Khodary v Bartter Enterprises Pty Limited
[2011] VCC 1493
•31 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06104
| MOHAMED KHODARY | Plaintiff |
| v | |
| BARTTER ENTERPRISES PTY LIMITED | Defendant |
| (ACN 000 451 374) |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 26, 27 and 28 September 2011 |
| DATE OF JUDGMENT: | 31 October 2011 |
| CASE MAY BE CITED AS: | Khodary v Bartter Enterprises Pty Limited |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1493 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – low-back injury – paragraph (a) of definition of “serious injury” – whether the injury is a “serious injury”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell with | Maurice Blackburn |
| Mr D J N Purcell | ||
| For the Defendant | Mr R K Meldrum QC with | Wisewould Mahony |
| Ms A M Magee | ||
| HIS HONOUR: |
1 By way of Originating Motion dated 21 December 2009, Mr Mohamed Khodary (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for injury to his low-back (“the injury”) suffered throughout the course of his employment with Bartter Enterprises Pty Limited (“the defendant”) and in particular in mid-2002 and on or about 7 October 2004.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over three days and the plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1] See Annexure A
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.135A(37) of the Act.[2]
[2] See s.135AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act which reads:
“Permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine.[3]
[3] See Transcript (“T”) 1, L23-24
7 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a)
“the injury” suffered by him arose out of or in the course of or due to the nature of his employment with the defendant on or after 20 October 1999;[4]
(b)
“the injury” with its resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)
“the consequences” to the plaintiff of his low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by a comparison with other cases in the range of possible impairments … be fairly described as more than significant or marked, and as being at least very considerable”.[6]
[4] See s.134AB(1) of the Act and Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5] See Barwon Spinners (op cit) at paragraph [33]
[6] See s.134AB(38)(b) and (c) of the Act
8 In addition, in relation to “loss of earning capacity”, the plaintiff has a specific burden[7] to establish:
[7] See s.134AB(19)(b) and (38)(e) of the Act
[8] See s.134AB(38)(e)(i) of the Act
[9] See s.134AB(38)(e)(ii) of the Act
(a) that as at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[8] and (b) that after the date of hearing he will continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.[9] 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 or counted for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)
must make the assessment of “serious injury” at the time the application is heard;[11]
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[12]
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately;
[10] See s.134AB(38)(h) of the Act
[11] See s.134AB(38)(j) of the Act
[12] See s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]-[92]
in the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB of the Act is entitled, as a “manner of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”;[13]
(e)
notes that it has been observed that the question of whether any injury satisfies that narrative test is largely a question of impression or value judgment;[14]
[13] See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSC 170, delivered on 28 July 2009 and in particular, paragraphs [60] – [64]
[14] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issue
10 Senior Counsel for the defendant, when asked as to what the issues were in the matter, stated:
“We say it is a range case and that there are activities of the plaintiff which may well lead Your Honour to take the view that this man is not significantly disabled.”[15]
[15] T 9, L9-12
The Background of the Plaintiff, his Injury and Medical Treatment
11 The plaintiff gave evidence that he had read his affidavits sworn on 4 August 2009 (“his first affidavit”) and on 26 July 2010 (“his second affidavit”)[16] that morning and both were “correct”.
[16] See Exhibit A at pages 11-20 PCB
12 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
•
He is a forty-three-year-old single man who was born in Egypt. He has two daughters from a previous relationship.
•
He attended school in Egypt to the equivalent of Year 11 and thereafter worked on a cruise ship around Egypt for around twelve years.
•
In or about 2001, he migrated to Australia and initially worked at a restaurant in Lorne.
•
In February 2002, he commenced employment with the defendant as a process worker on a “casual basis” after completing a pre-employment medical with a Dr Davey. In late 2003 or early 2004, he was made “full- time”. The defendant ran a chicken processing factory at Breakwater, Geelong.
• He describes the work as “often heavy and repetitive”. •
In approximately mid-2002, he developed pain in his low-back after lifting boxes of chickens from pallets and emptying them into bins. He attended the clinic of Dr Davey (the company doctor) and had a day off work and was given some cream to rub into his back.
•
He describes the occurrence of his back injury in October 2004 in the following terms:
“On or about 7 October 2004, I was again working at the Defendant’s chicken factory. The work process was that trucks would deliver cages of live chickens. The chickens would be tipped into a conveyor machine. From the conveyor the chickens had to be hung onto hooks, so that they could be taken into another room to be slaughtered. Often when the cages were being tipped into the conveyor, the chickens would manage to escape. At times as many as fifty or one hundred chickens would escape and be loose around the factory. The chickens would often get into awkward places. On 7 October 2004, it was my job to catch the escaped chickens. I was working very quickly and bending under conveyors and machines to try and catch the chickens. Whilst doing that I suffered pain in my back. … .”[17]
[17] See Exhibit A at page 13 PCB
• Several days later, he attended a general practitioner, Dr Hassan, who arranged for him to undergo a CT scan of his back. Some days later he also attended the clinic of Dr Davey where he saw a Dr Hamza, who prescribed Mobic and gave him a certificate for light duties. • By January 2005, he was “really struggling with back pain” and was requiring more time off work. At that time his employment was terminated by the defendant on the basis that there was no further work for him. • He was unemployed for a period of time and then tried to work in factories in Deer Park and Geelong, both of which he found “physically too hard”. • He then obtained work driving a taxi and as at 4 August 2009 (the date of swearing his first affidavit) he was continuing to do such work. He describes the taxi work in the following terms: “The hours that I do in the taxi are variable. If I am having a good week with my back, then I do more hours. Some weeks I do not work at all because of my back. At least with taxi driving I am able to get in and out of the taxi, in between jobs, which helps manage my back pain. Often I still need to come home and rest after I have done a shift in the taxi. The amount of money that I earn depends upon the number of jobs that I get in the taxi. I estimate that I am earning between $350 and $450 per week on average.”[18]
[18] See Exhibit A at page 14 PCB
•
He believes that he lodged a claim for compensation in respect to the back injury but was unsure whether the defendant had paid for any treatment. He notes that he has not had a great deal of treatment partly “because I have paid for my own treatment and party because, as I understand it, there is not a great deal that can be offered to me”.[19]
•
From time to time he has attended Dr Hassan, who referred him for a further CT scan in mid-2008. Dr Hassan apparently prescribes painkillers, but as he does not like taking painkillers, he does not go and see that doctor very often. Dr Hassan has also suggested physiotherapy but as he had to pay for it himself he has not attended any physiotherapy.
