O'Donnell v CPB Contractors Pty Ltd
[2020] VCC 1345
•2 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05803
| LUKE PATRICK O’DONNELL | Plaintiff |
| v | |
| CPB CONTRACTORS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 July 2020 | |
DATE OF JUDGMENT: | 2 September 2020 | |
CASE MAY BE CITED AS: | O’Donnell v CPB Contractors Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1345 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – injury to the respiratory system – pain and suffering – whether injury is organic in nature – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Slater and Gordon Ltd Lawyers |
| For the Defendant | Ms F C Spencer | Thomson Geer Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff while employed by CPB Contractors Pty Ltd (“the defendant”), specifically, the development of industrial asthma in the course of his work on the Macarthur Windfarm project between April 2011 and October 2012 (“the injury”).
2 The impairment of body function relied upon is the respiratory system.
3 The plaintiff seeks leave to bring proceedings for damages in relation only to pain and suffering.
Relevant legal principles
4 The application for leave to bring proceedings for damages is brought pursuant to sub-paragraph (a) of the definition of “serious injury” as defined in s134AB(37) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
… .”
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s134AB(1) of the Act, the relevant physical or psychological injury must have arisen out of or due to the nature of the plaintiff’s employment with the defendant on or after 20 October 1999.[1] As set out in s134AB(37), the impairment of the body function must be permanent.[2]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[2]Barwon Spinners Pty Ltd & Ors v Podolak (ibid) at paragraph [33]
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and (c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of 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.
8 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[3] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[4]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[5]
[3]Section 134AB(38)(j) of the Act
[4]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]
[5]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9 Section 134AB(38)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 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.
11 The plaintiff relied upon two affidavits and was cross-examined. The plaintiff also relied upon an affidavit from his wife, Rebecca Elizabeth O’Donnell, sworn on 8 July 2020.
12 In addition, both parties relied upon medical reports and other materials which were contained within court books tendered in evidence.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[6]The Plaintiff’s Court Book (“PCB”) was marked as exhibit (“Ex”) P1; the Defendant’s Court Book (“DCB”) was marked as Ex D1
The Plaintiff’s background
13 The plaintiff was born in March 1974. He is now aged forty-six. He completed secondary school to year 11.[7]
[7]Ex P1, p13
14 After the plaintiff left school, he worked for about nine years as a slaughterman. He then worked as a bridge saw operator for about five years. He commenced working for the defendant on 4 April 2011, where he was employed as a loader operator working at the construction of the Macarthur Wind Farm project.[8]
[8]Ex P1, p14
15 Prior to suffering from the injury, the plaintiff was very fit and active. He competed in triathlons with the Warrnambool Triathlon Club where he would train each night after work and every weekend. The training would consist of swimming in the ocean and an outdoor pool, running and bike riding around Warrnambool. The competitions involved swimming for one kilometre, a 30-kilometre bike ride and a 5-kilometre to 10-kilometre run.[9]
[9]Ex P1, p14
16 The plaintiff’s other interests involved motorbike riding and going to the gym.[10]
[10]Ex P1, p14
17 In the period when the plaintiff suffered the injury, he was living with his wife and one of his sons in a house in Warrnambool. As a family they enjoyed camping at locations in Western Victoria. The plaintiff had no restrictions performing the full range of camping duties including collecting wood and camp cooking.[11]
[11]Ex P1, p14
The injury
18 The plaintiff described the injury in the following way:[12]
[12]Ex P1, p15-16
“5. Each working day at the windfarm I operated a 30 tonne loader and worked at the stock pile. This is an area where different products such as lime stone, blue stone dust, gravel, track top, scalpings, rock and rock dust were stored. I loaded smaller trucks with one of these items and the smaller trucks then delivered the product to where the wind towers were being erected as part of the foundation works and for tracks and roads around the area.
6. I was not provided with any respiratory protection. The cabin of the loader was not sealed and was subjected to dusts and contaminants getting in. I also regularly had to get in and out of the cabin to direct truck drivers. I was constantly exposed throughout the course of a shift. I was never warned or trained regarding the exposure to the products.
7. In early 2014 I noticed tightness in my chest and breathlessness when on site. My breathing became increasingly restricted. From April 2012 I started to attend Dr Paul Viney and reported my wheezing. In May 2012 Dr Viney prescribed a Seretide inhaler.
8. When the wind farm project was completed, I moved with the Respondent to a jetty construction job located on Barrow Island, Western Australia. On that project the air was very clear and dry and my symptoms eased. On each occasion I returned home, my symptoms immediately worsened. After a period back in Victoria I went to a job in Darwin working for the Respondent and my symptoms again worsened. On my return to Victoria I again attended Dr Viney and he increased my dosage of Seretide and referred me for further investigations. Eventually Dr Viney referred me to Mr Noel Bayley who I saw on the 27th of August 2016. By that time I was struggling to run without suffering significant symptoms.
… .”
