Leicester v Victorian WorkCover Authority
[2023] VCC 118
•16 February 2023
| IN THE COUNTY COURT OF VICTORIA AT SALE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-02632
| JAYDEN LEICESTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | SALE | |
DATE OF HEARING: | 30 and 31 January 2023 | |
DATE OF JUDGMENT: | 16 February 2023 | |
CASE MAY BE CITED AS: | Leicester v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 118 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – spinal injury – credibility of the plaintiff – inconsistences between affidavit evidence and evidence in court – impairment consequences – whether impairment consequences ‘more than significant or marked’ – plaintiff’s ability to engage in football – plaintiff continuing to work as diesel mechanic
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Nikolic v Transport Accident Commission [2020] VSCA 148; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Dressing v Porter [2006] VSCA 215; De Agostino v Leatch & Anor [2011] VSCA 249; Humphries and Anor v Poljak [1992] 2 VR 129; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Ms J Frederico | Maurice Blackburn Lawyers |
| For the Defendant | Mr A Macnab SC with Ms C Kusiak | Minter Ellison |
HIS HONOUR:
1Mr Jayden Leicester was born in December 1993. He suffered injury during the course of his employment with RTL Mining and Earthworks Pty Ltd (“RTL”) on 27 February 2015. The injury accepted was to the lower back, being an aggravation of lumbar degeneration. The sole issue before the Court is whether or not the consequences of that injury make out the test required to constitute a serious injury as set out in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”). That is, can the impairment consequences be considered “more than significant or marked”. The defendant’s primary argument was that the plaintiff’s evidence was wholly unreliable and inconsistent because he had deliberately misled the Court. This was because he was alleged to have concealed his real footballing capability, his work capacity and his general level of physical activity. It was submitted that if that argument was correct, then the remaining evidence could not support a finding of a serious injury. I consider the plaintiff’s evidence so significantly misled as to his footballing ability that it undermined much of the other evidence he sought to rely on. Overall I accept the defendant’s submission and deny the plaintiff’s application.
History
2Mr Leicester left school during Year 12 and began an apprenticeship as a diesel mechanic. He worked with the Moe County Fire Association between 2011 and 2014. In mid-2014, he transferred to RTL as a diesel mechanic to complete his apprenticeship. He was required to service large mining equipment. He described this as requiring repetitive kneeling, bending and crouching in awkward positions.[1] During this time, he also played football in the Mid Gippsland Football League. On 27 February 2015, he was working at the Yallourn Power Station removing a transmission from a grader. He described being required to work in an awkward position for hours. When he went to stand, he experienced a painful back spasm. He was taken by ambulance to Latrobe Regional Hospital. CT scanning shortly thereafter revealed bulging at the L2-S1 level, with no neurological deficit.[2] He had a short period of time off work and then returned to work on light duties. He had physiotherapy for a period,[3] but his affidavit evidence is that he “struggled to manage”[4] at work. It is assumed that he then resumed full duties and did not have any substantial time off thereafter. During this time he took Panadol and was prescribed Lyrica.
[1]Plaintiff’s Amended Court Book (“PACB”) 26, at paragraph [9]
[2]PACB 27, at paragraph [22]; He had a CT scan after he consulted his GP in March 2015
[3]PACB 27, at paragraph [24]
[4] PACB 27, at paragraph [23]
3In mid-2015, after he had finished his apprenticeship with RTL, he became a diesel mechanic with Massaro Motors working on tractors. He held this position for six months. He was having physiotherapy with Mr Thomas and then Mr Gerard Farrell around this time. In his report, Dr Victor Tee noted that he had worsening symptoms but that physiotherapy was helping.[5] After 6 months in 2016, he began working for Dyer Engineering (“Dyer”), as a mechanic fixing trucks and trailers.[6]
[5]PACB 38
[6]PACB 28, at paragraph [25]
4In November 2017, he had a significant flare up of pain. He had an MRI scan which showed a large disc bulge at L5-S1 in the lower lumbar spine with slight impingement.[7] His specialist neurosurgeon, Associate Professor Jin Tee noted that he had a very large disc prolapse at the L5-S1 level, but no significant weakness in his legs.[8] He recommended an epidural. Mr Leicester had the injection conducted by Associate Professor Tee in December 2017. He reported no benefit from it. He continued on with physiotherapy, hydrotherapy and over-the-counter pain medication through 2018.[9] He commenced seeing a chiropractor, Mr James Washington, in January 2018 and ceased perhaps in October 2020.[10]
[7]PACB 41
[8]PACB 47
[9]PACB 38
[10]PACB 17, at paragraph [3]
5In early 2018, he left work with Dyer and commenced with William Adams CAT (“William Adams”) as a diesel mechanic working on earthmoving machinery. He described the work as similar to that at RTL, but that he could take rest breaks, stretch and change position, unlike at RTL, so that he could cope with the work.
6At some point in 2019, he returned to playing football. There was much contention about this, which I will return to, but the facts are that, ultimately, he played some seventeen games with Yinnar Senior Reserves.
7He was terminated by William Adams in April 2021. He then went to work with Fortescue Metals Group in the Pilbara as a fly-in-fly-out (“FIFO”) diesel mechanic. In this role, he worked two weeks on and had one week off. This was interrupted by the COVID pandemic and he ended up trapped in Western Australia for over three months. He worked during this time.
