MacKenzie v Victorian WorkCover Authority
[2020] VCC 1134
•7 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04374
| DANIEL SHAUN MACKENZIE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 6 May 2020 | |
DATE OF JUDGMENT: | 7 September 2020 | |
CASE MAY BE CITED AS: | MacKenzie v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1134 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – whether pain and suffering consequences are “serious” – whether the plaintiff has suffered a 40 per cent reduction of economic loss consequences – worker under twenty-six years of age at time of injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; New South Wales v Moss (2000) 54 NSWLR 536; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
Judgment: Leave granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising from an injury to his lower back during the course of his employment. The application to bring common law proceedings in respect of loss of earning capacity as a result of the injury to his lower back is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Ms B A Myers | IDP Lawyers |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 29 September 2016, whereby the plaintiff applied for leave pursuant to s134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him in the course of his employment with Eco Outdoor Australia Pty Ltd. The plaintiff alleges that he was injured in the course of that employment between January 2009 and 12 February 2010.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The plaintiff seeks leave pursuant to the definition of “serious injury” under the definition of serious long-term impairment or loss of body function to his lower back.
3 The plaintiff also sought leave for serious injury for long-term mental or severe long-term behavioural disturbance or disorder in respect of both pain and suffering damages and loss of earning capacity damages. At the close of the evidence in this case, counsel for the plaintiff, Ms Hartley QC, formally abandoned the plaintiff’s claim for serious injury certification under the heading “mental or severe long-term behaviour disturbance or disorder”.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following exhibits:
§The Plaintiff’s Court Book (“PCB”), pages 1 to 7; 26 to 95 and 112 to 142.
·The defendant tendered the following exhibits:
§Exhibit 1 – the plaintiff’s résumé and covering letter (three pages).
§The Defendant’s Court Book (“DCB”), pages 1 to 2; 8 to 46; 82 to 145; 148 to 152 and 156 to 217.
5 At the commencement of the proceeding, Ms Myers, on behalf of the defendant, identified the following issues as relevant in this application:
(a)the defendant did not concede certification for pain and suffering damages, but no formal submissions were made in that respect;
(b)the plaintiff is not motivated to work;
(c)the plaintiff has a capacity to work full time in a light-work-back-type employment; and
(d)the plaintiff will not prove that he has suffered a greater than 40 per cent loss of earning capacity as a result of the injury to his lower back.[1]
[1]Transcript (“T”) 18
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[2]
[2]Section134AB (1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
[3]Barwon Spinners (ibid) at paragraph [33]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e) subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(h) in conformity with Barwon Spinners,[4] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[4]ibid
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in Melbourne in 1987. At the time of the hearing, he was thirty-two, but at the time of judgment, he was thirty-three years of age. Relevantly, for these proceedings, the plaintiff was under twenty-six years of age at the time of injury.[5]
[5]PCB 8
10 The plaintiff is a married man. His wife works full time in the capacity of employment/recruitment. The married couple have two children: a daughter born in 2016 and a son born in December 2019.[6]
[6]T38
11 The plaintiff was educated to Year-10 level. Upon completion of school education, the plaintiff engaged in two years of an apprenticeship as an aerodynamic spray painter. The plaintiff ceased that apprenticeship after a dispute at his employment.
12 After his apprenticeship ceased, the plaintiff commenced at Flowerworld in a pick-and-pack role. In January 2007, the plaintiff started work with Eco Outdoor Australia Pty Ltd. The plaintiff worked in a full-time capacity until he ceased work on 12 February 2010.
13 After medical treatment, the plaintiff returned to work with Eco Outdoor Australia Pty Ltd in mid 2010. He continued his work there in a full-time capacity until the middle of 2013, when he went on an overseas trip.
14 Upon his return to Australia, the plaintiff commenced his own business. The business was a home maintenance and landscape gardening business. The plaintiff’s attempts at that business lasted for one day.[7] The plaintiff has not worked in paid employment since the failed attempt to commence his own business. The plaintiff’s evidence was that he had applied for numerous employment opportunities and his wife had prepared his résumé and covering letter, which became exhibit “1”, in or about 2014.
[7]PCB 118 at paragraph [120]
15 In his evidence, the plaintiff stated that he ceased looking for work in approximately August 2016. I note that date coincides with the birth of his first child.[8]
[8]T34 and T38
16 The plaintiff has not been in receipt of any Centrelink payments or other social security payments since he ceased employment in 2014.[9]
[9]T37
Injury with Eco Outdoor Australia Pty Ltd
17 The plaintiff worked as a warehouse assistant on a full-time basis with Eco Outdoor Australia Pty Ltd. He described his duties for Eco Outdoor Australia Pty Ltd in the following terms:
“… My duties involved picking and packing outdoor supplies including stones, tiles and outdoor furniture.”[10]
[10]PCB 8 at paragraph [4]
18 The plaintiff’s evidence was that his injury occurred in the course of his employment due to the nature of his employment. He stated as follows:
“Throughout the course of my employment I was required to unload, load, pick and pack stone, pebbles and furniture. My duties included lifting large tiles, lifting assorted tiles to make up modulars, lifting boxes of stacked stone tiles and lifting bags of pebbles. I also lifted furniture, including large teak and stone top tables, benches and chairs
As a result of the heavy nature of my duties, I started to feel pain in my leg not long after I commenced my employment with the defendant. This continued for approximately 12 months until I was diagnosed with a disc prolapse in my back at L4/5. I reported my injury on 12 February 2010.”[11]
[11]PCB 9 at paragraphs [8]-[9]
