Maybery v Frewstal Pty Ltd

[2010] VCC 993

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL

CIVIL DIVISION

Case No. CI-09-03260

JAMIE FRANCIS MAYBERY	Plaintiff
v
FREWSTAL PTY LTD	First Defendant
And
QBE WORKERS COMPENSATION	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	26 & 27 July 2010
DATE OF JUDGMENT:	4 August 2010
CASE MAY BE CITED AS:	Maybery v Frewstal Pty Ltd & Anor.
MEDIUM NEUTRAL CITATION:	[2010] VCC 0993

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages – specific incident of injury to low back – some pre-existing symptoms – plaintiff continued in employment for years afterwards – some years before radiological investigations – pathology revealed – whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC with	Stringer Clark
Mr N Bird
For the Defendants	Mr P Scanlon QC with	Lander & Rogers
Mr P Jens
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to pain and suffering damages only. His application in relation to pecuniary loss damages was abandoned shortly after the commencement of the matter. In bringing his application, the plaintiff relies solely upon sub-paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act. The injury under consideration is one to the lower back, and it is alleged that this occurred in a specific incident in the course of the plaintiff’s employment with the defendant on approximately 8 April 2003. Whilst there are two defendants named in this matter, their interests overlap entirely and henceforth I shall refer only to “the defendant”, meaning Frewstal Pty Ltd by which entity the plaintiff was employed and in the employment of which he allegedly suffered the relevant injury and its consequences.

2          I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.

3          Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most sensible and cost-effective manner in which to run the case.

Factual background

4          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in anyway determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

5          Essentially I found the plaintiff to be a frank and straightforward witness who certainly did not attempt to be an advocate for his application or to embellish the consequences of his injury. He was a very impressive witness. I note that his treating neurosurgeon, Mr David Wallace, stated the following:

“He impressed as a person who made light of his symptoms and tended to underplay his hand … He is a very stoical, hard-working man who continues in full-time gainful employment in heavy physical work, despite his major back problem.”

6          As shall be discussed the plaintiff has in fact ceased employment since being seen by Mr Wallace on 6 August 2009, but the impression which he made upon that surgeon is clear. It coincides with the impression that he made in the witness box.

7          I also note that Mr David Brownbill, consultant neurosurgeon, who saw the plaintiff on behalf of his solicitors, reported as follows:

“On examination on 9 June 2010, he was alert and cooperative without embellishment, appearing straightforward in his presentation.”

8          Again, I agree. I would also regard the plaintiff as being basically a reliable historian. In cross-examination a considerable amount was made of the fact that he had previously suffered some back symptoms and not all doctors were given details of these. As shall be discussed when I turn to the question of the plaintiff’s injury, I am far from persuaded that any prior symptoms or injuries, which occurred many years before the relevant injury, were of any magnitude of significance. I do not regard the plaintiff’s credit or liability as having been damaged in this regard. Mr Wallace and the treating orthopaedic surgeon, Mr de la Harpe, reported a history that the plaintiff ceased work with the defendant essentially for reasons connected with his injury or with difficult duties which he was asked to perform. In the witness box the plaintiff made no secret of the fact that he took a voluntary redundancy package and accepted a job working for a relative in Mildura. He did say that abattoirs work (the defendant conducts an abattoirs) was “a game” which he wanted to leave because of its physical demands, and in relation to this referred to the demands upon various parts of the body, including the back. In evidence he in no way pretended that the sole cause of his ceasing work with the defendant was his back injury.

9          Overall, I was impressed with the plaintiff. I regard him as being reliable in relation to the description which he has given of the symptoms and consequences of injury from which he suffers. I agree that he certainly appears somewhat stoical and accept that he worked on for some seven years in the face of symptoms which were at times quite severe. I accept him as a witness of truth.

(ii) The plaintiff’s background, training and pre-injury employment

10        As leave is sought solely in relation to pain and suffering damages, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that the plaintiff is aged 39 years, having been born on 20 February 1971. He is a married man with two children, now aged 18 and 15 years. He has received a limited education (apparently to year 10 level) and, as he told Mr Brownbill, “All my jobs have been heavy physical ones”. He has been employed as a labourer, a forklift and plant operator, and has worked in a foundry. With the defendant, he was essentially employed as a slaughterman. He currently resides in Horsham and has previously lived essentially in rural towns. It would be fair to say that his employment history is one of physical, manual labour.