•
The level of pain in his low-back has fluctuated since October 2004 and at times he has had pain in his left leg.
•
He describes his limitations because of his back injury in the following terms:
[19] See Exhibit A at page 14 PCB
“Because of my back injury I am restricted in a range of activity. I have difficulty doing cooking or doing housework. I live with several friends, who do most of the heavier housework. I try and go walking, or to the gym, to maintain some fitness and strength in my back. Those activities are also reduced because of my back pain. Before I got hurt I enjoyed playing social soccer and that is now difficult because of my back and also because of the problem in my left leg. Often I need to lie down and rest up because of the level of pain in my back, particularly after being at work in the taxi.
My social life is now much more restricted because of my back injury. When I am in pain I simply do not feel like going out. The pain and injury to my back has caused me to suffer from sexual dysfunction, which I find to be very embarrassing and very distressing. I believe that my sexual dysfunction has contributed to the fact that I have been unable to maintain a relationship.”[20]
[20] See Exhibit A at pages 15-16 PCB
•
If his back is feeling “okay” he will perform some usual activities such as going to the supermarket, but is careful not to lift anything too heavy. Furthermore, from time to time he attends the local mosque, although if his back is too sore he will not go.
•
He has limited ability to speak, read and write English but considers his speaking and reading not too bad but his writing poor.
•
He does not believe he could work in a job which requires strong English language skills and cannot see himself going back to any type of physical work. “From time to time” he returns to Egypt to visit his family and finds the long trip to Egypt difficult and painful for his back.
•
His back symptoms fluctuate and on some days he has severe pain which prevents him doing “very much at all”.
13 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
•
He ceased driving taxis in about the middle of last year (2009) because of his back pain. After driving a cab he had to go home and lie down. At times he was unable to drive at all because of a flare-up of back pain.
•
He continues to suffer pain in his back with pain going down through his calf to his knee and sometimes to his foot. He is never free of back pain but the pain is variable and when it is “bad” he has to stay home and lay down for a couple of days. This would happen about once per month or so.
•
In October 2009, he returned to his general practitioner, who gave him medication to help him sleep at night (Endep) and in January 2010, his general practitioner referred him for a further CT scan of his low-back.
•
He has been referred to the Geelong Pain Management Clinic for treatment.
•
His low-back pain is made worse by sitting or standing or bending or twisting. He can sit for about twenty to thirty minutes and then must move; he can stand for about a similar period of time, after which walking tends to ease such pain.
•
He was previously taking Nurofen but now has been prescribed Tramadol and he continues to take Endep to help him sleep.
•
He spends most of his time at home and spends time at night at his friend’s kebab shop with other friends.
•
During the day, he does not do very much and he is very “worried about my ability to work in the future in any job”.[21]
[21] See Exhibit A at page 20 PCB
14 The plaintiff gave some further evidence in relation to events after his second affidavit. In particular, he gave evidence that:
• He continues to have back pain and pain in his left leg. •
He continues to take Tramadol (“If I work I take two to three, If I no work I take two”) and also Somac.[22]
•
He continues to consult Dr Hassan and also attends the Pain Clinic at Geelong.
•
He returned to some cleaning work in 2011 through a friend. He worked about ten or eleven days cleaning a big building over a period of about three or four months. When he did work he worked four to six hours per day. In particular, he gave the following evidence:
[22] See T 10, L30 – T 11, L7
Q: “Four hours to six hours. How did you cope with that work,
so far as your back was concerned?---A:
I needed the money because I didn’t have money to buy the medications, so I worked four days and then I had the money to buy the medicine.
Q: How did your back feel when you did the work?--- A:
I take Tramadol. If I take Tramadol 200 in the day and 200 at night, I feel … but it is my head no good but it’s true I can do some job but is a little bit hard.”
HIS HONOUR:
Q: When you were working in Melbourne how did you get from
Geelong to Melbourne?---A: Drive car. Q: Did you drive up did you?--- A: Yes.”[23] [23] T 12, L9-20
•
He had an injection in his low-back, after which Centrelink requested that he look for work. He commenced traffic management work in June 2011 (after completing a one-day course) and stayed there until 24 August 2011, during which time the first three weeks he worked twenty to twenty-nine hours per week and after that, twenty odd hours per week for maybe two weeks and then four-and-a-half or four hours for about two weeks and then eighteen to nineteen hours per week for another two weeks.
•
When asked how he went working twenty to twenty-nine hours per week, the plaintiff gave the following evidence:
“When I take the Tramadol the pain becomes less but when I use
the radio I don’t concentrate because of the medicine.”[24]
[24] See T 13, L27-30
• Furthermore, when asked why he stopped performing such work, the plaintiff stated: “When I went to see Dr Hassan two weeks ago I was using the stick. He was upset with me because of what I was doing. He said, ‘Why are you doing this’? I said, I needed the money and Centrelink, you know, were asking me to do that. He said, ‘You shouldn’t be working. If you need anything, I can do whatever you need, you know, from me.
Q: Why were you using the stick?--- A: Because, you know, when pain onset it’s very sore, I can’t
even walk properly because of pain.Q: Did that pain onset have anything to do with the work you
were doing in traffic management?---A: Of course, because I have to stand up all the time and by
doing so I am damaging my back because of this work.”[25][25] See T 14, L8-L21
•
He gave evidence that he can stand for about forty minutes but he has to move around and that he can sit between half an hour to an hour, after which the pain becomes “strong” and he has to get up.
•
He described his ability to read English as “not too good” and he cannot write with a pen but he can send an SMS on the telephone.
The Evidence of Dr D F Davey and Dr S Hamza
15 The plaintiff relies on a report from Dr D F Davey dated 1 December 2008.[26] Furthermore, the defendant tendered the medical reports of Dr S Hamza,[27] who practised at the same clinic as Dr Davey.
[26] See Exhibit B at page 30 PCB
[27] See Exhibit 5
16 The plaintiff was initially examined by Dr Davey on 13 February 2002 for a pre-employment examination on behalf of the defendant. The plaintiff was further examined by Dr Davey on 7 June 2002, 14 June 2002 and 30 September 2005. The plaintiff was examined by Dr Hamza on 29 November 2004 and 22 December 2004.