19 The plaintiff ceased work on 12 February 2010.
20 The defendant accepts the plaintiff’s claim for injury to his lower back.
Medical treatment
21 The plaintiff originally attended upon Dr Julia King, a registered osteopath, on 3 September 2009, complaining of central lower back pain. He stated, at that time, that he had a two-month history of the complaint, which had referred pain to his left posterior thigh and lateral calf. The plaintiff re-attended at Dr King’s surgery complaining of similar symptoms on 7 January 2010.[12]
[12]PCB 123
22 On 29 January 2010, the plaintiff attended Dr Nitin Mathur. The plaintiff was complaining of lower back pain for the last six months, with left sciatica-type pain after doing heavy lifting at work.[13] Dr Mathur referred the plaintiff for a CT scan of his lumbar spine.
[13]PCB 141-142
23 The CT-scan report was not a part of the tendered materials in this case. In a report of Mr Russell Miller, orthopaedic surgeon, dated 18 May 2017, Mr Miller describes the findings of the CT scan performed on 1 February 2010 as follows:
“Large left paracentral L4-5 disc prolapse and minor central prolapse at L5-S1.”[14]
[14]PCB 62
24 Dr Andrew Cheasley referred the plaintiff to Mr Paul D’Urso, neurosurgeon. The plaintiff attended upon Mr D’Urso on 5 March 2010. Mr D’Urso arranged for an MRI scan to be performed on 17 March 2010. The MRI scan revealed a focal L4-5 disc prolapse with a left-sided subarticular L5 nerve root compression. There was also minor degenerative change noted at the lower thoracic disc levels of T11-12.[15]
[15]PCB 28
25 Mr D’Urso performed surgery on the plaintiff at the Epworth Private Hospital on 13 May 2010. Mr D’Urso performed the operation of an L4-5 microdiscectomy and rhizolysis at that level. Mr D’Urso noted that the plaintiff did have a large central prolapse, causing severe nerve compression. The plaintiff was discharged after two days post-surgery recovery time.[16]
[16]PCB 28
26 Mr D’Urso reviewed the plaintiff on 8 June 2010. Mr D’Urso noted that the plaintiff was making a good recovery and that his leg pain had resolved. At that time, Mr D’Urso recommended the plaintiff return to light employment with some limitations on lifting weights, not to exceed 20 kilograms. The plaintiff then returned to work on alternate duties originally and then, subsequently, full time on full duties.
27 The plaintiff continued his employment with Eco Outdoor Australia Pty Ltd from approximately the middle of 2010 to the middle of 2013. In the middle of 2013, the plaintiff travelled overseas with his friends. His employment with Eco Outdoor Australia Pty Ltd had been ceased at that time. The plaintiff then attempted to commence his own business as a handyman landscape gardener in 2014.[17]
[17]DCB 21 and PCB 118
28 In September 2016, Dr Andrew Cheasley referred the plaintiff back to see Mr D’Urso, neurosurgeon.[18]
[18]PCB 31
29 The plaintiff had been referred by Dr Cheasley for MRI-scan examinations on 8 September 2016 and 13 September 2016. The findings expressed in the 13 September 2016 report were as follows:
“Findings consistent with residual/recurrent disc material extending into the left subarticular recess at L4-L5, with surrounding enhancing granulation/epidural fibrosis (with involvement of the traversing left L5 nerve root).”[19]
[19]PCB 92
30 At the time of his attendance upon Mr D’Urso, the plaintiff was taking Voltaren and Panadeine Forte to manage his pain.[20]
[20]PCB 31
31 A further MRI scan of the plaintiff’s lumbar spine was performed on 24 January 2018. Mr D’Urso noted that that scan demonstrated an essentially prolapsed L4-5 disc with desiccation and a small annular tear at L3-4.[21] Mr D’Urso recommended that the plaintiff have further surgery. There was considerable delay concerning the acceptance of liability for the payment of the further lumbar spine surgery by Mr D’Urso.
[21]PCB 38
32 On 6 March 2019, the plaintiff was admitted to the Epworth Private Hospital for surgery. Mr D’Urso performed an L4-5 minimally-invasive instrumented interbody fusion and posterolateral fusion procedure. Mr D’Urso noted that at the time of surgery, a disc prolapse was encountered, causing a degree of left-sided nerve-root compression. The plaintiff was in hospital for a period of two weeks as an inpatient and discharged. A post-operative CT scan performed on 7 March 2019 was satisfactory. The instrumentation was in good position and the alignment was anatomical.[22]
[22]PCB 43
33 A CT scan performed on 11 March 2020 (that is, one year after the surgery) revealed solid interbody fusion at L4-5 level without complication. Facet arthropathy was noted at L5-S1. Lesser facet arthropathy was noted at L3‑4.[23]
[23]PCB 43
34 The plaintiff’s evidence was that he no longer takes pain-relief medication. He stated that in the four months prior to the hearing, he had not taken any painkillers.[24] The plaintiff stated that when his back was sore, he would lie flat on the floor and that would release the pressure from his back.[25]
[24]T150
[25]T150
Medical opinions
The Plaintiff’s doctors
Dr Andrew Cheasley, general practitioner
35 Dr Cheasley prepared three reports, dated 9 April 2017, 21 September 2018 and 29 March 2020. In his final report dated 29 March 2020, Dr Cheasley set out his diagnosis as an L4-5 disc bulge with L5 nerve root impingement. He went on to conclude his diagnosis as an L4-5 minimally-invasive instrumented interbody fusion and rhizolysis performed by Mr D’Urso.[26] Dr Cheasley noted that there was no regular medication currently prescribed. Dr Cheasley’s recommendation for the plaintiff was for him to continue with physiotherapy, gym and hydrotherapy.
