Neal v Victorian WorkCover Authority
[2024] VCC 785
•4 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04937
| KAM MING NEAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2024 | |
DATE OF JUDGMENT: | 4 June 2024 | |
CASE MAY BE CITED AS: | Neal v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 785 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injuries to both lower limbs – paragraph (a) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pt Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263; Ellis Management Services Pty Ltd v Taylor [2013 VSCA 326
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Slater and Gordon Ltd Lawyers |
| For the Defendant | Ms G-J Cooper | Wisewould Mahony |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in an accident which occurred on or about 29 August 2018 (“the accident”) while he was employed by NW Group Australasia Pty Ltd (“the employer”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to part (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a)permanent serious impairment or loss of a body function; …
… .”
4The impairments of body function relied upon are dysfunction of the right lower limb and separately, dysfunction of the left lower limb.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity (as the case may be) which must be “serious” – that is, if the plaintiff is to succeed in his claim, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases, in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
10By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder (as the case may be) arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
11In reaching my conclusion in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
12The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Further Amended Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1.
The Plaintiff’s background
13The plaintiff was born in November 1981. He is now aged forty-two years. He is separated from his wife. He has two children, aged eight and ten years. They presently live with their mother.[7]
[7]Ex P1, p10
14He left school at the end of Year 10. After leaving school, he worked as a nursery hand at a nursery in Bulleen for about four years. He then worked on and off for Super Homes and Gardens, doing landscaping work. He did this for about three years. While he was working there, he completed a Certificate IV course in horticulture.[8]
[8]Ex P1, pp10-11
15In about 2009, he commenced a Certificate IV course in audio technical production. He completed this course. While he was studying this course, he was subcontracted to various companies performing audio-visual/sound production at music concerts and other events. His duties involved setting up the audio-visual equipment, operating the equipment and then packing up the equipment at the end of the event. Part of his duties also included the installation of the audio-visual equipment.[9]
[9]Ex P1, p11
16He has worked in the audio-visual industry since about 2009. He set up his own business known as “Earthsoundz”. He has performed audio-visual work either through his own business or as a direct employee of the various organisations that he has worked for.
17In about 2012, he commenced working for the employer on a casual basis. He worked intermittently for them on a casual basis from 2012 onwards.[10]
[10]Ex P1, p11
The accident
18The plaintiff described the circumstances of the accident in the following way:
“On or about 29 August 2018 I was working for my employer. On this occasion I was employed by them to pack up the audio-visual equipment from a show that had been held at the Royal Exhibition Building in Carlton. My job required me to remove the equipment from the venue and to return it to the employer’s premises in Port Melbourne.
The audio equipment was loaded onto a truck and then driven back to the employer’s premises in Port Melbourne. I was required to unload the audio equipment off the truck. I was required to do this task on my own without any assistance from a co-worker. I was working with one female co-worker who had told the employer that she had an injury and could not help with unloading any of the audio equipment. I was not given any mechanical aid to assist with the unloading such as a forklift.
I was attempting to manoeuvre a heavy power supply box that was on wheels down a ramp at the rear of the truck. I was walking backwards down the ramp and attempting to control the audio equipment when I felt an electric shock type sensation in both of my heels going up my legs into to the back of my knees.
After this incident I was barely able to walk. A colleague drove me to the emergency department at St Vincent’s hospital. I was examined at the hospital and told that it was likely I had a lower back problem that was causing the pain in my lower legs. I was not referred for any scans and I was discharged.
The following day I attended a physiotherapist at Preston physiotherapy. He also told me that the pain was likely to be coming from my lower back.
On or about 4 September 2018 I saw my regular GP in Ivanhoe. He recommended physiotherapy.
I lodged a Work[C]over claim for my injury suffered at work on 29 August 2018. My claim was accepted.”[11]
[11]Ex P1, pp11-12
19After the accident, the plaintiff continued with physiotherapy treatment but the pain in his lower legs was not improving. He found that the pain was aggravated by walking or by using stairs or walking on sloping ground. He was unable to run. He developed some soreness in his lower back. He developed a limp affecting his right leg.[12]
[12]Ex P1, p12
20On 19 October 2018, he was referred for an MRI scan on both of his lower legs. This MRI scan revealed that he had suffered tears in both of his calf muscles.[13]
[13]Ex P1, p12
21In about December 2018, he began attending Dr Gault, general practitioner, in North Fitzroy.[14]
[14]Ex P1, p13
22In January 2019, he travelled to Bali, to help with the sound mixing of a band that was playing there. He struggled to perform these duties because of his injuries.[15]
[15]Ex P1, p13
23He returned to work in about late 2019. He was performing modified duties. He struggled at work with his employer, both because of his injuries and because he was being harassed and bullied at work by a co‑worker. He ceased working for his employer because of both issues.[16]
[16]Ex P1, p13
24In late 2019, he returned to working in the audio-visual industry again as a subcontractor through his own company, and also as an employee working for other businesses.[17]
[17]Ex P1, p13
25He ceased physiotherapy treatment in about December 2019, because WorkCover ceased funding this treatment.[18]
[18]Ex P1, p13
Evidence concerning the consequences of the Plaintiff’s injury
26The plaintiff tendered two affidavits, the first sworn by him on 5 April 2023 and the second affirmed 24 April 2024.
