Khizam v Green Made Easy
[2020] VCC 1265
•20 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-04269
| DAVID KHIZAM | Plaintiff |
| v | |
| GREEN MADE EASY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 March 2020 | |
DATE OF JUDGMENT: | 20 August 2020 | |
CASE MAY BE CITED AS: | Khizam v Green Made Easy | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1265 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – leave sought for pain and suffering – extent of pre-existing degenerative spine – whether second injury a separate injury - whether work injury resolved – credibility of plaintiff – whether resolution of work injury – whether impairment due to natural progression of degenerative spine
Legislation Cited: Accident Compensation Act1985 (Vic)
Cases Cited:Altona Bus Lines v Lococo [2002] VSCA 159; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33; De Agostino v Leatch [2011] VSCA 249; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Guppy v VWA [2010] VSCA 164; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Humphries v Poljak [1992] 2 V.R. 129; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65.; Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386; Sabo v George Weston Foods [2009] VSCA 242; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Transport Accident Commission v Florrimell [2013] VSCA 247; TTB Services Pty Ltd v Reading [2020] VSCA 203; Watts v Rake [1960] 108 CLR 158
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni QC Mr L B R Allen | Arnold Thomas & Becker |
| For the Defendant | Mr D Churilov | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff seeks the grant of a serious injury for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) for pain and suffering damages only for injuries to the spine as a result of a work injury in July 2012. He was represented by Mr Morfuni QC together with Mr L Allan of counsel. The defendant was represented by Mr Churilov of counsel.
2 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act.
3 The impairment of body function relied upon is the spine with the injury described in the originating motion as an aggravation of the lumbosacral spine. The spine comprises one body function.
Relevant legal principles
4 The Court must not give leave to a plaintiff 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 s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act.
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
6 To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 24 October 1999;[2]
(b)“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]
(c)the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[2]Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33.
[3]Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33, [33] (Orminston, Chernov and Phillips, JJA) .
[4]Section 134AB(38)(b) and (c) of the Act.
7 The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
8 In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
9 In determining the application, the Court:
(a)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”;[5]
(b)must assess whether “the injury” is a “serious injury” as at the time the application is heard;[6]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[5]Section 134AB(38)(h) of the Act.
[6]Section 134AB(38)(j) of the Act.
[7]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26] (Nettle JA).
10 The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[8]
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
11 Recently, in TTB Services Pty Ltd v Reading[9] Tate and T Forrest JJA said that serious injury in a pain and suffering case is informed by the following principles[10]:
“(a)Serious injury means permanent serious impairment or loss of a body function.[11]
(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.[12]
(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.[13]”
[9][2020] VSCA 203.
[10][2020] VSCA 203, [30].
[11]Section 134AB(37)(a) of the Act.
[12]Section 134AB(38)(c) of the Act. This formulation picked up the language in Humphries v Poljak [1992] 2 V.R. 129 which concerned similar provisions in the Transport Accident Act 1986.
[13]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] (‘Dwyer’) VSCA 260 at paragraph [27] (Ashley JA); Stjepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] (Ashley JA and Beach AJA); Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] (Ross AJA), quoting Dwyer [2008] VSCA 260, [27]).
12 The issues raised by this serious injury application are:
(a)Did the work injury of July 2012 aggravate a pre-existing spine condition of the plaintiff?
(b)If yes to the question (a), do the consequences of the aggravation of the plaintiff’s spine injury, satisfy the narrative test?
(c)Alternatively, did the plaintiff’s work injury of July 2012 resolve and did he suffer a new and separate but non-compensable injury to the spine in November 2014?
(d)Does the plaintiff suffer a permanent serious impairment or loss of the body function of the spine as a result of the July 2012 injury?
Extent of the pre-existing lumbar and cervical spine injuries
13 It was common ground that prior to the work injury in July 2012 the plaintiff presented with pre-existing spinal degeneration. However, there was a significant dispute about the relative severity of it and the consequences to the plaintiff by way of any impairment to its function and its manifestation before July 2012. The plaintiff contended that the pre-existing degeneration was relatively minor in the sense that it was not the subject of any significant or ongoing complaint by him prior to the work injury in July 2012. In fact, he argued his condition was asymptomatic. On the other hand, the defendant’s position was that the pre-existing spine had manifested itself prior to July 2012 with a lengthy history of pain.
14 The determination of this application gives rise to a number of issues including the balancing of some aspects of the plaintiff’s evidence that I found to be unsatisfactory, unreliable and untrue against a medical history that includes radiology relating to the condition of his spine as well as an assessment of the pain and suffering consequences from which the plaintiff presently suffers.
15 Mr Morfuni contended that the application required a decision whether the plaintiff who suffered an accepted work injury in July 2012 was, because of that injury, rendered more susceptible and experienced subsequent acute pain in November 2014 such that he has suffered one serious injury by way of impairment to the function of the spine. The defendant contended, however, that prior to November 2014 any aggravation caused to the pre-existing degenerative state of the plaintiff’s spine by the July 2012 had ceased, such that the better view on the available evidence, is that the plaintiff’s current pain and suffering consequences and work limitations by way of his impairment are unrelated to it but are caused by the ordinary progression of non-compensable degeneration to his spine.
Evidence
16 The plaintiff tendered in evidence and relied on the following evidence:
Lay evidence:
(a)Affidavit of the plaintiff sworn 1 May 2019;[14]
(b)Affidavit of plaintiff sworn 13 March 2020.[15]
[14]Exhibit P2, Plaintiff’s Court Book (“PCB”) 9-16.
[15]Exhibit P2, PCB 17-20.
Medical evidence
(a)Radiology dated 30 July 2012, 17 September 2012, 21 November 2014, 28 November 2014, 18 December 2014, 12 June 2015 and 19 August 2016;[16]
[16]Exhibit P3, PCB 21-29.
(b)Report of Dr Eddy Lam dated 23 July 2012.[17]
[17]Exhibit P4, PCB 30-31.
(c)Report of Dr Gershon Cukier dated 28 August 2012, 29 August 2012, 6 December 2014, 19 January 2015, 15 December 2015 and 28 July 2015;[18]
[18]Exhibit P5, PCB 32-37 and 45-63.
(d)Report of Associate Professor Brazenor dated 23 March 2015 and 3 December 2015;[19]
(e)Report of Dr Arnold Shmerling dated 4 October 2018, 9 July 2019 and 17 February 2020;[20]
(f)Hospital Records of Monash Health variously dated;[21]
(g)Report of Mr Michael Troy dated 24 August 2012;[22]
(h)Report of Mr Timothy Gale dated 28 August 2018;[23]
(i)Report of Dr Peter Blombery dated 7 August 2019;[24]
(j)Report of Dr David Kennedy dated 15 August 2019;[25]
(k)Report of Mr Paul D’Urso dated 22 November 2019 and 12 December 2020;[26]
(l)Report of Dr Catherine Bones dated 17 January 2020.[27]
[19]Exhibit P6, PCB 38-44.
[20]Exhibit P7, PCB 64-72.
[21]Exhibit P8, PCB 72a-72d.
[22]Exhibit P9, PCB 73-77.
[23]Exhibit P10, PCB 77a-77h.
[24]Exhibit P11, PCB 78-82.
[25]Exhibit P12, PCB 83-90.
[26]Exhibit P13, PCB 91-95 and 110-111.
[27]Exhibit P14, PCB 96-109.
17 The defendant tendered in evidence and relied on the following evidence:
Medical evidence:
(a)Report of Associate Professor Graeme Brazenor dated 11 April 2016, 12 August 2016 and 22 September 2016;[28]
[28]Exhibit D1, Defendant’s Court Book (“DCB”) 3-9.
(b)Report of Mr Michael Troy dated 8 September 2012;[29]
[29]Exhibit D2, DCB 10-11.
(c)Report of Mr Armin Drnda dated 16 January 2020 and 13 February 2020;[30]
Other evidence:
(a)Plaintiff’s resume/CV’s undated;[31]
(b)Certificate IV in Training and Assessment from Chisholm Institute including the Statement of Results dated 10 November 2014;[32]
(c)Diploma of Human Resources Management from Holmesglen dated September 2014;[33]
(d)Monash Medical Centre Clayton Emergency Department Records dated 25‑26 November 2014.[34]
[30]Exhibit D3, DCB 12-26.
[31]Exhibit D4, DCB 68-80.
[32]Exhibit D5, DCB 81-82.
[33]Exhibit D6, DCB 88.
[34]Exhibit D7, DCB 91-93.
18 I have read and considered all the evidence relied on by the parties and I have considered the oral evidence of the plaintiff in affidavit form and under cross-examination and in re-examination together with the respective submissions made by counsel in final address.
The plaintiff’s case
19 Mr Morfuni opened the case on behalf of the plaintiff on the basis that he suffered “an aggravation, acceleration of pre-existing degenerative changes in his spine” in respect of “injury suffered by him in the course of his employment with the defendant, and in particular on or about 12 July 2012.”[35] The plaintiff’s “Particulars of Injury” reflected the substance of the Senior Counsel’s opening address and were expressed relevantly as follows:
For the purposes of establishing that the Plaintiff has a serious injury, he relies upon Sections 134 of the Accident Compensation Act 1985 and/or Section 325 (1) of the Workplace Injury Rehabilitation and Compensation Act 2013 of the definition of serious injury, and in particular: injury to the lumbosacral spine, and related consequences, including but not limited to the onset and/or aggravation, acceleration or exacerbation of degenerative changes; an injury to lower back, including but not limited to the onset and/or aggravation, acceleration or exacerbation of the degenerative changes.[36]
[35]Transcript (“T”) 1.
[36]Exhibit P1, PCB 8.
