Nguyen v G James Safety Glass Pty Ltd
[2012] VCC 1291
•30 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03941
| VAN DAO NGUYEN | Plaintiff |
| v | |
| G JAMES SAFETY GLASS PTY LTD | Defendant |
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JUDGE: | His Honour Judge Murphy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 23 August 2012 | |
DATE OF JUDGMENT: | 30 August 2012 | |
CASE MAY BE CITED AS: | Nguyen v. G James Safety Glass Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1291 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation – Serious Injury – Loss of earning capacity and pain and suffering – suitable employment – light duties positions – whether worker able to perform – whether 40% loss of earning capacity – whether pain and suffering "at least very considerable"
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Wicks | Maurice Blackburn |
| For the Defendant | Mr C. Miles | Wisewould Mahony Lawyers |
HIS HONOUR:
Introduction
1 Mr Van Nguyen, a 52 year old migrant manual worker from Vietnam with limited English, claims he suffers from chronic back pain following a lifting incident at work in July 2006 when employed by G James Safety Glass Pty Ltd. He was off work for a short time and returned to his normal duties, had a relapse, then under a return to work plan resumed full-time work in a sedentary position. He lost that position in January 2010 and has not worked since.
2 There is a contest as to whether he is presently capable of full-time employment in sedentary duties, such as a car park attendant, machine operator or grocery shop attendant. The plaintiff also claims that he suffers as a consequence of the impairment to his low back significant reductions in his enjoyment of life as a result of the pain and suffering and restrictions of his earning capacity.
3 The Accident Compensation Act 1985 provides in s.134AB for the court to control the "gateway" to access to common law damages proceedings and loss of earning capacity and/or pain and suffering as a result of injury sustained at work. The Act mandates the grant of a certificate to issue proceedings where a physical injury has impairment of body function consequences that are "at least very considerable".
4 In this case there was some debate as to the first issue, the nature and extent of the plaintiff's physical injuries. The second issue was whether the plaintiff's capacity for suitable employment as defined had been reduced by the necessary 40 per cent. The issue is whether sedentary duties or light work duty positions were in truth open to the plaintiff given his age, work experience, education, skills and language background.
5 Should that issue be decided adversely to the plaintiff, the third issue became whether any reduction in earning capacity, loss of enjoyment of life, and pain and suffering met the at least very considerable test.
First issue: What is the nature and extent of injury?
6 The plaintiff is aged 52. He left school at about age 13 and then went to work with his father as a fisherman. He arrived in Australia in 1981 and received 500 hours of English language training but had difficulty learning.
7 From about 1981 to 1985 he worked on an assembly line at Ford, and from 1985 to 1990 worked in a tap factory known as Donson. He returned to Vietnam in 1990 and married and then returned to Australia with his wife. She had three children and the couple separated in about 1998. Between 1990 and 1999 the plaintiff was not working.
8 The plaintiff commenced employment with the defendant in April 1999 working as a labourer utility worker. Part of his duties involved the repetitious lifting of heavy pieces of glass weighing up to 28 kgs. He reported an incident involving back pain in August 2003 but after a short period absent and on modified duties was able to return to normal work.
9 His low back pain increased around mid-2006. His back pain worsened considerably when, on 28 July 2006, he was lifting heavy sheets of glass. He saw his local general practitioner, Dr Choon, who ordered an x-ray which showed spondylolisthesis and what is known as a pars defect at L5. He was treated with rest and pain relief and was able to return to work in his usual duties after a period of light duties.
10 He saw Dr Choon again in May 2007 as his back pain had reappeared. A CT scan indicated that he had bilateral L5 pars defect and that the right L5 nerve root could be compromised. The diagnosis of Dr Choon was degenerative disease with sciatica, complicated by anterolisthesis of L5 on S1.
11 The plaintiff was provided with a return to work plan by the defendant. That plan involved very light clerical duties which the plaintiff was able to achieve progressively to full-time. The plaintiff continued on that light work plan through to January 2010.
