Lee v Victorian WorkCover Authority
[2024] VCC 1482
•26 September 2024
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-06025
| TERRY LEE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 10 July 2024 | |
DATE OF JUDGMENT: | 26 September 2024 | |
CASE MAY BE CITED AS: | Lee v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1482 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering claim – left leg injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Popal v Transport Accident Commission [2023] VSCA 222; Roberts-Smith v Fairfax Media Publications Pty Limited (No.41) [2023] FCA 555; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hunter v Transport Accident Commission & Anor [2005] VSCA 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
Judgment: Application dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico with Mr B Johnson | Shine Lawyers |
| For the Defendant | Mr A Saunders with Ms C Kusiak | Minter Ellison |
HER HONOUR:
Introduction
1The plaintiff, Terry Lee, seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings for pain and suffering damages as a result of an injury to his left leg.
2Mr Lee’s injury occurred on 9 March 2017 (“the work injury”) in the course of his employment with Zoom Recruitment (“the employer”) at a construction site in Pakenham.
3At the hearing, Ms Julia Frederico and Mr Brendan Johnson of Counsel appeared on behalf of Mr Lee. Mr Andrew Saunders and Ms Catherine Kusiak of Counsel appeared on behalf of the Victorian WorkCover Authority (“VWA”).
4The application initially relied on subparagraphs (a) and (c) of the definition of “serious injury.” At the commencement of the hearing, Ms Frederico informed the Court that Mr Lee relied only upon subparagraph (a) of the definition of “serious injury”.
5I have considered all the tendered evidence, Mr Lee’s oral evidence and the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
6For the reasons that follow, I find that Mr Lee has not satisfied his onus of establishing that the long-term impairment consequences to him of his left leg injury can be fairly described as being more than “significant or marked” and “at least very considerable” when compared to the range of possible impairments.
What are the issues in dispute?
7The legal principles are well known and not in dispute in this case.
8In order to succeed, Mr Lee must prove, on the balance of probabilities, that:
(a) the injuries arose out of or in the course of his employment, or were due to the nature of his employment;
(b) the injuries with their resulting impairment must be “permanent;” that is, “likely to last for the foreseeable future”;[1]
(c) the impairment consequences of the injuries to Mr Lee in relation to pain and suffering must be “serious;” that is, when judged by comparison with other cases in the range of possible impairments, they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.[2]
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at 638, paragraph [33]
[2] Section 325(2)(b) and s325(2)(c) of the Act
9The psychological or psychiatric consequences of the physical injury cannot be considered in this case.[3]
[3]Section 325 (2)(i) of the Act
10The VWA did not dispute that Mr Lee had sustained injury to his left leg on 9 March 2017.
11The VWA identified “range” as the only area of dispute.
12The parties made submissions as to Mr Lee’s reliability.
Background
13Mr Lee is now sixty-five years old. He is married and has three adult children and two grandchildren.
14He left school after completing the equivalent of Year 11 and he commenced an apprenticeship as a fitter and turner. However, after about nine months he started work in the construction industry as a rigger/scaffolder.
15Mr Lee worked as a rigger/scaffolder from 1978 to 1990.
16For twenty-two years, from approximately 1990 to 2012, he worked as a full-time organiser for the Federated Ironworkers Association.
17Mr Lee returned to work as a rigger/scaffolder in 2012. Mr Lee did not explain why he did this. He worked on a number of projects, including on offshore rigs around Australia.
18In November 2016, he commenced working for Zoom Recruitment. He worked on placement, undertaking the construction of concrete segments for elevated crossings as part of the State Level Crossing Removal program.[4]
[4]Plaintiff Exhibit P1, Plaintiff Amended Court Book (“PACB”) 11 at paragraph [6]
Injury and treatment
19On 9 March 2017, Mr Lee was working at a site in Greenhills Road, Pakenham. He was walking towards some timber pallets and while doing so he stood in concrete slurry which caused him to slip and effectively do the splits. He ruptured his left hamstring (“the work injury”).
20Mr Lee attended the Zoom Recruitment’s doctor at the Station Street Clinic in Pakenham. He was off work for approximately three to five weeks and then returned to work on light duties as a crane operator.
21Mr Lee said he attended Berwick Hospital Emergency Department on an unspecified date. No material was produced about this attendance.
22Mr Lee attended Mr Daniel Robin, consultant orthopaedic surgeon, in March and April 2017. Mr Lee said that Mr Robin offered him the options of surgery or conservative treatment. Mr Lee took the second option.
