Lao v Kantfield Pty Ltd
[2021] VCC 685
•28 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-05557
| YOU LONG LAO | Plaintiff |
| v | |
| KANTFIELD PTY LTD (ACN 006 073 418) | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 9, 10, 11 & 12 November 2020 | |
DATE OF JUDGMENT: | 28 May 2021 | |
CASE MAY BE CITED AS: | Lao v Kantfield Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 685 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT
Catchwords: General damages - liability admitted by defendant - pain and suffering - past and future economic loss - vicissitudes
Cases Cited:March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506; National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Strong v Woolworths Ltd (2012) 246 CLR 182; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Tabet v Gett (2010) 240 CLR 537; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Sahin v Victorian WorkCover Authority [2017] VSCA 13; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Willett v Victoria (2013) 42 VR 571; Amaca Pty Ltd v King (2011) 35 VR 280; Fox v Wood (1981) 148 CLR 438; Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436; Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348; Winky Pop Pty Ltd v Mobil Australia Refining Pty Ltd [2016] VSCA 187; Wearne v State of Victoria [2017] VSC 25; Bucic v Arnej Pty Ltd [2019] VSC 330.
Judgment: Judgment for the Plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Mr S Smith QC with Ms K Manning | Wisewould Mahony |
HIS HONOUR:
Overview
1This proceeding was heard as a Cause via Zoom with the consent of the parties.
2Liability was admitted by the defendant prior to trial. It now falls necessary to assess the extent of the plaintiff’s entitlement to damages for pain and suffering and pecuniary loss for injuries he sustained in the course of his employment with the defendant, including in particular, an incident which took place on 15 May 2017.
3The plaintiff was represented by Mr J Brett QC together with Mr G Pierorazio of counsel and the defendant was represented by Mr S Smith QC together with Ms K Manning of counsel.
4The issues in this proceeding are reduced to:
(i)The appropriate compensation by way of general damages for the plaintiff’s pain and suffering as a result of the admitted work injury;
(ii)The amount, if any, of the plaintiff’s past and future loss of earnings.
5The plaintiff claims pain and suffering damages and pecuniary loss damages based on the proposition that he has had no capacity to work from May 2017, when he ceased work, to the present time, and that he is unlikely to be able to return to any form of suitable and gainful employment in the future. He relies on the physical injury he suffered at work and the development of a secondary mental injury stemming from the work injury. He said he had anticipated working until he could receive the aged pension.[1] He said he knew nothing else but work. His daughter, Ms Susan Lao testified. She was impressive. She spoke with affection for her father. She gave her evidence in an unassuming manner. She recalled once having asked her parents why they would not choose to stop working at the age they had then reached and, perhaps like so many others, go and travel the world? Her father replied, “We're not people who travel, we're not people who explore the world. We just want to work, it fills our day.[2]" I think the plaintiff’s answer to his daughter’s question fairly sums up the favourable impression I formed of his pre-injury work ethic.
[1] Transcript (‘T’) 28, Line (‘L’) 20-24.
[2] T 192, L12-14.
Plaintiff’s credibility
6I listened carefully and paid keen attention to the plaintiff during the course of his evidence-in-chief and cross-examination. I formed a positive impression of him. Overall, I assessed him to be an honest and straightforward historian in answering questions put to him in cross-exanimation. Indeed, on occasions he provided answers that on their face might appear to have been disadvantageous to him, a consideration that in my assessment, belied any attempt by him to deliberately mislead or dissemble. For example, the medical evidence identifies that when presenting to doctors, the plaintiff was willing to demonstrate a capacity of movement as for example, walking on his heels and tiptoes, hopping on each foot, and performing a relatively deep squat. I found no evidence of an effort to manufacture or exaggerate his situation on presentation to doctors. So too, in his oral evidence, he was readily forthcoming about the joy he derives from gardening and that it helps him tolerate the pain he experiences on physical activity, even though some limited surveillance footage relied on by the defendant conveys no apparent outward indication of pain or limitation.
7The defendant, however, adduced evidence that it submitted should lead me to conclude that:
· the plaintiff retains a physical capacity beyond the extent claimed;
· his presentation incorporates a component of exaggeration;
· he has a pre-existing history of psychological symptoms that was not disclosed to medical practitioners; and
· because he suffered from asymptomatic degenerative changes in his lumbar spine, there existed a real risk that he would not have been able to continue in his employment into the future, irrespective of his work injury.
8Although there are a number of differences between the plaintiff’s treaters and medico-legal opinions on the one hand, and those of the defendant’s experts on the other, one common feature is the assessment that the plaintiff could not return to his previous employment and duties. It was not suggested to the contrary by the defendant. I am satisfied of this as a matter of fact.
9However, the defendant says that the plaintiff has a retained capacity for full-time suitable employment in a number of identified jobs. It says the notion that his work injury has resulted in a loss of an ability to engage in suitable employment should be moderated by an asymptomatic pre-existing degenerative condition of his back, such that at his age, even had the subject injury not occurred, it is unlikely he would have been able maintain his pre-injury employment until age 67. Therefore, I should make an appropriate allowance for that probability in any assessment of damages for pecuniary loss.
Plaintiff’s evidence
10In addition to his testimony and of his daughter, the plaintiff relied on the following evidence:
Medical Evidence:
· Medical Report by Dr Verrills dated 9 November 2019;[3]
[3] Exhibit P3, Plaintiff’s Court Book (‘PCB’) 53-62.
· Medical Report by Dr Verrills dated 8 October 2020;[4]
[4] Exhibit P4, PCB 77-78.
· Medical Reports by Dr Turnbull dated 20 August 2019[5] and 18 September 2020;[6]
[5] Exhibit P6, PCB 49-52.
[6] Exhibit P6, PCB 65-68.
· Medical Report by Dr Greg Malham dated 2 December 2019;[7]
[7] Exhibit P7, PCB 63-64.
· Report of Dr Vadasseri dated 7 October 2020;[8]
[8] Exhibit P8, PCB 69-72.
· Report of Dr Amanda Wallis dated 8 October 2020;[9]
[9] Exhibit P9, PCB 73-76.
· MRIs of lumbar spine dated 18 May 2017[10] and 17 May 2019;[11]
[10] Exhibit P10, PCB 79-80.
[11] Exhibit P10, PCB 81-82.
· Medico-legal Reports by Mr Paul D’Urso dated 1 July 2020[12] and 16 September 2019;[13]
· Medico Legal Report by Dr Lester Walton dated 30 September 2020;[14]
· Reports by Associate Professor Saji Damodaran dated 14 March 2018,[15] 17 June 2018[16] and 14 November 2018[17]; and
· Reports by Dr Michael Bloom dated 20 May 2019[18] and 23 September 2020.[19]
Other documents:
· Plaintiffs payslips dated 15 February 2017 – 21 February 2017 and 8 February 2017 -14 February 2017;[20]
· Plaintiff’s Letter of Termination dated 28 August 2018;[21]
· Suite of photographs of front lawn and hedge taken at uncertain dates prior to injury;[22]
· Plaintiff’s leave records dated 2000-2018;[23] and
· Comparable wage record dated October 2020.[24]
[12] Exhibit P11, PCB 83-85.
[13] Exhibit P11, PCB 86-90.
[14] Exhibit P12, PCB 91-95.
[15] Exhibit P15, DCB 10-19.
[16] Exhibit P15, DCB 20-22.
[17] Exhibit P15, DCB 23-33.
[18] Exhibit P16, DCB 71-80.
[19] Exhibit P16, DCB 81-88.
[20] Exhibit P1, PCB 146-147.
[21] Exhibit P2, PCB 141-142.
[22] Exhibit P5, PCB 176-178.
[23] Exhibit P13, PCB 161-175.
[24] Exhibit P14, PCB 160.
Defendant’s evidence
11The defendant relied on the following evidence:
Medical evidence:
· Medical Report by Dr Michael Baynes;[25]
[25] Exhibit D2, DCB 5-9.
· Medical Report of Professor Anthony Buzzard dated 20 August 2018;[26]
[26] Exhibit D3, DCB 34-42.
· Medical Report of Associate Professor Boffa dated 1 November 2018;[27]
· Medical Report of Dr John Lange dated 7 February 2018;[28]
· Medical Report of Associate Professor Peter Doherty dated 26 April 2019;[29]
· Medical Report of Mr Rodney Simm dated 10 April 2019;[30] and
Surveillance footage
· Surveillance video of 20 July 2020 and 2 August 2020[31]
Other documents:
· Plaintiffs Affidavit sworn 26 February 2019;[32] and
· Record of clinical attendances dated 18 May 2017.[33]
[27] Exhibit D4, DCB 43-46.
[28] Exhibit D5, DCB 47-53.
[29] Exhibit D6, DCB 54-63.
[30] Exhibit D7, DCB 64-70.
[31] Exhibit D1.
[32] Exhibit D8, DCB 108-118.
[33] Exhibit D9, DCB 106-107.
The plaintiff’s date of birth
12The means of calculation of the plaintiff’s claim for any economic loss was disputed by the defendant. This element of the dispute related to the plaintiff’s claimed date of birth of 11 December 1962. The defendant contends that the plaintiff’s date of birth is, more probably than not, 11 December 1958, and any loss of earnings I might determine to which he is entitled should be calculated and awarded on this older age by reference to this alternative date.
13There is unquestionably some doubt as to the accuracy of the plaintiff’s date of birth, but I was told that 1962 is the year recorded on his driver’s licence and on his passport. Although not tendered in evidence, the defendant did not challenge the date these documents are said to record.[34]
[34] T275, L1-4.
14That 1962 is the plaintiff’s year of birth is reported in some of the medico-legal opinions. On the other hand, that the plaintiff might be older, and have been born before 1962, also finds support in several places. It commences with the plaintiff’s oral evidence.
15The plaintiff explained that his mother, who has since died, mentioned at some stage that he was older than the documents referred to record. She apparently used the birth of a cousin in the same village in Cambodia that occurred at or about the time as his birth as a reference point for his birthdate. As well, there are a number of statements of the plaintiff being older that are contained in medical material tendered in the hearing including, attributions accorded the plaintiff by doctors on examination. For example, Dr Walton who prepared a medico-legal report on behalf of the plaintiff, commented that the plaintiff believes his mother may have been confused about the date of his birth and that he was born four years earlier. However, when cross-examined by Mr Smith about the comment attributed to him by Dr Walton, the plaintiff said he could not recall it. Dr Bloom saw the plaintiff on behalf of the defendant. He prepared two reports. He mentioned that the plaintiff sometimes thinks he feels older than is recorded on official documents. When he was asked about this in cross-examination, the plaintiff also could not remember having made such a comment to Dr Bloom.[35]
[35] T91, L12-14.