12 In a report dated 25 September 2008 Dr Choon indicates that he believes that the plaintiff would be able to return to his normal duties but that unless there was further injury or deterioration he would not require further treatment.
13 The plaintiff was seen by Mr Peter Wilde, orthopaedic surgeon, on 14 October 2008. He saw the plaintiff only once and diagnosed "aggravation of lumbosacral degenerative disc disease without radiculopathy". He went on:
"It is likely that there was a degree of asymptomatic degenerative disc disease prior to this injury. However, the injury caused further internal disc derangement thus precipitating symptoms."
14 He noted that conservative treatment had been appropriate, he did not believe surgery was indicated and said that:
"Prognosis is guarded and I expect he will always suffer with low grade symptoms of chronic lumbar pain and stiffness. He will have to modify personal work activities to accommodate his symptoms and to avoid further deterioration. His condition has stabilised. He is not able to return to his full pre-injury work or other forms of physical or manual work."
15 Mr Wilde noted that at that time the plaintiff was working full-time in light sedentary duties doing bookwork and coping with this workload. He noted that he had no current capacity for his full pre-injury duties but can work in modified alternative duties. He ends with:
"Mr Nguyen should be able to work in modified light duties with sensible restrictions applied until retirement age of 65 years."
16 The plaintiff was seen by Mr John F O'Brien, orthopaedic surgeon, on 17 December 2008. He had reviewed the CT scan and noted that the plaintiff:
"... now has non-specific back pain which possibly could be discogenic in origin although there is certainly no known clinical evidence of prolapse or indeed radiculopathy."
17 He indicated the plaintiff was having no active treatment and that standard conservative treatment had not had any effect. He said he would expect persistent back pain which will cause some ongoing restrictions of his general, domestic, social and recreational activities.
18 The plaintiff was seen by Mr Peter Kudelka, orthopaedic surgeon, on 9 March 2010. He noted that the plaintiff had told him he took tablets to relieve his symptoms for a while but does not take any medication now. He describes the plaintiff's condition as aggravation of a developmental abnormality. His incapacity was "back pain and stiffness." He indicated that the plaintiff would not be able to return to his pre-injury duties and that future employment will have to avoid prolonged sitting and standing and repetitious lifting of weights in excess of five to 10 kgs. He recommended English classes and an occupational rehabilitation program.
19 In a report dated 24 May 2010, Dr Choon stated that the plaintiff "will continue to experience low back pain intermittently depending on the activities that he is involved in. He may require rest, analgesics and remedial massage therapy or physiotherapy now and then."
20 The plaintiff was seen on two occasions by Dr Yong, specialist occupational physician. In his first report, dated 8 February 2011, he noted that the plaintiff was not having any current medical treatment or taking any medication. His opinion was the plaintiff "is a man with chronic low back pain which began with a discal injury."
21 He was of the opinion that the plaintiff had a current capacity for work for duties that avoiding repeated bending and lifting and therefore he did not have a capacity to return to his pre-injury duties and hours but he had a work capacity with more limited duties. He assessed the plaintiff at that point as having the capacity to undertake the work of a car park attendant, and other roles such as sales assistant/Vietnamese grocer, machine operator, commercial cleaner and store person, would need individual assessment to ensure that the complied with the 5 kg weight restriction, or with forklift driving, if he was able to have a break during driving duties.
22 The plaintiff was seen by Dr Robyn Horsley, occupational physician, on 9 February 2011 and she noted that his current medication was Panadol on an "as needs basis". She indicated that the plaintiff was walking with an antalgic gait. She was of the view that he is "appropriately self-managing with a walking regime and extensive swimming programs." She regarded him as "presenting with ongoing and significant disability," that his functional tolerances were reduced, that he had a permanent partial incapacity for work and that any duties would require restrictions such as restrictions on repetitive pushing, pulling and lifting.