8When he saw Mr Michael Dooley, a medico-legal examiner for the defendant, in May 2021, he describes having to take Targin for the flight to cope with his back pain. He was also using a back brace at work and had a moderate restriction of his active range of motion.
9He returned to Victoria in July 2021 and obtained work with Siemens Energy (“Siemens”), then Ventia, working on the shutdowns in the Latrobe Valley. He gave evidence that he worked for Siemens in a trades assistant role.[11] In December 2021, he ceased this work and began with Goldsmith Civil (“Goldsmith”), servicing civil construction machinery.
[11] Transcript (“T”) 52, Line (“L”) 28
10He obtained work in Bass Strait on oil and gas rigs with his current employer Boom Logistics in April 2022. This company provides labour to Exxon Mobil oil rigs. In this role, he is employed as a diesel mechanic and works 14 days on and 14 days off. Each day is a 12 hour shift. He continues in this role.
11I have set out this chronology in some detail because it assumes importance in consideration of the consequences the injury is alleged to have had on Mr Leicester. However, it must be said that this chronology was not well set out in the affidavits. There were three such affidavits. A chronology was handed up by plaintiff’s counsel, but it was inconsistent in part, and provided details which were not in the affidavits. For example, the chronology notes that his employment was terminated with William Adams in both October 2020 and again in 15 April 2021. It included matters which were not in the affidavits, for example, the reference to working at P&D Rigging. As the chronology was not tendered, it does not form part of the evidence and I put it to one side. It is unclear if the defendant would have taken objection if it was proposed that the chronology was to be tendered. In closing address, plaintiff’s counsel took much detail from the chronology, but it was often not cross-referenced with any evidence in the case.
12It is clear that there are significant omissions from the affidavits of the plaintiff regarding his working history since the date of the incident in 2015. This becomes relevant, as a main thrust of the defendant’s argument was that the plaintiff had retained a significant capacity for work. I will return to this topic.
13Domestically, Mr Leicester partnered with his now wife in around 2013. They have three children aged currently five, two and five months. They married at the end of 2022.
The injury
14In terms of identifying the injury, Associate Professor Tee identifies the injury as a lumbar spondylosis at L5-S1 with a prolapsed intervertebral disc at L5-S1, causing significant cauda equina compression.[12] Dr Hazem Akil, a medico-legal neurosurgeon, identifies the injury as discogenic back pain as a result of severe degeneration of L5-S1, with resultant bilateral L5 radicular pain.[13] Mr Dooley, a medico-legal orthopaedic specialist, describes the injury as a soft-tissue injury to the lumbar spine that has involved some aggravation of the underlying degenerative change.[14] I accept the opinion of Associate Professor Tee in the diagnosis and identification of the plaintiff’s injury. I do so on the basis that, as a treating specialist, he has treated Mr Leicester independent of involvement as an expert medico-legal witness. He has been privy to the symptoms that Mr Leicester has complained of since an early time. In cross-examination, it became apparent that Associate Professor Tee had seen the plaintiff on one occasion in 2017 for examination, then performed the epidural injection in 2017 and, thereafter, had a telephone conversation with the plaintiff in about October 2022. This was the full extent of his involvement in the plaintiff’s treatment. While I accept this is not an extensive treatment history, there is a benefit to him being an independent treating specialist I consider. I also note his specialty is that of neurosurgery, which deals much more intimately with injuries of the spine and nerve injuries than that associated with orthopaedic injuries, which Mr Dooley is more commonly confronted with. It was argued by the defendant that Associate Professor Tee’s opinion was formed on the basis of an incorrect history given to him in October 2022. That history was of a worsening condition when, in evidence, the plaintiff accepted that his condition was stable.[15] I consider that, even if the history given in 2022 was incorrect, it does not affect Associate Professor Tee's opinion as to the diagnosis of the injury but, rather, goes to the issue of whether, and when, surgery may be performed. This is a matter which I will come to. At this stage, however, I record that I accept Associate Professor Tee’s opinion as to the diagnosis of the injury. I also accept Associate Professor Tee’s evidence, because it accords with that of Dr Akil. As a body of opinion, it is preferable to that of Mr Dooley. To the extent that any reliance was placed on the report of Mr Timothy Gale, an orthopaedic medico-legal specialist, in my opinion, this supports the conclusion I have accepted from Associate Professor Tee. This is because Mr Gale diagnoses the injury as one which is intervertebral disc damage in the lower lumbar spine area.[16] However, I consider Mr Gale’s opinion to be very dated, being some five years old, and arrived at after only one examination of Mr Leicester. I make it clear that I would accept Associate Professor Tee’s opinion over Mr Gale, as the treating specialist and a neurosurgical specialist, rather than an orthopaedic surgeon.
[12]PACB 47
[13]PACB 57
[14]Defendant’s Further Amended Court Book (“DACB”) 17
[15]T89, L31
[16]DACB 8
15The body function impaired is that of the spine. Having identified the injury, it falls to consider the claimed consequences.