16Despite a degree of uncertainty, on balance, I am satisfied that any economic loss of earnings should be calculated on a date of birth for the plaintiff of 11 December 1962. I prefer to place reliance on the issuance to him of documents by government agencies. A passport and driver’s licence comprise official Commonwealth and State Government documents and consist of that class of thing that are regularly required in order to establish, among other matters, proof of the holder’s identity and age. By contrast, I am not satisfied that utterances attributed to the plaintiff that he thinks himself older than his years, amounts to more reliable evidence. After all, if a person’s sense of their own age was invariably a sufficiently sound basis for a finding of fact, many a person’s age might rival that of Methuselah[36]. Thus, I find that on the balance of evidence, that the plaintiff is 58 years of age.
[36] Methuselah was a biblical patriarch and a figure in Judaism, Christianity, and Islam. Having died at the age of 969, he lived the longest of all human figures mentioned in the Bible.
Preinjury work and injury
17The plaintiff came to Australia from Cambodia in 1982, with few skills and little education. He obtained labouring jobs until commencing work with Holden in approximately 1984. In August 1994, he commenced employment with the defendant. It conducts a business manufacturing pellets of plastic.
18Over time, the plaintiff’s back was put under stress by several heavy lifting tasks. In evidence he described workdays in which he could lift upwards of 300 kilograms although he said it was more usually up to 200 kilograms. However, he did not suffer an identified back injury until an incident which occurred on or about 15 May 2017, when he was attempting to insert two large screws weighing a total of 28 kilograms into a barrel. Whilst undertaking this task he felt significant pain in his lower back.
19The plaintiff endeavoured to obtain medical treatment the following day with his regular general practitioner, but to no avail, and he attended work on 16 May. He saw a doctor on 17 May 2017. He was certified unfit for employment and has not been able to work since.
20The plaintiff testified about his efforts at returning to work, perhaps it would seem on two occasions, but they proved unsuccessful. He explained that he was given some oversight and training of a fellow employee but he was frustrated at his inability to explain and demonstrate the required physical tasks involved, and there were times, too, when he encountered pain trying to navigate stairs to an upper level at the work site.
21The plaintiff’s employment was eventually terminated by the defendant in August 2018 on the grounds of his continuing incapacity.
Medical chronology
22The following chronology represents the plaintiff’s primary medical attention since injury:
· On 16 May 2017, he attended on Dr Siew (GP).[37]
[37] DCB 107.
· On 17 May 2017, he commenced attending Dr Josephine Ong (GP).[38]
[38] PCB 105.
· An MRI was taken on 18 May 2017.[39]
[39] PCB 79.
· On 18 May 2017, he commenced attendance at Springvale Sports and Spinal Physiotherapy.[40]
[40] PCB 79.
· On 6 June 2017, he commenced attending Dr Sarita Kotur (GP).
· On 17 July 2017, he attended on Mr Gary Speck, orthopaedic surgeon.[41]
[41] PCB 143.
· On 22 September 2017, he commenced attending Waverly Central Chiropractic Centre.
· In September 2017, he commenced attending at the Victorian Rehabilitation Centre.
· On 25 October 2017, he commenced seeing Amanda Wallis, psychologist.[42]
[42] PCB 74.
· On 8 February 2018, he came under the care of Dr Stuart Turnbull (GP).[43]
· On 14 May 2018, he commenced attending Dr Srirekha Vadasseri, psychiatrist.[44]
· On 31 July 2018, he commenced attending Dr Paul Verrills, pain specialist at Metro Pain.[45]
· On 26 September 2018, Dr Verrills administered bilateral L3-4-5 medial branch blocks.[46]
· On 19 December 2018, he had lumbar radiofrequency neurotomy at left L3-4-5 medial branches performed by Dr Verrills.[47]
· On 9 January 2019, he had a lumbar radiofrequency neurotomy at right L3-4-5 medial branches performed by Dr Verrills.[48]
· On 17 April 2019, he had a further MRI.[49]
· On 27 June 2019, he had a 3-level lumbar discography and L5 transforaminal epidural steroid injection.[50]
· On 2 December 2019, he attended Mr Greg Malham, neurosurgeon, for a surgical opinion.[51]
· In May 2020, he had a percutaneous plasma discectomy and epidural injection performed by Dr Verrills.[52]
[43] PCB 49.
[44] PCB 69.
[45] PCB 53.
[46] PCB 58.
[47] PCB 62.
[48] PCB 61.
[49] PCB 81.
[50] PCB 57.
[51] PCB 63.
[52] PCB 77.
23There is little to be gained from exploring in fine detail the above chronology. Suffice it to say, the plaintiff has had a variety of treatments including medication, physiotherapy, facet joint investigations and neurotomy including, in May 2020, a percutaneous plasma discectomy and epidural injection. However, there are other matters of note concerning the plaintiff’s treatment that are recorded in the medical reporting exhibited in the proceeding and that it is relevant to record.
24On referral to Mr Speck, conservative treatment was recommended. The plaintiff was referred to a pain clinic and came under the care of Dr Verrills, a pain specialist, who has described the plaintiff as having suffered a significant injury to his lower back against a diagnosis of internal disc disruption and discogenic pain at L5-S1, on a background of possible facet joint pain.
25Mr Malham, neurosurgeon, examined the plaintiff. He adverted to the potential for a fusion procedure at L5-S1. The plaintiff was asked in evidence-in-chief about his attitude and intentions for such a procedure, and said, “Oh, I think anything that can help – if the doctor says this one will improve your life or your pain, yes, I go.”[53] For the time being, however, the plaintiff has elected to continue with less invasive procedures.
[53] T43, L4-6.
26Although Dr Bloom’s report dated 20 May 2019 was prepared for the defendant’s solicitors, it was tendered by the plaintiff. It is useful at this juncture to refer to it, because Dr Bloom refers to and summarises various enclosures he had been provided from a number of practitioners who had treated the plaintiff, as well as providing a comprehensive picture of the plaintiff’s presentation over time.
27Dr Bloom noted that Mr Kam, to whom the plaintiff had attended for physiotherapy, in an undated report, thought that the plaintiff “will benefit from light duties at work.[54]” In another report dated 20 June 2017, Mr Kam observed that the plaintiff was worried about returning to work and yet he remained of the opinion that the plaintiff was fit for suitable light duties.[55]
[54] Exhibit P16, DCB 76, quoting the undated report of Dr Kam.
[55] Exhibit P16, DCB 76, quoted in report.
28Dr Bloom referred to a report dated 13 September 2017 from Dr Kotur, the plaintiff’s treating general practitioner, who noted that the plaintiff’s wife was suffering from cancer.[56] In a report dated 25 September 2017, Dr Kotur said the plaintiff had preferred the services of a chiropractor and was intending to discontinue his physiotherapy.[57] Dr Bloom related that when Dr Kotur examined the plaintiff on 12 October 2017, she had noted “a whole lot of complaints about his back, on assessment he seemed to have minor depression, he needs counselling as part of the pain management programme.”[58]
[56] Exhibit P16, DCB 76, quoted in report.
[57] Exhibit P16, DCB 76, quoted in report.
[58] Exhibit P16, DCB 76, quoted in report.
29Dr Bloom noted that Mr Speck in his report dated 18 July 2017 observed that the MRI scan dated 18 May 2017 had not identified any serious underlying pathology and he recommended the plaintiff undergo multidisciplinary rehabilitation.[59]
[59] Exhibit P16, DCB 76, quoted in report.
30Dr Bloom noted that Mr Law, a treating physiotherapist in a letter dated 9 August 2017, agreed with Mr Speck’s opinion that the plaintiff would benefit from a rehabilitation program, following which he should be ready to return to suitable light employment duties.[60]
[60] Exhibit P16, DCB 76, quoted in report.
31Dr Bloom recorded that Dr Farr, a treating rehabilitation and pain management specialist, in a report dated 6 September 2017, observed that the plaintiff’s wife had recently undergone treatment for gastric cancer, and this was a matter that had been “causing stress for the whole family.”[61] Dr Farr also thought that the plaintiff might be suitable to participate in a pain management program.
[61] Exhibit P16, DCB 76, quoted in report.
32Dr Bloom also recorded that Dr Farr, in a report dated 4 April 2018, identified the plaintiff’s anxiety and depression as a significant barrier to his progress and recommended referral for psychiatric assessment and treatment.[62]
[62] Exhibit P16, DCB 76, quoted in report.
33Dr Bloom mentioned another report dated 11 July 2018 from Dr Farr, who wrote:
We also discussed the importance of regular activity, exercise and return to work. We spoke about the physical, emotional and financial benefits of work. He is still reluctant about returning to work as he feels that being in the work environment has a negative impact on his emotions and anxiety.[63]
[63] Exhibit P16, DCB 76, quoted in report.
34Dr Bloom referred to two reports dated 22 September 2017 and 26 October 2017 from Maria Hsu, a chiropractor, the plaintiff had attended for treatment. She appears to have recommended that he undertake a chiropractic treatment program of twice weekly attendances for a period of six weeks, and in the later of her two reports, she wrote that, “Unfortunately You Long has not progressed much under treatment.”[64]
[64] Exhibit P16, DCB 76, quoted in report.
35Dr Bloom identified that Dr Pal, treating psychologist, in a report dated 8 December 2017, recommended further psychological intervention.[65]
[65] Exhibit P16, DCB 77, quoted in report.
36Dr Bloom mentioned that in a report dated 8 December 2017, Amada Wallis, treating clinical psychologist, diagnosed the plaintiff as suffering from an Adjustment Disorder with severe depression and borderline severe anxiety and wrote:
He stated he was uncomfortable about returning to work due to his experience of pain, however, did not know how to speak up for himself. That left him feeling confused, angry and upset.[66]
[66] Exhibit P16, DCB 77, quoted in report.
37Dr Bloom also referred to a report of Hannah Tregea, treating psychologist, dated 9 January 2018, who said that the plaintiff presented with significant anxiety and depressive symptoms. She did not consider that he was psychologically ready to return to work, and that discussion of return to work and procedures:
have been a trigger for heightened distress and he reported low readiness for return to work at this stage (for both physical and psychological reasons).[67]
[67] Exhibit P16, DCB 77, quoted in report.