23 Mr Michael J Dooley, orthopaedic surgeon, examined the plaintiff on 23 June 2011. He noted the plaintiff walked without a limp. He was of the view that given that the plaintiff had an underlying structural variation of his low lumbar spine, and given his heavy work, this aggravation would explain ongoing intermittent long low back pain and lower limb pain. However, he was of the view that the constancy and intensity was greater than one would expect to see. He was of the opinion that the plaintiff was able to carry out light physical work and clerical duties, including as a car park attendant but not as a store person. In his final report of 13 June 2012 he noted that he found "a significant psychological component to the plaintiff's presentation."
24 Mr Kevin King, orthopaedic surgeon, examined the plaintiff on 5 July 2012. He found no leg pain and stated that the plaintiff told him that he continued to suffer constant aching pain in the low back region, usually of moderate severity with occasional quite severe flare-ups. Mr King opined, on the basis of the plaintiff's history and the explanation of the event, that he had suffered an acute injury to one or more of his lumbar discs and associated ligamentous structures, superimposed upon mild pre-existing degenerative changes. Mr King was of the view that he was unfit for heavy manual unrestricted labouring, but could theoretically manage lighter tasks that do not involve heavy lifting, bending or straining.
Conclusion: Nature and extent of injury
25 In closing, Mr Miles submitted that the physical injury was a mild to moderate aggravation of pre-existing asymptomatic damage to his lumbar spine. In closing address, Mr Wicks did not take issue with that description and I accept that as a fair description of the plaintiff's low back condition.
26 Mr Miles, in his closing address, noted that the plaintiff was not the subject of any current treatment and had not been referred to any specialist other than Mr Wilde in 2008, nor had there been more advanced investigations such as an MRI. Further, Mr Wilde had suggested a referral back should symptoms worsen.
27 The one area if dispute on the medical evidence in relation to the plaintiff's condition is whether there is in fact any muscle wasting as a result of any nerve root impingement. Dr Horsley stated she had measured same in her examinations, yet Mr Dooley noted no visible muscle wasting in his final report. Mr O'Brien does not mention it, nor does Mr King or Mr Wilde.
28 While I accept that Dr Horsley has measured such a sign, in the absence of express reference to the same by the specialists, I do not accept that this makes any difference to either the nature or extent of the injury to the plaintiff's spine, nor to any consequent impairment.
29 In terms of an adjectival description of the plaintiff's back condition, I regard the best description as that of a moderate aggravation of pre-existing degenerative change. I accept that the condition is permanent. None of the medical witnesses suggested otherwise.
What is the plaintiff's capacity for work?
30 The plaintiff submitted that the definition of "suitable employment" must first have regard to age, education, skills and work experience. Second, it was submitted that the definition must have some reality about it. It was put that there must be real jobs for which the plaintiff is suitable.
31 I refer to s.5 of the definition of "suitable employment" in the Act. The amendments in 2010 slightly changed paragraph (a)(iv) and inserted paragraph (b)(ii), "The work or employment is of a type or nature that is generally available in the employment market."
32 Mr Miles, relying on the amendments in 2010, submitted that the plaintiff could work full-time in a sedentary position. He stated that the plaintiff had admitted as much in cross-examination when he conceded he could undertake the position previously provided to him. In any event, the plaintiff had worked full-time with the defendant under a return to work program before his employment was terminated. This indicated that the plaintiff had a full-time work capacity.
33 Mr Miles also relied on the reports of Dr Yong and Mr Dooley that he would be able to work as a car park attendant. Dr Yong said that other jobs suggested for the plaintiff, namely sales assistant/Vietnamese grocer, machine operator, commercial cleaner and store person, would need individual assessment to ensure that they complied with the 5 kg weight restriction.
34 Mr Wicks submitted that the 2010 amendments which followed the Court of Appeal decision in Smorgon Steel Tube Mills Pty Ltd v. Majkic (2008) 21 V.R. 193 meant that there must be a "real" suitable employment rather than an artificial position as applied here, otherwise this would mean that the words in the provision that regard be had to the "worker's age, education, skills and work experience" in paragraph (a)(iii) would be nugatory. He submitted that it was designed only to alter the specific situation applying in that case where the worker was still in a specifically created position.
