Madden v Victorian WorkCover Authority
[2024] VCC 1133
•31 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-06347
| LUKE MADDEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 June 2024 | |
DATE OF JUDGMENT: | 31 July 2024 | |
CASE MAY BE CITED AS: | Madden v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1133 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury of the spine – pecuniary loss consequences – pain and suffering consequences – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Petrovic v Victorian Workcover Authority [2018] VSCA 243; Church v Echuca Regional Health (2008) 20 VR 566; Richter v Driscoll (2016) 51 VR 95
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr P Johnstone | Maurice Blackburn |
| For the Defendant | Mr T Storey with Mr A Kleiman | Russell Kennedy |
HIS HONOUR:
Introduction
1This is an application for “serious injury” brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2Specifically, Mr Luke Madden (“the plaintiff”) claimed to have suffered a serious physical injury pursuant to s325(a) of the Act, by way of a “permanent serious impairment or loss of a body function” to the spine. He sought the leave of the Court to commence a common law proceeding for pain and suffering and pecuniary loss damages.
3The proceeding was conducted in the “usual manner”. The parties tendered relevant documents from court books. The plaintiff gave oral evidence and was cross-examined as to the contents of his affidavits and as to what he had told doctors. In addition, the defendant tendered, and played in court, covert video surveillance of the plaintiff.
4I have considered all the tendered evidence and the transcript of the plaintiff’s oral evidence but will refer to it only to the extent necessary.
5The legal issues are well-known and not in dispute. What is in dispute is whether the plaintiff had proven a “very considerable” pain and suffering consequence from the claimed injury of the spine, or whether he had established “very considerable” pecuniary loss consequences.
Credit
6Also in dispute is the credit of the plaintiff.
7In a civil proceeding, an acceptance of the evidence of the plaintiff is often critical to the success or otherwise of the proceeding.[1] As to whether the evidence is accepted, the credit of a person is often a relevant consideration. Frequently, credit is raised in a broad sense to refer to the reliability of that person’s evidence. Less often, credit is raised beyond the reliability of the evidence, but to challenge the honesty of the witness.
[1] Petrovic v Victorian Workcover Authority [2018] VSCA 243 (“Petrovic”)
8In this proceeding, the Court was left in no doubt that the defendant raised credit in the context of the honesty of the plaintiff as a relevant consideration. Counsel for the defendant said:
“To be clear…the defendant’s submission is not just that the plaintiff has exaggerated some aspects of his evidence, that is to the extent of his back pain and the consequences which he says flow from that, but that he has lied about it”.[2]
[2] Transcript (“T”) 72, Lines (“L”) 11-15
9As I shall come to, the credit attack was substantially based on what was disclosed by covert video surveillance as compared to what the plaintiff said in his affidavits and to doctors about his back condition and claimed impairment consequences.
10The defendant forcibly submitted that the plaintiff’s credit had been so badly impugned that the Court could not accept his evidence as to claimed impairment consequences and the application should be refused.
Background
11The plaintiff in this proceeding is a now 33-year-old single parent. He has a 14‑year-old son. He lives with his son and his own mother in a house in the western suburbs of Melbourne.
12The plaintiff was born and raised in New South Wales. He attended Year 10 at school. After leaving school he had a mix of unskilled, labouring-type employments; unemployment; drug addiction and difficulties associated with that. However, for several years the plaintiff has been on the right path; in particular, dedicated to raising his son and encouraging his sporting pursuits.
13In February 2019, the plaintiff recommenced a casual landscaping/labouring job with Mr Garry Gielens, who traded as Gardens Revisited Pty Ltd (“Gardens Revisited”), having worked with that company at an earlier time.
14The plaintiff claims that because of the heavy, repetitive, and manual nature of the job with Gardens Revisited he suffered injury to his back. In particular, he claimed to have suffered injury on or about 26 March 2021 after doing heavy work.
15For this proceeding, the defendant accepted that the plaintiff had suffered a soft-tissue strain to his low back with Gardens Revisited, and that a claim was accepted for that condition. But the defendant said that the issue now is the status of that condition and the extent of consequences that flow from it.[3]
[3] T 2, L 20-26
16After developing symptoms in his back, the plaintiff had conservative treatment, perhaps a short time off work, but otherwise continued working for Gardens Revisited through 2021 and into the early part of 2022.
17The plaintiff’s employment with Gardens Revisited came to an end when he was dismissed by a letter written by Mr Gielens dated 23 February 2022.[4]
[4] Plaintiff’s Court Book (“PCB”) 71
18Shortly after he was dismissed from Gardens Revisited, the plaintiff was riding a motorcycle (a dirt bike) at a track when he fell and fractured his right collarbone. It was an injury of some significance and required several surgical procedures. The collarbone bone injury was raised by the defendant to highlight that the plaintiff had maintained an active lifestyle until he broke his collarbone, which also raised an issue as to the true impairment consequences from any claimed back injury.
19Apart from a brief attempt driving trucks/utes in early 2024, the plaintiff has not worked since he finished up with Gardens Revisited. In his affidavits, he said he could not now return to any suitable work because of his back injury.
20The plaintiff has had conservative treatment for his back injury. That treatment has consisted mainly of general practitioner attendances and attendances for pain management. The plaintiff continues to take some medication for his back pain.
21The plaintiff’s case was opened on the basis that he had a background in heavy manual work and now because of his back injury there was no work for which he is generally suited.[5] Therefore, he claimed to be entitled to the leave of the Court to commence a proceeding for pecuniary loss damages.
[5] T 2, L 5-8
22In the alternative, he pointed to his claimed symptoms, conservative treatment and claimed impairment consequences as demonstrating a “serious” pain and suffering consequence.
23On the other hand, consistent with the credit attack, the defendant submitted that “after injury” the plaintiff retained a capacity for “suitable employment”. The defendant noted that, for the financial year ending 30 June 2020, the plaintiff had gross earnings of $43,987.00. It submitted that he had a capacity for several jobs it had identified, which would preclude him from satisfying the test for pecuniary loss “serious injury”.
24Next, the defendant pointed to the evidence of what the plaintiff has retained, in the setting of the video surveillance, and submitted that the plaintiff had not made out a “very considerable” pain and suffering consequence.
The plaintiff’s evidence
25Turning then to an analysis of the plaintiff’s evidence, commencing with his affidavits.
Affidavit evidence
26The plaintiff swore an affidavit on 5 July 2023,[6] in which he set out his background and history of employment with Gardens Revisited. He described the heavy nature of the work and the onset of lower back pain, including on or about 26 March 2021. He described how he had a short time off work after that date and sought conservative treatment with general practitioners and then at Advanced Healthcare. He described how he otherwise remained at work.
