Kocuk, Osman v Caelli Constructions Pty Ltd

[2009] VCC 1433

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No.

OSMAN KOCUK	Plaintiff
v
CAELLI CONSTRUCTIONS PTY LTD	Defendant

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JUDGE:	LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 & 30 OCTOBER 2009
DATE OF JUDGMENT:	19 November 2009
CASE MAY BE CITED AS:	Kocuk, Osman v. Caelli Constructions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1433

REASONS FOR JUDGMENT

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Catchwords: Serious Injury – low back injury – probable lumbo sacral disc prolapse – Plaintiff employed as carpenter – unfit for work as carpenter but fit for light duties – retrained for other employment – impairment not permanent – limited treatment – lifestyle otherwise normal – no serious injury – leave to commence proceeding refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. McGarvie SC with Mr. G.	Shine Lawyers
Pierorazio of counsel
For the Defendant	Mr. Scanlon QC with Ms.	Lander & Rogers
Taffe of counsel
HIS HONOUR:

Introduction

1. This is an application which relies on Part (a) of the definition of "serious injury" in sub-section (37) of section 134AB of the Accident Compensation Act 1985 (“the Act”), that is permanent serious impairment or loss of a body function.

2.   The body function relied upon is the spine.

3. The claim by the plaintiff instituted by Notice of Motion, seeks leave from the Court pursuant to sub section (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering.

4.  Particulars of Injury pleaded as at 15 October 2009 are found at the plaintiff’s court book (“PCB”) page 4. They are pleaded as:

a.	Injury to back, including disc protrusion at L4/5 and disc prolapse at L5/S1;
b.	Referred neurological symptoms to the left buttocks;
c.	Referred neurological symptoms to the left leg;
d.	Referred neurological symptoms to the left foot;
e.	Referred neurological symptoms intermittently to the right leg;
f.	Left sided sciatica;
g.	Psychiatric injury including stress, anxiety, depression and adjustment disorder.

5.  Mr. McGarvie SC with Mr. Pierorazio of counsel appeared on behalf of the plaintiff. Mr. Scanlon QC with Ms. Taffe of counsel appeared on behalf of the Defendants.

6.   The following evidence was adduced during the hearing:

• The plaintiff swore two affidavits and gave evidence and was cross- examined. The plaintiff’s first affidavit was sworn on 26 September 2008[1]. The second affidavit was sworn on 10 August 2009[2].

• The plaintiff’s general practitioner Dr. Mourad Alexander gave sworn evidence and was cross examined.

• The plaintiff tendered the following evidence - the Plaintiff's Court Book ("PCB") pages 5-66 (inclusive): Exhibit A

• The defendant tendered the following evidence - the Defendant's Court Book (“DCB”) pages 1-3 (inclusive), 6-8 (inclusive), 29-46 (inclusive), 77- 79 and 82-85 (both inclusive): Exhibit 6

[1]             PCB 5-14

[2] PCB 15-18

7.  In giving consideration to this application I have considered all of the evidence adduced by the respective parties.

8.  The plaintiff is 41 years of age. He is married with a dependant wife and four children. He migrated to Australia with his parents when he was aged 1 year. He completed year 12 at Collingwood Technical College and then commenced an apprenticeship as a carpenter which he completed. He has spent most of his working life working as a carpenter and has also worked as a truck driver.

9.  The plaintiff is currently in receipt of full payments from work cover as a result of being incapacitated for work because of an unrelated arm injury.

10.The plaintiff seeks leave of the Court to commence a proceeding for damages for pain and suffering as a result of injuring his lower back at work with the defendant on 12 July 2002 whilst carrying a piece of plywood (“the first incident”).

11.He claims to have aggravated that injury in a second incident whilst also working for the defendant on 15 July 2003 whilst lifting door frames, U Jacks and beams (“the second incident”).

12.The defendant opposes the granting of leave in the circumstances. It argues that the evidence shows that the plaintiff injured his lower back as early as 1999 whilst working for another employer and that in January of 2002 the plaintiff was then complaining of having a painful lower back. It further argues that if the plaintiff was injured in either the first incident or the second incident then the injury suffered by the plaintiff in each incident did not result in serious injury to the plaintiff within the meaning of the definition of “serious injury” in the Act and, if there was in either incident an aggravation of a pre-existing injury, the aggravation itself did not amount to a serious injury.

