Kindred v VWA
[2025] VCC 549
•1 May 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-02857
| Caine Kindred | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2025 | |
DATE OF JUDGMENT: | 1 May 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Kindred v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 549 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – workplace injury – injury to the neck – pain and suffering consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to the plaintiff to commence a common law proceeding for recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Slater and Gordon Lawyers |
| For the Defendant | Mr B McKenzie | Russel Kennedy |
HIS HONOUR: (ex tempore)
1First, dealing with the formalities and a little background information, Mr Caine Kindred is the plaintiff in this proceeding, and I shall refer to him in these reasons as the plaintiff. He is now 51 years of age. He is now a single man with three adult children. He has a background in manual type employment, as set out in the first of two affidavits sworn by him, including how he finished year 10 in Melbourne, then lived in regional Victoria in and around Shepparton, and in New South Wales, working in jobs such as shearing and the like, before returning to Melbourne in part to play football, but in Melbourne he has also had what could broadly be described as blue collar jobs.
2In that context, doing the best I can on the material, it appears that in about July 2021 he obtained a job operating a stacker to move shipping containers at premises operated by a company called CCIS ANL Australia Pty Ltd, who I will refer to as “ANL”. It seems that the plaintiff may have done similar type of work, perhaps through labour hire arrangements, before the work with ANL. For the purpose of this proceeding, he claims that the general nature and perhaps work conditions that he was exposed to at ANL caused him to suffer injury to his cervical spine.
3In that context, this is a serious injury application brought by him pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. Specifically, he claimed that because of the nature of the employment with ANL he had suffered a serious physical injury to his neck. He seeks the leave of the court to commence a common law proceeding for pain and suffering damages in circumstances where he continues to work as a stacker operator, although he now works for a company described in the material as Mainfreight, where apparently the equipment and working conditions are better.
4The case was conducted in the usual way. The parties each tendered documents from court books, principally being medical reports and medical records, together with affidavits sworn by the plaintiff on two occasions, an affidavit from his ex wife and an affidavit from his son.
5I have had the opportunity to consider the tendered evidence. I have also had the benefit of oral submissions from counsel for each of the plaintiff and the defendant. I have also had the benefit of my notes of the plaintiff's oral evidence. A transcript of his evidence is not yet available, but I am comfortable that I have a sufficient recall of his evidence and sufficient notes to proceed with this oral judgment.
6Also completing some preliminary matters, the plaintiff was required for cross examination, which in my view was appropriately short and sharp, and directed to the key issues in this proceeding, which essentially are the plaintiff's ongoing symptoms, his ongoing employment and his claimed impairment consequences by reference to what he had said in his affidavits, to the doctors and also by reference to what was contained in clinical notes, in particular from the treating general practitioner and treating osteopath.
7The legal principles in this proceeding are not in dispute. The plaintiff has the onus to, firstly, identify a compensable injury relied on by him for serious injury purposes, and then to identify the impairment and impairment consequences from the claimed serious injury so as to meet the well-known 'very considerable' test.
8There are also several things in this proceeding that are not in dispute. Firstly, for the purpose of this proceeding at least, the defendant accepts that the plaintiff suffered a compensable injury to his neck in the course of his employment with ANL. Next, the defendant also accepts that the plaintiff continues to have some ongoing impairment consequences from the accepted compensable injury to his neck.
9Pausing for a moment, having considered the medical evidence, which I will come to shortly, it could be said in this proceeding that the parties agree upon almost everything except the result. The result turns upon a value judgment as to whether the plaintiff does or does not have 'very considerable' impairment consequences. In that sense, in lay terms, this is the quintessential range case.
10Continuing in that theme, it could be said that there are some impairments and impairment consequences that are obviously serious and some that are obviously not. Bearing in mind that the court must consider the possible range of impairments and not just those that come before the courts,[1] it seems to me that there are some impairments and impairment consequences that fall somewhere in the middle of 'the range'. In my assessment, the proceeding now before the court is an example of that.