19 Since 2015, the plaintiff has been employed at ‘The Union’ which is a very large group of cattle and dairy farms. Initially, he worked on the compost pad where his symptoms would worsen.[13] He now works as a machine operator where he uses a digger and does water lines and water troughs, knocks down trees and sometimes operates the tipper truck.[14]
[13]Ex P1, p18
[14]Ex P1, p16
The Plaintiff’s evidence
20 The plaintiff swore two affidavits, the first on 14 August 2018 and the second on 8 July 2020.
21 In summary, his evidence as to the pain and suffering consequences which he presently experiences, is as follows:
Impairment of breathing
(a)the plaintiff continues to suffer from the symptoms of industrial asthma. His symptoms are worse in winter, on humid days and when it is windy.[15] He suffers from shortness of breath and gets an unpleasant sensation of tightness and squeezing in his chest. When the plaintiff is “wheezy,” he finds it hard to take a deep breath. His breathing is laboured and strained. When it is bad, the plaintiff feels unsettled and scared;[16]
[15]Ex P1, pp16-17
[16]Ex P1, p21
(b)the plaintiff’s symptoms are aggravated in certain environments. At home, on the advice of doctors he has ripped up the carpet and put down vinyl floorboards. He finds it difficult to go to some places like his friends’ houses or pubs, as these environments aggravate his symptoms;[17]
[17]Ex P1, p21
(c)at work, he drives an excavator. He sometimes burns off trees. The smoke aggravates his symptoms for days. The smoke can also cause the plaintiff to experience acute attacks, which is a cause of concern for the plaintiff. He tries to stay away from the area and do different jobs where he can to avoid this;[18]
[18]Ex P1, p22
Medication
(d)the plaintiff uses the preventer puffer Symbicort in the morning and at night. He also has a blue puffer of Ventolin that he uses with a spacer. He uses this when he is acutely wheezy. His use of the puffer and spacer varies. Lately, the plaintiff has being using the puffer and spacer multiple times a day, most days;[19]
[19]Ex P1, p21
(e)the plaintiff is reliant on having the puffer with him. He does not go anywhere without it, as he gets anxious at the thought of not having it. He is worried about having an attack and not being able to breathe;[20]
(f)the plaintiff takes his asthma pump to the gym and generally uses it three to four times during a 40-minute session;[21]
(g)the plaintiff takes the medication to manage the symptoms he experiences, not to make his condition better. He understands that there is no cure and that he needs to live with his symptoms for the rest of his life;[22]
Sleep
(h)the plaintiff often wakes up coughing and short of breath in the middle of the night. He uses his puffer during these times. These episodes occur at least a few times a week. They disturb the plaintiff’s sleep;[23]
(i)the plaintiff’s wife has told him that he wheezes and coughs in his sleep;[24]
(j)after a bad night, the plaintiff wakes up tired;[25]
[20]Ex P1, p21
[21]Ex P1, p17
[22]Ex P1, p22
[23]Ex P1, p21
[24]Ex P1, p21
[25]Ex P1, p21
Activities of daily living
(k)the plaintiff’s breathing difficulties have slowed him down and limit what he can do physically;[26]
[26]Ex P1, p21
(l)the plaintiff has two boys who are very active and who love football and BMX bike riding. He can only play with his children for a short period of time before he becomes short of breath and has to stop. This is greatly upsetting and especially disappointing for the plaintiff as he used to be very fit and an active father. He can no longer enjoy these sorts of activities with his children because he is worried about how he will go with his breathing;[27]
[27]Ex P1, p18, p21
(m)the camping and outdoor activities that he once enjoyed are now more difficult for the plaintiff. On one occasion whilst camping in the High Country with his family, the plaintiff suddenly became very breathless while in a remote location. The plaintiff found this extremely frightening, as did his wife;[28]
(n)the plaintiff has not been able to get back to his pre-injury fitness level. His main hobbies are riding motorbikes and doing weights at the gym. He has tried to undertake cardiovascular exercise, but he is more limited than before. He avoids cardiovascular activities when he attends the gym.[29] He can no longer do the extreme exercise he used to enjoy like triathlons and long-distance running;[30]
(o)the plaintiff struggles to run more than a kilometre. When he does, he suffers from breathlessness;[31]
(p)the plaintiff has found it increasingly difficult to swim laps, and has been forced to pull up early due to breathlessness;[32]
(q)while working, activities that involve physical stamina such as changing buckets on the digger or using a shovel cause the plaintiff’s symptoms to worsen. This leads to him generally slowing down;[33]
(r)on very windy days, the plaintiff’s symptoms worsen, so he tries to get away from the elements;[34]
(s)the plaintiff becomes breathless during sex. He has to stop to catch his breath, and at times has had to use his medication whilst being intimate with his wife. This has impacted on his relationship with his wife and is upsetting for both of them;[35]
(t)the plaintiff’s symptoms are now aggravated by environmental factors like cold weather in winter, humidity and windy days in summer, dust and smoke. He suffered badly during this year’s bushfire season;[36]