17 When seen on 7 June 2002, the plaintiff complained of hurting his back the previous day lifting tubs and was complaining of left lumbosacral pain. On examination, he had a scoliosis with tenderness over the left iliac crest.
18 Dr Davey diagnosed an acute left iliac crest syndrome consistent with a lifting injury and treated the condition with a local anaesthetic injection and Celebrex. On review on 14 June 2002, the plaintiff had “no pain” and a pain- free full range of movement.
19 When seen by Dr Hamza on 29 November 2004, the plaintiff complained of a two-month history of lower back pain with no particular incident giving rise to the problem. Reference is made in the notes to the plaintiff attending a Dr Ahmed, who had arranged for a CT scan to be performed. Dr Hamza considered that the pain and ache in the lower left back to the thigh was a somatic referred pain probably from the L5-S1 joint. He was treated with medication and certified for modified duties. On examination on 22 December 2004, the plaintiff complained of less pain but still had some trouble with flexion and prolonged standing. At that time, Dr Hamza prescribed further physiotherapy and ongoing modified duties.
20 When seen by Dr Davey on 30 September 2005, Dr Davey notes that it would “appear” that the 2004 symptoms had settled, as the plaintiff complained of left thigh ache which had commenced the previous day. Examination findings consisted of left foot symptoms probably associated with an L4-L5 disc extrusion with minimally restricted left straight leg raising and minimally reduced left ankle reflexes.
The Evidence of Dr A Hassan
21 The plaintiff relies on medical reports from his general practitioner, Dr A Hassan, dated 20 June 2008, 28 March 2010 and 14 June 2011.[28]
[28] See Exhibit B at pages 21, 27 and 29A PCB
22 The defendant also tendered typed medical notes of Dr Hassan running from 16 November 2004 to 10 September 2009.[29]
[29] See Exhibit 6
23 Dr Hassan initially saw the plaintiff on 16 November 2004[30] when he complained of pain in his low-back of one week’s duration. He gave a history that he had bent to pick up chickens from the floor to hang them on the line when he suddenly felt “severe pain in his lower back”.
[30] The report refers to 16 November 2008 which is clearly a typographical error given the context of the reference.
24 Dr Hassan found that the plaintiff had restricted low-back movement and referred him for a CT scan. He advised him to avoid heavy bending and lifting and prescribed Nurofen.
25 He was reviewed on 23 November 2004, 29 November 2004 and 7 December 2004, at which time, on the basis of the CT scan report and his clinical examination, Dr Hassan diagnosed an L4-5 disc prolapse with sciatica. He continued to give the plaintiff certificates for light duties which continued until January 2005.
26 The plaintiff re-attended Dr Hassan on 30 November 2005 when he gave a history of persisting low-back pain for which he was taking Mobic on and off.
27 He then did not present until 8 August 2006, again complaining of low-back pain, prompting Dr Hassan to order a further CT scan.
28 The plaintiff re-attended Dr Hassan on 13 May 2008 complaining that his low- back pain had “flare-up” and physiotherapy at that time did not help “a lot”. Dr Hassan noted that the plaintiff was “very upset” since the recent separation from his partner and he ordered another CT scan of the low-back.
29 Dr Hassan further consulted with the plaintiff on 18 May 2008, wherein he discussed the recent CT scan which revealed “a strong suspicion of sciatica of L5-S1 disc prolapse”.
30 Dr Hassan further consulted with the plaintiff on 1 June 2008 and he issued a certificate for light modified duties.
31 The plaintiff re-attended Dr Hassan on 26 April 2009 when he reported that his low-back pain had “flared-up again and radiated to the left lower limb”. Dr Hassan prescribed Mobic and when again seen on 3 October 2009, prescribed the anti-depressant, Endep, which also has an analgesic effect on the sciatic nerve.
32 On 6 October 2010, Dr Hassan ordered a further updated CT scan which, according to him, revealed disc bulges at L3-4 and L4-5, together with impingement of the left L5 sciatic nerve. Dr Hassan referred the plaintiff to physiotherapy with Mr James Nelson at the Geelong Physiotherapy Clinic. When seen on 14 March 2010, Dr Hassan noted that the physiotherapy had been completed and the plaintiff continued to have back pain with pins and needles in the left lower leg. At that time, Dr Hassan referred the plaintiff to the Geelong Hospital for pain management and for psychiatric management for his chronic depression secondary to his chronic low-back pain.
33 The plaintiff was seen by Dr Hassan on several occasions throughout 2010, during which time he was also attending Dr Saleem Khan, a pain specialist at the Geelong Hospital who had prescribed Lyrica.
34 During 2011, Dr Hassan has continued to treat the plaintiff, prescribing him Tramal twice daily, a trial of Tramadol and a doctor from the Pain Clinic had prescribed the anti-depressant, Endep.
35 On 8 April 2011, the plaintiff underwent a lumbar nerve root sleeve injection under CT scan guidance by a Dr Talbot at the Pain Clinic.
36 When last seen by Dr Hassan on 4 June 2011, the plaintiff was complaining of burning pain in the left lower limb and he was prescribed Mobic and Tramal tablets for the pain.
37 In his report dated 14 June 2011, Dr Hassan states, in part:
“1
Diagnosis: Chronic low back pain due to disc prolapsed L4-5 with impingement of the left sciatic nerve. Also he developed chronic mild depression due to his chronic pain, loss of his job, financial stress, and unable to find a suitable job that is harmonized with his limited qualifications and experiences.
2
In my opinion, his injuries are a direct relationship to his employment at Steggel’s company (now Golden Farm) and it is consistent with his work injury.
3
I do believe he can’t do his pre-injury duties now or in the foreseeable future.
4
Mr Mohamed has no capacity for any physical job as lifting more than 5 kg or prolonged standing/sitting or twisting can flare up his low back pain.
5 Prognosis: it is ongoing issue. 6
In my opinion, this work-cover injury to his lower back left him with a permanent lower back pain, unable to do any physical job with the adding of the fact that he has no educational degree, no work experience/skills as well as chronic depressions causes no motivation, social isolation and insomnia.”[31]
(sic) [31] See Exhibit B at pages 29B - 29C PCB
38 Dr C DeNeef was one of the doctors treating the plaintiff at the Pain Management Unit and in a report dated 15 November 2010,[32] he opines that the plaintiff appeared to have –
“… mixed somatic and neuropathic pain secondary to lumbar 4-5 disc extrusion causing mild canal stenosis, mild right lateral recess stenosis and mild to moderate left lateral recess stenosis. … .”
