Mr “A” (a pseudonym) v State of Victoria
[2023] VCC 2306
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01592
| MR “A” (a pseudonym) | Plaintiff |
| V | |
| STATE OF VICTORIA (VICTORIA POLICE) and ANOR | Defendants |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 November 2023 | |
DATE OF JUDGMENT: | 21 December 2023 | |
CASE MAY BE CITED AS: | Mr “A” (a pseudonym) v State of Victoria and Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2306 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – bilateral hearing loss/ tinnitus – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd & Anor (2009) VSCA 181; State of Victoria v Glover [1998] VSCA 93; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Hevey | Johnstone & Reimer Lawyers |
| For the Defendant | Mr T Storey | Lander & Rogers |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with Victoria Police (“the employer”) on 15 June 2017 (“the said date”).
2The application is brought pursuant to the wording of the definition of serious injury under s325 of the WIRC Act:
“(a) permanent serious impairment or loss of a body function…”
3The relevant body function is bilateral hearing loss /tinnitus caused by gunfire at the time of the incident, not any shrapnel injuries.[1]
[1]Transcript (“T”) 13
4The Particulars of Injury dated 12 July 2023 had also included neurological function - altered sensation over the left ear, neck and face, impairment of the function of the jaw and mouth, severe permanent disfigurement and severe long term mental disturbance or disorder.
5The leave application relates to pain and suffering only.
6The plaintiff bears an overall burden of proof upon the balance of probabilities.
7By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
8I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Haden Engineering Pty Ltd v McKinnon[3] and Ellis Management Services Pty Ltd v Taylor[4] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] (2010) 31 VR 1 (“Haden”)
[4] [2013] VSCA 326
11The plaintiff swore two affidavits. He gave viva voce evidence and was cross-examined. He also relied on an affidavit sworn by his wife, on 14 August 2023. Also in evidence were medical reports and other material. I have read all the tendered material.
12Range was in issue.[5]
[5] T93
The Plaintiff’s evidence
13Unlike most originating motions, a large part of the plaintiff’s evidence was given in chief, expanding significantly on his affidavits after his counsel explained in opening that a number of relevant matters had not been deposed to because of “secrecy provisions” - tactics, techniques and procedures used by the Special Operations Group (“SOG”) in training.[6]
[6]T4
14No objection was taken by the defendant to this course.
First affidavit sworn 6 September 2022
15The plaintiff is presently aged forty-three, having been born in June 1980.
16After completing VCE, he trained in dance at the Victorian College of Arts. He then attended a performance school and later, went to Japan and worked for three years for Disney as a stunt man.
17He returned to Australia and joined the employer in November 2006, graduating in 2007. He attained the rank of Leading Senior Constable and was attached to the SOG from August 2009 after further training.
18Within the SOG, he held qualifications as a police marksman (sniper), medic driver, roper and a combat shooting instructor. He was also Victoria Police OSTT qualified. In September 2022, he was accepted into a role in the Search and Rescue Division of the employer.
The incident
19On the said date, while rostered on dayshift, he was driving home and on call for the SOG. He received a critical incident response team report, being notified of a possible hostage situation in Brighton which met the criteria for SOG attendance. While at the Brighton siege, he was shot in the head by the offender (“the incident”).
20As soon as he saw the flash of light, the plaintiff felt like he had been hit by a sledgehammer in the side of his head. He believed he was shot twice in the head, with the offender close by hit by the second shot.
21The plaintiff felt pain and concussion as he was being hit, and stumbled, and then fell to the ground in a controlled fall. While lying on the ground, he saw the offender moving towards him, and when he was about three metres away, fired another two rounds at the offender and then saw him fall onto the ground.
22His pain was excruciating, and he feared a major artery may have been hit. He signalled to another operator he needed assistance. Urgent medical assistance was called on the radio. The plaintiff walked out onto the street where he was collected by an ambulance and taken to The Alfred Hospital (“The Alfred”).
The injuries
23He sustained at least thirteen shotgun pellets and fragments to his head, neck and shoulder. They were spread across his left ear, the left side of his head, and his left shoulder. Two pellets and a small fragment were not able to be removed and were lodged between his tonsils and his spine. Another fragment was situated inside a sweat gland in his face, and another lodged in his ear.
24He had been advised that the salivary gland may become infected at any time and would require surgery, which posed a serious risk of facial paralysis.
25He had also been informed the fragment in his ear may affect his auditory function over the longer term.
26He was subject to regular monitoring of lead levels in his body as lead toxicity is a concern, and the long-term ramifications of lead in his body concerned.
27He was not able to have an MRI scan because of the lead in his body. This was a real concern for him and led him to reconsidering his role with the SOG and the high risk of injury associated with it.
28He had secured a transfer to the Search and Rescue Squad, where the chance of injury was significantly reduced.
Employment
29He returned to work with SOG six weeks after the incident.
30Over time, he was becoming concerned in relation to the risk of further injury and his reduced ability to have radiological studies if he did suffer injury because of the presence of bullets in his body.
31He was experiencing episodes of hypervigilance and was concerned that the offender’s family may seek retribution. In some ways, the only thing that gave him reassurance whilst at the SOG was that his colleagues were armed. He was concerned that his colleagues in his new role would not be armed, but he believed he would feel safer in a less combative environment.
32The lack of ability to have radiological investigations undertaken if he sustained an injury work was a factor in his decision to leave the SOG.
Pain and suffering consequences
33In his first affidavit, the plaintiff included a number of impairments and consequences which went beyond hearing loss and tinnitus.[7]
[7]T92
34The left side of his face and neck felt numb and uncomfortable, and the area was very sensitive.
35His left ear where the pellets were removed was uncomfortable and became more so when wearing earmuffs or helmets at work. This was an essential part of his work at the SOG and contributed to his decision to transfer to the Search and Rescue Squad. The left chin strap of his helmet was very uncomfortable, and the left side of his face, his left ear and neck ached constantly. That was more so in the cold weather.
36He had had ringing in his left ear since the incident. He had trouble hearing in noisy places and understanding words that had been spoken.
37He understood that CT scans indicated he had multiple metallic bullets in the left cheek and periocular area, and a large pellet in the left carotid artery and left pharyngeal space, five millimetres from the left internal carotid. He had been told one of the bullets was particularly close to his carotid artery and that was a particular concern for him over the longer term.
38The tinnitus in his left ear and reduced hearing bothered him. He had reduced capacity to open his mouth and he had ongoing restriction and discomfort in the area of his jaw and mandible.
39He understood that audiometry studies had shown that he had sustained bilateral hearing loss, even though the tinnitus and the symptoms he experienced were worse on the left than the right.
40He continued to experience neck pain and restriction of his neck as a result of the bullets and fragments that remained.
41Neck stiffness comes and goes and that he gets a lot of headaches as a result of his neck stiffness.[8]
[8]T64
42He experienced numbness and sensation on the left side of his face and had trouble chewing.
43He underwent regular testing for lead levels and was unsure of the long-term consequences of that on his body.
44His inability to have an MRI was of particular concern to him because in the workplace they were often exposed to life-threatening situations and often sustained injuries. He was concerned that the preclusion from those investigations might affect the diagnosis of his injuries over the longer term.
45He continued to experience problems with his jaw and was restricted in the type of foods he could eat, and he experienced lockjaw.
46He had become hypervigilant and developed increased levels of anxiety as he feared retribution from the family of the offender who was killed in the siege. That anxiety had affected his marital relationship.
47He did not expect he would leave the SOG so early in his career as he loved his job, but he had come to the realisation that he was placing himself at risk continuing to work in this role.
