Macpherson v R E Spence & Co Pty Ltd
[2022] VCC 1528
•16 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04111
| ANDRES GRESA MACPHERSON | Plaintiff |
| v | |
| R E SPENCE & CO PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2022 | |
DATE OF JUDGMENT: | 16 September 2022 | |
CASE MAY BE CITED AS: | Macpherson v R E Spence & Co Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1528 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to neck and shoulders – aggregation of impairment consequences – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Victorian WorkCover Authority v Brassington [2021] VSCA 236; Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Jonathan Brett KC with Mr Ben Hill | Shine Lawyers |
| For the Defendant | Ms Diana Manova | Russell Kennedy |
HIS HONOUR:
1The plaintiff, Andres Gresa Macpherson, was born in Spain in August 1988 and emigrated to Australia in 2011. Since leaving school in Germany at age 17, he has worked in various roles farming, welding, driving and kitchen work and also undertook a Diploma in Agriculture in the United Kingdom.
2On 2 February 2015, he commenced work as a welder for the defendant, R E Spence & Co Pty Ltd (“Spence Doors”), at their premises in Cheltenham working full-time casual, 37.5 hours per week, within a team of welders.
3Mr Gresa Macpherson’s duties at Spence Doors included manoeuvring doorframes around manually. In order to weld the frames, he was required to assume awkward postures at varying heights due to the width of the door frames involved. The work bench that was provided was, according to Mr Gresa Macpherson, too low for him to perform the work he was assigned. He was also supplied with a welder’s mask including a respiratory function, which was heavy for the tasks he was performing.
4After a few weeks of undertaking this work, Mr Gresa Macpherson started feeling neck and shoulder pain and discomfort, which progressed, and he ceased work on 12 March 2015. He was 27 years of age at the time.
5Mr Gresa Macpherson has since returned to employment: from time to time with Spence Doors, various other employers, and, since in or about March 2020, in a self-employed capacity as a welder. His employment duties are undertaken against a background of constant pain, discomfort and restriction. His symptoms are exacerbated by his work activities, and as a consequence he is unable to manage full-time hours.
The proceeding
6Mr Gresa Macpherson seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment or loss of a body function. In particular, he claims to have sustained injuries to the body function comprising his neck and right and left shoulders; alternatively bilateral shoulders; alternatively, his neck (cervical spine).
7For the reasons that follow, I grant his application for leave to commence proceedings for damages at common law for pain and suffering damages.
Legal principles
8The relevant legal principles in applications of this type are well known and, save for the issue of the relevant single body function to which I shall return, not in dispute.
9Mr Gresa Macpherson bears the onus of demonstrating that his impairment is permanent, and that the consequences are serious.
10He must establish that by reference to the consequences to him with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and as being at least very considerable, in accordance with the narrative test set out in s325(2)(b) and (c) of the Act.
11The consequences of injury for a particular worker begin with findings of fact. Assessment whether those consequences in terms of impairment satisfy the narrative test is largely a question of impression and value judgment.
The issues
12Spence Doors accepts that Mr Gresa Macpherson sustained injury in the course of his employment from 2 February 2015 to 12 March 2015, a period of just over five weeks. It does not accept that the impairment arising from any injury sustained by Mr Gresa Macpherson in the course of his employment, and in particular the consequences flowing from that impairment, satisfy the narrative test.
13The plaintiff’s senior counsel advanced the case on the basis that the relevant body function productive of impairment consequences is the combined area of the neck and left and right shoulders. Applying the principles in Victorian WorkCover Authority v Brassington[1] and Georgopoulos v Silaforts Painting Pty Ltd & Ors,[2] Mr Brett KC submitted that the area encompassing the shoulders and the neck may be considered a single body function.
[1] [2021] VSCA 236 (‘Brassington’)
[2] [2012] VSCA 179; (2012) 37 VR 232 (Osborn JA, J Forrest and Beach AJJA) (‘Georgopoulos’)
14Spence Doors concede that the initial worker’s claim form, and much of the medical material, to which I will refer below, refers to injury to the “neck and shoulders”. Counsel for Spence Doors, Ms Manova, however submitted that:
(a) whilst it has long been accepted that separate injuries to the segments of the spine may comprise impairment of a single body function, the left and right shoulders and the neck do not constitute one single body function;[3]
(b) Mr Gresa Macpherson sustained separate injuries, discrete to the neck, and left and right shoulders, respectively, which are not capable of aggregation; and
(c) in any event, the consequences when considered together as one single body function, on an aggregated basis, or in isolation, do not satisfy the narrative test.
[3]compared with the function of the lower leg in the context of separate injuries to the ankle and knee, sustained in a single incident, considered in Brassington.
The evidence
15In addition to the plaintiff’s two affidavits sworn on 11 May 2021 and 31 May 2022, the plaintiff relied upon affidavits of a “before and after” nature sworn by a friend and colleague, Doug Morrison, on 3 June 2022, and his girlfriend, Emma Herben, on 17 June 2022. In addition, the parties tendered various medical material and the claim form documents. I have read all the tendered material.
16In addition to the above material, a relatively short piece of surveillance video of the plaintiff taken in November 2021 was shown to the plaintiff, and he was cross-examined about the level of function that he demonstrated in that surveillance film.
The injury
17The injury relied upon is to the neck and/or shoulders bilaterally.
18Mr Gresa Macpherson was shown in a CT scan of his neck in 2015 to have small central and right posterolateral disc protrusions at C5-6 level with slight indentation of the theca centrally and to the right of midline.[4] Later reports relied upon by Spence Doors (considered below) were to the effect that the initial injuries to the neck were soft-tissue in nature, and had resolved.
[4] Plaintiff’s Court Book (“PCB”) 36
19Various ultrasounds of his shoulders conducted in 2015 essentially show subdeltoid bursitis with otherwise normal and intact rotator cuffs. Counsel for Mr Gresa Macpherson acknowledged that this was not particularly significant and did not explain all of the plaintiff’s difficulties.[5]
[5] Transcript (“T”) 103
20In a case such as this with limited medical evidence of organic injury productive of symptoms, the credit of the plaintiff and objective evidence of impairment assume particular importance.