[32] See Exhibit B at page 31A PCB
Although the left L5 nerve made contact without any evidence of high-grade compression, Dr DeNeef considered that neurosurgical opinion should be sought. Furthermore, he considered that the plaintiff was unfit for any work due to pain, but after treatment, may be able to return to some non-physical employment.
39 The plaintiff was reviewed by the Neurosurgery Access Clinic on 23 December 2010. In correspondence sent back to Dr Hassan, it was reported that neurological examination of the plaintiff showed strong and symmetrical reflexes and sensory testing did not demonstrate any abnormality in the distal dermatome. It was noted that there was some mild asymmetry in L3 and L4 dermatomes and motor testing showed that there was a generalised weakness in myotomes spreading from L2 to L5 of 4/5 strength. The writer of the correspondence noted that this was “more consistent with pain inhibition than true myotomal weakness”.[33]
[33] See Exhibit B at page 29D PCB
40 It is also noted that correspondence from the Neurosurgery Clinic dated 23 December 2010 indicates that the neurosurgeon, Mr McNeill, reviewed the MRI findings (scanned in November 2010) and determined that no neurosurgery was indicated which would verify that there is no consistent or specific neural compression and his myotomal weakness is more consistent with generalised pain inhibition.
41 After his referral to the Neurosurgical Clinic, the plaintiff was reviewed by the Pain Management Unit and underwent a nerve root sleeve injection on 8 April 2011. In a letter written by the Pain Clinic on 30 May 2011, it is stated:
“His pain has responded well to the nerve root sleeve injection. Now has
a burning pain down his leg that is worse with walking.
He is waiting for his local gym to waive the joining fees so that he can afford to join. … .”[34]
[34] See Exhibit B at page 29O PCB
42 Mr James Nelson performed physiotherapy on the plaintiff on 11 January 2010, 15 January 2010, 22 January 2010, 29 January 2010 and 12 February 2010 on referral from Dr Hassan. In a report dated 26 May 2010,[35] Mr Nelson adopts the CT findings, that is:
“disc bulging at L3/L4 and L5/L5 with an appearance suggestive of an inferiorly extending central disc extrusion at the latter level, scalloping the posterior cortical margin of L5. Lateral recess narrowing at the L4/5 level slightly more prominent on the left”
as the diagnosis.
[35] See Exhibit B at page 32 PCB
The Radiology
43 The plaintiff has undergone several radiological studies of his lumbar spine. They are:
(a)
A CT scan of the lumbar spine on 19 November 2004.[36] The conclusion of the report of that scan is:
[36] See Exhibit B at page 24 PCB
“Left L4/5 paracentral disc extrusion abutting the L5 nerve root
within the lateral recess. … .”
(b)
A further CT scan of the lumbar spine on 9 August 2006.[37] The conclusion of the report of that scan states:
[37] See Exhibit B at page 25 PCB
“Minor degenerative changes are described. No disc protrusion or
nerve root compression demonstrated.”
(c) A further CT scan of the lumbar spine on 14 May 2008.[38] The conclusion of the report of that scan states: [38] See Exhibit B at page 26 PCB
“There is strong suspicion of a small left paracentral disc protrusion at L5-S1 which appears to be impinging on the descending left S1 nerve root.”
(d) A further CT scan of the lumbar spine on 6 January 2010.[39] The conclusion of the report of that scan states: [39] See Exhibit B at page 29 PCB
“Disc bulging at L3/L4 and L4/L5 with an appearance suggestive of an inferiorly extending central disc extrusion at the latter level, scalloping the posterior cortical margin of L5. Lateral recess narrowing at the L4/5 level slightly more prominent on the left.
It would be worthwhile considering referral with a view to MRI for
further elucidation.”
(e) A plain x-ray of the lumbar spine on 10 July 2010.[40] The findings of the x-ray are reported as: [40] See Exhibit B at page 29F PCB
“Reduced lumbar lordosis with 2mm retrolisthesis of L3/4 and L4/5 with small anterior end plate osteophytes. Mild reduction of the L4/5 intervertebral disc height. Congenitally shortened pedicles of L5 noted which may predispose to a canal stenosis.”
(f) An MRI scan of the lumbar spine on 1 August 2010.[41] The conclusion of the MRI report states: “L4/5 left paracentral disc extrusion, with mild canal, mild right lateral recess and mild to moderate left lateral recess narrowing, with the left L5 nerve root contacted, without evidence of high grade compression.”
[41] See Exhibit B at page 29I of PCB
Medico-Legal Reports
44 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
[42] See report of same date – Exhibit B at page 34 PCB
[43] See report of same date – Exhibit B at page 40A PCB
(a) The occupational physician, Dr Robyn Horsley, on 24 June 2010;[42] and (b) The neurosurgeon, Associate Professor Richard Bittar, on 2 March 2011.[43] 45 Dr Horsley had all the radiological material save for the MRI scan. In her report she states, in part:
“… I believe that the nature of work at Steggles Poultry has resulted in a discal disruption, discal prolapse and discal extrusion. He has ongoing mechanical back pain and referred leg pain with an intermittent radicular component. He has radicular clinical signs. He has had very little vocational rehabilitation on history today. … .”[44]
[44] See Exhibit B at page 39 PCB
46 Later, Dr Horsley notes that various work restrictions would apply to the plaintiff involving avoidance of overreaching, pushing and pulling, bending and lifting, truncal rotation, lifting items greater than 10 to 12 kilograms on a permanent basis, avoidance of lifting items up to 8 to 10 kilograms on a repetitive basis and an avoidance of working in awkward and confined spaces. She further comments:
“He would benefit from assistance with vocational redirection, retraining and upgrading of skills, and pain management. I believe that his capacity for work on presentation today, is probably 15 to 20 hours per week within the restrictions as outlined above. His opportunities for redeployment however are quite limited. He is really only qualified for the manual arena. … .”[45]
[45] See Exhibit B at page 40 PCB
47 Associate Professor Bittar noted that the plaintiff walked with an antalgic gait and was of the opinion that the plaintiff presented with left L5 radiculopathy, secondary to the L4-5 intervertebral disc prolapse. Associate Professor Bittar was of the opinion that the plaintiff is permanently incapacitated for his pre- injury work as a process worker and that his capacity to procure and maintain suitable employment is negligible.