20 In short, Mr Morfuni argued for a finding by the court of a serious injury that occurred in July 2012. Mr Morfuni then referred to events in November 2014 when the plaintiff was at home. He characterised what occurred at that time as “another flareup of back pain whilst at home”[37] and not a new injury or a further aggravation of the July 2012 work injury. Mr Morfuni’s description of November 2014 as “another flareup” was intended to attach to it by way of cause a vulnerability occasioned to the plaintiff’s lumbar spine by the July 2012 injury. He apprehended that the defendant would argue that the “flare up” in November 2014 coming so long after the July 2012 injury was evidence that the causal connection with the July 2012 injury had been severed and that the consequences the plaintiff now experiences are not due to a progressive worsening of the plaintiff’s spine caused by the 2012 injury but rather the natural progressive deterioration of a previously degenerative spine that is apt to, and will continue, to be susceptible to intermittent pain episodes. As the defence of the application unfolded, Mr Morfuni’s apprehension proved true.
[37]T2.
The defendant’s primary contention
21 The defendant indeed contended that the causal connection had been severed between the July 2012 work injury and the plaintiff’s current impairment. Although not seeking to avoid the fact that July 2012 was an accepted work injury, Mr Churilov submitted, that the work incident of July 2012 was no greater than having caused a temporary exacerbation of the plaintiff’s pre-existing symptomatic spondylosis of the lumbar spine and that its effects had resolved well prior to November 2014. The defendant submitted such an analysis is consistent with the imaging taken in July 2012 which revealed the presence of lumbar disc desiccation at L4/5 and L5/S1, posterior osteophytes observed at L5/S1 and foraminal narrowing and also disc bulging and evidence of annular disruption. In short, the plaintiff’s presentation on radiology following the July 2012 injury was, so the defendant contended, consistent with degeneration caused by wear and tear.
22 The defendant also pointed to the plaintiff having experienced not one but two incidents of back pain in November 2014 and a mere four days apart with both episodes occurring while he was at home in apparently benign settings, and submitted that this amounted to significant evidence to support its principal contention that the effects of July 2012 had been extinguished well before November 2014 and that the events of November 2014 were caused by the progressive degradation of the plaintiff’s spine.
23 The defendant also relied on the fact of the plaintiff’s capacity to engage in work for a substantial period of time commencing not long after the July 2012 injury and up to the incidents in November 2014 as further evidence to support its analysis that the July 2012 injury was not a serious injury and the nexus with an ongoing work injury from July 2012 was less probable than not, and therefore, the plaintiff had failed to discharge his burden of proof.
24 In summary, the defendant submitted that the plaintiff did not suffer a serious injury in July 2012 and the incidents in November 2014 were not flare ups of it, and neither did they amount to an aggravation of the July 2012 injury.
The plaintiff
25 The following history is derived from the plaintiff’s affidavits together with some matters taken from Mr Morfuni’s opening address. The plaintiff is aged 43. He was born in South Australia. After leaving school he trained as a Sound Engineer, however, the development of hearing problems put paid to that as an ongoing career. He subsequently obtained employment as a mechanic, which he said he worked at for 15 years following the completion of his secondary schooling[38] as well as in other manual occupations. He has worked as a storeman, delivery driver and commercial painter.[39] He has operated his own businesses in car restorations and worked at Holden’s Special Vehicles Unit (“HSV”) and undertaken work as an audio event installer.
[38]T11.
[39]T11.
26 Although I ultimately formed an unfavourable view of the plaintiff’s willingness to give direct and truthful answers to a number of questions posed of him under cross-examination, I accept that by all accounts he has worked hard over the course of his adult life.
The 2012 work injury
27 The plaintiff commenced employment with the defendant as an energy plug installer in May 2012. Very shortly afterwards, in July 2012, he suffered an injury when he lifted a box out of the boot of his car and felt what he described a “pop” in his lower back with accompanying pain in his back. In the course of final address, Mr Churilov made a submission referable to some answers given by the plaintiff in cross-examination in an effort to draw a relevant comparison between what he contended was the relatively innocuous actions that triggered the plaintiff’s back pain in July 2012 and also in November 2014, thereby to suggest that the plaintiff’s back problems were more consistent than not with a pre-existing and progressively degenerative spine. It was a long bow to draw based on the questions asked. The questions and answers on the point were not in any event sufficient to enable me to form an opinion about the method of injury in July 2012 or in what work activities the plaintiff was involved. At all events, the necessary nexus with work was considered sufficient to have resulted in an acceptance of the workers’ claim and payments to him by the defendant under the prevailing statutory benefits regime. Of course, the payments of benefits will not ordinarily prevent a defendant from putting causation in issue at any subsequent trial.[40]
[40]See Transport Accident Commission v Florrimell [2013] VSCA 247.
28 Following the July 2012 injury the plaintiff was off work for a time. After making efforts at a return to work on light duties his employer was unable to maintain his employment.
29 Despite the termination of his employment the plaintiff searched for work through employment agencies. He said he was rejected for some jobs but eventually returned to work and it appears that he performed work throughout 2013 and 2014. In 2014 he also obtained tertiary qualifications. He explained that he did some warehouse forklift work through agencies as he possessed a forklift licence. He described the work as difficult because of his back pain. He said he was bounced around on the forklifts which made his back pain worse. He said he called in sick sometimes and finished shifts early a few times because his pain was too bad to keep driving the forklift. There is no evidence of any medical attendances by the plaintiff during this period. His account of a worsening of his back pain at this time occurred subsequently to a history of a substantial improvement he experienced between July 2012 and September 2012. In late 2013 and in 2014, on one version of the plaintiff’s evidence, it appears that he was predominantly engaged in work with Holden at Clayton, although trying to do one’s best with the plaintiff’s evidence, there is significant uncertainty about the precise period of time he undertook this work. He also was working for his own business.
The progress of radiological investigations and reporting since July 2012
30 In the ordinary course and following his July 2012 work injury the plaintiff attended on his doctor and there followed radiology. It is necessary to address a good part of it, which I will do, chronologically.
31 I note the findings of the CT lumbar spine report dated 30 July 2012[41] with the stated conclusion of:
Left paracentral disc bulge at L5/S1 indents the thecal sac and extends to the left exit foramen which is narrowed. Left paracentral disc bulge at L4/5 indents the thecal sac and extends to the exit foramen. Mild broad-based posterior disc bulge at L3/4. Posterior osteophytes are seen at LS/S1.[42]
[41]Exhibit P3, PCB 21.
[42]Exhibit P3, PCB 21.
32 I note the findings of the MRI lumbar spine report dated 17 September 2012[43] and the conclusion expressed as follows:
Desiccation of the lower three lumbar discs associated with varying degrees of disc bulging and annular disruption especially at L4/5. At L5/S1 there is foraminal narrowing but predominantly on the left rather than the right.[44]
[43]Exhibit P3, PCB 22-23.
[44]Exhibit P3, PCB 23.
The 2014 incident
33 In November 2014 whilst at home the plaintiff experienced further acute low back pain radiating to both legs but felt more severely in the right leg.
34 I note the findings of the CT lumbar spine report dated 21 November 2014[45] that was expressed as follows:
At L5/S1, the endplate osteophyte arising from S1 is noted in the central and left paracentral position. There is a broadbased disc protrusion associated with this and an osteophyte extends into the neural foramen bilaterally. The left L5 nerve root exits freely. There is a superiorly extruded or sequestered disc fragment arising at the medial aspect of the right foramen, extending superiorly and compressing the right exiting L5 nerve root. This is likely responsible for the patient’s sciatica.[46]
[45]Exhibit P3, PCB 24-25.
[46]Exhibit P3, PCB 24-25.
35 I note that the plaintiff underwent a CT-guided nerve root injection of the right L5 nerve root on 28 November 2014.
36 I note that the plaintiff was referred to Dr Goldschlager, neurosurgeon, for an opinion. I note the findings of the MRI lumbar spine report dated 18 December 2014[47] and the conclusion of:
L5/S1 disc disease most likely responsible for the patient’s clinical symptoms.[48]
[47]Exhibit P3, PCB 27.
[48]Exhibit P3, PCB 27.
37 I pause here to note that the plaintiff sought a further opinion about his condition from Associate Professor Brazenor who on 23 March 2015[49] reported that the plaintiff was faced with the option of either a two level fusion or to alter his life in such a way as to accommodate living with the pain of his condition. Associate Professor Brazenor advised the plaintiff that a two-level fusion with motion limiters across the L3/4 is a substantial medical procedure. The plaintiff has elected to live with and accommodate his pain and restrictions.
[49]Exhibit P6, PCB 38-39.
38 I note the findings of the MRI lumbar spine report dated 12 June 2015:[50]
Broad-based central disc protrusion at L5/S1 with minimal indentation on the theca but without displacement of the S1 nerves. There is superior migration of disc fragment within the foramen measuring approximately 1 cm in size with high grade compromise of the exiting right L5 nerve in the right L5/S1 foramen. These appearances are unchanged since previous MRI dated 18/12/2014.[51]
[50]Exhibit P3, PCB 28.
[51]Exhibit P3, PCB 28.
39 I note the findings of the MRI lumbar spine report dated 19 August 2016[52] with the conclusion that:
The size of the L5/S1 disc protrusion and the degree of mass effect of the right S1 nerve and the right L5 nerve is dramatically reduced in comparison to previous MRI dated 11.06.2015.[53]
[52]Exhibit P3, PCB 29.
[53]Exhibit P3, PCB 29.
Personal and social history
40 The plaintiff lives alone. He has no children. He described an array of previous hobbies including martial arts, training with free weights, hiking and water-skiing.
Current limitations and tolerances of activities
41 The plaintiff said that he no longer undertakes his previous hobbies. He described difficulties with physically intimate relationships. He can stand if he varies between standing and walking and sitting for about 4 hours and he can tolerate sitting for 30 minutes.