(u)the plaintiff is worried about the future.[37] Due to his injury, he is unable to return to employment that involves very physical work or exposure to dusts or airborne contaminants. His job prospects are now greatly limited.[38] He believes that his capacity to enjoy a normal range of recreational and domestic tasks has been taken from him due to his industrial asthma;[39]
[28]Ex P1, p17
[29]Ex P1, p17
[30]Ex P1, p21
[31]Ex P1, p17
[32]Ex P1, p17
[33]Ex P1, p17
[34]Ex P1, p18
[35]Ex P1, p18, p22
[36]Ex P1, p20
[37]Ex P1, p19
[38]Ex P1, p18
[39]Ex P1, p19
22 Under cross-examination, the plaintiff gave the following evidence:
(a)in 2011, the symptoms he had were “… tightness of the chest and getting breathless…”;[40]
[40]Transcript (“T”) 8, Lines (“L”) 29-30
(b)before seeing his general practitioner, Dr Paul Viney, he had not received any treatment for his symptoms;[41]
[41]T9, L1
(c)during his appointment with Dr Viney in April 2012, he told him that he had been taking Ventolin for a couple of weeks. The first time he tried Ventolin, he borrowed it from one of his friends;[42]
[42]T9, L4-8
(d)the plaintiff thought that the first time he had any treatment for his symptoms was about two weeks before April 2012;[43]
[43]T9, L15-16
(e)after seeing Dr Viney, he used Ventolin and Symbicort regularly;[44]
[44]T9, L22-29
(f)the plaintiff had ongoing problems with breathing, chest tightening and wheezing after seeing Dr Viney;[45]
[45]TT9-10
(g)as his respiratory problems got worse, they started to impact his ability to exercise. He said that that he “… was still doing exercise, but … it slowly deteriorated, my fitness”;[46]
[46]T10, L2-5
(h)this deterioration occurred during his time at the windfarm, “… towards the end of that job…”. The exercise he was doing at the time was running, bike riding and swimming, as he had competed in a triathlon. He was unable to recall if he had completed the triathlon before or after he had seen Dr Viney;[47]
[47]T10, L9-17
(i)the plaintiff confirmed that he went to Barrow Island in Western Australia after he finished working at the windfarm;[48]
[48]T10, L25-28
(j)the plaintiff completed a Pre-employment Health Assessment Questionnaire (the questionnaire)[49] prior to working at Barrow Island. He acknowledged that he had been untruthful with his responses on the questionnaire, admitting for example that he had ticked ‘no’ to the question, ‘Are you aware of anything which would cause problems for you working in this environment?’.[50] He said that his responses were untruthful because he “… thought that it would jeopardise my job that I was starting at Barrow Island”. The plaintiff also said that he “… didn’t want to state that I had chest pain issues, because I thought I wouldn’t get the job”;[51]
[49]Ex D1, p30
[50]T11, L22-24
[51]T12, L1-6
(k)the plaintiff agreed that he ticked the ‘yes’ box on the questionnaire where it asked if he had ever used a puffer, reporting that he had “1 year ago”, which related to the circumstance of him getting breathless or short of breath while walking “up a slight hill …”;[52]
[52]T14, L6-11
(l)when pressed about why he lied in response to virtually all of the questions in the questionnaire, the plaintiff said, “Well, I wasn’t truthful because, as I said, it would have jeopardised my job, on getting that job. That’s why I …[wasn’t] honest about that;”[53]
[53]T17, L11-16
(m)it was suggested that if he had a really serious problem with his asthma and breathing at the time of completing the questionnaire, he would not have compromised his health by giving false answers to it. To this, the plaintiff replied, “Well, work is important to me”;[54]
[54]T17, L17-31
(n)the plaintiff agreed with the proposition that his problems were not impacting him very much at work at the time.[55] He also agreed that his problems were only experienced from time to time and not to any level that posed a serious underlying risk to his work;[56]
[55]T18, L6-12
[56]T18, L13-18
(o)the plaintiff said that at the time he completed the questionnaire, his chest sounded wheezy or whistled, that it felt tight and that he had difficulty with breathing. He also said that he was exercising for 20 minutes or more three times a week and that he was “… probably … running, bike riding, swimming” and doing “a little bit” of boxing at the time;[57]
[57]T14, L12-26
(p)the plaintiff agreed that prior to starting the job at Barrow Island, he had tests undertaken to assess his cardiovascular and respiratory function and a spirometry test. When asked about whether he was told that there were any problems that arose from his respiratory function test, he said, “Not back then they didn’t, no”. When referred to a summary of the results of the assessment, the plaintiff agreed that the results all looked satisfactory;[58]
[58]T15, L5-31
(q)the plaintiff agreed that when he was at Barrow Island and in Darwin, his asthma did not cause him any problems, saying, “It was better, yes. It was just when I [came] home it flared up;”[59]
[59]T20, L10-12
(r)it was suggested to the plaintiff that things were worst for him when he was exposed to all the dust at the windfarm project and that subsequent to this time, he has improved. To this, he responded: “There isn’t improvement now, it’s got worse … the dust, makes it worse.” He conceded that after Macarthur his condition improved, but clarified that this occurred “… when I went to a hotter environment, yes”;[60]