16Applications for the determination of a serious injury under the WIRCA require, firstly, the identification of the extent of the injury and consequent impairment of the body function; secondly, consideration of the permanence of the impairment and thirdly, an assessment of whether the consequences for the plaintiff are said to be “more than significant or marked”, or at least “very considerable”.[17]
[17] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at [33]
17In making an assessment in accordance with the WIRCA, the Court is required to focus on the impairment consequences said to flow from the accepted injury. The usual example said to illuminate the principle is that of the concert pianist who loses the tip of their little finger, resulting in the complete loss of their ability to play concert piano. In that example, the injury might be thought to be small, yet the consequence is undoubtedly "more than significant or marked”. In this Court, long experience suggests that a young worker who relies on their manual labour for income, who has suffered a radiologically-apparent lumbar spine injury with radicular pain, would usually satisfy the test of having impairment consequences which are “more than significant or marked”. The Court of Appeal has made it clear, however, that the issues of the injury sustained must be kept separate from the assessment of the impairment consequences.[18]
[18] Ibid
Credibility
18In conducting an assessment of the evidence as to the claimed consequences, the evidence of the plaintiff assumes a particular importance.[19] This is because of the way serious injury applications are heard. They are conducted primarily on the papers and great reliance is placed on the evidence of the plaintiff to accurately depose to the impairment consequences sustained as a result of the accepted injury. Here, the defendant put in doubt the accuracy of the plaintiff’s recounting of the consequences he has sustained. In this case, the assessment of the impairment consequences is a difficult task. This is because of the less-than-comprehensive affidavit materials. It is also shown by inconsistencies within the affidavit materials, some of which are substantial, inconsistencies of the oral evidence of the plaintiff, and the unreliability of medical opinions which are based on false recordings of histories.
[19]Nikolic v Transport Accident Commission [2020] VSCA 148 at [64] and the cases referred to there
19For the reasons I will now come to overall, I consider the plaintiff’s evidence to be inconsistent and unreliable to such an extent that I cannot make a true assessment of his impairment consequences. This inability to make findings on the claimed impairment consequences leads to my ultimate finding that the plaintiff’s case cannot succeed.
Inconsistency as to football
20The plaintiff claimed that one of the major impairment consequences he suffered was an inability to play football as he had prior to 2015. The defendant’s primary attack was that the plaintiff had been untruthful, inconsistent and misleading in his evidence as to the injury’s claimed impact on his ability to play football, and as a corollary to his overall physical capability. Dealing with football.
21In his first affidavit of 3 February 2021, he deposed at paragraph [41]:
“Last year, I went to a few training sessions with Yannar … I would love to play again, and my physio encouraged me to stay active, but I am worried about aggravating my back playing footy and requiring more time off work.”[20]
[20]PACB 30, at paragraph [41]
22Two years later and 1 month prior to trial in his second affidavit sworn 10 January 2023, he deposed:
“I used to be pretty good at footy. I attempted to play in the 2019 season, however on my physiotherapist’s advice only played a few games. I tried again in the 2022 season, playing 2 or 3 games as a fill in. Although it would be tricky to play in my present job working 14 days straight, I believe that I would still be playing when my schedule allowed”.[21]
[21]PACB 21, at paragraph [26]
23Finally, at the commencement of trial on 30 January 2023, Senior Counsel for the plaintiff announced that, two days prior, he had received instructions from the plaintiff in conference, and that certain evidence needed to be called from the plaintiff that would correct some of the above statements. The matter was stood down and a further affidavit prepared and exchanged. It was not properly explained why a further affidavit was not prepared prior to the trial and exchanged. It should have been.
24The matter then proceeded. The third affidavit sworn 30 January 2023, deposed, in reference to paragraph [41] of the first affidavit:
“…In so far as this paragraph says I went to a few training sessions, that is incorrect. I played a number of games for the seconds in 2019.”[22]
[22]PACB 77-78, at paragraph [2]
25He went on, in this third affidavit, to record that he had played a number of games. His third affidavit set out the difficulties he had playing full games and that, at times, while his name was on the team sheet, he did not play. Tendered material from the Yinnar Football Club showed that in that season he played 17 games and had also been awarded the “Most Determined Player” award.
26I consider the picture painted by the affidavits leaves considerable doubt that Mr Leicester has accurately deposed to the consequence his injury has had on his football capability. When pressed about the first affidavit, Mr Leicester explained how he had made an error in the dating of when he had trained with the Yinnar Football Club. This was because the affidavit had been drawn in November 2020, but not sworn until 2021.[23] This was a rational explanation which I accept. However, this exposed the fact that 18 months after playing 17 games and winning an award, significant matters that he is likely to remember, he swore an affidavit that all he did at the Yinnar Football Club in 2019 was train. This was patently wrong in an obvious and substantial way. How he could forget or misremember such substantial facts cannot be easily explained or understood. I consider this to be a matter of real significance in accepting the plaintiff as a witness of truth. It weighs heavily against the acceptance of his evidence as to his ability to play football and also has a broader effect on the acceptance of his evidence overall.