Post-injury employment
23Mr Lee continued to work with Zoom Recruitment until January 2018. It is not clear whether he remained on light duties during this time.
24After ceasing work with Zoom Recruitment, Mr Lee took time off. In April 2018, he obtained a full-time position as a tension machine operator on an offshore pipeline which operated out of the old BP refinery at Crib Point. He worked in that job until the end of 2018.
25In 2019, Mr Lee worked as an offshore rigger on a dive-support vessel and also worked at the Newport Power Station for an organisation called The Cog Vic PL (“Cog”).
26Mr Lee then worked for twenty-two months with an organisation called CPB as a Health and Safety Representative. CPB was undertaking construction work on the Monash Freeway. It is unclear whether he participated in any “hands-on” work or whether he was “off the tools” in this role. That job finished in September 2022. After that job ceased, he returned to work with Cog for about sixteen days.
27Mr Lee then worked with Winslow Infrastructure as a Health and Safety Representative and storeman on a road upgrade project until 21 December 2023, when the contract was completed.
28All jobs undertaken by Mr Lee since the work injury have been on a full-time basis.
The hearing
29The application proceeded in the usual way.
30Mr Lee tendered Affidavits, medical reports, medico-legal reports, extracts of clinical records and radiology. In addition, Mr Lee provided the Court with a chronology and a written outline of submissions.
31The VWA tendered extracts from clinical records of the Trafalgar Medical Centre[5] and a referral letter from Dr Sherry Xue of the Trafalgar Medical Centre to the Albert Street Sports & Spinal Injury Centre, dated 17 December 2014.[6]
[5]Defendant Exhibit D1, Defendant’s Amended Court Book (“DACB”) 59-60
[6]Defendant Exhibit D2, DCB 65
32Mr Lee was the only witness who gave oral evidence and was cross-examined.
Mr Lee’s evidence
33Mr Lee relied upon two Affidavits – the first was affirmed 4 July 2023 and the second on 22 May 2024.[7] He adopted the Affidavits in his oral evidence. He was cross-examined.
[7] Plaintiff Exhibit P1, PACB 10-22
Unrelated health conditions
34During the hearing, Mr Lee admitted to having a minor pre-existing knee condition and to experiencing chest pain in late 2023. Neither of these matters were mentioned in his Affidavits. Neither condition has any bearing on this application. There was no evidence to suggest that they currently impacted upon Mr Lee’s daily activities or his capacity to work.
Pain and Suffering consequences
Pain
35In his first Affidavit, Mr Lee described his pain as follows:
“… I suffer from regular cramping of my left leg. I am unable to get out of my car without my left leg cramping. As I lift my leg over the door sill, it causes it to cramp. I need to stand up and ease the cramping. The cramping hurts me a lot and continues for a minute or so until I have stood up.
…
I suffer from pain in my left leg after sitting for any length of time. I have constant pain in my left buttock when I am sitting.”[8]
[8]Plaintiff Exhibit P1, PACB 12-13 at paragraphs [18] and [21]
36In his second Affidavit, he added:
“… I continue to experience pain on a daily basis from my left lower limb injury the subject of this claim. The pain comes and goes, and is worse with forward leaning postures or activities that place force through my left leg. I continue to experience cramping in my left leg which makes performing basic functions difficult, such as getting in or out of the car. The cramping will come on with activity involving exertion through my left leg, so I try to avoid activities that will cause the cramping. … Long periods of sitting or standing are difficult and painful for me. … .”[9]
[9]Plaintiff Exhibit P1, PACB 19-20 at paragraph [8]
Sleep
37Mr Lee did not refer to any interference with his sleep.
Post-injury work
38In his first Affidavit, Mr Lee stated:
“I can no longer work as a rigger and scaffolder. It is very heavy work. It requires lifting heavy chains and I need two good legs to control the loads as I hang onto the tag line. But for my injury, I would still be working in rigging and scaffolding. I have done this work for all my life. I really loved it . I was very experienced and very good at this work. It is too hard for me now as a result of my left leg because I am not able to manage the heavy lifting and guiding of weights.
This is very upsetting to me that I have lost the capacity to use my skills and work in my trade as a rigger and scaffolder because of the injury to my left leg.”[10]
[10]Plaintiff Exhibit P1, PACB 14-15 at paragraphs [27]-[28]
39In his second Affidavit, Mr Lee stated:
“…. I am now permanently restricted from returning to my work as a rigger/scaffolder and miss the enjoyment and satisfaction of completing this work and engaging in this trade. … .”[11]
[11]Plaintiff Exhibit P1, PACB 21 at paragraph [12]
Recreational Activities
40Mr Lee described the impacts of the work injury on running and deep-sea fishing.