[60]T20, L13-19
(s)the plaintiff said that his condition has deteriorated more recently: “It has got worse than when it started.” He agreed that the deterioration was a gradual thing. He agreed that working with compost was not good for his asthma;[61]
[61]T20, L20-29
(t)the plaintiff said that his issues with running started when he was first diagnosed with asthma “… and its gradually got worse”. He said that he “… had chest issues at the wind farm”;[62]
[62]T22, L18-26
(u)the plaintiff disagreed that his issues with running did not start until he was working with compost;[63]
[63]T22-23,
(v)the plaintiff agreed that he used to run between 5 and 7 kilometres a day. He said that Dr Viney’s record of him running 5 to 7 kilometres a day in 2015 could be right, “… but I’m not a hundred percent on that”;[64]
[64]TT23-24
(w)the plaintiff confirmed that he had been seen by consultant physician, Dr Noel Bayley, after being referred to him by Dr Viney.[65] It was noted at that time that the plaintiff was running approximately 5 kilometres a day and that he was working on a large-scale composting operation. He did not disagree that his problems with running had commenced when he returned to Victoria and whilst working on the compost operation;[66]
[65]T24, L24-25
[66]T25, L15-19
(x)the plaintiff confirmed that his asthma was well-controlled with Symbicort and that his medications are effective;[67]
[67]T25, L20-24
(y)the plaintiff agreed that Dr Bayley had told him the he had “better stop … work” at the compost job. When asked if he had stopped as suggested by Dr Bayley, he said “Not for a little while. I was offered another job not long after and I took that job …;”[68]
[68]T25, L25-30
(z)when queried about whether he had gone back to the compost work, he said that he had “… a couple of times, to clean up the excavator …” only for a short period. He said that his main job involved other duties that did not involve the compost;[69]
[69]T26, L1-7
(aa)it was put to him that things had gotten better after he had left the compost job. The plaintiff disagreed with this, saying, “Not significantly, they didn’t, but a little bit, yes;”[70]
[70]T26, L8-10
(bb)the plaintiff confirmed that he had been much better after his Symbicort dose had been increased to twice daily by Dr Viney in October 2015. He agreed that he continues to take this dosage “… morning and night”;[71]
[71]T27, L2
(cc)the plaintiff confirmed that he had seen Dr Bayley in August 2016 for repeat prescriptions. He said that at this time, he would have been running “… no more than 5 k’s, I’d say,” and possibly less than that;[72]
[72]T27, L7-20
(dd)the plaintiff said that he can currently run “Probably a [kilometre]”. When comparing 2016 to now in regard to what stops him, he said, “Just the breathlessness – when I actually start to run, I lose my breath.” He confirmed that he was still taking his Symbicort twice daily and using his Ventolin with a spacer, however, even with that, he said that his running capacity had deteriorated;[73]
[73]T27, L21-28
(ee)the plaintiff does not have any other current medical conditions that impact his running ability;[74]
[74]T27, L29-31
(ff)when it was suggested that he had not sought a referral to another asthma specialist because his symptoms were well-controlled with his medication, the plaintiff responded, “Yes, it does help me, yes”;[75]
[75]T29, L22-24
(gg)the plaintiff admitted going to the hospital for a bulging disc at S1 in his back in 2019.[76] He said that he had slight lower back pain on and off over a period of about four to five years, but presented to hospital on that day when the pain became worse. When asked if the pain ever impacted his ability to exercise or undertake sports, he said, “A couple of times it did, but I just pushed through it really. It’s never stopped me.” He said that he was not currently taking any medication but did take pain relief at the time of his hospitalisation. When questioned about his medication over the previous four to five years leading to his hospitalisation, he said that he could not recall if he had taken anything, “Maybe Panadol or Nurofen a couple of times, that’d be it”;[77]
[76]TT29-30
[77]TT30-31
(hh)the plaintiff agreed that he was referred for specialist treatment for his bulging disc, however, could not recall if the specialist was a neurosurgeon or an orthopaedic surgeon;[78]
[78]T31, L2-8
(ii)the plaintiff confirmed that he did not require surgery for his bulging disc.[79] He said that he was told to “… let it heal itself … and take it easy” and that he should not undertake any strenuous exercise;[80]
[79]T32, L2-3
[80]T32, L13-18
(jj)when asked about undertaking activities like trailbike riding and rowing after suffering from the bulging disc,[81] the plaintiff said that he was told to “… give it a good month or so with none of that”. He said that he followed the advice that he was given. When asked about the outcome, he said that his “… back is better”. He said that his pain is currently “… not too bad,” and that he “… was told to try and strengthen” his back. He said that he “… went to what would be an orthopaedic remedial bloke… here in [Warrnambool]…,” but he had not been to see him for a while “… because I’m going all right”;[82]
[81]T34, L2
[82]TT32-33