42 The plaintiff uses a Pilates Reformer machine and has lost weight. He describes chronic and constant low back pain, aggravated by bending, twisting and prolonged sitting. He describes numbness in his right foot and a throbbing pain in both legs that wakes him at night.
43 The plaintiff deposed that since the July 2012 injury the pain he experiences in his back varies in its severity. He described an aching and throbbing sensation in his back. The pain is sharp if he moves suddenly. There is pain around and down his calves. His feet often are numb and tingly. The pain and symptoms are worse on his right side and the pain makes him much more conscious of his movements than he used to be before the work injury. He said he has continual aching back pain. It gets worse with certain movements and staying in one position for too long. He said that he continues to experience numbness, mostly in his right foot and right big toe. He experiences pain in his legs.
44 He is careful getting up and sitting down because doing so quickly can cause sudden pain. He will avoid bending, reaching and lifting because they tend to worsen his pain. He is much more careful on stairs and uneven surfaces than he used to be. He looks for things to hold on to.[54]
[54]Exhibit P2, PCB 13.
45 He says his sleep is affected by the back pain. It takes a long time to get comfortable enough with his back and legs in the right position to enable him to fall asleep. He doubts he has slept longer than 4 hours uninterrupted since the work injury. He will often wake up in the night from pain and on average a couple of times per night. Sometimes the pain experienced when lying down means he cannot stay in his bed.[55]
[55]Exhibit P2, PCB 13.
46 He described that his back injury has affected his sex life. He described feeling down about himself and his sexual ability.[56]
[56]Exhibit P2, PCB 14.
47 He described that since the work injury he dresses more slowly, and it is difficult to reach to put on his shoes and socks.[57]
[57]Exhibit P2, PCB 14.
48 He said that he struggles with a lot of chores at home. Although he can still cook, he will sit down to chop things and avoid lifting heavy pans. His partner used to do the vacuuming because it caused him too much pain. Her younger brother would come around to mow the lawns because he struggled to push and pull the mower. He will wash the outside windows rather than wiping them down as he had done in the past.[58] Laundry has become a slow process. He is required to hang his laundry to dry at waist height.
[58]Exhibit P2, PCB 14.
49 He said that before his injury he had no difficulty walking his two dogs, but he now struggles to control them on a lead and his partner’s brother, or his partner would walk them.[59]
[59]Exhibit P2, PCB 14.
50 He said he used to enjoy owning cars, working on his own cars, and driving. Since his injury he said that working on his cars has been much less enjoyable because reaching and lifting tends to worsen his back pain. He said he sold his manual gearshift car and bought an automatic as pushing the clutch was too difficult because of his back symptoms. He sold his motorbike because it was too hard to ride safely with the pain to his back and legs.[60]
[60]Exhibit P2, PCB 14-15.
51 He used to enjoy driving to Adelaide to see his mother but that has ceased because his pain tends to get a lot worse when he drives for a long time and that operating the pedals and doing head checks can cause him sharp pain.[61]
[61]Exhibit P2, PCB 15.
52 He described pursuits he once enjoyed including kicking the football at barbeques at Christmas, go kart racing, and martial arts to keep fit.[62]
[62]Exhibit P2, PCB 15.
53 He described how his partner liked to be active including hiking, but he could not. He said the relationship with his partner ended about Christmas 2018, and she moved out with the result that he has been left to do things such as walking the dogs and the heavy housework. He has flatmate who does help to some extent with the housework and with the dog walking.
54 He said he will work on cars as a hobby when his back feels up to it. He can still do mechanic’s work, but not at the speed that would be required if undertaken in a professional setting. He will tinker with his own cars, and also with mates’ cars which he said he particularly enjoys and in addition it helps to some extent in taking his mind off his back injury and his overall situation. He buys and sell car parts to friends to try and earn a bit of money to keep myself going.
55 He said that he worked for about four weeks at Sydney Tools. He applied for a sales role but when he arrived, he discovered that the role involved a lot of merchandising of heavy tools and equipment and he resigned.
56 He said he is presently employed by a training company, Progressive Training, as a subcontractor. He described the work as including running training courses in the construction industry, helping people obtain their “white cards” and traffic control qualifications and associated matters. The employment is not at all regular. Whilst some weeks he might work for two days, months can pass with only one shift. A day will usually be about 6 or 7 hours long, with breaks. He said, “I try my best to move around and alter my posture and stretch when I can”,[63] but it is taxing on his back and he feels tired and sore at night and into the next few days.[64]
[63]Exhibit P2, PCB 18-19.
[64]Exhibit P2, PCB 18-19.
57 He said he has not told Progressive that he has a back injury because he was having trouble getting sufficient enough hours to stay afloat and he said he tries not to let on about his injury when running a course.
58 In terms of his current treatment, he said he is largely trying to follow the advice of Dr Brazenor, who he said had some “rules for living” to follow. He said he is tries to watch his posture and avoid bad positions and movements for his back.
59 He said that he rotates through Paracetamol and Ibuprofen, with Endone available on bad days. He takes Lyrica. When he experiences a bad day, he will take 3 to 4 Endone and then will be pretty useless for the remainder of the day. On the days that he does not take Endone, he will take one or other of the other two medications.
60 He continues to see his GP, Dr Schmerling.
61 He continues to also attend Reformer Pilates about 3-4 times a week.
62 He said that apart from the pain and restrictions, another consequence of his back injury that has hit home in recent times is not being able to work any longer as a mechanic. He said that for much of his life, he worked as a motor mechanic, starting his adult apprenticeship with British Aerospace Australia and finishing it with RPL. The work had been patchy in the years before he was injured but he said he had still been looking to continue with it. He said he enjoyed the team environment found in a “shop”, and he derived a lot of satisfaction out of fixing things and a job well done.
Current complaints and capabilities
63 He described constant low back pain and stiffness with a pain level of 3-4/10 on average with pain that radiates into the right buttock and down the back of the right thigh and calf and it now occurs on the left side occasionally with tightness in the calf muscle. He has weakness in his right great toe. His right leg feels weaker, especially when pushing down with his right foot. He is restricted with his manual handling capacities and capabilities up to about 10kgs to 12kgs.
An evaluation of comparative findings of X-rays, CT scans, MRIs and other radiological tests relevant to the lower back injury from July 2012
64 The findings of imaging by CT scan and MRI in 2012 identified desiccation of the three lower lumbar discs with varying degrees of disc bulging and annular disruption, especially at L4/5. Posterior osteophytes could be seen at L5/S1. At L5/S1, there was foraminal narrowing but predominantly on the left rather than the right. In short, the imagining was consistent with degeneration and of disruption.
65 By November 2014, imaging by CT scan demonstrated endplate osteophyte formation at L5/S1 as well as focal disc protrusion and moderately severe compression of the exiting right L5 nerve root secondary to a focal disc protrusion with extruded or sequestered fragment extending superiorly in the medial aspect of the neural foramen.
66 By 2016, the imaging by MRI suggested a reduction in the size of the disc protrusion and a reduction in the degree of mass effect (compression) to the right S1 and right L5 nerves.
The plaintiff cross-examined
67 The plaintiff was in many respects unimpressive. I formed an unfavourable view about the extent of his candour in answer to a number of questions asked of him under cross-examination and I made this clear to Mr Morfuni in the course of his final address. My reasons will explain why I formed an adverse opinion about the plaintiff on such matters.
The Monash Health attendances in November 2014
68 The plaintiff was questioned by Mr Churilov about his attendance at the Monash Health on 26 November 2014 following an episode of back pain at his home on 25 November 2014.[65] The plaintiff agreed he had attended the Monash Health after suffering a severe episode of back pain when he was in the process of sitting down on the end of his bed when he heard a “pop” in his back followed by “excruciating pain.”[66]
[65]Exhibit D7, DCB 92.
[66]T11.
69 The Monash Health recorded “one day history of acute exacerbation of chronic lower back pain”.[67] However, it also included a reference to what proved to be a very contentious aspect of the evidence, which was that he “has suffered 15 years of chronic back pain.”[68] The plaintiff disagreed that he had volunteered this history and said he had no idea where it had come from.[69] The relevance of the indicative long history was to place the defendant’s focus on the plaintiff’s back prior to the episode at work on 12 July 2012 and as its probable cause for the events in November 2014.
[67]Exhibit D7, DCB 92.
[68]Exhibit D7, DCB 92.
[69]T13.
70 The plaintiff not only denied having given a history of 15 years of back pain, he also denied having suffered any back pain before commencing work with the defendant in 2012 or “any lower back pain at all”.[70] However, in his first affidavit, he deposed that “over the years I have had some shoulder pain and back pain”.[71] He sought to explain this apparent contradiction by saying that he had experienced some shoulder pain “as anyone that does labouring work would have,”[72] and that what he had intended to say was that he had not previously experienced “…extreme back pain..”.[73]
[70]T14.
[71]Exhibit P2, PCB 10.
[72]T15.
[73]T15.
71 The Monash Health typed record also disclosed that the plaintiff “has not had success in LBP” [lower back pain management] “for the past 15 years, sees GP and tried PT” [physiotherapy].[74] The plaintiff denied he gave this account to the hospital.[75] Nonetheless, within that record, as can be seen, there are two separate references to a 15 year history of unsuccessful management.
[74]Exhibit D7, DCB 92.
[75]T21.
