcell said that “there are some cases that are clearly serious, and there are some that are clearly not. There are some that fall somewhere in the middle of the range of possible impairments and impairment consequences, and the proceeding before me is one such example.” I adopt his Honour’s statement. The plaintiff’s case falls somewhere in the middle.
[184] [2023] VCC 1127, [53].
209The application is dismissed.
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