The plaintiff’s medical evidence
Dr Turnbull
38Dr Turnbull is the plaintiff’s current general practitioner. In a treating practitioner report dated 20 August 2019,[68] he concluded that the plaintiff had “No capacity for suitable employment”.[69]
[68] Exhibit P6, PCB 49-52.
[69] Exhibit P6, PCB 49.
39In a subsequent treating report dated 18 September 2019, Dr Turnbull said that the plaintiff:
… has ongoing low back pain and anxiety and depression. He is incapacitated to the extent that I consider that he has no work capacity. His pain continues to be problematic.[70]
[70] Exhibit P6, PCB 67.
Dr Vadasseri
40Dr Vadasseri, the plaintiff’s treating psychiatrist, in her report dated 7 October 2020, diagnosed “major depression with significant anxiety”[71] and considered that he “does not have capacity for employment into the foreseeable future”.[72]
[71] Exhibit P8, PCB 71.
[72] Exhibit P8, PCB 72.
Amanda Wallis
41Amanda Wallis is a clinical psychologist to whom the plaintiff was referred by Dr Turnbull. In a report dated 7 October 2020, she recorded that the plaintiff had attended her fortnightly, from an initial consultation on 25 October 2017 until 29 January 2018, and thereafter monthly, until 14 October 2019, whereupon he ceased attending “due to the Corona Virus restrictions…”[73]. She diagnosed “Chronic mild to moderate depression, chronic moderate to severe anxiety and chronic pain disorder”[74] directly related to the plaintiff’s work injury and unrelated to any pre-existing condition. In her opinion, she “did not believe he would be able to re-engage in the work force.”[75]
[73] Exhibit P9, PCB 74.
[74] Exhibit P9, PCB 75.
[75] Exhibit P9, PCB 76.
Dr Verrills
42Dr Verrills is a treating interventional pain specialist. He provided a report at the request of the plaintiff’s solicitors dated 14 August 2018. He noted that in an independent medical examination undertaken in March 2018, Professor Damodaran, psychiatrist, diagnosed the plaintiff with a “chronic pain disorder and adjustment disorder.”[76] Nonetheless, Dr Verrills recommended proceeding to medial branch blocks. His diagnosis was a combination of L5-S1 disc damage with possible facet joint involvement and considered the plaintiff to be “unfit for all work duties.”[77]
[76] Exhibit P16, DCB 77, quoted in report.
[77] Exhibit P4, PCB 78.
Dr Walton
43Dr Walton, psychiatrist, to whom the plaintiff was sent for medico-legal examination, reported that he had developed significant anxiety and depression, and by May 2018, he had been referred to a treating psychiatrist, and was continuing to consult with Dr Vadasseri on a monthly basis. In parallel, the plaintiff continued to attend on Ms Wallis as a treating psychologist, monthly and additionally by telephone when necessary.
44Dr Walton wrote that despite the plaintiff having arrived in Australia as a Cambodian refugee, he had been adamant that he had no previous psychiatric problems.
45Dr Walton reported that the plaintiff described ongoing anxiety which persisted for most of the time and, although generalised, it had a definite focus upon his ill-health. Dr Walton said that at no stage had the plaintiff been suicidal but that he had suffered from protracted depressed mood associated with feelings of hopelessness, having said to him that, “I feel like there is nothing to look forward to”[78].
[78] Exhibit P12, PCB 92.
46Dr Walton also recorded the presence of ongoing insomnia, partly attributable to frequent dreams in which the plaintiff sees see himself back at work in a high state of anxiety and suffering from poor memory and difficulty sustaining concentration and becoming lost when attempting tasks which were then left incomplete. Also, due to his ongoing pain and lowered libido, he was suffering from a reduction in sexual activity.
47In addressing the plaintiff’s activities of life, Dr Walton wrote that whereas the plaintiff had previously been a keen follower of AFL, he had lost interest in the game. In addition, although he had previously enjoyed participating in hiking and camping, he understood these activities had ceased, and his involvement in gardening had been very much reduced and his social contact restricted to family members. Although he remained capable of independent living, he exhibited quite marked restrictions upon his social and recreational endeavours partly due to pain and partly due to his emotional disturbance.
48Dr Walton’s psychiatric diagnosis was a chronic adjustment disorder with mixed anxiety and depression. Overall, he thought the plaintiff’s long-term prognosis to be guarded and that it was highly likely that the stage had been reached where there was a mutual adverse interaction between the plaintiff’s physically-based pain and mental anguish, with each tending to amplify and perpetuate the other.
49Dr Walton noted that the plaintiff had been out of work for over three years and did not think there was convincing evidence that either his physical and mental states were improving, and with the risk of chronicity being present, he thought that an ability to resume gainful employment was remote.
Mr D’Urso
50The plaintiff was seen by Mr D’Urso, who provided medico-legal opinions dated 16 September 2019 and1 July 2020.[79] He wrote that the plaintiff suffers from chronic back pain on a daily basis. He recounted that the plaintiff assessed his pain as ranging between 4 to 7 out of 10. The pain radiated around the plaintiff’s left hip into his left thigh together with some numbness of the left thigh. He told Mr D’Urso that his symptoms prevent him from sitting or walking for greater than 25 minutes. He could sleep at night. He could perform occasional cooking. He did not shop, clean or undertake any household washing. He was able to undertake some “light gardening”.[80] He watches television. Prior to his injury, he recounted that he was able to garden without restriction, attend the football, go camping and fishing, as well as run and walk without restriction.
[79] Exhibit P11.
[80] Exhibit P11, PCB 83, 88.
51Mr D’Urso addressed the available radiology that included MRI scans of 18 May 2017 and 17 April 2019, both of which demonstrated some disc degeneration at L5-S1 with a small annular tear. There was left sided foraminal stenosis and likely impingement of the left L2 and L3 nerve roots as well as evidence of some progression of the disc degeneration of the L5-S1 on the more recent MRI imaging. A discography performed on 27 June 2019 appeared to reveal a degenerate L5-S1 disc, although Mr D’Urso noted that he did not have a copy of the report.
52Mr D’Urso diagnosed the plaintiff to be symptomatic from a degenerative disc at the lumbosacral junction with a degree of foraminal nerve root impingement on the left at L2-3 and L3-4. He thought that the plaintiff’s employment activity performed as a machine operator for a period of 24 years had contributed to a degree of degenerative progression of the lumbar spine. He considered that the workplace activity, particularly the incident which occurred on 15 July 2017, precipitated a worsening of his symptoms, which could have resulted in some mild prolapse of the L2-3 and L3-4 discs and at the L5-S1 intervertebral disc level with a degree of nerve root impingement on the left in the foramen at the L2-3 and L3-4 levels.
53Mr D’Urso recommended that the plaintiff continue with a conservative strategy under the supervision of a general practitioner, together with a self-management program of core strength exercise and hydrotherapy exercise with a physical therapist. He thought that consideration could be given to a foraminal block of the left L2 and L 3 nerve roots with Marcaine steroid injection administered for diagnostic and therapeutic purposes.[81]
[81] Exhibit P11, 84.
54Mr D’Urso considered that permanent restrictions were warranted on the plaintiff’s capacity to perform repetitive bending, twisting and lifting activity such that he should not lift weight from below the knee or above the shoulder or lift weight in excess of 10-15 kilograms and that he should have the ability to ambulate freely and avoid sitting and standing postures in excess of 30 minutes at a time.
55Mr D’Urso thought that the plaintiff’s condition would restrict his capacity for unrestricted domestic, cleaning and gardening activity or any type of vigorous sporting activity, and that he would only be capable of performing light duties employment within his recommended restrictions.
The defendant’s vocational and expert medical opinion evidence
Rebecca Miranda
56On 14 March 2019, the plaintiff attended on Rebecca Miranda, vocational advisor employed by “Work Able Consulting”, for the purpose of a 130 week vocational assessment. The assessment was undertaken with a Cambodian interpreter.[82] Ms Miranda recorded that the plaintiff described his English literacy skills as below average and his numeracy skills as average. He said he lacked computer skills, but would like to learn more about computers, but said that his “mental state is not good”[83] and he did not believe he has the capacity to retain information.
[82] DCB 119-132.
[83] DCB 123.
57The report identified suitable employment as a:
· Hand Packer
· Product Assembler – Light Items
· Cashier
· Stock Clerk
· Warehouse Administrator.[84]
[84] DCB 132.
Dr Bloom
58Dr Bloom’s report dated 20 May 2019, to which I have already made mention, after addressing the plaintiff’s history, referred to the following additional matters:
Functional capacity
Mr. Lao said that he is fully independent in all personal care activities. He drives his car locally and is able to utilise public transport. He estimates a sitting tolerance of 20 minutes, a standing (dynamic) tolerance of 30 minutes and a walking tolerance of 20 minutes. He said that he is able to squat, and estimates a lifting and carrying capacity of no more than 5kg (he has been advised to avoid heavy lifting).
He said in the home he does no housework. In the garden he does mow the lawn since being supplied with a new mower with an electric starter, and he also prunes bushes with shears. He said that he does go fishing with family or friends. He goes to the swimming pool once or twice daily.
Previous history
Mr. Lao denied any prior history of low back injury, pain or dysfunction, and there is no history of neck pain. He denied a history of mood disorder. He said that he has no other significant medical history other than elevated cholesterol for which he does not take medication.[85]
[85] Exhibit P16, DCB 74.
59Dr Bloom noted the report of Dr Grabinski, radiologist, of an MRI of the lumbar spine dated 18 May 2017, that concluded as follows:
L5/S1 minor broad-based disc bulge leads to mild spinal canal narrowing and bilateral mild subarticular recess narrowing with both traversing S1 nerve roots contacting disc.[86]
[86] Exhibit P16, DCB 75.
60Mr Bloom said of the plaintiff that:
This now 60-year old worker said that he developed sudden onset of low back pain whilst involved in a manual handling incident on 15 May 2017. Symptoms soon radiated into his left leg, he ceased work, and has failed to recover and rehabilitate in the expected manner and timeframe. Clinical examination has failed to identify convincing radiculopathy, and the available radiology reports are consistent with multilevel degenerative changes, but no significant disc or serious physical injury.
This man’s failure to progress and rehabilitate has occurred in the context of significant adverse psychosocial factors that includes date of injury roughly coinciding with his wife’s severe illness – she underwent surgery for gastric cancer in 2017 – and his development of significant depressed mood. Mr. Lao today said that he remains very pessimistic and is not motivated to return to work.[87]
[87] Exhibit P16, DCB 74-75.