[23]PACB 31, at paragraph [2]
27It was put to the plaintiff that the first affidavit was framed in this way to deliberately lead the Court to assume that his football career had been very significantly curtailed by the injury. In cross-examination, Mr Leicester denied this. The explanation he gave, however, was not entirely clear. During cross-examination, he gave, I consider, a rational explanation for why he was confused about the year in which he played, being 2019, as opposed to 2020.[24] However, he then immediately accepted that his affidavit deliberately gave a false impression. He was asked,
Q:“And you deliberately made a false statement in this affidavit to give a false impression about the extent of your limitations?---[25]
[24] T29
[25] T31, L4-6
And answered:
A: “I don't feel - yeah, I'm just gonna agree”.[26]
That is a telling admission against the truthfulness of his evidence.
[26]T31, L6-7
28He was then taken to his next affidavit sworn on 10 January 2023, in which he had deposed to being limited in the number of games of football he could play by his physiotherapist. The following exchange occurred:
Q:“And that's what's being conveyed to anyone who reads this affidavit, is that, the number of games you could play was limited on the advice of your physiotherapist?---
A: That's how it reads yes.
Q And that's not accurate, is it?”
A: No”.[27]
[27]T34, L1-5
29It can be seen that, after concessions made during cross-examination, the plaintiff had conceded to making deliberately false statements as to how much he had played, and further inaccurate evidence about the reasons for limiting any games that he did play. I consider these to be substantial matters that he had recanted on. This is because senior football, even at a reserve level, is a physical sport requiring running, jumping and physical strength. Many of these activities occur spontaneously where the body is to absorb shock and contact. The fact of Mr Leicester being able to play football at all is a significant matter above and beyond simply being able to train. That he was able to play several games is even more substantial. It suggests a capacity to see out the full rigours of a game which is a full-contact sport. This runs counter to his central argument in this case, which is that his ability to participate in football was significantly curtailed by reason of his back injury. The facts, once exposed in cross-examination, fatally undermine this argument.
30It is also substantial because, in his second affidavit, he suggested that limitations on his footballing occurred by reason of the opinion of his treating physiotherapist, Gerard Farrell. A report from him was tendered. His last attendance with the physiotherapist was in 2018.[28] That was before he commenced playing in the 2019 football season and certainly there was no suggestion that he had seen the physiotherapist during 2019, during which time the physiotherapist ordered him to cease playing on medical grounds. It therefore appears that he played throughout 2019 without ever consulting a medical practitioner or his physiotherapist for difficulties associated with playing football. I consider the second affidavit was a deliberate attempt to suggest that his football was limited because of the advice of his physiotherapist. That is the plain meaning of his affidavit, yet it was clear that this was not the case. I find this was an attempt to mislead the Court and it weighs strongly against the acceptance of the plaintiff’s evidence about why he did not play football. It also casts into doubt whether his evidence, more broadly, should be accepted.
[28] PACB 27, at paragraph [24]
31During cross examination on his third affidavit he sought to explain his footballing during 2019 as being 17 games out of a potential of 21.[29] He gave evidence as to being on the team sheet for four of those games, but not actually playing, and for the remainder, playing only a half at a time. Why none of this was in the first two affidavits was completely unexplained, when he had gone to the trouble, in the second affidavit, of stating that his physiotherapist had limited the number of games he played. He was, again, inconsistent during cross-examination, when he gave evidence that his physiotherapist wanted him to play a “few” games. When pressed as to what that meant, he said “a few games in my book is 10 games”.[30] He conceded immediately afterward, that playing 17 games or so was more than the ”few” his physiotherapist recommended. I consider this to be a significant inconsistency in his evidence. It adds to my finding that, overall, his evidence was unreliable and it tells against an acceptance of his evidence as to his impairment consequences overall.
[29] PACB 78, at paragraph [2]
[30] T34, L29
32It is also relevant to mention how this evidence was elicited. Through the cross-examination on this topic, the plaintiff sought to explain himself in a way which was not forthcoming and open. Answers had to be wrung out of him.[31] This manner of giving evidence, and the constant need to be pressed to arrive at a concession, did not give me confidence in the reliability of the evidence of the plaintiff.
[31]An example is to be found at T33, L1 - T35, L1 in dealing with this topic; a similar example is at T81 L6 in relation to his statement as to his ability to carry his child at T82, L4 and T82,L11-12, where he contradicted this statement
Inconsistency as to work capacity
33The second issue as to the veracity of the plaintiff’s evidence regarding his impairment consequences, relates to the inconsistency of his evidence as to work after the injury in 2015. I have touched on this briefly above. That is, firstly, that the affidavit material does not deal in detail with his actual job tasks from 2015 to the present date. These gaps were illuminated in re-examination by the presentation of the plaintiff’s chronology, and then in closing submissions. Those gaps suggest that the plaintiff’s employment was more varied than otherwise deposed to, that he was able to work with no restriction, and he had an ability to move jobs and work to suit his family situation.