41In his first Affidavit he said:
“Prior to my injury, I ran regularly. In the winter I would run 3 times a week and in the summer, up to 5 times a week. I enjoyed going for a run after work and then longer runs on the weekend. On average I would run up to 6 times a week, 5-7 kilometres at a time. I really loved running. I am no longer able to run. This is a big loss to me.”[12]
[12]Plaintiff Exhibit P1, PACB 15 at paragraph [30]
42In his second Affidavit he said:
“…. I have ceased running, which was a passion of mine previously. I miss the enjoyment and physical benefit of running and remaining fit. I am able to walk, but it is not the same for me. Since suffering the injury to my left lower limb I have tried to run once but it was unsuccessful. My left leg is just unable to manage the pace of running and the physical function. I have not tried running again since.”[13]
[13]Plaintiff Exhibit P1, PACB 20 at paragraph [9]
43In cross-examination, he said that, prior to the work injury, he was running three to five times per week – sometimes every night of the week.[14]
[14]Transcript (“T”) 23, Lines (“L”) 11-13
44In respect of deep-sea fishing, he said, in his first Affidavit:
“I have enjoyed deep sea fishing off places like Wilsons Promontory and other places around the state. I am able to go out on the boat with my son and friends. I can no longer fight the Marlin. I am not able to stand up like I used to on the boat.”[15]
[15]Plaintiff Exhibit P1, PACB 15 at paragraph [31]
45In his second Affidavit, Mr Lee said:
“… I have continued to fish using my boat from time to time with my son and friends, but I do not fish nearly as much as I used to in the past. In particular, I have not returned to Marlin fishing which was my main interest and enjoyment. We used to go to Bermagui around twice a year and fish for Marlin in particular ... I have returned to Bermagui once since my injury the subject of this claim, but did not fish, I only drove the boat. I miss the social benefit of these trips and also the enjoyment of Marlin fishing which was significant to me.”[16]
[16]Plaintiff Exhibit P1, PACB 20-21 at paragraph [10]
Medication/Treatment
46Mr Lee has not attended any medical practitioner for treatment for the work injury since 2018.
Activities of Daily Living
47Mr Lee is independent with his personal activities of daily living. He is not restricted in his ability to perform personal care activities, such as dressing or showering.
48He says he has experienced difficulties in interacting with his grandchildren. In his first Affidavit, he merely said that, prior to the work injury, he enjoyed playing with his granddaughter. This was expanded in his second Affidavit, when he said:
“…I have two grandchildren, [A] aged 10, and [B] aged 2. I have another grandchild on the way. I continue to have difficulty with playing on the ground with [B], and engaging in play with [A] and [B] which involves more active movement because of the pain and restriction in my left leg. I experience cramping, particularly if I engage in forward leaning postures or kneeling activities and avoid doing so as a result. Getting up from being on the ground is particularly difficult for me.”[17]
[17]Plaintiff Exhibit P1, PACB 21 at paragraph [11]
Domestic Activities
49Mr Lee did not allege he was restricted in domestic activities.
Intimate Relations
50Mr Lee said his work injury has impacted on his intimate relationship with his wife, but no further explanation is provided. Ms Lee confirmed this in her Affidavit, when she said:
“Our intimate relations have also been affected because of Terry’s injury. He appears more distant and less interested compared to what he used to be. This has impacted our relationship.”[18]
[18]Plaintiff Exhibit P 2, PACB 26 at paragraph [19]
Cheryl Lee
51Cheryl Lee is married to Mr Lee. She affirmed an Affidavit dated 5 June 2024.[19] Her Affidavit was supportive of her husband’s claim.
[19]Plaintiff Exhibit P2, PACB 23-26
52Ms Lee referred to the restrictions faced by her husband:
(a) when fishing – which must have been based on what he had told her ꟷ as she does not say that she ever went fishing with him;
(b) when interacting with their grandchildren ꟷ she witnessed him struggling to get up and down from the floor to play with them;
(c) in their intimate life ꟷ as discussed above, she said Mr Lee had become more distant and less interested;
(d) physical activity ꟷ Ms Lee said her husband had been a fit and active person before the work injury. She said he would run every day, or every second day, but he no longer ran because of the work injury.