[1] TTB SMS Pty Ltd v Reading [2021] VSCA 203
11Turning then to say what is necessary about the evidence, commencing with the plaintiff's affidavits, the first of those was sworn by him on 20 February 2024. He deposed to what could be called pain and suffering consequences.[2] In fact he did that under the heading of 'Current condition'.
[2] Plaintiff’s Court Book (PCB) 17-18
12He commenced by saying that the neck injury had a terrible impact on his life.[3] He described headaches at least on a weekly basis, at times severe enough to cause him to lie down. He described some difficulty he had using prescription medication and otherwise relying on Nurofen and Panadol. He described the extent of the pain.
[3] PCB 26
13In particular he described how he had boxing equipment which was now gathering dust. He described interference with his ability to participate at least in social football or coaching and attending at a suburban football club.
14He described the need for ongoing physiotherapy and hydrotherapy, and massage. He said he was worried about his future. He had always worked in physical jobs. He noted that he had worked hard to overcome an earlier back injury, and he said that, although he had managed to continue working, the active physical outdoor life which he had once led was no longer possible for him to enjoy. Overall he described the symptoms having a huge impact on his life.
15Pausing there for a moment before dealing with his second affidavit, the evidence before the court is that some time ago the plaintiff suffered some form of back injury. More recently in response to a claim that he had lodged for an impairment assessment he was examined by Mr Roy Carey, orthopaedic surgeon, in approximately mid-2023.[4] Mr Carey noted that the plaintiff had ongoing low back discomfort, but opined that the plaintiff would not suffer any further harm by engaging in usual work and daily activity.
[4] Defendant’s Court Book (“DCB”) 133
16The plaintiff's own evidence, commencing with that first affidavit, is that he has some ongoing occasional pain or stiffness in his low back. As he said about the low back, he continues to have periods of general aches and pains,[5] and that is consistent with some of the clinical records that are contained in the defendant's court book. In short, the plaintiff from time to time might have some modest restrictions because of a pre-existing back condition, but it is no more than that.
[5] PCB 14, para 5
17Returning then to his affidavit evidence, in his second affidavit,[6] but more relevantly in the affidavit sworn on 11 February this year,[7] he again set out the ongoing consequences from his back injury. He described how his neck injury interfered with his hobby of fishing. He described how it interfered with driving. He said he gets regular flare ups which can lead to a severe headache and that he had to lie down because of these at least once a week and even at work sometimes in the break room.
[6] PCB 19
[7] PCB 20-23 (although reproduced out of order)
18He described how he still did housework and gardening, but either with pain or in a way that is not as enjoyable. He described himself as a pretty tough sort of guy and he is not one to complain much, and he said the neck injury had really knocked him about.
19In that affidavit he repeated his ongoing treatment, including hydrotherapy, self-managed exercises, including at the gym as had been taught to him by an osteopath. He described difficulties again with sleep, football, and fitness. In particular he said fitness had always been very important to him, and he described how pre injuring his neck he would box for 30 to 60 minutes a day to keep fit, and lifted weights, and again described himself as being used to being a big and strong and fit guy.
20In his oral evidence he confirmed that he still goes to a gym or does some of the work at his home gym, but not at the level that he did before. In particular, he no longer boxes and he cannot lift the weights that he used to.
21In his more recent affidavit he described how for neck pain he takes Panadeine Forte for regular pain relief, together with Valium for strong pain relief. I note there is a note from the treating general practitioner, Dr Benjamin Jose, that as recently as 20 February this year the plaintiff attended the general practitioner with what was described as 'neck pain recurrence, bad last two weeks', and was prescribed Valium and Panadeine Forte.[8] The Panadeine Forte was to be taken three times a day as needed and Valium once a day as needed.
[8] DCB 131
22In his affidavit sworn February this year the plaintiff said he took those prescription medications on the days when he had more neck pain and soreness. He took the Valium when he did something strenuous, and probably used Valium three to five times a month.