35 I find that the clear intent of Parliament, given the addition of paragraph (b)(ii) was to broaden the definition of suitable employment to include positions that are to some extent available by virtue of arrangements made by the employer in the general employment market subject to the limiting personal considerations set out in paragraph (a) of the definition.
36 In the Majkic decision, Buchanan JA referred to work for which the worker is suited. He said at paragraph 10:
"I consider that the legislature intended that the worker's loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker who is incapable of performing his normal work."
37 He went on:
"It is one thing to have regard to a return to work plan for the light it may throw upon any worker's ability which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker's special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s.134AB(38)(f). The definition does not require the second step to be taken." (Hansard 12 May 2010, p.4625)
38 In the second reading speech for the 2010 amendments, the Minister said:
"Today I take the opportunity to restate the clear intent of the Parliament when common-law was reintroduced that the government sees the deeming test to be the main gateway for access to common-law rights.
Maintaining access to common-law damages for seriously injured workers is a fundamental priority for this government. However, sustaining this aspect of the scheme requires careful management of its ongoing financial viability.
The bill reinstates the approach of the act to a worker's earnings from suitable employment for the purpose of determining whether the level of these earnings satisfy the requisite 'serious injury' threshold for loss of earning capacity. The references to 'suitable employment' throughout the act were always intended to capture a wide range of employment, vocational training and education arrangements through which workers may be returned to gainful employment. This concept has been obscured through restrictive interpretation by the courts of what suitable employment entails, most recently in the case of Smorgon Steel Tube Pty Ltd v. Majkic. This undermines fundamental controls in the scheme as well as the core objectives of the act including the common-law economic loss gateway and return to work obligations."
39 I do not accept Mr Wicks' submission that the intent of the legislature will be undermined by employment positions that are widely generic. Here the positions examined by the NES Report, while in a sense generic: machine operator, car park attendant and sales assistant, it was accepted by Dr Horsley that positions which fitted the plaintiff's physical limitations were available in the general labour market.
40 Dr Horsley accepted that the plaintiff would be able to do a full-time basic sedentary light duties position. The plaintiff accepted that he had been able to undertake the light sedentary duties pursuant to the return to work plan of the defendant. Dr Horsley also accepted that the plaintiff would be able to undertake full-time duties in a car park as a car park attendant where he would be able to change his posture as it suited him. She accepted that there were positions available with those characteristics.
41 Under search in cross-examination, Dr Horsley conceded that depending on the critical demands of the particular position, the plaintiff would be capable of a full-time machine operator position and certain sales assistant roles provided they did not involve repetitive lifting. In relation to the machine operator position she said at T111: "People with this type of problem can work full-time depending on the job description."
42 It was not really disputed that the plaintiff's spinal condition precluded him from returning to the heavy manual duties he had previously undertaken with the defendant. It was not in dispute that the plaintiff, until his employment was terminated in January 2010, had been able to work full-time in the sedentary duties that had been provided to him under the return to work plan.
43 The defendant relied on a body of medical opinion that there was no reason why the plaintiff ought not be able to undertake other employment of a light nature on a full-time basis. In support of this proposition was the opinion of Mr O'Brien dated 5 January 2010 (D126), the medical certificate from Dr Choon dated 27 October 2011 (p.123) that the plaintiff was fit for modified duties not involving repetitive bending and not fit to stand or sit for prolonged periods. Similarly Mr Wilde opined that the plaintiff could continue the modified duties he was undertaking.
44 Mr Dooley did not put a part-time caveat on his opinion that the plaintiff was fit for suitable light duties in either of his reports. He was of the opinion that the plaintiff could perform the car park attendant role. Similarly Dr Yong was of the opinion that the plaintiff was able to undertake car park attendant duties.