53Ms Lee was not required for cross-examination. Her observations of her husband went beyond the impairment consequences claimed by Mr Lee. For example, she referred to issues surrounding balance, gardening, and household chores, as well as social restrictions.
54I find Ms Lee’s evidence regarding running to be unreliable, as it is contrary to the contemporaneous independent record of Mr Robin, discussed below.
Medical evidence
55I have reviewed all of the medical evidence tendered by Mr Lee and the VWA, but will only refer to it as is necessary to resolve the issues in dispute.
Mr Lee’s medical evidence
Radiology
56Mr Lee tendered radiology taken in 2017, which included an MRI scan of the upper left thigh, dated 14 March 2017,[20] an ultrasound of left thigh, dated 10 May 2017[21] and an MRI scan of the left thigh, dated 10 October 2017.[22]
Treating doctors
[20]Plaintiff Exhibit P3, PACB 29
[21]Plaintiff Exhibit P4, PACB 30
[22]Plaintiff Exhibit P6, PACB 32
Station Street Clinic
57Mr Lee tendered undated notes of three attendances at the Station Street Clinic, Pakenham.[23] Given the content of the notes and Mr Lee’s evidence he attended this clinic after the work incident, I infer that the attendances were either on the day of the work incident or shortly thereafter.
[23]Plaintiff Exhibit P12, PACB 84-87
58The attendances confirm Mr Lee presented to the clinic complaining of injuries sustained in the work incident and that he was referred for an MRI scan and to the Valley Private Hospital for review.
Dr Ahmed Sharif, General Practitioner
59Mr Lee tendered a letter dated 15 March 2017,[24] which was a referral prepared by Dr Sharif of the Station Street Clinic, addressed to the Valley Private Hospital, seeking early review and management from an orthopaedic surgeon.
[24]Plaintiff Exhibit P9, PACB 67
Mr Daniel Robin, Orthopaedic Surgeon
60Mr Lee tendered two letters from Mr Robin, dated 9 April 2017 and 16 May 2017,[25] addressed to Dr Darsim Haji at the Valley Private Hospital. While it is not clear, it appears that Dr Haji was an emergency department doctor at the Valley Private Hospital, who took over Mr Lee’s care on the referral from Dr Sharif. Dr Haji, in turn, referred Mr Lee to Mr Robin.
[25]Plaintiff Exhibit P10, PACB 68-69
61Mr Lee also tendered two clinical notes of Mr Robin, dated 20 March 2017 and 30 April 2017.[26]
[26]Plaintiff Exhibit P11, PACB 82-83
62Dr Haji referred Mr Lee to Mr Robin in late March 2017.
63Mr Robin’s clinical notes, taken on 20 March 2017, contained the following, “[f]airly sedentary/not sporting - walks up to 7km / day. No sports per se”.[27]
[27]Plaintiff Exhibit P11, PACB 82
64Mr Robin considered whether surgery was necessary to re-attach Mr Lee’s hamstring. He said that, due to a combination of age, smoking, low level of activity and Mr Lee’s reluctance to have surgery, he offered Mr Lee conservative treatment in the form of analgesia and physiotherapy.
65On 30 April 2017, Mr Robin noted Mr Lee had been able to get on a boat and go fishing “as well as reel in some decent sized fish!”.[28] Mr Robin also recorded that Mr Lee was able to go camping, pitch tents and work on inclines, as well as climb stairs.[29]
[28]Plaintiff Exhibit P10, PACB 69; Plaintiff Exhibit P11, PACB 83
[29] Ibid
66Mr Robin did not record any complaints of interference with recreational activities ꟷ particularly running.
Dr Michael Kunze, General Practitioner
67Mr Lee tendered four reports of Dr Kunze of the Trafalgar Medical Centre dated 19 November 2017, 29 January 2018, 20 February 2020 and 29 June 2024.[30]
[30]Plaintiff Exhibit P8, PACB 34-40 and 70-75
68Dr Kunze has been Mr Lee’s long-term GP since 2002.
69Mr Lee first attended the Trafalgar Medical Centre for treatment in relation to his work injury on 27 March 2017, when he was examined by a different doctor at the clinic. Dr Kunze first attended Mr Lee regarding the work injury on 30 August 2017.
70In January 2018, Dr Kunze opined that Mr Lee did not have the capacity for pre-injury employment, without detailing what that was. He said Mr Lee could not undertake work which involved the frequent use of stairs, but he was fit for alternate duties. At that time, Mr Lee was attending fortnightly physiotherapy, which Dr Kunze said should reduce to monthly by mid-2018 and be further reduced by the end of 2018.