27In summary, the plaintiff’s evidence as to the pain and suffering consequences which he presently experiences is as follows:
Experience of pain
(a) he suffers from pain in both his right and left calves. The pain in his right calf is worse than the pain in his left calf. The pain in each calf is constant, but varies in intensity. It is a cramping type of pain that can shoot up his legs;[19]
[19]Ex P1, p14
(b) the pain he experiences in each calf separately, increases with usage. He experiences referred pain that goes up his legs about three to four times per week;[20]
[20]Ex P1, p17
(c) the pain in each of his lower limbs continues to be aggravated if he stands on his feet for too long or if he walks for too long. He has been advised by his osteopath to persevere with prolonged walking and doing other exercises to build up the strength in his calf muscles;[21]
[21]Ex P1, p17
(d) he continues to suffer from increased pain in each of his lower limbs if he does any strenuous activity that puts increased pressure on his calf muscles, such as walking up stairs, or up hills, or over uneven ground.[22]
[22]Ex P1, p17
Treatment and medication
(e) he continues to take medication including Voltaren, Nurofen or Aleve for the pain in each of his lower limbs. He takes one of these tablets about three to four times per week, normally about four times per day when it is needed;[23]
(f) he continues to have regular acupuncture and massage therapy treatment on both of his calves. He currently has massage therapy treatment about once per week. He stopped having acupuncture treatment at the end of 2023 because he was too busy, but he has recently recommenced this treatment. Last year, he was getting acupuncture treatment about once per fortnight.[24] He no longer has access to physiotherapy because WorkCover refuses to pay for it;[25]
Sleep
(g) his sleep is occasionally disturbed by the pain in his right calf and separately by the pain in his left calf. This happens about once per week. It depends on how much he has been doing. If he has been very active and his pain has been aggravated, then he will normally be disturbed at night by pain in the right calf and separately the left calf;[26]
Activities of daily living
(h) he is no longer able to run because of the injury to his right calf and separately to his left calf. He can chase after his kids if he is playing with them in the park, but that is about as much running as he can do;[27]
(i) he has difficulty using stairs because of the injuries to both of his calves. By the end of the day he is often hobbling around because of the pain in his right calf and separately in his left calf;[28]
(j) before the accident, he used to enjoy playing golf occasionally with friends. He used to play about once per month.[29] After the accident, he was initially unable to play golf. When he did get back to golf, he had to use a cart to get around the course because of the injuries to both his calves;[30]
(k) he has been able to resume playing golf now, about once per month. He was advised to resume playing golf to try and build up his calf muscles in both legs. He has been able to return to walking around the golf course rather than using a golf cart. However, after playing golf, the pain in both his calf muscles is increased and he needs to take medication afterwards. He will also normally get both his calves massaged because of the pain;[31]
[23]Ex P1, p16
[24]Ex P1, p16
[25]Ex P1, p13
[26]Ex P1, p17
[27]Ex P1, p17
[28]Ex P1, p14
[29]Ex P1, p14
[30]Ex P1, p14
[31]Ex P1, p17
Loss of enjoyment of life
(l) he is working and still running his own business as an audio engineer. He has about six or seven main clients. While it is not always possible, he tries as much as possible to choose jobs where he can operate the audio-visual equipment from a seated position. This limits the sorts of jobs that he can take on;[32]
(m) because of the injury to his right calf and separately to his left calf, he struggles to perform work that requires the installing of audio equipment. Whenever he does this sort of work, he makes sure that the party he is working for hires extra people to do most of the heavier work;[33]
(n) because of the restrictions he experiences with being able to perform his work, he is now less employable in his industry and must be careful with what sort of jobs he takes on. For example because of the injuries to his right calf and separately his left calf, he cannot work at any of the big music concerts, such as would take place at the MCG or Marvel Stadium. That is because he cannot do any of the heavy physical work involved in the setting-up and removal of the audio equipment. Before the accident, he enjoyed working at the big music concerts at big venues;[34]
(o) if he has had a heavy day at work that has involved prolonged standing and/or prolonged walking, then by the end of the day he normally has increased difficulty in walking around because of the pain in his each of his calves;[35]
(p) he is limited to working on smaller jobs which do not involve a lot of pushing and pulling of heavy audio equipment. For example with regard to the recent Taylor Swift concert, he could not have applied for a job at this concert, because of each his injuries separately. He was able to do a job for a Taylor Swift after-party at the Windsor Hotel that was for Taylor Swift fans, because this was a much, much smaller job;[36]
(q) he is currently working about 20 hours per week, but it varies from week to week. Some weeks he might work up to 40 hours but the next week he may only work a few hours;[37]
(r) he has ceased working on a part-time basis for an employer called MAV Melbourne (“MAV”) as an audio-visual technician. Part of the reason he ceased working for MAV was that they were expecting too much of him, given his physical limitations due to the injuries in each of his legs. He was being asked more and more regularly to perform duties which involved pushing and pulling of heavy equipment, which he had great difficulty doing because of each of these injuries. He stopped working for MAV in about March 2024. Since then he has focused on working only for his own business;[38]
(s) he is able to work full-time hours in his own business or if he is working for someone else, provided that he is not required to do any repetitive pushing, pulling or lifting of heavy audio equipment. He is permanently unable to perform these sorts of work duties because of the injury to his right calf and separately to the left calf. This means that he is permanently restricted in relation to the type of jobs he can take on in his industry. For him this is a very significant consequence of the injuries to his right calf and separately to the left calf.[39]
[32]Ex P1, p14
[33]Ex P1, p15
[34]Ex P1, p15
[35]Ex P1, p17
[36]Ex P1, p18
[37]Ex P1, p18
[38]Ex P1, p18
[39]Ex P1, p18
28Under cross-examination, the plaintiff gave the following relevant evidence:
(a) in the year leading up to 29 August 2018, he worked approximately twenty to thirty hours per week, but he cannot recall precisely;[40]
[40]Transcript (“T”) 18, Lines (“L”) 1-4
(b) his work was not on a full-time basis; he was on a contract. All the work was in the audiovisual industry;[41]
[41]T18, L5-9
(c) he was working for the MW Group as a casual when he suffered his injury. He was also working for the Melbourne Recital Centre at that time. The work was on the “big show production jobs”;[42]
[42]T18, L10-16
(d) his jobs required him to load and unload audio-visual equipment, although he did not do that at the Melbourne Recital Centre because they had their equipment onsite;[43]
[43]T18, L17-21
(e) he could not recall precisely how many hours a week he worked for the MW Group, but thought it might have been approximately ten to fifteen;[44]