[6]PCB 6
27The plaintiff then set out how he was sacked on 23 February 2022 and the subsequent involvement of Nabenet. He then described the dirt bike accident in March 2022. He said he was going at about 50 kilometres an hour when that accident occurred and that he was riding his bike because of his physiotherapist’s suggestion that he get out and do things that he used to enjoy.[7]
[7]PCB 14 at paragraph [27]
28Regarding ongoing symptoms and the possibility of returning to work, the plaintiff said:
“I thought that I wanted to get some sort of supervisory landscaping work but Nabenet discouraged it. They wanted me to do retraining. They suggested a real estate course and a security course. I was happy to do the courses but I knew that I could not do those jobs because of my criminal record. They suggested a truck driving course. They will fund that. I will do it because having the ticket might make it easier to get a job. I do not think I could work as a truck driver because I cannot sit for long periods of time.
I can drive and I may be able to do some sort of work but I do not believe it would be on a full time basis. Maybe a few hours a day with rest days.
I have found it really difficult to cope with my injuries and try to do things to take my mind off my back pain and help with my mental state. I have tried drifting a few times. You are in a comfortable seat in a car for about 20 minutes at a time strapped in. It puts a lot of strain on my back and I feel it afterwards but I really enjoy it and my doctor has encouraged me to do it. I have tried it twice now. It helps with my mental state. I need to find something to do or I worry I will spiral out of control mentally.
I had ongoing problems from my broken right collarbone. I had more surgery on 8 March 2023. It was at Footscray Hospital. It seems to be healing pretty well. I will just have to see what happens.
…
I have back pain all the time. It is 24/7. I am never without pain. The pain is in my lower back and it radiates into my buttocks and tailbone. Sometimes it goes down the back of my legs to the ankle. The pain also spreads up my back. It is usually a strong pain. It feels like a bruise. From time to time, the pain in my lower back flares up and becomes even worse. It can flare up anytime. Usually, it flares up if I am bending or straining somehow. Even just bending over the sink to do dishes is enough to sometimes cause a flare up of low back pain. I get a flare up about three times a day on average. It lasts for about half an hour. About every couple of weeks or so, I get a very bad flare up. That can last for a few days.
Low back pain makes it difficult to fall asleep. I find myself struggling to get comfortable. Now, I use pillows to get myself in a posture to make myself comfortable enough to fall asleep.
Even as my collarbone and right shoulder gets better, I am not going to get back to dirt bike riding again. It is just too hard. I tried to get back to it because my physiotherapist suggested it and because of my son. I do not want to do it anymore because of the low back pain. I am trying to sell my dirt bike. I miss being able to spend time riding with my son. He is 13 now and a good footballer and basketballer. I cannot enjoy kicking the football or playing basketball with him. I would love to but I just cannot because of low back pain.
I still see Dr. Choo sometimes. He prescribes Sertraline for my mood. He also prescribes Meloxicam and Panadol Osteo for low back pain. I still go to the pain management program at Advance Health Care about once a month. They provide Certificates of Capacity. I do a home exercise program provided by the physiotherapist.
As a result of the injury to my lower back I cannot work. I am still receiving weekly payments of compensation because of that injury. As a result of the injury to my lower back, I could not go back to any of the kinds of work I have done in the past. As a result of my lack of education and qualifications, I could only ever get low paid work. I am not an office person. I am a hands on person. I cannot work as a labourer, welder or landscaper because of my back injury. I am restricted from many jobs because of my criminal history. I cannot sit for too long without getting a flare up of pain so I cannot drive a truck or a forklift. I cannot bend too much. I cannot stand in one place for too long. I do not know what I can do.”[8]
[8]PCB 15-17 at paragraphs [28]-[36]
29Next, in a supplementary affidavit sworn 5 June 2024,[9] the plaintiff described how he had constant back pain, at times radiating into the legs, predominantly on the left side. He set out how his back pain can flare up at any time and usually happens if he is bending or straining somehow. He said he could:
“… still bend and move pretty well but it is just sometimes bending or straining can make the pain flare up. I still find that even just bending over the sink to help with the dishes is enough to sometimes cause a flare up of low back pain.”[10]
[9]PCB 18
[10]PCB 19 at paragraph [1]
30The plaintiff described difficulty with sleep, sitting, driving and walking.
31Regarding work, in his supplementary affidavit, the plaintiff said:
“As a result of the injury to my back, I cannot go back to the kind of work I was doing as a landscape labourer. It would just be too heavy and involve too much hard work. I could not do the work of a welder either. That was heavy work and involved being bent over for long periods of time. As a result of the injury to my back, I received weekly payments of compensation until 4 November 2023. After that, I lived off my savings. Recently I started on Centrelink benefits.
I have tried to find work. I was looking for truck driving and stores work. WorkCover sent me to Nabenet. Nabenet was getting me to go for those kinds of jobs. Nabenet was not really helpful in actually finding me a job but they helped me get a truck licence. I found work myself at a welding supply company in Brooklyn. I was employed as a truck driver on a heavy rigid truck. Every couple of days, I drove their tray-back HiLux ute instead. It was full time hours but I was employed as a casual, through an employment agency. Even though I was employed as a driver, there was still quite a bit of heavy lifting. Sitting in the truck was not too bad because I was required to stop and get out of the truck pretty regularly. I was glad to be out of the house and actually working again. Also, I was not on the road all day. I spent about half the day in the warehouse. I picked orders and put them into packages. This employment would aggravate my low back pain. On one occasion, they asked me to lift a large gas bottle on the back of the ute and I was not just not able to do it. It was too large and heavy for me. I was sacked the next day. I started that work on about 19 February 2024 and finished about two weeks later. I have not worked since.
I went to Centrelink. They sent me to an employment service. The employment service asked for a report from my general practitioner. As a result of that report, I understand the employment service stopped helping me look for work. I wanted to work but I do not have the skills or experience to do anything other than manual work. I have looked for work but employers are just not interested in me. I have a back injury and the kinds of jobs that are available to me all require too much bending and lifting.
I understand that some of the doctors I’ve been sent to as a result of this case have suggested I can return to some kinds of alternative work. None of those jobs sound like they would be suitable for me given my back injury. Some of the jobs are just way out of my league.
I understand that it has been suggested that I can be a trade scheduler/maintenance planner. I do not even really know what that job is. I understand that it pays about $2,419.00 per week. I have never earned that kind of money in any of the employments I have every done. I did not complete high school. I did not complete my trade. I have had the details of that job explained to me. I would not be able to develop a schedule or plan a strategy for maintenance. I do not even really understand what that means. I am just a worker. This job sounds well out of my range. I would not have been able to get this job even before I was injured.
I understand that it has been suggested that I could work as a product assembler. I understand that the doctors in this case do not recommend that job anymore. I do not think I could stand and assemble products all day. I do not think that I’d be able to maintain a constant bent posture over a work bench. I do not think I could reliably lift, carry and handle boxes of parts of boxes of completed products.