72 The plaintiff did not assist his case in the course of his cross-examination by engaging in what I would charitably describe as “sparring” with Mr Churilov regarding his understanding of the intended reach of questions put to him about a past history of back pain. I am satisfied that the plaintiff understood counsel’s questions. I am also satisfied that he engaged in discursive responses to counsel’s questions rather than directly respond to them. I found this unhelpful in undertaking my task. For example, in trying to better explain his answer when asked by Mr Churilov, if before May 2012, he had experienced any back pain, he said that he had understood the question to be, whether prior to May 2012, he had experienced back pain of the severity he had when he was “at the hospital”[76] and that he “didn’t think you were talking about just sort of general daily working aches because you have worked hard, no I didn’t”.[77] When it was suggested to him by Mr Churilov that the “position is you did have back pain over the years prior to commencing work with the defendant” the plaintiff said, “I don’t understand what you mean by back pain exactly”.[78] I do not accept that the plaintiff was confused or misunderstood what he had been asked especially as he had deposed in his affidavit that “Over the years I had some back pain.” When his words were put to him, he said, “I meant in the general course of labouring and doing the work that I do which is some very heavy work, as you can see. I have had evenings where I have come home and I have been sore because I have worked so hard all day, but I have never had any specialised or specific back pain, specifically not in my lower back.”[79] I found the plaintiff’s attempts to parse his evidence disingenuous and it did not engender confidence in me in accepting his uncorroborated evidence on other matters of importance.
[76]T15.
[77]T16.
[78]T16.
[79]T16.
73 The plaintiff was asked whereabouts, if not “specifically,” in his lower back his back pain was located, and he answered, “Normally in my shoulders, shoulders and neck.”[80] When questioned further he said, “Upper, upper back, from lifting.”[81] Mr Churilov suggested to the plaintiff that his intention in his first affidavit had been to convey that he “had shoulder pain and upper back pain because of heavy work you have done over the years”[82] to which at first he agreed, but he then contested that he had suffered “that kind of shoulder pain and specifically upper back pain [that] went back many, many years to something like 1999”[83] and maintained that he had not had “15 years of back pain,”[84] and that such a suggestion would be “completely and utterly wrong”.[85]
[80]T16.
[81]T17.
[82]T17.
[83]T17.
[84]T17.
[85]T17.
74 The plaintiff’s account in oral evidence is not only at odds with the Monash Health record. Mr Drnda is a consultant neurosurgeon to whom the plaintiff was sent for medico legal examination on behalf of the defendant. Mr Drnda reported on 16 January 2020[86] that the plaintiff had “…suffered back pain on and off in the last 15 years but stated that this pain was mild compared to his injury in 2012.”[87] The plaintiff denied telling Mr Drnda anything of the sort and said, “absolutely not”[88] or that he had referred to historical pain in his back as “mild” by comparison. The plaintiff said, “I told him – I was quite clear, I said the pain can be very, very bad on some days, some days it is less, some days it is more depending on what I’ve done or what I’ve done the day before”.[89] The plaintiff denied that Mr Drnda asked him anything about the quality of his back pain over the years before 2012[90] and only that he had been asked what was his “pain on a daily basis”[91] although he subsequently said that he had been asked by Mr Drnda “if I have ever had pain in the past, back pain,”[92] to which he answered, “no”.[93]
[86]Exhibit D3, DCB 12-24.
[87]Exhibit D3, DCB 15.
[88]T18.
[89]T18.
[90]T18
[91]T19.
[92]T19.
[93]T19.
75 The plaintiff denied that prior to 2012, the pain deposed to in his affidavit in “my shoulders and back”[94] had “been over many years, it’s just been a couple of occasions”[95] and “It wasn’t an ongoing thing, no”.[96] He agreed with Mr Churilov that if this was the case, then his affidavit could have been more accurate and he explained away his less than ideal description as that, “I’m not particularly good with words, I apologise for that”.[97] Mr Churilov returned to the report of Mr Drnda and asked the plaintiff whether the doctor had inquired “at all about the nature and quality of the back pain that you felt over the years prior to July 2012”.[98] Whereas the plaintiff had earlier answered, “No, he did not”[99] he now said, “Not that I recall”.[100]
[94]T20.
[95]T20.
[96]T20.
[97]T21.
[98]T21.
[99]T18.
[100]T21.
A closer examination of the events at home of November 2014
76 The Monash Health notes also recorded that when the incident occurred at the plaintiff’s home on 25 November 2014 he had been scheduled to have a cortisone injection on 28 November 2014. The hospital note identified the relatively innocuous circumstance of the incident in which the plaintiff had gone to sit on a chair when he experienced a “sudden onset of excruciating pain”.[101] Four days earlier, on 21 November 2014, the plaintiff’s then general practitioner, Dr Cukier recorded that the plaintiff had “presented to me on 21 November 2014 with severe back pain radiating in a sciatic mode to the right leg”.[102] The evidence at the hearing of the plaintiff’s application elicited no further or better account of the circumstances in which the onset of severe pain occurred on 21 November 2014.
[101]Exhibit D7, DCB 92.
[102]T23.
Making sense of the timeline of events
77 On 26 November 2014 the plaintiff presented at Monash Health with one days’ history of pain from sitting down at home and he had also attended on Dr Cukier on 21 November 2014 complaining of severe back pain radiating in the sciatic mode to the right leg.
78 Prior to the plaintiff’s attendance on Dr Cukier on 21 November 2014, he had not seen any doctor since 18 September 2012. He was asked by Mr Churilov if he had seen any other practitioners during this period of time and he said he thought he had, on one occasion, but he could not remember the name of the doctor or the clinic he attended but that it was “off Wellington Road, I’m not sure of the name.”[103] He said he thought he had just been to the clinic once and that he might have seen “two doctors in total”.[104] I am unwilling to accept the plaintiff’s evidence. No evidence was led of any attendance or treatment or prescribed medication from such a clinic. I am satisfied that the plaintiff did not attend any medical practitioner between September 2012 and 21 November 2014.
[103]T27.
[104]T27.
The plaintiff undertakes work subsequent to the July 2012 injury
79 Dr Cukier in a handwritten report dated 15 December 2015 mentioned having asked the plaintiff about his work in period from 8 September 2012 up until his attendance on him on 21 November 2014 with pain. He wrote that the plaintiff told him that, “over this time he was working on and off doing full-time work at different jobs”[105] and that “he had done heavy physical labouring, he had done contract work as a mechanic and prior to Oct 14 he worked for himself as a mechanic doing heavy physical work.”[106] When Dr Cukier’s report of the plaintiff’s work history since his July 2012 injury was put to him, he once again cavilled with counsel. Mr Churilov asked the plaintiff if he had told Dr Cukier that from September 2012 to November 2014, he had done heavy physical labouring. The plaintiff said, “I was doing the normal course of work that I’ve done since-yes, many years.”[107] When he was asked to address specifically whether he had done heavy physical labouring work he said, “like I said, that’s not the way I speak so I wouldn’t have said heavy physical labour, no.”[108] When then asked if he had told Dr Cukier he was doing heavy physical work he said, “I would have told him I was doing mechanical work and storeman and work on things like that.”[109] He added, “I do not recall saying to him heavy physical work, those exact words, no.”[110] He was asked if he regarded mechanical work as equating to heavy work, and he said “sometimes, yes.”[111] He added, “I did all sorts of things, yes”[112] in the period since September 2012 to November 2014.
[105]Exhibit P5, PCB 52.
[106]Exhibit P5, PCB 53.
[107]T28.
[108]T28.
[109]T28-29.
[110]T29.
[111]T29.
[112]T29.
80 The plaintiff agreed he had worked as a contract mechanic during the period September 2012 to November 2014.[113] Prior to October 2014, he had also worked on his own account as a mechanic. He said, “I have always done a bit of side work to try and make extra money, yes.”[114] The plaintiff was asked if from September 2012 to November 2014 he had only undertaken mechanical work on his own account, and he said “Yes, pretty much.”[115] He was asked whether the work was undertaken by a business, “Autohaus LLC”, and he said it was.[116] He described this as his own business and it had been for many years.[117] It seems he registered it in September 2013.[118] It was involved in the maintenance and restoration of old and classic and modified vehicles. He said he also undertook scheduled and serviced bookings and sales and freight of parts to local and overseas customers as part of this business.[119] He was asked if the work of the business was heavy work, and he said “not all of it was but generally at times, yes.”[120] He was then asked about a company called, “Avid Design”, which he explained was a company that installed high-end audio.[121]
[113]T29.
[114]T29.
[115]T30.
[116]T30.
[117]T30.
[118]T30.
[119]T30.
[120]T31.
[121]T31.
81 The plaintiff was questioned about his resume that represented work he had done for Avid Design. He was asked if he was employed as a sales consultant and an installer for Avid Design from 2012 to 2014. The plaintiff evidently alert to the document from which counsel was cross-examining said, “If I may, the resume you’re reading from is slightly embellished, he is a good friend of mine that owns a company that puts in audio and occasionally I help him.”[122] He added that “yes, there is some slight embellishment to try and make it look a little bit nicer and more employable, yes”.[123] He said he only did one job every month or two and maybe a day or two’s work.[124] He thought the first job he did with Avid Design may have been in the late 1990s.[125] When asked if he worked for Avid Design from 2012 to 2014, he said, “on one occasion, yes.”[126] He refuted the suggestion that because the resume identified a two-year period of work with Avid Design, whereas, in fact he had only done one job, it would be misleading to any prospective employer who would read it.[127] He was asked specifically about the one job he had performed with Avid Design in the period 2012 to 2014. He described it as a job installing a “Christmas show” at the Tivoli Hotel in Adelaide by way of the connecting of audio-visual systems[128] and said it was “not a great deal of physical work”.[129]
[122]T31.
[123]T31.
[124]T32.
[125]T34.
[126]T34.
[127]T35.
[128]T38.
[129]T38.
82 Other work the plaintiff agreed he had performed in the 2012 to 2014 period apart from in his own business of the restoration of vehicles was some “labour hire work during that time.”[130] That labour hire work included the forklift work, and truck driving work referred to earlier in the plaintiff’s affidavit, and as well through Skilled Workforce Limited, from August 2013 to May 2014, when it seems he was placed at the HSV factory in Clayton performing assembly modification and repair of vehicles and receiving stock from suppliers into the warehouse. He said he only needed to sign in deliveries and not store them away. He described the assembly modification repair work he performed as “very mild work”[131] saying that some of it was hard work and some of it was easier.[132]
[130]T38
[131]T39.