Second affidavit sworn on 14 August 2023
48The plaintiff’s second affidavit focussed on hearing problems, tinnitus, ear pain and also jaw pain.
49He was not able to continue in the SOG and had recently got employment in the area of Search and Rescue.
50He had a significant amount of difficulty in the SOG with the headgear that he was required to use to protect his ears. It was placing a lot of pressure on his left ear, and he was experiencing pain associated with the pressure. The pain became even worse when he was required to wear new protective earpieces and helmets that were made mandatory.
51He had to wear double headwear and was also required to wear a microphone that hooked over his ear. He could not have an internal hearing device.
52Both the hearing difficulties and the problems associated with the pressure on his ear prevented him from wearing the regular microphones. This increased the pain he already had in his ear. He was coming home from work in pain and experiencing pain after about an hour at work. It was a requirement of the job and also to be worn during training associated with the role.
53He eventually changed roles due to these difficulties.
54The function of the plaintiff’s ear(s) impairs him and causes him the following consequences:
(a) Tinnitus
55He experiences this on a regular basis. The ringing becomes particularly bad with high-pitched sounds.
56He has a golden retriever at home and when she barks, the ringing increases in his ears. The ringing is present almost all of the time and he tries to divert his focus away from it. He is told that there is nothing that can be done in relation to it.
57The ringing becomes more pronounced when he goes to restaurants. In a busy restaurant with a low roof, it becomes extremely bad.
58He has difficulty engaging in activities he used to really enjoy. He is restricted in his ability to play the guitar as much as he would like due to the effect of some of the notes on his tinnitus.
59He used to enjoy going to music festivals. Now, the ringing causes significant discomfort if he attends festivals. He used to enjoy going to see live bands but now has difficulty with ringing in his ears when he attends.
60He and his partner were due to have their first baby in October 2023. He was concerned how he was going to manage the tinnitus in loud, crowded environments like indoor play centres and was worried the baby crying may exacerbate his symptoms. He frequently woke at night due to ringing in his ears.
(b) Pain in the left ear
61The pain is constant. Some days he takes anti-inflammatories and Panadol for it but does not really like taking anything.
62He has been told in addition to the bullet fragments that damaged his ear, he also has some fragments of the helmet he was wearing embedded in his ear and that may be a cause of the pain.
63He was concerned it would affect his ability to function in the workplace in his role.
64He often wakes at night in pain and has difficulty sleeping due to the pain.
65He has changed roles due to the pain he was experiencing when wearing the protective headgear required in his former role.
66He often wakes up several times a night due to a combination of pain in his ear and the tinnitus.
67His ear and the surrounding area are very sensitive to touch and pressure.
(c) Hearing
68When he is in crowded environments, he also has problems with his hearing and finds it difficult to hear people speak. He has trouble hearing conversations and his ability to understand words is affected.
69He has to have the television and radio turned up quite loud.
70His trouble hearing has led to a reluctance on his part to go to places where there is a lot of noise. He has trouble hearing conversations and has become irritable.
71He used to enjoy going out for dinner and now gets irritated that his ability to hear is impaired in a social setting.
72The hearing in his right ear is worse than the left.
73He really misses his previous role. It was one he loved, and he obtained a lot of satisfaction from it. He found it dynamic, challenging and rewarding. He envisaged working in this role until he was no longer able to physically. He planned to remain in the SOG, either in an operational or managerial-based role, until at least his mid-fifties.
74His current role is fairly morbid, as he is usually directed towards assistance with the recovery of people who have died. He understands this is a very important role to the community. However, it does not give him as much job satisfaction as his previous role.
75The tinnitus becomes more pronounced underwater which makes it more challenging when trying to hear communications coming from the surface.
76Communications are difficult to hear in any event and usually require the listener to hold their breath to hear what is being said. However, he also has to physically stop what he is doing as he needs to push his headset more firmly onto his ears with both hands to hear what is being said.
(d) Jaw issues
77The plaintiff also has restriction in his diet due to the damage to the region of his jaw and the TMJ joint. He has difficulty eating large items such as steak and needs to cut it up into very small pieces so he can chew it. This restricts his ability to dine out as he is embarrassed about how he needs to dissect his meal before eating.[9]
[9]T65
78He has a reduced ability to open his mouth fully and experiences pain in the TMJ joint. He experiences numbness and altered sensation in the lower jaw region and feels a sense of pressure in that area.
Evidence-in-chief
Live firing/training interstate and local
79Ongoing firearm training was required as a member of the SOG. That consisted of dry firing, going through the motions with no firing before live fire commences, which could be done without hearing protection, and live firing. There is an ongoing requirement to do live fire training, a minimum of every three months.[10] The training consists of Category A, B and C qualifications that have a time limit of three, six and twelve months.[11]
[10]T23
[11]T25
80Even if the incident had not happened, he was always going to be an instructor on that training course. This was part of operational work; he was just picked because of his seniority and experience to train. It had nothing to do with the return to work program. It just ended up being convenient because it was not operational, and he could be “more sub paced.”[12]
[12]T25
81The SOG had lost its local training venue and had to travel interstate to do training for one week, every day.[13] When engaged in this training interstate, in the first three months post incident, he chose to do a lot of dry firing and opted out of the live firing as much as he could. While he was able to extricate himself, he still was required to engage in live firing. It was difficult, mainly due to the pressure initially – “the compression on my actual ear from the hearing protection.”[14]
[13]T24
[14]T26
82Live firing took place in a very small area. It is defined as fighting within a house. It is much, much louder than in an open field – “Because of that, you need to wear armour and you need to wear a helmet. The helmet compresses your hearing protection into your ears even harder.”[15]
[15] T27
83Post-incident, he could not wear the in-ear piece, the communication system was completely different.[16] He had to wear something over the outside of his helmet. He wore a boom microphone – a device like a headset – which sent a vibration through his temporal lobe. It was uncomfortable because he had something on the outside of his ear that he was pushing into his head via the hearing protection. The Group got this type of ear protection quite early on. They were phased out and he held onto the ones that were left.[17]
[16]T29
[17] T28
84He completed the training on the three, six and twelve-month intervals after the incident, all of which involved live firing.[18]
[18]T29
85With the increased frequency of training when it was conducted locally, he got to the point he just kept doing it. He kept attending training because if you do not attend, you do not stay operational – “You do not stay there.”[19]
[19]T30
Return to work
86He remained operational while he was doing the training. His certificate of capacity was signed off at the end of the training course – probably in November/December 2017.[20]
[20]T31
87By the end of 2017, he was right to go back on the street because he had his qualifications.[21] – “If you are off the street for incapacity, you can then get the capacity certificate signed off so you go back.”[22]
[21]T32
[22]T33
88He was struggling and starting to realise he might not be able to continue working at the SOG mainly due to the issues he was having with his ear. The live fire was ramping up because the new local venue was opened and it was getting to the point where he needed a break. He was quite concerned about “you know, being sort of found out with my performance, I was very hypervigilant, I was basically burnt out, is probably the best way to put it”.[23]
[23]T34
89In about January 2021, he applied to join Search and Rescue.[24] In June 2022, he completed the training and then, he had to wait for a vacancy. A position came up in September 2022 and he has worked there since.[25]
[24]T34
[25]T35
90When diving in that job, he has to wear a full-face mask sealed by tension and covered a “spider”, which holds the mask firm onto his face.[26] The most common communication is line signals, where the operator on the bank tugs and pulls on a line to indicate the direction to move as you are diving in black water. The other is a comms line. There are speakers attached to the spider and the comms line is the line that is wrapped around the line the attendant holds when it is working. The attendant has a box they push, like a push to talk microphone, and they yell into it and then you try to hear that underwater, depending on the task.[27]
[26]T36
[27] T36