[44]T18, L22-25
(f) he worked more hours than this in the audio-visual industry generally, but those were his estimated hours for the MW Group;[45]
[45]T18, L24-26
(g) he still loaded and unloaded equipment at the Melbourne Recital Centre, but only very occasionally, probably once per week compared to twice a day in other jobs;[46]
[46]T19, L17-19
(h) with the MW Group, he would load and unload at least twice a day. Trucks would also come with extra equipment which would need to be unloaded and re-loaded at the end of the day;[47]
[47]T19, L20-31
(i) he could not recall how often he would have worked at places like the MCG prior to his injuries;[48]
[48]T20, L5-11
(j) after he was injured, he continued working in his own studio, in his own business, doing cash jobs. He said he was like any other musician, where, when he works in the studio “you lose money, and hope to make something”. He confirmed that in his role as a musician, he is both a guitarist and a keyboardist;[49]
[49]T20, L14-21
(k) after his injury, he took some time off from doing the audio-visual equipment work, but worked in his own studio during this time;[50]
[50]T20, L12-13
(l) he said that in his studio, he produces “rhythms for overseas artists and global artists, and then I mix it and then I release it for … Spotify for public consumption”. When asked if he could simplify the description of this work even further, he said that he “records music”;[51]
[51]TT20-21
(m) he confirmed that his passion is recording music. He confirmed that working in the audio-visual industry is a way to make money while recording his music;[52]
[52]T21, L7-10
(n) he returned to work on modified duties in mid-2019;[53]
[53]T21, L11-13
(o) he was taken to a note dated 15 August 2019 in which his general practitioner, Dr Gault, recorded that he was “able to do light running, skipping and more explosive movements”. He said that this was an accurate reflection of how things were about a year after the injury;[54]
[54]T22, L1-10
(p) it was pointed out that the general practitioner had recorded that he was still having trouble with high-intensity activities, to which he replied “Absolutely. Yeah”;[55]
[55]T22, L11-13
(q) he was asked whether, at that time, he was ready to return to work, having almost gone back to full duties, although not loading and unloading trucks and not pushing up an incline. He said that he could not specifically recall that timeline;[56]
[56]T22, L14-20
(r) he accepted that if that is what the doctor had recorded, then that was the situation at that time;[57]
[57]T22, L21-22
(s) he confirmed that he left the MW Group later in 2019, due to some bullying;[58]
[58]T22, L23-24
(t) in January 2020, he obtained another role, which was more administrative, with an organisation called “Microhire”;[59]
[59]T22, L25-27
(u) he agreed that this is a desk job;[60]
[60]T22, L28
(v) he has a Certificate IV in Business;[61]
[61]T23, L5-6
(w) he said that the job with Microhire was full time and was a sedentary role. He said that he stopped working there because Microhire lost business because of COVID;[62]
[62]T23, L22-27
(x) during COVID, he largely spent time in his studio recording music;[63]
[63]TT23-24
(y) he was doing between fifty and sixty hours per week in his studio (including recording music) during COVID;[64]
[64]T24, L8-13
(z) after COVID, he returned to work for MAV, an audio-visual company who service small hotels and low-budget jobs. Initially he was full time with that company;[65]
[65]T24, L23-30
(aa) he was employed by the same company on a part-time basis from March 2023 until about April 2024. He worked about twenty-four hours per week in that time;[66]
[66]TT25-26
(bb) in addition to working for MAV, in the last twelve months he has been doing contracting work, primarily with a company called Select AV;[67]
[67]T26, L25-30
(cc) he works approximately ten to fifteen hours per week for that company, loading and unloading for lower-budget jobs such as band gigs;[68]
[68]TT26-27
(dd) he also does subcontracting for a company called NextGen AV, approximately eight hours per fortnight. He subcontracts to that company through his own company;[69]
[69]T27, L7-14
(ee) he stopped working for MAV because of the nature of the work they were asking him to do. He found it was beyond his capacity to lift audio racks up and down stairs. In addition, MAV did not give him proper equipment to perform the work and did not giving him proper resources, “human resources primarily”;[70]
[70]TT27-28
(ff) the other reason that he stopped working for MAV was “just general job satisfaction”;[71]
[71]T28, L14-17
(gg) he said in relation to job satisfaction, that this was connected with being asked to do work beyond his capacity, in that MAV was pushing him and he just did not enjoy working for them anymore;[72]
[72]TT28-29
(hh) he said that the work for MAV was too heavy for him from the outset, although he was unable to give a specific timeline;[73]
[73]T29, L17-23
(ii) in 2023, he was unable to do more than about twenty hours per week in the audio-visual area because of the level of manual handling that was expected of him. He said that he did not feel capable of doing this. He spread those hours across three companies at that time. He was hoping to get more work on the “operational side” which was a senior position and less manual, but he had not really gotten into that side of it;[74]
[74]TT30-32
(jj) because of the reason that he could not do more than about twenty hours per week of audio-visual work, he supplemented his income with twenty hours per week in the warehouse at MAV. He said this was “sometimes, yeah. But not every week;[75]
[75]T31, L21-29
(kk) the warehouse work is lighter work than the audio-visual work;[76]
[76]T31, L30-31
(ll) he initially started with MAV in the warehouse, where he was told he was going to have help. He said that he did have the help he needed in the warehouse. He then started to do some audio-visual work for MAV, and he wanted to do that work; however, when he started doing this work, he would arrive at a job and find that there were no people there to help him. He said that because he had been provided assistance in the warehouse by MAV, he had assumed he would be assistance in doing the audio-visual work. He found that this did not happen. Despite this, he would try to do the job that he had been allocated “With massive anxiety”. He said he was met with “Nonchalance and sort of abrasive behaviour”;[77]
[77]TT32-34
(mm)he said that in the audio-visual industry, whether or not you are working in the warehouse or doing audio-visual work, “You just have to stay until it’s done”. He said that is normal in that industry. He said, “And if you’re the one who knows what’s going on. Even if you go home, you haven’t got a choice. You’ve just got to make sure … you make it work”;[78]
[78]T35, L9-17
(nn) he said that two to three months into the job doing audio-visual work for MAV, he really found the work difficult, because it consistently became a situation where he did not have enough assistance;[79]
[79]T35, L28-30
(oo) he clarified that it had always been the situation where he occasionally did not have enough assistance at MAV, and then that increased;[80]
[80]T35, L30-31
(pp) he confirmed that once he has been manoeuvring audio-visual equipment for more than twenty hours a week, he experiences an electric shock in each of his calves. That issue lasts a few seconds;[81]
[81]T36, L16-24
(qq) for this reason, he avoids working more than twenty hours a week as much as possible;[82]
[82]T36, L25-27
(rr) he denied that he is able to work up to twenty hours a week “symptom free”.[83] He agreed that he can manage up to twenty hours of audio-visual work a week: “[Y]eah — specifically the tasks that have been mentioned. I can. Yes”;[84]