Medical evidence
21Dr Hung Nguyen, who Mr Gresa Macpherson describes as “the company doctor”, examined the plaintiff at the Interhealth Medical Centre in Dingley on 12 March 2015 because of pain in his neck for two weeks. The pain level was 8/10 during working days with little variation during the day, and residual neck pain during the weekend. He recorded a history that the plaintiff worked as a welder, that his neck pain got worse while wearing a helmet, and that his job involved sometimes working above head level.
22Dr Srinivasa Kesarapu, the treating General Practitioner, first saw the plaintiff on 20 March 2015, recording that Mr Gresa Macpherson presented with work-related neck and shoulder pains of two weeks duration, where he used a heavy helmet at work for welding, and since the worktable is at a lower level, the heavy helmet caused more stress on his neck muscles, and caused his condition.
23Mr Ben Dalton, physiotherapist, first saw Mr Gresa Macpherson on 30 March 2015 and reported that he attended with a sore neck and shoulder girdle in the context of repetitive work at a low bench and lifting door frames, with symptoms aggravated by the constant pressure due to use of a breathing apparatus (mask) weighing 840g, more with air. In his opinion, “unsuitable duties at work have worsened the disc bulge to a certain degree and he might be having radicular symptoms with the weakness in the left hand.”
24A CT scan of the cervical spine conducted on 2 April 2015 found a small central protrusion of C5/6 without neural compression. The report notes a clinical history of “neck and shoulder pain four weeks”.
25Dr David Ho, occupational health consultant, examined the plaintiff at the request of the claims agent on 21 April 2015. The history provided to Dr Ho included that he started experiencing discomfort and symptoms “in his neck and shoulders” two weeks before 12 March 2015, attributing it to a general discomfort from flexing his neck for prolonged periods. He reported issues with the height of his table, lifting a heavy doorframe to head level before bringing it down carefully, using a helmet that aggravated his neck, and problems with ergonomics at the workstation. On examination he “presented his history in a straightforward manner”, and whilst tender at the base of his neck and across both shoulders, active shoulder movements were to full range bilaterally. Active neck movements were partially restricted. In Dr Ho’s opinion Mr Gresa MacPherson had a “genuine persisting symptomatic cervical disc lesion which is work-related.” He stated, “In my opinion the physical nature of his work and the wearing of a heavy helmet had contributed to his neck injury and condition.” Dr Ho recommended a period of time off work with a graduated return to work on modified duties, with regular rotation of duties, and review indicated in 3 to 4 months.
26An MRI scan of the cervical spine on 26 May 2015 confirmed the right paracentral C5/6 protrusion, and found a C3/4 disc osteophyte complex, with no neural compression.
27Mr Simon Li, physiotherapist, saw the plaintiff for an assessment on 26 August 2015, reporting the plaintiff sustained an injury at work in March 2015. He recorded a history that the plaintiff worked as a welder for the defendant company, that he did repetitive heavy lifting and grinding at work, and developed pain over his neck and shoulders. He diagnosed soft tissue injuries.
28Ultrasounds of the left and right shoulders in August 2015 revealed normal intact rotator cuffs, with mild subdeltoid bursitis, without impingement in the left shoulder but dynamic examination revealing some impingement on abduction in the right shoulder. Nerve conduction studies were normal, with no left C6/C7 radiculopathy.
29The plaintiff’s bilateral subdeltoid bursitis was treated with cortisone injections under local anaesthetic in September and October 2015 respectively.
30Dr David Eaton, specialist occupational and environmental physician, saw the plaintiff upon referral from Dr Weekes, pain specialist, on 14 January 2016. He reported the plaintiff woke on a day in March 2015 with neck pain and stiffness, which was much more severe when he worked. He recorded a history that Mr Gresa Macpherson “thought the bench he worked on was too low and had to bend significantly for most of the day.”
31In his report dated 18 January 2016, Dr Eaton diagnosed C5/6 disc prolapse with referred pain in the upper extremities without radiculopathy. In his opinion:
(a) Mr Gresa Macpherson was not capable of performing the full pre-injury duties, and considered some of the inherent requirements of his pre-injury duties as a welder likely to exacerbate his injury. He identified permanent limitations including:
(i)sustained constrained postures (particularly if the neck is flexed);
(ii)prolonged or repetitive reaching above shoulders or from side to side (involving shoulder abduction);
(iii)lifting > 10 kg (with the load close to the torso);
(iv)lifting > 4 kg (with the load more than 30cm from the torso);
(v)pushing/pulling (e.g. trolleys) > 15 kg force;
(b) his incapacity for full pre-injury employments was likely to be permanent; and
(c) alternative employment was the only option likely to keep him employed.
32Dr Slesenger, specialist occupational physician, first assessed the plaintiff at the request of the claims agent on 26 September 2015. Dr Slesenger opined that the plaintiff was injured during the course of employment, where his job tasks required constant forward reaching, over shoulder reaching and sustained neck flexion. Mr Gresa MacPherson was then experiencing pain at a level of 6.5-7 out of 10 in his neck, and both shoulders (on medication), which he described as severe and burning in character with a tight feeling in the neck as well as burning sensation in both shoulders. Activity, particularly manual handling and postural changes, aggravate the pain. Despite noting “significantly increased range of movements noted in his cervical spine” when inspecting his shoulders, Dr Slesenger accepted that the plaintiff had capacity limitations. Following a worksite visit in November 2015, Dr Slesenger recommended a return to work, initially two days a week, with manual handling restrictions and no over shoulder reaching. In his opinion, Mr Gresa Macpherson had work-related chronic cervical and bilateral shoulder pain. He noted that the symptom magnification and functional overlay – relying upon his stated observations of increased range of neck and shoulder movements observed for example whilst dressing and undressing – should be addressed in a pain management program.