The Statutory Scheme

13.The application is brought pursuant to section 134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

14. The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[3]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[4]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. Here, although the particulars of injury above referred to plead “Psychiatric injury including stress, anxiety, depression and adjustment disorder” no evidence was lead that the plaintiff now suffers from this injury and Mr. McGarvie did not press the plaintiff’s case in that way.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently. Here, although the claim initially included a claim for leave to commence proceedings to claim damages for loss of earning capacity Mr. McGarvie expressly abandoned this claim in opening the case[5].
(g)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(h)	Subsection (38)(b) 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.

[3] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[4] Barwon Spinners, at paragraph 33

[5] Transcript page 1.

(i)  In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

(j) In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[6]

[6] (1994) 1 VR 436

15.I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

Work and Relevant Medical History

16.The plaintiff commenced employment with the Defendant as a carpenter on 4 June 2001. He said in his first affidavit that he had suffered from an upper back complaint whilst working for an earlier employer in 2001 but that complaint resolved after a couple of days off work. A WorkCover Certificate of Capacity tendered by the defendant reveals that Dr. Nettleton certified the plaintiff as suffering from “Facet Joint Dysfunction at L4-5/S1 levels on 14 October 1999[7]. The certificate reads inter alia: “Injured back while lifting ply sheet – aggravated later while bending”. It further indicates that the plaintiff should be restricted to “light duties” and “shouldn’t lift anything > 2Kg” “no bending or twisting” “no sitting for > 30 minutes at a time”.

[7] Exhibit 1

17.The content of exhibit 1 does not reveal any injury as having occurred on or around 14 October 1999 which was before the commencement of operation of section 134AB of the Act. I have acted in this matter on the basis that the back pain from which the plaintiff refers to as having suffered in around 2001 was in fact the back pain referred to in Exhibit 1. The plaintiff further deposed in his first affidavit that he had not been suffering from any serious back problems when he commenced work with the defendant. I accept that evidence.

18.Whilst working with the defendant he says that he did suffer from some back problems from time to time but put this down to normal aches and pains associated with working as a carpenter. He does not recall having time off work for back related problems prior to about June 2002. I accept that evidence.

19.As the evidence unfolded it became apparent that whilst seeing his general practitioner about other matters on 30 January 2002 he complained then of low back pain. The general practitioner Dr. Alexander thought there may then have been the possibility of a prolapse. He prescribed some naprosyn and suggested the plaintiff return in three days. As it transpired the plaintiff did not return to the doctor but continued working right up until July of 2002.

20.There was a visit to the general practitioner on 17 June 2002 when the plaintiff again complained of back pains. Dr Alexander suggested a CT scan be carried out. This was not done at that time and the plaintiff continued working until the occurrence of the first incident which he describes in paragraphs 8 and 9 of his first affidavit[8].

[8] PCB 6-7.

21.At the time of the occurrence of the first incident the plaintiff was carrying a large and awkward sheet of marine plywood, estimated size of 1.2 metres by 2.4 metres. The plywood had to be carried over some rough ground, and in the course of that the plaintiff lost his footing and almost fell, and in trying to prevent the fall twisted and jarred his back. He immediately felt extreme pain in his low back radiating down into the left buttock region. He dropped the piece of plywood because of the pain, and then lay on the ground for about 10 to 15 minutes. The plaintiff found it difficult to move, he was assisted up by a work mate, and taken to First Aid. He deposed that he had "not experienced this severe pain in my back and numbness in my buttock and leg before, even though I was used to a bit of back pain from time to time." The plaintiff was not challenged on this evidence and I accept it.

22.The plaintiff consulted his general practitioner on the day that the first incident occurred and also a chiropractor Dr. Peter Levis who has been treating him since this first incident. He treated him with massage, ultrasound, hydrotherapy and exercises.

23.The plaintiff had four weeks off work after the first incident and returned to work on light duties in August 2002.

24.In September 2002 there was a CT scan carried out. The report is in PCB at page 61. The conclusion was: “minor left-sided paracentral disc bulge noted, this is causing mild posterior displacement of the left S1 nerve root. No further change is seen."