61Mr. Bloom regarded the plaintiff’s wife’s illness as a significant additional stressor for him and a probable barrier in his failure to progress. He put it this way when he wrote that:
This man’s presentation is consistent with a chronic low back pain syndrome, and from the clinical perspective, and also taking into consideration the most recent MRI scan report dated 17 April 2018, there is no evidence of significant or permanent physical traumatic injury. There is only evidence of mild to moderate degenerative changes, changes that are almost ubiquitous in the general population in this age group, and that should not result in workplace disability.
Apart from some relatively minor non-organic signs, clinical examination of this man’s low back is essentially normal. Knowing that he does have some minor degenerative changes in the low back, he should be encouraged to mobilise and exercise as much as possible. That being the case, from the purely physical perspective, and notwithstanding the fact that he probably has psychological and even psychiatric barriers, he could and should function and work within the following conditions and constraints:
• Avoid prolonged static posture. Arguably this is the most important condition within which he should function and work.
• Limit repetitive manual handling to loads of about 10kg, with all such manual handling occurring between mid-thigh and chest height and with both elbows relatively close to the sides.
• Limit repetitive bending and twisting whilst under load, but controlled bending and twisting without load should not be entirely discouraged.
Within these conditions and constraints there is no physical contraindication to full-time suitable work duties. This is because if he were to return to work on duties that satisfy these requirements, there would be no significant increased risk of further injury or aggravation. In other words, from the purely physical perspective it is safe for him to return to suitable duties.
This man has almost no transferrable skills, and the only work experience that he has is very low skilled manual labouring type work. Given that he is now 60 years of age with symptomatic mild degenerative changes in his low back, and also bearing in mind his particularly compromised levels of tolerance, he would only have the capacity to return to work in very low skilled occupations that were of light physical demand. Because of his lack of transferrable skills, I think a good vocational assessment might be useful to identify suitable job options. Having said that however, there are a few basic jobs that I think that he does have the capacity to undertake quite safely, such as the following:
• Car Park Attendant
He could undertake such work because the physical demands are very light or sedentary, there is usually the facility to work in a seated or standing posture, he is able to drive his car and therefore would be able to move cars around a car park. If he were to undertake such work, he would not be placed at risk of aggravation or further injury.
• Very light Assembly Work
If the assembly work or process work occurred at bench height, and did offer the facility to change posture between sitting and standing on a relatively as needed or fairly frequent basis, and provided that the physical demands were within those listed above, then such work could be considered suitable for this man, particularly if confirmed by worksite assessment.
• Traffic Management
The physical demands of working in traffic management are light to medium, with all manual handling being of bollards and signage weighing less than 10kg. Changes in posture are part of the job, although there would be very limited opportunity to sit and rest. From the purely physical perspective I believe that he would have the capacity to undertake this work without significant risk, but his ability to sustain such work would hinge upon his level of tolerance which at the moment, appears to be very highly compromised.
• Meter Reader
The physical demands of working as a meter reader involve some driving out to site, a considerable amount of walking that is considered beneficial for chronic low back pain sufferers, a little momentary bending from time to time without load, (that is not contraindicated in this case), and minimal or no manual handling other than a hand held device weighing no more than 1kg. Thus from the purely physical perspective such work would be within his safe capacity, and indeed the exercise involved in such work may even prove therapeutic. Again the limiting factor for such work would be his level of tolerance and motivation.
• Parking Inspector
For the same reasons as meter reading, working as a parking inspector is within his safe capacity. The only physical demands are walking and a minimal amount of occasional bending without load. From the purely physical perspective there is no contraindication to such work for this man.[88]
[88] Exhibit P16, DCB 78-80.
62Dr Bloom understood the plaintiff to be not at all computer literate and he thought that he would struggle to gain a level of computer literacy to enable him to transfer into the majority of sedentary positions that he had been supplied as possible suitable employment.
63Dr Bloom concluded that taking all matters into consideration, he did not believe that the plaintiff possessed transferrable skills, and he would struggle to re-enter the workforce in anything but a very low skilled position that did not require good levels of verbal communication or computer literacy. As Dr Bloom put it, at 60 years of age his job opportunities would be minimal.[89]
[89] Exhibit P16, DCB 78.
64Dr Bloom undertook a further examination of the plaintiff, conducted online due to COVID-19 restrictions, from which a further report dated 23 September 2020 was provided.[90] He recorded that a Cambodian language interpreter was used at times.[91] In the course of the examination, the plaintiff confirmed to Dr Bloom that at some point in time, his mother had mentioned to him that he is about the same age as one of his cousins, who was born before 1960. He told Dr. Bloom that he was unsure of his age because all of the relevant documents were lost before the family left Cambodia, and he thinks it likely that his age is approximately as contained on his passport, although he might have been born between 1960 and 1962. He described that his body feels as though he was born before 1960.[92]
[90] Exhibit P16, DCB 81-88.
[91] Exhibit P16, DCB 81.
[92] Exhibit P16, DCB 87.
65In terms of his physical condition, Dr Bloom described the plaintiff’s presentation as essentially unchanged since May 2019, that is, consistent chronic low back pain with referred symptoms, but without clinical radiculopathy.[93] As Dr Bloom was required to conduct a remote consultation, he explained that he had been unable to undertake a hands-on physical examination and so was unable to confirm non-organic clinical signs. However, from his observations he described the plaintiff’s movements as being natural and fluid, with no evident avoidant behaviour.[94] Dr Bloom reiterated his prior opinion that the plaintiff’s perception of pain and disability is amplified secondary to adverse psychosocial factors, and that his adverse psychosocial factors remain a major barrier to a return to work, although lack of job opportunity would be another major barrier.[95]
[93] Exhibit P16, DCB 86.
[94] Exhibit P16, DCB 86.
[95] Exhibit P16, DCB 88.
Associate Professor Damodaran
66Associate Professor Damodaran conducted an examination of the plaintiff on 5 March 2013 and followed this up with a report dated 14 March 2018.[96] He noted that the plaintiff attended the examination, as did an interpreter.
[96] Exhibit P15, DCB 10-19.
67The plaintiff denied a past history of mental illness.[97]
[97] Exhibit P15, DCB 13.
68Professor Damodaran recorded the plaintiff as 55 years of age[98] (thus being born in 1962).
[98] Exhibit P15, DCB 14.
69Professor Damodaran believed that the plaintiff was suffering from an adjustment disorder with depressed mood together with a chronic pain disorder associated with his medical condition.[99]
[99] Exhibit P15, DCB 14.
70From a psychiatric point of view, he believed the plaintiff possessed a current work capacity for modified pre-injury duties or alternate duties within his physical limitation[100] and may be able to work up to 20 hours in the area of his expertise, but preferably without any significant physical demand. As such, he has a capacity which may need to be worked through after a vocational rehabilitation assessment.[101]
[100] Exhibit P15, DCB 14.
[101] Exhibit P15, DCB 17.
71Professor Damodaran furnished a second report dated 17 June 2018 following on from a further examination.[102] An interpreter was again utilised.[103] He noted that the plaintiff had participated in a clinical review with the Victorian Rehabilitation Centre, but said that he did not think himself psychologically ready to go back to work.[104] This was reflected in the discharge report from the Victorian Rehabilitation Centre, that noted that that although the plaintiff agreed that physically he was able to return to some light duties, he continued to experience significant anxiety and depressive symptoms secondary to the pain, change in his lifestyle and compensation-related stressors.[105] Professor Damodaran remained of the opinion that the plaintiff possessed a capacity for work, although he thought it was worthwhile seeking an updated report from his psychiatrist regarding his overall recovery.[106]
[102] Exhibit P15, DCB 20-22.
[103] Exhibit P15, DCB 20.
[104] Exhibit P15, DCB 20.
[105] Exhibit P15, DCB 20.
[106] Exhibit P15, DCB 21.
72In a third report dated 14 November 2018, also following on from an examination,[107] Associate Professor Damodaran observed that whilst the plaintiff was able to communicate in English, he experienced some difficulties with certain words and he required explanation and clarification.[108] He wrote that the plaintiff lacked motivation, enthusiasm or any interest in returning to work.
[107] Exhibit P15, DCB 23-33.
[108] Exhibit P15, DCB 24.
73Based on the available information, Associate Professor Damodaran did not believe the plaintiff possessed a current work capacity due to persistent depression, ongoing pain and limitation and a sense of grief and loss.[109] He did not think the plaintiff currently capable of performing his pre-injury duties and hours at a new workplace or with an alternative employer.[110]
[109] Exhibit P15, DCB 28.
[110] Exhibit P15, DCB 29.
74As regards suitable employment options, by reference to a “Transferrable Skills Analysis” report he had been supplied, but that was not tendered in evidence in the proceeding, he did not consider the plaintiff presented with a current capacity to perform the jobs due to his persistent depression and associated lack of motivation and lack of energy.[111]
[111] Exhibit P15, DCB 30.
75In his 14 November 2018 report he wrote:
Mr. Lao is not capable of returning to pre-injury duties and hours. Mr. Lao is currently not capable of performing his pre-injury duties and hours a (sic) new workplace or with an alternative employer.
Purely from a psychiatric point of view, I am of the opinion that Mr. Lao does not have a current work capacity for suitable employment arising solely from the compensable psychiatric injury. Mr. Lao does not have a current work capacity.[112]
[112] Exhibit P15, DCB 29-30.
76Associate Professor Damodaran diagnosed the plaintiff as suffering from a “major depressive disorder along with chronic pain disorder associated with a general medical condition”[113] and later in his report he diagnosed the psychiatric condition as “relevant to the acceptable (sic) compensable injury.”[114]
[113] Exhibit P15, DCB 28.
[114] Exhibit P15, DCB 29.
77Associate Professor Damodaran wrote that the plaintiff’s reported tolerance for sitting depended on his mood, and if he was feeling well, he can sit for up to 30 minutes. However, if he is in pain, he can only sit for three minutes. His standing tolerance was largely mood dependent and quite often, he asked if he could stand.
78I note that on a number of occasions during the course of his evidence before me, the plaintiff requested that he be permitted to stand in order to alleviate his pain.
79The plaintiff told Associate Professor Damodaran that he enjoyed walking because it sometimes reduces his pain. He said that he prefers not to drive, and when he does, he limits himself to his local area and for no longer than 10 to 15 minutes. He said he can lift up to 10 kilograms towards the body.
Mr Simm
80Mr Simm examined the plaintiff at the request of the defendant on 10 April 2019 and prepared a report dated 10 April 2019.[115] He noted the plaintiff had mentioned his date of birth as recorded on his passport, which is 11 December 1962. However, Mr Simm said that the passport was inaccurate and that the plaintiff was probably a few years older than that.[116]
[115] Exhibit D7.