33Mr Gresa Macpherson participated in a Multidisciplinary Pain Management Program at the Precision Brain, Spine and Pain Centre between November and December 2015. The program, together with ongoing physiotherapy treatment, exercise and medication, resulted in an improvement in his symptoms, allowing him to return to work performing modified duties, working 3 hours a day, 3 days a week.
34Mr Justin Moar is a physiotherapist involved in the pain management program undertaken by the plaintiff. Apart from identifying restrictions consistent with his limited functional capacity at the time (lifting up to 2.5kg to waist level, rotating sitting and standing every 20-25 minutes, no reaching to shoulder height or above), recommending conservative self-management including a gym/swim-based program and supporting him in his return to work, Mr Moar does not set out a formal diagnosis. His treatment however was plainly related to a “neck disability”, including restriction in cervical rotation to the left and right.
35Dr Slesenger next assessed the plaintiff on 11 March 2016, this time recording:
“Since the last evaluation, Mr Macpherson advised that there has been some improvement in his symptoms. He advised that his neck symptoms have improved and are currently at a level of 2-5/10. The pain is aggravated by rotatory movements and he advised ongoing restriction in his range of neck movements of around 50%. He advised that repetitive neck work, particularly neck extension, is irritant to his ongoing symptoms. He advised that the pain is now dull in character. He advised that his shoulder pain has likewise improved. On the left side, he is complaining of ongoing pain at a level of 1-3/10 with some improvement in his range of movements, but there is ongoing restriction in his range of movements. On the right side, he describes more intense pain being 1-4/10, but again advises an improved range of movements in his right shoulder movements.”
36In his opinion:
(a) Mr Gresa Macpherson presented with chronic cervical and bilateral shoulder pain, did not have the capacity to return to his pre-injury duties/hours, though he has the capacity to return to (significantly) modified duties and restricted hours;
(b) evidence of symptom magnification was less pronounced at this evaluation; however, there was increased quality of movements upon distraction;
(c) the majority of the compensable injury had resolved;
(d) proposed alternative duties as a truck driver were not suitable, due to Mr Gresa MacPherson’s presentation, in particular the “quality of his neck rotatory movements”.
37Dr Slesenger assessed Mr Gresa Macpherson again on 6 August 2021 (via Telehealth) who advised of residual neck pain, centred in the neck and which continued to radiate into both shoulders. The pattern of aggravation was variable, with work - 3 days a week, 8 hours a day in a welding/metal fabrication role – particularly aggravating his symptoms.
38Following further assessment (in person), during which Mr Gresa Macpherson advised of residual pain at a mild to moderate level in his neck with pain radiating into both shoulders, Dr Slesenger prepared his final report dated 22 February 2022. Again observing some increase in range of movement upon distraction, Dr Slesenger allowed that the plaintiff demonstrated significant restriction to his neck and shoulder movements. His opinion was as follows:
“I am satisfied that Mr Macpherson suffered a cervical spine soft tissue injury and developed chronic neck pain. I am of the opinion that this has, in the most part, resolved.
I am also satisfied that he is likely to have suffered a right shoulder soft tissue injury which has, in the most part, resolved.
I am of the opinion that he suffered a left shoulder soft tissue injury which has, in the most part, resolved.
I am of the opinion that the incident-related impairment is now a minor contributing factor to his overall disability.
I note that he has been able to remain at work performing heavy and repetitive manual tasks associated with his subsequent employment and I am satisfied that his subsequent employment is a more plausible cause of his current impairment and disability. In particular, I note that when attending evaluation, there is evidence of heavy and repetitive manual tasks being performed and he advised that his current work activities were irritant to his cervical spine and bilateral shoulder pain.”
39Professor Vernon Marshall examined the plaintiff for the WorkCover insurer in January 2021 for the purposes of an independent impairment assessment. He diagnosed work-related injuries to both shoulders and cervical spine, and reported that the plaintiff is left with persisting symptoms due to injuries to the cervical spine and both right and left shoulders. His report dated 1 February 2021 records a Whole Person Impairment relating to injuries to the cervical spine and shoulders of 13%. He noted restricted range of motion of the cervical spine with pain throughout movement. There was some symmetrical restriction in range of motion in both shoulders with no muscle wasting. He noted that his objective findings were consistent with the range of motion during the formal examination. Professor Marshall also had the advantage of review of imaging brought by the plaintiff, including the CT scan of the cervical spine of April and September 2015.
40Mr Ash Moaveni, orthopaedic surgeon, assessed Mr Gresa Macpherson on 14 April 2022, and reported to the plaintiff’s solicitors that the plaintiff acquired injuries to his cervical spine, right shoulder, and left shoulder over the course of his work between 2 February 2015 up until about 12 March 2015. This came about as the work bench was too low for him to perform the work to which he was assigned. He was required to hold an awkward posture whilst handling welding equipment or doors, which placed considerable strain on his body. His duties required overhead lifting, including lifting of sheet metal door frames. His pain increased as a result of the repetitive nature of his duties, which required him to hold a sustained position.
Employment capacity
41Ms Manova submitted that the plaintiff has effectively continued to work in one job or in a full-time capacity in a number of jobs since he ceased work with Spence Doors,[6] and Dr Slesenger opines, in his most recent report dated 22 February 2022, that when the plaintiff’s neck and bilateral shoulder impairments are considered in isolation (he was not asked to consider the injuries in combination), the plaintiff has a work capacity to perform pre-injury duties and pre-injury hours.
[6] T96
42The evidence discloses that post injury, Mr Gresa Macpherson worked on and off, sometimes on restricted duties, taking several weeks off work altogether, and was certified unfit for work from September until the end of October 2015. He then participated in a pain management program in November and December 2015, before returning to work on 19 January 2016 on a graduated return to work program. By March 2016, he was still only working three hours a day, three days a week performing modified duties (stock-taking and vacuuming with a lightweight hose) which he found difficult due to their repetitive nature and lack of rotation. He was not offered alternative duties in other areas due to the risk of re-aggravation of his injuries due to the repetitive nature of his welding tasks. He then worked full-time as a truck driver for a period of about a year from April 2016 on a “one week on, one week off” basis, with variable hours.