[26]PCB 55
36 On the plaintiff’s ability to return to work, Dr Cheasley said as follows:
“He is able to return now but in alternative employment which will not involve lifting >5kg, twisting, bending or place any stress or pressure on his back.
…
Prognosis is for Mr MacKenzie to be able to return to work but in alternative employment which will not involve lifting >5kg, twisting, bending or back stress or pressure at some point in the foreseeable future. ”[27]
[27]PCB 56-57
Dr Paul D’Urso, neurosurgeon
37 Mr D’Urso prepared a report dated 8 April 2019, which was forwarded to the worker’s compensation insurers. This report is just one month after the second surgery to the plaintiff’s back. He stated as follows:
“I have asked Daniel to commence outpatient physical therapy and hydrotherapy under the supervision of a physiotherapist for at least two days a week for the next few months. I will review Daniel in a further two to three months’ time and assess his capacity and arrange an x-ray. I would be hopeful Daniel will be able to return to employment activity in two to three months on light duties nature and have a graded increase in hours in intensity of employment with time.”[28]
[28]DCB 201
38 Mr D’Urso’s final report is dated 23 March 2020. In that report, Mr D’Urso sets out his full treatment of the plaintiff to the current time. Mr D’Urso’s diagnosis was as follows:
“Daniel MacKenzie was initially symptomatic from an L4-5 disc prolapse. He underwent discectomy surgery and developed post-discectomy syndrome with back and sciatic symptoms. Daniel subsequently underwent a minimally invasive fusion procedure and has made a satisfactory recovery from the surgery.”[29]
[29]PCB 43
39 Mr D’Urso went on to state:
“… Daniel will have a permanent incapacity of a partial nature which will prevent him from performing pre-injury employment or unrestricted physical or manual employment duties. Daniel’s condition has stabilised at this time.”[30]
[30]PCB 44
40 On a question of the plaintiff’s ability to work, Mr D’Urso stated as follows:
“Daniel MacKenzie would have capacity for full-time light employment at this time. I would place restrictions on his employment capacity. He should not be required to perform repetitive bending, twisting or lifting activity. He should not be required to lift weight from below the knee or above the shoulder. He should have the ability to ambulate freely in the workplace. He should not be required to lift weight greater than 10-15kgs. He should have ergonomic facilities to maintain a neutral posture of the spine, if at all possible. Such restrictions would be of a permanent nature into the foreseeable future.”[31]
[31]PCB 44
41 The treating general practitioner and treating neurosurgeon both assessed the plaintiff to have a capacity to engage in full-time light-work duties. The restrictions are set out in their reports and referred to in this judgment.
Mr Russell Miller, orthopaedic surgeon
42 Mr Miller assessed the plaintiff for the purposes of litigation. He prepared a report dated 18 May 2017, which predates the second surgery to the plaintiff, which occurred on 6 March 2019.
43 In his report, Mr Miller noted that the plaintiff’s condition had appeared to be deteriorating at that time. He noted that the plaintiff was to return to Dr D’Urso for review with the possibility of further surgery. That surgery has in fact now occurred. The opinion of Mr Miller of May 2017, was that the plaintiff’s condition had not stabilised.[32]
[32]PCB 63
44 A report from Mr Miller was not tendered after an examination of the plaintiff, which has occurred subsequent to the second surgery. His report and opinion has limited capacity in the determination of serious injury in this case.
Dr Joseph Slesenger, specialist occupational physician
45 Dr Slesenger prepared two reports, dated 15 May 2017 and 20 April 2020, for the purposes of this litigation.
46 Dr Slesenger gave a very comprehensive summary of the medical opinions in respect of the plaintiff’s treatment and ongoing condition in his report dated 20 April 2020. He refers to a report of Dr D’Urso dated 23 March 2020, but does not refer to Dr D’Urso’s opinion in respect of the plaintiff’s ability to return to work. I find this omission rather surprising, given the detail with which other reports have been summarised.
47 Dr Slesenger noted the following problems for the plaintiff:
“1. Diagnosis of our client’s Back only and the sequela
● Lumbar spine:
Mechanical injury to the lumbar spine.
Aggravation of degenerative disease of the lumbar spine, with the two operations referred to.
Chronic lower back pain with left leg radiating features and limited evidence of radiculopathy.”[33]
[33] PCB 84
48 Dr Slesenger also noted the plaintiff had suffered from weight gain, with associated sleep-disordered breathing and psychological impairment. I note, at this stage, that the psychological impairment claim by the plaintiff has been abandoned.
49 Dr Slesenger’s finding of chronic lower back pain with left leg radiating features and limited evidence of radiculopathy, is a finding that neither the treating general practitioner nor the treating neurosurgeon find as a current symptom. Each of his treaters accept that the plaintiff does suffer from chronic lower back pain, but there is no radiation of pain or radiculopathy.