71Despite the dates of the reports, Mr Lee last reported ongoing symptoms in relation to his work injury in early 2018.
72In his reports, Dr Kunze expressed the view Mr Lee would continue to have a mild permanent reduction in the strength of his left hamstring and he expected he would continue to experience some knee pain.
73According to the June 2024 report, Mr Lee has continued to be a patient of the Trafalgar Medical Centre. He has not reported any symptoms or been provided with any treatment relating to his work-related injury since early 2018. Dr Kunze did not refer to any ongoing work restrictions, nor the need for any further physiotherapy.
74Dr Kunze said the report of orthopaedic surgeon, Dr Philip Sheard, in 2024 (which is discussed below), was congruent with his understanding of Mr Lee when he last assessed his injuries in early 2018.
75Dr Kunze has not made a recent assessment or examination of Mr Lee, despite Mr Lee continuing to be a patient of the Trafalgar Medical Centre.
76Dr Kunze did not record any complaints of interference with recreational activities ꟷ particularly running.
Mr Lee’s medico-legal reports
Dr Philip Sheard, Orthopaedic Surgeon
77Mr Lee tendered a report from Dr Sheard dated 3 April 2024, addressed to Shine Lawyers.[31]
[31]Plaintiff Exhibit P13, PACB 41-45
78In the history provided to Dr Sheard, Mr Lee said he was not able to run and he had not returned to fishing. Mr Lee told Dr Sheard that, prior to the accident, he was running three times a week. He stopped running the weekend prior to the accident and had not returned.
79Dr Sheard opined that Mr Lee suffered a tear of the left partial hamstring in the work incident.
80On clinical examination, he noted Mr Lee was tender in the posterior left buttock and had a full range of motion of the hip.
81Dr Sheard said Mr Lee was not able to run, but did not provide any medical explanation why this was so.
82Dr Sheard’s opinion on work capacity was as follows:
“… I feel it is likely he would be able to go back to pre-injury employment but this would likely be restricted and risk further exacerbation/aggravation of his symptoms. Mr Lee is able to work as a construction rigger as long as this is on firm, stable ground.” [32]
[32]Plaintiff Exhibit P13, PACB 44
83Dr Sheard opined it was unlikely any further treatment was required, other than general practitioner review, painkillers and occasional physiotherapy.
Dr Iain Nicolson, Senior GP
84Mr Lee tendered two reports from Dr Nicolson, dated 1 May 2023 and 15 June 2023,[33] which were addressed to Allianz Australia Workers Compensation (Victoria) Limited (“Allianz”). Mr Lee was referred to Dr Nicolson by Allianz for the purposes of an independent impairment assessment.
[33]Plaintiff Exhibit P15, PACB 58-66
85Dr Nicolson was self-described as a “Senior GP.” There is no evidence before the Court as to what this means.
86In his first report, Dr Nicolson expressed the view that Mr Lee had reached his best healing potential and was left with a permanent impairment in the context of an AMA assessment. His second, short report, commented on the interpretation of the AMA Guides.
Dr Albert Kaplan, Psychiatrist
87Mr Lee tendered a report from Dr Kaplan, dated 23 May 2024, addressed to Shine Lawyers.[34] There was no objection to this report being tendered, despite the abandonment of the paragraph (c) claim.
[34]Plaintiff Exhibit P14, PACB 46-57
88Dr Kaplan examined Mr Lee on 21 May 2024.
89Of relevance to the matters in dispute, Dr Kaplan recorded the following:
“Mr Lee is currently being prescribed amlodipine, Noten, omeprazole, allopurinol, Lipitor and aspirin. He was prescribed an antidepressant drug, mirtazapine 30 mg, in mid-2023. Occasionally he will take Panadol for pain relief.”[35]
VWA’s medical evidence
[35]Plaintiff Exhibit P14, PACB 48
Treating doctors
90The VWA tendered extracts of clinical notes of the Trafalgar Medical Centre and a referral letter from Dr Xue of Trafalgar Medical Centre.[36]
[36]Defendant Exhibit D1, DACB 59-60
Trafalgar Medical Centre
91The two clinical notes were undated, but the parties agreed they related to attendances in late 2014 which related to pre-existing right knee problems.
Dr Sherry Xue, GP
92On 17 December 2014, Dr Xue referred Mr Lee to the Albert Street Sports & Spinal Injury Centre in Warragul for treatment (presumably physiotherapy) for his right knee. Mr Lee could not recall whether he attended the Albert Street Sports & Spinal Injury Centre.