[83]T36, L28-29
[84]T37, L3-6
(ss) he said that if he limits himself to about twenty hours a week, then he usually only suffers from “cramping. Just general fatigue … Less longevity”;[85]
[85]T37, L7-12
(tt) he confirmed that he is able to continue working twenty hours a week in the audio-visual industry;[86]
[86]T37, L13-14
(uu) he was asked whether the cramping he is referring to is the same as the “numbing pain” that he had described to Dr Horsley. In response, he said that they are different things;[87]
[87]T37, L15-25
(vv) the cramping he experiences is constant, but only really noticeable after excessive activity. He said, “if [he] felt it now [referring to his right calf area] it’s there”;[88]
[88]T37, L26-30
(ww)the cramping feels like “an ache or pain [if] you go to the gym too much”. He confirmed that it is the type of pain that some people might refer to as “tightness”. He said that that is the basic level of the discomfort that he experiences in each calf, when he is just sitting still, such as in the witness box;[89]
[89]T38, L8-20
(xx) he said that when he pushes himself harder, it gets much worse;[90]
[90]T38, L24-25
(yy) he said that the electric shock and the numbing pain he had described to Dr Horsley, are “on top of that tightness that … is always there”;[91]
[91]T38, L27-31
(zz) he was taken to a note which recorded him telling a medical practitioner “feeling like for most things legs feel normal”. He said that at that time, his legs felt normal up until the time he tried to do activities. He said the activities where his legs felt normal were only for “Easy, easy, easy things … Sitting, cooking, walking to the park”. He said that his legs did not feel normal for “anything that requires next-level things”;[92]
[92]T39, L8-18
(aaa)he agreed that he does not have constant pain throughout the day. He qualified this answer somewhat by saying “I mean, it’s just something I feel there … Like a tightness, like someone who gets a headache … tension”;[93]
[93]T40, L1-28
(bbb)he was taken to his original affidavit where, at paragraph 33, he said he continued to suffer from pain in both his right and left calf, with the pain in the right being worse than the left. He was asked to clarify whether, when he has used the word “pain” in that affidavit, would it be more correct to use the word “tightness”. In response, he replied, “not really. I mean, it’s a pain – it’s a tightness that leads to pain when I use it”;[94]
[94]T41, L21-26
(ccc)he described the pain he suffers from as “something that’s uncomfortable like a headache”. He agreed that it is not like the pain of being stabbed, but that it gets worse with exertion;[95]
[95]TT42-43
(ddd)he explained that the constant level of pain that he is talking about is “the tension, the headache discomfort-type low-level thing that’s … annoying to you”;[96]
[96]T43, L3-6
(eee)he said that he always notices that it is there and could feel it sitting in the witness box. When asked what it felt like at that time, he said: “… something like – if you touch, you can feel a nerve. It shoots … it’s like annoying … and then when you aggravate it, it’s painful … It’s like a tension headache that gets worse … According to stress.”[97]
[97]T43, L3-15
(fff) he said that presently, he is doing approximately twenty to thirty hours of audio-visual work for Select AV and NextGen. He said the remainder of the time he is in his studio doing recording and other things like that;[98]
[98]T43, L17-24
(ggg)he confirmed that he plays golf about once every three weeks. He does not have a ride-on cart, but uses a buggy to wheel his golf clubs around;[99]
(hhh)he confirmed that this means he can walk the whole eighteen holes on his feet for about three to four hours;[100]
(iii) he agreed that he does a martial art called Wing Chun. He does a two-hour private lesson once a fortnight, and sometimes once a week. He also practises for about thirty minutes every day. He said this martial art involves hand work, blocking and guarding and also throwing punches in a sparring-type setting. He denied that it requires a lot of coordinated footwork, especially by comparison with other martial arts. He agreed that when he is sparring, he needs to constantly move around in order to defend or attack his position;[101]
(jjj) he DJs at events on a cruise vessel. He said that happens “maybe twice in one month. Maybe not for three months ... As per required.” He said a DJ shift is between two and five hours;[102]
(kkk)he has two children, and he is able to run around in the park with them and play games. He confirmed that he is able to kick a football with them;[103]
(lll) he agreed that he had a long history of difficulty with sleep even before he suffered the injury to each of his legs. He agreed that he takes cannabis oil to help with his sleep and has been taking that for many years;[104]
(mmm)it was suggested to him that the reason he cannot do bigger audio-visual jobs is because he dislikes crowds and large groups of people. It was suggested to him that it was not just the pain in each of his calves that was the problem, but also the psychological barrier too. In response, he said, “Yes. I mean, I do it, though. Yeah, I still do it … It just makes me feel different”;[105]
(nnn)he clarified further that his avoidance of large crowds was an issue for him “socially, not in work”;[106]
(ooo)when asked why, if he disliked large crowds, historically he did big audio-visual jobs, he replied “Because I liked the work … I like being [an] audiovisual specialist. I like to challenge myself … Stimulate myself”;[107]
(ppp)it was put to him he was still able to do work as an audio-visual specialist, to which he replied “Yes”.[108]
[99]T43, L25-31
[100]T44, L1-12
[101]TT44-45
[102]T45, L4-21
[103]T45, L22-25
[104]T45, L26-31
[105]T46, L13-29
[106]T47, L1-8
[107]T47, L11-19
[108]T47, L20-21
29Under re-examination, the plaintiff gave the following relevant evidence:
(a) he recalled telling Dr Gault in July 2019 that after a long day at work, it would take him about three days to recover. When asked what he meant by this, he replied: “That I have pain to the point where I can’t do normal things and I’ve got that cramping headache thing which is just exacerbated”;[109]
(b) when asked where that pain is, he replied, “through the calves leading up into the legs, yeah. Like, there’s shooting pains like I was talking about.” When asked whether, as at today’s date, he still has that same problem, he replied “Absolutely, yes”;[110]
(c) when asked whether, as at today’s date, if he did a heavy day of work how he would be for the next few days, he replied: “ I would be sort of almost very sedentary and in pain and trying to recover, yep. I would be in recovery, yep”;[111]
(d) when asked how he would get on doing that kind of heavy audio-visual work on a repetitive basis, he replied “Not very well”. When asked if he could do it, he replied “Possibly”. When asked whether he could do it week in, week out, he replied “No”.[112]
[109]T48, 1-14
[110]T48, L15-19
[111]T48, L20-24
[112]T48, L20-29
The medical evidence
30There were numerous medical reports contained in the tendered material. Both parties provided reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
31The plaintiff relied upon one report from his general practitioner, Dr Katie Gault, dated 16 November 2023. In that report, Dr Gault made the following observations:
“Particulars of the injuries sustained; 29/08/18 right grade 3 strain in distal medial head gastrocnemius, grade 2 strain of left distal medial head of gastrocnesmius [sic]. ... The Orthopaedic surgeon ... informed him that he would never return to full capacity and would risk re-injury ongoing if he did not avoid triggering tasks.