50 On the question of the plaintiff’s ability to return to employment, Dr Slesenger stated as follows:
“With regard to alternative duties, taking into consideration Mr Mackenzie’s symptoms and in particular, the variable and unpredictable nature of his symptoms, his past occupational history (as an Aeronautical Paint Sprayer, as a Warehouse Operator, as a Forklift Driver and as a Truck Driver), his qualifications (he has a forklift licence, an Aeronautical Paint Spraying Apprenticeship, truck licence and a certificate in traffic control), his literacy limitations (he can read and write in English, but his grammar and spelling are limited), his lack of computer skills (he can e-mail, but cannot use an excel spreadsheet), his age (32), his residential location (Keilor) and the variable and unpredictable nature of the symptoms. I am of the opinion that he is unlikely to be able to return to work, performing suitable alternative duties on a consistent and reliable basis.”[34]
[34]PCB 85
51 I find that Dr Slesenger’s opinion as to the plaintiff’s ability to return to paid employment is the only medical opinion in this case that states the plaintiff cannot return to paid employment.
The Defendant’s doctors
Mr Michael Dooley, orthopaedic surgeon
52 Mr Michael Dooley, orthopaedic surgeon, prepared three reports, dated 1 May 2017, 3 March 2020 and 6 April 2020, for the purposes of this litigation.
53 In his report of 3 March 2020, Mr Dooley noted that on clinical examination, he could find no evidence of objective neurological deficit affecting the plaintiff’s lower limbs. He noted that the plaintiff was undertaking gymnasium and pool exercises. Mr Dooley assessed the plaintiff would continue to note ongoing intermittent lower back pain. Mr Dooley gave his opinion about the plaintiff’s ability to return to work as follows:
“Mr Mackenzie does not have a physical capacity to carry out any physical work and work that involves a lot of bending, lifting and twisting (i.e. his preinjury employment). He has a physical capacity to carry out light physical work and clerical duties. I believe that he has a physical capacity to work as a clerk in despatch, stock and logistics. He has a physical capacity to work as a rental salesperson. Return to suitable work will need to be on a graduated basis.”[35]
[35]DCB 14
54 In a supplementary report, Mr Dooley gave his opinion in respect of returning to work after clarification of job opportunities in the following terms:
“From an orthopaedic point of view, I believe that Mr Mackenzie has a physical capacity to work as a warehouse, production, despatch and stock clerk. I believe that he could work as a rental salesperson and as a customer service officer. I do not believe that Mr Mackenzie would be able to carry out all of the duties of a road traffic controller. This work can involve the lifting and manoeuvring of heavy signs, bollards etc.”[36]
[36]DCB 16
55 Mr Dooley stated that the return-to-work program would have to be on a graduated basis, given the plaintiff had not worked for a long period of time.
Dr David Barton, consultant occupational physician
56 Dr Barton prepared a total of five reports for the purposes of this litigation, dated 20 March 2017, 20 April 2017, 7 February 2020, 2 April 2020 and 28 April 2020.
57 Dr Barton was of the opinion that the plaintiff displayed a degree of illness behaviour. Dr Barton could find no paraspinal muscle spasm.[37] He noted that the plaintiff appeared reasonably calm and relaxed during the consultation, but he was strongly symptom and disability focused, with a strong sense of injury and disability. In Dr Barton’s opinion, the continuing physiotherapy treatment was unnecessary.
[37]DCB 42
58 On the issue of the plaintiff’s capacity to return to work, Dr Barton stated:
“I believe he has a capacity for suitable employment. Good occupational health practice and a brief graduation in hours to address his lack of physical work fitness would be appropriate.”[38]
[38]DCB 44
59 In a later report dated 2 April 2020, Dr Barton stated as follows:
“From a physical point of view, I see no medical reason why the worker would not be able to undertake all the tasks detailed including warehouse clerk, production clerk, dispatch clerk, stock clerk, rental salesperson, customer service officer and road traffic controller. I base this on my understanding of these work duties which I have reviewed on a number of occasions in the last 35 years where I’ve undertaken many worksite visits looking at job requirements for injured workers. I see no reason why he cannot do these jobs on a full-time and sustained basis.”[39]
[39]DCB 45
60 After being shown the CT scan taken of the plaintiff’s spine on 11 March 2020, Dr Barton noted that the fusion of the spine is in keeping with effective surgery. He notes as follows:
“I note that the CT scan shows fusion of the spine in keeping with effective surgery. There did not appear to be any neurocompression features which would suggest that the partial resolution of the worker’s leg symptoms is reflected in this improvement from previous investigations.
Having said that there is nothing in the scan results that would confirm why the worker reports such a high level of symptoms and overlay. The scan if anything should be reassuring and encouraging.”[40]
[40]DCB 46
61 In summary, Dr Barton is of the opinion the plaintiff can return to suitable employment, as outlined in his reports.
Credit of the Plaintiff
62 In this case, the defendant admitted that it had conducted surveillance of the plaintiff on five separate occasions, including 24 November 2016, 30 November 2016, 6 March 2017, 10 March 2017 and 22 June 2017. As a general pattern, surveillance was conducted between 6.30am and 2.00pm on those days. There was no surveillance film shown to the plaintiff during the course of cross-examination.