[116] Exhibit D7, DCB 65.
81Mr Simm noted that the plaintiff had no history of back pain prior to the claimed work injury[117] .
[117] Exhibit D7, DCB 65.
82Mr Simm considered that the plaintiff’s adverse psychological reaction represented the main contributing factor to his ongoing disability and incapacity for work, whilst acknowledging that an assessment of the plaintiff’s psychological response fell outside the scope of his expertise.[118]
[118] Exhibit D7, DCB 69.
83From a physical point of view, Mr Simm believed that the plaintiff was capable of undertaking suitable full-time employment. He recorded normal upper limb function and capacity to use his arms in the overhead position, although he thought it would be wise to limit bimanual lifting to weights of no more than 10 kilograms due to the plaintiff’s complaint of back pain. He recommended that weights should be handled between knee and chest height. He thought he could undertake light repetitive work. He thought that he probably required some greater flexibility with sitting and standing and ideally, he should return to work at around bench height, with the ability to work in either the sitting or standing position.[119]
[119] Exhibit D7, DCB 70.
84Mr Simm was aware that the plaintiff’s wife had undergone surgery for gastric cancer “in about 2017”.[120]
[120] Exhibit D7, DCB 67.
85Mr. Simm diagnosed the plaintiff as suffering from “mild chronic spinal pain syndrome”[121] and that:
When asked about return to work, he indicated the reason he could not go back to work is because of severe anxiety and depression... It would seem that the lower back injury has been complicated by a psychological disturbance which is probably now a major factor in his chronic pain and ongoing incapacity for work.[122]
[121] Exhibit D7, DCB 68.
[122] Exhibit D7, DCB 68.
86Mr Simm considered the plaintiff to have “presumably suffered a disabling adverse psychological reaction to the back injury”[123] and that this had become the main contributing factor to his ongoing disability and incapacity.
[123] Exhibit P16, DCB 77, quoted in report.
Dr Baynes
87Dr Baynes provided a report dated 24 August 2017[124] following an examination of the plaintiff. He wrote that at the date of examination the plaintiff was a 59 year old man[125](thus having been born in 1958). The plaintiff denied a past history of back pain.[126] He noted that radiology revealed some evidence of minor age-related degenerative change that pre-existed his injury. He thought a work aggravation had occurred and had not ceased.[127]
[124] Exhibit D2.
[125] Exhibit D2, DCB 7.
[126] Exhibit D2, DCB 6.
[127] Exhibit D2, DCB 8.
88Dr Baynes considered the plaintiff to be fit for alternative duties of a sedentary type where there is no lifting greater than 5 kilograms and no lifting from below knee height or above shoulder height. He recommended that the plaintiff should be accommodated with the ability to rotate postures, particularly between sitting, standing and walking and should not perform work with constrained postures of the back. He considered him fit to return to work on a limited hours basis working three hours/three days a week with a progressive increase in hours.[128]
[128] Exhibit D2, DCB 8.
89Dr Baynes reported that although the plaintiff gave a history of acute onset of left-sided lower back pain with referred pain into the left leg associated with a L5-S1 minor broad-based disc bulge and annular fissure, there was no objective evidence of radiculopathy on clinical examination.[129]
[129] Exhibit D2, DCB 7.
Associate Professor Buzzard
90At the request of the defendant, Associate Professor Buzzard furnished a report on the condition of the plaintiff dated 20 August 2018[130] following an examination conducted with assistance provided by an interpreter. Associate Professor Buzzard reported the plaintiff was born on 11 December 1962.[131] In his opinion, consistent with radiological findings, the plaintiff suffered an aggravation of pre-existing degenerative disease in his low back at the time of the onset of his symptoms.[132] He said that although there were some radiological suggestions that the plaintiff may have had a disc prolapse with sciatica, he did not accept that suggestion, but instead considered that the pattern of distribution of the plaintiff’s symptoms in the left lower extremity was suggestive of a functional overlay.[133]
[130] Exhibit D3.
[131] Exhibit D3, DCB 34.
[132] Exhibit D3, DCB 37.
[133] Exhibit D3, DCB 37.
91In terms of an employment capacity, he believed the plaintiff to be at least capable of undertaking light duties with a likely lifting limit of 10 kilograms.[134]
[134] Exhibit D3, DCB 37.
Dr Boffa
92In an Independent Medical report provided to the defendant dated 1 November 2018[135], after an examination of the plaintiff, Dr Boffa reported:
…
5. The worker is unable to return to preinjury duties and hours.
6. The worker has a current physical work capacity.
…
8. The physical point of view, the worker is fit for a graduated return to duties that allow change in posture and avoid repetitive bending, twisting, pushing, pulling, lifting and carrying more than 5kg.
9. The worker is not fit for factory or process work because of unsuitable manual handling involved.
He is physically fit for clerical and administrative roles but lacks experience and training and would benefit from English-language skills training.
10. The worker has a current work capacity.[136]
[135] Exhibit D4.
[136] Exhibit D4, DCB 46.
93Dr Boffa wrote that the plaintiff was 56[137] (which would have him born in 1962). He believed he was suffering from a mechanical low back pain but without radiculopathy.[138] He did not believe he was able to return to preinjury duties and hours, although he possessed a current physical work capacity for a graduated return to duties that allowed a change in posture and avoidance of repetitive bending, twisting, pushing, pulling, lifting and carrying more than 5 kilograms.[139] He said that the plaintiff would not be fit for factory or process work because of unsuitable manual handling.
[137] Exhibit D4, DCB 44.
[138] Exhibit D4, DCB 45.
[139] Exhibit D4, DCB 46.
94Dr Boffa reported that although physically fit for clerical and administrative roles, the plaintiff lacked experience and training and he considered that he would benefit from English-language skills training.[140] He thought that the main barrier to a return to suitable employment was his mental condition together with his physical functional limitations and lack of experience and training.
[140] Exhibit D4, DCB 46.
Dr Lange
95Dr Lange provided a report following an examination of the plaintiff dated 7 February 2018 in response to the defendant’s request.[141] The examination was also attended by the plaintiff’s wife. No interpreter was required.[142]
[141] Exhibit D5.
[142] Exhibit D5, DCB 47.
96Dr Lange said the plaintiff was 56 years of age and presented without a past history of back problems and had been asymptomatic and had been undertaking full normal duties prior to his work injury in May 2017.[143]
[143] Exhibit D5, DCB 50.
97Dr Lange related the plaintiff’s account of having attempted to return to work undertaking supervisory duties when he encountered a problem with one of the machines and felt very guilty that he could not physically help his colleagues who had to solve the problem without his assistance with the result that the plaintiff determined that he lacked the ability to perform supervisory work without being physically actively involved.
98Dr Lange believed that the plaintiff had suffered from an annular tear at the L5-S1 disc as was noted on MRI. He found no evidence of radiculopathy and, in that sense, his opinion is consistent with the findings of Mr Boffa and Mr Speck.
99In Dr Lange’s opinion, the plaintiff’s wife’s ongoing illness warranted being considered as a major barrier to his return to even the lightest of alternative duties and this was also contributing to his ongoing psychological and psychiatric problems.[144] However, Dr Lange wrote that the plaintiff’s incapacity is still related to the work injury. He did not consider the plaintiff was able to undertake his full pre-injury duties and hours but he believed he retained a capacity to return to work for four hours, three days a week, undertaking supervisory, teaching and quality control work while limiting his lifting to a maximum of 5 kilograms with no repeated bending.[145] At the date of examination he thought that the plaintiff should be able to increase his hours over the ensuing three months and be able to return to full time hours undertaking alternative duties.
[144] Exhibit D5, DCB 50.
[145] Exhibit D5, DCB 51.
Associate Professor Doherty
100On 26 April 2019,[146] Associate Professor Doherty provided a report to the defendant following on an examination of the plaintiff and he recorded the plaintiff having said that he was 61 years old, having been born in 1958, and that the age recorded on his passport of 11 December 1962 is wrong.[147]
[146] Exhibit D6.
[147] Exhibit D5, DCB 55.
101The plaintiff told Professor Doherty that his mental health before his injury was good and he was not taking any medication. In answer to whether, prior to the date of injury, he had any psychiatric complaints, symptoms or treatment, he said he did not.[148] He did apparently say that he felt he was getting old and was not sleeping very well but that his physical health was very good.[149]
[148] Exhibit D5, DCB 58.
[149] Exhibit D5, DCB 55.
102Associate Professor Doherty considered that a diagnosis of an adjustment disorder was justified but a major depressive disorder was not. He said the plaintiff had encountered a need to deal with a significant psychologically stressful matter in the guise of his wife’s illness and had manifested a disproportionate response with clinically significant symptoms.[150] He considered but dismissed the notion that the plaintiff presented with a pain-related psychiatric condition.[151]
[150] Exhibit D5, DCB 59.
[151] Exhibit D5, DCB 60.
103Associate Professor Doherty thought that whilst the plaintiff’s psychiatric condition limited his work capacity, it had not extinguished it, although he accepted that the plaintiff did not have the capacity to return to his pre-injury duties.[152]
[152] Exhibit D5, DCB 60.
104Associate Professor Doherty was asked to consider the suitable employment options contained in the 130-week assessment. From a psychiatric standpoint, he did not consider that the plaintiff had an impairment that would preclude him undertaking all the duties of the identified jobs. For example, he thought that the positions of hand packer and product assembler would be “very suitable” [153] with the plaintiff capable of undertaking their duties and, therefore, from a psychiatric point of view, he assessed the plaintiff as possessing a current work capacity at full hours and that his psychiatric symptoms were not of such intensity to extinguish a work capacity.[154]
[153] Exhibit D5, DCB 60.
[154] Exhibit D5, DCB 61.
105Associate Professor Doherty acknowledged the existence of significant barriers to the plaintiff’s employment, such as his age, his lack of transferable skills, his need for retraining, and his persistent pain and unhappiness. He explained that the plaintiff remained disappointed and angry about his treatment from his employer, and was having difficulty putting it behind him and he was hesitant at approaching any future employment, as he takes the view that he was loyal, worked without taking sick leave, and when injured was let down by the lack of support and understanding. He recommended that psychological treatment should be undertaken to address these symptoms.[155]
[155] Exhibit D5, DCB 61.
Oral evidence
The plaintiff’s evidence-in-chief
106I have already distilled much of the plaintiff’s evidentiary narrative that was canvassed in the course of his evidence-in-chief and cross-examination. I will set out some additional relevant oral evidence.