25.The plaintiff had a further 6 or 7 weeks off after that CT scan then returned to work on light duties in October of 2002 at the site of the old Russell Street police station. He was initially doing light work, but increasingly carried out incidental pieces of carpentry, and during this time he continued to experience intermittent exacerbations of pain, and in particular found wearing his carpentry belt uncomfortable. In the run up to Christmas of 2002 he says he took it pretty easy and was looking forward to the shut down to get some rest. When he returned to work in January 2003 he was under considerable pressure to get back to doing normal duties, and decided to give it a go because he had four young children, a mortgage and a dependent non- working wife.

26.He worked avoiding any heavy lifting or bending on a repetitive basis or for long periods, and this situation continued until 15 July 2003 when the second incident occurred at the Russell Street site.

27.At that time the plaintiff was carrying and twisting during the course of the day, lifting door frames, U jacks and 6.4 inch beams 3.5 metres long. On this occasion he lifted one of these items when he experienced an aggravation of pain in his low back, the pain also radiated down the left leg. The following day he saw a general practitioner located at the City Baths, and Voltaren was prescribed, and a further WorkCover claim was put in which was also accepted.

28.The plaintiff had a few weeks off, after this second incident and returned to Russell Street on light duties as a traffic controller. The defendant was aware of the back injury and took it into account in the work assigned to the plaintiff. The plaintiff regarded his light duties as not being a real job and that situation continued for months.

29.The plaintiff was subsequently transferred to Craigieburn, where he once again performed light duties but because the plaintiff could not cope with the mundane nature of the light work duties he decided to quit. The plaintiff was not challenged on this evidence and I accept it.

30.The plaintiff’s case is that the reality is he was forced out of his job because of his inability to do his normal duties as a carpenter.

31.There was a second CT scan carried out on 23 September 2003[9]. This noted a broad based posterior disc bulge at L4/5 level. There was no associated thecal sac or nerve root compression. At L5 level there was parasagittal disc bulge on the left side of L5/S1 which displaces the left S1 nerve root posteriorly in the spinal canal without causing any significant nerve root impingement. The report concluded:

[9] PCB 62. 10 PCB 58

“Evidence of mild broadbased posterior disc bulge at the level of L4/5 with a parasagittal disc bulge displacing the S1 nerve root to the level of L5/S1. No further change is seen”.

32.The plaintiff was seen by Dr. David Fish at the request of the defendant’s insurer on 8 October 2003. Dr. Fish is an Consultant Occupational Physician. He opined, inter alia10:

"He has pain in the lower back which radiates to both legs, left worse than right. The pain is mainly in the posterior thigh and posterior calf with some tingling of the left leg."

"Summary and assessment:Mr Kocuk presents with an 18 month history of low back pain with a referred pain into the legs. Despite the CT scan there is no clinical evidence of radiculopathy. He has suffered from aggravation of a degenerate disc at L5/S1, and probably at L4/5 as well. His management has been reasonable and appropriate in that he has returned to work as practicable in alternative employment, however he is not fit for his full pre-injury duties at this time."

33.The plaintiff continued to consult with his general practitioner Dr. Alexander in the period after each of the incidents. He referred the plaintiff to Mr. Michael Dooley orthopaedic surgeon on 6 September 2004. It was Mr. Dooley that requested the MRI scan.

34.Mr. Dooley saw the plaintiff as a treating surgeon on 10 September 2004. Examination at that time revealed the plaintiff to have reduced flexion of the lumbosacral spine. Straight leg raising on the left was to thirty degrees. Neurologically the lower limbs were in tact. His report says “A CT scan suggests a small disc prolapse at the lumbosacral level on the left side”[11]. Mr. Dooley suggested an MRI be carried out “to better define the problem”.

[11] PCB 36

35.Mr. Dooley provided a second report dated October 18, 2005 after seeing the plaintiff for a second time, in which he opined that the plaintiff had sustained a lumbosacral disc prolapse where his employment was a direct contributing factor and he would be unfit for heavy physical work that involved repetitive bending and lifting but that he would be fit for light work duties.[12] Mr. Dooley noted that funding for an MRI image had only recently been received and he hoped it would be carried out in the near future.

[12] PCB 38. 13 PCB 38

"As outlined above, I believe that Mr Kocuk has sustained a lumbosacral disc prolapse in the episode described. As far as I can tell Mr Kocuk's episode has been a significant - a direct significant contributing factor to his injury. Currently Mr Kocuk would be unfit to perform heavy physical work or work that involved repetitive bending and heavy lifting. He would be capable of performing light duties work13."