63 The plaintiff gave a history to doctors that the initial back injury severely affected his ability to play cricket. In particular, he stated to Mr Dooley, orthopaedic surgeon:
“… He has always been a keen cricketer and he said that he played two to three games after his surgery but found that his back was sore and stiff. He has not played cricket since.”[41]
[41]DCB 9
64 The plaintiff also gave a history to Dr Barton, occupational therapist, in his report dated 20 March 2017, as follows:
“When asked about his other activities the worker said that he played only a couple of games of cricket after the operation. He said that he was just a slow bowler, rolled his arm over after about four steps, he was ‘no good’ and only played low grade cricket. (It was clear that he was attempting to downplay the cricket he played based on information provided in your letter).”[42]
[42]DCB 33
65 In his history to Associate Professor Peter Doherty, who assessed the plaintiff for the purposes of psychiatric injury, in a report dated 11 February 2020, he stated as follows:
“… He said he ceased playing sport after the first surgical procedure. He said he tried to get back to it but could not. He told me there was also a reduction in his social life. He told me his social life was centred around sport and being at the sports club and as there was less interaction, and thus his social activities fell away. He is no longer playing with the team.”[43]
[43]DCB 20
66 The plaintiff was extensively cross-examined about his cricketing exploits after the initial surgery, which occurred on 13 May 2010. The evidence in this case was the plaintiff commenced playing cricket in the second round of the 2010-2011 season. He commenced playing on 16 October 2010.[44] In total, the plaintiff played ten matches of cricket in that season and bowled 141 overs. In the following season, the plaintiff played eleven matches. He bowled a total of 167.4 overs in that season. He had 44 maiden overs. In his own words, in evidence, he stated “I think that was my best year ever”.[45]
[44]T71
[45]T71
67 The following year, the plaintiff played only two matches. This was the 2012-2013 season. His final game was on 3 November 2012. The plaintiff attended upon his general practitioner, Dr Len Uta, on 12 November 2012. He had a fractured distal phalanx on the right great toe. He gave a history that he had been hit by a cricket ball over the right great toe two days before. There was swelling and tenderness over the right great toe. In his evidence, the plaintiff stated that he continued to play out that game of cricket after he had been injured but did not return to playing cricket thereafter.
68 It is clear that the plaintiff, when giving his history to the doctors about the impact of the back injury on his cricket career, was trying to give the impression that the injury prevented him from playing cricket. The facts are, and he admitted them in his evidence, that the plaintiff continued to play cricket after the initial surgery in May 2010 and in fact had his best seasons after the first surgery.
69 The plaintiff, unfortunately, has had three of his friends pass away. The first of the deaths was a person he played cricket with, and in fact had obtained a job for at Eco Outdoor Australia Pty Ltd. This person died in August 2012. The plaintiff, in his evidence on this matter, stated that he struggled to go to work because “everything reminded me of him”.[46] The plaintiff had two further friends who passed away in 2015 and 2017 or 2018.[47] The plaintiff, in his affidavits, does not mention the suicide of his friend in 2012 until his affidavit of 1 May 2020. This statement is made in response to the affidavit of Ross Eckersley dated 27 April 2020, which was filed on behalf of the defendant. I find that the plaintiff has shown a lack of candour in the description of the impact of the suicide of his friend and deaths of his other friends on his mental state and consequent ability to attempt re-employment.
[46]T89
[47]T98
70 In 2012, the plaintiff suffered from glandular fever in May.[48] In August 2012, the plaintiff’s friend committed suicide.[49] In November 2012, the plaintiff ceased playing cricket due, in part, to an injury to his toe.[50]
[48]T86
[49]T89
[50]T90
71 The plaintiff, in his own words, struggled to go to work after his friend had committed suicide. He then decided to go with other friends on an overseas trip. The plaintiff applied for leave from Eco Outdoors Australia Pty Ltd in order to go on his overseas trips. He booked the tickets to travel overseas to America and later, to Europe. When he was told that he was unable to have the particular leave he required from the initial eight weeks to three months, the plaintiff stated to his employer “well, I’ve booked it already, too bad”.[51] The reason that the plaintiff left his work at Eco Outdoors Australia Pty Ltd was he effectively abandoned his employment.
[51]T95
72 The defendant also challenged the plaintiff’s credibility on the basis that he failed to set out in his first affidavit, dated 25 May 2016, the fact that he had attempted unsuccessfully to find employment, and set up his own home maintenance and gardening business in 2014. The defendant submitted that this clearly indicated the plaintiff was attempting to show that he had no ability to work and was unable to work. When challenged about this in evidence-in-chief, the plaintiff just stated he had just forgotten about it when he was preparing his affidavit in May 2016.[52] I do not accept that the plaintiff forgot about setting up his maintenance business in 2014 while he was making his first affidavit in 2016. In his evidence, he set out all of the planning that went into setting up the business and the expense of obtaining particular equipment so that he could do that particular gardening business. The expenditure and the effort to obtain the equipment and set up the business, would not be forgotten by the plaintiff when he was making his affidavit in 2016 to support his application for serious injury certification.