(kk)when asked if he has continued to avoid the activities the neurosurgeon suggested, the plaintiff said “Well, he only told me to avoid them for a certain amount of time and I’d be right to go back to what I was doing”. He was asked again about whether he continued to avoid those activities or had gone back to what he had been doing. He responded, “Pretty much gone back to what I was doing, because my back was fine”. When pressed on exactly what activities he had gone back to, he said: “Just what I was doing, my general activities. Motorbike riding … and gym … light weights, high reps… do a bit of walking…;”[83]
[83]T33, L6-18
(ll)the plaintiff admitted that he had right leg pain and paresthesia when he presented to the Emergency Department with his bulging disc. He confirmed that he no longer has this: “That’s gone. That’s what initially started when I got it. I don’t have that now;”[84]
[84]TT33-34
(mm)the plaintiff agreed that he experienced the onset of back pain while trailbike riding.[85] He acknowledged that he enjoyed trailbike riding,[86] that it was one of the activities he had gone back to and that he would do this once a week on weekends. He said that the trailbike riding “… could go half a day or most of the day”;[87]
[85]TT33-34
[86]T35, L6
[87]TT34-35
(nn)the plaintiff agreed that he had participated in a trailbike event called the Finke Desert Race. He explained that the race is from Alice Springs to Finke and then back the next day. It is through the desert and involves no roads, just sand. The distance is 228 kilometres one way and it takes just over three hours one way to complete. The race runs over two days;[88]
[88]T35-37
(oo)the plaintiff confirmed that when he and his wife had built a new house a couple of years ago, they put in fake floorboards in order to manage the dust in the house. He agreed that his wife put the washing in the dryer to stop dust accumulating. When asked if he avoided dust at all costs, he responded, “Yes”;[89]
[89]T35-36
(pp)it was suggested to him that the Finke Desert Race was an activity that generated vast quantities of dust. He agreed with this proposition but said: “It was on my bucket list and I always wanted to do it ... .” When asked whether the dust he was exposed to during the race was worse than the Macarthur Windfarm, he said, “Probably similar …”.[90] It was then suggested to him that bucket list or not, someone with a severe asthmatic problem would not contemplate putting themselves through something like the Finke Desert Race. The plaintiff responded, saying, “As I said, it was [on my] bucket list and I had my asthma pump in my backpack and each time I pulled up, I sucked on my asthma pump to get me through it”;[91]
[90]T36, L1
[91]T36, L14-28
(qq)the plaintiff did not seek advice from his doctor before he undertook the Finke Desert Race “…[I] just did it”. When questioned about whether his doctors had told him that it was not a good idea for him to expose himself to dust, he said that he could not recall;[92]
[92]T37, L4-7
(rr)it was suggested to the plaintiff that it was inconsistent that he would undertake fairly serious measures in his house in order to try and remove all traces of dust because it irritates him, but would nevertheless undertake a desert bike race over two days involving vast quantities of dust. In relation to his home, he responded that he wakes “… up during the night if I have a build-up of dust in the room…”, and with regard to the desert race, “It probably is [inconsistent]. As I said, I just wanted to do it;”[93]
[93]T37, L8-17
(ss)when asked whether he needed any medical treatment during or after the race, the plaintiff said, “No, I just went as normal on my Symbicort and Ventolin … just my regular puffers”;[94]
[94] T37, L18-23
(tt)when asked whether he had done anything else like the Finke Desert Race, he said “… I might have done a Pony Express before that, maybe”. He explained that a Pony Express is a three-hour trailbike race with a normal club on a grass track. When asked if he was able to undertake this race, he agreed, saying “Yes, I got through it”. He confirmed that he did not seek any medical treatment after this race;[95]
[95] T38, L2-13
(uu)the plaintiff said that he might use the rowing machine at the gym “… usually to warm up. Either that or the treadmill.” He also confirmed that he does “light weights, high reps” and “… probably … a few bodyweight exercises” such as push-ups, sit-ups and chin-ups. When questioned, the plaintiff went on to say that he attends the gym “… two or three times a week, if I’m going all right … usually [for about] 40 minutes … maybe 10 minutes more than that”;[96]
(vv)the plaintiff was asked if he is still boxing. He said that he tried to “… do that like once a week if I can … for half an hour … but not lately since this virus”. He said that he did not spar with a boxing partner “… just hit the pads”;[97]
(ww)when asked about swimming, the plaintiff said that he had not “… done that for a while”. When pressed regarding a specific timeframe, he said “Couple of years, at a guess”;[98]
(xx)the plaintiff confirmed that he had some issues with his sleep sometimes. He confirmed that his general practitioner had given him Nasonex “… for … snoring I think”. When asked if this was to help him sleep, he said “More snoring, I think, than sleeping”. He agreed that it had helped him with his snoring: “Yes, I don’t – I haven’t been taking it really now … I’m not taking it, actually;”[99]
(yy)the plaintiff could not recall if he had ever had a discussion with his general practitioner about a possible diagnosis of obstructive sleep apnoea (“OSA”). He did not think any diagnosis of OSA had ever been made;[100]