... MRI 18/10/18- showed subacute grade 3 strain of distal right medial head of gastrocnemius myotendinous low grade 2 of left distal medial head of gastrochnemius [sic]
... [The plaintiff is] [c]urrently stable but not back to full capacity and can’t do same physical work as before.
In conclusion I support that … [the plaintiff] will not make a full recovery and has not been able to return to the full load and volume of work since his injury. He suffers ongoing pain and tightness in his lower calves when he overloads or overworks and as such has had to compromise on work options at loss to himself. ... his original surgeon who reviewed him during rehabilitation stated he would not make a full recovery and I support this opinion.”[113]
[113]Ex P1, p72
32The plaintiff relied upon one report from Dr Matthew Moore, physiotherapist, dated 21 November 2019. In that report, Dr Moore stated that the plaintiff’s injury was a direct result of his employment with the employer, and the injury occurred during a task that was undertaken routinely within his role. He noted that the plaintiff has since returned to work on modified duties, but remains unable to complete certain tasks, most notably loading/unloading of heavy equipment into/out of trucks via ramps. He said that:
“… This inability is evidenced by his recent experience of pushing a trolley of televisions up a wheelchair ramp at Melbourne University for work. This activity aggravated his calf pain despite being a fraction of the load he was previously required to manoeuvre up/down a (yet steeper) ramp in his pre-injury role. … .”[114]
[114]Ex P1, p63
33Dr Moore thought that the plaintiff currently has decreased strength/power and endurance throughout each of his calf complexes, along with a decreased ankle plantar flexion range of motion in weight bearing, the combination of which renders him unable to perform his pre-injury duties.[115]
[115]Ex P1, p63
34Dr Moore set out that the plaintiff is currently unable to:
· load or unload a truck with equipment weighing >20 kilograms up/down a ramp;
· lift, carry, or otherwise manipulate >20 kilograms or awkward objects >10 kilograms independently;
· tolerate a long (for example ten to twelve-hour) work shift;
· perform torsional/twisting motions of the trunk and lower limbs involving high loads ([the plaintiff] uses the specific example of bolting in seats at the Melbourne Recital Centre).
35Dr Moore thought that suitable duties would feature the following modifications:
· avoidance of any of the tasks outlined above;
· lift, carry, or otherwise manipulate equipment up to 20 kilograms on a flat surface; and
· lift, carry, or otherwise manipulate equipment <10 kilograms on any surface.[116]
[116]Ex P1, p64
36The plaintiff underwent an MRI radiological investigation on 19 October 2018. The report of that investigation concluded that the plaintiff was suffering from –
“Subacute grade III strain of the distal right medial head of gastrocnemius myotendinous junction.
Low grade II strain of the left distal medial head of gastrocnemius myotendinous junction.”[117]
[117]Ex P1, p44
37The plaintiff relied upon an opinion from a Medical Panel dated 17 November 2021. In that opinion, the Medical Panel made the following observations:
(a) the plaintiff told the Panel that he continues to experience constant pain in both calves, the right more than the left. His physical activity is limited by pain symptoms in each of his legs;[118]
(b) he is able to walk for about half-an-hour but is unable to participate in other activities such as kicking a football with his children or walking for an extended period particularly on uneven ground. He described that with any increased activity, he experiences pain in each of his calves which then takes several days to settle;[119]
(c) as he has always worked in physically demanding jobs, he is concerned that he will not be able to return to his previous level of physical capacity;[120]
(d) the Panel concluded that the plaintiff is suffering from a right lower leg and left lower leg dysfunction following tears of both the right calf musculature and separately, the left calf musculature, with resultant associated dysfunction of both ankles and both hindfeet relevant to the accepted right calf and left calf injury;[121]
(e) the Panel considered that the plaintiff’s medical condition is stable.[122]
[118]Ex P1, p36
[119]Ex P1, p36
[120]Ex P1, p36
[121]Ex P1, p38
[122]Ex P1, p38
38The plaintiff relied upon one report by Mr Thomas Kossmann, orthopaedic surgeon, dated 14 December 2023. For the purposes of providing the report, Mr Kossmann stated that he had reviewed approximately 244 pages of documentation. He recorded that the plaintiff told him that the injuries which he suffered in a work-related accident had a –
“… profound impact on his social, domestic and recreational activities. … [The plaintiff] complained that he has ongoing twitches in both of his calf muscles. In a very limited capacity, he is able to manage staircases, inclines and declines. He told me that he needs a lot of maintenance treatment to keep up with his present condition.”[123]
[123]Ex P1, p75
39Mr Kossmann diagnosed the plaintiff as suffering from:
“Low grade II strain of the left distal medial head of gastrocnemius myotendinous junction;
Subacute grade III strain of the distal right medial head of gastrocnemius myotendinous junction.”[124]
[124]Ex P1, p80
40Mr Kossmann set out the plaintiff’s symptoms as being the following:
“· Ongoing twitches in both calf muscles;
· In a very limited capacity, he is able to manage staircases, inclines and declines;
· Needs a lot of maintenance treatment to keep up with his present condition;
· Slight muscle differences in his calves of about 1cm less on the left side.