107The plaintiff said that before his injury he expected to work until he had qualified for the aged pension.[156]
[156] T28, L20-23.
108The plaintiff described his pain and its manifestation. He said that activity worsens his pain.[157] He said, “I think it doing work, movement that make it worse.”[158] He said his sleep is disturbed and he is awakened by pain, “almost every night I think”.[159] He amplified his experience of pain when he said:
The pain is sometimes now exactly the same, sometimes it's worse, sometimes it's not too bad, sometimes it's a bit okay. It changing all the time, it's not – it's not, all right, morning I got pain, or afternoon I got pain, it's not like that. It can come any time (indistinct).[160]
[157] T40, L10-19.
[158] T43, L25-26.
[159] T43, L30-31.
[160] T44, L24-29.
109He said his “mood mentally is just low…as in when the pain come it just-I can’t think anything when the pain comes which makes me more low”.[161]
[161] T44, L6-9.
110He said that stretching helps alleviate his pain. He said that “mostly if I'm home when the pain come put some cream or the heat, the physio provide me the heat pad.”[162]
[162] T43, L20-22.
111He described a reduced capacity to take care with his garden. He said he can trim and perform some gentle pruning cutting or trimming.[163]
[163] T45, L22-24.
112Prior to the injury he described having enjoyed fishing and camping, usually over the Easter break, the Melbourne Cup holiday and over the Christmas holidays. He said, “three times a year we never miss.”[164] He would go fishing “almost every weekend.”[165] Since the injury he has been fishing on one occasion with his brother and slept in the back of his brother’s van.[166]
[164] T46, L16.
[165] T46, L21.
[166] T47, L4-8.
113The plaintiff described his mood “so sad”[167] and brought about at being unable to work.
[167] T48, L31.
Cross-examination of plaintiff
114The plaintiff said he could perform some trimming and a small amount of pruning, but that he was unable to reach up high and was unable to use a ladder to gain access to higher tree branches.[168]
[168] T49, L10-15.
115He said that one of the advantages that stemmed from his attendance at the Victorian Rehabilitation Centre in September 2017 was being educated on how to undertake certain activities without hurting his back, including the position in which he sits, the position he adopts when standing and “the position that I do things.”[169] He said he had acquired the ability to “do my body by doing things that are really easy and it doesn’t cause me pain, for example, motor lawn, how do I do that in the same way?”[170] He said that since attending the Victorian Rehabilitation Centre he was able to walk much better.[171]
[169] T51, L29.
[170] T52, L1-4.
[171] T52, L9-13.
116He said that he had been supplied with a gardener but had been unhappy with the quality of the work performed and since having been provided with a key start motor mower he had been able to mow his lawn.[172]
[172] T53, L4-18.
117The plaintiff was questioned about the contents of his serious injury affidavit deposed to in February 2019, in which he said that his back and the restrictions he experienced had largely remained the same since September 2017. These restrictions included bending forward, stooping, squatting, lifting and almost all day-to-day activities including putting on his shoes and socks, getting dressed and going to the toilet. The plaintiff said, “it is difficulty but I can manage it with my own slow pace and caution also.”[173] He agreed that the difficulties he had deposed to and their effects on him by way of the experience of pain were more pronounced when the weather is colder.
[173] T54, L13-14.
118The plaintiff was directed to paragraph 43 of his affidavit in which he deposed to difficulty undertaking household chores and how his back problem had led to him becoming very inactive.
119At paragraph 49 of his affidavit he had deposed that his garden “looks very sad”[174]. In his affidavit he explained that he had tried to do some weeding from time to time but he could not tolerate squatting and bending for too long. At paragraph 50 he had deposed that his daughter and son-in-law helped maintain his garden.
[174] Exhibit D8, DCB116.
120The plaintiff could not explain why Dr Verrills on 26 June 2018, had reported being told by the plaintiff that he was unable to garden and had not been performing any gardening.
Video surveillance
121The plaintiff agreed that the surveillance identified him squatting and bending on a number of occasions. He said he must have done this without realising that he was bending down and because he was so happy and that he “enjoy doing it more.”[175] The plaintiff agreed that he could also be observed “stooping on various occasions”[176] and lifting branches up and putting them into a green wheelie bin.
[175] T65, L31.
[176] T67, L12-13.
122The plaintiff explained that his capacity to engage in the activities depicted in the surveillance was because he was so “happy with it [gardening] and joy with it even though I have the pain, but I still continue doing it.”[177] He added that when he is engaged in gardening he does not think about the pain that he is experiencing “because you are focusing on the activity that you do. That’s how I learned how to do that even though I experience the pain.”[178]
[177] T67, L23-25.
[178] T68, L1-4.
123The plaintiff said that as well as gardening, he works “around the house-surrounding the house, yes, I do most of my chores and even wash my car, I still do that to. And, here, walking with my dogs and all of that.”[179] Tasks include breaking firewood into small pieces with a little hand axe and blowing away and cleaning the footpath to the entrance to his home with a leaf blower.[180] The plaintiff said, “I’m a very strong man with both my arms.”[181] He denied Mr Smith’s suggestion that because he could use a small axe to chop wood, he would be able to pitch a tent and, therefore, could still go camping.[182]
[179] T69, L20-23. The plaintiff was observed on surveillance walking his dog.
[180] T70, L1-4.
[181] T70, L28-29.
[182] T73, L11-13.
124The plaintiff said there are many things around the home he is now unable to do that he was able to undertake before his injury such as painting the house, cleaning the gutters and undertaking repairs.[183]
[183] T72, L12-14.
125It was suggested to the plaintiff by Mr Smith that if he had a job where the physical requirements were as confined to the activities observed on the surveillance, that is some bending and stooping, a bit of lifting of light objects, a bit of reaching out of way from his body as exhibited when he was trimming the hedges, then he should be able to do so without experiencing pain in his back. The plaintiff doubted this, and said that even when he is engaged in gardening activities, he can experience pain.
126He acknowledged that he visits his eldest daughter's home to undertake some gardening for her.
127The plaintiff was asked about his evidence of the typical weights he was required to handle each day at work. He agreed that his usual output would be about 80 25-kilogram bags a day, but that sometimes it was “up to more than 100”[184] and that “I used to work sometimes even three tonnes”.[185] Mr Smith suggested to the plaintiff that for him to contend that but for the work injury he would have proved able to do such a job that involved that extent of physical demands to the age of retirement was unrealistic. The plaintiff said he did not think so.[186]
[184] T93, L25.
[185] T93, L28.
[186] T95, L2-6.
128Regarding the prescribing of Zoloft the plaintiff said, “this kind of tablet all I know it help me sleep.”[187] He said that. “I don't think I ever discuss about getting depression, yes.”[188] As to the frequency with which he took Zoloft he said, “I don't do it every day, I don't know how long I take or how often I take. I can't recall if – still when I can sleep I stop taking it.”[189]
[187] T96, L 11-12.
[188] T96, L 18-19.
[189] T97, L10-13.
129It was not straightforward to ascertain the plaintiff’s psychological state between 2007 and 2016, despite the fact that his general practitioner recorded “depression” between 2007 and 2016 and prescribed antidepressant medication for significant periods of time and had recorded the presence of work stress. The plaintiff explained that there was a combination of factors at work that caused him stress. He referred to:
work family circumstances, the children or my wife, and secondly it's because the workload and the employers who increased me a little more income but all of that have not met my explanation[sic], Your Honour.[190]
[190] T101, L2-14.
130It seems that at some stage the plaintiff asked his employer for an increase in his wage which was refused[191] and that this left him feeling “a little bit sad, yes, because I work so hard to my ability, all my ability and then they wouldn't increase any of my age”.[192]
[191] T101, L15-18.
[192] T101, L19-21.
131I shall address the matter of and extent of the plaintiff’s pre injury mental state more fully later in these reasons.
Susan Lao – Evidence-in-chief
132Ms Lao lives at home with her parents. She has an older sister who resides around the corner from their parents. She described her father as:
the strongest in my family. He did all the heavy lifting, all the – he basically renovated our whole house, he built our carport, he built our verandah out the back, he even built this seating around a tree that, like if you saw a picture you'd think it was done by a professional one. I don't know how he got those skills but he was always using his hands to do his work or to fill his day basically.[193]
[193] T182, L4-11.
133Ms Lao said that as far as she was aware, her father was “quite happy”.[194] She said both her parents come from large families and when her grandparents were alive she and her sister and parents would gather at one another’s homes of a weekend and:
you know, we'd spend from the morning till night altogether, he was generally, you know, very upbeat, very happy. You know, like there was no inkling he had any kind of emotional issues to me.[195]
[194] T182, L20.
[195] T182, L26-29.
134Ms Lao described her memories of their extended family going camping in Horsham and later to Portland at a serviced caravan site but sleeping in tents.[196] She recalled her father and uncles net fishing.
[196] T183, L14-26.
135She said that since the accident in 2017 her father has not been camping but in summer months, perhaps once or twice a month, he will venture out with his brothers for a day trip to Lake Eildon some two hours away from home.[197]
[197] T184, L25 - T185, L2.
136She addressed her father’s “passion”[198] for gardening as she characterised it.
[198] T185, L9.
137In terms of social activity, she said that although her parents do not hold social gatherings at the family home any longer, because it is too difficult for them both physically to cope with, they often will attend at her auntie’s house. Her father does not stay all day as he did before his injury because he will find himself tired or in pain and needing to take a nap or leaving early to go home. This was not the case before the injury.[199] She said that prior to May 2017 she doubted she ever saw her father take a nap during the day and “he was always very actively always had something to do.”[200] She said her father retires to bed quite early. She thinks that he requires a sleeping pill.
[199] T185, L28 - T186, L17.
[200] T186, L20-21.
138Ms Lao said her father is not the sort of man to verbalise his pain but there are signs she recognises such that if he is feeling well he will try to do something, for example, take a walk or tend to the garden, but that if he is not feeling, he will go inside to his room to lie down or just watch television.[201]
[201] T187, L3-30.
139Ms Lao described the recent provision of an electric start lawnmower as a “massive relief”[202] for her father because he was struggling beforehand but was now happy that he could mow his own lawn. She said she was aware that over the last few months he has gone to her sister’s home to mow her lawn.
[202] T188, L10.
140Ms Lao described how she now needed to move bags of manure and potting mix and rice bags that are delivered to the family home but which before May 2017 would have been lifted and moved by her father.[203]
[203] T190, L15-27.
