Nyembwe v VWA

[2024] VCC 1834

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-00971

Junior Nyembwe	Plaintiff
v
Victorian WorkCover Authority	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2024
DATE OF JUDGMENT:	12 November 2024 (ex tempore)
CASE MAY BE CITED AS:	Nyembwe v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 1834

REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY

Catchwords:   Serious Injury – physical injury – pain and suffering consequences

Legislation Cited:  Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

Judgment:  Leave granted to the plaintiff to commence proceedings for pain and suffering damages.    

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Over with Ms K. Liu	Slater and Gordon Lawyers
For the Defendant	Mr A. Moulds KC with Ms S. Fernando	Wisewould Mahoney

HIS HONOUR:

1The plaintiff in this proceeding, Junior Nyembwe, is a now 28-year-old single man who lives with his mother and siblings. There is no dispute that on 11 September 2019, he was at work in the course of his employment as a demolition labourer when he fell through a skylight on a building that they were dismantling, falling several metres and suffering an injury (“the fall”). Indeed, he is very fortunate that he did not land on his head or suffer, a particularly serious injury. What he did suffer though was an injury described as an undisplaced fracture of the transverse process at L4. There is no dispute that the fall occurred or that it resulted in an injury to the plaintiff’s lumbar spine as described.

2In that context, the proceeding before the court is a Serious Injury Application pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Specifically, the plaintiff claims to have suffered a serious injury by way of a serious physical injury pursuant to s325(a) of the Act, namely an injury to the lumbar spine.

3I note that before the proceeding had commenced, the plaintiff had relied both upon pecuniary loss and pain and suffering consequences, but at the commencement of the proceeding his lead counsel informed the court that the proceeding was prosecuted for pain and suffering only.

4The proceeding was broadly conducted in the usual manner. The parties tendered medical reports and other relevant documents as contained in the court books, including three affidavits from the plaintiff and one from his mother that he also relied upon.

5The plaintiff gave brief oral evidence and was cross-examined broadly as to the contents of his affidavits and other documents. As mentioned, the oral evidence was relatively brief, the parties are to be commended, in my view, for the way that the proceeding was conducted and filleting the larger court books down to a more digestible volume when it came time to tender.

6In a similar vein it seems to me that the medical material in this proceeding is also refreshingly non-controversial and largely in agreement, and because of that, I do not propose to say much about it. Broadly there is an agreement, because of the fall, the plaintiff suffered the spine injury and has been left with ongoing pain and consequences. Indeed, it could be said largely that the parties agree upon most things in this proceeding, perhaps apart from the result. 

7Broadly, Mr Moulds KC on behalf of the defendant, submitted that the plaintiff’s impairment consequences were simply not serious in the sense of not meeting the well-known test of “very considerable”. On the other hand,  Mr Over, lead counsel for the plaintiff, perhaps not surprisingly, put the opposite proposition, that being the plaintiff’s impairment consequences were “very considerable”.

8The assessment of serious injury is one that I must make. It is a value judgment. I must consider the whole of the evidence, but I must also consider the range of impairments and impairment consequences, including those that come before the court, and those that do not.

9Dealing then with a couple of propositions. First, much of the defendant’s court book, although not all of it was ultimately tendered, was directed towards the plaintiff’s history of drug use and criminal offending. I am conscious that this is not the criminal proceeding and that he has been dealt with by the criminal justice system.

10In his affidavit material there was at least a theme, if not something stronger, to suggest that his use of methamphetamine had been to self-medicate and to deal with the pain and impairment consequences of his lumbar spine injury. In cross-examination that was put to him in a case where there was some discussion about Australian Rules Football – ‘lace out’. He did not drop the ball. Mr Moulds KC, put to him that his drug use was recreational and he had become addicted and the plaintiff unequivocally agreed with that.

11I accept that evidence. The whole of the evidence suggests that he had some issues with drug and alcohol use before the fall and those issues continued and it was a regrettably unsurprising descent into increasing drug use and ultimately incarceration.

12But the good news story in this proceeding is that the plaintiff has cleaned up his act and for over 12 months, in fact, closer to 18 months, he’s now been living back at home with his mother and siblings, in full-time employment and, to some extent, has got himself mostly back on track.