[52]T113
73 The defendant also challenged the plaintiff’s credibility in relation to his history for his leg injuries. The plaintiff was referred to an entry in the clinical notes of Dr Rafia Akhter dated 12 March 2013, where he attended that general practitioner for leg oedema. The history given was that he had developed leg oedema the night before, after coming back from a nightclub. He had stated that he was dancing for a long time and was drunk. He could not remember any particular injury. He was seeking a medical certificate and carer’s certificate for that day. In his evidence, the plaintiff stated that he did not dance, he never danced and would not have told the doctor that he did dance. He could not even remember going to the doctor in March 2013.[53]
[53]T101
74 The plaintiff was then referred to an entry in the general practitioner’s notes prepared by Dr Lucy Ryan on 11 March 2014. The history given was that the plaintiff had been in a fight in a nightclub, drunk, two nights before and a cut to his left leg at 6.00am yesterday morning. In his evidence, the plaintiff stated that it was not correct that he was in a fight at a nightclub. He stated as follows:
“… No, what happened was I was at the bar getting drinks for my wife, and a friend (indistinct), and it was one of my best mate’s birthdays, and they went to a concert before that. So, I couldn’t go to the concert because I wouldn’t have been able to stand for that long. So, I went and met them at the nightclub afterwards, when they finished the concert.
And when I got there, I was (indistinct) drink, I went to the bar, and I was carrying four drinks back – or three drinks, and there was a fight broke out next to me, and I got pushed over, and I dropped the glass and landed on my glass. I wasn’t in – in an actual fight. I had nothing to do with it, yeah. I – I – the owners of the nightclub actually attended to me, and like said, ‘Mate’ – like they actually helped me, they bandaged up my leg and everything. If I – if I was in the actual fight, they would’ve kicked me out for sure.”[54]
[54]T102, L14-30
75 The plaintiff stated that he had been referred by Dr Cheasley to the plastic and reconstructive surgeon, Mr Adelwa Morsi, in around June 2014.[55] In Mr Morsi’s report dated 3 June 2014, he stated as follows:
“As you are well aware, he presents with a chronic infected wound of his left lateral lower leg. He sustained this injury during Easter in fight. He has been on antibiotics and regular dressing change for a lengthy period.”[56]
[55]T99
[56]DCB 151
76 The plaintiff went on to give the following history according to Mr Morsi:
“Daniel is reluctant to have any surgery as he is currently working and does not want to have any time off work … .”[57]
[57]DCB 151
77 The plaintiff agreed that he had been treated by Mr Morsi at the Cleopatra plastic surgery clinic. He agreed that he had a skin graft to repair his left leg.[58] The plaintiff denied that he gave any history to Mr Morsi that he was currently working and did not want to have time off work.[59]
[58]T103
[59]T104
78 The plaintiff gave evidence that he obtained a ticket as a traffic control operator. It was a two-ticket system. He stated that his friend, Aaron Ramsay, said to him that it was too heavy for him to lift and move bollards and consequently, he did not attempt the second certificate.[60] In that same answer to the question of moving bollards, the plaintiff stated that he would be a liability to the employer because of him not turning up to work, because he would have to ring in sick and would be unable to do that job. When it was put to him by Ms Myers that the bollards weighed 12 kilograms, he stated they were “massive”.[61] I assess these answers concerning the plaintiff’s inability to continue with traffic-control-type employment and qualifications for it as an example that the plaintiff will find any excuse not to go to work or attempt to retrain in order to be able to be employed in a full-time capacity. Indeed, the plaintiff’s evidence is that he has not sought employment of any kind since 2016.[62]
[60]T108
[61]T108
[62]T34-38
79 Finally, on the question of the plaintiff’s credibility, Ms Myers stated that she relied upon the principle in O’Donnell v Reichard,[63] where the plaintiff has failed to file any affidavit or supporting material from his wife or his mother. Ms Myers submitted that these two people were in the best position to give direct evidence of the plaintiff’s inabilities and capabilities on a day-to-day basis, and that has not been done. The limitations of O’Donnell v Reichard and Jones v Dunkel-type argument is that the high point of such evidence, or lack of it, is that the evidence would not assist the plaintiff.
[63][1975] VR 916
80 In conclusion, I find that the plaintiff is a person who is putting a most negative impression on his capabilities and prognosis for the future. I find that the plaintiff is fully capable of engaging in full-time employment for light duties, but he has offered every obstacle to even give it a try.
Pain and suffering consequences
81 The plaintiff has filed two affidavits in support of his application for serious injury. The first affidavit is dated 25 May 2016 and the second affidavit is sworn on 21 May 2020.
Pain and lack of mobility
82 I accept that the plaintiff suffers from an ache to his lower back. I also accept that he suffers from stiffness and on occasion these two aspects of disability result in pain to his lower back. The plaintiff has medical support for the proposition that he will continue, for the rest of his life, to suffer from pain, stiffness and soreness in his lower back on an intermittent basis. Further, the plaintiff has had two separate operations in May 2010 and March 2019. These operations were to alleviate the symptoms that he suffered at that time. The operations have been successful, but the residual situation is that the plaintiff has a stiff and aching back.
83 I find that the plaintiff suffers from this consequence as a result of the injury to his back at work and that the consequence, itself, is “more than significant and marked” and is “at least very considerable”, given his age and the length of time that he is going to suffer this consequence.