91He has difficulty with that particular hearing device. He really struggles to hear. He needs to actually stop, hold his breath and ask them to repeat; stop, hold his breath, then push the earpieces into his ears so that when the attendant speaks again, he can hear them.[28] That affects his ability to do his operational job as a search and rescue diver.[29]
[28]T36
[29]T37; T68
Cross-examination
92Until September 2022, the plaintiff was an operational member of the SOG, save for the three months at Bright from November 2020 to January 2021 as a normal uniform member.[30] He confirmed he went to Bright were because he felt burnt out.[31]
[30]T39
[31]T39
93He did not agree Search and Rescue was the most elite rescue group, it was the only rescue group in Victoria. He agreed he was performing rescue jobs in the most difficult and challenging circumstances and environments.[32] It is his plan to stay in that role for as long as he can.[33]
[32]T66
[33]T67
94He does not wear a helmet when he is in a helicopter going to a search and rescue.[34] Aviation earphones worn in a helicopter do not give him any problem.[35]
[34]T70
[35]T77
Reasons for transfer
95The plaintiff was taken to his first affidavit where he gave a number of reasons for wanting to transfer from SOG to Search and Rescue – the lead in his body, his inability to have an MRI scan, and the risk of injury in the SOG. He confirmed he had secured a transfer to Search and Rescue where the chance of injury was significantly reduced.[36]
[36] T41
96He also agreed he wanted to transfer because of the feeling of discomfort from pellets in his ear when wearing earmuffs and helmets in the SOG. This was a central part of his work and contributed to his decision to transfer.[37]
[37] T41
97He confirmed the headgear was placing a lot of pressure on his ear. He agreed he was feeling “physical pain” around his ear and the effect that helmets or chin straps or earmuffs had on that.[38]
[38]T41
98He can wear earmuffs depending on if they are designed to sit on the ear or sit around it. It is much more tolerable if they sit directly on the ear.[39]
[39]T60
99There would only be a need to wear the headgear with hearing aids working with SOG if it was a planned job for explosive breaching.[40] He can wear ear muffs that are around the outside of the ear that he can put on and tolerate, but the problem is with ones designed to push hard against the ear to block the sound out or make a seal outside the ear. Physical compression is the problem.[41]
[40]T62
[41]T64
100He confirmed another reason for wanting to transfer from SOG was the fear of retribution from the offender’s family, which was a growing concern he had. He agreed that aligned with how he described feeling burnt out and feeling hypervigilant about retribution.[42] He disagreed that really was the central driver to want to change roles. Hypervigilance, burnout, retribution was a reason; it was not the driving core reason.[43]
[42]T42
[43] T42
101He agreed he made little reference in his affidavits to loss of hearing or tinnitus as a reason for leaving SOG. He confirmed those issues were a big part of the reason for the transfer. He accepted they were not mentioned in his affidavits. He confirmed that just before going to Bright, he felt burnt out.[44]
[44] T43
102Loss of hearing and tinnitus was the cause of the transfer because he could not hear – “We’d have three radios going on in a car: I didn’t feel – I’d qualified as a team leader, I didn’t feel that I could do the job well, and then the added complication of the pain and the pressure pretty much just sealed the deal.”[45]
[45]T43
103Following the incident, he was not criticised about his job performance in the SOG because he suddenly changed his role to make it less obvious. His ability to perform competently and consistently in the SOG remained effectively unchanged until he left the Group because he moved himself into roles within the team that did not require the ability to have to listen and rely on hearing anywhere as much – “I opted to drive, I opted to do other roles wearing plain clothes where it was more relying on non-verbal signalling, reading, sending messages, stuff like that, I didn’t have to rely on actually communicating and listening to communications as much.”[46]
[46]T43
104He accepted that none of these issues were in his affidavits. There was no reason why they were not there.[47] He disagreed he did not mention them because they were very minor matters compared to the other things – feeling burnt out, the worry about MRI scans, the discomfort with the pellets and other fears of retribution and hypervigilance. He could manage all those things. He would come up with strategies to manage them – “I couldn’t have a – there was no way for me to manage the issues that I was having with my hearing.” He agreed he was able to work out a way and manage a way that it did not look like he was not performing.[48]
[47]T43
[48]T44, L6-10
105When it was suggested if anyone’s performance was even down a couple of per cent, they would not have been able to remain in the SOG, he said it depended on how long they had been there. “You get a bit more grace when you’re a bit older and a bit more experienced, but yes.” He agreed the SOG could not afford to carry anyone.[49]
[49]T44
106He agreed that he did not go to a superior and say his tinnitus was so bad he had to sit this one out because that is “instant gone”.[50]
[50]T59
107“Instant gone” meant you need to be able to do the job 100 per cent, and so post incident, as time went on and live fire increased and he had to wear full hearing protection, he moved himself to roles he could still do 100 per cent:
“… but I wasn’t going in any way, shape or form going to highlight any potential deficiencies because I couldn’t believe that there was capacity that they could find alternate – I could stay within the unit and find alternate positions that I would then be – it would be agreed upon, out of my control, that the best thing for me to do would be work somewhere else.”[51]
[51] T79-80
Converge
108He thought this Victoria Police wellbeing check was in early 2019 but could not be certain. It was conducted by a third party called Converge International (“Converge”).[52] These were regular checks for everyone, and it had nothing to do with the incident.[53]
[52]T46
[53]T48
109He agreed, as was recorded by the interviewer, he really liked his work role – “Being an operator guy, staying longer shifts has been better.” He agreed with the entry in terms of what was challenging about the role – “management of things up and down, dealing with higher rank less competent.”[54]
[54]T47
110He agreed with the entry about his workplace supports – “Other boys. Don’t have crappy days. Not a trap. Read, climb, yoga.” All of that was true.[55]
[55]T48
111The entry under significant events in the workplace was true “at the time” – “Had psych support, was shot in the head, talked about no flashbacks.”[56]
[56]T48
112The plaintiff agreed that he was candid when answering the interviewer’s questions. He confirmed his criticism of management. The purpose of this interview was to assess the culture of the office, so on cultural issues he was more than confident of speaking his mind.[57]
[57]T49
113The entry under current health concerns was true – “can’t have MRI, numbness, jaw pain, blood, lead”. He agreed there was no mention of tinnitus or hearing loss or a noisy work environment.[58] This was not because these things were not concerns for him. He did not mention them because he was “concerned that, if I made light of those, that it would potentially accelerate me being dismissed from the unit.” He was not concerned about jaw pain and other issues leading to a dismissal. He could just suck those up at the time.[59]
[58]T50
[59]T51
114He did not know what ‘taking few’ under the medication heading referred to.[60]
[60]T51
115He accepted that tinnitus did not feature in his comments about sleep problems at that time, but denied it was because it was not a problem. He did mention tinnitus affecting his sleep, ringing in his ears, and for some reason it was not written there.[61]
[61]T52
116In terms of “exercise”, he mentioned climbing, doing gym weights and running twice a week. The majority of that was at work, but he was doing rock climbing at an indoor facility. He was a climbing instructor as a roper in the SOG.[62] “Relaxation” included playing play stations, together with music and playing guitar. He was doing those activities in early 2019.[63] He continues to play the guitar for a bit of enjoyment when he can.[64]
[62]T53
[63]T53
[64]T54
117He thought the Converge interview was to see how the boys were going, not in terms of what their actual health was at the time, but how culturally happy they were in the office, an issue of morale.[65]
[65]T82
118“When you are with the boys, you do not have crappy days.” He got there in 2009. In the end, his stint was thirteen years straight which was quite uncommon – “Like, they were my family, so I didn’t work anywhere else for a long time, not to mention the added bond that you get when you’re in – you’re doing a job that’s high risk and high stress day in, day out.”[66] It is not at all the same as Search and Rescue – “It’s a different culture … it’s not the same.”[67]
[66]T82
[67] T83
119He agreed there did not seem to be any reference to tinnitus to the Medical Panel in 2019. Tinnitus has always been there. It is just causing him more issues now. He was not able to say why he did not mention it to the Panel.[68] He has not really spoken to his wife much about tinnitus causing problems sleeping as he does not tend to speak to her about work or related things.[69]
[68]T76
[69]T76
120When asked whether he had an issue hearing counsel in court, he said when he looked at him, he could. At times, he tried to work out what he had heard counsel actually say.[70]
[70]T77
Mr Baxter’s examination (consequences)
121He could recall being seen by ear, nose and throat (“ENT”) specialist, Mr Baxter, earlier this year.