34Starting with his first affidavit, it left the strong impression that he could not perform his duties at William Adams as a diesel mechanic without modifications: to allow the ability to stretch and move more regularly, the use of lifting equipment and the ability to have a co-worker assist.[32]
[32]PACB 28, at paragraph [31]
35He then went to work as a FIFO worker with FMG in Western Australia in April 2021. His second affidavit deposed that, after he returned from his FIFO work in June 2021, he had several different short-term positions before beginning with Boom Logistics in April 2022 to work on the oil rigs.[33] He deposed these roles were as a diesel mechanic, store person and trades assistant. Save for mentioning that his back struggled to cope with the flying involved in the FIFO work, he did not depose to needing any modifications to cope with his work duties after his work at William Adams ceased. He deposed to needing to be cautious at work with Boom Logistics, and when he had a flare up, he worked as a spotter rather than on the tools.[34] This evidence from his second affidavit then left it unclear as to whether he could work as a diesel mechanic normally, or required modifications, such as he had with William Adams, to allow him to work. In cross-examination, the picture changed somewhat, because he gave evidence that the work with Boom Logistics was “actually pretty light”.[35] He had not made that statement in his affidavit material.
[33]PACB 23 at paragraph [32]; PACB 80-81
[34]PACB 20, at paragraph [19]
[35]T54, L18
36Ultimately, in cross-examination, he conceded that, if his job at Boom Logistics ended, he could go back to work servicing the heavy machinery involved in his past work as a diesel mechanic.[36]
[36]T71, L16-20
37I consider there is a degree of inconsistency to his recounting of his work capacity, which is significant. The first affidavit leaves the impression of having a residual capacity to perform his diesel mechanic work with some work modifications. The second affidavit does not. The evidence in cross-examination revealed an intention to bring the two into alignment by the suggestion that Boom Logistics’ work was “pretty light”. Presumably, this evidence could be used to support a submission that his capacity to work “normally” as a diesel mechanic had been permanently diminished by the injury such that he could only do lighter or modified duties. This was not mentioned in the second affidavit, despite there being evidence given about the tasks at William Adams and that they were modified to allow him to cope. In contrast, no evidence was given about how the work at Boom Logistics was done, besides the fact that it was “pretty light”. I consider this late modification in the evidence revealed an unreliability in the plaintiff’s evidence as to the impairment consequences he has sustained, and the way it affects him at work.
38It also revealed, and I find, that the plaintiff has a capacity to work in his chosen field with minimal restrictions. This is because of the evidence he gave in cross-examination, that he could return to diesel mechanic work if his job at Boom Logistics ceased. He gave no evidence that such work would need to be modified. Faced with a lack of evidence about the necessity for modifications, I find that he could work in his trade as a diesel mechanic without restriction. This is supported by the fact that he worked in Western Australia as a FIFO worker deploying this capacity. The only evidence he gave about that being difficult was because flying aggravated his back. It was not the work itself.
39In cross-examination, he gave evidence that, after returning from Western Australia, he worked as a trades assistant before starting with Boom Logistics.[37] He said this was not heavy work.
[37]T52, L19-29
40I find that he has a capacity to work, as he deposed, on an oil rig for twelve-hour shifts for fourteen-day stretches. In addition, he gave evidence that he takes overtime when it is offered.[38] I consider this to be good evidence that his back does not limit him to any great extent in working. He will sometimes wear a soft back brace. At rare times he gets a flare up. Since April 2022, he had one such flare up in October 2022.[39] He did not see a doctor. This does not keep him from working, but may result in a few days where he works as a spotter. This stands in contrast to his first affidavit, in which he deposed that, at times when he has a flare up every two months, he needs a “day or so off work”[40] and his earlier evidence that, every year, he has a handful of days off when his back flares up.[41] This further inconsistency was revealed only when he was pressed in cross-examination, and leaves real doubt as to whether his injury requires any time off, or that he can work through it. Overall, it casts doubt on the veracity of his evidence.
[38]T60, L6
[39]T55, L22
[40]PACB 29, at paragraph [33]
[41]T54, L10-11
41Since 2019, he has seen a doctor only once for his back, this being in April 2021. He has not received a medical certificate certifying him to be off work in the last four years. He has had no chiropractic treatment, nor physiotherapy, for the last three years. This suggests, and I find, that he has had minimal treatment for his back condition to allow him to work normally. I find this is the permanent state of his back injury.
42Overall, and trying to synthesise the evidence, I find he has a full capacity to work as a diesel mechanic, which is transferable to positions which he has previously held in his chosen trade, or as a trades assistant.[42] This is a significant retained capacity, as he remains able to find work which is suitable to his lifestyle and to earn an income which meets the needs of he and his family. The tendered material shows the following earnings.
[42]T51, L14; see also the full duties clearance certificate at DACB 61
PLAINTIFF’S EARNINGS
YEAR
AMOUNT
2015
$88,389
2016
$56,067
2017
$77,926
2018
$76,957
(plus Centrelink of $1,390)
2019
$73,384
2020
$101,731
2021
$117,044
2022
$159,313
43In evidence, the plaintiff admitted to receiving about $8,500 net per fortnight since the time of his employment with Boom Logistics on the oil rigs. These earnings fortify my finding expressed above as to his fully retained capacity to work, because he has kept increasing his earnings reflecting his skill and experience.