36.There was an MRI carried out but not until 3 December 200714 more than two years after Mr. Dooley had given his second opinion. It concluded “Lower two level disc degeneration. At L5/S1, an asymmetric left sided broad based bulge contracts, but does not have significant mass effect upon the traversing left S1 nerve root. Mild left sided neural foraminal stenosis also seen at this level, without neural compromise. No central canal stenosis.”

37.The plaintiff was treated by a chiropractor Dr. Livis. He provided a number of

medical reports found at PCB 23-35. He opined, inter alia:

"Clinically Mr Kocuk has consistently presented with marked tenderness at the L5/S1 vertebral sequence increasing with a general range of movement most notably at their limits. There were spasms of the surrounding musculature, most notably the erector spinae, gluteal, quadratus lumborum and piriformis. Pain in the lumbo-sacral junction was increased with left lateral flexion and rotation. Straight leg raising has been limited from 55 to 30 degrees, dependent on exacerbations with pain being elicited at the midline lumbo-sacral junction radiating into the left buttock. Reflexes were brisk and symmetrical. Sensory responses appeared to be within normal limits.”

38.A further report from Dr. Livis dated 5 October 2009 says, inter alia15:

"Present complaints: On-going low back pain, pain in his left foot lateral heel and
along his arch, leg gives way when walking due to the decreasing sensation
of his foot/leg. Sleeplessness common place. Unable to sit for more than 45
minutes. His back stiffens up and he experiences numbness, paralysis in the left
leg."
“Under "Examination: Mr Kocuk has consecutively presented with marked
tenderness at L5/S1 function with concomitant left leg pain and intermittent
paraesthesias according to his activity levels. On palpation there were spasms and
rigidity of the surrounding musculature."
Then under "Opinion" at page 35: "Having been involved in two accidents of
significant dimensions while working for Caelli Constructions, Mr Kocuk has
been subjected to recurrent low back episodes of fluctuating severity and disability.
He has had difficulty resuming his previously enjoyed carpentry
career and has had to deal with a diminished functional capacity."
"Both radiologically and clinically there's irrefutable evidence to suggest
there is the presence of an intervertebral disc lesion which has either been caused or
aggravated by the recorded incidents. Mechanism of the injury would
undoubtedly be consistent with his signs and symptoms which are consistent with
internal disc disruption at the L5/S1 level. Mr Kocuk has displayed a commendable
and positive approach to his employment and recovery participating in all
aspects of self management and rehabilitation programs. Emotional overlay has not
played a prominent role in the resolution of injuries
at all. His signs and symptoms are likely to persist in the foreseeable future with a
fluctuating level of severity and debility with a solitary cause being the
initial and subsequent injury."

39.The evidence includes a medical report from Dr. Peter Edwards general practitioner from the Melbourne City Baths. He saw the plaintiff immediately after the occurrence of the second incident16. The report is not of great consequence and I record it only to place it properly in the medical history.

40.The plaintiff was referred to Mr. Kevin King orthopaedic surgeon for a medico legal report on 2 September 2009. His report is at PCB 43. Referring to the consequences of the two incidents, Mr. King opined, inter alia:

"On both occasions it's reasonable to assume that he exposed his lumbosacral spine to a significant degree of trauma, and on each occasion he presumably sustained some damage to the lumbar discs and associated ligamentous structures resulting in some mild but definite disc bulging of the L5/S1 level in particular. Such consecutive injuries to his lumbar spine of quite a significant severity adequately explains the acute onset of low back pain and left-sided sciatica on 12 July 2002, and the aggravation of those persisting symptoms on 15 July 2003. Accepting his clear statement he'd never had any problems at all with backache or leg pain prior to

14 PCB 64. 15 PCB 35 16 PCB 39

these two accidents, I would attribute all of his persisting problems with back and
sciatic pain to the effects of the two injuries."
"Permanently unfit to go back to heavy manual carpentry work, as what he'd done
throughout his adult life." "No indication for surgical treatment, but unfit to return to
his old normal duties as a carpenter. I can find no evidence of any sort of
psychological overlay."

41.The plaintiff was also referred to Mr. Geoffrey Klug neurosurgeon for medico legal assessment. His report is dated 6 August 2009[17]. Again referring to the two incidents and the complaints of low back pain in January and June of 2002 prior to the first incident, Mr Klug opined, inter alia:

[17] PCB 50.