13His history of drug use in that context is of historical significant, but of no great moment in an assessment of serious injury at this point in time but, to be clear, I do not accept the submission that his drug use was his way of managing his back pain because, in effect, he was idle at home and resorted to self-medication.

14I say that because on a consideration of the whole of the evidence he really has not availed himself to much treatment. He has only seen his general practitioner on a handful of occasions and, in any event, around the time that he was abusing drugs, he was, in fact, in full-time employment and running his own little internet spare parts business. So it is not accurate to say that he was stuck at home trying to manage his back pain as best he could.

15Perhaps relevant to that is the issue of the plaintiff’s credit or reliability. As indicated, I think some of what he has had to say about his drug use is probably unreliable although possibly no great surprise in the sense of someone with a history of recreational drug use and criminal offending might seek to put some gloss on that as to why it occurred.

16But having said that on a consideration of the whole of the evidence, his general description of the fall and the symptoms he has had since then, I consider has been reliable and consistent, so any credit point arising from his evidence about his drug use really does not ultimately change the course of this proceeding, in my assessment.

17Mr Over submitted to the court and appropriately, that it should not be overlooked what he had said in his affidavits, and equally it should not be overlooked as to what he has said to the doctors. Broadly, I accept there is a general consistency in his description of his symptoms, what he does to manage the pain, and how he copes with day to day activity.

18In respect to current treatment, in his affidavit sworn the 28^th June of this year,[1] he set out the occasional attendance on Dr Gunathilake, at the Annadale Medical Centre. The plaintiff said he continued to use either Panadol, Panadol Osteo or Nurofen, three to four times a day, two tablets each time, and he takes prescription medication, Celebrex, when the pain is sufficiently bad, but tries not to take it too much. That is consistent with the cross-examination where it transpired that he had not seen his general practitioner since April 2024 when he was prescribed Celebrex. Again, in cross-examination he said candidly he rarely uses it. Otherwise in that affidavit he sets out a regime of swimming which he self-funds to try and help manage his back pain and a regime of exercises at home. 

[1] Amended Plaintiff’s Court Book (“APCB”) 23

19In lay terms he takes over-the-counter medication and manages his pain in one of two ways, either by limiting physical activity or, secondly, by some modest amount of exercise, which is consistent broadly with the medical evidence and the treatment recommendations.

Plaintiff’s medical reports

Professor Paul D’Urso

20For example, Mr Paul D’Urso, a consultant neurosurgeon, who examined the plaintiff at the request of his solicitors and provided a report dated 5 August 2024,[2] said that in regard to treatment requirements he would recommend a self-management program of core strength exercise and hydrotherapy under the supervision of a physiotherapist and that the use of paracetamol and anti-inflammatory medication would be appropriate on a needs to be basis. He said the condition should be managed and supervised by the general practitioner and physiotherapist into the foreseeable future.[3]

[2] APCB 138

[3] APCB 141

21True it is that there is no supervising physiotherapist but, broadly, the treatment the plaintiff is having is consistent with Mr D’Urso’s opinion and the other medical opinions. In other words, this is not a proceeding in which there is some form of other treatment that has been suggested and which the plaintiff has yet to avail himself.

Treating practitioner

Dr Gunathilake

22Dealing briefly then with some of the other medical evidence, the current general practitioner, Dr Gunathilake provides some limited evidence in a very short report dated 24 June 2024.[4] He confirmed the diagnosis of the undisplaced fracture of the transverse process of the L4 vertebra. He describes a chronic lower back and a recurrent pain requiring painkillers. He said the plaintiff had chronic back pain which can be aggravated by heavy lifting, therefore, the plaintiff has had to avoid heavy lifting at his workplace. He otherwise declined to answer questions about prognosis, complications, or treatment as being outside his expertise.

[4] APCB 82

23To say the report is concise would perhaps be doing it a disservice, but, equally, it is consistent with the rest of the evidence.   

Medico-legal practitioners

Professor Richard Bittar

24I do not propose to go through all of the medico-legal reports. Several practitioners have provided several reports, but very briefly in what is something of a thumbnail sketch, Professor Richard Bittar, neurosurgeon, who examined the plaintiff at the request of his solicitors and provided several reports. In the report dated 14 September 2023,[5] Professor Bittar diagnosed the injury as I have already described it. He said it was consistent with the fall through the skylight.