… .”[125]
[125]Ex P1, p80
41Mr Kossmann thought that the plaintiff’s prognosis regarding his each of his calf injuries is “guarded”. He recommended that the plaintiff avoid walking long distances, walking on uneven ground, walking up stairs and down stairs, walking on inclines and declines, climbing up and down ladders, kneeling or squatting, and carrying heavy items weighing more than 2 to 5 kilograms. It was Mr Kossmann’s opinion that this incapacity would continue for the foreseeable future.[126]
[126]Ex P1, p81
42Mr Kossman was of the opinion that the restrictions now facing the plaintiff, both as to his work capacity and his ability to undertake social, domestic and/or recreational activities, arose from the injury to his right calf and separately, from the injury to his left calf.[127]
[127] Ex P1, pp81-84
43The plaintiff relied upon one medico-legal report from Dr Robyn Horsley, occupational physician, dated 29 November 2023. In that report, Dr Horsley noted that prior to the accident, the plaintiff’s hobbies and interests had included composing music. She said that he has his own studio and his own business, recording music. He has his own label. She said that he has returned to full-time work. As a consequence, his ability to work in his studio has reduced. She said that over COVID, the plaintiff had often spent fifty to sixty hours per week in the studio.[128]
[128]Ex P1, p91
44In relation to social activities, Dr Horsley noted the plaintiff told her he plays golf once every three weeks on a social basis. He spends time with his children. He does a martial art called “[W]ing [C]hun”. He described this martial art as “form work, pad work, light sparring”. He stated that it is “a bit like [T]ai [C]hi where it had a health focus rather than a fighting focus”. The plaintiff believes that it helps maintain his body. He does this weekly for two hours, and then practises daily for thirty minutes.[129]
[129]Ex P1, p91
45Dr Horsley noted that the plaintiff gained a Certificate IV in Business when he was twenty-one years of age.[130] At the time of her report, Dr Horsley recorded that the plaintiff “spreads his time across three organisations – MAV, Select AV, and Next Gen”.[131] Dr Horsley said that from an audio-visual perspective, in the three organisations, the role involves developing a stage plot, and then a stage plan, executing the plan, loading up the equipment, setting up the equipment, operating the equipment, and then dismantling, unloading, and delivering back to the depot. She said that the plaintiff told her that he “tries to do more operation. It is a senior position and less manual.” Dr Horsley said that unfortunately, “[the plaintiff] is unable to do more than approximately 20 hours per week in the audio visual area because of the level of manual handling”.[132]
[130]Ex P1, p91
[131]Ex P1, p92
[132]Ex P1, p92
46Dr Horsley said that if the plaintiff does more than twenty hours per week –
“He then experiences symptoms in his calves, so he is supplementing his income with 20 hours per week, in the warehouse at MAV, where he retrieves the audio visual equipment, loads, and unloads it. ... There is some manual handling assistance from a colleague, if his colleague is available. … .”[133]
[133]Ex P1, p92
47Dr Horsley said that the plaintiff told her that he experiences greater symptoms in his right calf than in his left calf. In relation to his right calf, she said:
“… He can experience an electric shock; that lasts for a few seconds. It is 5 out of 10 on the visual analogue scale, and it is followed up with ‘a sensation of weakness’ and some discomfort behind the knees. He stated that it occurs depending upon his level of activity. Once he is manoeuvring audio visual equipment for greater than 20 hours per week, he can experience the electric shocks. Therefore, he avoids working greater than 20 hours per week and so is now doing warehouse work.
There is also a ‘numbing pain’ which is at the back of the calf. It can last until he stretches and uses Voltaren. Again, it is 5 out of 10 on the visual analogue scale. It can occur with prolonged walking.
He experiences similar symptoms in the left calf, but less frequently. It might only occur once a fortnight, if he is doing greater than 20 hours per week in the AV area. … .”[134]
[134]Ex P1, p94
48Dr Horsley noted that the plaintiff avoids running and also jumping. She said that the plaintiff told her that he would “probably be symptom free if he ‘had a different lifestyle and he had time to do maintenance’.”[135]
[135]Ex P1, p94
49Dr Horsley said that the plaintiff’s sitting, static standing, dynamic standing, walking tolerances, and driving tolerances are all within normal limits. She noted that the plaintiff did state that he tried to drive an automatic truck, and within a day had begun to experience the electric shocks in his right calf.[136] The plaintiff told Dr Horsley that:
“… repetitive flexion and extension of the right foot or heel to toe activity repetitively, and under strain seems to be the trigger. He self-manages by avoiding this activity. He also ‘keeps the muscle strong, maintaining the strength around the calf with his exercise program’.”[137]
[136]Ex P1, p94
[137]Ex P1, p94
50Dr Horsley stated that she observed no fear avoidance behaviour in the plaintiff’s presentation.[138] Dr Horsley confirmed the diagnosis that had been made by other medical practitioners of the plaintiff’s condition. She said that he has made a moderate recovery but does still have some residual symptoms. She thought, given the length of time since the injury, the ongoing nature of the symptoms and given that the plaintiff is now five years post-injury, that the symptoms are likely to persist.[139] She noted that the plaintiff is presently self-managing his activities, but feels limited to approximately twenty hours per week of audio-visual work –
“… because he knows that anything beyond that, will aggravate his right [calf] greater than left calf. I note the heavy nature of the work. ...