"It would be my opinion that as a result of the incident occurring on 12 July 2002, he probably suffered a substantial aggravation of a back disorder which had been responsible for the earlier symptoms”

"I would further be of the opinion that a further aggravation occurred as described in 2003, both these aggravations would appear to be a direct consequence of the nature of his employment at that particular time. It would be my opinion that at the present time he continues to suffer from lumbar spondylosis with the most likely source of his pain being the L5/S1 intervertebral disc with possibly a contribution from the disc above. I do

believe that his complaint of back pain with some referral of pain to the lower limbs
would be consistent with the changes noted on imaging studies, including
the most recent CT scan. I am not convinced that he suffers from a radiculopathy."
"The disorder is responsible for back pain with some referral of pain into the left
lower limb, however without evidence of radiculopathy."
"It appears that because of his back condition he has developed an incapacity in
regard to certain aspects of his prior employment. I do believe the incapacity is a
direct result of the back disorder."
"It is possible he could undertake some light work at bench top height and
supervisory duties."
"Probably no option to consider a surgical procedure."
"I see no reason to doubt the on-going symptoms are a cause of frustration to him
and have some detrimental effect on his ability to undertake the activities of daily
living, particularly those of a physical nature. In particular I believe
his ability to participate in sporting activities is substantially reduced because of the
on-going back disorder."

42.In his affidavits the plaintiff says that prior to the first incident he was a fit and healthy man who played sport including soccer. He indicates he is not able now to run around and play soccer, at best he can have a kick in the park in a stationary manner with his son. He has also had to give up gym work. The plaintiff says in his affidavit material that as a result of his injuries his sex life has been adversely affected, he suffers from episodes of sleeplessness and he has had to give up his career as a carpenter and retrain in another field of endeavour.

43.In his affidavits and in evidence before me the plaintiff said that he had undertaken a course to train as a computer linesman installing cabling for computers. He has had discussions with Foxtel and hopes to get work which in theory could provide him with earnings significantly more than his earnings at the time of the occurrence of either incident. Doubtless this is the reason why the claim for leave to commence proceedings for loss of earnings was not proceeded with. However, it remains to be seen how well the plaintiff copes with this work having regard to the nature of his low back condition.

CROSS EXAMINATION OF THE PLAINTIFF AND ISSUES OF CREDIT

44.Amongst other things the defendant attacks the plaintiff’s credit in this proceeding. The plaintiff had told Mr. King that he had only been able to work for six months in each of the last few years. He was challenged on this. He agreed in cross examination that he had worked as a carpenter with Structural Systems commencing in March 2008 and working until February 2009 when he was laid off with other employees.[18] He agreed that had he not been laid off he would have continued to work as a carpenter. That I think is significant.

[18] Transcript pages 24-25

45.In cross examination the plaintiff agreed that immediately after he was laid off from Structural Systems he made a claim for compensation for an injury to his right arm as a result of which he has received full compensation in the form of weekly benefits ever since. The plaintiff also agreed that whilst he was working for Structural Systems he was receiving approximately $1,000 per week for working full time as a carpenter. In other words his earnings were undiminished by the injuries said to have been sustained in either the first or second incidents.

46.At paragraph 3 of his second affidavit the plaintiff deposed that he has not worked since February 2009. He went on to say that he could not work as a carpenter because his back could not cope with such work.[19] He was challenged on this in cross examination. He said he might have helped a person paint “a little bit of painting perhaps”[20]. When challenged he could not recall the name of the friend he was helping. He said he was paid $100 which was not declared in his tax return.[21] He agreed this occurred at the time he was receiving weekly benefits for total incapacity for work.

[19] PCB 15-16.

[20] Transcript page 32/23

[21] Transcript page 33.

47.The plaintiff agreed that he had the capacity to do painting and that he had built a new picket fence on his house whilst receiving weekly payments.

48.The plaintiff agreed that in 2004 whilst he was also off work as a carpenter because of his injuries and whilst he was in receipt of weekly benefits he had fitted corrugated iron sheeting to his garage. He said he was assisted by a friend “Felicio”. Of this matter the plaintiff said in his evidence:

WITNESS: Can I say something, sir? Leading up to the current time, which is probably three weeks prior to - well from, this date - I did put up a picket fence, yes, sir, I did paint, I painted the decking, sir, yes, and I did do the gardening around the house because right at this present time, sir, we are actually selling - the house is on the market, sir, so I had to spruce it up a little bit, as they say, Your Honour.