122As Mr Baxter noted, with the progression and flaring of his tinnitus, the plaintiff would avoid going to cafes if he could. He can go and have a sandwich and a coffee and enjoy it, but he knows he will have trouble hearing and it will flare up. The same happens when he goes out for dinner. He can go, and grins and bears it and sucks it up, but it depends on the cafe. He tends to go to quieter places over and over again. He would not say he “enjoys the idea of going to have to do it.”[71]
[71]T55
123It is true, as Mr Baxter reported, that tinnitus can stop him sleeping. Most commonly, it prevents him falling asleep but occasionally he wakes in the middle of the night with it ringing, especially if the tone changes. That is a rare occasion, and it is mainly to do with the initial part of falling asleep.[72]
[72]T56
124There is a constant sort of quite high pitch ringing, and then when he has a flare-up, it changes to a lower tone, like “hitting a note and it goes for a bit and then that’ll slowly go back off and change”.[73]
[73]T56
125The problems he has with tinnitus depends on the environment that he is in.[74] “It is not physical pain so much, it is distraction and irritation that is major. It is like the worst style of music you do not really like, and it keeps getting played louder and louder and there is nothing you can do. The best is to try and distract yourself and that is why sleeping, quieter things, are better.”[75] The noise is always in his head. It comes in flashes and goes up and down.[76]
[74]T56
[75]T57
[76]T58
126The ringing in his ears is a little bit more than a faint noise; it is with him all the time. It depends on what he is doing. It is much worse when he is underwater. On land, he can just get people to repeat things. It does not affect him doing physical tasks. He can read or comprehend something. The tinnitus does not affect him as long as he does not have to hear.[77]
[77]T59
127Hearing difficulties and tinnitus have got worse over time. He cannot say when that happened.[78]
[78]T65
Activities
128He does a lot of rock climbing. In 2019, he climbed El Capitan, a famous mountain face in Yosemite National Park with an ex-member from the SOG and a current member of search and rescue team.[79] You only wear a lightweight helmet when you are climbing.[80]
[79] T71
[80]T77
129He can go to social events and parties, but he does not. He does not enjoy them as much as he used to. He goes only if he can control it pretty well because if it gets too noisy, he gets overwhelmed and he has to leave. That generally comes from the amount of background noise, so that is why he likes barbeques and things outside opposed to going to big things.[81]
[81]T75
130He still does not go to live music events and concerts, then said he does. He tried to avoid inside music as much as possible. Whether he attends depends on what pressure his wife puts on him to go.[82]
[82]T75
Medication and treatment
131A hearing aid has never been suggested for him.[83]
[83]T74
132He has effectively not taken medication since the incident because he would be on call a lot of the time and he could not afford to have something in his system that would not allow him to hear the call coming and being recalled back to work. He is subject to random drug testing designed to pick up medication as well as illicit drugs.[84]
[84]T78
133Professor Fitzgerald, Director of Trauma at The Alfred,[85] told him there was nothing further that could be done to help him after he got his certificate of capacity. He told the plaintiff it was “pretty much as good as it gets.[86]
[85]T78. On 14 July 2017, he certified the plaintiff fit for normal duties. The plaintiff would need independent rehabilitation for his neck and jaw. This will not impact on normal duties.
[86]T79
Future career
134To some individuals, the culture he comes from, and his qualifications are quite threatened. He would like to stay within Victoria Police doing a role that he feels satisfied in doing and that he could do well for as long as possible. That is his plan.[87]
[87]T83
135His plan was also to stay at the SOG for his entire career:
“… so I do understand that things change, and I understand that – I haven’t given up on Search and Rescue. There is a lot of good things there, you know, so I am committed – so, so long as I can do the work and I don’t put myself or anyone else in jeopardy, then my plan is continue staying and doing it and working there in the hope that it may represent something of a brotherhood or something like that of which I’ve had to give up.”[88]
[88] T84
Lay evidence
136The plaintiff’s wife swore an affidavit on 14 August 2023.
137She met him before the incident. Since then, their social life has become significantly hampered due to hearing problems and his difficulties with tinnitus when they go out in a social setting.
138They are both big music fans and they used to enjoy going to see live bands and attending festivals. They are now significantly limited in their ability to do this due to his hearing difficulty and his tinnitus has become worse in a social setting.
139Sometimes, when they are at indoor venues, he will need to go and sit outside. He has difficulty engaging in conversations in social settings. If they do go to a live music event, they try to go to outdoor venues like the Sidney Myer Music Bowl, and not attend indoor venues due to the acoustics.
140She cuts his hair and when she goes too close, in particular to his left ear and the surrounding area, he will pull away. He is very sensitive to any pressure in that area of his ear.
141He has trouble hearing, both at home and in social settings. The television is turned up to a level that she finds difficult to tolerate at times.
142At night-time, he tries to avoid sleeping on his left side and often changes sides.
143He has become irritable as a result of his restrictions and has a shorter fuse than he used to.
144After a day at work at the SOG, he would come home and tell her that his left ear and surrounding area was aching.
Treaters
Ambulance
145The Ambulance Victoria Patient Care Report dated 5 June 2017 set out the police member sustained injuries to the left side of the face as well as upper body. He was taken to the Alfred Emergency. Initial assessment by ambulance revealed face injury problem and face, neck, shoulder pain.
146There were foreign body multiple entry sites, bullet fragments left cheek, left side of upper neck above jugular vein, left ear, left shoulder blade. Inflammation left cheek, pain described as stinging. No altered conscious state.
Dr Alexandra Wrest, senior police psychologist
147Dr West, Victoria Police senior psychologist, provided psychological aftercare via a critical incident response to the plaintiff on the night of and following the incident. The purpose of the service was to provide immediate psychological and wellbeing support and care and to support coping and recovery.
148She reported on 11 December 2020 in response to a request from the plaintiff’s solicitors to describe her involvement with the plaintiff post incident.
149The incident involved an operational response to a siege event that resulted in the plaintiff receiving bullet fragment injuries to the head and face, requiring immediate hospital care and ongoing medication.
150Once Victoria Police Wellbeing Services were notified of the incident, she attended at The Alfred where she met with the plaintiff and his partner in Emergency. She maintained contact with the plaintiff over about three months following the incident, including face-to-face phone calls and text messages, to ascertain how he was functioning emotionally and psychologically to discuss and monitor symptoms, encourage use of strategies to manage symptoms and provide support and education about trauma responses.