I understand it has been suggested that I could be a trade sales assistant. Just standing there and serving customers would be okay if I could stand and sit as I needed. I could not lift, carry and handle trade supplies. I understand that the example given is of Reece Plumbing. I could not safely lift, carry and handle plumbing supplies for tradesmen like sinks, basins, toilet bowls, shower bases, large boxes of plumbing fixtures or boxes of tiles. The same would go for other trade suppliers like Bunnings. Tradesmen often require supplies in large quantities like boxes of tiles, rolls of wire, rolls or tubing, lengths of timber or bags of cement. I am just not capable of that sort of manual work anymore.
I understand it has been suggested that I could work as a hire controller. I understand that would be like working for Kennards Hire. I think I know what they do. They hire building construction equipment like jackhammers, ladders, diggers, bobcats, whackers and things like that. I could not lift, carry and handle large items like that. If someone goes to Kennards, they can’t just walk around and take what they like. The workers there have to put the equipment away and move it around. They also have to bring it out to the customer. I could not do that. I tried just lifting a gas bottle onto a ute earlier this year and I was just not able to do it.
It has been suggested that I could be a great real estate agent. I actually mentioned that in passing when I was talking to Nabenet. I know that real estate agents can earn a lot of money. Their job doesn’t look that hard. They wear nice clothes and drive expensive cars. Of course I would like job like that but it is just not realistic. I have never worked in any sort of professional environment. I only own one suit. I am not even that good at talking to people. I have no experience in sales or in real estate. I also suggested that I could be a security guard because they do not seem to do anything. They seem to just stand outside the shops and walk around. I understand that real estate and security would not be open to me because of my criminal record.
I am disappointed that I am unable to find work anymore. I am trying to get my life back together. I really wanted to look after my son and set a better example for him. I still live at my mum’s place with my son.”[11]
(sic)
[11]PCB 20-24, paragraphs [5]-[14]
32Regarding ongoing consequences, the plaintiff said he had stopped riding his motorcycle. He said he used to enjoy going fishing and he had owned a boat since about 2015. He said that:
“… Before I hurt my back, I used to go fishing about three times a week. I took my boat and launched it at Altona. I fished between Williamstown and Point cook. Since the injury, I have still tried to take my boat out. At first, it was about once every three weeks. I have had heaps of time to go fishing but it is just too uncomfortable to sit in the boat on the bay. I used to go three times a week and now since my injury I am lucky if I go once every 2-3 months which makes me really sad. I reckon Ive been twice in the last year and even that was a struggle. It breaks my heart losing a passion like fishing. I loved it. I cannot bear to sell it either. … .”[12]
(sic)
[12]PCB 24 at paragraph [15]
33The plaintiff then set out how he had difficulty playing kick to kick with his son. He said that was something they used to do for hours before he was injured and he loved it.[13]
[13]Ibid
34The plaintiff then provided further evidence about his involvement in “drifting”. He said:
“Since about the end of 2022, I tried ‘drifting’. It is a kind of car racing. It is at Calder Park raceway. I have been about five times. My Dad flies down from Newcastle and we do it together. I have done it about five times. It involves racing for around three to four laps and then going back into the pits. My dad changes the tyres. It leaves me with increased back pain afterwards but it is worth it.”[14]
[14]PCB 25 at paragraph [16]
35Regarding treatment, the plaintiff said:
“I still see my general practitioner. It is about every month or two. I tried going off medication for a while. I was basically just taking Panadol and Nurofen. I was sick of taking so many tablets. I was not sure they were actually helping me. I had substance abuse and addiction problems in the past. I felt bad about taking so many pills for a long time. After reducing my medication for a while, I went back and got prescriptions again. I realised that I really need to keep the pain levels down a bit. I am now prescribed Duloxetine and Naprosyn. I also take Panadol Osteo. I stopped seeing the pain management people at Advance Health Care and about three months ago. I was not really getting anywhere with them. Basically, I was just doing a home exercise program. I kept aggravating my back injury while doing those exercises. Recently, my GP referred me to another pain management specialist. I am waiting for an appointment with her.”[15]
[15]PCB 25 at paragraph [17]
Oral evidence
36The plaintiff was then cross-examined about the content of his affidavits. He was cross-examined about the fact he only had four days off work following the onset of back symptoms on 26 March 2021. He agreed he went back performing his usual landscaping duties. He said he was unhappy with the perceived lack of support from his employer after he hurt his back, but he continued to turn up to do the job.[16]
[16]T 8, L 9-13
37He was cross-examined about incidents in 2021, when he hurt his left ankle while riding a bike and walking his dog, and a different incident when he injured his left hand playing football with his son. He accepted he had time off after those incidents.
38The plaintiff was then cross-examined about the dirt bike incident and fracturing his collarbone. He said that activity was something he had done regularly prior to injuring his collarbone about “[o]nce every second week”.[17] He said he would go with his son and that was something he had done for several years. He said he commenced that in 2015, which was the year he bought his boat and the year his motorbike was brought down from New South Wales.
[17]T 10, L 25
39Regarding the dirt bike accident, he accepted it was a fairly serious crash. He was taken by ambulance to hospital and required surgery and then a further surgery about a year later.[18]
[18]T 11
40Dealing then with his back pain, he said his affidavit evidence was true where he had described back pain all the time, 24/7.[19] He said he continued to get flare-ups and would get a flare-up if he tried something heavy or strenuous but could even get a flare-up if he did something light and innocuous. He said his example in his affidavit of washing the dishes was something that could provoke severe back pain.[20]
[19]T 12, L 12
[20]T 12, L 16-27
41The plaintiff was cross-examined about the need to avoid bending wherever possible. He said he would avoid that sort of movement wherever he could.[21]
[21]T 13, L 17-22
42Returning to dirt bike riding, he accepted that he probably will not ride again, even when his right collarbone is fully healed. But he accepted that he continued riding after his employment was terminated with Gardens Revisited.
43The plaintiff was then asked whether his back condition had got a lot worse since the motorcycle crash. He said it had not. It was then put to him that if his collarbone was as good as new, he would have gone back to riding his bike, to which he replied, “[i]t’s just not worth it … I am in pain every day”.[22] He said it was one of his goals to return to ride the bike, but in the end it was just not worth it.[23]
[22]T 14, L 21-24
[23]T 14, L 25-31
44The plaintiff was then cross-examined about activities such as football and basketball and being active with his son. He said those activities could cause a flare-up. He still does some basketball with his son but said he did not really do much with the football. He said he got enjoyment from following his son around and watching his sporting activities.
45The plaintiff was then cross-examined about his evidence that he could not work. He was asked whether his back condition ruled him out of any kind of work and he said, “to an extent”. He elaborated on that by explaining that he did two weeks at work at the start of this year, which he managed to get through with excruciating pain. He was driving a heavy rigid truck some days and, on other days, driving a ute. He said the driving caused excruciating pain. He was then asked:
Q:“Whether it's in the ute or in the truck, it was the same when you were working, was it?---
A:Yes, you are in pain all day and you end up just swearing at yourself, you are not happy. It's just another road to depression, honestly.