Medication
84 The plaintiff has, over the course of time from 2010 to 2020, taken medication to alleviate the pain symptoms in his back. His evidence is that he no longer takes any medication subsequent to, effectively, the last four months prior to the hearing. The plaintiff’s evidence is that he, instead, prefers to lie on the floor to alleviate the pain or stiffness that he is suffering at that time. The medical opinion is that from time to time, the plaintiff will require analgesia to alleviate his pain symptoms in his lower back, and I accept that given he is such a young man, that over the period of his life, this will be a “very considerable” consequence for him.
Sleep
85 The plaintiff complains that his sleep was interrupted as a result of the pain he suffers from his lower back. I accept the plaintiff’s sleep is on occasion interrupted, but do not accept that it is to the extent where it is a “very considerable” consequence for him.
Activities of daily living
86 The plaintiff has given evidence that he has difficulty getting down to the floor to pick up his young son or tie his shoelaces, for example. He has difficulty cutting his own toenails. I do not accept that these limitations, on their own, amount to “very considerable” consequences for the plaintiff.
Conclusion
87 The fact that the plaintiff has been injured at such a young age, and as a consequence has had two back operations and ongoing stiffness, soreness and, on occasion, pain in his lower back for the foreseeable future, is a “very considerable” consequence.
88 I grant leave to the plaintiff to commence proceedings to recover damages for pain and suffering as a result of the injury to his lower back in the course of his employment with Eco Outdoor Australia Pty Ltd.
Loss of earning capacity
89 In order to establish that the plaintiff be given leave in respect of loss of earning capacity, he must establish that:
(a)at the date of the hearing, the plaintiff has a loss of earning capacity of 40 per cent or more pursuant to s134AB (38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently, pursuant to s134AB (38)(e)(ii).
90 The plaintiff was under the age of twenty-six years as at the date of his injury. The statutory prescriptions of measuring the loss of earning capacity set out in s134AB (38)(f) is not relevant in this proceeding. The calculation of loss of earning capacity in this case is to be done in accordance with the common law principles enunciated by Heydon JA (as he then was) in the case of New South Wales v Moss.[64]A summary of these principles is as follows:
[64][1975] VR 916 at paragraphs [66]-[87]
(i)evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;
(ii)it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what he is likely to earn after it;
(iii)in a case where the plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can perform, a court can, without specific evidence of what other persons with this kind of disability can earn, make a judgement and assessment on a percentage basis, or otherwise, of the value of loss capacity;
(iv)the compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of a financial loss. It is an issue of calculating the damage to a capacity to carry out various careers. It is an exercise of possibilities, not proof of probabilities;
(v)the mere fact that the quantum of damages is difficult to assess does not mean the plaintiff is only entitled to a nominal sum; and
(vi)the task of the trier of fact is to perform a discretionary judgement by reference to not wholly determinative criteria within fairly wide parameters.
91 The plaintiff’s case in respect of loss of income earning capacity is that he is unable to engage in any remunerative activity as a result of the injury to his lower back. In the financial years following the plaintiff’s initial surgery, he earned a gross sum of $45,500 approximately per annum.[65] In the tax year ending 2013, he earned a total of $17,884 gross.[66] The plaintiff’s evidence was, and is supported by his father, Ian MacKenzie, that the plaintiff was to take over the father’s subcontracting trucking business with Toll IPEC. In the affidavit sworn by Ian MacKenzie, the operating profit of the business after paying all expenses was approximately $50,500 per annum. In his affidavit, Mr MacKenzie Senior stated he had bought a new truck for $70,000, as he was moving towards retirement, with the intention of having his son, Daniel, take over the subcontracting work when he retired.[67] Unfortunately, Mr Ian MacKenzie had a heart attack and retired. He sold his truck in 2012. This was in the year before the plaintiff in this case went overseas on his holiday while still being employed by Eco Outdoor Australia Pty Ltd.[68]
[65]PCB 8
[66]PCB 9
[67]PCB 121
[68]T145
92 If the Court was to accept that this method of income of a subcontractor for Toll IPEC was the appropriate way to assess the plaintiff’s earning capacity prior to injury, a gross income of $50,500 would be the appropriate figure. A 60 per cent calculation of that figure is $30,300 gross per annum.
93 Each of the medical examiners – Dr Barton, Mr Dooley, Mr D’Urso and Dr Cheasley – all state that the plaintiff has capacity to work full time in light work. The only medical examiner in this case that does not think the plaintiff has a capacity to work is Dr Slesenger. I accept the agreed positions of the four medical practitioners, two of whom are treating practitioners, that the plaintiff has a capacity to work full time in light duties after a preliminary introduction to work and working up to full time.
94 The plaintiff has shown little or no motivation to obtain work after his overseas trip in 2013. In 2014, the plaintiff commenced his own home maintenance and gardening business. That business lasted for one day on his own evidence. The plaintiff gave evidence that he made an application for a job in a business known as Medvet in 2014. Exhibit “1” was the covering letter and application presented for that application for a job.[69] The plaintiff did not obtain that employment or an interview for that job.
[69]T79
95 The plaintiff underwent training for traffic control to obtain employment. He qualified for the first of two tickets in the two-day period.[70] He was told by his friend that the lifting of the bollards would be too hard for him and that he was too much of a risk, and the plaintiff then gave up that idea of obtaining the second certificate for traffic control.