But prior to Mr Felicio's so-called date, I wasn't aware of his state ability, which I
guess I am not in any state to ask his personal details or what's wrong
with him or why he wasn't working. All I asked was if he could give me a hand,
which he did so, which I did go and get corrugated sheet iron sheeting, roof
sheeting from Bunnings, and then took it home and practically slid it off and then
picked it up with my arm and then wheeled it in, and that's about it, sir.[22]

[22] Transcript page 36

49.The plaintiff agreed that he did attend soccer games with his son but his activities were limited to kicking the ball. He agreed he could put out the witches hats at training if he wanted to. He said he could walk the dog and he does go for regular walks. But he said he was limited in his actions.23

50.The plaintiff was shown video surveillance of him taken on 2nd and 9th October 2009. The video went into evidence as exhibit 2. The video depicted the plaintiff alighting from his twin cab vehicle with a tray on the back at 3.11pm on 2 October 2009. The vehicle was parked outside the front of his house. The plaintiff can be seen attending to things on the tray of the truck. Nothing in this part of the video is adverse to the plaintiff’s case.

51.In the same video on 9 October 2009 at 3.40pm the plaintiff is again observed with the twin cab tray vehicle outside of his house with a load of timber on the back. The plaintiff can be observed untying the load which consists of timber on long lengths. At 3.48pm after speaking with friends he is seen to begin unloading the timber assisted by a young family member. That the timber lengths are not heavy may be concluded from the fact that the plaintiff’s young daughter may be seen to carry one of the lengths of timber on her own. In the background a trailer can be observed. The plaintiff agreed in evidence that it was filled with rubbish and building materials and he had filled it with help from a friend. He agreed that he had erected a new front picket fence on the house and that as part of that he had dug holes and placed the posts for the fence using a dry mix concrete. He agreed in cross examination that the concrete mix comes in 18 kilogram bags.

52.Whilst the video evidence itself is not very conclusive, when taken with the plaintiff’s sworn evidence I accept the position to be that in the first two weeks of October of this year the plaintiff was able to carry out general labouring type work around his house including gardening, carpentry work, digging holes and building a fence as well as cleaning up by loading rubbish into a trailer. The plaintiff was asked about the video:

MR SCANLON: In that film that you were shown taken this month, do you agree that
just looking at it, that you were moving quite well? --- I wouldn't call it quite
well, sir. If you probably notice that I do still have the limp, and I currently still have
a limp on my left hand side. So no, I am not moving as free as what I used to be
able to24.

53.I disagree with the plaintiff’s assessment of himself. In this video he appeared to me to be moving freely and without a limp. Significantly it is evidence showing the plaintiff being able to do work around the home unimpaired some two to three weeks prior to the hearing.

54.The plaintiff was then taken back in time. He was shown a video taken of him on 16 and 20 April 2004 at a time when he was off work on weekly payments.25 That video shows him walking with a slight limp at Bunnings with a friend. On 16 April 2004 the plaintiff can be seen tying a load of corrugated iron sheeting onto his vehicle at 11.58am and then unloading the material at 12.23pm.

23 Transcript pages 52-53.
24 Transcript page 50.

55.On 20 April 2004 at 9.32am the plaintiff is depicted at Kennards Hire in Bundoora where what appears to be a metal frame like scaffold is loaded by another man into the plaintiff’s vehicle. The plaintiff is standing back whilst this is done. At 9.55 the plaintiff is seen unloading the vehicle including unloading a large metal object which he is seen lifting and bouncing on the concrete before carrying it inside his house. Later he is seen attending other business premises and placing a load of wood into the tray of his vehicle.

56.At the time that Exhibit 4 was made the plaintiff was said to be totally incapacitated for work as a carpenter26. The video shows that in fact he was performing similar duties at his own home with the aid of a friend. The plaintiff admitted as much.27 The plaintiff was asked about the video:

Do you agree with that or not? --- I'm sorry?
Did you hear what I said? --- Say it again, sir?
Were you bending and stooping? --- I was, sir, yes. I suppose
you have to let's say adapt to what your capabilities are throughout the length of the
period that I have been suffering for, sir.