Q:Sorry if this is repeating an earlier question but the problem with sitting in either a truck or a ute, you made it clear that that was the case in July 2023. Does it remain the case today, as at June 2024?---
A:Yes.
Q:Do you have difficulty standing?---
A:Yes, I do.
Q:For either short periods or long periods?---
A:Yes.
Q:Difficulty sitting?---
A:Yes.
Q:Outside of a vehicle, I mean?---
A:Yes. Just in general, yes.
Q:Your second affidavit was sworn on 5 June this year, so just a few weeks ago. That begins at p.18. At paragraph 1 you say: ‘I continue to have back pain all the time. It's still 24/7. I am never without pain.’ That's true?---
A:Yes.”[24]
[24]T 16, L 27 – T 17, L 13
46There was then further cross-examination about the range of restrictions that the plaintiff had set out in his affidavit material and to doctors, leading up to cross-examination about his pastime of drifting a car. He explained he did that at Calder Park raceway and had owned a car for that purpose for about a year and a half. It had bucket seats and a harness, and a cage. It was set up for drifting and he would take extra tyres to the track. Sometimes, he races someone else.[25] He takes the car on a trailer to and from Calder Park. He explained that his dad flies down from New South Wales and helps him fit the tyres and he basically just jumps in and drives. About two or three months ago, he had also been to Winton Raceway with his father and driven his car there.
[25]T 20
47It was put to the plaintiff that drifting was a fairly extravagant recreational activity, which he accepted. He also accepted that it was a lot more vigorous than doing the dishes at home.[26]
[26]T 23, L 1
48The plaintiff was then cross-examined about riding a BMX bike. He said he could ride a push bike, but just not like he used to.[27] He said he and his son would ride every afternoon throughout his employment with Gardens Revisited, including at a BMX track. He was then cross-examined about a clinical note from Advanced Healthcare dated 17 January 2022, which read he was enjoying time outdoors with his son and that they visit BMX yard almost every day. The plaintiff said he would disagree with that. He said riding at the track had stopped by then, but it was more riding around Cherry Lake with the dog by that stage.[28]
[27]T 23, L 10-11
[28]T24, L14-18
49It was then put to the plaintiff as follows:
Q:“Is your evidence that the BMX bike riding was too hard and painful and difficult for you but the dirt bike riding wasn't?---
A: I'm not sure how to answer that.”[29]
[29]T25, L28-30
50The plaintiff was then cross-examined about owning a boat. The content of his affidavits was put to him about that. He said his affidavits were true. He said it was correct that he had been out on the boat roughly twice between the period June 2023 and June 2024.[30] He explained how hitching the trailer and launching the boat, and sitting in it on the water, were all difficult.
[30]T27, L1-5
Video surveillance
51At this point in the cross-examination, the defendant tendered and played covert video surveillance of the plaintiff. The video surveillance spanned the period from 10 July 2021 through until 21 May 2024.[31] By agreement, a video surveillance log was provided that is evidence the defendant had the plaintiff under surveillance on twenty-eight separate days for a total of ninety-six hours and twenty-eight minutes.[32]
[31]Exhibit D1
[32]Exhibit P2
52Pausing here, I am conscious that video surveillance must be assessed both in time and context. It is relevant, not only what the video surveillance depicts, but what the plaintiff says about it and whether the surveillance has been provided to doctors for comment.[33]
[33]Church v Echuca Regional Health (2008) 20 VR 566
53The video surveillance showed that the plaintiff was able to launch his boat and go fishing, even if that was mostly done with a friend. He was seen driving his ute, towing the boat, launching it and retrieving it from the water. He was shown to stand to clean a catch of fish or squid. He was shown to do ordinary activities, such as shopping and carrying a slab of beer. He was shown to drive his car as needed, including to tow a trailer loaded with tyres, associated with his hobby of drifting. He was also shown to stand in the wind and rain to watch his son play a football match and to, at times, jog slowly to retrieve the ball and kick it back into the field of play.
54The cross-examination about the video surveillance sought to highlight several things. First, the plaintiff was seen to engage in a range of activity and hobbies that were demonstrably heavier than washing the dishes, yet at no time did he display any obvious signs of pain or restrict what he was doing. Second, he was observed fishing on several occasions, which was inconsistent with what he said in his affidavits and with the fact that he had not really mentioned his hobby of fishing to medico-legal examiners.
55In fact, during cross-examination, the plaintiff accepted that any assertion that he had only been fishing four times since the start of 2021 was simply not true, and that assertions that he could not sit in the boat or cast a fishing rod were also not true.[34] The plaintiff accepted that during snapper season he would fish as much as he could, which is in the period September – November.[35]
[34] T 47
[35] T 48, L 12-15
Submissions regarding the video surveillance
56As mentioned, the defendant made no secret that it considered that the video surveillance, in the context of what the plaintiff had (or had not) said in his affidavits and to the doctors about his claimed impairment consequences, destroyed the plaintiff’s credit. Counsel for the defendant submitted that, when the plaintiff adopted and then confirmed his affidavits as accurate, “these are lies given under oath in court. There is just no other way to interpret that evidence, in my submission, and the film tells the story”.[36]
[36] T 76, L 10-15
57On the other hand, senior counsel for the plaintiff submitted that the Court should accept the plaintiff as man who clearly endures discomfort. The video of him fishing included a time when he was still working as a landscaper. In broader terms, the video showed a person doing what they chose to do, when they chose to do it, in circumstances of his choosing. Overall, the plaintiff in his evidence had sworn up to a considerable level of activity and even if he did not mention fishing in his first affidavit, there was nothing inconsistent about his evidence that he was still active but suffers considerable pain from doing those activities.[37]
[37] T 84, L 11-25
Conclusions regarding the video surveillance
58In his evidence, the plaintiff painted a picture of constant, disabling back pain, such that ordinary daily activity was impacted by flare-ups of pain, and other pleasurable activity, such as fishing, was restricted.
59However, my assessment is that the plaintiff was shown in the video surveillance to engage in ordinary daily activity, including at least moderately heavy activity such as launching his boat, without any obvious sign or restriction. Further, he did not really try and suggest that the video was obtained on good days. Therefore, the overall impression from the video must be that it fairly showed the sort of daily activity that the plaintiff is able to do, when he wishes.
60The way the parties presented this case leaves the Court with no alternative other than to make a positive finding as to whether the plaintiff had been dishonest when describing his impairment consequences in his affidavits and to the doctors.
61Accordingly, I prefer the submissions of the defendant. I do not accept the submission on his behalf that the video supports a conclusion that the plaintiff is a stoic, battling on as best he can despite considerable pain. In fact, the video suggests he does not battle at all to do daily activity, including manual activity.