151The plaintiff displayed some post-incident reactions which she considered to be within the normal range of reactions following such events. He displayed some symptoms of anxiety and hyperarousal, as well as some physical symptoms, such as fatigue. He also experienced some anxiety, as well as frustration around the injury and concerns about the impact on his career/workplace.
152These appeared to improve slowly over time to the point where symptom monitoring was no longer required. At the time, there was no identified need for an additional referral for psychological treatment.
153At the last contact, the plaintiff appeared to function well within the context of his injury and recovery. However, this was a significant injury that had had a large impact on him.
Medico-legal
Medical Panel opinion
154On 18 December 2019, the Panel, consisting of Mr Costello an otolaryngologist, Associate Professor Ernest, general physician, Associate Professor Michael Leung, plastic surgeon and Dr Thevathasan, rheumatologist, found the plaintiff had an 11 per cent whole person impairment resulting from the accepted facial scarring to the left face, left ear, scalp, neck, jaw, ear, throat, left forearm and upper torso, relevant to the claimed clavicle shoulder and binaural hearing loss, when assessed in accordance with s54 of the Act.
155The Panel noted the plaintiff was discharged from hospital after about four days. He underwent a subsequent surgical procedure in November 2017 for the removal of residual shotgun pellets from around his left ear and the back of his left shoulder.
156At that stage, the plaintiff described to the Panel his ongoing symptoms as including:
· Imbalance and lack of movement of his neck.
· Scarring over his left ear and back of his shoulder.
· Left ear discomfort that interferes with his ability to wear traditional earmuffs as hearing protection, such that he now uses “active ears” in-ear protection devices when using firearms.
· Numbness over his left face.
· Tinnitus in both ears, which is continuous in nature and more highly pitched in his right ear.
· Hearing impairment involving both ears, such that he now experiences difficulty hearing in noisy environments.
· Reduced jaw opening and constant left jaw muscle discomfort, causing him to tire when chewing hard foods.
157The Panel undertook audiology assessment. It considered that the pattern of hearing indicated normal hearing in the right ear at frequencies 500 to 3,000 Hz and at 4,000 Hz there was asymmetry 20dB resulting in a mild sensorineural hearing loss in the right ear.
158The Panel considered that the pattern of hearing in the left ear also indicated normal hearing at 2,000 to 4,000 Hz and slight losses at 500 and 1,500 Hz (10bD or less), with normal hearing at 1,000 Hz.
159The Panel noted that, during audiometry testing, the plaintiff complained of ringing in his right ear and of a pressure sensitive left ear. Speech discrimination in both ears was 100 per cent.
160In addition to a number of other conditions, the Panel concluded the plaintiff was suffering right sided sensorineural hearing loss (unilateral loss) consistent with an acute noise.
161The Panel carried out an impairment assessment of the accepted binaural hearing loss in accordance with the 1988 NAL edition and with reference to the Ministerially Approved Guidelines for the Assessment of Impairment Compensable Hearing Loss for the State of Victoria.
162The Panel used the frequencies 500, 1,000, 1,500, 2,000, 3,000 and 4,000 Hz in both ears to calculate the binaural hearing loss. It used the lowest reliable thresholds (from bone and air conduction readings) in its assessment of hearing.
163The Panel calculated a 1.3 per cent binaural hearing loss using these frequencies. It applied s6(b) of the Revised 2017 guidelines, as the loss of hearing due to injury only affects the right ear (unilateral compensable hearing) and deducted 0.8 per cent NAL to the left ear non compensable losses at 515 Hz, resulting in an injury related hearing loss of 0.5 per cent NAL.
Mr John Buntine, plastic and reconstructive surgeon
164Mr Buntine saw the plaintiff in December 2018 on behalf of the insurer for the purposes of an impairment assessment. The assessment was in relation to scarring to the left face, ear and scalp, and injury to the left forearm and upper torso.
165The plaintiff described tenderness and induration at the mid-part of the antihelix of his left ear which prevented him from wearing anything on his head which pressed on the ear.
166There was no mention on this examination of any tinnitus or hearing problems.
167The only significant physical finding relevant to the plaintiff’s specialty was persisting induration and tenderness affecting the mid-part of the left ear. The plaintiff said one of the two deeper pellets was still present.
168Mr Buntine thought that situation would slowly subside almost completely over several more years.
169Tenderness interfered with the wearing of sound protection while the plaintiff was regularly engaged in essential target practice and that area must also cause discomfort while lying on the ear at night.
170A small percentage impairment was allowed for scarring.
Professor Andrew Sizeland, head and neck surgeon
171Professor Sizeland examined the plaintiff in December 2018 at the request of the insurer to undertake an evaluation of hearing loss.
172The plaintiff told him of discomfort wearing earmuffs because of the tenderness of the left ear.
173Significantly, for the purposes of this application, the plaintiff reported he had ringing in the left ear since the incident and that his hearing on that side was less than on the right. He reported having trouble hearing in noisy places and trouble understanding words that were spoken.
174Current symptoms were the reduced sensation and hypersensitivity of the left face. The plaintiff said that he continued to have tinnitus in the left ear and reduced hearing. His mouth opening had improved, but he continued to have restriction and discomfort of the mandible and jaw.
175The plaintiff reported he had returned to work after six weeks and was not limited at work or home by the sequelae of the incident.
176On examination, there was tender left TMJ, mouth opening was limited, and there was reduced sensation to touch in the left preauricular area, left temple, left auricula and the left neck.
177The left tympanic membrane was of normal appearance.
178Pure tone audiometry was undertaken as stipulated for the manner of determining percentage diminution of hearing. This showed a mild, left high frequency sloping sensorineural hearing loss and right sloping to moderate mixed hearing loss. Tympanometry was of normal Type A pattern. Middle ear reflexes were present in both ears. Speech audiometry was consistent with pure tone audiometry, with good word scores of 70 dB SPL.
179On the NAL hearing loss scale, there was 2.9 per cent binaural hearing loss.
180The clinical diagnosis was shotgun injury to the left ear, neck and face, with scarring and pain, reduced sensation and subjective reduced hearing and tinnitus of the left ear, but audiometry showing a bilateral hearing loss.
181The sloping hearing loss may have been due to the gunshot injury and the greater loss in the right ear may reflect the complex dynamics of the gunshot injury.
Dr Graeme Doig, general orthopaedics and trauma
182Dr Doig examined the plaintiff on behalf of the insurer in January 2019 to carry out an AMA assessment of the neck, left forearm and upper torso relevant to the claimed clavicle.
183At that stage, most of the plaintiff’s symptoms were related to tenderness around the jaw with restricted mouth opening, facial numbness and earache. He complained of left-sided trapezius muscle – neck pain which could flare up intermittently.
184The diagnosis was of a shotgun injury to the left side of the neck, face and upper torso as a result of which the plaintiff continued to suffer from some intermittent neck pain and restrictions.
Mr Malcolm Baxter, ENT specialist
185Mr Baxter examined the plaintiff on behalf of the defendant in March 2023.
186The following ENT injuries were sustained in the incident:
· Hearing loss – bilateral but worse on the right. The blast was actually on the left, but the plaintiff recalled there was a lot of firing going on close by on the right which affected him.