48 It is convenient to also refer to the medico-legal examinations arranged by the defendant. These consist of the following:
(a) Examination by the surgeon, Mr G S Peck, on 31 December 2004;[46] (b) Examination by the late general surgeon, Mr Robert D Marshall, on 11 August 2008;[47] (c) Examination by the general surgeon, Mr M J Troy, on 14 April 2009;[48] (d) Examinations by the orthopaedic surgeon, Mr Michael J Dooley, on 5 October 2009 and 15 October 2010;[49] (e) Examination by the psychiatrist, Dr N Strauss, on 25 November 2009[50] and also supplementary report dated 18 May 2011;[51] (f) Examination by the orthopaedic surgeon, Mr Roy Carey, on 19 July 2011,[52] together with two supplementary reports dated 18 August 2011 and 22 September 2011;[53] [46] See report dated 6 January 2005 contained in Exhibit 1 at page 3 DCB
[47] See report of same date contained in Exhibit 1 at page 7 DCB
[48] See report dated 15 April 2009 contained in Exhibit 1 at page 13 DCB
[49] See respectively reports dated 9 November 2009 and 19 October 2010 in Exhibit 1 at pages 20 and 23A DCB
[50] See report of same date contained in Exhibit 1 at page 26 DCB
[51] See report of same date contained in Exhibit 1 at page 32A DCB
[52] See report of same date contained in Exhibit 1 at page 32C DCB
[53] See Exhibit 1 at pages 32Q and 32U respectively of the DCB.
49 When seen on 31 December 2004, Mr Peck obtained a history that the plaintiff lifted a basket of chickens in 2002, at which time he experienced pain in the back. He was treated with an injection and was off work for three days, after which the condition “cleared”. About four to five months later he suffered a “temporary exacerbation” of the back pain, did not seek any treatment and the condition cleared.
50 He obtained the further history that on 7 October 2004, the plaintiff was bending down to pick up a chicken off the ground when he experienced on straightening, a severe pain in his lower left side. Examination revealed restricted low-back movements and some complaint of pain in the left lower back at the extremes of straight leg raising on the left side. Mr Peck had available an x-ray report which demonstrated the presence of a small L4-5 paracentral disc prolapse.
51 Mr Peck was of the opinion that the incident in October 2004 caused a disc prolapse at the L4-5 region with some nerve root pressure.
52 When seen in August 2008, the late Mr R D Marshall was of the opinion that there was –
“… no evidence at present that Mr Khodary is now suffering from a lesion
of a lumbar disc. … .”
53 At that time, Mr Marshall had CT scans taken on 19 November 2004, 9 August 2006 and 14 May 2008. He was of the opinion that any condition suffered by the plaintiff had “now resolved”.
54 Mr Troy examined the plaintiff essentially for the purposes of an impairment benefit rating. At the time of his examination, he diagnosed multiple level degenerative changes of the lumbar spine centred mainly on L4-5.
55 When initially seen on 5 October 2009, Mr Dooley was of the opinion that the plaintiff suffered from degenerative disc disease in the lumbar spine and that the incident of October 2004, caused the plaintiff to suffer a disc prolapse on the left side at L4-5 level.
56 In particular, Mr Dooley was of the opinion that the plaintiff was not “deliberately exaggerating his symptoms or presentation” but believed he was capable of increasing his activity and returning to work. Furthermore, Mr Dooley was of the opinion that the various scans showed age-related degenerative change and although it was probable that the plaintiff sustained a left-sided L4-5 disc prolapse, a scan some eighteen months later showed no obvious evidence of such prolapse.
57 Mr Dooley was of the opinion that the plaintiff was unfit to carry out his pre- injury work in the future but was capable of “carrying out light physical work and clerical duties”. In particular, although accepting that the plaintiff would have intermittent exacerbations of pain, Mr Dooley considered him capable of work as a taxi driver or courier driver.
58 When re-examined on 15 October 2010, Mr Dooley had the MRI undertaken in August 2010. Mr Dooley was of the opinion that little had changed from his first report but did note:
“… It is now six years since this episode … [October 2004] … In my view one cannot explain all of his ongoing pain on the basis of the organic injury only. The constancy and intensity of Mr Khodary’s ongoing pain are out of proportion to the injury sustained. As previously noted, patients after a lumbar disc prolapse will note some ongoing intermittent low back pain and lower limb pain. I would have expected Mr Khodary to have been more active in his everyday life to have been capable of undertaking a wider range of domestic, leisure and employment duties. … .”[54]
[54] See Exhibit 1 at page 23B DCB
59 Furthermore, Mr Dooley stated:
“From an orthopaedic viewpoint alone, Mr Khodary is capable of carrying out at least light physical work and clerical duties. I accept that at times prolonged sitting would aggravate his low back pain but I would still maintain that he could do driving or courier work that does not involve getting out of the car or van and moving around on an intermittent basis. I believe that Mr Khodary could work in sales and customer service. His ability to work as a kitchen assistant and baker would depend on how much bending and lifting would be involved in this work. I believe that he would have difficulty carrying out regular heavy physical work or work that involved a lot of bending and lifting. I would maintain that for Mr Khodary’s overall well being, it is very important that he returns to useful, satisfying and productive work.”[55]
[55] See Exhibit 1 at page 23C DCB
60 In his supplementary report, Mr Dooley proffers the opinion that the plaintiff would be capable of work as a sales assistant and he would be able to work as an assistant manager in a video store.
61 When seen on 19 July 2011, Mr Carey was of the opinion that the plaintiff had
“… a chronic spinal pain syndrome with examination findings indicating non-organic signs of abnormal illness behaviour – a primarily left hemibody paraesthesia syndrome.”
62 In this respect, he disagreed with the opinions of Associate Professor Bittar to the extent that any sensory alteration was confined to L5 and S1 dermatones and that any weakness was specific to the left extensor hallucis longus.
63 Mr Carey was of the opinion that the plaintiff was unfit for his normal pre-injury work and considered that an occupational physician would have to give an opinion about any rehabilitation or retraining. However, Mr Carey ultimately opined that the plaintiff “at best” may be fit for appropriate alternative duties on reduced hours.