[132]T40.
The plaintiff undertakes study in addition to work
83 In addition to the various and substantial amount of manual work detailed, the plaintiff also undertook study. In September 2014, he completed a Diploma of HR Management from Holmesglen TAFE.[133] He said it took him a year to complete and required his attendance on site from anywhere between three to six or seven hours four times a week.[134] The plaintiff also completed a Certificate IV in Training Assessment from Chisholm Institute. He described this as a short ten day course that he undertook directly after he finished his Diploma of Human Resources.[135] He said it was completed by 10 November 2014.
[133]T40
[134]T41.
[135]T44.
84 The plaintiff was asked if he was working as at 25 November 2014 when he experienced the episode of pain at home. He said, “I don’t know, I was working for one of the companies that I work for.”[136] However, he also testified that he had not been working at that time.[137]
[136]T44.
[137]T44.
85 The plaintiff’s current treating General Practitioner is Dr Shmerling with whom he commenced as a patient in August 2018. In a report to the plaintiff’s solicitors dated 17 February 2020 Dr Shmerling wrote:
Over the following couple of years he worked various jobs, but was constantly troubled by back and leg pains and had lots of time off. He then had a second incident with low back pain associated with an ‘audible pop’ when he was sitting on the end of a bed. The pain was severe and he fell to the floor and went to the Monash Medical Centre where he spent 2-3 days. He had been working as a vehicle builder around that time.[138]
[138]Exhibit P7, PCB 69.
86 The plaintiff accepted the reference by Dr Shmerling to the second incident was intended to refer to the November 2014 incident. He was asked if he had given Dr Shmerling such an account and he said, “I think-yes, I said to him-he asked me what I was doing prior to that and that’s what I told him, that’s what I could remember, yes.”[139] Accordingly, Dr Shmerling recorded that at around the time of the incident at his home in November 2014 the plaintiff was working as a vehicle builder. I have also paid regard to the reference by Dr Shmerling that the plaintiff was required to have “lots of time off” because he was “constantly troubled by back and leg pains.”
[139]T45.
87 The ability to arrive at an accurate determination of work and study undertaken by the plaintiff in the middle and latter part of 2013 and 2014 proved difficult and ultimately remained uncertain. The difficulty and uncertainty were occasioned by the plaintiff’s inconsistent and varying evidence. At one point the plaintiff said he had been engaged in study for the whole of 2014, whilst elsewhere, he said he been engaged in study at least up to September 2014, and that “while I was studying, no, I didn’t perform any work”.[140] When asked if he could explain why if he had been studying the whole of 2014 he would have told Dr Shmerling that he was performing vehicle building work “at around” the time of the November 2014 incident, he replied, “I don’t believe that’s what I said”[141] despite having earlier expressed faith in Dr Shmerling to have recorded accurately what he had told him.[142] When he was asked if he agreed that if he was not working at the time of the November 2014 incident then Dr Shmerling’s account must be wrong, he said, “obviously some information was misconstrued, yes”.[143] He added, “Yes, but I have had many conversations with people that don’t work in my industry and sometimes the way we speak about the industry and others understand it, is a different thing.”[144] Nonetheless, accounts that suggest that the plaintiff had been working when he experienced the pop in his back at home in November 2014 was not confined to Dr Shmerling.
[140]T47.
[141]T47.
[142]T45-46
[143]T47-48.
[144]T47.
88 The plaintiff was directed by Mr Churilov to his attendance at the request of the defendant’s solicitors on Mr Gale, a General and Trauma surgeon for an assessment in August 2018. Mr Gale provided a report dated 28 August 2018.[145] In connection with the plaintiff’s work subsequent to his employment with the defendant Mr Gale recorded:
The worker then apparently had a number of different jobs including working as a forklift driver, he worked in car assembly for a period of time, and he had a further back injury in about 2015 or 2016 when working as a motor mechanic.[146]
[145]Exhibit P10, PCB 77a-77h.
[146]Exhibit P10, PCB 77b (the reference intended to be the “second incident” that of November 2014).
89 Mr Gale continued:
He states that after work one day ‘my back popped’ with severe pain in the lower back radiating to both legs.
90 Mr Gale’s account of history unlike Dr Shmerling’s does not make mention of the plaintiff having experienced episodes of pain and time off work in the couple of years following the July 2012 injury.
91 I have taken into account that by September 2014 the plaintiff had been issued his Diploma of Human Resource Management and that his Certificate IV in Training and Assessment from Chisholm Institute was issued on 10 November 2014.[147] In summary, I am satisfied by reason of the evidence referred to, that at the time of the two incidents that occurred at his home on 21 and 25 November 2014, it is more probable than not, that the plaintiff was not studying but working. I am satisfied that any account that he was not working as at November 2014 when he experienced pain at home is against the weight of the evidence and that the more probable state of affairs is that he had been engaged in some manual work. Indeed the plaintiff said, “More than likely (he was working) because bills have to be paid, so more than likely I would have done something for money, yes.”[148] He said he thought it would have been work along the lines “of what I have normally done for many years”.[149] However, he disputed that Dr Shmerling had recorded correctly that he had been engaged in vehicle building work because, as he put it, and in his mind, the vehicle building work was specifically work with HSV but, nonetheless, he said with “some degree of certainty… It was something to do with vehicles or labouring forklifting or something because that’s what I’ve always done”[150] and that it could have been “mechanical work as well”.[151]
[147]Exhibit D6, DCB 88.
[148]T50.
[149]T50
[150]T51.
[151]T51.
Did the July 2012 work injury resolve?
92 A central question raised in the determination of this application is whether the July 2102 work injury resolved. After referral to x-ray and a CT of the lumbar spine, and some two and half months after the work injury, and on 3 September 2012, the plaintiff presented to Dr Cukier. The plaintiff would remain under the care of Dr Cukier for a further period of approximately 12 weeks, up until 18 September 2012, which was the date of the plaintiff’s last attendance on him. On 3 September 2012, Dr Cukier reported the plaintiff having said he was “much better in himself after or since the injury in July 2012.”[152] However, in his evidence, the plaintiff denied he had given Dr Cukier this assessment and said that if it was contained in the doctor’s report, it would be wrong.[153] He then, however, qualified his answer and said that he told Dr Cukier that he was better than on the day of the injury in July 2012. He took issue with the use of the qualifying adverb “much” to describe his level of improvement, although he agreed he had improved to a point.[154]
[152]Exhibit P5, PCB 51.
[153]T55.
[154]T56.
93 Dr Cukier reported that on examination of the plaintiff on 18 September 2012 his lumbosacral extension was full and pain free[155] but the plaintiff rejected this was the case.[156] He did agree that he could lean backwards pain free. He accepted that when leaning forward there was 80° of flexion and that at 80°of flexion he experienced some pulling but accepted that the results of the examination was “pretty consistent with me.”[157] I note that Dr Lam’s report dated 23 July 2012[158] also tracked considerable improvement in the plaintiff’s flexion across a range of testing.
[155]PCB 51.
[156]T56.
[157]T57.
[158]Exhibit P4.
94 Following on from September 2012 when Dr Cukier reported that the plaintiff had much improved on a clinically observable basis, there follows a lengthy period during which the plaintiff did not attend on any doctor or obtain any treatment and was able to engage in a range of manual work activities including working as a mechanic. I have noted that the plaintiff said he had two or three physiotherapy sessions but thereafter he could not afford further attendances and treatment. Given the plaintiff was employed over much of the intervening period of time, I find this a less than satisfactory response to the lack of disclosed treatment if, as he said, he had been troubled by episodes of pain and had lots of time off work because of it.
95 The plaintiff agreed with Mr Churilov that it was not until after the incident at home in November 2014 that he came under the attention of specialist treatment and surgery was first discussed.
96 Mr Churilov directed the plaintiff to a report from Dr Blombery, a consultant physician in vascular disease and pain medicine, whom he saw in July 2019 and who provided a report to the plaintiff’s solicitors dated 7 August 2009 in which he wrote that:[159]
He was able to obtain temporary work via employment agencies including doing some warehouse, forklift work, truck driving and also vehicle production are HSV and Clayton.[160]
[159]Exhibit P11.
[160]Exhibit P11, PCB 79.
97 He continued that:
The job in Clayton lasted for seven months and he told me it was quite heavy and aggravated the pain in his back. Prior to that, the pain had been improving.[161]
[161]Exhibit P11, PCB 79.
98 When the plaintiff was asked about Dr Blombery’s report by Mr Churilov, he engaged in the following exchange with counsel:
“Q.Do you recall him asking you about whether the work was heavy or not?---
A.How do you mean the work was heavy? We worked hard or we lifted heavy things?
Q.Can you just listen to me, please?---
A.Yes.
Q.Do you recall whether Dr Blombery asked you about the nature of your work for HSV in Clayton?---
A.Yes, they have all asked me the nature of the work, yes.
Q.And he asked you too, didn’t he?---
A.He would have, yes, they all did.
Q.And do you recall whether he asked you whether this work was heavy, light or what, do you recall him asking you any questions of that nature?---
A.Look, in general I recall that all of them asked me the same sorts of questions. What sort of work did you do, was there any manual labour, things like that, yes.
Q.What did you tell him about the nature of the work and how you found it in terms of work at HSV in Clayton?---
A.Like I always do, that yes, some labouring work is quite difficult, sometimes you have to lift heavy things.
Q.So you have told him that you had to lift heavy things on occasions and on occasions the work was quite difficult?---
A.M’mm.