· He now had a significant hearing loss, worse on the right. He had not had any hearing problems before, but now had trouble with conversation and understanding certain words was affected. The television and telephone had to be turned up loud. He avoided noisy situations such as cafes as the noise irritated him and he could not hear people speak. He had not tried any hearing aids. He was not able to wear hearing protection operationally, but in normal range practices, hearing protection was worn.
· He had also suffered tinnitus which was present and now worse on the right. It was a constant high-pitched ring, more noticeable in the quiet. It occasionally stops when sleeping, but that was not consistent. He woke up and heard it during the night sometimes.
· Balance was not as good as it was. There was no frank vertigo and no interference with ADLs, and he was able to carry out his normal police duties.
· In terms of numbness or altered sensation in the left lower jaw area, that was quite deficient and he believed that may have followed the elevation of the skin for pellet removal. Sometimes there was a sensation of pressure there.
· He also complained of problems chewing and biting.
· There was a frequent left earache, and it was tender. He could not wear earmuffs now. The pain and irritation did affect his job when he had to wear a helmet.
· There was minimal scarring and neck muscles were constantly stiff and he got lots of headaches.
187In terms of occupational history, the plaintiff told Mr Baxter the difficulties with hearing protection during firearm training with the SOG.
188On examination, the tympanic membrane showed very slight tympanosclerosis over the right tympanic membrane. There was no nystagmus. There was slightly reduced opening of the mouth.
189There was an easily mapped out area of decreased sensation or anaesthesia along the left jawline forming an oval from just to the left of the middle of the lower lip up to the ear and extending about two centimetres above the jawline and about three centimetres below.
190The audiogram done that day showed a bilateral asymmetric senso neural hearing loss, worse on the right. In both ears, it affected the lower tones, and in the left, it then rises to normality before deteriorating again, whereas on the right it deteriorates after one kHz.
191The plaintiff presented complaining of hearing loss, worse on the right, with tinnitus, some difficulty chewing and a patch of hypoesthesia of the face. Tinnitus was subjective, of course, but the others were easily confirmed.
192He suspected there had been a psychological reaction, but he was not a psychiatrist and did not think that was unreasonable after being shot in the face.
Overview
193The impairment in this application related to binaural hearing loss and tinnitus. It did not include ear pain and the plaintiff’s other concerns relating to pellets which were still in his body after the incident. In his first affidavit, the plaintiff himself delineated the consequences of both types of injury with the latter including fear of lead positioning, difficulty having an MRI scan, and pain and discomfort in the left ear area, particularly when wearing ear protection.
194The medical evidence relating to hearing testing is somewhat complex. It was not suggested by either party that a certain reading was significant or otherwise- although counsel for the defendant described the readings as “right at the lowest end of the scale”.[89]
[89] T106
195However, there is no dispute the plaintiff suffered binaural hearing loss as a result of the incident. In 2018, Professor Sizeland found a 2.9 per cent binaural hearing loss on the NAL hearing loss scale, In March this year, Mr Baxter found an 8.9 per cent loss on that scale. The Medical Panel found a binaural loss, seemingly using a different method of calculation, describing slight losses at certain levels, normal hearing at other levels and a mild sensorineural hearing loss in the right ear.
196Both the Panel and Mr Baxter found that speech discrimination in both ears – the ability to understand speech – was 100 per cent.
197The level of hearing loss found on testing did not lead any examiner to suggest a hearing aid or some other assistance was required.[90]
[90]T106
198While tinnitus is a completely subjective complaint, the level of which cannot be measured, the defendant did not dispute the plaintiff suffered from this complaint as a result of his exposure to gunfire in the incident.[91]
[91]T102
199The permanency of these conditions is not in dispute.
Credit
200As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[92]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[92](supra) at paragraph [12]
201Counsel for the defendant “certainly made no strident criticism with respect to credit”.[93] However, it was submitted there was a change of focus in the plaintiff’s evidence. What he is now doing is “sheeting it home to hearing loss,” despite what he deposed.[94]
[93] T95
[94]T85
202It was also submitted these affidavits were deficient, lacking in detail. The plaintiff failed to mention his five years continued work in the SOG after the incident. There was virtually no detail of what his current job in Search and Rescue involves, “let alone diving, helicopters, cliff rescues, rescues in the snow, scuba gear required, and all of that also in that job the need to perform communication systems with his other team members.”[95]
[95]T97
203It was submitted the plaintiff attempted in examination in chief to make up the gaps and deficiencies in his affidavit.[96]
[96]T95
204Counsel for the plaintiff submitted the plaintiff was an honest, credible and reliable witness. He was not responsible for what was not in his affidavits or what was put there, and one had to look at all the evidence. There were also the issues of “secrecy” causing difficulties with the level of detail that could be mentioned in the affidavits.[97]
[97]T110
205It was submitted there was a range of impairments in the first affidavit because that was how the application was being brought at the time – all that went to the claim, as it was at that time, using a “shotgun approach”, all the things that had occurred as a result of the incident. By the time the plaintiff swore his second affidavit, the focus was on hearing.[98]
[98]T127
206This situation did not diminish the plaintiff’s case because when he got in the witness box, was the first time he had properly got to tell his story. The purpose of affidavits is to tell the story, but there were the limitations here in terms of secrecy, and on that basis, the wide range of impairments initially deposed to does not detract from the present application.[99]
[99]T128
207During the hearing, I indicated that I thought the plaintiff’s viva voce evidence was very credible.[100] He was an impressive witness. Some of the deficiencies in his affidavits could be explained by the need for “secrecy” as his counsel submitted. Obviously, plaintiffs do not draft their own affidavits. A much more florid picture of the plaintiff’s situation was painted by him in the witness box.[101]
[100]T94
[101]T95
208However, while there may be some explanation for matters not being fully detailed in his affidavits and the need for “secrecy” given the plaintiff’s SOG duties, it was not until this matter came before the Court that there was significant focus on the hearing/tinnitus impairment.
209While the plaintiff gave viva voce evidence of operational matters which may involve “secrecy”, I do not accept he had been constrained or prevented from giving full details of his hearing/ tinnitus problems in his earlier affidavits. What he deposed to at the time was the truth. The reason for his transfer was related to a range of matters, mostly the pain from wearing the headgear, not as a result of any hearing issues as he now claims.
210When all the evidence was considered closely, while the plaintiff’s ultimate position seems to be that he transferred to Search and Rescue because of a hearing/ tinnitus problem, I am not satisfied this was the case. His evidence in this regard, at its highest, was vague and did not persuade me this was the reason for the transfer.
211Further, the plaintiff did not adequately explain his ability to continue in his SOG role for five years after the incident with the hearing difficulties he describes, not being noticed by his co-workers or superiors and then choosing to work in another elite area in the Victoria Police where his hearing would again be an issue.
212My reasons for this finding are set out below.
Employment consequences – Reason for transfer
213Establishing that the transfer from the SOG to Search and rescue was as a result of the hearing problems and tinnitus was central to the success of this leave application.
214As counsel for the plaintiff conceded in opening, “if you start from one premise, the plaintiff cannot win, and that premise would be this is a police constable. And therefore, as a police constable he can go – put on his uniform tomorrow and go back to work.”[102]
[102]T3
215It was the plaintiff’s case, however, that he was “a very unusual character” in that from the moment he joined the employer, the day he was sworn in, he has always been operational within the SOG and, as a result of the hearing loss/ tinnitus, he was unable to continue working in the SOG.[103]
[103] T3-4
216It was submitted that for this particular individual it is a serious injury, one which has caused him to leave a job which he loves, which is different to Search and Rescue – “They are not ad idem and he has described the difficulty he found fitting in with this group, but he nevertheless continued to work.”[104]
[104]T130
217Counsel for the defendant submitted the Court should not accept the plaintiff transferred to Search and Rescue from the SOG due to difficulties with hearing and tinnitus.[105]
[105]T96
218The plaintiff deposed that earmuffs/ helmets were uncomfortable because of the pellets in his left ear and that was an essential part of his work and contributed to his decision to leave. His affidavit was focused on pain.[106]
[106]T134
219The plaintiff gave various reasons for the transfer in his affidavits. Hearing loss was briefly mentioned in his first affidavit, but got far less standing in that affidavit than a range of other reasons.