62The video should also be considered in context of some of the plaintiff’s other hobbies, such as “drifting”. He is not a man who is sitting at home. Rather, he is still able to enjoy hobbies and an active lifestyle, such as boating, fishing, and “drifting”.
The plaintiff’s credit was impugned
63Therefore, I conclude that the plaintiff’s description of constant and unremitting pain is one that cannot be accepted.
64The plaintiff’s credit has been impugned. He still leads an active social and recreational life. He has no active treatment, other than limited ongoing conservative treatment. On my assessment, he has the capacity to undertake at least light, manual employment, consistent with the level of physical activity he was seen to do on the video.
65It is tempting to stop here and say no more other than where his evidence of impairment and impairment consequences has been shown to be false, then he has failed to discharge his evidentiary onus to prove a “very considerable’ consequence, either from pain and suffering or pecuniary loss.
Medical evidence
66However, instead of stopping here, as I am required to consider the whole of the evidence, I shall next proceed to consider the medical evidence.
67But an assessment of the medical evidence must be considered in the context of the conclusion that the plaintiff’s credit had been impugned. Therefore, his subjective complaints of pain and impairment cannot be relied on in the absence of objective evidence to support such complaints. Accordingly, where medical practitioners have proceeded to express opinions based on subjective complaints and an unreliable history will limit the weight to be attached to such opinions.
Treating health practitioners
68I shall commence an analysis of the medical evidence with a discussion of treating practitioners, before moving to the medico-legal evidence. But, at the outset, overall, the medical evidence in this proceeding is relatively limited.
Junze Chen
69Ms Junze Chen is a physiotherapist with Advance Healthcare. She provided several reports regarding the plaintiff.
70In a report dated 2 October 2023,[38] Ms Chen said she first saw the plaintiff on 16 November 2021 as part of a multidisciplinary assessment. She said the diagnosis was a dominant pain type of neuropathic pain. She said the pain generator was likely the L5-S1 disc protrusion and annular tear in the lumbar spine region and, overall, the plaintiff had discogenic lumbar spine pain.
[38]PCB 38
71Ms Chen described the plaintiff as having been highly engaging in the network pain management program which he had completed at Advance Healthcare in Hoppers Crossing. She said he had gained some improvements in function but had reached a ceiling and was then continuing to see her once a month for physiotherapy review.
72Regarding capacity for work, Ms Chen said that, in her clinical opinion, he had a capacity for suitable duties two-three days, four-six hours to begin with, referred to retraining and said that a transferable skills analysis meeting might be needed. She said the prognosis of his residual pain and mild-moderate level dysfunction is poor and likely be ongoing with occasional flare-ups.[39]
[39]PCB 39
73Next, in a report dated 11 February 2023,[40] Ms Chen essentially repeated her early report when she set out her ongoing diagnosis, treatment and opinions. She said the plaintiff was then unable to return to his pre-injury duties and hours now and in the foreseeable future. She said the prognosis of his residual pain and mild-moderate level dysfunction was poor and likely ongoing with occasional flare-ups. She said he would need ongoing general practitioner review, anti-inflammatory agents for flare-up, together with ongoing physiotherapy and a gym membership or home exercise program.[41]
[40]PCB 34
[41]PCB 36
74Then, in her recent and final report of 11 April 2024, which again bore a remarkable similarity to her earlier reports, Ms Chen again set out the clinical history. She said he was then able to work with very narrowed restriction on time and duties. However, he was unable to return to his pre-injury hours and duties. She repeated her opinion that the prognosis for residual pain and mild-moderate level dysfunction was poor, and that there likely would be ongoing flare-ups. She said he would require new employment service and/or retraining led by an experienced occupational rehabilitation provider to locate a suitable course followed by sourcing sustainable employment.[42]
[42]PCB 30
75It is difficult to discern from Ms Chen’s reports exactly what history of ongoing symptoms she had obtained from the plaintiff. Her reports, in many respects, are essentially the same, despite the different dates on them. She refers to the plaintiff undergoing a six-month follow-up review on 21 December 2022. It is unclear from her reports whether she saw the plaintiff after that date. Although, given his evidence about ongoing physiotherapy, that seems likely. In any event, there is no real discussion of the plaintiff’s symptoms or of any history given to her after that date.
76The copy-paste approach to Ms Chen’s reports does not assist in an understanding of what history of symptoms she worked from. There is little or no evidence of treatment after 21 December 2022. It is impossible to know if she was aware of activity such as fishing and “drifting”, or of the relatively recent attempt at driving vehicles for work. These issues could have been ones to which she was clearly directed, but as her evidence stands it is of little assistance for an understanding of whether the plaintiff currently has a “very considerable” impairment consequence.
Dr Choo-Yin Yek
77Dr Yek is a general practitioner with the Pier Street Medical Centre. Dr Yek provided two reports regarding the plaintiff in his capacity as the treating general practitioner. His reports go beyond copy-paste, to one of replication, save for the dates of the reports.
78In a report dated 5 June 2023,[43] Dr Yek set out the plaintiff’s first attendance at his clinic on 26 March 2021 with significant lower back pain and spasms. Dr Yek then set out the history of treatment thereafter. He said the plaintiff continued to have persisting back pain. He diagnosed lumbar back pain secondary to L5-S1 small disc protrusion, said that treatment included rest, analgesia, physiotherapy and a gym exercise program. He mentioned the plaintiff’s involvement in the pain management program. He said at that time the plaintiff was unable to perform his pre-injury duties, but ongoing work assessments would be helpful in determining capacity for future return to work plans. He said the plaintiff may be able to return to light or office duties with further rehabilitation and training.[44]
[43]PCB 45
[44]PCB 46
79Then, in a second report dated 14 May 2024, Dr Yek reproduced his earlier report of 5 June 2023, save for the change in date. It is difficult to understand how that occurred in the discharge of the expert witness requirements. It is unhelpful to say the least.
80The most recent report from Dr Yek does not provide objective evidence that I can rely on for an assessment of the plaintiff’s current symptoms and restrictions, where it is a carbon copy of the report he provided approximately 11 months earlier. Suffice to say, there is a limitation to the weight that can be attached to Dr Yek’s reports in those circumstances.
81The plaintiff tendered a one-page Centrelink medical certificate from Dr Yek dated 2 May 2024.[45] That certificate referred to lumbar back pain secondary to L5-S1 small disc protrusion. In respect to a pro forma question about capacity to work, study or participate in activities, Dr Yek had completed that section to indicate the plaintiff had an incapacity from 2 May until 1 August 2024. He had also ticked a box to say that the plaintiff could not work, study or participate in activities of eight or more hours per week.
[45]PCB 47
82I attach little weight to the evidence in Dr Yek’s medical certificate in circumstances where his reports are unsatisfactory. Further, it is unclear whether the dates given on that certificate indicate that Dr Yek expects the plaintiff to be fit to do more than eight hours of work, study or of participation in activities after 1 August 2024. I consider that the medical certificate is relevant evidence but does not fill in the gaps caused by the unsatisfactory nature of Dr Yek’s reports. It does not provide any relevant evidence of matters of history of clinical examination, to understand the boxes that Dr Yek had ticked or completed on the certificate.