Q.Did you tell him that work aggravated the pain in your back?---
A.I don’t know if I told him - I don’t believe I told him it aggravated the pain in my back because that is not really the way I would speak.
Q.What did you tell him then?---
A.He probably would have asked me did you get any pain during that time, and I would have said yes.
Q.Did you tell him whether there was any increase of pain because of the work that you were doing at HSV?---
A.Specifically, not that I recall.”[162]
[162]T 61-62.
99 The plaintiff was questioned about the length of time it took for the severity of the pain he experienced at home in November 2014 to go away. He said it took “a few months at least, yes”[163] and he had been left with “where I am now, I have ongoing pain but it is not as severe-or every day as severe as it was on that day, no.”[164] This estimate was similar to the period of time the plaintiff said it took for the onset of pain in July 2012 to have abated by approximately September 2012.
[163]T64.
[164]T64.
100 The plaintiff was asked about the differences, if any, between the symptoms he experienced following the November 2014 incident and the 2012 injury. He was asked about the development of numbness down his right leg, and that he maintained was not a new symptom. In answer to whether he had experienced “numbness in your calf from all over your foot” the plaintiff said, “I have experienced that since 2012, yes.”[165] That answer is inconsistent with the Monash Health record of November 2014 of a new onset of numbness in the right lower leg, lateral calf and all over the foot but the plaintiff said the record was once again wrong “because I mentioned that the first time”.[166]
[165]T66.
[166]T66.
Credibility
101 Credibility is an important consideration. I am inevitably drawn to conclude that plaintiff’s evidence about the state of his back and the pain he experienced prior to July 2012 was unsatisfactory and it is inconsistent with the history he gave to those whom he saw and to the radiology that exhibited evidence of a degenerative spine.
102 The plaintiff caused the question of the extent of his past back condition to gain added impetus because in his first affidavit he deposed that over the years he had experienced some back pain but then under cross-examination sought to disavow it. I am not satisfied that the plaintiff’s unsatisfactory evidence on the matters I have earlier canvassed was because he was confused by the questions asked of him by Mr Churilov concerning his history of back pain. Moreover, his response to the express question, “Did you have any back pain whatsoever” being, “No, I didn’t have any lower back pain”[167] does not bear objective scrutiny. I did not find the plaintiff’s exercise in seeking to distinguish between pain in the upper back and shoulder region and his lower back persuasive in light of him having said that he had not had any pain whatsoever in his back prior to July 2012.
[167]T72.
103 The Monash Health records and Mr Drnda’s report both identified the plaintiff having presented in July 2012 with a lengthy history of back pain to the extent of 15 years. It would appear from the records of hospital attendance that the plaintiff was on significant pain medication including morphine at the time of the Monash attendance, a matter adverted to by Mr Morfuni in his closing address, but this is not an answer to explain the history attributed to the plaintiff in Mr Drnda’s subsequent report or other parts of the Monash record of presentation that the plaintiff adopted as accurate.
104 Despite the unsatisfactory extent of the plaintiff’s evidence, I do agree with Mr Morfuni’s submission, that the defendant’s reliance on the typed record of 15 years of back pain is not of itself an evidentiary magic-bullet. I accept that the handwritten progress notes from Monash Health, as opposed to the typed entry of the plaintiff’s presentation on 26 November 2014, records “chronic back pain 3-4 years ago” presumably, an intended reference to the pain the plaintiff suffered from consequent on the July 2012 incident. However, the plaintiff’s affidavits did not seek to correct or contest the accuracy of the inclusion of a history of 15 years of back pain as it appeared in the record or in the report of Mr Drnda, prior to being cross-examined.
105 Because of the unreliability I have in accepting the plaintiff’s evidence on the matters I have addressed, I prefer the typed note of the Monash Health record and the reference by Mr Drnda and, therefore, I am satisfied that it is more probable than not, that as at July 2012 the plaintiff had experienced in the order of 15 years of back pain and he had not had success in its management.
Relevance of lack of credibility of plaintiff
106 Must the adverse opinion I formed of the plaintiff’s reliability on the matters of his evidence I have referred to be determinative of his application for a serious injury certificate? The answer is that it need not necessarily be so. It remains to be asked what the relevance is of his pre-July 2012 history to the determination of this serious injury application? Mr Morfuni submitted it had the character of what might be characterised as a red herring in the determination of the application. I have given the submission considerable thought, but ultimately, I do not agree with Mr Morfuni. The nature of the prosecution of the plaintiff’s serious injury application invites a consideration of the state of his lower back prior to the July 2012 work injury and since. Having said that, and despite being satisfied and preferring an account of a lengthy history of back pain prior to July 2012, in preference to the plaintiff’s oral evidence to the contrary, I accept there is no evidence to indicate that it had interfered with his ability to work and function and enjoy his life and engage in a range of social activities and hobbies without intrusion, and that by comparison, that is not his current plight. Also, just as there is no record of the plaintiff having attended for medical care for his back from September 2012 to November 2014, so too, there is an absence of evidence of medical attention or care for it in the years before July 2012 despite objective evidence of substantial constitutional degeneration. Mr Morfuni submitted that the state of affairs of the evidence was consistent with asymptomatic degeneration. Although I am satisfied, and I have found, that the plaintiff was symptomatic and not asymptomatic before July 2012, I am also satisfied his pain was not acute or disabling prior to July 2012, albeit it, chronic. I have also had regard to the plaintiff’s unchallenged affidavit evidence that he had never had occasion to be absent from work because of back pain until July 2012. However, I do not regard this summary of other matters outweighs the presence of objective evidence of degeneration and the accounts of pain contained in the hospital record and by Mr Drnda.
Defendant’s final submissions
107 Mr Churilov submitted that the appropriate classification of the plaintiff’s claim is that of an aggravation of a pre-existing degenerative lumbar spine injury caused by the work injury of July 2012. Mr Churilov further submitted that the plaintiff bears the burden of proving not only that the further injury suffered in November 2014, in its consequences, both on the narrative test and to him, is a serious injury but he must also prove on the balance of probabilities that the injury of November 2014 is itself an aggravation of the 2012 injury. Counsel submitted the analysis required inevitably involves a question of causation.[168]
[168]De Agostino v Leatch [2011] VSCA 249.
108 Mr Churilov submitted that the plaintiff presented with two injuries and not one, and that each, therefore, requires identification together with an assessment of the consequences of the impairment to the spine that are said to flow from each, in order to determine if they are serious to the exclusion of any supervening or non-compensable progression by way of degeneration.
109 Mr Churilov submitted that the first injury occurred in July 2012. The consequences of the first injury to the function of the spine were not serious. The plaintiff recovered by about September 2012. The plaintiff had no occasion to seek medical attention from September 2012 until November 2014 when he suffered a second injury at home. The absence of medical attention in that lengthy period of time, is more consistent than not, with a resolution of the first injury as opposed to it having caused an ongoing and further vulnerability to the spine that was aggravated by a second injury of November 2014. Moreover, and since at least late 2012, the plaintiff was again engaged in employment, some of it by his own admission, heavy work and interspersed also with studying and obtaining additional qualifications. The second injury of November 2014 was, therefore, not a continuum of, or a recurrence, by way of a flare up of the first work injury of July 2012 or an aggravation or exacerbation or acceleration of it, but more probably, a second injury that occurred consistent with pre-existing and progressive degeneration to the spine occurring against a backdrop of the plaintiff having returned to work, taken a break to undertake studies, only to have worked again.
110 I accept that in a case involving an aggravation of a pre-existing injury, I am required to make an assessment of the extent of the additional impairment of the relevant body function – in this case, the function of the plaintiff’s spine. If the additional impairment is not “serious”, then I must refuse leave. Furthermore, in an aggravation case, in order to succeed, the plaintiff must establish that the aggravation in itself constituted the serious injury.[169]
[169]See also: Petkovski v Galletti [1994] 1 VR 436; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; De Agostino v Leatch [2011] VSCA 249 at paragraph [11]; RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386, [2]; Guppy v VWA [2010] VSCA 164, [18]-[19].
111 Mr Churilov submitted in accordance with the principles expressed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz[170] (‘Filipowicz’) that where there is more than one discrete injury occurring on different occasions, “the court must separate out the components of the injury on each occasion and cannot aggregate the injuries even if caused to the one body part, across several incidents.”[171]
[170][2012] VSCA 60.
[171]See also: Lu v Mediterranean Shoes Pty Ltd [2000] VSC 65.
112 In Filipowicz, the Court of the Appeal held that a trial court must identify each injury, identify and separate the impairment consequences of each injury, and identify whether the additional impairment caused by an aggravation injury qualifies as a serious injury as defined.[172] This exercise requires a comparison between the plaintiff’s condition before the injury and after the injury “and then … an assessment of the additional impairment”.[173]
[172][2012] VSCA 60, [31]-[35].
[173][2012] VSCA 60, [34] (citing R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, at 388, 395, and 398; Guppy v VWA [2010] VSCA 164, [18]-[19]; De Agostino v Leatch [2011] VSCA 249, [9] and [11]; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, at 520.
113 Where one discrete injury is relied upon, it calls to be assessed separately against the criteria for a “serious injury” under the statute and it cannot be aggregated with another alleged discrete injury.
114 I think that more on point in terms of relevance to the circumstances of this application, and in particular how it was conducted by the plaintiff, is Altona Bus Linesv Lococo[174] in which the Court of Appeal examined the ways in a court may take into account the subsequent aggravation or a subsequent event or a subsequent degeneration when considering whether the consequences of a first in time injury is a serious injury. The Court of Appeal recited the trial judge’s analysis and reference to the decision in Lu v Mediterranean Shoes Pty Ltd[175] (‘Lu’) as standing for the proposition that injuries cannot be combined but who then said:
But if it can be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof (as the case may be) are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long-term impairment of the body function.[176]
[174][2002] VSCA 159.