220It was submitted that the plaintiff gave in his viva voce evidence what was probably the most believable and cogent reason for the transfer, that he was burnt out and wanted a change.[107] It was a very rare occurrence for elite team members to be working in the SOG into their fifties. His evidence was he was burnt out, initially went to Bright and did not like it, came back, and then eventually made the change to Search and Rescue. Also “of course”, there were the other reasons that he deposed to, like retribution, blood poisoning and being unable to have MRI’s.[108]
[107]T94
[108]T99
221While the defendant accepted that the plaintiff may have been suffering from some tinnitus while working in the SOG post incident, it had never risen to a level where it has truly affected his ability to work such that he needed to have a break, or he had to complain or change his duties.
222In response to any suggestion the plaintiff would have been “kicked out” of the SOG if he complained, it was submitted he had been very candid in the Converge survey, mentioning problems with numbness, jaw pain and lead in the blood, but did not mention hearing loss.[109]
[109]T103
223The fact was that the plaintiff was able to maintain his position in the SOG for five years, without any criticism of his performance, then transfer to another elite group where communication and electronic communications are absolutely at the heart of those roles. The plaintiff had never said there was a moment where his competence or ability to do the SOG job was criticised.[110]
[110]T101
224Further, the plaintiff agreed no-one got “carried” in the SOG. It was submitted that spoke loudly for the defendant submission as to what was the actual level of hearing diminution and how it affected his ability to do these very difficult jobs.[111] It appeared from the objective evidence there was very little, if any, impact on these jobs.[112]
[111] T44, L21
[112]T104
225This is not a case where the plaintiff had had to return to a desk job because of any hearing or tinnitus issue. Search and Rescue is not a desk job. He had gone from a very intense, dangerous, active role to another one. This was not the situation the Court dealt with in State of Victoria v Glover.[113] “It was not alternative duties, and it was going back to active, noisy, dangerous duties for five years and then, of course, Search and Rescue which had similar elements.”[114]
[113][1998] VSCA 93; T98
[114]T107
226The plaintiff did not say difficulties with his hearing was the reason for the transfer. It was physical tenderness overwhelmingly in his viva voce evidence.[115] If he had to change his equipment, it was submitted that jarred against his evidence that he did not want to tell anyone about it.[116]
[115]T135; paragraphs 46 and 47 of his first affidavit
[116]T136
227It was also relevant to consider the issues under a Peak[117] analysis.
[117]T93; Peak Engineering & Anor v McKenzie [2014] VSCA 67
228In Peak Engineering & Anor v McKenzie,[118] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[118] Ibid
229In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[119]
[119] Ibid at paragraph [2]
230Given there were a range of other reasons for the transfer to Search and Rescue – the other conditions detailed in the Particulars of Injury – they must be considered and then excluded when considering the consequences of the hearing/ tinnitus impairment.[120]
[120] T93
231Counsel for the plaintiff submitted the plaintiff was a stoic who had been acting at an elite level for virtually all his life, whether as a dancer, stunt man at Japanese Disney, or from the moment he walked into the Police Force straight into the SOG. He has lost his ability to continue in that role because of his hearing difficulties and “that moved it into a serious injury situation.”[121]
[121] T131
232In summary, it was submitted the plaintiff’s occupation was such he was required to wear material which did affect his ability to hear. As a result of that, he had to change what he was given to wear so he could hear through the vibrations,[122] rather than the actual hearing piece provided, and then when they ran out, he had to go back to the system which then led him to looking to go elsewhere because he was not able to hear properly.[123]
[122]T28
[123]T134
233It was submitted the non-organic sound/tinnitus affected the plaintiff’s ability to do his SOG role. There were problems with the interstate training, and he accommodated himself by positioning himself within the units, so he minimised the time close to live firing.[124]
[124]T112
234Once a training facility opened in Victoria, training was more frequent, two to three times a week, sometimes four or five times a week, whereas throughout 2017 and 2018 when interstate, it was one week five days straight. It became more intense, and it was not just a case of grin and bear it as he had done when it was interstate, and it became more difficult coping. It was submitted it was not simply the burnout that led the plaintiff to Bright, but the burnout was contributed to by the extra live firing training.[125]
[125]T115-6
235When he was at Bright, trying to work out his career, it was submitted the plaintiff realised that because of his hearing difficulties, he would not be able to contribute the 100 per cent necessary to work with SOG. He went to Bright because he was burnt out, but part of that was because of his difficulty with hearing doing the local training.[126] At that stage, he applied to join Search and Rescue.[127]
[126]T116
[127]T117
236It was submitted the reason for the change from SOG to Search and Rescue was because the latter role was not going to impact as much on the plaintiff’s hearing.[128]
[128] T11
237The plaintiff explained that with the usual equipment he had difficulty hearing so he had the temporal lobe microphones which he used for a while.[129] The situation with the more conventional gear was that once it was in his ear and with the pressure being exerted by the helmet, he could not hear properly, so he adopted a temporal lobe hearing system which he would not have had to use if he did not have hearing problems.[130]
[129]T121
[130]T123
238The Group ran out of these hearing devices which enabled him to hear things by vibration on his head rather than going through the earplugs. These were available for only a couple of years, then they ran out and he had to go back to using the Group’s equipment.
239Counsel explained using a microphone with some amplification going into your ear, you then put an earmuff over it which would protect your ear from noise, and you put your helmet over it as a tight fit to compress all things together. That affects the plaintiff’s hearing because of all the stuff he has to wear other than pain and discomfort and he is not able to hear.[131]
[131]T121
240When the temporal lobe equipment ran out, the plaintiff had to use the equipment the unit was providing. He found it difficult to hear and he started looking at whether he could do his job.[132]
[132] T124
241Counsel was unable to point to anywhere the plaintiff said specifically having had to go back to using the unit’s equipment he could not hear, as opposed to the head gear being uncomfortable.[133]
[133]T124
242Having advised counsel that I was still not persuaded that other than because of discomfort wearing head gear due to the pellets in his ear, the plaintiff left SOG because of any hearing difficulties, “all” counsel could point to was:
· T36 – where the plaintiff talked about difficulty in hearing because of pressing on the ear (however, the plaintiff was describing hearing devices used when diving in his present job);
· T37 L1 – it affected his ability to do his job. (This was also in search and rescue);
· T43, L20 – The plaintiff was describing how he moved into other roles in SOG such as opting to drive or work in plain clothes;
· T44, L6 – “He specifically told us he changed his role within the unit so he did not have to use his hearing so much.”[134] (The plaintiff mentioned other issues in his affidavit as he could cope with them but he could not manage with the hearing agreeing there was no reason why hearing was not mentioned in his affidavit.)[135]
[134]T126
[135]T44L6
243It was submitted Search and Rescue is completely different and is clearly not the elite section that the community knows as the SOG. The reason for the change was because it was not going to impact as much on the plaintiff’s hearing.[136]
[136]T118
244Counsel gave further details of the Search and Rescue tasks, in addition to the diving the plaintiff described.[137]
[137] T129
Findings
245While the plaintiff was impressive in the witness box, taking into account all the evidence, I am not satisfied he left the SOG because of hearing problems or tinnitus.