23In that affidavit he confirmed his ongoing employment as a stacker operator. He said that driving the stacker gives him neck pain because of the movement of his head involved in that work. He said he would like to take stronger painkillers or even just regular painkillers, but he cannot because he is operating machinery.
24He then noted he had failed two drug tests at work, not in a sinister sense but rather because he had been detected with Panadeine Forte and Valium in his system. He was not challenged about that evidence. He said his boss knows about his neck pain and medication, and is understanding. He said if he was not doing that job he would take more medication.
25He then described perhaps one of the contentious issue in this proceeding; that is, that he is hoping to stop work and that stopping work might help his neck pain. He described in that affidavit his plan, and I quote, 'to stop work soon and move to Queensland'. He described how he had family in Queensland and that was why he intended to move to Queensland. He otherwise described he is still undertaking some ongoing physiotherapy.
26Dealing then with his oral evidence, I start with the first proposition; that is, that the plaintiff struck me perhaps similar to the way he described himself in his affidavits as a straightforward and forthright man. He appeared to give his evidence in an entirely credible and straightforward manner without prevarication and broadly he was prepared to make concessions as appropriate.
27One of those concessions is that he continues to work with Mainfreight between 40 and 50 hours a week, doing nine to 10 hour shifts, without any medical certification for that work. It was put to him in cross examination that he really has little or no time off from that work because of neck pain. His evidence about that was a little unclear but, broadly, as I understood it, he accepted that he does not have a lot of time off for neck pain but might have some occasional time off, which was consistent with the clinical record where earlier this year he took two days off. He confirmed he had been with Main Freight since 2022.
28He was cross examined about his intention to move to Queensland. He said he hoped to do that at the end of this year. He said he decided to make the change because he has decided that he will not continue as a stacker operator anymore because of neck pain, although he again conceded that he has no medical certification to say that is a decision he should make.
29Mr McKenzie, on behalf of the defendant, then highlighted some of the clinical notes and medical material, including from Dr Jose and Professor Bittar as evidence from medical practitioners that in fact the plaintiff is capable of continuing in his current employment.
30The plaintiff accepted some of the evidence in those medical reports, including the evidence from Professor Bittar that he could sit, stand or drive for more than an hour, walk for 90 minutes, and that it was heavy lifting of items more than 15 kilograms that aggravated his pain.
31The plaintiff was broadly and appropriately challenged in cross examination about whether he has constant pain, as suggested in his affidavits, or whether it is intermittent. The defendant relied on the evidence in clinical records, but also the history obtained by Mr Bittar of intermittent pain, which I shall come to in a moment.
32It was put to him squarely that the neck pain is not constant. The plaintiff disagreed with that and said that it was constant, 'depending on what I am doing'. That answer could be thought to be a little equivocal. But, on a consideration of the whole of the evidence, I think it in fact supports two things.
33Firstly, the plaintiff is a blue collar man and not white collar. Secondly it highlights that he is not someone, as his counsel said, who is prone to exaggerate and, if anything, underreports his symptoms. As I understood his answer, he really has a base level of neck pain but it flares up depending on what he is doing, and it is in that context that I understand the references to intermittent.
34The plaintiff accepted that he does not regularly see his general practitioner. He accepted that he has presented infrequently to both the general practitioner and Ms Ly, the physiotherapist, and more recently Dr Nguyen, the osteopath. He accepted broadly as accurate the evidence from treating practitioners where he had described symptoms consistent with tightness in the neck. He accepted overall that the treatment is now transitioning to self management, although part of that, it would appear, is because of decisions made about funding.
35It was put to him that he had neck pain that comes and goes with intermittent flare up, and he agreed with that. But, again, I think that needs to be seen in my assessment of what he meant about intermittent.
36Returning to the planned move to Queensland, in his oral evidence he accepted he had been considering that as far back as September last year. He was cross examined about how one of his sons lives in Queensland and one in Ballina, and how he intends at some point to move to Queensland and take up employment with his son in a handyman business. He accepted broadly that he expects to be able to undertake work in that handyman business.