[175][2000] VSCA 65.
[176][2002] VSCA 159, [11].
115 It is relevant too, that the passage cited above, refers to “the effects of the subsequent injury (being) more severe because of the earlier injury”. The analysis expressed by the trial judge in Lu at first instance, and not disturbed on appeal, proved ultimately the approach adopted by Mr Morfuni and that he contended was applicable in this case.
Assessing the evidence
116 In terms of describing ongoing pain and suffering consequences from July 2012 until November 2014, the plaintiff’s affidavits were not particularly helpful concerning the effects he presently suffers because they provide no delineation in time but instead they accumulate or aggregate all of the pain and suffering consequences and limitations on activities the plaintiff has experienced since November 2014 on the presumption that they are consequences of the work injury of July 2012. In that sense, the contents of the affidavits, are understandable.
117 Mr Churilov submitted that I should be not be satisfied that the plaintiff’s injury at work in July 2012 amounted to more than an aggravating episode that itself was relatively innocuous and short lived and as having occurred against the backdrop of symptomatic and progressively degenerative lumbar spondylosis. Mr Churilov elaborated on his submission by contending that the July 2012 incident was a transient episode in the scheme of the plaintiff’s already compromised back. Moreover, he submitted that the evidence was consistent with the plaintiff having recovered within months, that is to say, the effects in terms of the level of pain the plaintiff experienced from July 2012 had improved within months according to his own doctor and also by reference to the absence of attendance on doctors being required until he again experienced acute pain that warranted him seeking medical assistance in November 2014. Mr Churilov also relied on the clinical examinations of the plaintiff that his flexion showed ongoing and marked improvement following the July 2012 injury. Mr Churilov additionally submitted that despite the 2012 injury, the plaintiff proved capable of engaging in work that was at times heavy, as well as undertaking studies, and obtaining tertiary qualifications, all of which is the antithesis of the plaintiff having suffered a serious injury in July 2012.
118 I am satisfied on the evidence that in the period of time reasonably soon after the work injury in July 2012, and until November 2014, the plaintiff performed considerable manual work and, on occasions, heavy work, although the state of the evidence does not permit me to identify with certainty the number of such occasions that he performed manual work that fits this description.
119 I am also satisfied that the continuation of work after the July 2012 injury and from about September 2012 until November 2014, and the lack of attendances on doctors by the plaintiff, is consistent with the defendant’s submission that by the time of the November 2014 incident the July 2012 injury had retreated and had done so no more than some several months following its occurrence, that is, by about September 2012. The evidence does not establish that the July 2012 injury caused serious consequences by way of the impairment of the plaintiff’s spine. Even if it be the case that contrary to my findings, the plaintiff did experience untreated back pain when undertaking further physical work in the period from late in 2012 and before the incidents in November 2014, this is as equally consistent with the progression of the pre July 2012 degeneration being its cause. In other words, the plaintiff has not established that the July 2012 injury comes within an analysis such as referred to, for example, in Lu’s case.
120 Mr Drnda, to whose reporting I have earlier referred, was subsequently asked by the defendant to clarify his opinion why he believed that the aggravation of the plaintiff’s pre-existing symptomatic lumbar spondylosis caused by the July 2012 injury had resolved[177] and he responded that, “the imaging did not reveal any significant acute pathology, but rather chronic degenerative changes in his lumbar spine in keeping with his preinjury condition.”[178] Mr Drnda’s explanation of reasoning has relevance to the principles expressed, for example, in Petkovski v. Galletti[179] in which the Full Court was concerned with the question whether an aggravation caused by a motor accident of an existing back injury was a "serious injury" within the definition contained in s.93(17) of the Transport Accident Act 1986. Southwell and Teague, JJ. with whose reasons Brooking, J. substantially agreed, said–
[177]Exhibit D3, DCB 25-26.
[178]Exhibit D3, DCB 25.
[179][1994] 1 VR 436.
One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.
The Act does not affect that long established principle.
And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages, where the case is one of the aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant.
...
The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.[180]
[230]T174.
163 Mr Morfuni also submitted that the occasion of the two episodes in November 2014 is not a factor telling against the ongoing effect on the plaintiff from the July 2012 injury up until then, but rather it is supportive of an analysis that in benign settings without any work exertions he was struck by severe pain and this is consistent with the medical opinion of Mr D’Urso that suggests a life that will possibly be prone to such episodes of exacerbation.
Consideration and analysis
164 The plaintiff’s application involved considerable radiology and different opinions expressed about its meaning but notably crystallised between Mr D’Urso and Mr Drnda.
165 I have taken into account that the trajectory or progression of pain may not always be linear, and to assume it should be, is to run the risk of the assessment of the impairment to the function of the plaintiff’s spine, which is what is required, being overshadowed by an emphasis on injury. The question is always whether an injury brought about impairment or loss of body function. In Humphries v Poljak[231] Crockett and Southwell, JJ. said:
It was pointed out that it is not the injury itself which must be looked at in order to determine if the requirement of the definition is met. Attention must be focused upon impairment or loss of body function. If such impairment or loss is shown to exist, the question is then: is that impairment or loss both serious and long-term? If it is, then and only then, can the injury responsible for such loss or impairment possibly be regarded as a serious injury. This approach will prevent one from succumbing to the temptation to equate 'body function' to 'injury'. The impairment of a person is not the same thing as the impairment of a person's body function. An injury might properly be describable as 'serious' yet not be responsible for impairment or loss of body function - at all events serious and long-term impairment or loss.
[231][1992] 2 V.R. 129, 134.
166 As I have already mentioned, one of the central factual disputes in this case concerned the validity of the assertion of the length of time prior to the July 2012 injury that the plaintiff had suffered back pain. The credibility of the plaintiff as an historian, is important. In Haden Engineering Pty Ltd v McKinnon[232], Maxwell P said:
[T]he weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.[233]
[232][2010] VSCA 69
[233][2010] VSCA 69, [12] citing Dwyer [2008] VSCA 260, [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108, [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143, [142]–[145].
167 The determination of the controversy concerning the history of pain is relevant for a number of reasons. First, it is one of the matters affecting the credibility of the plaintiff. Second, it offers guidance on the extent to which if, at all, the injury of July 2012 is an exacerbation of an already symptomatic and degenerative back as opposed to Mr Morfuni’s contention that the July 2102 injury rendered an asymptomatic back symptomatic.
168 Despite finding a lack of credibility of the plaintiff on the matters I have referred to and for the reasons given, from the plaintiff’s perspective, ultimately, it may not much matter if the July 2012 work injury exacerbated a pre-existing degenerative back that was symptomatic or asymptomatic because, after all, the July 2012 was an accepted work injury. The defendant did not argue the plaintiff had not suffered a work injury but instead contested that the plaintiff had proved that the July 2012 injury was a cause of any exacerbations in November 2014, as opposed to the plaintiff suffering separate injuries, with November 2014 being caused when his non-compensable degenerative back suddenly, as it were, “turned on him” against a history of work that was at times physically heavy and interspersed with periods of study.
169 The absence of medical attention to the plaintiff’s back in the period after September 2012 and up to November 2014 and over a period of time that encompassed the varied physical work the plaintiff undertook is one consideration that is a contra indication that the July 2012 injury had rendered the plaintiff more susceptible or more vulnerable to episodes of further deterioration. That is because, whereas, it may be anticipated that if there was caused to the plaintiff’s spine by the July 2012 injury more than a transient effect, and one that had not resolved, there would be evidence of it continuing to manifest itself by attendances on doctors during periods of subsequent work, but to the opposite effect, the plaintiff continued to engage in work that was at times active and heavy work. However, as against the absence of medical attention, the plaintiff’s evidence was that he was never free of recurrent back pain after July 2012 even if it did not result in medical care.
170 The plaintiff deposed that after his employment ceased with the defendant he subsequently did some warehouse forklift work through agencies and also truck driving and then the work with HSV at Clayton, but that in each instance, the employment was unsustainable because of his experience of pain. The plaintiff was not challenged about the forklift and truck driving work specifically in cross-examination. Of the warehouse forklift work the plaintiff said, “the work was difficult for me because of my back pain. I got bounced around on the forklifts while driving which made my back pain worse. Some of the time I was required to lift and carry. I had pain when climbing in and out of the seat. I called in sick sometimes and finished shifts early a few times because my pain was too bad to keep driving a forklift.”[234] The period of time the plaintiff undertook the forklift agency work was not explored.
[234]Exhibit P2, PCB 11 at paragraph [15].
171 Of the agency truck driving work, the plaintiff said there was “too much lifting required for me to cope with the pain it caused. The driving itself was also difficult to cope with because of my back pain. I took rest breaks laying back with my seat recline during shifts to manage the pain. I stopped doing truck driving work because of my back pain.”[235] Again the period of time was unspecified, however, I am satisfied that such periods of work could only have been very short, because of the work he performed for HSV at Clayton.
[235]Exhibit P2, PCB 11 at paragraph [16].
172 Of the HSV work at Clayton he said that he “did some vehicle production workers there in 2013-2014 for about seven months. The work included applying stickers and decals, and performing wheel alignments. My supervisor helped me cope with my injuries by giving me lighter tasks. And I was able to avoid doing a lot of lifting. I was cycled through different work areas that help me manage my back pain, but it was still difficult to cope with. I had some time off because of pain. I left the job because the pain from my back injury was too much to cope with.”[236] In his second affidavit the plaintiff thought the period of time he worked at Clayton might have been nine months. The contention by the plaintiff that he was required to give up his work with HSV at Clayton is not at all evident, and is not something I am prepared to accept occurred, and I refer to my reasons earlier concerning the uncertain and contradictory evidence the plaintiff gave regarding his work and studies throughout 2013 and 2014, including with HSV, and up to the incidents in November 2014.
[236]Exhibit P2, PCB 11 at paragraph [17].