… This condition impacts upon his overall career options.”[140]
[138]Ex P1, p94
[139]Ex P1, p95
[140]Ex P1, p95
51Dr Horsley believed that the following work restrictions would be prudent when considering the plaintiff’s injuries:
“· Avoidance of repetitive squatting under load;
· Avoidance of repetitive heel to toe activity under load;
· … [The plaintiff] is currently manually handling items that vary from 10 to 80kg on history. When he gets beyond 20 hours per week of heavy load, he experiences the symptoms. He needs to work within those self-limitations;
· His walking, driving, static standing, [and] sitting tolerances are all within normal limits. He avoids running and jumping.”[141]
[141]Ex P1, p96
52Dr Horsley observed that:
“For the symptoms to completely resolve, … [the plaintiff] would need to work in an environment that is less manual. This condition does impact upon his overall career choices.”[142]
[142]Ex P1, p96
53The plaintiff relied upon a report provided by Associate Professor Bruce Love, orthopaedic surgeon, dated 27 June 2023. This report was originally provided to the defendant’s solicitors. In that report, Associate Professor Love stated that the plaintiff’s current symptoms involve intermittent calf pain, particularly when walking distances. He thought that the plaintiff’s presentation resulted as a consequence of the accident on 29 August 2018.[143] He thought that it could be stated “with certainty” that each of the current right and left calf conditions were causally linked to the accident on 29 August 2018. He based this opinion on “the continuum of symptoms”.[144]
[143]Ex P1, p113
[144]Ex P1, p114
54Associate Professor Love said, “In view of the symptoms now being present for some five years it is improbable that resolution can be anticipated in the foreseeable future”. Associate Professor Love said that he did not detect any functional component in the plaintiff’s presentation.[145] Associate Professor Love offered to provide an additional or supplementary report if any matter required clarification or if any additional information becomes available. No supplementary report was sought by the defendant.[146]
[145]Ex P1, p114
[146]Ex P1, p115
55The plaintiff relied upon a report of Associate Professor Miron Goldwasser, orthopaedic surgeon, dated 12 March 2021. That report was originally provided to the defendant. In that report, Associate Professor Goldwasser stated that the plaintiff had “suffered significant injuries to both calves, with traumatic injury to the gastrocnemius of the right lower limb and also of the left lower limb”.[147] Associate Professor Goldwasser said that the plaintiff’s injuries had been treated conservatively and there has been a considerable improvement in his condition “but not a return to full normality”.[148]
[147]Ex P1, p125
[148]Ex P1, p125
56Associate Professor Goldwasser described that the plaintiff has symptoms with intermittent flare-ups. He said that the plaintiff has managed to find suitable work, which he is able to do. He noted, however, that the plaintiff is worried about his condition, and, while he is reluctant to have surgery, it is possible that he would consider it if he was advised to do so.[149]
[149]Ex P1, p125
57Associate Professor Goldwasser noted that the plaintiff was “friendly and co‑operative throughout the consultation and clinical examination”.[150]
[150]Ex P1, p122
58The plaintiff relied upon an entry in the general practitioner’s medical notes dated 17 July 2019. That note stated, inter alia:
“Recovery not yet 100%, thinks he will never get back to 100%
…
Will likely be on full duties next month
after a long day of work takes about 3 days to recover
long discussion about reskilling and mental health and stressthinking a less physical career change is in order.”[151]
[151]Ex D1, p73
The Defendant’s medical evidence
59The defendant relied upon two entries in the medical notes of the plaintiff’s general practitioner, the first dated 19 June 2019 and the second dated 15 August 2019. In the 19 June 2019 entry, it was recorded by Dr Gault that the plaintiff told her that, for most things, his “legs feel normal”. It was noted that “fast action like skipping – explosive is not returning, can run but can’t sprint”. It was also noted that the plaintiff can kick the football with his kids.[152]
[152]Ex D1, p72
60In the note dated 15 August 2019, Dr Gault recorded:
“Able to do light running, skipping, more explosive movements
not going to get back to previous explosive movements
specialist review on [M]onday
ready for work by now hopefully
has gone back to almost full duties - not trucks
not pushing up an inclineworking 4 days a week
10-20 hourshopefully will go up.”[153]
[153]Ex D1, p73
The Plaintiff’s credit
61During cross-examination, the plaintiff was challenged in relation to some aspects of his evidence, in particular his description of the pain he experiences, his ability to play golf, work, and engage in activities with his children.
62In relation to these matters, as set out above, the plaintiff gave cogent and compelling evidence about his experience of pain in each of his lower legs. He was frank in his admissions about being able to engage in up to twenty hours of audio-visual work per week, and credible in his description of the physical effects he experienced, especially in his right leg, if he pushed himself past these parameters. He was able to describe in a compelling way his threshold level of pain in each of his calves, which he described as being like a headache, and then the development of stronger pain in the form of electric shocks and shooting pain, if he did heavier tasks. He described the fact that if he does a heavy day of audio-visual work, he has to have a period of rest and recovery, which he told his general practitioner, was “about three days”.
63Lastly, as to his ability to engage in recreational activities, he freely admitted to being able to play golf about every three weeks, to regularly being able to participate in Wing Chun and to his ability to play with his two children, including being able to kick a football with them. His evidence indicated that he well understands his physical limitations and tries to keep his activities, whether work based or private, within those limitations.
64Having had the benefit of observing the plaintiff while giving his evidence to the Court, I formed the view that he was an honest witness who appeared to be doing his best to provide accurate responses to the questions asked of him. Furthermore, I find that the plaintiff’s account of events remained consistent throughout the period in which he has been seeing his treating practitioners, consulted with the medico-legal assessors, and provided evidence to this Court. His account of events and the consequences from which he presently suffers is corroborated by the content of the medical reports of the treating medical practitioners, the medico-legal experts of both parties and the decision of the Medical Panel. Those documents set out in detail the plaintiff’s account of his pain and its consequences for him in each of his calves and the restrictions which the plaintiff presently faces as a consequence of each of these injuries.