(iii)	The injury
(a)	The state of the plaintiff’s back prior to the occurrence of injury on 8 April 2003

11        There is no doubt but that the plaintiff suffered some episodes of low back pain prior to the occurrence of the relevant incident of injury. The clinical notes of the Lister House Clinic, which the plaintiff visited for some years, record an attendance on 3 July 1990 with a history of a left-sided low back strain from lifting sacks of wheat, aggravated by work that morning. There was some restriction in flexion and lateral flexion, and a WorkCover certificate for some three and a half days was issued. This entry seemed to mystify the plaintiff, who thought that the lifting of sacks of wheat might have occurred at the farm of his brother-in-law but he was never an employee there. He appeared to have little recollection of the incident which, given that it occurred some 20 years ago and apparently resulted in no more than a minimal period of incapacity, is not surprising.

12        The next entries of relevance are those of 17 and 22 July 1991. The entry of 17 July, which is difficult to read, refers to the plaintiff lifting some sort of heavy material in the course of his employment at Vulcan Australia Limited and suffering a sudden ache in the low back. The entry of 22 July would indicate that the low back strain had settled with straight leg raising at 90 degrees. There is an indication of a prospective return to work on 23 July 2001. There is also a reference to some form of WorkCover certificate.

13        The doctor seen by the plaintiff at Lister House Clinic was Dr Jim Thomson. On 26 August 1991 he reported to the plaintiff’s then solicitors, Rennick and Gaynor, as follows:

“Jamie came to see me on 17th of July 1991 and explained to me that he worked at Vulcan. He explained that he had been lifting heavy metal weights at work and there was a sudden ache in the low back. There was pain on the extremes of movement when examined, especially over the left para-spinal muscles with some spasm at the lumbar sacral spine level. He had a full range of straight leg raising.

I diagnosed a low back strain and put him onto Workcare as being fit for light duties only from 17th of July to the 21st of July. I reviewed him on the 22nd of July where it appeared that his lower back pain had settled. He had a full range of movement on examination and he was returned back to normal work as of the 23rd of July.”

14        No other medical evidence of any note relating to the 1991 incident was placed before me. The plaintiff did cause his solicitors to issue on his behalf a writ with an attached Statement of Claim, such writ being issued out of this court on 19 November 1992. Essentially the Statement of Claim referred to injury to the lumbar spine suffered by the plaintiff between approximately March 1989 and February 1991 when he was engaged in work which involved the manhandling of large castings. Other than the writ and Statement of Claim no other relevant documents were put before me. I accept the evidence of the plaintiff, and what was asserted on his behalf, to the effect that he received no money whatsoever in relation to this proposed action which was in fact withdrawn. If the report of Dr Thomson represents the sole or prime medical material that was available, such withdrawal is hardly surprising.

15        In any event, as the plaintiff pointed out in cross-examination, after the incident at Vulcan in 1991 he continued to play football. In his affidavit of 15 April 2009, he has referred to the fact that he suffered back pain when working in Horsham in the early 1990s, in relation to which he may have attended a general practitioner but received no compensation. He has also mentioned the incident to Mr Brownbill, stating that the pain resolved completely. I accept that this history of events is accurate.

16        The clinical notes of Lister House Clinic further indicate that, on 24 May 1993, the plaintiff attended with a history of what appears to be low back pain with spasm into the left leg to the knee after bending to pull on his pants. Straight leg raising was restricted to 50 degrees on the left and 80 degrees on the right. There was no tenderness. There is an entry “? disc disruption” and it would appear that what was prescribed was rest and Naprosyn. The plaintiff was uncertain as to this entry and showed no signs of recollecting the circumstances. Whilst the writing is difficult to read, in the notes of that clinic there would then appear to be no further entries either in relation to the episode of 24 May 1993 or in relation to back injuries generally.

17        The clinical notes of the Stawell Medical Centre commence as at February 2001. Insofar as I can read the entries, none relate to back injuries prior to that of 9 April 2003, which entry is made the day after the relevant incident of injury and is in reference to it.

18        Thus, there is a period of almost 10 years between the entry relating to some back complaint after the plaintiff pulled on his trousers and the relevant incident of injury and nothing to suggest that the plaintiff had symptoms of sufficient magnitude to warrant attendance upon a doctor during that time. During many of those years he was playing indoor cricket (this seems to have ceased sometime between 1998 and 2000) and was engaging in full-time work, including the heavy work of a slaughterman which he performed with the defendant. In those circumstances, and given the comparatively minor, if not minute, amount of treatment which the plaintiff received when he did attend upon medical practitioners in 1990, 1991 and 1993, I am of the view that the plaintiff suffered no back injury of any consequence prior to 8 April 2003. I can also appreciate why his recollection as to these minor incidents suffered many years ago might be more than a little hazy.