246In his first affidavit, in the context of his employment, he deposed the inability to have an MRI was “a real concern for me and has led me to reconsidering my current role and the high risk of injury that is associated with it.” It was a factor in his decision to leave the SOG. He had now secured a transfer where the chance of injury was significantly reduced. He would feel safer in a less combative environment. He did not expect he would leave SOG so early in his career. He had come to the realisation he was placing himself at risk working in this role.
247In his second affidavit where a number of his earlier problems relating to the incident were not mentioned, he described how both the hearing difficulties and the problems associated with the pressure on his ear prevented him from wearing the regular microphones. This increased the pain he already had in his ear. He was coming home from work in pain and experiencing pain after about an hour at work. It was a requirement of the job and also to be worn during training associated with the role. He eventually changed roles due to these difficulties.
248Under the heading “left ear pain”, he said he was concerned it would affect his ability to function in the workplace in his role. He had changed roles due to the pain he was experiencing when wearing the protective headwear required in the SOG role.
249My views as to the deficiency of these affidavits is set in earlier in my credit findings. In summary, I accept the truthfulness of the affidavits and also accept they accurately set out the situation in this case.
250The plaintiff’s viva voce evidence was largely consistent with what he had earlier deposed focussing on ear pain wearing head gear. While he was able to extricate himself, he still was required to engage in live firing. It was difficult, mainly due to the pressure initially – “the compression on my actual ear from the hearing protection.”[138]
[138]T26
251He was struggling and starting to realise he might not be able to continue working at the SOG “mainly due to the issues I was having with my ear. The live fire was ramping up because the new local venue was opened and it was getting to the point where he needed a break.” He was quite concerned about “you know, being sort of found out with my performance, I was very hypervigilant, I was basically burnt out, is probably the best way to put it”.[139]
[139]T34
252Counsel for the plaintiff could not take me to any part of the plaintiff’s viva voce evidence where he said having lost the use of the boom temporal lobe headgear, he left the SOG because he could not hear.
253The main thrust of the plaintiff’s evidence was his difficulty was with pain and discomfort from wearing the headgear.
254There are a number of other reasons why I do not accept the transfer was related to any hearing/ tinnitus issues.
255Significantly, the plaintiff was able to continue in full operational duties at the SOG for five years after the incident. There was no complaint made about his performance or competence. No co worker or superior was aware he had modified his duties in any way, changing the hearing equipment used or otherwise.
256This is not a case where the plaintiff has had to go to a desk job because of his injury. He chose to take up another very active role, involving duties such as diving in search and rescues, where he would have to use hearing equipment. He continues in that role, albeit with the difficulties he described when diving.
257The plaintiff has given various account to some examiners of his hearing issues. He did so while still employed in the SOG. In those circumstances, it is difficult to understand why he would not have been able to complain while at work.
258While the onus is on the plaintiff and I am not required to decide what was the reason for the transfer, the plaintiff’s viva voce evidence that he was burnt out seems to be the most likely explanation, although he did not go so far as to say burnout was due to hearing problems with live firing.
259While his wife corroborated daily problems the plaintiff had with his hearing and tinnitus, she made no mention at all of his hearing issues playing any part in his transfer to Search and Rescue or his disappointment at his career change.
Other consequences
260Counsel for the defendant conceded the consequences of the hearing loss or tinnitus were not trivial – “They were likely to be permanent, but it would be wholly erroneous to consider them serious.”[140]
[140]T93
261Any other claimed consequences were at the very mild end. The plaintiff had retained the ability to engage in a range of activities. As the Court said in Dwyer:[141]
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”
[141]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]; see also Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [44]
262It was submitted the plaintiff had retained an immense amount in his life with recreational hobbies like climbing, diving, playing the guitar, video games and going to music festivals when his wife encourages him to. It was submitted he had retained the ability to do everything in his life and not just do it on a fairly pedestrian level, citing the example of the rock climbing in California – a 2,000 metre climb at El Capitan.[142]
[142]T100
263Further, the plaintiff was able to go hunting recreationally using his own rifles.[143]
[143] T101
264It was submitted the evidence does not support a finding that any loss of hearing has dampened his recreational pursuits.[144]
[144]T101
265Counsel for the plaintiff claimed the difficulty the plaintiff has with diving in his present job is a current pain and suffering consequence.[145]
[145] T129
266Rock climbing is not an issue for the plaintiff because he does not have to wear a helmet to do it, only to protect himself from the rocks and it is not that of the heavy type for ear protection.[146]
[146]T130
267The plaintiff’s hunting activities are very limited having been hunting twice since the incident.[147]
[147] T130
268The plaintiff has adapted his lifestyle to meet his hearing difficulties. He now goes to outdoor music venues only and then when his wife insists.[148]
[148] T131
269The plaintiff is a man who has built his life around work and he has changed work dramatically – it is a dramatic change to move out of the SOG, he had been there thirteen years and there was no indication but for this shooting that he would not have kept doing so.[149]
[149] T132
Treatment
270While what the plaintiff does about his injury, in terms of treatment, is a relevant matter when assessing the seriousness of an impairment,[150] this is not the case in this application.
[150](Supra) at paragraph [11]
271There has been no suggestion of further treatment, the plaintiff having had an initial in patient stay at The Alfred for four days and in November 2017, having had surgery to remove gunshot pellets from his shoulder and around his left ear.
272Professor Fitzgerald certified the plaintiff fit for normal duties following that surgery and suggested no further treatment. The plaintiff did not take any medication on his return to SOG duties.
273Of some relevance, however, is that despite extensive testing for the purposes of this application and there being some loss found, there has been no suggestion the plaintiff wear a hearing aid or try one, or sort one out.[151]
[151]T105
Sleep
274While the plaintiff claims his sleep is affected by tinnitus, there is little evidence in this regard.
275The plaintiff has given varying accounts of the type of tinnitus and what caused it. He did not mention it to Converge and his wife deposed sleeping problems were really more to do with lying on his left-hand side. The Medical Panel made no reference to tinnitus affecting sleep and noted it was associated with neck pains and spasms. Mr Baxter said tinnitus could affect sleep but was only occasional. It was at the minor end of the scale.[152]
[152]T109
276As counsel for the defendant submitted, other than sleep, none of the Haden[153] indicia apply to this application.[154]
[153] Haden (supra) at paragraph [11]
[154] T109
277I am not satisfied the consequences of any hearing/ tinnitus impairment are serious. It is therefore not necessary to undertake a Peak analysis excluding the consequences related to the other impairments set out in the Particulars of Injury.
278Taking into account all the evidence, I am not satisfied the consequences of the plaintiff’s hearing loss and tinnitus are serious.
279On the limited material available, the plaintiff received bullet fragments to his head and face. The ambulance report set out there was no altered conscious state when they attended the plaintiff.
280The plaintiff required only four days in hospital and was cleared for full time duties after surgery to remove the pellets in November 2017. No further treatment has been suggested or is necessary. No hearing aid or other assistance with hearing has suggested.
281The plaintiff continued with the SOG in his normal role for five years and is now working in the active role in Search and Rescue. The transfer to that unit was for a number of reasons, not hearing and tinnitus in particular. While his daily activities are affected by his hearing/ tinnitus issue, that level of interference does not satisfy the serious injury definition.
282Accordingly, the application is dismissed.
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