Inconsistency as to sleep
44Third, turning to examine the alleged inconsistency of his evidence in respect of sleep. In his affidavit, he deposed to getting four to four-and-a-half hours of solid sleep and then tossing and turning.[43] During cross-examination, he deposed to getting sleep on the oil rig that was “good enough”.[44] I accept that there is a potential inconsistency there, but the plaintiff’s evidence, overall, must be assessed. At that point in the cross-examination, he was being pressed about a medico-legal examiner’s interpretation of what he had said. He was simply repeating his earlier evidence that his sleep was affected, but that he still managed to function. Whether or not a medical practitioner interpreted that as a severe impact on his sleep is a matter for them, not a reflection on the plaintiff’s accuracy. I found the plaintiff’s evidence on this, to the extent there was inconsistency, to be minor. However, I do find that he has the ability to get significant periods of uninterrupted sleep and is able to continue working 12 hour shifts over a 14 day swing, which demonstrates his capacity to cope with his situation. This is fortified by the history taken by Dr Eman Awad in September 2022 where he recorded, “I understand from him that his sleep was previously disturbed but now it has improved somewhat with occasional bad nights”.[45] I accept this is the true picture of his alleged sleep disturbance.
[43]PACB 30, at paragraph [44]
[44]T78, L22-23
[45]PACB 69
Inconsistency as to motorbikes
45Fourth, in respect of his alleged limitation in riding motorbikes, his evidence was submitted to be incomplete and not accurate. In his affidavit, he deposed “I am now limited to going with my son up the road where there is some bush”.[46] Given the very young age of his son, this clearly implies his son being on the front of the bike and them having a gentle ride. However, in cross-examination, he first repeated this formulation of his riding but, when pressed, conceded it was not correct.[47] He conceded that he could ride alone and did so in the paddocks at his property. I find this inconsistency to be significant. This is because the concession was made after three affidavits, and only when pressed in cross-examination. It was not volunteered. It makes it difficult to accept that the affidavit material was an accurate representation of his impairment consequences on this point. To the extent that the plaintiff maintains that he cannot resume his love of riding bush trails with friends, despite having the ability to ride alone in the paddocks, I am not able to make any findings about this, given the contradictions in the affidavit material to the evidence given in cross-examination as to his ability to ride motorbikes. This is also because the affidavit of his wife is different. She deposes to the fact that he “occasionally goes dirt bike riding”.[48] It is unclear in what circumstances this is, and this adds to the overall uncertainty of the evidence on this topic. I can make no finding that he is restricted in his motorbike riding as he has deposed given this uncertainty.
[46]PACB 21, at paragraph [23]
[47]T72, L1-10
[48]PACB 14
Inconsistency as to the history given to doctors
46Fifthly, the defendant submitted that there were inconsistencies in the histories given to the various doctors which undermined their opinions and also supported the argument that the plaintiff’s evidence was unreliable. It was also submitted that this had another effect, which was to reveal that the plaintiff had been painting an incorrect picture of his impairment consequences. This was said to be revealed in Dr Akil’s report of September 2022, under the heading “Impact on Life”, where he has recorded:
“… He used to enjoy playing football and playing with his young children but he is now unable to do so now.
He used to enjoy riding motor bikes and riding horses but he stopped doing this”.[49]
[49]PACB 57
47In cross-examination, the plaintiff conceded that this was an incorrect recording given that he had, in fact, deposed to being able to play with his children in a limited way,[50] can ride motorbikes,[51] and can ride horses[52] – in his second affidavit, sworn after the examination with Dr Akil. As to football, he had deposed in that second affidavit, as having returned to try and play football in 2022 for 2 to 3 games. He does not say, in that affidavit, that he stopped playing due to his back. Dr Awad recorded, in September 2022, that the plaintiff could play football and was sore afterward – not that he had given up football because of his back.[53] This is curious, given this was a contemporaneous recording at the time of the end of the football season. It was only in the third affidavit that it was categorically stated that he ceased football in 2022 because of his back injury. I do not accept the plaintiff’s evidence, given these inconsistencies and the overall unreliability of his evidence. Assessing the matter, overall, I find that he has a capacity to play football at a seniors’ reserves level for the majority of a season. This accords with Dr Awad’s note.
[50]PACB 20, paragraph [22]
[51]PACB 21, paragraph [23]
[52]PACB 21, paragraph [24]
[53] PACB 67 examination in September 2022 and report October 2022
48Overall then, I find that the history used by Dr Akil in his prognosis of the condition is incorrect and leaves doubt whether his opinion can be relied upon.
49Turning to Dr Awad, the occupational physician, it was put that he had a history from the plaintiff of not being able to carry his children.[54] In cross-examination, he conceded that he could in fact carry his children across the distance of the house[55] and put them into car seats as necessary. This is a reasonably minor matter, I consider, but it stands as a further example of the inconsistency and unreliability of the plaintiff’s evidence.