VWA’s medico-legal reports
93The VWA did not tender any medico-legal material.
Summary of the medical evidence
94The material produced by the VWA related to Mr Lee’s 2014 knee injury, which is not relevant to this application.
95The medical evidence regarding objective ongoing disability is scant.
96The high point of Mr Lee’s evidence is found in the medico-legal report of Dr Sheard. Dr Sheard opined Mr Lee suffered a tear of the left partial hamstring in the work incident in 2017. His current diagnosis was unclear. His clinical examination found tenderness in the left buttock region, with a full range of hip motion. There were no other relevant clinical findings.
97While Dr Sheard said Mr Lee was not able to run, this comment appears to have been based on what he was told by Mr Lee and the question posed by the solicitors. Dr Sheard did not provide any medical explanation as to how running was impeded.
Was Mr Lee a credible or reliable witness?
98I must consider the whole of the evidence, but as has been said many times in serious injury applications, the credit of a plaintiff will often be critical to the resolution of the application.[37]
[37]Popal v Transport Accident Commission [2023] VSCA 222
99This case is no exception. Mr Lee’s credit and reliability are central to the determination of the application.
Surveillance
100In response to a call for an admission, the VWA admitted Mr Lee had been placed under surveillance over a four-day period in April 2018 for a total of fifteen hours. Two minutes and thirty-nine seconds of film was taken. No footage was shown to the Court.
101In Mr Lee’s written Outline of Submissions, it was asserted that the Court should have greater confidence in accepting Mr Lee’s account of activities, given the existence of surveillance which was not produced to the Court.
102While the Court is entitled to infer the surveillance was not helpful to the VWA’s case, the Court notes that the surveillance was undertaken over six years ago and was of relatively short duration.
103Its existence is of little relevance to the determination to be made at the time of this hearing in July 2024.
104Any inference that can be drawn from the failure of the VWA to produce the surveillance is of little weight. I decline to conclude that the Court should have greater confidence in Mr Lee’s evidence because the VWA did not show the surveillance.
Submissions on Credit/Reliability
105The cross-examination was relatively short, but it contained an attack on Mr Lee’s reliability.
106The VWA submitted Mr Lee’s Affidavits gave the impression he was actively involved in running prior to the work injury.
107The VWA submitted the Court should not accept his evidence regarding the level of his pre-accident running, as it was inconsistent with Mr Robin’s contemporaneous note.
108It was not suggested Mr Lee was deliberately attempting to mislead, but he had misremembered events of the past.
109The VWA submitted Mr Lee’s reliability was impugned overall and the Court should not accept his evidence regarding his impairment consequences.
110Mr Lee submitted that his overall credibility had not been impugned.
Findings on Credit/Reliability
111I had the opportunity to observe Mr Lee in the witness box. He presented as a courteous, polite, and respectful man. I formed the view Mr Lee was doing his best to tell the truth.
112However, my impression was that he was, for the purposes of this proceeding, overly focused on the work incident and tended to overstate his pain and suffering consequences relating to that incident.
113I have taken into account the effect of the passage of time on human memory and am reminded by what was said by Besanko J that, when doing so, the Court must also consider the process of memory being overlaid with perceptions or self-interest, as well as the capacity for the human mind to rationalise events after they occur.[38]
[38]Roberts-Smith v Fairfax Media Publications Pty Limited (No.41) [2023] FCA 555 at paragraph [163]
114I have formed the view that Mr Lee was unreliable, particularly in respect to two aspects of his evidence.
115First, the extent of his running. Mr Lee was cross examined about the frequency of his pre-accident running, but was not cross examined about the history recorded by Mr Robin in May 2017, or the lack of any recorded reports to Dr Kunze about running.
116Medical records should be approached with caution,[39] given their intended use, which is to assist in forming a diagnosis and, where appropriate, a treatment plan for a patient.
[39] Hettiarachchi v Transport Accident Commission [2023] VSCA 27 at paragraphs [57]-[58]
117However, it is significant in this case that it was not submitted on behalf of Mr Lee that the records were wrong or inaccurate.
118It is clear to the Court that the records confirm that the issue of Mr Lee’s level of physical activity was one of the matters taken into account by Mr Robin when he recommended conservative treatment rather than surgery in 2017.