Plaintiff’s medico-legal evidence
Dr Eman Awad
83Dr Awad is a consultant occupational medicine physician who examined the plaintiff for medico-legal purposes at the request of his solicitors.
84In a report dated 30 April 2024,[46] Dr Awad took a history of key employment information and of the presenting complaint. Then, in respect to current symptoms, he recorded the plaintiff as having constant back pain with a severity score between 5-8/10. He also recorded descriptions of symptoms in the left leg radiating down to the ankle.
[46]PCB 48
85In respect to “function post-injury”, Dr Awad said the plaintiff’s tolerances are sit for 30 minutes, walk for 30 minutes, stand for 15 minutes, drive for 30 minutes. He had a history that the plaintiff struggled with domestic chores, was able to go shopping, but could only carry light bags.
86Next, Dr Awad took a history that the plaintiff’s hobbies included fishing, fixing cars, dirt bike riding and drifting. He recorded the plaintiff telling him that he struggled with his hobbies.[47]
[47]PCB 50
87Dr Awad diagnosed aggravation of lumbar spondylosis.
88Dr Awad then said the plaintiff had no capacity for pre-injury duties. He said the plaintiff should permanently be restricted from undertaking any roles that required him to push, pull, lift, carry above 10 kilograms, climb, walk on uneven ground or exposure to whole body vibration for the foreseeable future.
89Dr Awad said that, considering the plaintiff’s age, the nature of his injury and his ongoing symptoms, together with the level of his education and qualifications and his occupational history, in his opinion the plaintiff had a residual capacity for a sedentary role undertaking 20 hours per week to allow his recovery days.[48]
[48]PCB 51
90Dr Awad then commented upon vocational reports and an opinion from Dr Clayton Thomas. He did not recommend a role as a trade scheduler/maintenance planner, trade sales assistant or customer service representative. He said the plaintiff had the capacity to undertake a role as a hirer controller for up to 20 hours per week but the plaintiff was unlikely to be reliable. He noted the plaintiff had no qualification to work as a real estate agent.[49]
[49]PCB 52
91Based on the history presented to him, Dr Awad did not write the plaintiff off for “suitable employment”. I also note that Dr Awad’s history included the plaintiff struggling with his hobbies, which is contrary to the view I have formed about what was shown by the video surveillance.
Dr Hazem Akil
92Dr Akil is a consultant neurosurgeon who examined the plaintiff and provided a report at the request of his solicitors.
93In a report dated 7 March 2024,[50] Dr Akil took a history of the plaintiff’s back injury and subsequent events, including the attempt to return to work in early 2024. He obtained a history of current symptoms as follows:
“1.He continues to have persistent lower back pain. The lower back pain is more prominent on the left side compared to the right but he can get it on the right side and the middle. He feels the pain all the time and can be further aggravated on bending or on physical activities. Sitting or standing longer than 30 minutes can aggravate the pain further.
2.He experienced radiation of the pain towards his left leg that involves his hamstring and the calf region and can go all the way to the foot. This is a daily occurrence. He particularly feels it when he sits or stands for prolonged period. It is however not a constant feature.”[51]
[50]PCB 54
[51]PCB 55
94On examination, Dr Akil found a normal range of forward flexion of the lumbar spine but the extension, although possible to about 10 degrees, was associated with worsening of pain. There was no motor deficit affecting the lower limbs.
95Dr Akil then noted MRI scans of July 2021 and February 2022. He then diagnosed an aggravation of lumbar spondylosis and said the type of work described was a significant contributing factor.
96Regarding work capacity, Dr Akil said it would prevent the plaintiff from returning to his pre-injury duties “at least in the foreseeable future”. He said in theory the plaintiff could do a less physical job when he can alternate between sitting and standing, before noting the plaintiff’s limited educational levels.
97Regarding the impact on the plaintiff’s life, Dr Akil recorded the plaintiff as being stopped from playing sports with his son, had been unable to resume bike riding, and even walking the dog was difficult. He noted that the plaintiff had difficulty with sleep, rarely did any work at home, and was now unable to cook for his mother and son.
98Regarding restrictions for work, Dr Akil said:
“The main restrictions are lifting objects heavier than 10 kilograms or repetitive lifting, pushing and pulling or repetitive pushing and pulling, bending or repetitive bending, fine manipulation of his spine or being in an awkward position for a prolonged period, sitting or standing longer than 30 minutes. In my opinion, these restrictions will continue for the foreseeable future.”[52]
[52]PCB 57
99Dr Akil then said the plaintiff was unable to return on full-time unrestricted duties to his pre-injury job.
100Based on the subjective complaints presented to him, Dr Akil effectively said the plaintiff had a capacity for light work. In that regard, I consider that the subjective complaints given to Dr Akil are inconsistent with the objective evidence of the video surveillance.
Defendant’s medico-legal evidence
Dr Umberto Boffa
101Dr Boffa is an occupational and environmental physician who examined the plaintiff and provided a report dated 29 July 2021.[53] It is of limited assistance to the issues in this proceeding, save that he diagnosed discogenic low back pain without radiculopathy and said the plaintiff could return to his pre-injury hours but not his pre-injury duties.[54]
[53]Defendant’s Court Book (“DCB”) 24
[54]DCB 25-26
Dr Michael Baynes
102Dr Baynes is an occupational physician who provided a report dated 10 March 2022. Dr Baynes diagnosed a chronic pain syndrome associated with chronic lower back pain associated with a small L5-S1 disc protrusion and annular tear. Dr Baynes said the plaintiff was unfit to undertake pre-injury duties, and that was unlikely in the foreseeable future to change.
103Dr Baynes said the plaintiff was fit for alternative duties with a lifting restriction and modification. He opined the plaintiff as fit to return to work 20 hours per week with a progressive increase to full-time hours “with work hardening”.[55]
[55]DCB 30
104Finally, Dr Baynes said that several employment options, including trader scheduler, maintenance planner, product assembler, trade sales assistant, hirer controller and customer service representative would be appropriate.
Dr Clayton Thomas
105Dr Thomas is a consultant in rehabilitation and pain medicine who provided a report dated 26 March 2023.[56]
[56]DCB 32
106Dr Thomas took a history of the injury and the plaintiff’s then complaints and symptoms. Dr Thomas recorded the plaintiff describing a dull ache in the lower lumbar spine region, normally sitting at 4-5/10, but at the time of his examination at approximately 6/10. Dr Thomas recorded a history of occasional pain in his left or right leg and that if the plaintiff overdoes his back condition, he gets a flare-up of back pain.[57]
[57]DCB 33
107In respect to limitations on activities, Dr Thomas recorded sitting was generally comfortable at about 20 minutes. Apparently, the plaintiff said he could go beyond those limits but it becomes more irritable. Dr Thomas recorded the plaintiff as saying he could push a shopping trolley but had to make sure it was light, as it also aggravated his pain. Walking was recorded at about 20 minutes before taking a rest.