45 Dr Choon in his 24 May 2010 report (p.29) states that the plaintiff is fit for light duties which do not require lifting, et cetera. In his final report dated 1 February 2012 he states that the plaintiff "continues to experience back pain daily" and is unfit for work. It is difficult to see how he can make this statement, given the earlier statement that the plaintiff's condition had remained unchanged for three years, and given the medical certificate referred to previously. Mr King in his report states that the plaintiff "could theoretically manage light restricted duties but will find it difficult to find suitable work".
Assessment
46 This case squarely raises the significance of the 2010 amendments to the Act. The medical opinions which freely provide advice as to the inability of the plaintiff to actually obtain a light sedentary position in the employment market cannot avail the plaintiff when for a period of three years he was physically able to work in a light sedentary position. Further, the evidence of Dr Horsley accepted that indeed there were positions in the labour market in fields such as car park attendant and machine operator which from a physical capacity point of view the plaintiff could perform. The burden of the other medical opinion is similar.
47 I am unable to accept that the plaintiff's language difficulties disbar him from an ability to undertake that employment. Language is not a personal attribute referred to in the definition of "suitable employment". As submitted by Mr Miles, he has been in Australia for 30 years. He has worked in a factory environment for about 20 of those years. The unchallenged affidavit evidence of Mr Ellery was that "I think he is definitely employable from a vocational perspective". In his affidavit at paragraph 8 he went on:
"As I have said, with the right motivation I think he is definitely employable. I have spoken to him multiple times about WISE and how to approach potential employers about using this program. He has been provided with a handout that he can give to potential employers as to WISE. WISE is a great opportunity to get workers back into the workforce, even while they have multiple restrictions on their work capacity."
48 The plaintiff used an interpreter throughout his evidence. In re-examination Mr Wicks asked him some questions and he did reply directly to a number. I do not regard the exchange as decisive either way. Rather, I gave weight to the affidavit of Mr Ellery, and to an extent Dr Horsley who said his English skills were moderately poor, yet she was able to obtain parts of her history without an interpreter. The plaintiff admits that he speaks English to his general practitioners.
49 The plaintiff was asked about his efforts to seek work. In his affidavit he stated that he had applied at numerous factories but had not been offered any work. Under cross-examination he said he had unsuccessfully applied at two factories following a requirement that he do so by Centrelink. He had been refused a disability pension but after going to two doctors he had been given a disabled parking permit.
50 He had also contacted some Vietnamese businesses that he had obtained from a newspaper seeking a job but unsuccessfully. When the plaintiff was asked about the assistance of Mr Ellery in accessing WISE, I regarded his answers as unconvincing when he claimed that Mr Ellery did not assist. In the light of what I regard as the paucity of his attempts to obtain any employment, I am unable to accept that the impairment consequences of his loss of earning capacity meet the test of being "at least very considerable".
51 The plaintiff must satisfy the Court that the loss of earning capacity as a consequence of the impairment is "at least very considerable". On this score, I accept that the plaintiff has suffered a marked or significant loss of earning capacity on the basis that prior to his injury he was able to earn, including shift and overtime allowances, around $57,596 per annum in a manual industrial occupation. He cannot do that now, and his employment capacity is light sedentary duties without repetitive bending or lifting.
52 Other than in the position created with the employer, the plaintiff has not been able to exercise this lessened earning capacity in the employment market, despite the efforts of Mr Ellery and the provision of an English language course for about 12 hours a week for two years.
53 If I am wrong in this conclusion, the Act imposes the further requirement that for a certificate the loss of earning capacity must be at least 40 per cent.
54 The plaintiff relied on Dr Horsley who gave evidence. In her final report she opined that the car park attendant duties would perhaps be suitable on a part-time basis of 15 to 20 hours per week spread over a number of days. In her evidence she accepted that the plaintiff would have a capacity for full-time suitable sedentary work. She indicated that upgrading his English skills would be of benefit. She accepted that there were "probably" plenty of jobs that would comply with the lifting restrictions that she thought were appropriate for the plaintiff.