65After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the medical reports and other documents tendered to the Court, I consider that he was a credible witness in the sense of being a truthful person.
Stoic Plaintiff
66Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been extremely stoic in relation to his condition and has taken numerous steps to try and continue working and living his life as best he can.
67I find that despite the consequences of each of his injuries which he has suffered daily since the workplace accident, he has continued to work both in his own business and for outside companies, albeit in that environment, with modified duties. I find that as a result of those modifications, the plaintiff has been able to continue working in both warehousing and audio-visual work, for up to forty hours per week. Acknowledging the difficulty which some of the tasks which he would otherwise have to perform may cause him, the plaintiff only takes on jobs which he is able to manage within the restrictions caused by each of his injuries. He gave evidence, and I accept, that these work restrictions mean that his options to obtain audio-visual work are limited. In particular, he is prevented from applying for any work involving large stadium-type audio-visual work, such as the recent Taylor Swift tour at the MCG. I accept the evidence he gave to the Court that although there are some tasks which cause him pain, such as walking long distances, he does them anyway, because he has been advised to try to build up the strength in his calves.
Compensable injury
68The details of the occurrence of the accident are not in dispute.
69Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffered:
(a)an organic injury to his right calf in the form of a traumatic injury to the gastrocnemius of the right lower limb; and
(b)an organic injury to his left calf in the form of a traumatic injury to the gastrocnemius of the right lower limb.
Is the compensable injury permanent for the purposes of the Act?
70Having considered the relevant reports, and in particular the reports from Dr Gault,[154] Mr Kossmann,[155] Dr Horsley[156] and Associate Professor Love,[157] I find that the plaintiff is likely to suffer from the consequences of each of the injuries he sustained while working for the employer, for the foreseeable future. Given this, I find that each of the injuries is permanent for the purposes of the Act.
[154] Ex P1, p72
[155]Ex P1, p80
[156]Ex P1, p95
[157]Ex P1, p114
Are the consequences to the Plaintiff of the workplace injury “serious”?
71In Haden Engineering Pty Ltd v McKinnon,[158] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[159] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[160]
[158](2010) 31 VR 1
[159]ibid at paragraph [9]
[160]ibid at paragraph [12]
72I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in his approach to managing his injury, particularly in the form of his commitment to treatment, his attempts to return to his usual activities of daily living and his attitude to performing his work duties in a modified manner.
73The fact that the plaintiff has been prepared to keep working since the accident, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[161]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[161][2008] VSCA 260 at paragraph [3]
74As was observed in Hooley v Transport Accident Commission:[162]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[162][2019] VSCA 263 at paragraph [51]
75In Kelso v Tatiara Meat Co Pty Ltd,[163] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[163]Supra at paragraph [199]
The right calf injury
76Having considered all of the evidence, I find that by reason of the injury sustained in the accident to his right calf alone, the plaintiff suffers from the following consequences:
(a) constant pain which, at a “base level”, the plaintiff describes as being like tension, a headache or an aching muscle after too much gym work;
(b) this pain varies in intensity, depending upon what activities he has been undertaking. When exacerbated by too much work or doing activities such as walking up stairs, up hills, or over uneven ground, the pain becomes a cramping-type of pain that can develop into electric shocks which shoot up into his leg;
(c) the pain is aggravated if he stands on his feet for too long or if he walks for too long;
(d) the need to take medication including Voltaren, Nurofen or Aleve for his pain. He takes one of these tablets about three to four times per week, normally about four times per day when it is needed;
(e) the need to engage in regular acupuncture and massage therapy treatment on his calf;
(f) occasional sleep disturbance, depending on how much he has been doing. If he has been very active and his pain has been aggravated, then he will be disturbed at night by pain in his calf (although he freely acknowledged having had longstanding sleep difficulties prior to the accident);
(g) an inability to run. He can chase after his kids if he is playing with them in the park, but that is about as much running as he can do;
(h) difficulty using stairs and difficulties with excessive activity generally;
(i) the need to increase his medication and get massage therapy for his calf, after playing golf;
(j) the inability to work pain free;
(k) a limitation in the type of work he can undertake. He is permanently unable to perform work that involves any repetitive pushing, pulling, or lifting of heavy audio equipment. In turn, this limits the sorts of jobs that he can take on in the audio-visual industry. For instance, he cannot work at any of the big music concerts, such as occur at the MCG or Marvel Stadium. That is because he cannot do any of the heavy physical work involved in the setting-up and removal of the audio equipment. Before the accident, he enjoyed working at the big music concerts at big venues. The plaintiff submitted, and I accept, that the limitation in his ability to perform this type of work, is a significant consequence for him in relation to his loss of enjoyment of life;[164]
(l) increased difficulty in walking around because of the pain in his calf if he has had a heavy day at work that has involved prolonged standing and/or prolonged walking. By the end of such a day, he is often “hobbling around”; and
(m) the need to take up to three days to rest and recover if he exceeds his physical limitations.
[164] See Ellis Management Services Pty Ltd v Taylor [2013 VSCA 326 at paragraph [35]
77By reason of the plaintiff’s age, I find that he will continue to suffer from each of the consequences set out above for a lengthy period of time, which in turn means that these consequences are more significant for him than they might be for another, older plaintiff.
78Having regard to the relevant case law and by reason of the findings which I have made above about the consequences from which the plaintiff suffers as a result of the injury to his right calf alone, I am satisfied to the requisite standard, that those consequences are properly described as being “very considerable”. In those circumstances, I am not required to proceed to consider whether the plaintiff’s injury to his left calf alone constitutes a separate serious injury.
Conclusion
79As set out above, I am satisfied, to the requisite standard, that as a consequence of the workplace events, the plaintiff suffered a “serious injury”, as defined in the Act, in the form an organic injury in the form of a traumatic injury to the gastrocnemius of the right lower limb. In those circumstances, the application is granted.
80I will hear the parties on the question of costs.
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