[54]PACB 69
[55] T81,L11-12; T81,L14; T81, L18
50Turning to Associate Professor Tee. He had a phone consultation with the plaintiff in late 2022. He recorded in his report, “[h]owever at this moment he is finding things hard again. We will be catching up and we will see how he goes”[56] (emphasis added). It was put to the plaintiff that, in fact, his condition had not been worsening, but had, in fact, improved since first seeing Associate Professor Tee in 2017, and had now stabilised. The plaintiff denied that he had told Associate Professor Tee his condition was worsening.[57] This much can be accepted, given that Associate Professor Tee does not use the word “worsening”. However, the implication of the words “hard again” was accepted by the plaintiff as meaning that things were not stable.[58] The plaintiff stated, in cross-examination, that the true position was: “well, things aren’t getting worse, I’m managing it and they’re staying relatively the same”.[59] The plaintiff confirmed that he had not taken up Associate Professor Tee’s request that he book in for an appointment to see him. I consider the recording of Associate Professor Tee to have most likely been correct, given the fact that he requested the plaintiff to make an appointment to see him. It is unlikely that, if the condition was stable and had been since their last consultation in 2017, the doctor would have thought an appointment was necessary. Working on that basis, it seems incongruous, however, that Mr Leicester, with a condition that was getting “hard again”, having been asked to see his treating specialist, did not even bother to make a follow-up appointment. The more likely inference I find is that his condition was stable and he did not think an appointment was necessary. This inconsistency adds to the unreliability of the evidence of Mr Leicester.
[56]PACB 48
[57]T93, L9-10
[58]T94, L5-6
[59]T94, L7-9
51I have found the plaintiff to be an unreliable and inconsistent witness, and accordingly must exercise caution where the reports are based upon the plaintiff’s instructions.[60] I find that, to the extent to which the plaintiff relies upon the medical reports tendered to demonstrate his impairment consequences which are based on his instructions, such is of little probative weight.
[60]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at [145]
52The defendant also submitted that the plaintiff had misstated his ability to participate in things such as golf and cricket. The plaintiff explained, adequately in my view, that his cricketing was limited to net cricket with mates a long time ago, so the loss of this was not substantial for him in any event. Further, he admitted in his affidavit material to being able to play golf. I do not consider these matters are of great moment in the assessment of the reliability of his evidence overall.
53Having conducted that review, I record my findings that I consider the plaintiff to be wholly unreliable as a witness, and his evidence as to his impairment consequences to be attended with such doubt, that I am not able to accept his evidence.
54However, this forms only one part of the assessment in the case. The Court must be mindful of all the evidence in the case, and consider it as a whole, to arrive at an assessment of the claimed impairment consequences.[61]
[61]Dressing v Porter [2006] VSCA 215 at paragraph [41] (per Ashley JA)
Other impairment consequences
55Turning to assess the plaintiff’s claim of pain. The plaintiff’s evidence between his first and second affidavits was different. It suggested an amelioration of the pain. For example, in the first affidavit, detail was given of pain most of the time with 3 days of dull ache and 4 days of sharp pain during the week.[62] In the second affidavit, the pain was said to have good and bad days,[63] with a constant ache and, at times, very sharp pain across the back.[64] In the first affidavit, the pain was said to require one day off work every two months. In the second affidavit, this was not repeated, but flare ups were said to occur three times per year.[65] All this suggests an amelioration of the pain from the levels in 2021 to the date of trial. I have set out above that the history of Dr Awad, which was that his back pain had improved since the original injury.[66] All this tends to suggest, and I find, that his pain is more likely to be that deposed to in his second affidavit.
[62]PACB 29
[63] PACB 19, at paragraph [14]
[64] PACB 18, at paragraph [8]
[65]PACB 19, at paragraph [17]
[66]PACB 69
56It is also necessary to examine what the plaintiff does about the pain. The plaintiff did take Lyrica and Mobic during the early phase of his treatment. However, his last prescription for Mobic was in April 2021,[67] and this appears to be an isolated script and not a regular repeat. He has not taken it since. He took Targin to help with flying into Western Australia. He gave evidence of otherwise using over-the-counter medication, Panadol and Nurofen, on an occasional basis when he has a flare up. In the last year, he has had one flare up requiring Panadol, taking four Panadols hourly over a four-day period. Consistently I find that is his requirement for pain medication for the foreseeable future. I further find based on his recent history he does not require regular medical, physiotherapy or chiropractic treatment to manage his back condition. He sometimes wears a back brace, presumably to help stop aggravations producing pain. He has seen a doctor once since 2019 for his back. He ceased chiropractic treatment and physiotherapy many years ago. He has not seen his specialist since 2017 and, despite being invited to return recently, has taken no steps towards this.
[67] DFACB 56
57In order to keep his pain at bay, and functionality, he deposes to doing self-managed stretching and exercise. This has helped him stay in a stable condition.