43When asked by his counsel in re-examination about the truck driving work, he said:
A:“I would be driving in the seat with a massage pole jammed behind my shoulder blades presses into it the entire drive to the point where my shoulders were numb. I would get home after the end of a day and just literally spend hours in the bath refilling hot water for hours on end just to try and, you know, get the pain out my system effectively.
Q: Why did you put yourself through this?
A:I didn't have a choice. I had no access to social welfare, I was told I wouldn't be able to go back to a job as a welder. I was given the option by R E Spence to work in the office with no job security, no contract, nothing. Or I could go and work driving fuel trucks for a friend of mine…
Q:…you were having one week on, one week off?---Yes, … I was just wrecked. Honestly I was struggling even on one week on, one week off. But it is the only job I had and it was something that I was actually able to do.”[7]
[7] T72-73
44Mr Gresa Macpherson then undertook part-time labouring for about nine months in 2018 working between 2-3 days a week over this period, before working full-time as a welding fabricator for about six months in 2018/2019 at Aerovent.[8] He then secured a less physically demanding but full-time job for six months, at Metal Masters.[9] After that he worked casual full-time for six months for different companies and labour hire agencies, but he took sick days and there were days when he was not physically fit enough for work.[10] In January or February 2020, just before COVID hit, he gained casual employment as a light aluminium fabrication welder at Homewood Highgate, and was able to work on average 4 days per week.[11] The plaintiff’s evidence was that sometimes it might be a full week and other times he took time off.
[8] T39
[9] T40
[10] T41
[11] T41
45Since March 2020, the plaintiff has worked exclusively for his own business, Arcs and Sparks Fabrication, in Footscray, where he does welding and fabrication work with some handyman work.[12] The hours vary a lot. If there is no work, he stays at home and rests up. There have been jobs which required him on site for three, four, five days straight or more, but then he has to recover. He currently works, on average, 24-30 hours a week. If he works more than that, his duties vastly aggravate his symptoms.
[12] T42
Credit
46Counsel for Spence Doors submitted that I ought to have some scepticism as to the level of symptoms reported by the plaintiff. This, however, was not put to him in cross-examination. In final submissions, Spence Doors relied upon opinions that the plaintiff exaggerated and overstated the consequences of his injuries upon examination by Dr Slesenger, however this was never put to the witness either.
47The rule in Browne v Dunn[13] was recently considered by the High Court in Hofer v The Queen[14]. The Court stated:
“26… The rule requires that where it is intended that the evidence of the witness on a particular matter should not be accepted, that which is to be relied upon to impugn the witness's testimony should be put to the witness by the cross-examiner for his or her comment or explanation.
27… The rule was described not only as one of professional practice but as essential to fairness. It may be added that adherence to the rule may also be necessary to permit an assessment on the part of the tribunal of fact of differences or inconsistencies in the accounts given and of the credit of witnesses where that is an issue.”
[13] (1893) 6 R 67 at 70-71
[14] [2021] HCA 36
48Although it might be expected in a personal injuries case that the extent of the plaintiff’s symptoms and incapacity might be subject to challenge, and there was a basis for making such a challenge to the plaintiff’s sworn evidence in this case, the importance of these gateway proceedings to a plaintiff cannot be overstated. Where significant reliance is placed on an attack on a plaintiff’s credit, one might expect such matters would be put to the plaintiff in order that he might provide an explanation.
49It would usually be unfair to reject evidence on which there has been no cross examination where the rule has not been complied with, and where the witness has not otherwise been given the opportunity to deal with the suggestion now made for the first time in final address. The particular observation of Dr Slesenger related to inconsistent range of motion demonstrated by the plaintiff upon examination, both formal and informal. This was apparently observed by Dr Slesenger in his examinations of the plaintiff in 2015, and 2022; but not in 2016 or 2021. The criticism extended to general pain amplification.
50In circumstances where it was not put to the plaintiff that:
(a) he exaggerates his symptoms generally, and
(b) he did so in his affidavit and in the course of his oral evidence,
I am not prepared to reject the totality of his evidence as to his general experience of pain. This is so, at least in part, because of the overall findings of Dr Slesenger that “I am satisfied that Mr Macpherson suffered a cervical spine soft tissue injury and developed chronic neck pain” and his other findings in relation to reduced capacity. Dr Slesenger also apparently accepted the history taken in February 2022 that:
“He has residual neck pain with severe stiffness in his neck with pain radiating into both shoulders. He describes a base level of pain 2-3/10, increasing to 5-7/10 with severe restriction to neck movements, particularly, elevation and rotation. He describes the pain as dull and throbbing together with burning pain when his symptoms deteriorate”
although he again observed “his range of neck movements improved upon distraction.”
51There is no suggestion in any of the other medical reports that the plaintiff was exaggerating his symptoms, or was otherwise unreliable in the histories and symptomology he reported to the various examining doctors; and nowhere was it suggested he was consciously feigning.
52I accept that initially in particular there was a significant degree of pain magnification in his presentation as observed by Dr Slesenger, however this was addressed and treated appropriately in a pain management program in 2015. Any inconsistency in range of motion observed by Dr Slesenger on some (but not all) later occasions, might be explained by the variable level of symptoms reported by the plaintiff. Dr Slesenger’s observations are a concern, however, and left me in some doubt as to the extent I could rely on Mr Gresa Macpherson’s evidence as to his level of pain and restriction.
53In the end, I am left with my own impressions based on all of the material, and Mr Gresa Macpherson’s in-court demeanour.
54Mr Gresa Macpherson was plainly uncomfortable in the courtroom, including whilst giving evidence, and it emerged that he was having a flare-up, following a long plane trip he had been on the day before. He was clear in his oral evidence that this did not represent his usual level of impairment and pain, and I accept this to be the case. He said, “This is a flare-up, so a bad day. This is not how I'm always.”[15] I observed him carefully in the witness box. His body language relaxed following cross-examination, and his neck movements were variable in the course of giving evidence, but not inordinately so.