(zz)the plaintiff agreed that apart from seeing his general practitioner from time to time for prescriptions of Symbicort, he was having no other treatment for his asthma. He confirmed that he gets his inhalers over the counter from a pharmacy. He requires a script for the Symbicort but not for the Ventolin blue puffer. He agreed that he has never been to the emergency department or been hospitalised for his asthma and was “pretty sure” that the spirometry tests that he has undertaken have been normal;[101]
(aaa)the plaintiff has been in his current job for about five years. He is working full time, five days a week from 6.00am until 5.00pm every day. He confirmed that he is on a farm and drives a large machine. His duties have stayed the same over the last five years. He said that he would most likely keep going with this job for the foreseeable future: “I’d say, yes.” He agreed that the job was suitable for him;[102]
(bbb)when questioned about whether some doctors had said to him that it was not a good idea for him to work with things like dust, compost or fumes, the plaintiff said, “Yes. But I don’t work with compost and fumes. I’m in the machine … And there’s minimal dust because I’m on farms;”[103]
(ccc)the plaintiff agreed that in a nutshell he suffers from breathlessness from time to time, particularly when he engages in strenuous physical activity. When asked if this was mainly during exercise, he said, “Yes, and other things … Probably dust and wind as well.” He agreed that his breathlessness was “mainly” triggered by exercise. He agreed that when breathless, his medication “… does help, yes”. He was pressed further and asked whether he is able to grab his puffer and have a couple of breaths to take the symptoms away, to which he said, “Not completely, but it does help, yes”. He agreed that having a few puffs was sufficient to enable him to sometimes go on with the activity that he was doing, for example in the gym or in the Finke Desert Race;[104]
(ddd)the plaintiff disagreed that there is no real restriction on his normal day-to-day lifestyle activities, saying, “I can’t perform a hundred per cent like I used to, but I still push through”. He agreed that he still does everything, but he said that he gets breathless and might need to use his puffer for relief.[105]
[96]T38-40
[97]T40, L11-29
[98]T40, L30-31
[99]T41, L1-11
[100]T41-42
[101]T42-43
[102]T43, L3-22
[103]T43-44
[104]T44, L2-22
[105]T44-46
The Lay witness
Rebecca Elizabeth O’Donnell
23 The plaintiff’s wife, Mrs Rebecca Elizabeth O’Donnell, provided the following relevant evidence in her affidavit sworn on 8 July 2020:
(a)when she first knew the plaintiff he did not have breathing problems;[106]
(b)she sleeps beside the plaintiff and hears him audibly wheezing at night. He does not snore; it is the strained noise of the air going in and out. The wheeze can go on for a long time without waking the plaintiff. The plaintiff wakes up coughing and trying to catch his breath;[107]
(c)she has seen the plaintiff disorientated after a deep sleep where he has found it hard to breathe;[108]
(d)sleep is a big thing for the plaintiff. He goes to bed quite early. When he is wheezy or woken up during the night, he is tired the following day. She also notices that on the days that the plaintiff’s asthma is aggravated he is more tired;[109]
(e)there are puffers all over the house. They are in the car, in the plaintiff’s work bag and gym bag. The plaintiff will not leave the house without a puffer;[110]
(f)she has made changes at home to avoid aggravating the plaintiff’s symptoms. She vacuums everything to keep the dust off and she makes sure the bedding is clean. She also puts the washing in the dryer to avoid any dust settling on it;[111]
(g)the plaintiff’s condition has affected their sex life. She gets worried sometimes as the plaintiff gets “really out of puff”;[112]
(h)the plaintiff is the kind of male that does not want to sound weak. He tries to push his problems aside. His issues with breathing “[get] him down”. He used to be “hugely into fitness,” doing triathlons and long-distance running. She sees that it upsets him that he is unable to undertake these activities;[113]
(i)their two boys are active. The plaintiff finds it hard to interact with them for a long time without getting puffed and tired. She sees the plaintiff kicking the football, then stopping to take a breath or use his medication.[114]
[106]Ex P1, p25
[107]Ex P1, p26
[108]Ex P1, p26
[109]Ex P1, p26
[110]Ex P1, p26
[111]Ex P1, p26
[112]Ex P1, p26
[113]Ex P1, p26
[114]Ex P1, p26
Medical evidence
24 There were numerous medical reports contained in the tendered material.
25 Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
26 The plaintiff’s general practitioner, Dr Paul Viney, provided one report in the plaintiff’s court book, dated 11 May 2017. In that report, Dr Viney set out the history of his involvement with the plaintiff as follows:
“On 27th May 2014, he presented to me with increased wheeze, by that point he had returned after his work in the mines in WA had ceased. He was working in a warm, dry atmosphere in WA but now he was working in cold and wet conditions. He had developed a nasal congestion and was using his Ventolin 3-4 times a day, as well as using his preventer medication. His wife had commented that she could hear him wheezing in his sleep. ...