64 In a supplementary report dated 18 August 2011, Mr Carey was asked to comment on the various radiological studies and ultimately opined that the films showed a central – left disc protrusion at L4-5 with some extension down beyond the body of L5. In particular, he states that his interpretation of all of the imaging is that:
“… the pathology was at L4/5 evident in 2004 and has not changed significantly although the MRI of 2010 shows the disc protrusion in better detail.”[56]
[56] See Exhibit 1 at page 32S DCB
65 In a supplementary report dated 22 September 2011, Mr Carey, on being supplied with the report from Professor Bittar, notes that seemingly he and Mr McNeill (the neurosurgeon at the Geelong Hospital) had a rather different set of examination findings than those obtained by Mr Bittar.
66 When examined on 25 November 2009, Dr Strauss accepted that the plaintiff was suffering from symptoms of anxiety and depression but did not believe that he had a diagnosable psychiatric illness. In particular, from a purely psychiatric point of view, Dr Strauss was of the opinion that the plaintiff was capable of all employment and there are no restrictions but there may be restrictions physically.
67 Dr Strauss did obtain a history from the plaintiff that he was “sacked” from his employment with the defendant after an argument with the manager. Furthermore, the plaintiff gave a history that he was unemployed for a year or two and then performed some factory work, after which he obtained a job as a taxi driver. Dr Strauss reports that the following history was given:
“… In fact he said he worked as a taxi driver off and on for two years up until this year and he said that several months ago he had argument with the man who owned the taxi he drove and he lost his taxi drivers license.
I asked him what the argument was about and he claimed that he swore over the radio and he swore at the man who owned the taxi and this caused a great deal of conflict.
I asked him whether he had coped as a taxi driver and he said that people were rude and cruel because of the colour of his skin but he did not state that there were any difficulties because of back pain. He said he simply felt uncomfortable at times driving a taxi and it is hard work and he said he would have kept going had he not lost his license.”[57]
[57] See Exhibit 1 at page 28 DCB
68 The plaintiff did not accept that he gave a history to Dr Strauss in those terms.[58]
[58] See generally T 105-107
Flexi Personnel Material
69 The plaintiff relies on a report from a Ms Kaye Angel, described as a human resources consultant with Flexi Personnel.[59]
[59] See Exhibit C
70 Ms Angel interviewed the plaintiff on 25 May 2010. In her report, Ms Angel formed the view that the plaintiff had –
“… very limited prospects of finding suitable employment or being retrained into any alternative vocation, full time or part time, which would be economically self-sustaining.”[60]
[60] See Exhibit C at page 49 PCB
The Cross-Examination of the Plaintiff
71 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
The plaintiff believed that he was “sacked” from the defendant in 2005 and in or about 2006 he commenced as a taxi driver after doing the initial course.
•
He drove “off and on” for three years and over any particular week it depended on his back pain how many days he could work.
•
He ceased driving taxis in about July or August 2009 and over the years from 2006 to 2009, he was working shorter hours because it was getting harder to drive. He ceased driving taxis because he was feeling “nervous when I take the Tramadol” and he was having arguments with people.[61]
•
He drove the taxi for a taxi owner and the taxi owner paid the taxi company for the radio and the bookings and he would receive 50 per cent of the earnings.
•
The plaintiff was shown records from the Taxi Directorate[62] setting out shift times of the plaintiff from 30 June 2006 to 4 August 2009.
•
The plaintiff gave evidence that although he may log on, it does not follow that he was driving and on many occasions he was either sitting in the car or staying in his house for many hours. In this respect, I refer to the following evidence:
[61] See T 18, L12-14
[62] See Exhibit 3
HIS HONOUR:
Q:
“As I understand, Mr Khodary, are you saying that sometimes you would log on and give your DC number 532001 but you might sit at home for two or three or four hours or something?---
A: Yes, yes, car with me, car is still in front of my house. Q: Why would you log on and sit at home for three or four
hours?---A: My back sore, sometimes I sick, I nervous, I not work, I
just ---Q:
But why log on then? Why log on at all if your back was sore or you were nervous? I can’t understand why you’re logging on and stay at home?---
A:
This car with me anyway. If I not right, not anyone have it. This car stay with me all shift. Him bring for me, to finish stay with me, stay in front of my house. Sometime I log on, I come and check for work, in radio, before you have to stand next to car, now you have some [indistinct] computer you take with you anywhere and if job come you go out. From this time before we now go to, like, stand outside house, if coming beep, beep, beep, if I know take job is going, I have to start again in the rank.”[63]
(sic) [63] See T 31, L5-24
•
During the period from June-July 2006 to June-July 2007, the plaintiff said he was driving a taxi for about six months. His taxation return for that year records earnings of $926.
•
The plaintiff agreed that he was averaging about $20 per week and gave the following evidence:
Q: “Were you working very long hours for that?--- A:
I said for you if you bring for me taxi I bring [indistinct] I be work for you I stay in my home, I no have to go out, stay in home and take my job. I don’t have to go anywhere, I don’t have to go in the taxi. Why would taxi? If job come, come, if no, not.
Q: Were you working long hours to make $20 each week?-
--A: Yes, I need just some money. I need just $6 to buy my
medication, I need money.”[64][64] See T 38, L29 – T 39, L6
•
The plaintiff denied the suggestion that he was not on Tramadol during this period when driving taxis.
•
The plaintiff gave evidence that he was having increasing trouble with his back when driving taxis and performing less driving as time went on. It was put to him that the Taxi Directorate’s records revealed that during July 2009, he logged on twenty-eight days during that month with two days for fourteen hours and for the shortest period, six times at eight hours a day.
•
When later queried about this period in July 2009, the plaintiff gave evidence that just because he was logged in, it does not mean he was driving. In particular, the plaintiff described how sometimes he would meet girls in the cab and they would invite him for coffee or for a dance or for “some things to do”. Sometimes the plaintiff would have a sexual relationship with girls he met while cab driving.
• The plaintiff uses a walking stick when the pain is severe. •
Before his back injury, the plaintiff played soccer, went “clubbing” every Friday, Saturday and Sunday and also went to gyms. Since he hurt his back he has been unable to go to soccer and far less frequently has he been involved in going clubbing. He does go to a gym where he does perform exercises to help his back.
• He last played soccer competitively in 2003/2004. • The plaintiff is capable of driving and has his own car. •
He attends a gymnasium and may remain there for anything from forty minutes to two hours, depending on whether he meets any friends.