19        In relation to the state of the plaintiff’s lumbar spine prior to him suffering the relevant incident of injury, a CT scan performed some six years after the occurrence of that injury revealed severe degenerative changes at L5/S1, as well as indicating such things as a moderate sized broad based herniation of the disc. The pathology in the plaintiff’s back shall be discussed subsequently. An MRI performed on 6 August 2009 revealed a moderate left side broad based disc protrusion at L5/S1 but makes no specific reference to degeneration. However, Mr David Wallace, the plaintiff’s treating neurosurgeon, and who had organised the MRI, expressed the conclusion that the plaintiff had severe lumbar disease. It may be that, as at the time of the injury in 2003, the condition of the plaintiff’s lumbar spine was not pristine. However, even if there were pre-existing degenerative changes, I am quite satisfied that the plaintiff was free of symptoms, and had been for some years, as at the date of the relevant injury. I am also satisfied that, as stated above, he had been able to engage in heavy work and sporting activities. Thus, even if this case is considered to be one of aggravation, and I am to apply the principles set out in cases such as Petkovski v Galletti [1994] 1 VR 436, Grech v Orica Pty Ltd [2006] VSCA 172 and Guppy v Victorian WorkCover Authority & Bendigo Access Employment Inc [2010] VSCA 164, I would be of the view that any symptoms and consequences suffered by the plaintiff after 8 April 2003 are the result of the aggravation which occurred at that time. In other words, I shall consider whether the aggravation itself qualifies as a serious injury, but it seems to me that, whatever restrictions, symptoms and consequences which the plaintiff does suffer, they arise from that aggravation.

(b) The injury of 8 April 2003

20        In discussing the injury of 8 April 2003 and the course of treatment and investigation thereafter, I shall also set out some details of the plaintiff’s employment from the date of injury to the present date. Given the particular circumstances of this case, including the plaintiff’s ongoing and, until recently, comparatively uninterrupted employment and the years that elapsed before the pathology in his spine was clearly identified, this approach would seem warranted and may be of general assistance.

21        On 8 April 2003 the plaintiff was working by himself on a device known as a “hide puller”, which is a machine for removing lamb skins. He alleges that it was not working properly, so that he had to remove the skins manually. It was whilst doing this that he developed the onset of sharp pain in the back. He has told Mr Wallace that he felt a “pop” in his back. He reported the matter, and continued to work that day, but on the following day attended at the Stawell Medical Centre where it would appear that he saw Dr Chris Penington. The history given was that he was suffering from low back pain in the area of the left iliac crest with sharp pain down the left leg to the ankle, this occurring after pulling a skin. He had difficulty sleeping. A diagnosis of sciatica and low back sprain was made, and the plaintiff was put off work until the following Monday (five days later).

22        The plaintiff again attended upon Dr Penington the following day, seeking that doctor’s opinion in relation to a return to work plan. He complained that he was still having the left iliac crest pain and sciatica, and Dr Penington was of the view the plaintiff still needed a few days of rest and gentle mobilisation before returning to work. When Dr Penington reviewed the plaintiff on Monday, 14 April, the condition was settling, although there was some left hip pain, occasional sciatica, and the plaintiff had some difficulty in sitting down for up to 20 minutes. However, he felt capable of going back to work. Workers Compensation forms were filled out, with a return to work on modified duties. Dr Penington saw the plaintiff again on 24 April 2003, when he recorded that the plaintiff was now moving freely with no sciatica or low back pain and was keen to return to normal duties. However, it was noted that the plaintiff was given a WorkCover certificate. That is the last entry of any relevance in the records of the Stawell Medical Centre.

23        In fact the plaintiff gave evidence that he has never been totally free of pain since 2003, although he had a period following an injection when he was mostly free of pain. The plaintiff did state in cross-examination that it could have been that he said to Dr Penington that, in addition to being keen to return to work, he had no low back pain. I accept that the plaintiff is a stoic and was keen to return to work. I note that, in his affidavit of 15 April 2009 he has sworn that, after suffering the injury on 8 April 2003, his back pain has remained with him and been constant although variable in respect of its intensity. It may well be that there have been periods when the plaintiff has been close to free of pain, but essentially I accept that he has had some ongoing problems, at times of varying magnitude, on a reasonably regularly basis since 8 April 2003.

24        Returning to the plaintiff’s injury, his activities and the course of treatment, some 14 days after suffering the injury he returned to normal duties, save that he did not operate the hide puller. The plaintiff continued working with the defendant until taking a redundancy package at the end of 2003. As stated earlier, the plaintiff made no secret in his evidence of the fact that he wished to get out of abattoirs work because of its physical demands, including demands upon his back, and, when the opportunity arose to work for a relative in Mildura, he took up that opportunity.