37He was cross examined about the fact that he still does some gym exercises, including what were described as cable exercises. It was put to him that really overall the situation was that his neck pain comes and goes, and he accepted that. But then it was squarely put to him that he had periods of no neck pain, and he did not accept that.
38In re-examination he said he gets symptoms from his current work. He said sitting to operate the machinery and looking up or down or from the side to side caused pain that he described as 'pretty constant'. He was asked about time off for neck pain, and confirmed that he had two days off in March this year after the drive to Shepparton caused things to flare up.
39He said his osteopath treatment had stopped on 3 April this year because funding for that had ceased. He has not been since then, and said that he had noticed increased soreness with work and that he planned to go back to the osteopath even if he had to pay for it himself. He also said that he had noticed an increased effect from headaches since the osteopathic treatment had ceased.
40In re-examination he said he still works out but not at the level or at the level of weights that he did before he was injured. He said he just cannot do it like that. He was asked about football and whether he would like to be coaching if he had not suffered an injury to his neck, and he said, 'I'd do a lot more. I'd probably look at coaching seniors or', in his words, 'give it a crack.' He said socially he did not do as much now because he does not want to aggravate his neck and because he needs to work.
41Very briefly with the medical material, there is probably not a great deal of difference between the material filed by the parties. For completeness, I note there is a report from the treating GP, Dr Jose,[9] in which the doctor opined not only that the plaintiff had a neck injury which he said involved disc protrusions from C3 through to C7. He said, because of that injury, the plaintiff should avoid sudden jerking movements involving the neck and heavy lifting, and activities that might cause accidental jerking such as contact sports, skiing or horseback riding, although I am not sure that there is any evidence of the plaintiff engaging in contact sports, skiing or horseback riding.
[9] PCB 125
42In any event, the GP also said the plaintiff should avoid frequent repetitive looking up, as that might cause a recurrence of neck pain. He said the plaintiff could continue with his current work, but should really avoid frequent looking upwards. He thought the plaintiff's condition would deteriorate with age and he would require regular physiotherapy and analgesic medications. He went further to opine that the plaintiff might require spinal surgery, although the specialist surgeons do not seem to go that far.
43There is a short report next from the plaintiff's treating osteopath, Dr Khang Nguyen, dated 28 January 25.[10] That really confirms an ongoing complaint of what he has described as tension and pain in the neck. The osteopath said the plaintiff continued to work and 'experiences occasional muscle tightness around the thoracic and cervical spine due to the prolonged static postures at work. Symptoms are manageable with treatment and exercise adherence'.
[10] PCB 127
44There are then several items of correspondence and a report from the treating physiotherapist, Ms Ly, but they are a little out of date and do not add much to the discussion, but I have read and considered them. Apart from clinical notes, that is really the extent of any treating material.
45That brings me to the relevant medico legal opinion, commencing with Professor Bittar in a report of 9 November 2023 to the plaintiff's solicitors.[11] He obtained a history of the onset of symptoms, conducted an examination of the plaintiff in which he described moderate restriction of cervical spine flexion and extension, and bilateral cervical paravertebral tenderness and spasm. He said there was no abnormal illness behaviour, and then opined that the plaintiff had suffered the aggravation of cervical spondylosis and cervicogenic headaches related to his employment. He said the plaintiff should continue with physiotherapy and hydrotherapy long term.
[11] PCB 136
46Whilst he endorsed the role at Main Freight, he said the plaintiff could not return to the different employment at ANL. I use the word 'different' there perhaps ineloquently. It is the same role but a slightly different working environment.
47He said the plaintiff had the ongoing capacity for employment, and his role that did not require repetitive or forceful pushing or pulling, repetitive or sudden neck movements, heavy lifting, or maintaining his neck in a fixed position.