[15] T14
55The credibility of the plaintiff as a witness and as an historian of his symptoms to medical practitioners is of central importance. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[16] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[17]
[16]For example Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [46]; Dordev v Cowan [2006] VSCA 254, [14]-[19]
[17] Dordev v Cowan (ibid), [19]
56Even if a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters, this does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded.
57In Cakir v Arnott’s Biscuits Pty Ltd,[18] Neave JA (with whom Maxwell P and Buchanan JJA agreed) said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should therefore be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[19]
[18] [2007] VSCA 104
[19] Ibid [49]-[58]
58The evidence of Mr Gresa Macpherson was supplemented by that of two lay witnesses.
59Douglas Morrison, a friend of the plaintiff, swore an affidavit on 3 June 2022. He deposed that since the subject incident, the plaintiff suffers pain in his neck and shoulders, rubs and massages his neck and shoulders, takes painkillers from time to time, moves a lot more slowly and carefully, and takes more breaks than he did before he was injured. The plaintiff avoids repetitive movements, movements that require him to bend, and takes ten-minute breaks at work to rest unlike before the injuries when he could work through. The plaintiff is a specialist welder, passionate about his work, however he has not seen him practising welding for his own enjoyment and to hone his skills, like before he was injured. He said:
“I believe he has only been able to get back into work by being self-employed, so he can work at his own pace, given his injuries.
I have noticed that since he has been injured, Andres is a lot less social. Instead of going out, we tend to just catch up at my place. When the injury first happened, he was really down. Though he is not as bad now, I have noticed he is a lot more negative in his outlook than he was before he was injured. Not being able to work as he used to, and the pain and restrictions he now lives with, have had quite a profound impact on Andres.”
60Emma Herben has been in an unconventional relationship with the plaintiff for the last four years, and although they have lived together previously, are not cohabiting at the current time. In her affidavit sworn on 17 June 2022, she deposed that the plaintiff is the type of person to just put up with things, but he is in some degree of pain every day; he will crinkle his forehead and move more slowly and carefully when he is in pain and takes ibuprofen/Panadol most days. The plaintiff loves welding and pushes through the pain he experiences at work, and despite working reduced hours pulls up sore at the end of the day. In her words:
“Working generally is something Andres enjoys, he cannot stand not being at work. Even though it causes him pain being at work, Andres will just push through it as he loves welding and wouldn’t cope not working.”
61She has observed the plaintiff has restrictions in what he can do and is very careful about the activities he does so as not to cause pain to his neck and shoulders, which gets him down as he is only 33 years of age. For example, she said:
“I have noticed that Andres tends to shift around a lot, as being in the one position for long periods of time seems to cause him pain. I have observed that he takes care with how he moves his neck and shoulders when he is doing something, so he doesn’t move in a way that causes him pain.
...we moved house about 2 years ago. During the move, we had to get help, as Andres really struggled. He was not able to pick up, lift and move items that a man his age would ordinarily be able to.”
62There are a number of references in the material consistent with my observation that he appeared generally to be a straightforward and honest witness. He continually made appropriate concessions. He did not seek to exaggerate his position under cross-examination, and to the contrary, demonstrated a degree of stoicism that the cases indicate should not be held against him.
63Overall, I accept the level of consequences identified by Mr Gresa Macpherson.
Consequences of injury
64I infer that the level of discomfort and restriction in range of motion of Mr Gresa Macpherson’s neck I observed in Court was consistent with neck and/or shoulder pain, and that, if aggravated, represented the level of discomfort he might experience from time to time on an ongoing basis.
65I accept Mr Gresa Macpherson’s evidence as to his levels of pain and loss of function consequent upon his impairment.
66In an early report of Dr Weekes dated 19 August 2015, the doctor recorded that:
“He is still working full-time on reduced capacity; however, he is starting not to be able to tolerate his work. The pain is interfering with his ability to have sexual relationships with his partner. It is also interfering with his ability to do gardening or fishing and he also describes how he has put on weight secondary to when the pain started.”
67The current consequences of his neck injury, including referred symptoms into his shoulders, include:
· constant low-level neck pain which can be aggravated depending on the activity the plaintiff performs, and with a build up over time of symptoms after a heavy week of work. Leaning to one side causes a stabbing muscular like pain in the neck, which subsides when he stops leaning. There is extra pain and discomfort when working with arms overhead for an extended period of time, or while craning his neck when working underneath something;
· sitting and standing for prolonged periods can aggravate pain in his neck and down into his shoulders;
· pain in his neck extending down to shoulders while at rest, with generally the right shoulder pain worse than the left. When the plaintiff moves his arms, his symptoms increase and there is pain that extends down from the neck;
· he requires weekly massage and hot baths to manage his pain;
· inability to surf since the subject incident due to his neck and shoulders an activity he used to enjoy with his former partner. In terms of recreational pursuits, he has given up surfing, an activity he used to enjoy with his former partner;
· the plaintiff previously enjoyed riding his motorcycle before his injury, but has not returned to this recreational pursuit due to his neck and referred pain into his shoulders, save for an abortive attempt recently, since he ceased work in March 2015;
· he attempted to shoot a rifle in a prone position at a shooting range sometime after swearing his first affidavit in May 2021, however it flared up symptoms particularly in his neck but also in his shoulders. He will not attempt it again. He previously enjoyed shooting;
· the plaintiff is unable to work full-time hours anymore. His hours vary depending on how he is feeling physically, and the type of work he is doing. If he works more than 24-30 hours a week, it aggravates his symptoms;
· performing a massage aggravates pain and makes the plaintiff’s neck, and down into his arms, sore;
· symptoms are generally aggravated when putting away shopping items. The plaintiff breaks up tasks into smaller jobs and takes rests to manage his symptoms;
· pain when putting the cover on a doona, extending from the neck to the arms, but which is particularly bad in the shoulders;
· he tries to limit his driving to a one-hour trip where possible.