25        In Mildura the plaintiff was seen at the Ontario Medical Clinic. The first reference to a back complaint occurred on 13 September 2004 when the plaintiff attended upon Dr Patrick McEvedy. The history taken was “Sciatic 1 yr ago at work. occurred again after working in garden”. It would appear that the plaintiff’s reflexes were equal, but he described tingling in the left leg, and left sciatica was recorded as the reason for the visit. He was prescribed medication called Solone, and advised in relation to back care. The gardening work in question may have related to the removal by the plaintiff of a handful of weeds, the number of which he estimated to be approximately six. Certainly on one occasion such an incident occurred. The plaintiff did give evidence in this regard, and also to the effect that, in the preceding year, he had been taking medication in the form of Voltaren as well as (with repeats) from his doctor at Stawell. He stated that he took that particular medication irregularly when his back flared up. The plaintiff subsequently told Mr Wallace that he had episodic back spasms which would happen with very simple activities such as sneezing, or, on one occasion, pulling out a weed from the garden. He gave a similar account to Mr Brownbill.

26        The plaintiff was again seen at the Ontario Medical Centre, this time by Dr Ahmadi, on 15 February 2006. That doctor recorded a history of left sciatica, “likely L5/S1”, for a few years. He also took a history of lower back injury some four to five years previously due to heavy lifting. He recorded that recently there had been more frequent attacks of lower back pain “radiating down to left leg and 5th toe feeling numb left foot on S1 area”. He noted that the plaintiff’s work still involved heavy lifting and that his problem had never been investigated. The conclusion of Dr Ahmadi was that the examination was consistent with an L5/S1 disc lesion with possible nerve impingement. He noted that straight leg raising was positive at about 45 degrees. He decided to organise a CT scan of the plaintiff’s lumbar spine because of the plaintiff’s left-sided sciatic symptoms. Dr Ahmadi also prescribed medication. On 16 March Dr Ahmadi referred the plaintiff to Dr Richard Bittar, who apparently stated that he was seeing only WorkCover cases. Accordingly the plaintiff was referred instead to Mr Christopher Thien. The letter of referral of 17 March 2006 from Dr Ahmadi to Mr Thien indicates that the CT scan revealed “central disc protrusion and left sided at L5/S1 with likely involvement of the origin of the left S1”. This is an accurate summary of the conclusion of Dr Petrucco, the radiologist involved. Dr Ahmadi also pointed out that the plaintiff was young and had been a labourer all his life.

27        On 1 May 2006 Mr Thien, who is a neurosurgeon, reported back to Dr Ahmadi. He reported a history of the plaintiff suffering severe left-sided sciatica, a problem which he had for five years but with the pain not being as persistent as it now was. Mr Thien noted an absent left ankle jerk, and expressed the view that the CT scan showed a calcified left-sided L5/S1 disc prolapse. He organised an MRI scan. Mr Thien reported again to Dr Ahmadi on 26 May 2006 stating that the MRI scan confirmed the presence of a moderate sized left disc extrusion at L5/S1. Mr Thien recommended a nerve sheath injection in order to try and relieve the pain. Whilst it is not entirely clear what happened thereafter, Mr Wallace has taken a history of an attempted injection which was unsuccessful, and of a series of cortisone injections administered by a Dr Bade in Edenhope, which injections provided approximately six months of relief. It should be said that, during his time at Mildura, the plaintiff worked constructing roof trusses for approximately two years, and aspects of that did involve some heavier work.

28        Thereafter the plaintiff moved to Horsham. He again worked full-time. This was in the roof trussing department of an entity called Dahlsens Timber and Hardware. Following that he worked as a self-employed excavator operator on a contractor basis. He stated that this was not heavy work. When that area of work dried up due to an economic downturn, the plaintiff commenced work for OneSteel Reinforcing, for which entity he performed some office work, forklift driving, stock counting and the like. The plaintiff has sworn that he had a sympathetic boss and was able to avoid any serious bending or lifting. Ultimately he was put off because he was asked to do different work, and in particular to operate a bar bender machine. This required bending and leaning and the holding of a bent position. On the advice of his general practitioner, he informed the management of OneSteel that he could not do that work, and was subsequently dismissed because of the restrictions that his general practitioner had placed upon him. It would appear that these events, and the cessation of his employment, occurred in April 2010. The plaintiff acknowledged that, over the years between the occurrence of the relevant injury and the cessation of employment in April of this year, he only missed something in the order of one week from work because of any back complaint, and that was following the exacerbation when he pulled out the handful of weeds in his garden. However, I also accept that essentially he continued to experience back pain throughout this time.