48Professor Bittar then provided a further report dated 28 October 2024.[12] He noted the plaintiff continuing to work 40 to 50 hours per week.[13] He said the plaintiff avoided high stacking of containers in order to minimise the need to extend his neck repetitively or for long periods. He took a history of the plaintiff reporting intermittent neck pain which Professor Bittar said occurs up to around four times per day, typically lasting one to three hours on each occasion.
[12] PCB 140
[13] PCB 141
49He otherwise went on to say, though, that the plaintiff said the neck pain is generally dull, burning or aching in character. That is consistent with my view that the plaintiff has a base level of pain and flare ups.
50In any event, he noted the plaintiff's regime of analgesic medication and conservative treatment. He repeated his diagnosis. He repeated his view that the plaintiff should continue with the current treatment. He said the plaintiff may benefit from review by a pain specialist, but unlikely require surgery. He said the condition is likely stable with the continuation of physiotherapy and hydrotherapy in the long term.
51Professor Bittar said a number of restrictions should be placed on the plaintiff's employment, home and social activities as well as his hobbies because of his neck injury,[14] and he otherwise repeated his opinion about the posture or positions that the plaintiff should avoid, including repetitive neck or arm movements, forceful pushing or pulling.
[14] PCB 144
52Next, there is a report from Professor Bittar dated 12 February 2025.[15] That report does not add anything, really, to his earlier reports or the issue before the court.
[15] PCB 161
53Next, Dr Dominic Yong is an occupational physician who has provided reports to the plaintiff's solicitors, the first of which is dated 2 September 24.[16] He took a history of the plaintiff's presenting complaints. He set out the symptoms and treatment.[17] He then dealt with the plaintiff's history. On examination he also found tenderness to palpation of the lower aspect of the neck and that there was a mildly reduced range of flexion/extension in the neck.[18] He ultimately expressed an opinion perhaps not dissimilar to Professor Bittar; namely, that, with workplace modifications and accommodations, the plaintiff had a capacity to continue in his current employment.
[16] PCB 163
[17] PCB 165
[18] PCB 169
54Dr Yong then provided a supplementary report on 18 December 2024[19] but, again, that does not add much to the discussion.
[19] PCB 174
55Finally, in a summary of the relevant medical evidence are the opinions relied on by the defendant. The defendant relied on reports from Dr David Barton dated 14 July 2022[20] and Dr Graeme Doig dated 10 October 2023.[21] I have read and considered those reports, but they do not add much to the current discussion.
[20] DCB 6
[21] DCB 14
56More relevantly, the defendant relies on two reports from Mr Michael Dooley, an orthopaedic surgeon. The first of those reports is dated 5 August 24.[22] Mr Dooley obtained a history of the plaintiff's injury with ANL and his presenting complaints. He said the plaintiff continued to note neck pain, but he tried to remain active. He noted the history of conservative treatment.
[22] DCB 20
57He conducted a physical examination and noted some restriction for flexion and extension, consistent with the other examiners, and he also said that the plaintiff noted some neck pain with those movements.
58He then diagnosed a soft tissue injury to the cervical spine that has involved some aggravation of underlying, naturally occurring, mild degenerative disc change. In that sense there is nothing much at all between the experts as to the diagnosis of the injury.
59Mr Dooley then noted the plaintiff's ongoing difficulties with his current employment. He said, accepting the soft tissue injury that the plaintiff had suffered to his neck, he thought he had an understandable psychological reaction to that, but he said from an orthopaedic point of view the plaintiff did not require specific treatment but should maintain a low impact exercise and fitness program, and being able to take time to stretch and walk during his employment would help him. He said surgery was not indicated.
60He said from an orthopaedic point of view only he would expect the plaintiff to note some ongoing intermittent neck pain. He did not expect the condition to deteriorate.
61Mr Dooley provided a short supplementary report[23] after the review of some documents. Essentially he repeated his earlier opinion. He said, though, that regular walking and gymnasium exercises would help the plaintiff's cervical spine condition. He did not believe the plaintiff would require any additional treatment.
[23] DCB 122
62That is the extent of the relevant medical evidence and, indeed, the extent of the relevant evidence.