•
When queried in relation to his assertion in his affidavit that his ongoing back condition causes sexual dysfunction and assertions that he has casual sex with some of his female passengers, the following evidence was given:
Q:
“And despite that you were on occasions going with people you met as fares in the taxi to have intercourse with them?---
A: And I have no sex, I have my finger and my tongue. Q: Sorry?--- A:
I don’t have to sex. You don’t have to do sex, and you don’t have to sleep with anyone. You go inside to lie with her, you don’t have to---
Q: You said yesterday that with some of those women you had
sex?---A: Yeah, yeah, yeah. If my back good I do sex, if my back bad,
I no do.” [65][65] See T 56, L24 – T 57, L2
•
The plaintiff believes that Dr Hassan prescribed Tramadol approximately two times with each prescription containing twenty tablets.
•
The plaintiff gave evidence that sometimes he charges taxi passengers fifty per cent of the fare or not at all because “this is part of my culture”.[66]
[66] See T 62, L28 – T 63, L4
72 Senior Counsel for the defendant put to the plaintiff various video films consisting of:
(a) film taken on 25 January 2010 which depicted the plaintiff at a gymnasium performing various exercises, including walking on a treadmill, riding a static bike and performing about five chin-ups, after which he dropped onto the floor; (b) film taken on 30 January 2010 when the plaintiff was shown cleaning the inside of his vehicle (involving twisting and bending) and later driving a passenger to a shopping centre and later walking quite quickly; (c) film taken on 25 March 2011, where the plaintiff is depicted attending the mosque where he seemed to be leaning very heavily and depending on the stick; (d) film taken on 29 March 2011, on which day he is filmed attending a pain management clinic with the stick and later in the day after attending the clinic he was walking without the aid of a stick; 73 The plaintiff gave evidence that his first work in Australia was as a kitchen hand in a Lorne restaurant.
74 The plaintiff gave evidence as to why he stopped taxi driving as follows:
Q: “Why did you stop taxi driving?--- A: I told you that I stopped because I was feeling nervous and I was
having, you know, an argument, a fight with them.Q: An argument or fight with who?--- A: With the managers. Q: The owner of the cab or the managers of where you got your work
from?---A: The company, Network Managers. Q: In general terms, what was the fight about?--- A: Because I would start, you know, between 4 and 5 o’clock until 11
o’clock and there was no money, no making money.”[67][67] See T 106, L26 – T 107, L3
75 In re-examination, the plaintiff gave the following pertinent evidence:
•
The plaintiff gave evidence that he was not physically able to drive a taxi now and that taking Panadol takes him to “another world”. Because of that it would affect his ability to drive a taxi.
•
He gave evidence that he was unable to keep going with the cleaning work because it involved bending and mopping, but was able to work a couple of days to pay off the debts that he had.
•
The injection in April 2011 improved his back pain but there is ongoing pain in the leg. However, the back pain did resume.
•
The plaintiff could not do traffic work full-time now because of his back pain.
•
When working as a kitchen hand, his work involving washing and putting things in the machine.
•
In Australia, other than working as a kitchen hand, the only work he has done is that with the defendant.
Analysis of the Evidence
76 I am satisfied that the plaintiff suffered a low-back injury on or about 6 June 2002 when lifting tubs during the course of his employment with the defendant. Such injury was treated with local anaesthetic injection and medication. Such injury was most probably short-lived and by 14 June 2002, Dr Davey had noted that the plaintiff had “no pain” and a pain-free full range of movement.
77 I am also satisfied that the plaintiff suffered a further back injury on or about 7 October 2004 when bending over to catch chickens during the course of his employment with the defendant. The consensus of medical opinion is that the plaintiff suffered an L4-5 disc prolapse which has given rise to intermittent radicular symptoms. It is to be noted that the last radiological examination, consisting of an MRI scan on 1 August 2010, concluded that there was evidence of L4-5 left paracentral disc extrusion with the left L5 nerve root contacted, without evidence of high-grade compression.
78 On balance, after a consideration of all of the evidence, I accept the opinions expressed by Mr Dooley, Dr Horsley and Mr Carey, who accepted there was a lesion at L4-5 with intermittent radicular symptoms, rather than the opinion of Associate Professor Bittar, who considered that the plaintiff presented with clear left L5 radiculopathy based on clinical examination.
79 Although Mr Dooley and Mr Carey considered that there were non-organic factors in the presentation of the plaintiff, both doctors, and indeed the other specialists (with the exception of Mr Marshall), all accepted that the plaintiff has some degree of impairment in his low-back with organic consequences. Furthermore, again based on these opinions and bearing in mind that the plaintiff has suffered symptoms since October 2004, I consider such condition to be permanent for the foreseeable future.
80 I accept that the plaintiff will have ongoing intermittent low-back pain and lower limb pain which will interfere with his capacity to perform heavier forms of work and various social and recreational activities. Bearing in mind the opinions of Mr Dooley and Mr Carey, the MRI findings, and the correspondence from the Neurosurgery Department of the Geelong Hospital to Dr Hassan, the weight of evidence would suggest that the plaintiff is unlikely to undergo surgery in the foreseeable future.
81 It is convenient to determine whether the plaintiff should be granted leave for common law proceedings for pecuniary loss damages. In relation to “pecuniary loss”, s.134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of hearing of the application, he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity as prescribed by paragraph (f), necessitates a comparison of two matters:
(a) What the plaintiff is earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and (b) The income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”). 82 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
83 Section 134AB(38)(e)(ii) requires the plaintiff to establish that he will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a loss of 40 per cent or more”.
84 Senior Counsel for the plaintiff referred me to Exhibit D which consists of a taxation summary of the plaintiff’s taxation returns for the financial years ending 30 June 2002 through to the financial year ending 30 June 2008. The actual taxation returns were also part of that tender. I note the gross income of the plaintiff to be as follows:
(a) For the financial year ending 30 June 2002 - $16,249.00 gross. (b) For the financial year ending 30 June 2003 - $42,446.00 gross. (c) For the financial year ending 30 June 2004 - $40,236.00 gross. (d) For the financial year ending 30 June 2005 - $39,973.00 gross. (e) For the financial year ending 30 June 2006 - $22,428.00 gross. (f) For the financial year ending 30 June 2007 - $926.00 gross. (g) For the financial year ending 30 June 2008 - $2,584.00 gross. (h) For the financial year ending 30 June 2009 - $5,410.00 gross. 85 I refer to Exhibit 2 and note that the Employer Claim Report records the plaintiff commencing employment with the defendant on 14 March 2002. Bearing in mind that the subject injury occurred in October 2004, the financial years ending 30 June 2003 and 30 June 2004 do represent earnings with the defendant. Furthermore, I also refer to the Claim Form lodged by the plaintiff on 3 December 2004 which details an hourly rate at that time of $16.55 which over a 38-hour week generates $707.71. To that sum there was regular overtime of one hour, representing a further $24.83 and a regular weekly shift allowance of $78.63. Accordingly, as at that date, the plaintiff was earning $811.17 gross per week or on an annualised basis, $42,180.84.