173 On the whole of the evidence, and including having rejected the plaintiff’s evidence that he attended a doctor or doctors after September 2012 and before November 2014, and despite my finding referred to earlier of being satisfied the plaintiff has been a hard working fellow, I do not accept Mr Morfuni’s submission that I should treat the plaintiff’s efforts in continuing to work in this period of time as evidence illustrative of a stoic. Not all efforts at continuing to work suggest stoicism. In some cases, persistence with work may also be consistent with an unimpeded capacity for work or, a largely unimpeded capacity to do so, and it as well to avoid the application of principle in the abstract. Despite this I am conscious of and have considered what was said in Sutton v Laminex Group Pty Ltd[237] (“Sutton”) by the Court of Appeal in relation to a stoic plaintiff:
The respondent made two submissions with respect to the appellant’s stoicism. Stoicism was one of the considerations identified by Maxwell P in Haden Engineering as useful in assessing the pain experienced by a plaintiff, drawing upon the remarks of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) who said:
“I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best as he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[238]
[237][2011] VSCA 52.
[238][2011] VSCA 52 at paragraph [80], citing Dwyer [2008] VSCA 260 at paragraph [3].
174 In addition, in Sutton, the Court of Appeal went on to say:
It can be readily accepted that the appellant was sensible to find activities (including alternative employment) that lay within his restricted capacities, and sensible to modify the demands of those activities, especially the sailing, to conform to his limitations. But being sensible and being stoical are clearly not mutually exclusive and the appellant was, objectively, someone who was not prepared to resign himself to his injury; he was not prepared to allow his injury to dictate a wholehearted reduction in his enjoyment of life. He is entitled to be considered a stoic and it is thus necessary to be mindful of the observations of Nettle JA, as approved by Maxwell P, that he is not thereby to be treated less favourably. It remains to be determined, as the respondent correctly submitted, what it is that the appellant is stoical about.[239]
[239][2011] VSCA 52 at paragraph [83].
175 I am not satisfied the dicta in Sutton and allied cases, is applicable to this plaintiff and it not a case of treating the plaintiff unfavourably on account of his efforts. I am satisfied that the fact of a persistence by the plaintiff to earn income and to improve his lot by obtaining further qualifications whilst not inconsistent with him having experienced some occasions of back pain, is as consistent, if not more so, with him not being impaired by the July 2012 injury and that he was able to work on until the first of the two episodes in November 2014 brought him to the need for attention and followed by the second incident some four days later that thereafter disclosed further injury to the spine. I am satisfied that it is more probable than not that the pain the plaintiff said he experienced on occasions after September 2012 until November 2014, did not have the impact as did July 2012, and was not sufficient to have resulted in medical attention or treatment. I have also had regard to what the plaintiff has said about his pain in court and to those he has seen. As to the latter consideration, the accounts by him to his treating general practitioner some months after the July 2012 injury and up to September 2012 was one of improvement as confirmed by way of objective clinical examination. I have had regard to what the plaintiff did about the pain he experienced after July 2012 but particularly after September 2012 until November 2014, to which the answer is nothing. His account of impecuniosity to account for the lack of attention rings somewhat hollow in light of the fact that on the evidence he was employed throughout most of this period of time.
176 Ultimately, I am left to decide whether the plaintiff has established on the balance of probabilities, that it is more than speculative, that his current impairment was occasioned by a further exacerbation in November 2014 to his lumbar spine that was caused by an increased vulnerability from the July 2012 injury, as opposed to the state of his compromised spine that prevailed before July 2012, having been aggravated by July 2012, but subsequently resolving such that the ordinary progressive decline of his spine accounts for his present level of impairment.
177 Because the defendant contended that the aggravation caused by July 2012 was not a “serious injury”, it seems to me also necessarily the case, that it bears an evidential burden of showing what the probable course of the plaintiff’s pre-existing condition of the spine would be absent the super intervention of the July 2012 injury[240]. If I am correct about this, what then is the evidence as to the probable course of the plaintiff’s pre-existing degenerative condition or when, in the absence of the supervening injury from July 2012, was it likely to have led to the plaintiff’s incapacity? Mr Drnda, in his report dated 13 February 2020[241] said as follows:
…Mr Khizam’s condition returned to his preinjury level after some three months following the reported injury. Later worsening of Mr Khizam and condition was related to the natural history of his constitutional lumbar spondylosis in his later incident in November 2014.[242]
[240]See for example, Watts v Rake [1960] 108 CLR 158
[241]Exhibit D3, DCB 25-26.
[242]Exhibit D3, DCB 25.
178 I accept that on Mr Drnda’s reporting and on a number of indicators including the plaintiff’s account to his treating doctor and clinical findings on examination, he had very substantially recovered from his July 2012 injury by about September 2012. Thereafter, and although the plaintiff continued to experience pain, I am on balance, satisfied it is consistent with a reversion to the pre July 2012 levels of degeneration and a long history of back pain.
179 I am satisfied that the July 2012 injury, therefore, only amounted to minor aggravation of a previous and lengthy symptomatic degenerative spine and did not amount to a serious injury that occasioned the necessary degree of impairment to the body function of the spine.
180 Whilst it would have been capable on legal principle of the plaintiff having established that the July 2012 injury was “serious”, even though another injury or aggravation of the plaintiff’s existing lumbar condition in November 2014 was needed to produce the impairment or loss of a body function, and even though the later aggravation of November 2014 may have been “serious”, it would not have caused impairment or loss of a body function but for the occurrence of the July 2012 injury, I am not persuaded for the reasons given that the necessary nexus has been made out. I am not satisfied that the plaintiff’s evidentiary account including that by way of Mr D’Urso’s analysis provides a more persuasive account for the progression of the plaintiff’s lumbar spine after the July 2012 work injury as does that exhibited by the reporting and diagnostic reasoning of Mr Drnda.
Pain and suffering consequences
181 In the event my primary finding is found to be wrong, then in judgment, the plaintiff’s pain and suffering consequences would meet the test for a serious long term impairment of the spine in the sense that when judged by comparison with other cases in the range of possible impairments, they may be “fairly described as being more than significant or marked, and as being at least very considerable.”[243] The arguments made by the plaintiff in support of pain and suffering consequences were not conceded by the defendant.
[243]Section 325(2)(c) of the Act.
182 The truthfulness and accuracy of the plaintiff’s account in his two affidavits of his pain and restrictions since November 2014, and that I detailed much earlier in my reasons, was not effectively challenged in cross-examination by the defendant, and understandably so given the nature of the defendant’s defence to the originating motion. Nonetheless, recreations the plaintiff once pursued and from which the plaintiff derived enjoyment are now either completely excluded or strictly limited. Substantial limitations to function are also identified. I was also referred by Mr Morfuni in particular to the authority of Ellis Management Services Pty Ltd v Taylor[244] that the loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences especially by way of a loss of enjoyment of life. It is a relevant consideration and was expressed by the plaintiff in terms of an inability to work as a mechanic in a shop environment as compared to his more limited current capacity to tinker about in his garage and work on friend’s vehicles. His sleep is impaired, although I acknowledge, that there is no medication a such prescribed to assist with his sleep disturbance but the importance of sleep was expressed in Haden by Maxwell P who said:
It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.[245]
[244][2013] VSCA 326, [44]-[45].
[245][2010] VSCA 69, [45].
Permanent
183 There is little debate that the plaintiff’s present condition is a permanent one. It was not contested by the defendant.
Summary and conclusion
184 For the reasons I have expressed, I am not satisfied that the plaintiff suffered a serious injury in the form of an aggravation to an asymptomatic degenerative spine in July 2012. I find that at the time of the July 2012 injury the plaintiff presented radiologically with significant disruption and degeneration that had developed against a history of symptomatic but not disabling back pain. I am satisfied that the consequences of the July 2012 injury ceased to have effect on the plaintiff either by way of pain or by way of interference with his subsequent ability to work and study. There is no evidence of pain and suffering consequences in the period after the July 2012 aggravation injury or exacerbation from approximately September 2012 and then again until occurring after November 2014. The capacity of the plaintiff after about September 2012 and until November 2014, is more consistent with a temporary imposition from injury that occurred in July 2012 having resolved than of a serious injury that rendered him more vulnerable and progressively susceptible to the events of November 2014. It is as probable as not, that any limitations occasioned to his back by way of pain after September 2012 and prior to November 2014, was caused by the ordinary progressive degenerative spine as it is by reason of any ongoing contribution suffered in July 2012 or, because of an increasing vulnerability or susceptibility occasioned by the same. Because a plaintiff bears the burden of proof, if two explanations are equally probable to account for a state of affairs, then the burden of proof will not have been discharged.
185 I am satisfied the plaintiff did not suffer a serious injury in July 2012 injury to the extent that it constituted a serious long term impairment of the body function of the spine as required in the Act. I have carefully considered if the evidence satisfies me that work injury the plaintiff suffered in July 2012 so hastened or accelerated the incapacitating symptoms as to have rendered the aggravating injury “serious” in the relevant sense. I am unable to arrive at such a finding.
186 Mr Morfuni contended if the predication relied on by the defendant and derived from the opinion of Mr Drnda, that “the back pain or the degenerative condition was symptomatic before 12 July 2012” is “stripped away, then everything is consistent with the plaintiff’s case. That is, if in fact he wasn’t symptomatic prior to 12 July 2012, he became symptomatic thereafter, and then there’s this progression.”[246] For the reasons I have detailed, I am unable to accept this submission because it is at odds with the plaintiff’s course of conduct and activities and, not least, it is inconsistent with the extent of observable pre-existing degeneration at the date of the July 2012 injury, the findings I have made of a long history of pain, and Mr Drnda’s account of its progression.
[246]T179.
187 The plaintiff’s originating motion is dismissed.
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