And you are bending and stooping? --- Well, sir - - - ways of tackling your injury28.

57.I accept this evidence. Having seen and heard the plaintiff give evidence I think he has endeavoured to live his life around his injury compensating if necessary to get jobs done as best he can. Whilst he has had periods off work from time to time, during those periods the plaintiff has been able to carry out work in and around his own home similar to that of a labourer/carpenter.

58.The plaintiff was then shown video footage taken of him on 20 and 22 October 200929. That video depicts the plaintiff taking his children to and from school. At one point he is seen jogging across the school pedestrian crossing. I do not place great emphasis on this although it helps reinforce the general impression I have of the plaintiff being able to live a relatively normal life having adjusted to some restriction because of on ongoing light work back.

25 Exhibit 4 26 Exhibit 3 27 Transcript page 69.

28 Transcript page 74.
29 Exhibit 5

59.In terms of current treatment the plaintiff gave evidence that he presently takes an anti-inflammatory drug “Mobic” “twice or once a week”[30]. Dr. Alexander in later evidence told me this was a 15mg dosage which is a light dosage. He said he had been to see the chiropractor Dr. Livis once or twice or five or six times in the last couple of years.

[30] Transcript page 76

THE GENERAL PRACTITIONER

60.Dr. Mourad Alexander the plaintiff’s general practitioner gave evidence generally in accordance with his medical reports.[31]

[31] PCB 19-22

61.When cross examined he agreed that the plaintiff had complained of low back pain on 30 January 2002, before the first incident. This was followed by further complaint on 17 June 2002.

62.In September 2008 he said he prescribed Mobic for an elbow injury, not for the back problem. He said that the plaintiff had attended upon him once or twice a year for the last four or five years for some anti inflammatory script. In cross examination it became apparent that the plaintiff had made little complaint to his general practitioner for his back related injury over the last two years or so and had been prescribed little in the way of medication for it.

DEFENDANT’S CASE

63.The defendant put into evidence the claim forms completed by the plaintiff[32]. I have had regard to both of these documents.

[32] DCB 1-3 and 6-8 (both inclusive)

64.The defendant had the plaintiff examined for medico legal purposes on 24 October 2002 by Dr. Phil Mutton a consultant occupational physician.[33] That report was after the occurrence of the first incident but before the second. It was Dr. Mutton’s opinion at that time that “there is unlikely to be permanent impairment. There is near normal range of movement”.[34]

[33] DCB 29

[34] DCB 33

65.Dr. Malcolm Brown also saw the plaintiff for medico legal purposes on 26 April 2004, 7 July 2004, 26 July 2004 and 25 May 2005.[35] In his report of 26 April 2004, Dr. Brown opined inter alia:

[35] DCB 29-46 (inclusive)

“If he had any aggravation of his back pain from the incidents at work, any such effect has in my opinion long since ceased – this is the natural history of such incidents. In my opinion his current symptoms are due to lack of appropriate treatment in the form of trunk stabilising exercises, and the use of a back brace.”[36]

[36] DCB 36

66.

In his last report, Dr. Brown opined, inter alia: evidence of sciatica. Based on the clinical findings, some of his pain may be emanating from the left sacroiliac joint. I note that the reporting radiologist stated in January 2005 that there had not been any changes since 30 September 2002. The changes seen radiologically are unlikely to have any clinical significance as they are widespread in the asymptomatic population.”[37]

[37] DCB 44

67.Mr. Scanlon submitted that this was a case where the plaintiff will successfully return to alternate duties. He relied on the decision of the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. He argued that the fact that the plaintiff will likely return to full time work shows that he has not suffered a serious injury. In Sumbul, Chernov JA (with whom Nettle and Redlich JJA agreed ) said at paragraph 24:

“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable.” In my view, there was no such evidence before her Honour.”

68.However, what Chernov JA said in Sumbul was considered recently in Stijepic v. One Force Group Aust Pty Ltd [2009] VSCA 181. In that case the Court said at paragraph 47, inter alia:

“So far as the respondent’s final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”

69.Mr. Scanlon submitted that on the evidence here the plaintiff has suffered no impairment. He argued that the plaintiff has led a normal life. Mr. Scanlon submitted the plaintiff’s interest was his work and family and he still enjoys both of these as evidenced from the videos. The videos show that the plaintiff has built a shed, loads and unloads trailers with rubbish and equipment, builds a front fence and does painting. In short Mr. Scanlon submitted that the evidence shows that the plaintiff leads a normal life.