108Dr Thomas said the plaintiff had non-specific lower back ache with probable central sensitisation. He described treatment to that point as appropriate and said the challenge was for the plaintiff to find work within his physical capacity. He said the plaintiff effectively needed to find work “that is back friendly”.[58]
[58]DCB 34
109Dr Thomas said the plaintiff could not return to unrestricted labouring-type activities but he could return to pre-injury work hours. He said work would need to be back friendly, with the option of altering his posture and with lifting, twisting and bending restrictions. He said the plaintiff did have a capacity for suitable employment.
110Next, Dr Thomas said as follows:
“I note the vocational assessment report dated 25 November 2022. I note suitable employment options listed.
1. Trade scheduler/maintenance planner. This is within the limitations I placed on him and therefore appropriate for him.
2. Product assembler: This would have to be a position in which he could alter his posture frequently. He could not be in a standing position for prolonged periods of time. Lifting would have to be within my limitations outlined. Overall this is unlikely to comply with my limitations.
3. Trade sales assistant. Depending on the product being sold this would be possible for him.
4. Hire controller. This is within the limitations I placed on him and therefore appropriate for him.
5. Real estate agent. This is within the limitations I placed on him and therefore appropriate for him.”[59]
[59]DCB 35
Dr Ian Dickinson
111Dr Dickinson is a consultant orthopaedic surgeon who examined the plaintiff and provided a report dated 13 September 2023.[60]
[60]DCB 47
112Dr Dickinson took a history of the injury, treatment and current symptoms. Regarding current symptoms, he recorded the plaintiff saying that he had pain in the lumbar flanks in the mid-lumbar region, exacerbated by any lifting, twisting or turning.
113Dr Dickinson took a history that the plaintiff had a 4.5 metre boat but that he had only been out four times in the last two and a half years. Dr Dickinson recorded the plaintiff saying it was uncomfortable with the waves and he could not stand and do things such as casting with the rod.[61] He also had a history of the plaintiff driving and doing drifting.[62]
[61]DCB 50
[62]DCB 51
114Dr Dickinson then reviewed various documents before expressing his opinion and reasons. He then said the plaintiff was in good physical condition with no significant restriction of his lumbar spine and no significant clinical findings. He said that, in his opinion, the plaintiff felt restricted by symptoms but he thought there was no evidence these symptoms would restrict the plaintiff and cause any significant degree of disability.[63]
[63]DCB 56
115Dr Dickinson then went on to say there was no physical organic condition to explain the plaintiff’s symptoms. He said the plaintiff had degenerative change at the lumbosacral junction which did not cause the symptoms of which he complained.[64]
[64]DCB 58
116Regarding examination findings, Dr Dickinson said the plaintiff walked normally, including on tip toes and heels, and could squat readily. He said there was no tenderness, muscle spasm or guarding in the lumbar spine, and a full comfortable range of motion. He then expressed the opinion that the plaintiff’s physical condition is currently good.[65]
[65]DCB 59
117Dr Dickinson said the symptoms of which the plaintiff complained were due to non-organic psychologically based conditions.[66]
[66]DCB 61
118Next, Dr Dickinson said the plaintiff was capable of suitable employment on a full-time basis. He said the plaintiff could return to his pre-injury duties.[67]
[67]DCB 62
Dr Mary Wyatt
119Dr Wyatt is an occupational physician who examined the plaintiff and provided a report dated 3 October 2023.[68]
[68]DCB 68
120She also obtained a history of the plaintiff’s condition, current state and symptoms. She recorded the plaintiff saying he was generally sore across the low back with some radiation into the back of the left leg at times. She recorded the pain as worse with bending and activity, and that picking up something from the ground was problematic for him. Cooking and cleaning was too hard on his back and he avoided those activities. She recorded the plaintiff as saying that during the day he will do little, basically sitting around and waiting for his son to get home from school.[69]
[69]DCB 70
121On physical examination, Dr Wyatt said the plaintiff demonstrated mildly reduced movement of his back.[70]
[70]DCB 71
122Dr Wyatt then said that the plaintiff’s MRI of the lumbar spine was essentially normal. She then said the plaintiff reported back pain which limited what he did, and she felt the nature of the back problem would plausibly cause some difficulties with long periods of awkward posture work or particularly demanding activities, but that the general nature of his back problem would not be expected to preclude him from doing everyday home chores.
123Next, Dr Wyatt said that the plaintiff did have an organic problem but she believed that psychosocial factors were playing a dominant role rather than the organic injury.[71]
[71]DCB 74
124Dr Wyatt went on to discuss the plaintiff’s residual capacity for employment. She said the plaintiff was fit for work which did not load the back, such as repeated deep bending, constant awkward posture or repeated lifting over 10 kilograms. However, she said those limitations arose from a constitutional rather than a work-related back problem.[72]
[72]DCB 76
125Dr Wyatt said it would be sensible for the plaintiff to not go back to landscaping duties. However, she said he presented as fit for suitable employment and a broad range of work options. She said she thought he could be a truck driver, but that would require him to cease marijuana use.[73]
[73]Ibid
126Dr Wyatt then said the plaintiff would be fit for a range of welding duties, machine operator duties, process work duties, sales assistant duties, and she believed he could do traffic control with training, could operate a forklift with appropriate training, and could operate plant equipment with training.[74]
[74]DCB 77
Jenny Madden
127The last piece of evidence was contained in an affidavit from the plaintiff’s mother, Ms Jenny Madden.
128In an affidavit sworn by her on 5 June 2024[75] Ms Madden set out her observations of her son and the impairment consequences from his back injury, as she understood them. She paints a picture of the plaintiff being significantly restricted since injuring his back.
[75] PCB 24
129But Ms Madden makes no mention of the plaintiff’s hobbies of fishing or “drifting” his race car. Even though they live together, on a plain reading of her affidavit, she appears unaware of those activities, or how the ability to engage in them impacts the plaintiff on a day-to-day basis.
130Ms Madden’s affidavit is relatively concise. On one view, her evidence supports the plaintiff’s case. But on another view, her evidence suffers the same vice as the plaintiff’s own evidence, namely that it is incomplete, or based on an inaccurate understanding of the plaintiff’s true level of activity.
131Therefore, Ms Madden’s affidavit needs to be viewed in the context of the limitations of it but also in the context of the adverse credit conclusion about the plaintiff’s own evidence.[76] When that is done, her evidence is of little weight.