…
On the 2nd March 2015, he presented stating that for the prior 5 months while running he developed wheeze, he normally ran 5-7 kilometres a day without issue prior to this time. He mentioned that he had been working making compost and that he had found after his shift he was more wheezy for a few hours ...
On reviewing him on the 1st June, he described that his wheezing, if anything was worse and that he was now wheezing when he commenced his run, rather than after a few kilometres. I decided to refer him to Dr Noel Bayley, a local respiratory physician, as well as organise a chest xray. The chest xray returned not showing any specific pathology. His Spirometry at that point did not show any significant restriction.
When I next saw him in October, his chest had been much better after increasing his Symbicort dose to twice a day. ... I did not see … [the plaintiff] again until August 2016 when he attended for repeat prescriptions, he commented in that consultation that his Asthma still limited his exercise capacity a little, he was still running but not for as long as he was prior to the onset of Asthma.
...
The prognosis, it would seem, is that … [the plaintiff] will need to take medication regularly to control his Asthma and this is likely to be the ongoing situation.
As to any decline in his lung function, currently it is quite stable and I do not see that it would necessarily worsen over time.”[115]
[115]Ex P1, pp47-48
27 The plaintiff was referred to Dr Noel Bayley, consultant physician, in mid 2015 by his general practitioner, Dr Viney. Dr Bayley provided two reports in the plaintiff’s court book, the most recent dated 22 May 2017. In that report, Dr Bayley noted that when he first saw the plaintiff, he gave a history of asthma over the previous four years which first began while he was working on a wind farm project. Dr Bayley said the plaintiff was commenced on inhaled therapy at that time and the plaintiff’s control of his condition in the intervening three to four years seemed good.
28 Dr Bayley said that when the plaintiff was a fly-in -out worker in northern Australia, his asthma was not a problem at all. Dr Bayley noted that when the plaintiff returned to Warrnambool in approximately mid 2014, he began working for a new employer on a composting system. The plaintiff told Dr Bayley that in the first six months of 2015, his asthma became more of a problem than previously. Dr Bayley noted that the plaintiff is a regular runner who noticed that he was struggling to run his usual distances and was very wheezy when attempting to do so. Beta 2 agonists were giving him relief from his symptoms.
29 Dr Bayley formed the view that the plaintiff had poorly controlled asthma. Dr Bayley expressed the opinion that he had no doubt that the plaintiff’s symptoms were due to asthma. He thought that the asthma was related to his workplace exposure, as the asthma symptoms tended to be better at weekends and worse toward the end of the working week.[116]
[116]Ex P1, pp41-42
30 The plaintiff was examined for medico-legal purposes by Dr Ryan Hoy, respiratory and sleep disorders physician, in early July 2020. In a report dated 9 July 2020, Dr Hoy said that since the development of his asthma, the plaintiff had noted persistence of his respiratory symptoms. He said that the plaintiff noted an improvement in his symptoms when he transitioned from working at the wind farm. Dr Hoy said that the plaintiff currently notes that triggers include–
“… cold weather, dust exposure and exercise. He notes the sensation of difficulty taking a deep breath in. Occasionally he feels that he is gasping for a deep breath. He notes tightness in the middle of his chest. His wife has noted some wheeze especially overnight. He is not aware of this himself. He notes occasional change in his voice. He also notes environmental smoke will trigger his symptoms.”[117]
[117]Ex P1, p50
31 Dr Hoy noted that the plaintiff had tried to continue with some exercise including lifting weights, motorbike riding and walking. He noted that the plaintiff has been unable to run as he previously did. He said that the plaintiff can run for less than one kilometre, and then needs to stop due to shortness of breath. When the plaintiff is riding his motorbike, he can develop shortness of breath. He said that in association with his reduced exercise, the plaintiff’s weight had increased from approximately 85 kilograms to 96 kilograms over the past five years.[118]
[118]Ex P1, p50
32 Dr Hoy said that the plaintiff’s general practitioner had managed his respiratory condition. He noted that the plaintiff is currently prescribed Symbicort 400/12, two puffs twice daily. He said that the plaintiff uses Salbutamol twice daily via a spacer and as required. He said that the frequency of needing Salbutamol as his reliever varies, but he typically needs to use two to three extra doses per day.[119]
[119]Ex P1, p51
33 Dr Hoy noted that the plaintiff did not have any respiratory injury prior to his employment with CPB Contractors. It was Dr Hoy’s opinion that the plaintiff’s work with CPB Contractors and the associated dust exposure had been the primary cause of the development of his current respiratory condition. Dr Hoy thought that the plaintiff’s respiratory condition has stabilised. Dr Hoy said that avoidance of exacerbating factors such as exhaustion, smoke exposure and dust exposure, will be important on an ongoing basis to ensure his continuing capacity for employment. He thought that it would be prudent that a respiratory physician or multidisciplinary team with expertise in the management of difficult asthma provide further input into the plaintiff’s management, especially in relation to the consideration of other medications that may optimise his respiratory symptoms.[120]
[120]Ex P1, pp51-52
The Defendant’s medical evidence
34 The plaintiff was examined for medico-legal purposes by Dr Jonathan Burdon, consultant respiratory and sleep disorders physician, on 29 September 2016 and 4 June 2020. Dr Burdon provided five reports in the defendant’s court book. In the most recent detailed report dated 10 June 2020, Dr Burdon commented that since he had last examined the plaintiff, his health had been “reasonable”. The plaintiff told Dr Burdon that he continued to have symptoms of asthma, and was taking Ventolin, on an as needed basis, and Symbicort 400, two puffs twice daily. The plaintiff told Dr Burdon that his Ventolin requirement increased when he was exercising and if he was exposed to dusts or fumes. The plaintiff told Dr Burdon that he used the Ventolin prophylactically prior to exercising, using a large volume spacer.