29        Returning to his history of treatment, upon moving to Horsham the plaintiff was seen at the Tristar Medical Centre. The clinical notes of Dr Kesarapu indicate that on 9 March 2007 the plaintiff was seen with a history of one month of lower back pain mostly in the morning, although he also gave a history that an MRI previously undertaken had shown a disc prolapse and that he was given an injection into the disc location, following which he was “good for 6 months”. Medication was prescribed by Dr Kesarapu.

30        On 4 December 2008 the plaintiff first consulted Dr Pretorius at Lister House Clinic in Horsham. He gave a history of a previous work-related back injury and requested a referral to a pain clinic for a nerve root injection. He was referred to Dr Wasjzel at the Wimmera Base Hospital. He returned to Dr Pretorius on 22 May 2009, again complaining of worsening back pain after prolonged periods of standing. Painkillers were prescribed. The plaintiff returned to Dr Pretorius on 27 May 2009 and was then referred for a CT scan. This was carried out on 3 June 2009 and the report of the radiologist, Dr Kapoor, indicated that the plaintiff had degenerative changes at L5/S1 with disc herniation and nerve root compression. I note in the body of the report that it is stated that osteophytes were present at the margins of the herniated disc consistent with its chronic nature and that the disc osteophyte complex compressed the existing left L5 and descending left S1 nerve roots.

31        Dr Pretorius referred the plaintiff to Mr Wallace, neurosurgeon, who saw him on 6 August 2009. Mr Wallace took a history of the initial incident of injury and described the plaintiff as stoically working on thereafter. Mr Wallace organised an MRI of the lumbar spine, this being performed on the same day. The conclusion of Dr Chuah, the radiologist, was of a moderate left-sided broad-based disc protrusion at L5/S1 causing moderate left foraminal stenosis with mild compression of the left L5 nerve root and there also being contact of the left S1 nerve root. He felt that there was also a mild non-compressive central disc protrusion at L4/L5. Mr Wallace expressed the view that the plaintiff had a significant disc injury at two levels. He was also of the opinion that the recent MRI scan was quite similar to that of the scan of 2006, with significant disc protrusion at L5/S1, central and left-sided, which Mr Wallace thought was the main source of the symptoms. He also referred to the smaller bulge at L4/L5. He described the plaintiff’s back problem as “major”. Ultimately, he referred the plaintiff to Mr de la Harpe, orthopaedic surgeon.

32        Mr de la Harpe reported to the plaintiff’s solicitors on 1 July 2010. Whilst he took no history of any incident of injury prior to 2003, for the reasons previously stated I attach no great significance to this. It might be said that the employment history obtained by Mr de la Harpe could generally be described as sketchy and not particularly accurate. Why this is so is uncertain. Mr de la Harpe diagnosed two levels of degenerative disc disease at L4/L5 and L5/S1, with the more severe being at the L5/S1 level. He believed the plaintiff to be suffering significant degenerative discogenic back pain and some nerve root compression causing leg pain, and felt that the plaintiff’s current clinical situation related to the initiating injury in 2003. He regarded the prognosis as being significantly guarded, raised the prospect of surgery in the form of a double level laminectomy and fusion, and made the observation that, with or without surgery, the plaintiff would not be able to return to employment of a full or part-time nature that involved manual labour. He suggested a concerted physiotherapy program. In his affidavit of 2 July 2010 the plaintiff swore that he was now attending weekly physiotherapy although this caused some increase in his pain level. The report of the physiotherapist, Mr Casey, would confirm that the plaintiff has commenced treatment.

33        The plaintiff has also been assessed for medico-legal purposes. He was seen by Mr Brownbill, consultant neurosurgeon, on 1 June 2010. The history taken was consistent with the plaintiff’s account of the incident of injury of 8 April 2003, and also included a reference to some earlier back pain. Mr Brownbill expressed the view that, on probability, the plaintiff suffered a disc derangement in the incident of April 2003. Having considered the radiological investigations and carried out his examination, he concluded that the plaintiff had suffered lower lumbar intervertebral disc derangement, that he would not in the future be able to perform work involving manual labour, and that he anticipated that the plaintiff would continue to suffer from some pain in a fluctuating manner indefinitely. He also expressed the view that, if pain continued with severe exacerbations, consideration would have to be given to surgery.