55 On this issue of the plaintiff's capacity for suitable employment, I accept the defendant's submission that the plaintiff retains the capacity to undertake full-time suitable employment that will yield an income greater than 40 per cent of his pre-earning capacity. That employment could be as a car park attendant or as a machine operator, or with suitable modifications a Vietnamese grocery attendant. The NES report prepared by Mr Ellery that such positions were available was unchallenged, and Dr Horsley, with her experience, accepted that there were such positions available.
56 The burden of the medical evidence, including that of Dr Horsley under cross-examination, is that the plaintiff from a physical point of view is capable of full-time light or sedentary duties. The fact that he did so for nearly three years with the defendant supports this. The direct opinion of Mr Wilde, Mr O'Brien, Mr Dooley and Dr Yong also supports this. Dr Horsley conceded as much but only under cross-examination. She qualified her opinion on the basis of the possible reliability of the plaintiff.
57 Insofar as to the opinion of Dr Choon, Mr King and Dr Ali is inconsistent with this opinion, I prefer the opinions of the defendant's practitioners. Mr Wicks accepted that in the event I find that the plaintiff is able as "suitable employment" to undertake full-time employment as a car park attendant, a machine operator or a sales assistant, then he cannot meet the requirements for a certificate for loss of earning capacity. I am so satisfied and on that basis refuse his application.
The pain and suffering consequences and the plaintiff's credit
58 The plaintiff has an obligation to "strip away" any psychological or psychiatric consequences of any physical injury. Dr Horsley stated that on her second examination the plaintiff was displaying "abnormal illness behaviour". She accepted that the presentation was different than that recorded by Mr King a couple of months later. Mr King found no evidence of any significant psychological overlay.
59 Mr Dooley in his first report found that a component of his presentation related to his psychological reaction to the injury. He reiterated this in his second report with reference to a "significant psychological component" and where he stated that "the constancy and intensity of his ongoing pain and his described disability are greater than one would expect to see for the work-related soft tissue injury and also the underlying condition."
60 Dr Horsley's response to that was that further investigations were necessary, such as an MRI, to ascertain whether there might in fact be underlying disc disruption or that the plaintiff just might be displaying "considerable fear avoidance behaviour."
61 Given that Mr Wilde had suggested to Dr Choon that if there was deterioration there ought be further investigations and a referral back to him, I draw the inference from the fact that there had been no deterioration and that therefore I ought accept the opinion of Mr Dooley that there is a psychological component that must be excluded, and the focus must be on the physiological component of the injury.
62 An important observation by Dr Horsley was that on both occasions the plaintiff had an antalgic gait. He also complained of leg pain. The gait was not observed by Mr King, nor were there complaints of leg pain.
63 The defendant showed about an hour of surveillance. The surveillance shows the plaintiff appearing to walk normally with no obvious restriction and at one stage squatting to check car tyres. Dr Horsley had noted that he had difficulty squatting. Mr Wicks submitted that the video did not show the plaintiff bending his back. I accept that.
64 The video, which was taken over a number of days in the last two years, essentially shows the plaintiff engaged in normal day to day activities of walking with a normal gait at normal pace for about 15 minutes, squatting to check tyres, getting into and out of cars, handling food items in a food hall and deli, and sitting and getting up in a fast food restaurant.
65 I accept that the case must be determined on all the evidence. The video does support a conclusion that the plaintiff has presented to his doctors as more restricted than the video shows.
66 Dr Horsley accepted that when the video showed the plaintiff engaged in normal daily activities that would not be unexpected given the clinical and radiological findings. She said that the plaintiff could attend to most daily activities relatively normally. This is significant as Mr O'Brien recorded that the plaintiff told him he was capable of all activities of daily living but the persistent back pain would cause some restriction.
67 Dr Choon in his report of 24 May 2010 refers to the plaintiff:
"Will continue to experience low back pain intermittently and may require analgesics from time to time."