141Ms Lao said that she is conscious that life is a struggle for her father because he had always been very self-reliant and with her mother’s illness, and despite his desire to help a lot more around the house, it is a struggle for him to do so because of his own limitations.
Cross-examination
142Ms Lao was cross-examined by Ms Manning. Ms Lao said she was unaware if her father had taken medication for any psychological issues in the period between 2007 and 2016.[204]
[204] T194, L2-6.
143She thought it was some months ago and prior to COVID-19 when her father last went fishing.[205] Her most recent memory of camping was prior to her mother’s diagnosis with cancer and, therefore, “probably it’d be maybe early 2016 would have been the last time”.[206]
[205] T194, L24-26.
[206] T195, L2-3.
144Ms Lao said that her father also tends to her sister’s garden and whose home is only 300 metres away, but she was unsure how often he went there.[207]
[207] T195, L10-13.
145The family last travelled to Cambodia in December 2018 when Ms Lao’s mother was in remission and they determined to travel together again as a family.[208]
[208] T196, L27-29.
Dr Verrills
146Dr Verrills said that the plaintiff has been his patient since 2018. He described the procedure of a percutaneous plasma discectomy he performed on the plaintiff in May 2020 as:
a treatment to a disc - in this case the L5-S1 disc - where a needle is placed through the skin and then a fairly heavy gauged needle is placed down into the disc, and then the stylet is taken out, and then a third device - which is a wand - is placed through that Crawford needle to the centre of the disc. We undertake a coblation technique, which creates a plasma field, and we create six channels in that disc to decompress the disc and to try to reduce the amount of inflammation in the disc. That is the procedure that he had after I had dialogue with consultant neurosurgeon Mr Greg Malham who recommended that that be tried before major fusion surgery.[209]
[209] T103, L5-17.
147Dr Verrills said that he did not believe the plaintiff’s treatment had dealt adequately with his major left-sided pain. He thought it was irrefutable that the plaintiff has an L5-S1 disc injury for which the best treatment would be a fusion and if he did not get adequate relief from it, then the alternative therapy would be a spinal cord stimulator.[210]
[210] T104, L29 - T105, L31.
Dr Verrills – Cross-examination
148Dr Verrills was questioned about the comments contained in his report that the plaintiff was unable to work, garden, play sports, go camping, do bushwalking. Whilst he could not recall if the plaintiff specifically said he could no longer garden, he had described some activities he could do minimally and some things he was not able to do at all, such as no longer being able to run 5 kilometres.[211]
[211] T108, L24 - T109, L2.
149Dr Verrills said that the plaintiff was not at risk of damaging his disc further by activity a matter about which he had reassured the plaintiff.[212] As he put it, the disc having been torn, although it cannot heal, it cannot be made worse by the plaintiff’s activities, although in consequence of the tear, he would continue to experience pain when engaged in activity.
[212] T110, L3-4.
150Dr Verrills was questioned by Mr Smith concerning the surveillance footage. Dr Verrills said that the plaintiff’s tear was not comparable, for example, to a patient with sciatica or a nerve injury and, therefore, he should be expected to be observed as able to move in a normal manner. He said he did not see anything untoward in the surveillance and, in his opinion, the activities he observed on film being performed were completely concordant with someone who was still experiencing the disc injury that he had identified.
151Dr Verrills was reluctant to accede to the suggestion by Mr Smith that if the plaintiff was able to find work which incorporated the activities of stooping, squatting, bending, twisting and lifting, then he could do so without fear of causing further injury to his disc. Dr Verrills said that in his opinion the plaintiff has dominant discogenic pain[213] but he accepted that “if he found work that he could do in very short spurts like that for minutes at a time, and bend and flex, I would think that would be fine.”[214]
[213] T 118, L11-16.
[214] T 111, L23-26.
152Dr Verrills described the plaintiff whom he saw depicted in the surveillance footage as a man engaged for small amounts of time holding a lightweight secateur and cutting branches, and then squatting. He added that over more than half an hour of filming taken over the course of several days, he only observed the plaintiff undertake “small minutes of activity. I don't believe that's someone that I would employ”.[215]
[215] T 111, L2-11.
153It was suggested to Dr Verrills that despite further activities not causing additional injury to the disc, the plaintiff should be expected to experience pain as a result of his injury, but he accepted that the plaintiff did not appear to exhibit pain behaviours during the period of surveillance.
154Dr Verrills agreed with Mr Smith that it was always likely that the plaintiff was at risk of suffering a tear of his disc, given the duties that he undertook at work by way of the lifting of the 25-kilogram weights away from his body.[216] He did not think the weight the plaintiff was required to lift at work was as relevant to his physical injury as him having been required to lift weights away from his body and stack bags onto a pallet.[217]
[216] T124, L24-30.
[217] T124, L5-7.
Dr Stuart Turnbull
Evidence-in-chief
155Dr Turnbull has been treating the plaintiff since February 2018. He adopted the contents of his reports dated 20 August 2019[218] and 18 September 2020.[219]
[218] Exhibit P6, PCB 49-52.
[219] Exhibit P6, PCB 65-68.
Dr Turnbull – cross-examination
156Dr Turnbull said that despite having commented in his report dated 18 September 2020, (incorrectly dated by Dr Turnbull as 18 September 2019)[220] that the plaintiff “struggles with activities of daily living and is assisted around the house by his wife and daughter”[221] the plaintiff had not provided him with a description of what he required help with.[222]
[220] T140, L22-31.
[221] T140, L10-12.
[222] T141, L14-21.
157When asked if the surveillance film depicted the plaintiff manifesting any outward display of pain, Dr Turnbull commented that “he was certainly limping.”[223] Limping was not a presentation I observed on viewing the surveillance footage.
[223] T142, L16-17.
158Dr Turnbull agreed with Mr Smith that the surveillance depicted the plaintiff as able to bend, as well as being observed bending his knees several times when picking up twigs. He also agreed with Mr Smith that the plaintiff is seen squatting without any evident difficulty and also stooping at times.
It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because ‘questions of cause and consequence are not the same for law as for philosophy and science’, as Windeyer J pointed out in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, at p 591. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill’s definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage:: see McLean v. Bell (8), per Lord Wright; Sherman v. Nymboida Collieries Pty. Ltd. (9), per Windeyer J.[265]
[264] (1991) 171 CLR 506.
[265] Ibid 509.
233Mason CJ in March was cited with approval by the High Court in Strong v Woolworths Ltd[266]. There the majority said:
Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation.[267]
[266] (2012) 246 CLR 182.
[267] Ibid 194 (citations omitted).
234Thus, the test to be applied is whether any negligence on the part of the defendant was a necessary condition of the plaintiff’s injuries, remembering that it will suffice if the defendant can be shown to have materially contributed (in the sense of one cause among others) to those injuries. Of course, the plaintiff at all times bears the onus of proving on the balance of probabilities any fact relevant to causation.
235My findings concerning the plaintiff’s asymptomatic but vulnerable back and the episodes of previous mental health, prior to the work injury in May 2017, impels consideration of the principles in Malec. There the plurality of the High Court observed:
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred ... But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[268]
[268] Malec (1990) 169 CLR 638, 642–3 (citations omitted) (Deane, Gaudron and McHugh JJ).
236Justices Brennan and Dawson, in their separate but concurring reasons, said:
The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false — for the plaintiff has been injured — the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.[269]
[269] Ibid 639.
237Further, and to like effect, their Honours said:
In assessing the plaintiff's earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition[270] would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.[271]
[270] Or mental condition.
[271] Malec (1990) 169 CLR 638, 640.
238The reasoning in Malec has been cited with approval including in subsequent decisions of the Trial Division of the Supreme Court of Victoria and the Court of Appeal.[272]
[272] See, for example, Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 [136]; Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197; Johnson v Box Hill Institute of TAFE [2014] VSC 626 [454]; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 [607]; Winky Pop Pty Ltd v Mobil Australia Refining Pty Ltd [2016] VSCA 187 [331]–[341]; Wearne v State of Victoria [2017] VSC 25 [357].
239In Tabet v Gett,[273] Gummow ACJ stated that:
The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v JC Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example.[274]
[273] (2010) 240 CLR 537.
[274] Ibid 557 [39]. See also ibid 535 [136] (Kiefel J).
240In Seltsam Pty Ltd v Ghaleb[275] Ipp JA (with whom Mason P agreed) on the application of Malec held, that Malec stood for the following propositions:
(a) in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;
(b) the Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;
(c) the Court must form an estimate of the likelihood of the possibility of alleged future events occurring; and
(d) these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.[276]
[275] [2005] NSWCA 208.
[276] Ibid [103].
241Justice Ipp went on to observe that:
Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations—not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.[277]
[277] Ibid [104]– [107] (citations omitted).
242Applying the principles in Malec, the plaintiff will be entitled to damages because the injury was caused or materially contributed by the negligence of the defendant. This is the resolved question of fact as to a past event. However, a different approach is required for future events, such as whether the plaintiff’s pre-existing but asymptomatic vulnerable back condition and his previous psychological vulnerability would have deteriorated and restricted him from work. Malec holds that I must assess this hypothetical event as a probability and the plaintiff’s damages must be reduced accordingly: for example, if I find that there was a percentage chance that the plaintiff’s back or his mental state would have deteriorated on its own then I must make that percentage reduction, regardless of whether the event would have occurred before or might occur after the assessment of damages.[278] I must make an adjustment to reflect the probability of this hypothetical event.[279]
[278] Malec (1990) 169 CLR 638, 642–3.
[279] See Bucic v Arnej Pty Ltd [2019] VSC 330 [290]– [294].
243I note that in Club Italia (Geelong) Inc v Ritchie[280] the Court of Appeal observed that, as a rule of thumb, discounts for vicissitudes in personal injury cases are usually in the order of 15 per cent (emphasising that each case will turn on its own facts). It would be wrong of me to approach the matter on the basis that a general amount is the norm. I have not done so.
[280] (2001) 3 VR 447, 464 [57].
244I also note that the concept of a discount for vicissitudes is subsumed in the analysis of Malec principles and that this conceptually applies to both past and future pecuniary loss as well as pain and suffering damages.
245Here the plaintiff has suffered a disc injury. There is no evidence to which I was directed to that he was other than asymptomatic before the work injury. By the same token, and having regard to the totality of the evidence, I cannot exclude the possibility that the plaintiff would not have been able to continue in his work to age 67 by reference to a pre-existing degenerative back condition that rendered him vulnerable to a different or non-work related injury.