119Even if I was prepared to accept Mr Lee’s evidence regarding the frequency of his running pre-accident and his assertion that he is no longer able to run, this impairment consequence has to be considered in the light of the claimed impairment consequences globally.
120The second aspect was his assertion he had worked all his life as a rigger/scaffolder. This was not supported by his actual work history.
121I have carefully considered all of the objective medical evidence to see if it supports Mr Lee’s position.
Findings on Pain and Suffering
122For the reasons that follow, after considering all the evidence, on balance, I am not satisfied Mr Lee has established his impairment consequences meet the statutory test.
123I am required to assess Mr Lee’s impairment consequences by comparison with other cases in the range of possible impairments or body functions and determine whether it can fairly be described as being “more than significant or marked” and “at least very considerable”.
124In addition, the following matters are relevant to my assessment of Mr Lee’s pain and suffering consequences:
(a) what Mr Lee says about the pain in Court and what he has said to doctors;
(b) what Mr Lee does about the pain;
(c) what the doctors say about the pain and its intensity;
(d) what the objective evidence establishes about the disabling effects of the pain.[40]
[40]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at 8, paragraph [11]
Pain
125I find Mr Lee’s description of pain is vague and imprecise. There is no sufficient description of the intensity of the pain. In his second Affidavit, he said he experienced pain on a daily basis in his lower left limb and that the pain “comes and goes.”[41] His account of what he does to manage pain is also vague.
[41]Plaintiff Exhibit P1, PACB 19 at paragraph [8]
126Mr Lee referred to “regular cramping” of his left leg. He said the cramping lasts for a minute or so.[42] He did not provide any evidence as to the frequency of the cramping.
[42]Plaintiff Exhibit P1, PACB 13 at paragraph [18]
127While I accept Mr Lee’s description of the pain and cramping, it is noted that both the pain and cramping are intermittent. Mr Lee does not resort to any painkilling medication. Mr Lee has not sought treatment, despite him continuing to attend the Trafalgar Medical Centre.
Sleep
128Mr Lee did not refer to any interference with his sleep.
Post-injury work
129Lead Counsel for Mr Lee submitted he had lost his career as a rigger/scaffolder. While pecuniary disadvantage may be, in the appropriate case, viewed as a measure of the severity of the injury, it is not by itself determinative of that issue.[43]
[43]Hunter v Transport Accident Commission & Anor [2005] VSCA 1 at paragraph [34]
130A plaintiff might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy, which could be considered as a pain and suffering consequence.[44]
[44]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
131There is little evidence Mr Lee has lost a career as a rigger/scaffolder. He worked as a rigger/scaffolder from 1978 to 1990. For the next twenty-two years, he worked as an organiser for the Federated Ironworkers Association until 2012.
132He returned to work as a rigger/scaffolder in 2012. It is not clear if he was employed in that capacity when he was injured in 2017, when working on the State Level Crossing Removal programme.
133No treating doctor has said Mr Lee cannot work as a scaffolder. Dr Sheard said, in April 2024, that he could return to pre-injury work, although a fair reading of Dr Sheard’s report is that Dr Sheard would not recommend the same. Dr Sheard also opined that Mr Lee was able to work as a construction rigger.
134Mr Lee has worked on numerous projects since the work incident. He has described those jobs as:
(a) crane operator;
(b) tension rigger on an off-shore dive-support vessel;
(c) machine operator on an off-shore pipeline;
(d) OH&S representative;
(e) storeman.
135There is not strong medical support for the proposition Mr Lee cannot work as a scaffolder. Even if the Court accepted he could not do such work, the evidence is clear he continued to work and remained in the construction industry after the injury.
136The fact Mr Lee has returned to full-time work in suitable employment does not preclude a finding he satisfies the pain and suffering test.[45]
[45]Haden Engineering Pty Ltd v McKinnon (supra)
137I was invited to take judicial notice of the type of work undertaken by a rigger/scaffolder. In the absence of any evidence regarding such duties, I informed the parties I would not do so.
138I reject the submission that the loss of scaffolding work in this case is a significant consequence.
Recreational Activities
139Mr Lee says his running has been curtailed. There is no medical explanation as to how the work injury currently impacts upon this activity.
140In relation to fishing, I note Mr Lee continues to fish, but says he is unable to engage in Marlin fishing as before.
Medication/Treatment
141Mr Lee has not attended any medical practitioner for treatment for the work injury since 2018.