68 An issue in the case is the extent to which the plaintiff's condition gives rise to pain. In his affidavit the plaintiff states that he suffers constant low back pain of varying severity and also has leg pain in his right leg and sometimes in his left leg. He states that he only takes occasional painkilling tablets. In his second affidavit he states: "About twice a week I have to take Nurofen for the pain."
69 As submitted by counsel for the defendant, the plaintiff over the period since the injury has effectively taken minimal painkilling medication which I regard as significant in the characterisation of the severity of the back injury.
70 In assessing the pain and suffering consequences of the low back injury, the medical opinions that I have considered in relation to the plaintiff's loss of earning capacity remain relevant to an assessment of the pain and suffering and loss of enjoyment of life consequences.
71 The plaintiff for three years undertook a sedentary position and remains capable of that. He has taken and takes minimal medication. While he has since he ceased work lost the enjoyment of work, the medical opinion I have earlier canvassed shows that he retains a capacity for light duties employment.
72 He has, I accept, suffered a loss of opportunity in that the work that he now obtains will be in a narrower field than previously. At the same time Dr Horsley accepted that he was able to undertake activities of daily living. His enjoyment of swimming appears unchanged.
73 Mr Wicks put that the plaintiff was a relatively simple man who accepted the advice of his doctors. He had been prescribed Panadeine Forte early but this had not been repeated and he now uses over the counter medication. He submitted that the plaintiff's back was not without pathology and this was productive of pain.
74 I agree with this but the issue is the extent of pain and whether it is disabling. Mr Wicks referred to considerations of a stoical plaintiff in Sutton v. Laminex Group Pty Ltd [2011] V.S.C.A. 52. Here, while the plaintiff may be stoical, based on the reports of Mr Dooley which I accept, he is exaggerating his degree of pain.
Assessment
75 The plaintiff in his presentation to Mr Dooley and Dr Horsley has exaggerated his symptoms. His ingestion rate for medication tends towards a conclusion that his level of pain is not such that it could be said to be disabling or excruciating. The video surveillance shows a person engaged in effectively normal activities. The plaintiff appears somewhat distant, and as noted by Mr Dooley, has probably become despondent in his situation.
76 Although the plaintiff has not returned to the workforce, insofar as he enjoyed swimming prior to the injury he still does so. He said he enjoyed his work and misses it, yet his efforts to even obtain a part-time position have been desultory.
77 Mr Wicks relied on authorities that refer to the stoical plaintiff. I have considered that submission but find the general minimal ingestion of analgesic medication is an important indicator that the level of ongoing pain is not at such a level as to be significantly disabling.
78 Mr Wicks also referred to Haden Engineering Pty Ltd v. McKinnon [2010] V.S.C.A. 69. I have considered that. The plaintiff's complaints of the level of and location of pain vary and that is why the issue of stripping away psychological and psychiatric considerations is relevant.
79 Mr Wicks referred to the plaintiff's complaints regarding sleep. The plaintiff refers to this in his affidavit. Mr Miles submitted that he had not sought any medication to assist him. Mr Dooley records that the plaintiff told him that "at times he has difficulty sleeping."
80 While I accept that this is a factor to be considered I do not find, given the failure of the plaintiff to seek medication for his sleep and what Mr Dooley records as to the problems regarding sleeping, I do not regard it as a decisive condition in his pain and suffering consequences.
81 I am required to consider whether the pain and suffering consequences 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.
82 While this case may be close to the line, having considered the consequences raised by him, I am not satisfied the plaintiff's pain and suffering consequences meet the relevant test and I dismiss the plaintiff's application.
83 What orders do you seek, Ms McDonald?
84 MS McDONALD: The defendant seeks no further orders, Your Honour.
85 HIS HONOUR: I make the order that the plaintiff's application be dismissed. Anything else?
86 MS McDONALD: No, thank you, sir.
87 HIS HONOUR: I thank you for your attendance.
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