86 There is no direct evidence from the defendant as to what the plaintiff would have been earning if he had remained uninjured over the three years from the date of his injury. In this respect, Ms Kaye Angel from Flexi Personnel, has attempted to ascertain the likely increases in wages by applying the Fair Pay Commission annual increases. She ascertains a sum of $43,939.56.[68] I consider such an approach as little more than speculation, moreso when one considers that the wages were made up as at December 2004 in part through overtime and shift allowances as at that date. In all the circumstances, I consider that the sum of $42,000 is an appropriate “without injury” earnings. Sixty per cent of that sum is $25,200.
[68] See Exhibit C at page 47 PCB
87 After a consideration of all of the evidence, I have formed the view that the plaintiff is capable of performing suitable employment and in particular, has been and is capable of driving taxis consistent with the opinion of Mr Dooley. I also note that Mr Carey and Dr Horsley also consider the plaintiff to be fit for part-time light work.
88 Unfortunately, the evidence in relation to the taxi driving is somewhat confusing. Exhibit 3 sets out the shift times worked by the plaintiff from 30 June 2006 to 4 August 2009. At first blush, such shift times would suggest regular and constant work as a taxi driver. I also have the sworn evidence of the plaintiff that he estimates that he was earning as a taxi driver between $350 and $450 per week on average (as at 4 August 2009). The taxation returns do not bear out such earnings.
89 It is also unclear on the evidence as to why the plaintiff ceased work as a taxi driver – whether it be due to his ongoing back symptoms or because he was upset as to not getting enough work or he found, from a cultural point of view, taxi driving unattractive. Furthermore, the picture is further complicated, with him saying that sometimes he did not charge or charged half-price for various customers, which in turn must impact on his earnings.
90 Against this, is his assertion that he found taxi driving too difficult given his back symptoms.
91 $450 gross per week amounts to $23,400 on an annualised basis. Bearing in mind that the plaintiff carries the onus on this aspect, I am not satisfied that the plaintiff is incapable of earning $25,200 per annum through taxi driving. In this respect, I adopt the opinion of Mr Dooley, and although I do not necessarily find that the plaintiff could perform taxi driving on a full-time basis, I am of the opinion he could earn at least $25,200 per annum.
92 Furthermore, I do have some reservations as to the severity of the condition of the plaintiff, bearing in mind his filmed activities which on occasion suggested that he had reasonable mobility of his back, was able to walk normally and indeed, on one occasion, required a stick when going to a medical appointment but later in the day revealed reasonable normal activity involving walking without any aids.
93 Accordingly, I am of the opinion that the plaintiff has not discharged his onus that presently he has a loss of earning capacity of 40 per cent or more and furthermore, he has not discharged his onus of establishing that he will continue permanently to have a loss of earning capacity which will be productive of a loss of 40 per cent or more.
94 In relation to his claim that his low-back injury is a “serious injury” to “pain and suffering”, I am of the opinion that the plaintiff has discharged his onus in establishing that when judged by a comparison with other cases in the range of possible impairments, his impairment can be fairly described as “more than significant or marked” and as being “at least very considerable”.
95 The plaintiff is a forty-three year old man with limited education who has worked in Australia as a kitchen hand in a restaurant and as a labour intensive process worker with the defendant. He has no particular skills, and although I have found that he is capable of taxi driving (and for that matter, other forms of light work as suggested by Mr Dooley), I find that his injury and impairment inhibit him in performing work which involves repetitive bending, twisting and or lifting. Given his industrial background and reduced English language skills, such inhibitions reduce dramatically his avenues for employment. Furthermore, I am also of the opinion that the discal injury sustained by the plaintiff impacts on his recreational activities, such as soccer and his social life.
96 It is significant, in my view, that he is a relatively young man and as I have found, such condition is permanent with the likely prospect that he will suffer low-back pain and intermittent radicular symptoms, causing him to take medication as and when required.
Conclusion
97 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a low-back injury suffered by him on or about 7 October 2004.
- - -
Annexure A
1 The plaintiff tendered the following material:
(a) Exhibit A - Affidavits of the plaintiff sworn on 4 August 2009 and 26 July 2010 found at pages 11-20 of the Plaintiff’s Court Book (“PCB”). (b) Exhibit B – The plaintiff’s medical reports from pages 21 to 40D of the PCB. (c) Exhibit C – Report of Ms K Angel from Flexi Personnel dated 23 June 2010, found at pages 41 to 52 of the PCB. (d) Exhibit D – Taxation Summary of the plaintiff’s taxation returns up to 30 June 2008 at page 53 of the PCB, together with taxation returns from the year ending 30 June 2002 to 30 June 2009. (e) Exhibit E – document tendered by the plaintiff setting out surveillance dates where no films were taken or where the plaintiff was not sighted and where footage was obtained. 2 The defendant tendered the following material:
(a) Exhibit 1 – the defendant’s medical reports, at pages 3 to 32V of the Defendant’s Court Book (“DCB”), together with job description documents found at pages 40 to 58 of the DCB. (b) Exhibit 2 – Worker’s Claim Form dated 3 December 2004, employee claim report dated 30 December 2004 and worker’s claim for impairment benefits dated 7 February 2009 found at pages 33 to 39 of the DCB. (c) Exhibit 3 – Taxi Directorate material, shift times from 30 June 2006 to 4 August 2009. (d) Exhibit 4 – Taxi driver’s card and driver’s accreditation certificate dated 7 March 2009 to 7 March 2012. (e) Exhibit 5 – Typed medical reports from Dr Hamza from 7 June 2002 to 30 December 2005 (two pages). (f) Exhibit 6 – Medical records of Dr Hassan from 16 November 2004 to 10 September 2009. (g) Exhibit 7 – Video surveillance material (two discs) with film taken on 25 January 2010, 30 January 2010, 25 March 2011 and 29 March 2011.
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