[5] APCB 95

25In respect to physical restrictions, Professor Bittar set out in his report, a range of restrictions and said, the plaintiff was likely to remain severely restricted in relation to employment or activities involving sustained bending, lifting, twisting or stooping, forceful pushing or pulling or heavy lifting, repetitive pushing, pulling or lifting, repetitive and/or prolonged use of the spine.[6]

[6] APCB 99

26He went on to say in his opinion the plaintiff had a very limited capacity to perform suitable employment options as identified in reports from Nabenet and then said the plaintiff is likely to remain significantly restricted in relation to social, domestic and recreational activities.[7]

[7] APCB 100

27Professor Bittar repeated his opinions in later reports, including when he was provided with other material to consider.

Dr Robyn Horsley

28Next, Dr Robyn Horsley, is an occupational physician who has examined the plaintiff at the request of his solicitors and provided several reports. The thrust of her reports has been directed towards work capacity. She too has accepted the injury as described. She recommended the plaintiff look at suitable employment such as a Diploma in IT and to look at a more office-based position. She said the plaintiff would benefit from referral to a pain management specialist so that his overall management could be overseen, but she then, similar to Professor Bittar, set out work restrictions including avoidance of repetitive pushing and pulling, avoidance of truncal rotation, avoidance of static postures involving the lumbar spine, et cetera.[8]

[8] APCB 135

Defendant’s medical reports

Associate Professor Teddy

29Firstly, Associate Professor Teddy is a consultant neurosurgeon who examined the plaintiff at the request of the defendant and provided several reports. In his report dated 4 October 2023,[9] Associate Professor Teddy took a history of current complaints as low back pain. He noted since he had earlier examined the plaintiff, that the plaintiff had been doing a lot of training, using a rowing machine, and was able to do that for about ten minutes at a time. He recorded the plaintiff as having at rest little pain and only symptoms when he pushed himself. He said the plaintiff was then able to run about 10 minutes and walk for about one and half hours but if he pushed himself beyond that he gets a great deal of back pain. He also noted, the plaintiff was taking only Panadol two to three times a day with more, if needed.[10] 

[9] Defendant’s Court Book (“DCB”) 60

[10] DCB 61

30Associate Professor Teddy recorded the plaintiff as describing that he felt he had progressed a good deal and was optimistic if he kept his strength up the frequency of the pain would diminish. He further recorded the plaintiff saying at worst his low back pain was around seven on the zero to 10 scale, mainly in the evenings when he is tired after going to the gym, and when that occurs he has to sit for about one to two hours. He then said most of his daily living activities were taken up exercising.[11]

[11] DCB 62

31On examination, Associate Professor Teddy described him as he had found him previously; that is pleasant, articulate and an expressive young man.[12] I must say, that was my impression of him in the witness box. Associate Professor Teddy then said the limitations on work activities should restrict the plaintiff to some form of suitable sedentary or light manual work, and such restrictions should be maintained for the foreseeable future.[13]

[12] DCB 62

[13] DCB 65

32Associate Professor Teddy provided further reports that do not really advance things much beyond what I have read out.

Dr Mary Wyatt

33Next, Dr Mary Wyatt is an occupational physician who examined the plaintiff on several occasions and provided reports at the request of the defendant. In a report dated 14 August 2022,[14] she recorded the plaintiff as presenting with troublesome ongoing organic problem to his right lower back. She then said, that he was fit for work that allowed change in posture intermittently, avoids repeated bending and twisting of the spine and repeated lifting of over five kilograms. She said within those limitations, he could work fulltime.[15]

[14] DCB 75

[15] DCB 80

34In a later report dated 4 April 2024,[16] Dr Wyatt noted the plaintiff was then 27 years old and the fact that it was coming up from five years since the fall through the skylight. She described the plaintiff as having chronic back pain arising from that injury, more on the right side than the left. She said he had benefited from an active approach to self-management, getting fit, and that had improved his back problem. She recorded it being the fourth occasion that she had seen him and described him as an admirable young man who has adopted a responsible approach to self-management in dealing with his overall life and family situation. She also recommended that he move on with further training and look at other long-term employment options because of what she said were limitations because of his back injury.[17]

[16] DCB 88

[17] DCB 98

35She repeated opinions about his capacity for work but said that he still did have ongoing limitations. She said, “While you have not asked about this, he does have ongoing limitations which will be lifelong in terms of the type of manual employment he was doing in the past e.g. demolition work”.[18]

[18] DCB 99

Consideration of serious injury

36In a submission that I thought was accurate, senior counsel for the defendant said in lay terms the plaintiff could be described as a man who now has a “light work” back, and I agree. That is consistent with the medical evidence.