63Based on that material and drawing some threads together, firstly, I accept that the plaintiff suffered a neck injury with ANL. I accept that he has ongoing neck pain. I accept that he has flare ups. I accept that the flare ups are related to activity, including the employment activity that he continues to undertake.
64I accept that he continues to require the regular use of pain medication including strong prescription medication, but that his ability to use that medication is restricted because of the nature of the machinery that he operates in the course of his current employment. I accept his evidence that, if he did not have that job, he would resort to using the stronger painkillers more often. I accept that he has increased pain with work.
65I consider the plaintiff to some extent could be described as a stoic. He is not stoic in the sense of battling intractable pain and pushing on in circumstances where the medical evidence is that he should stop work. But he is a stoic, in my view, in the sense of someone who does not exaggerate his symptoms and is prepared to tolerate a level of pain to continue to work, perhaps in circumstances where someone less resilient would not, and in that sense I consider it would be wrongheaded to judge him more harshly than someone who perhaps more easily succumbs to pain.
66I accept that he will continue to work either here in his current employment or in Queensland. Whether or not that is in the same vocation is perhaps to some extent largely immaterial. I accept that he will have some restriction for work, as set out by the doctors.
67Some emphasis was placed by counsel for the plaintiff on the submission that it is the neck injury which is going to force him to cease his current employment. On a consideration of the whole of the evidence, I am not persuaded that his neck pain is at a level, firstly, where he must now cease employment or, secondly, that it will be the sole reason for him ceasing employment.
68It seems to me that a decision to cease his current work is likely to be multifactorial, including the fact that two of his children now live either in southern Queensland or northern New South Wales, and there are likely to be family issues at play, it seems to me, involved in that decision. But, equally, I accept the fact that his current job causes an increase or intermittent flare up in neck symptoms is a consideration in his decision to move.
69Overall, not much turns on that because of the limited use that can be made of that evidence for a proceeding that is for pain and suffering only and, in support of that proposition, I refer to what was said by the Court of Appeal in Ellis Management Services Pty Ltd v Taylor (“Ellis Management”).[24]
[24] [2013] VSCA 326 at paragraph 35
70The weight to attach to the evidence that the plaintiff's neck injury is going to impact his employment in this case is relatively limited because, unlike some other proceedings and in fact unlike the scenarios referred to in Ellis Management, this is not a situation where the plaintiff describes the loss of employment that is something that is of particular pleasure to him, although I acknowledge his evidence that it is a job that he continues to do and that previously, having had a back injury and got over that, to some extent he has been determined to battle on in the face of a neck injury.
71More specifically, in respect of pain and suffering consequences, I accept that the plaintiff's main interests were outdoorsy and included boxing, football and fishing. True it is those interests have not been destroyed but, equally, on my assessment of the evidence, they have been significantly impacted. The level of enjoyment that he previously obtained from those pursuits is now substantially reduced.
72I also thought his evidence was particularly poignant about how he now spends his weekends resting so that he can continue to work long hours and put up with the pain in his neck caused by that during the week. As his counsel submitted, his pain energy now goes into work and not his social life. As such, I accept that impacts his social and recreational life and will likely be ongoing.
73This is a case in which there is really no one big ticket item, as it were, but the sum of the parts of the plaintiff's ongoing pain, the fact that he is still a relatively young man at 55 years of age and will have to put up with that pain for many years, particularly for so long as he continues to work, in combination with the interference of the hobbies that he got particular pleasure from such as boxing, gym work, football, fishing, together with further impairment consequences, perhaps more limited, for sleep and ordinary daily activities such as driving, when the sum of those parts are added together for the purpose of this proceeding I am satisfied that it adds up to a 'very considerable' consequence.
74Accordingly, for the reasons expressed, leave is given to the plaintiff to commence a common law proceeding for injuries suffered in the course of his employment with ANL, and I will hear from the parties as to the precise wording, if necessary, of that leave and otherwise any other consequential orders in respect to costs.
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