68Initially the plaintiff took regular medication for pain including codeine/paracetamol at 2am and 1 tablet 6-hourly, Lyrica 75 mg once daily and Mobic 15 mg once daily. More recently he manages his pain with Panadol and Ibuprofen.
69His evidence included:
“I never envisaged that at this stage of my life, I would have lost the ability to be spontaneously active and would need to accommodate so many restrictions in the way I live my life. I must constantly think about how my neck and upper limbs may be affected when I am confronted with whether to undertake a particular activity or not. Even if I make the decision to undertake the activity, I still then have to think of ways of completing the activity to minimise the chances of my symptoms becoming aggravated. I have to devise alternate methods to do things which I would have, prior to suffering my injuries, automatically done without much thought at all.”
70On the evidence as a whole, I am satisfied that Mr Gresa Macpherson has constant pain in his neck and shoulder region, which is aggravated by activity, in particular his employment as a welder. Mr Gresa Macpherson gave unchallenged evidence that he was unable to obtain social security benefits, so had to work, and did so. He progresses through pain, and has to manage his activity, including by taking time off work, and taking different types of work in his self-employed capacity in order to manage his symptoms.
The neck and shoulders: a single body function?
71In Brassington, the Court of Appeal considered whether injuries sustained to the knee and ankle of the same leg in a single workplace incident could be aggregated for the purposes of paragraph (a) of the definition of serious injury. In doing so, the court reconsidered its earlier decision in Lu v Mediterranean Shoes Pty Ltd[20] and provided further clarification to the approach in aggregating injuries to identify the relevant body function.
[20] (2000) 1 VR 511
72Beach, Kaye, and Osborn JJA agreed with the trial judge that the Mr Brassington was permitted to aggregate his injuries to establish serious injury by reference to an impairment of his right lower limb,[21] stating:
“[46]In applying the provisions of s 325 of the Act in an application under s 335(2)(d), it is important to remember that these provisions are, as J Forrest J said in Acir v Frosster Pty Ltd, gateway provisions. They do not involve any relevant determination affecting the assessment of any damages which might be assessed in a subsequent common law proceeding. Moreover, the delineation of a particular body function (or functions) as having been permanently and/or seriously impaired has no impact in any subsequent common law proceeding which involves the assessment of damages for each of the injuries suffered as a result of a pleaded incident or set of compensable circumstances.
[47]The serious injury provisions being gateway provisions, a sensible, pragmatic and consistent approach should be taken in relation to the identification of an appropriate body function, in any application in which it is sought to establish that a particular body function has suffered the requisite impairment as a result of a particular incident or set of compensable circumstances. To that end, the following observations in Georgopoulos are apposite:
The human body is a complex multicellular organism. The relationship between its components is the subject of continuing research and progressive medical understanding. It cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by s 134AB. The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad common sense way.
…
[52]For the above reasons, the judge was correct when he held that the plaintiff could aggregate his ankle and knee injuries, for the purpose of establishing that the function of his right lower limb had suffered a permanent serious impairment. A common sense and pragmatic approach to the relevant provisions of the Act permitted the plaintiff to contend that the injuries to his ankle and knee impaired the function of his right lower limb. Upholding that contention gave the operation of those provisions an application which is consistent with one already accepted in relation to cases where injuries to different levels of the spine have been held to impair the function of the whole spine.”
[21] Brassington 37, 48
73Lexa v Transport Accident Commission[22] involved an applicant injured in a transport accident. As a result of the accident, the applicant suffered injuries in his shoulders among other injuries.[23]
[22] [2019] VSCA 123 (‘Lexa’)
[23] Ibid at paragraph [8]
74Mr Lexa submitted that his “two shoulder injuries may give rise to loss of a body function in the form of inability to lift an object with both arms. The body function is lifting using both arms, which engages, relevantly, both shoulders”. The TAC’s counsel responded by demonstrating that “lifting two lever arch folders from the floor using both arms (and shoulders) involves many other parts of the body and, correspondingly many body functions”; and submitted that lifting using both arms cannot be considered a single “body function” since it is a “coordinated exercise of a number of body functions”.[24]
[24] Ibid [47]
75The Court of Appeal stated:[25]
“While Lu makes it clear that it is permissible in some circumstances to aggregate the effects of injuries to two body parts arising from a single incident, the impairment must be to one ‘body function’”
and held that the plaintiff’s bilateral shoulder injuries had not given rise to the loss or impairment of a single body function.[26] The plaintiff was not permitted to aggregate his two shoulder injuries and their consequences into a single impairment of his shoulders.
[25] Ibid [43]
[26] Ibid [51]
76The Court of Appeal again considered the approach to bilateral shoulder injuries in Carbone v Toyota Motor Corporation Australia Ltd.[27] Although the injuries in Carbone were suffered in separate incidents, the court referred to the applicant having sustained separate injuries “to separate body functions”.
[27] [2017] VSCA 249 (‘Carbone’)
77In Target Australia Pty Ltd v Moloney,[28] the Court of Appeal determined that a body function denoted “a physical act or operation, not some ‘applied’ activity.”[29]
[28] [2000] VSCA 124 (‘Target’)
[29] Ibid [18]
78In White v Gregory and Nicole Stephens (trading as GNS Cabinet Makers)[30], the plaintiff injured his neck and left shoulder in a workplace accident.[31] There was evidence of, at least initially, impingement of the left shoulder with subacromial bursitis requiring an operative procedure (subacromial decompression). The employer accepted there was a soft tissue injury initially in the region of the scapula, and the court was satisfied that Mr White suffered an injury to his left shoulder arising out of, or in the course of his employment with the defendant, and still suffered pain there. The court was also satisfied that Mr White suffered a soft tissue injury to his cervical spine. The plaintiff’s counsel submitted that the injuries could be aggregated into one body function, with the areas of pain being the region between the neck and the shoulder but also extending into the head and down the left arm.[32]
[30] [2022] VCC 656
[31] Supra (n 23) at paragraph 1
[32] Ibid at paragraph 161
79Judge Lauritsen found that an impairment affecting an area encompassing a shoulder, the adjacent side of the neck and part of the area between them was a single body function, relying on the passage from Georgopoulos cited above in Brassington. His Honour said:
“Although speaking of injury in the quoted passage, in my opinion, the same consideration applies to the identification of a body function. That is, in a broad sense the impaired area can be considered a ‘body function’.” [33]
[33] Supra (n 23) at paragraph 163.