142Mr Lee takes no medication for the work injury. Consistent with his second Affidavit, Mr Lee told Dr Kaplan in a medico-legal examination in May 2024, he was prescribed medications for unrelated conditions, including blood pressure, gout, reflux, and cholesterol.[46] He also said he had been prescribed an antidepressant in mid-2023.
[46]Plaintiff Exhibit P14, PACB 46-57
143Mr Lee told Dr Kaplan he would occasionally take Panadol for pain relief. In his first Affidavit, he said he took Panadol after the accident, but was not taking medication at the time he swore the Affidavit in July 2023.[47]
[47]Plaintiff Exhibit P1, PACB 13 at paragraph [17]
144Mr Lee said he did not take pain medication for the work injury, as he had a relative who had drug-dependency issues. I have taken this to be a reference to prescribed painkilling medication. This is a plausible explanation. However, no treating doctor has said he now requires either prescribed, or over-the-counter, pain medication to manage his work injury. There are no plans for specialist referrals or future treatment.
145The high point of Mr Lee’s evidence regarding treatment is found in the report of the medico-legal examiner, Dr Sheard, when he said that it was:
“…unlikely your client will need any further treatment apart from GP-reviewed painkillers and occasional physiotherapy.”[48]
[48]Plaintiff Exhibit P13, PACB 44
146The treating GP Dr Kunze, does not share this view. Dr Kunze is not prescribing or reviewing pain medication for the work injury. According to Dr Kunze, the last time Mr Lee had physiotherapy was some time in 2018.
147There is little objective medical evidence to support Mr Lee’s application. The medical evidence suggests Mr Lee’s condition is relatively mild.
148It is significant Mr Lee continues to attend Trafalgar Medical Centre for non-related issues and has made no complaints about his work injury for over six years.
Activities of Daily Living
149Mr Lee is independent with his personal activities of daily living. He is not restricted in his ability to perform personal care activities, such as dressing or showering.
Domestic Activities
150Mr Lee has not complained of any restrictions in domestic activities. Ms Lee identified a number of restrictions in household chores. She said Mr Lee cleans the gutters, but does not do this as frequently as he did prior to 2017. She said he assists with household tasks such as washing clothes, cleaning windows, vacuuming, and mopping, but needs to rest and take breaks. She does not say why he needs to do so.
151If there are impairments to Mr Lee’s domestic activities, they are relatively minor ones.
Intimate Relations
152None of the evidence relating to intimate relations was challenged, but it lacks detail. At best, I find there is some impairment to intimate relations, but the nature and extent of the impairment is unclear.
Conclusion
153An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable”.[49]
[49]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30], citing s134AB(38)(c) of the Accident Compensation Act 2016; Section 325(2)(c) of the Act
154Ms Lee has attested to her observations of Mr Lee’s health and level of activity before the work injury. I have not had regard to those parts of her Affidavit which go beyond the impairment consequences claimed by Mr Lee, as they appear to contradict Mr Lee’s evidence.
155I have borne in mind that Mr Lee was fifty-eight years old when he suffered injury, and it is likely he will continue to experience minor symptoms into the future.[50]
[50]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraphs [43]-[44]
156I have considered the claimed consequences collectively to determine whether the relevant test has been met.[51] In addition, I have considered not only what has been lost, but also what has been retained.
[51]TTB SMS Pty Ltd v Reading (supra) at paragraph [31]
157I accept Mr Lee suffers from a degree of variable, but not constant, pain. On the whole of the evidence, I am unable to determine the intensity or frequency of such pain. Mr Lee does not require medication or any treatment.
158I note that, apart from taking between approximately three to five weeks off immediately after the work injury, Mr Lee has been able to work full time for many years in suitable employment, including undertaking roles as a rigger. He has not needed to take any further time off work because of his work injury. He can undertake all aspects of his personal care. He can perform domestic duties. He is able to drive. There has been a mild impact on his recreational pursuits.
159The difficulty for Mr Lee is that I am unable to be satisfied as to the extent of the impairment consequences of his left leg. This is because I find he has overstated or exaggerated his impairment consequences and the objective evidence does not assist Mr Lee to discharge his evidentiary onus.
160I find the impairment consequences of Mr Lee’s work injury might be considered by him to be significant or marked, but in undertaking the value judgement required of the Court, and bearing in mind the whole of the evidence, including the unreliability of Mr Lee’s evidence, I am not persuaded the impairment consequences could be fairly described as being “more than significant or marked” and as being “at least very considerable” when considered in the range of possible impairments.
Disposition
161The application is dismissed.
162The parties are requested to provide a minute of orders including orders for costs.
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