246As to the evidence of the plaintiff’s capacity to engage in some form of suitably restricted employment, to the extent there is a consensus, it is that it would be employment that limited lifting to about 10 kilograms, preferably between knee and chest, with no static postures and no repetitive twisting.
247Dr Turnbull said:
– As I’m saying, we have seen two, ten minute clips, that work wasn’t particularly heavy but he appeared to cope with it.[281]
[281] T143, L26-28.
- Well, we’ve seen two ten minute clips whether that translates to eight hours of work, I can’t say.[282]
[282] T144, L14-16.
248Dr Verrills said:
- Well, can I just say I watched that video which was filmed over multiple days and knowing that I would be questioned on it, I noted that he did those activities for small amounts of time. There were maybe up to give minutes of him holding a lightweight secateur and cutting branches, and then he stood there, and then he maybe squatted. And so over more than half an hour of filming and several days, I saw him do small minutes of activity. I don’t think that’s someone that I would employ.[283]
If he found work that he could do in very short spurts like that for minutes at a time, and bend and flex, I would think that would be fine.[284]
[283] T111, 2-11.
[284] T111, L23-26.
Pecuniary Loss
249As I have previously observed, it was not contested by the defendant that the plaintiff cannot return to pre-injury duties. His work experience has been limited to heavy manual work. He would present to any future employer as someone with both psychological and physical limitations, limited English, limited literacy skills and minimal transferable skills. When I take these factors into account, and factor into the equation the majority of medical opinion that the plaintiff has no work capacity, the picture painted of his future is unfavourable.
250The plaintiff’s pre-injury history was commendable. He worked for two years in various jobs when he came to Australia, before working for a car manufacturer for approximately 10 years. He worked for the defendant from 1994 until 2017. He attempted to return to work twice, unsuccessfully, and his employer terminated his employment because of his ongoing incapacity. He has undergone various forms of treatment following his work injury including physiotherapy, hydrotherapy, pain management/rehabilitation, branch block investigations, discogram investigations, radiofrequency neurotomy and percutaneous plasma discectomy.
251I have already expressed by findings that I am satisfied as reflected in the clinical notes of Dr Siew, that the plaintiff suffered a pre-existing psychological condition associated understandably with the health condition of his wife, and perhaps also, some sense of dissatisfaction he felt about the value his employer placed in him, and for which Zoloft was prescribed from time to time. All of this contributed to him presenting at the date of injury with a greater vulnerability or susceptibility to an adverse mental reaction to his injury. He had been described, and thus presumably, assessed by Dr Siew as suffering depression, and on occasions when he presented, with a chronic condition. In this context, I must evaluate the possibilities that on the hypothesis that the defendant did not negligently cause the plaintiff’s present injury, that his pre-existing psychological injury would have been exacerbated in any event, leading to the result that he would have been injured with consequent disablement to an equal or lesser extent than that which actually occurred, and it would have forestalled or impeded his planned employment until retirement age.
252The plaintiff gave clear evidence of his ongoing pain, that is worsened by various activities, together with limitations on his ability to undertake past activities such as camping, fishing and high-level gardening.
253The plaintiff has undergone a series of interventional treatments, albeit he has not been required to undergo surgery, but the possibility of a fusion surgery remains, according to the report of Mr Malham,[285] reinforced by Dr Verrills[286] and the plaintiff’s evidence of his likely attitude to surgery should it come to that.[287]
[285] Exhibit P7, PCB 63-64.
[286] T104, L26 - T105, L31.
[287] T42, L29 - T43, L6.
254I am satisfied that the plaintiff has lost his capacity to work. The sense of self-worth he derived from his work and his admirable work ethic, was reflected not only in his oral evidence but in that of his daughter, and I am also satisfied that it is a loss that has strongly resonated in the plaintiff’s life. Work was something that he loved.[288]
[288] T48, L31 - T49, L1.
255As a result of the physical injury, I accept that the plaintiff suffers relatively constant pain in his back. I am satisfied, too, that his pain is exacerbated depending on the activities in which he is involved. I am satisfied that the pain is inhibiting to most of the leisure and recreational activities he previously engaged in, other than some light gardening including mowing that itself has been better facilitated by the provision of an electric mower.
256I am satisfied that the plaintiff has been unable to be employed from the date of injury to the present time save for two short and unsuccessful attempts to return to work.
257In Sahin v Victorian WorkCover Authority,[289] the Court of Appeal said:
The assessment of an injured plaintiff’s claim for loss of earning capacity suffered as a result of bodily injury involves questions of fact and degree, and requires estimates and judgments to be made, about matters upon which reasonable minds might differ. More often than not, in assessing an injured plaintiff’s loss of earning capacity, there is no one correct answer. One judge may take a more favourable approach to a party in respect of one issue upon which the assessment falls to be made, but a less favourable approach to the same party on another issue. As was said by the plurality in Husher:
The assessment of damages for loss of future economic capacity involves questions of judgment and estimation. Being an attempt to predict what would have happened, the process can never be exact. The fact that calculations are made by multiplying present values of net income by the expected duration of remaining working life should not obscure that the process is necessarily inexact.
[289] [2017] VSCA 13.
258In Club Italia (Geelong) Inc v Ritchie,[290] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually in the order of 15 per cent, while emphasising that each case depended on its own facts.
[290] (2001) 3 VR 447, 464 [57].
259In my assessment, having regard to all matters, and including my overall and favourable assessment of the plaintiff, and notably too, Ms Lao, I am not satisfied of a precise or approximate timeframe for a possible breakdown through non-compensable causes. In my judgment, the prospect that the plaintiff could have been in the same psychological state as he currently is by way of a further recurrence of depression due to the other stressors, as opposed to its development because of the defendant’s breach of its duty of care, although real and not fanciful, is not significant when regard is had to the lack of evidence of interference to work and life such that such other factors had prior to May 2017. Furthermore, for the reasons that I have explained, I am satisfied that the possibility of physical disablement at an earlier point from pre-existing degenerative vulnerability, and not occasioned or contributed to by work, is also a possibility but not significant, and I am satisfied that in ideal conditions, the plaintiff could have been expected to continue to work until age 67. I am satisfied and accept the plaintiff’s evidence that his pre-injury intention was to work to at least retiring age, a matter that was confirmed by his daughter.[291] I am satisfied that that the plaintiff would, absent injury, have worked until at least age 67. I have already explained that I am satisfied that the plaintiff’s date of birth is 11 December 1962.
[291] T191, L24 - T192, L23.
260In the circumstances, the appropriate discount factor for the vicissitudes is 20 percent.
Pain and suffering damages
261In Willett v Victoria,[292] the Court of Appeal by majority agreed with the observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King,[293] that over the course of time society has come to place greater value on the loss of enjoyment of life and the experience of pain and suffering than it did before. Salaries, too, have greatly increased. The court said:
Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But in as much as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?[294]
[292] (2013) 42 VR 571.
[293] (2011) 35 VR 280.
[294] Ibid 320-321 [177] (footnotes omitted).
262The following considerations appear to me as relevant to my assessment:
1) First, the plaintiff:
a)suffers anxiety and depressed mood;
b)does not require significant medication. In his most recent report, Dr Bloom notes that he might take two to four Mersyndol on occasion but there is no regular regime of analgesic use. Medication is restricted to psychotropic medications;
c)is unable to work;
d)may come to the need for a fusion;
e)suffers significant loss of enjoyment in his lifestyle; and
f)has limited dealings with others outside his immediate family.
2) Second, the plaintiff’s back was asymptomatic prior to injury;
3) Third, the plaintiff’s psychological state was patently fragile prior to the injury in May 2017.
4) Fourth, despite the psychological vulnerability, the plaintiff was coping perfectly fine in his employment and enjoying activities of living socially and recreationally.
5) Fifth, the health of the plaintiff’s wife has had an adverse effect on him.
263Taking all matters into account, and after applying the discount that I have identified as appropriate, I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the sum of $210,000.
Plaintiff’s capacity for work and future loss of earnings
264Addressing the evidence of the plaintiff’s capacity to engage in some form of suitably restricted employment, I am satisfied that the broad consensus is that it would only be employment that limited lifting to about 10 kilograms, preferably between knee and chest, no static postures, no repetitive twisting. Dr Verrills and Dr Turnbull said that such activities would not create a risk of further injury to the disc although this would not exclude pain.
265As regards Dr Bloom’s reporting of the plaintiff presenting with a capacity for light full-time or part-time employment in the identified roles and within the limitations recommended by him, I am not satisfied this represents the whole picture of the plaintiff’s probability of returning to employment, especially when I have regard to the comment made by Dr Bloom of the combination of the plaintiff’s physical condition and psychosocial factors:
Despite the fact that there are no physical contraindications to suitable work duties, and that a well-supported return to suitable paid work would likely prove beneficial, because of the adverse psychosocial factors, this man’s prognosis is poor, and I think his realistic chance of re-entering the paid workforce is now negligible. Further, I very much doubt that any further passive or interventional pain treatments will improve his overall situation.[295]
[295] Exhibit P16, DCB 88.
266I am satisfied that the reality of the plaintiff’s situation is that the probability of a return to employment on a regular and consistent basis is unrealistic.
267In addition, the unreality of the plaintiff returning to paid work is supported by Dr Vadasseri, whose opinion is that on largely psychiatric grounds, the plaintiff has no capacity, a position likewise adopted by Professor Damodaran. I have already addressed the opinions of Dr Walton and Ms Wallis, and Mr D'Urso, who considered that although the plaintiff retained a theoretical capacity for work with restrictions, "given his occupational history and English language skills I suspect it will be quite difficult for You wanting to find suitable employment capacity within restrictions that I have mentioned.”[296]
[296] Exhibit P11, PCB 85.
268Having regard to the totality of the evidence, I am satisfied that such residual physical capacity as there is, when account is taken of the psychological factors, results in me being comfortably satisfied that the plaintiff has no realistic work capacity.
269I am satisfied that the plaintiff has been incapable of working since 17 May 2017 and that he will remain wholly incapacitated for suitable employment having regard to the totality of the assessment I have made of his circumstances.
270For the reasons I have expressed, and after applying the discount I have found appropriate, I assess the plaintiff’s future loss of earnings to age 67.
Conclusion
271I award the plaintiff the amount of general damages for pain and suffering in the sum of $210,00 after applying a 20 per cent discount. I award the plaintiff, after the same discount, the amounts claimed by him for past and future loss of earnings to age 67, satisfied as I am, that the plaintiff was born on 11 December 1962.
272I direct that the parties provide a minute of order that takes account of these reasons in respect of such sums awarded together with any other orders required within 7 days of today.
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