Submissions by the parties
80Mr Brett, citing Georgopoulos, Brassington and White, submitted in this case that the court was entitled to identify the combined area of the plaintiff’s neck and left and right shoulders as the relevant body function,[34] and that two injuries sustained in the one incident or set of compensable circumstances may affect the one body function.[35] The court was invited to take a “sensible, pragmatic and consistent approach to the identification of an appropriate body function”. He relied upon the disc lesion at C5/6, and bilateral bursitis in the shoulders, but conceded that the doctors have not identified the relationship between those injuries. The case was put on the basis that:
(a) the doctors right from the start have seen it wrapped up as together, consistent with the plaintiff in his WorkCover claim form which states that his injury condition and the parts of his body affected were “neck, shoulders, upper back. Stiff/sore muscles.”[36]
(b) Dr Slesenger diagnosed neck and bilateral shoulder pain in his first report and it was suggested that other doctors also “bundled them up together at all times”, including Mr Moaveni.
[34] T8
[35] Humphries v Poljak [1992] 2 VR 129
[36] PCB 32
81In the alternative, following the opinion of Dr Ho – who had examined the plaintiff shortly after he ceased work in March 2015 and diagnosed a persisting symptomatic cervical disc lesion, which was work-related and the driver of the pain in both the neck and shoulders – Mr Brett submitted that the neck was the relevant body function. It was conceded that bursitis in each shoulder is not generally considered to be a really serious finding, and it was not even said to be a particularly severe bursitis.[37]
[37] T103
82Noting its submissions summarised above at [14], Spence Doors relied upon the following as to “range”:
· Mr Gresa Macpherson had had no medical treatment for his injuries since 2016, not looking for any further assistance after the completion of a pain management course in that year;
· his only treatment since 2016 had been remedial massage, and no reports had been provided by the relevant practitioners;
· whilst he complained of some pain driving a car, he was able to drive a small tanker for one year in the course of his later employment with Bulk Fuels in Laverton in 2016 and 2017;
· he only used analgesics infrequently, and could not recall the name of a second analgesic (Panadol) in the course of cross-examination;
· he had conducted substantial employment post-injury of a physical nature;
· despite his past practice of hiring staff from time to time, he continued to work in a self-employed capacity, as was demonstrated in some film shown to the court;
· he had retained an ability to retrain, demonstrated by his completion of certain modules in Certificate IV in Engineering (Fabrication) Welding;
· he was back performing his pre-injury duties, although in a self-employed capacity and not full-time; and
· there was medical evidence that he had capacity for alternative employment, on a full-time basis.
Findings
83The significance of Mr Gresa Macpherson’s injuries, in the sense considered by Haden Engineering,[38] is illustrated by an analysis of the whole of the individual including his background, abilities and skill sets.
[38] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
84In Ellis Management Services Pty Ltd v Taylor,[39] the Court of Appeal stated:
“52. ... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
…
57.The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.
58.Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.
59.The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range ... .”
[39] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
85Mr Gresa Macpherson loved welding, and this was obvious from the degree of proficiency he is reported to have, and his persistence in this endeavour despite pain.
86I accept Mr Brett’s submission that:
“He's been obviously someone who has done his level best to get on with the life that he has to lead. He has to support himself, he has to put food on his table and a roof over his head and he's done that the best way he knows how. And he's done so through pain.”
87I am satisfied that his condition reached its maximum medical improvement, or stability in 2016, and further that this is an adequate explanation for the absence of any treatment to manage his ongoing symptoms and pain other than conservative treatment and restricting his activity since that time.
88As the Court of Appeal stated in Dwyer v Calco Timbers Pty Ltd (No 2):[40]
“the fact that the appellant has not had treatment for many years does not stand, I consider, against a conclusion that his continuing pain, though not ‘disabling’, is nonetheless a matter of some significance.”[41]
[40][2008] VSCA 260
[41] Ibid [24]
89His neck injury is permanent.
90I also accept the sequence of presentation of symptoms, being the emergence of symptoms in his neck, and left and right shoulders during his employment with Spence Doors.
91This is demonstrated for example in the worker’s claim form dated 12 March 2015, the day he ceased work with Spence Doors, which recorded injuries of “neck, shoulders, upper back. Stiff/sore muscles.”
92He described how he was injured in the following terms:
“I was slowly injured over the course of the first few weeks at work as my bench was too low and I was in awkward positions welding. I was also lifting door frames on the bench turning them and bringing them back down.”
93In terms of the tasks he was performing when injured, he recorded:
“Welding, flipping frames, carrying frames.”
94I find that the relevant compensable circumstances were the repetitive nature of his duties with Spence Doors, and that relevantly they constitute the incident out of which the injuries to the plaintiff’s cervical spine and shoulders arose.
95I find that to the extent there were discrete injuries to the left and right shoulders, these may not be aggregated with his neck injury. The circumstances of this case do not enable me to make a finding, as have previous County Court judges, that the relevant body function is manual dexterity of the shoulders, and in any event the case was not advanced in this fashion.
96Whilst the medical evidence in general refers to neck and shoulder pain in a somewhat imprecise and collective sense, there is pathology demonstrating a discrete neck injury at C5/6 level, without radiculopathy, and I accept Mr Ho’s initial diagnosis of work-related symptomatic cervical disc lesion. I accept Mr Gresa Macpherson’s evidence as to the continuation of that pain. I consider the body function affected to be the neck, accepting Mr Gresa Macpherson’s evidence that pain radiates from that area into the shoulders. There is no evidence of bilateral shoulder injuries that could explain the plaintiff’s pain. It is likely that the shoulder area is symptomatic upon aggravation of the work-related neck injury with activity. In my view, it is the body function of the neck that is compromised.