34        Mr John O’Brien, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 9 June 2010. Again, the history taken by Mr O’Brien is consistent in relation to the initial occurrence of injury. He also noted a steady increase in severe back and left leg pain in recent years. He considered that the plaintiff suffered discogenic back pain related to the L5/S1 disc with some referred leg pain, although he was not convinced that there was any current nerve root compression. He considered the plaintiff’s employment to be a significant contributing factor to what had become chronic discogenic back and leg pain. He considered the condition to be stable but the prognosis to be poor. He regarded the plaintiff to be in fairly well established chronic pain, and was hopeful that there would be a reasonable response to the physiotherapy program. He thought the plaintiff not capable of undertaking manual or physical work, and in fact regarded him as totally and permanently incapacitated. Mr O’Brien concluded that the plaintiff was significantly restricted in relation to his general, social, domestic and recreational activities, and that this would be a permanent situation.

35        On 12 March 2009 the plaintiff was examined by Professor John Hart on behalf of the solicitors for the defendant. It is noted that one of the primary reasons for the examination by Professor Hart seems to have been a whole person impairment assessment in accordance with the AMA Guides. It is also noted that Professor Hart had available to him a large number of documents, the relevant ones of which dated back to the report of Dr Thomson of 26 August 1991. Thus, it would seem that Professor Hart had available to him material in relation to the back symptoms suffered by the plaintiff in the early 1990s, and the plaintiff gave him that history in any event. Professor Hart noted that the plaintiff complained of a constant lower back pain which he rated at 6-8/10 with intermittent pain down the lower left leg. The condition was aggravated by walking, bending and sexual activity. Professor Hart expressed the view that the plaintiff had disc changes at the lower two levels of the lumbar spine, those at L4-5 being minor, but at L5-S1 there being a sequestrated disc fragment with compression of the left S1 nerve root and minor residual signs of a left S1 radiculopathy. There is no suggestion in Professor Hart’s report that he considered the injury to be other than related to employment or to the described incident, and he was prepared to make an assessment as required. Incidentally, he placed the level of impairment at 10 per cent. I was asked to conclude that this was a relatively high percentage assessment, but that is an area of argument into which I am not prepared to enter. Certainly Professor Hart was of the view that the plaintiff had a permanent impairment which had stabilised.

36        It should be added that the plaintiff’s claim pursuant to s.98C of the Act in relation to a back injury sustained on 8 April 2003 was accepted. By letter dated 27 March 2009, the defendant’s insurer specifically accepted liability. In this regard I would refer to the observations of Ashley JA in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171. Incidentally, I would point out that His Honour went a little further than saying that, in the appropriate circumstances, an acceptance of liability, for example in relation to a claim pursuant to s.98C, is just another matter to be “factored in”. A tendency for counsel to address along these lines has developed. What His Honour in fact said was as follows:

“Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s.98C or s.98E, but also, potentially, with respect to s.134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”

37        In the present case, no argument of any substance was advanced which would in some way explain the conduct of the insurer in relation to the acceptance of the claim. I agree with the submissions of Mr Scanlon that such an admission is not binding, but it seems clear from the observation of Ashley JA that it is a matter which can be of quite some significance.

38        In the circumstances, I am quite satisfied that the plaintiff suffered an injury to his lower back in the course of his employment on 8 April 2003, and I am satisfied that such injury has been responsible for his ongoing symptoms and restrictions. The consequences of that injury are those which the plaintiff has suffered thereafter and continues to suffer to the present time. Apart from the admission of liability in the s.98C claim, the overwhelming weight of medical evidence leads to this conclusion. I would refer to the various expert medical opinions set out above. I am not of the view that any inaccuracies or omissions in a couple of the medical reports, which inaccuracies and omissions I regard as being comparatively trifling, have any impact upon the conclusion at which I have arrived. In summary, I find that the consequences of injury which are to be assessed in this application were caused by and result from the incident which is relied upon by the plaintiff and which occurred on or about 8 April 2003.

39        There is no great difference of opinion as to the nature of the injury suffered by the plaintiff. The pathology, established by radiology, has been consistent and is clear. Perhaps the nature of the injury is best summarised by Mr Brownbill, who has expressed the opinion that the plaintiff suffered lower lumbar intervertebral disc derangement. This differs little from the finding of Professor Hart that the plaintiff suffered a sequestration at L5/S1 with left S1 nerve root compression and a minor disc injury at L4/5. As stated, there is no great difference between the varying opinions. Mr O’Brien’s view that the plaintiff suffers chronic discogenic back and leg pain is also similar, as is that of Mr de la Harpe to the effect that the plaintiff is suffering significant degenerative discogenic back pain and some nerve root compression. I find that the plaintiff has indeed suffered an L5/S1 disc derangement or injury with a minor disc injury at L4/5 and that he has intervertebral disc degeneration at those levels.

40        I have already commented upon the issue of aggravation and can only repeat that, consistent with the medical views expressed, I am of the view that the consequences from which the plaintiff now suffers arise from the incident of injury on 8 April 2003.