[70]T104
96 In May 2017, the plaintiff knew that his treating surgeon, Mr D’Urso, was of the opinion that he was capable of doing twenty hours of light work per week.[71] Despite this opinion, the plaintiff made no effort to obtain work, or rehabilitate to the extent of attempting to obtain work.
[71]T117-118
97 The plaintiff has shown little or no motivation to obtain work in the circumstances of his life. He currently lives with his wife in a house owned by his parents. On the basis of the evidence, it is clear that he does not pay rent for that accommodation. The plaintiff’s wife works full time in recruitment. The plaintiff is at home with his two young children and is assisted in their care by his own mother. The plaintiff has never been in receipt of Centrelink or social security payments for the whole of the time since he ceased work at Eco Outdoor Australia Pty Ltd.[72] The plaintiff also receives the financial assistance from his family through a family trust. He denied that the money from the family trust was paid directly to him for the only year shown in the records of the tendered documents of 2008.[73] The plaintiff had earlier given evidence that his father always gave him money. The combination of all of these factors, I find, is an explanation for why the plaintiff is not motivated to go out and attempt to obtain paid employment.
[72]T37
[73]T59
98 In this case, the defendant relied upon a vocational assessment report from Recovre to outline the possible employments that the plaintiff was able to perform. These roles included:
“1. Receiving and Despatch Clerk
2. Stock Clerk
3. Logistics Clerk
4. Rental Salesperson.”[74]
[74]DCB 86
99 The plaintiff was cross-examined about a receiving-and-despatch-type job, similar to the role he performed at Eco Outdoor Australia Pty Ltd, prior to him leaving that employment. Cross-examination was as follows:
Q:“So you could do a receiving and dispatch job. That would be up your alley, wouldn’t it?---
A:Well, it depends on my role. Like if I was – if I didn’t have a sore back, then yeah, I could. But because – I’m not sure if there’s – if there’s heavy lifting the day before, my back is door the next day, I’m not sure if I would be able to - you know, like, if I go to - if (indistinct) and my back has been aggravated, my reliability to go to work - like, I might not be there.”[75]
[75]T133
100 The plaintiff later reiterated the comment that “my reliability isn’t there”. The full-time role for a despatch clerk at that time was a $63,000 gross base salary.[76]
[76]DCB 95
101 The next job that was recommended by Recovre was rental sales assistant. This was a role that the medical opinions state that the plaintiff was now capable of performing. The gross remuneration for a rental sales job was between $41,000 and $49,000 gross per annum.[77] The plaintiff, when he was cross-examined about the rental sales assistant employment, stated as follows:
[77]DCB 93
Q:“And you know another of the jobs that is suggested for you is a rental sales assistant?---
A:Yes.
Q:So, either dealing with car rentals or equipment rentals. Why couldn’t you do that?---
A:Well, if I have to deal with customers on face value, my mood – my mood is a very - they change up and down every day. If I get a sleepless night the night before I am cranky, and my wife (indistinct) as it is, and I am not having a go at you, I’m just – I don’t - because my – I can’t handle it. The sleepless nights before.
Q:And you have got the capacity to do the sales jobs, haven’t you?---
A:I have never done that before.
Q: Well, you were quite interested in sales. You - - -?---
A: Yeah, exactly.
Q:- - - wanted to get into the sales side?---
A:Yeah, I wanted to, yeah - before surgery, yeah.
Q: Why can’t you do it, then?---
A:Because I have never tried it. I don’t know. Like, same thing. My mood swings, my – everything comes into play there.”[78]
[78]T135, L8-16
102 The plaintiff stated that he would be unable to perform any light courier work because he could not get in and out of the car appropriately. He also used that difficulty, as he described it, to say he was unsuitable to do any Uber driving or Uber Eats delivery.[79]
[79]T136-137
103 A further work opportunity applicable for the plaintiff was identified as being equipment-rental-type work. The plaintiff, when cross-examined about this possibility for employment, stated that he would be unable to assess cars when they were returned because he could not bend over to check under the car. He also stated that he would have mood swings and that his employers would not put up with that.[80] The plaintiff was also cross-examined about his capacity to work at a car wreckers or parts premises which was located in Keilor East. The annual remuneration was between $40,000 and $50,000 per annum. The role was one of a sales clerk administrator. The plaintiff, in answer to whether he could do that job quite happily, was as follows:
“Well, depends – depends how my back feels that day. Like I would – if my back’s sore I’m never happy, like if it’s aggravated, which is most days, then I’m not really in a happy mood.”[81]
[80]T141-142
[81]T143
104 On the basis of all the evidence in this case, I find that the plaintiff has the physical capacity to work as a warehouse production despatch and stock clerk. I also accept that he has the physical capacity to perform the roles of rental salesperson and customer service officer. I accept the opinion of Mr Michael Dooley that the role of being a road traffic controller, where all of his duties may include lifting and heavy manoeuvre of signs and bollards, is outside his work capacity. The evidence in this case is that the range of income that a person involved in those particular roles would be from $41,000 to $65,000 gross per annum.
105 The plaintiff has failed to prove that he has suffered a 40 per cent reduction in his income-earning capacity and that that reduction would be permanent into the foreseeable future.
106 The application for leave to issue proceedings to recover damages for loss of earning capacity arising out of the injury to the plaintiff’s lower back in the course of his employment with Eco Outdoor Australia Pty Ltd is dismissed.
107 I will hear the parties on costs.
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