58There are three other matters which are submitted to impact on his evidence about his pain and limitation of function. The first is an affidavit from his wife, the second is the radiology, and the third is the medical opinion of his prognosis. His wife deposes broadly that she hears him complaining about pain regularly, particularly in his feet and lower back, and that such pain is aggravated by activity such as household tasks or activities with the children. As was said in De Agostino v Leatch & Anor, the value of this evidence is decreased by the findings made as to the plaintiff’s evidence.[68] To that extent, as was the case in Nikolic v Transport Accident Commission, I place little weight on the evidence of Mrs Leicester.[69] The second piece of evidence said to explain and support the plaintiff’s evidence as to pain was said to lie in the radiology which showed impingement. This much can be accepted. The third point the plaintiff relied on is the fact that he will inevitably come to surgery for his back. This starts with the plaintiff’s evidence that he was told by Associate Professor Tee that he would need surgery at some point, but that he should try and put it off for as long as possible. The ending point for the plaintiff’s argument is the evidence of Dr Akil, that is that surgery was “inevitable” in the long term.[70] I asked counsel what authority there was for the proposition that an ”inevitable in the long term” surgery could be brought to account in the assessment I have to make on the day of trial as to the impairment consequences. No such authority was given to me, though I was referred broadly to one of the decisions in Humphries and Anor v Poljak.[71] The starting point for this consideration must be the fact that the injury under consideration must be permanent. As the Court of Appeal has said, it is a relatively untroubling expression meaning that the injury will last, not mend or repair to any significant extent.[72] The plaintiff’s injury for the foreseeable future is stable. This is a finding I can make based on the fact of a stable injury over the past 4 years, and the fact that no practitioner is suggesting surgery in the next few years. It is also because the plaintiff has admitted, in cross-examination, that his condition is not getting worse, so there is no ground for assuming Associate Professor Tee’s advice would change. Lastly, the plaintiff himself has taken no steps toward that path, even though Associate Professor Tee suggested an appointment. All this suggests there is a solid basis for a finding that the injury is permanent. To this extent, how a matter such as surgery which is unplanned and uncertain can be brought to account, is unclear. The Plaintiff’s submission at its highest is that such surgery should be brought to bear. I reject that argument. This is because it is the consequences of the surgery which are to be assessed, not simply the fact of the surgery. This is to be done at the date of trial. Performing that assessment, there are no impairment consequences of the “inevitable surgery” to bring into account.
[68] [2011] VSCA 249 at 51
[69] [2020] VSCA 148 at 69
[70]PACB 58
[71][1992] 2 VR 129 (“Humphries and Anor v Poljak”)
[72] Barwon Spinners v Podolak (2005) 14 VR 622 at [19]
59Combining and synthesising all that evidence, I find that the plaintiff does experience constant pain in the lower back, and a burning sensation into the soles of his feet. I find that is low-grade pain that he is able to manage without medication. I find that, on occasion, that pain flares up perhaps 3 times per year. At these times, he may take Panadol for a few days to manage that pain.
60I find that his sleep is affected, but the exact extent of that is less than deposed to. I find that he sleeps for four-and-a-half hours continuously, and then is able to sleep again, such that he gets enough sleep through the night. No more can be said about this, given the inconsistency and unreliability of the plaintiff’s evidence, and the lack of independent corroborating evidence. As set out above, I find that the impact on the Plaintiff’s golf and cricket is minimal.
61As Barwon Spinners and, more recently, TTB SMS Pty Ltd v Reading[73] make it clear, in an assessment of the impairment consequences, attention must be placed, not just on what has been lost, but also on that which is retained. Here, I have found the plaintiff has retained a full capacity to work and to do overtime when required. He has, I find, an ability to do a range of jobs in his chosen trade and associated areas. He is able to move positions to take up opportunities as they suit him.
[73][2020] VSCA 203
62He has the ability to do many household tasks. He gave evidence that, since his injury, he has moved house from a typical suburban block to a 3-hectare property which has three paddocks, numerous sheds and 3 horses. He performs the lawn mowing using a hand mower and ride on as needed. He chops wood with a chainsaw, and also an axe. This represents an example of significant retained capacity, for these tasks are physically demanding, given the manual handling involved. It can be implied, from this evidence, that he remains able to carry, sort and stack wood, necessary to run the open fire in his home. It is not the only heating appliance in his home, and I can make no finding as to how often this task is carried out, or how large it is. I find that he can perform the maintenance tasks around the home. His evidence on this point was not clear in what, if any, way this was restricted, given he says, elliptically, “I try to do as much as I can around the house in terms of maintaining our property”.[74]
[74]PACB 20, at paragraph [21]
63I find he has retained the capacity to buy and sell motorbikes which he tinkers with to “do up”. This is a hobby which, he gave evidence, gives him pleasure. This capacity has not been taken from him.
64I find that he can swim, as and when he likes, and is not restricted by reason of his back injury.[75] To the extent that he suggested he had to have breaks,[76] I find this is not material and of no consequence.
[75]T91, L9
[76]T91, L21-23
65I find that he has some restrictions in his recreational activities, but the state of the evidence is so unreliable that I am unable to find exactly what these restrictions are.
66I find that he has retained the capacity to play with his children and participate in activities such as snow play with them. In cross-examination, he accepted he can pick them up and carry them, and put some of his older children into the trampoline. This ability to participate in family activities is shown clearly in the photographs from Facebook. I do not accept he is as restricted as he has deposed to in this regard,[77] given the unreliability in his evidence as set out above.
[77]PACB 20, at paragraph [22]
67I find he can go on drives of at least an hour.[78] I find that he has the capability to go on longer drives, as evidenced by the family trip to Merimbula/Pambula in late 2021/2022. While the plaintiff, in evidence, described how he required breaks during this trip and that he was reluctant to do such long drives, I do not accept this evidence, given the unreliability of his evidence for the reasons set out above.
[78]T84, L17-18
68I find he has retained the capacity to ride his motorbike by himself. I find that he can ride a horse and enjoy this pleasurable pastime with his wife.
69Overall, having regard to the claimed impairment consequences, where the plaintiff bears the onus, I am not satisfied that the impairment consequences I have been able to find rise to the level necessary to satisfy the test of being considered a serious injury. I deny the application.
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