41        There was some suggestion by Mr Scanlon that the incident of weed pulling represented a novus actus interveniens. I am not of that view. I am of the view that this incident represented simply an exacerbation in a long history of symptoms dating back to April 2003. Again, this seems consistent with the plaintiff’s history of events and with the medical opinions.

42        It was not suggested that there are any consequences of a psychological or psychiatric nature. There is no evidence to that effect and certainly it was not the impression created by the plaintiff in the witness box. Any such factors are ignored, but, if they exist at all, they are extremely minimal.

43        In relation to the issue of permanence, I am satisfied that the symptoms, restrictions and consequences from which the plaintiff suffers are permanent within the meaning of the Act and will persist for the foreseeable future. Mr Brownbill has stated that the plaintiff will continue to suffer pain in a fluctuating manner indefinitely. Professor Hart has referred to the plaintiff’s impairment as being both permanent and stabilised. Mr de la Harpe has referred to the plaintiff’s prognosis as being significantly guarded. Mr O’Brien has stated that the plaintiff’s significant restrictions are permanent. I accept these views and find that the plaintiff’s symptoms, restrictions and consequences are permanent within the meaning of the Act.

(iv) The plaintiff’s employment, training and other developments since the injury

44        As this application is one solely in respect of pain and suffering damages, no great detail is required under this heading. In any event, I have already outlined the plaintiff’s history of post-injury employment when discussing the injury itself. Suffice to say that the plaintiff worked on as described, but that, despite having a sympathetic employer, his most recent employment with OneSteel was brought to an end as a result of the restrictions imposed upon him because of his back injury. He has now been unemployed for a period in excess of three months. Whether he will ever be able to return to manual labour appears very doubtful.

Ruling
45	I find that the plaintiff has discharged the burden of proof in regard to pain and suffering. When compared with other cases in the range of possible impairments or losses of a body function, the pain and suffering consequences from which he suffers could fairly be described as being more than significant or marked, and as being at least very considerable.
46	As stated, I regard the plaintiff as being a reliable and honest witness and accept his oral evidence and the material contained in his affidavits and in the supporting affidavit of his wife. I do not find this last-mentioned affidavit to contain exaggerations, as was suggested by Mr Scanlon.
47	I appreciate that, as at the date of injury, the plaintiff had long since ceased playing football, and had more recently given up indoor cricket. With some restrictions and difficulties he could probably still go camping. Thus, it could be said that no great restrictions flow from the injury in relation to such activities.
48	However, I would point out the following, and I point out these matters against a background of a plaintiff who is stoical, does not embellish, and, if anything, tends to underplay his hand. In this regard, I would refer to the observation of Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 as follows:

“The injury suffered by the “stoical” plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.”

49        The plaintiff in the present case has a lower back injury which has been described as “severe” and “major” by his treating neurosurgeon, Mr Wallace. It has been described as “significant” by his treating orthopaedic surgeon, Mr de la Harpe, who has also raised the prospect of surgery. Also, Mr de la Harpe has referred to significant degenerative discogenic back pain with nerve root compression causing leg pain. Mr O’Brien has referred to the plaintiff as having “a fairly well established chronic pain”. In relation to that chronic pain, Professor Hart has taken a history of constant lower back pain rated at 6-8/10. Mr Wallace has taken a history of ongoing pain with left buttock twitching and significant left-sided sciatica. Mr Brownbill has a history of lower back pain being present at all times, being worse with physical activity, walking or prolonged sitting, and difficulties with driving a manual car and sexual activity. Mr Brownbill has also taken a history of left leg pain which comes and goes but is present throughout each day. I accept that the plaintiff suffers such pain. It seems to me that the plaintiff’s overall level of pain, suffered daily, and in both the back and leg, would of itself be sufficient to satisfy the statutory test. As recorded by Mr O’Brien, the plaintiff currently takes Panadeine Forte three times daily and Tramal at night in an attempt to control his pain. He is undergoing physiotherapy as recommended, but this can have the effect of increasing the level of pain.

50        In his affidavit of 2 July 2010, the plaintiff has set out extracts from a diary which he has kept, these being for the period 29 May 2010 to 5 June 2010. He has sworn that this represents “a pretty normal week”, and his wife has confirmed this on oath. I have no reason to doubt it. The diary entries portray a week punctuated by such things as sleep interrupted because of pain and involving a necessity to get out of bed, pins and needles and numbness down the left leg, severe pain upon awakening and the necessity to lie on a couch during the day, the consumption of considerable amounts of painkillers, a dramatic increase in back and leg pain when driving a manual motor vehicle and the necessity to sit down after limited walking whilst shopping. There are references to a pain level of 6 out of 10 being better than usual, and to an average pain for the day of 4 or 5 out of 10 (coupled with staying home and resting on a couch and apart from the consumption of painkillers) as being the best day that the plaintiff had had in a long time. I accept all of this, and it seems to me to underline the proposition that the plaintiff’s pain alone would satisfy the test. When coupled with the other restrictions from which he suffers, the statutory test seems to me to be easily satisfied.