[76] Petrovic
Analysis
132First, consistent with my conclusions regarding credit, I consider that none of the medical practitioners have been provided with the true picture of the plaintiff’s level of daily activity. Hardly any medical practitioner is aware of the plaintiff’s hobby of boating and fishing. Dr Dickinson obtained a history of that, but clearly the history given to him was inaccurate.
133Second, in the setting of the radiological findings, most practitioners accept that the plaintiff had suffered an injury with Gardens Revisited. The most favourable assessment is that he aggravated degenerative changes in the lumbar spine, including injury to the L5/S1 disc, that persists. The least favourable assessments, such as Dr Dickinson and Dr Wyatt, is that there was a soft tissue injury that has now resolved and no organically based ongoing compensable injury.
134Ultimately, the debate about ongoing injury is irrelevant to the outcome, because compensable injury or not, I do not consider that the plaintiff has a “serious injury”.
135But, on a consideration of the whole of the evidence, I am prepared to conclude that the plaintiff injured his low back including involvement at the L5/S1 level, and that produced symptoms that persist.
136Third, the next issue then is whether that injury currently is productive of a “very considerable consequence”.
137Consistent with the submission of the defendant, it is relevant that after injuring his back the plaintiff was able to continue working as a landscaper, go fishing and ride a dirt bike, as well as engage in other activities such as bike riding and social footy, during which he suffered other injuries.
138In other words, the compensable injury objectively did not produce much by way of impairment consequences. I do not accept his evidence of ongoing chronic low back pain, with flare-up that makes even simple domestic activity difficult. It is difficult to draw a conclusion as to the true level of symptoms, where his credit has been impugned, but whatever the true level, it is not such to restrict the plaintiff from undertaking a range of daily activity and I do not accept that he is prone to flare-ups such that even loading the dishwasher is difficult.
139Fourth, consistent with the objective fact that he remained active “after injury”, and with the caveat on the accuracy of the history from which the medical practitioners have given their opinions, all the medical witnesses essentially agree that the plaintiff has “after injury” a capacity for at least for light work. This is also consistent with the plaintiff’s evidence in cross-examination.
140To demonstrate a “very considerable” pecuniary loss consequence, the plaintiff called in the definition of “suitable employment”, and what was said in Richter v Driscoll,[77] to submit that “after injury” he did not have a light work capacity. Therefore, he submitted that he satisfied the statutory formula in the Act and was entitled to leave to commence a proceeding for pecuniary loss.
[77](2016) 51 VR 95
141The plaintiff’s case was put on the basis that he had no current work capacity for “suitable employment”. There was no real attempt to put a scenario based on part-time work “after injury”. On the other hand, the defendant provided evidence of several jobs which, at 20 hours per week, would see the plaintiff fail to establish the requisite loss required by the statutory formula.
142In circumstances where the video showed the plaintiff to be able to engage in a wide range of daily activities, including manual activity, I do not accept the medical opinions that restrict the number of hours that he can do “after injury”.
143On a consideration of the whole of the medical evidence, I consider that the plaintiff has a capacity for full-time “suitable employment”.
144Pausing, the parties tendered so-called expert opinion from what broadly can be described as vocational experts. The plaintiff tendered a report from Ms Mary Oliver of Flexi Personnel dated 21 June 2024.[78] That report provided rates of pay for various jobs, with that evidence extracted from various databases. I have said previously, I am not sure that the expertise of the author extended much beyond good computer skills. Next, the defendant tendered reports from Nabenet, an organisation said to provide integrated workplace health services, dated 10 May 2023[79] and 22 February 2024.[80] Those reports identified several potential job options, which were then commented upon by some of the other witnesses, together with the relevant rates of pay. Unlike the Flexi Personnel report, the Nabenet reports at least provided some information regarding the requirements for the jobs identified.
[78] PCB 63
[79] DCB 92
[80] DCB 98
145Ultimately, it is unnecessary to say much about the vocational evidence, other than that the evidence from Nabenet is of greater assistance than that of Flexi Personnel for the issues in this proceeding.
146I note that Dr Dickinson and Dr Wyatt effectively opined that any current symptoms are unrelated to the injury suffered with Gardens Revisited. While there is some force in those opinions, as mentioned earlier, it is unnecessary to resolve that issue. If I accept the opinions from the treating general practitioners, Dr Awad and Dr Akil, that there is an ongoing compensable injury, either the aggravation of lumbar spondylosis or perhaps some injury at the L5-S1 level with an annular tear, then, again as mentioned, the question arises as to whether the plaintiff has discharged his evidentiary onus to prove a “very considerable” consequence.
147In my opinion, he has not. The description of symptoms given to medical practitioners is inaccurate. Further, the material from treating practitioners is limited and of limited use because of the way those practitioners chose to provide reports. Therefore, it is difficult, if not impossible, to rely on the medical evidence for an assessment as to the plaintiff’s “after injury” work capacity.
148But, in the context of the medical evidence and the video surveillance, leaving to one side the diagnosis, I consider that Dr Wyatt has most accurately described the plaintiff’s “after injury” capacity. Her opinions are largely consistent with the opinions from Dr Dickinson and Dr Thomas. Dr Wyatt considered that the plaintiff was fit for a wide range of jobs on a full-time basis, notwithstanding his criminal record and use of medication. I accept that evidence.
149Further, consistent with the evidence from Dr Wyatt, Dr Dickinson and Dr Thomas, I consider that the plaintiff could, “after injury” undertake the jobs identified by Nabenet. I am also unconvinced that he could not do the work driving trucks that he said was too hard on his back when he tried that work in early 2024. Specifically, his evidence that he could not comfortably drive the work ute cannot be accepted considering the driving that he was shown to do in the video surveillance. It is also inconsistent with his hobby of “drifting” a race car.
150On the available objective evidence, and after a consideration of the whole of the evidence, nothing said in Richter v Driscoll can be used to avoid the fact that “after injury” the plaintiff is fit, full-time, for a range of jobs. Where his credit was impugned, he has failed to discharge his evidentiary onus about “after injury” work capacity.
151In those circumstances, the plaintiff has failed to demonstrate a “very considerable” pecuniary loss consequence. If he is fit for full-time work, which is the conclusion I have formed, then he has not made out the requisite 40 per cent loss.
152Fifth, and further, where the plaintiff is still able to engage in a level of daily activity with his son, shop, drive in an unrestricted manner, drive a race car and regularly go fishing, with only minimal ongoing treatment and the occasional use of medication, I conclude that the plaintiff has not made out a “very considerable” pain and suffering consequence.
153In a consideration of what is lost, it is relevant to look at what is retained. In this proceeding, the plaintiff has retained the ability to go about a range of daily activity, including physical activity, without any objective restriction.
154Whatever the true level of ongoing symptoms, on a consideration of the whole of the evidence, he does not have impairment consequences from pain and suffering that could be said to be “very considerable”.
155Therefore, for the reasons given, the plaintiff’s application is dismissed.
156I shall hear from the parties as to consequential orders, including orders for costs.
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