70.Mr. Scanlon pointed to the fact that the plaintiff has had limited treatment and had not made many complaints to his general practitioner over the last three years. Also he had been prescribed little in the way of medication. Further, no surgery is proposed for the plaintiff.

71.Mr. Scanlon points to the evidence of CT imaging at PCB 66 which he argued

accords completely with the other medical evidence:

"Vertebral height are preserved. The facets joints are normal. There is no pars defect. The L5-S1 disc shows mild, left paracentral diffuse bulge. L4-5 disc shows minimal to mild diffuse bulge. Remaining lumbar discs show normal posterior morphology. Central canal calibre is maintained, the lumbar exit foramina are capacious, the exiting nerve roots are not compressed. Conclusion. Mild lower lumbar degenerative discs. No central canal stenosis and no foraminal stenosis."[38]

[38] Transcript page 105

72.I accept that there is not a lot of area for disputation between the various medical opinions in this case. There is only one medical report from a treating orthopaedic surgeon which is now quite dated. That is the reports of Mr. Michael Dooley. In those reports Mr. Dooley concludes that the plaintiff has what might be described as a light work back. At PCB 38 Mr. Dooley said that the plaintiff suffered a lumbo sacral disc prolapse. I accept this evidence. However, when taken with all of the other evidence I have received I conclude there is strength in the argument advanced by Mr. Scanlon. The evidence does not lead to noticeable permanent impairment of the plaintiff’s back. No doctor has suggested the plaintiff should undergo surgery. His injury has always been treated conservatively and I find the treatment has been spasmodic.

73.The plaintiff’s case is that he was injured in the first incident and this was aggravated in the second incident. As to the earlier complaints the plaintiff’s case is that these were nothing more than examples of niggles that might be expected of a person working full time as a carpenter from time to time. The plaintiff says and I accept that by July 2002 he was perfectly fit. The question is whether the plaintiff suffered a serious injury in either of the first or second incidents.

74.Mr. McGarvie argues that the evidence shows ongoing impairment for the plaintiff. True it is that the plaintiff has carried out work at his house but with difficulty. Further, the plaintiff is restricted in his movements and cannot enjoy playing soccer with his son at the same level that he used to. Further, argues Mr. McGarvie, the plaintiff has lost the ability to work in his chosen career as a carpenter and that is a significant evidence of ongoing impairment.

75.Mr. McGarvie points to the limp evidenced in the video Exhibit 2. As I said in argument that video does evidence the plaintiff limping slightly in my opinion. But that was more than five years ago. The limp is not seen in more recent video evidence. The plaintiff’s case is not consistent with what is shown in all of the video evidence. Further, the case put is not consistent with the relative lack of medical treatment and on a spasmodic basis. Were the plaintiff’s level of pain and impairment at a considerable or high level I would have expected to find in the evidence more frequent attendances for medical treatment and more medication being administered to the plaintiff. That is simply not the case.

76.In my judgement the plaintiff was injured in each of the incidents described above. The nature of the injury on each occasion was in the nature of aggravation of pre- existing disc degeneration of the lumbar spine. There probably was a lumbo sacral disc prolapse that has now largely resolved. I find that the injuries suffered did cause some impairment of the spine but that impairment was not in my judgment permanent.

77.Having regard to what the plaintiff has said in his affidavits in support of his application and in evidence before me, it is clear to me that the pain and suffering from injury which the plaintiff now suffers as a result of one or other of the incidents is best described as pain in the sense of amounting to discomfort but it does not, in my judgment, constitute pain that could be described as “at least very considerable” and it could not be described as being “more than significant” or “marked” when judged by comparison with other cases in the range of possible impairments or losses of a body function. The plaintiff is clearly inconvenienced by the level of pain from time to time but it is managed by medication only when required. The plaintiff does not take a lot of anti inflammatory medication or pain killing medication. He is receiving little if any medical treatment and having adjusted to his condition leads what appears to be a relatively normal life. He is fit to resume an alternative career.

78.For these reasons, in my judgment any injury suffered by the plaintiff in either the first or second incident could not be said to be a “serious injury” within the meaning of that expression in section 134AB(37) of that Act. It follows that the plaintiff’s Originating Motion dated 9 February 2009 is dismissed.