51        The intimate side of the plaintiff’s marriage has been affected. I accept the evidence of the plaintiff and his wife in this regard. Again, the adverse effects of the injury in this regard might of themselves be sufficient to discharge the burden of proof.

52        Furthermore, the plaintiff’s working life has been one involving manual labour and physical activities. The overwhelming weight of expert medical evidence is that in the future he will not be able to perform work involving manual labour, even on a part-time basis. I appreciate that leave is not sought in relation to pecuniary loss damages, but the inability to engage in the type of work which one had always performed seems to me to be relevant for at least two reasons. Firstly, the enjoyment and satisfaction of being able to engage in work with which one is familiar has been removed, and there is no doubt but that the plaintiff has long been a good and hard worker. Secondly, as part of the “very considerable” test, the inability to perform certain types of work casts an indirect light upon the restrictions and consequences from which an injured person suffers – see the decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Victorian WorkCover Authority [2009] VSCA 181 at paragraph 35. For these reasons, the exclusion of the plaintiff from the fields of manual and physical labour to which he is accustomed seems to me to be a factor supporting the proposition that his pain and suffering consequences meet the statutory test. Subsequently I shall discuss the proposition that the plaintiff may face difficulties in relation to pain and suffering consequences because he has been able to return to alternative employment.

53        Next, the plaintiff’s ability to interact with his family in a normal way is to be considered. He has described the difficulty which he faces in attempting to engage in “kick to kick” football. His wife has described how, at their daughter’s debutante ball, the plaintiff could not even dance with her because of his back pain. He has described how he cannot do such things as simply wrestle with his children. As his wife has sworn, he can hardly join in any activity with them. The importance of such things is not to be underestimated.

54        The plaintiff’s ability to perform simple everyday tasks has been compromised. He is unable to do any of the heavier tasks around the house. Tasks such as carrying out the washing basket create problems. His difficulties in car driving have been described. He has to get dressed whilst sitting and finds some small tasks at home difficult. When he gets out of a bed of a morning, he struggles to walk and hobbles “like an old man”. In order to undress for a shower, he has to hold onto a hand basin. Some of these may seem like small matters but they have become part of the daily restricted pattern of the plaintiff’s life and cumulatively represent a factor which should be considered.

55        Finally, there is the plaintiff’s age. Whilst he has been enduring pain and restrictions of fluctuating but apparently increasing severity for some seven years, decades of the same probably lie ahead of him. He is aged thirty-nine years. In relation to the age of the plaintiff, I would refer to the following observations from the decision of the Court of Appeal in Stijepic:

“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”

56        In the present case, there is nothing to suggest that the plaintiff has anything other than a normal life expectancy. Accordingly, the pain and suffering consequences with which he will have to put up may well persist for some 40 years. Again, this is a factor which seems to me to be relevant and to support the plaintiff’s position.

57        Mr Scanlon urged that, in accordance with the authorities, I should consider what the plaintiff has retained in considering whether the statutory requirements have been met. I have done that and appreciate that there are a range of things which he can still do, albeit, in some instances, with difficulty. However, when the whole picture is considered, and what the plaintiff has lost and what he suffers are balanced against what has been retained, the statutory test has indeed been satisfied.

58        Mr Scanlon also referred me to the observations of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 in relation to difficulties that may be created in relation to pain and suffering consequences if an injured person is physically able to return to alternative employment. However, in this regard, I would point to the following observation of the Court of Appeal in Stijepic:

“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. In this case, the appellant’s resumption of educational and employment activities, and his employment prospects, have played but a small part in our conclusion … .”

59        In Sabo v George Weston Foods [2009] VSCA 242 the above extract from Stijepic was referred to by the Court of Appeal with apparent approval and it was further said that:

“The fact that Mr Sabo is able to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act … .”

60        I respectfully agree. Even putting to one side the fact that the plaintiff has now had to cease work because of his injury, the fact that he was, admirably, able to continue working for some seven years after the injury does not have such an adverse effect as to offset the other factors that I have mentioned and does not cause the plaintiff to fail to discharge the burden.

Conclusion

61        In summary, the plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.

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