37At this point in the narrative, I do not think much of what I set out so far is really contentious or in dispute. Equally, I do not consider that the relevant legal principles are particularly contentious or in dispute in this proceeding.

38Of course, the plaintiff has the evidentiary onus to establish serious injury and as I have already mentioned, the assessment of that is a value judgment informed on the evidence but also informed in part by reference to what the plaintiff has said about it, both in his affidavits and to the doctors, including his level of pain and impairment consequences in a broad range or perhaps a synthesis of the possible impairments and impairment consequences and not just those that come before the court.

39Having reflected on the parties’ contentions and the evidence, I consider this is something of a lineball decision. As mentioned earlier to the plaintiff’s credit, now that he has managed to free himself of drug addiction, he has managed to get on with his life, including working at what is effectively a meatworks on a production line, working full-time where bacon is manufactured with some occasional overtime. The medical evidence is that that is work for which the plaintiff is suited, even if in an ideal world he would perhaps return to tertiary study and try and find something better than stacking bacon on a production line.

40On quiet reflection, two things struck me about this proceeding. First, it should not be forgotten that the plaintiff was only in his early 20s when he fell through the skylight. Second, whatever excitement life has thrown at him with drug use and criminal matters, there has been a consistent theme of what the doctors describe as chronic back pain.

41I accept his evidence that he has chronic back pain; that at times, as he has said to the doctors, flares up to something like seven out of 10 with activity, sufficient for him to need to rest, particularly at the end of the day. I accept that he requires regular over-the-counter medication such as Panadol or Nurofen. True it is that he is not prescribed, probably thankfully, given his history of addiction, one of the stronger medications; but equally, I consider consistent that the use of regular painkilling medication[19] is a relevant consideration in an assessment of serious injury, although at the risk of repetition, I also acknowledge that the medication he uses is not at the upper end of the range such as opioids and the like.

[19] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199] (Dodds-Streeton JA)

42The medical evidence is that the over-the-counter medication will continue to be needed as will the need for a self-management program such as that which the plaintiff undertakes. On a consideration of the evidence including his affidavit evidence, I accept that he has back pain which interferes with personal relationships, has interfered with some of what he needs to do and can do around the house to support his family, and interferes with his sleep.

43I accept that he is limited to light work. Some reliance is placed on him as a relevant pain and suffering consequence that fact that he is now stuck with a light work back; But I do not think that is particularly relevant to this particular proceeding, bearing in mind what the Court of Appeal has had to say about the limited use that one can make of pecuniary loss consequences for pain and suffering purposes.[20] This is not a scenario where a plaintiff has lost a trade or a vocation that was terribly important to him or what might broadly be called a great love. But equally, I accept that there is a pain and suffering consequence by having his employment options limited.

[20] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

44This really highlights the issue in this proceeding, namely that the plaintiff does not really present with one big ticket item, as it were; rather, he presents with a range of impairment consequences, and the issue is really whether in combination they make out a “very considerable” consequence.

45The defendant appropriately highlighted matters to do with the limited treatment, the fact that the plaintiff’s pain is not at a level that requires the stronger painkillers, and that it does not prevent him from activity such as driving – although I note with some concern that his ongoing lack of a full licence might be more of a limiting factor. The defendant also appropriately highlighted that the plaintiff is now able to get some satisfaction, although the evidence is limited about this, from the fact that he is able to pay the rent or some of the rent at home and assist his family present in a stable situation.

46Having considered all relevant matters, as I said earlier, I think this is something of a lineball decision; but at the end of the day, what tips it over the line in my view is his age. The plaintiff is still now only 28 years of age. For someone who is closer to 60 than 50, it seems to me that he is capable of being described still as a young man. There is no suggestion that there will be any real improvement in the level of pain that he has. There is no suggestion that there is some treatment that he can have that will improve his pain, which as I say the doctors all accept and describe as chronic; chronic I take to mean permanent and lifelong.

47In the synthesis of all competing considerations, therefore I have concluded that the plaintiff has made out a “very considerable” pain and suffering consequence.

48I will hear from parties as to consequential orders.