97I am fortified in my conclusion having re-viewed the surveillance footage of the plaintiff, which depicts him moving carefully, but does not for example disclose any marked restriction in the range of motion of his shoulders in performing his duties as a welder on that particular day. Mr Gresa Macpherson frankly agreed in cross-examination that he was on that occasion able to move his neck freely, without restriction; and that he was observed working above shoulder height using both arms with his neck craned. He said that he used a specific welding technique of “Tyrannosaur hands” for most of the work captured on film, which he demonstrated in Court does not require his arms to be extended above his head in order to work above shoulder height. I accept that the plaintiff had to spend a significant amount of time recovering after this job due to pain,[42] and after similar work of that nature on other occasions if engaged in for extended periods.
[42]T63 – “you've got 30 minutes of me welding, you don't have the days and days that I was recovering after that.”
98Mr Gresa Macpherson also had full range of motion at the time of his examination by Dr Ho back in April 2015, who treated the shoulder pain as referred symptoms from the neck; and variable range of motion in his shoulders upon examination by Dr Slesenger from time to time.
99It is also significant that the plaintiff’s first physiotherapist, Mr Dalton in his report dated 15 April 2015 recorded that the neck symptoms were predominant, with symptoms through the neck and shoulder girdle.
100I note Ms Manova conceded that if the shoulder pain is referred from the neck, then the neck is the relevant body function.[43]
[43] T86
101It is the neck which prevents him from riding his motorcycle and surfing; and all of the consequences can in effect be attributed to the pain emanating from, and restriction in function of, his neck.
102The defendant also submitted that there was not a proper evidentiary basis to find that separate injuries to the cervical spine and to the left and right shoulders all arise from the same compensable circumstances.
103Having regard to my findings I do not need to decide this point. Whilst the case law indicates that multiple injuries sustained in the one incident or set of compensable circumstances may be aggregated if the one body function is affected, the existence or otherwise of multiple causes of action in the circumstances of Mr Gresa Macpherson’s employment was not fully argued before me.
104Georgopoulos establishes that the “injury” referred to in s134AB(1) and (2) is “the compensable injury in the sense of the total injury suffered in the relevant compensable circumstances”.[44]
[44] Ibid, 249–250 [82]
105In Jurukouski v Windsor Caravans Pty Ltd,[45] his Honour Judge Jordan stated as follows:
“50Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; (2000) 1 VR 511; (‘Lu’) concerning a shoulder and an elbow. Lu appears to allow permissible aggregation in certain circumstances involving the one cause of action from the one incident. Chernov AJ, as well as Buchanan AJ referred to such a situation. ((Supra) at paragraphs 4, 22, 23, 24, 27)
51For repetitive workers impaired over a period, there is no logical reason in industrial accident cases why ‘the one course of employment’ cannot be seen in this same context as one cause of action as it is when there is one single trauma or incident relied on. Both a single course of employment can cause two or more injuries, as can a single incident.”
[45][2015] VCC 1800
106If required to do so, I find that the injuries occurred by way of a gradual process over time and due to the nature of employment in which the worker was employed. On the basis of the evidence before me, the duties of the plaintiff as a welder/metal manufacturer at Spence Doors comprise a single set of compensable circumstances.
107On consideration of all the facts and weighing of cumulative factors, in my opinion, the seriousness of the consequences to Mr Gresa Macpherson overall are in the range of what is known as serious, and at least very considerable.
108No explanation was offered by Spence Doors as to why Mr Gresa Macpherson would restrict himself in his domestic, social and employment endeavours otherwise than if he was injured and suffering the various impairment consequences of which he complains.
109In particular, there are consequences of Mr Gresa Macpherson’s injury on his ability to pursue his chosen career path.
110Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[46] stated:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[47]
[46]Haden Engineering (Supra)
[47] (Ibid) at paragraph [15]
111Mr Macpherson’s tax returns for the period 2012 to 2021 were available. His current earnings are not inconsistent with less than full employment.
112Notwithstanding Dr Slesenger’s opinion as to his current capacity for full-time employment, the evidence as a whole, particularly the objective evidence of Mr Morrison and Ms Herban, satisfies me that the plaintiff does not have capacity to work full-time his pre-injury duties as a welder. Further, that by reason of his neck injury and associated symptoms, he is also unsuitable for full-time work in other industries in which he might reasonably be expected to find employment.
113I am satisfied, in particular by reference to his pain and restrictions in performing his day-to-day tasks at work which prevent him from working full-time, and necessitated his operating as a self-employed person where he can manage his symptoms and workflow accordingly, that the consequences of his injuries are more than marked in the context of his chosen profession.
114I also take into account Mr Gresa Macpherson is 33 years of age and will bear the consequences of his work injury – including not being able to engage in fulltime employment as a welder – for his working life. I find that, by reason of his age, his youth has increased the seriousness of his injury, and he will bear that injury and its consequences for the rest of his life.[48]
[48]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Hooley v Transport Accident Commission (2019) 90 MVR 407; [2019] VSCA 263
115I consider Mr Gresa Macpherson generally to be a stoic individual,[49] and this ought not be held against him. I do not view the consequences to Mr Gresa Macpherson as any less serious merely because he has managed to pursue his work as a welder, and continued to work to support himself. The evidence demonstrates that he has consistently applied himself in self-management of his injuries including remedial massage and exercise since being informed that there were no surgical options available to him.
[49] Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]
116The level of pain and suffering arising from the neck injury and its sequelae could be described fairly as being “more than significant or marked”, or “at least very considerable”, when compared with other cases in the range of possible impairments or losses of a body function.
Conclusion
117For the reasons set out above, I am satisfied that:
(a) Mr Gresa’s impairment is permanent; and
(b) he has a serious injury by reference to his pain and suffering.
118Accordingly, I grant him leave under s335 of the Act to bring common law proceedings to recover non-pecuniary loss damages for injuries he sustained arising out of or in the course of his employment with Spence Doors.
119I will hear the parties on the question of costs.
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