35 Dr Burden noted that the plaintiff had suffered a flare-up of his asthma whilst in Jamieson. The plaintiff reported that at that time, he was very breathless but used a lot of his Ventolin, and his flare-up subsequently resolved. He noted that apart from his Ventolin and Symbicort, the plaintiff takes no regular medication.
36 Dr Burdon said that in summary, the plaintiff was a forty-six‑year-old man who developed symptoms of asthma whilst working at the CPB wind farm. He said the diagnosis of asthma had been confirmed by a respiratory physician, and the plaintiff continues to require regular medication and experienced symptoms of breathlessness from time to time.[121] Dr Burdon noted that there had been no change in the plaintiff’s asthma severity since he last examined him in 2016. He thought that the plaintiff would almost certainly continue to suffer from symptoms of asthma lifelong. He said that the plaintiff’s asthma has affected his activities, in that he becomes short of breath on exercising, requiring additional doses of his bronchodilator (Ventolin). Dr Burden noted that the plaintiff said that he usually takes five puffs of Ventolin via a spacer device prior to exercise as a prophylactic measure. The plaintiff told Dr Burdon that he did undertake a desert motorcycle race which involved a 240-kilometre outward bound trip across desert areas and subsequent return. The plaintiff reported that he suffered from symptoms of breathlessness during this time, but endeavoured to minimise the inhalation of dust, fumes and the like during this activity.[122]
[121]Ex D1, pp15-16
[122]Ex D1, pp17-18
37 Dr Burdon concluded that the plaintiff’s present treatment was appropriate and will almost certainly be required indefinitely.[123]
[123]Ex D1, p17
38 The plaintiff was examined for medico-legal purposes by Professor Michael Pain, consultant thoracic physician, on 7 September 2017. In a report of the same date, Professor Pain noted that at that time, the plaintiff complained of exertional breathlessness. He said that severe exercise induces coughing and wheezy breathing. Professor Pain thought that the plaintiff would need to avoid occupations that exposed him to dusts, fumes or extremes of temperature. He thought that the plaintiff’s present situation was “stable, although acute exacerbations of asthma are always possible”.[124]
[124]Ex D1, pp26-27
The Issues
The Plaintiff’s credit
39 Attempts were made to discredit the plaintiff during cross-examination, largely by focusing on the fact that he had completed a pre-employment health assessment questionnaire, before beginning his new position as a loader driver in Barrow Island, Western Australia.[125] An examination of that document noted that the plaintiff had provided answers on that questionnaire which indicated that he would not have any difficulty with dusty conditions,[126] that he was not asthmatic,[127] that he was able freely to work in dusty conditions,[128] that he did not have breathing problems,[129] that he did not take any medications including inhalers,[130] that he did not suffer from shortness of breath when hurrying on level ground, that he did not ever have a wheezy or whistling sound in his chest, that his chest never felt tight, and that his breathing never became difficult.[131] The plaintiff did answer ”yes” to a question about whether or not he had ever been given or used a puffer, and indicated on the questionnaire that that event had been “one year ago”.[132]
[125]Ex D1, p30
[126]Ex D1, p30
[127]Ex D1, p31
[128]Ex D1, p32
[129]Ex D1, p33
[130]Ex D1, p33
[131]Ex D1, p34
[132]Ex D1, p34
40 The plaintiff was also asked many questions about his ongoing capacity for exercise. He was questioned closely about his activities involving trail-bike riding, particularly his participation in the Finke Desert Race. He was also questioned about the relationship between his present inability to perform certain exercises and an incidence of severe back pain which was recorded in his medical notes and for which he attended at a hospital.
41 As set out above, in relation to the questions regarding the pre-work health questionnaire, the plaintiff frankly acknowledged that the answers that he had provided were incorrect, and explained this by saying that he had given those answers because he was afraid that he would not get the job if he told the truth about his condition. As to his present ability to exercise, the plaintiff gave answers which were entirely consistent with what he had told his treating doctors and what he had sworn to in his affidavits.
42 In relation to his activities to do with trail-bike riding, the plaintiff acknowledged that this activity could be dusty. He specifically acknowledged, in relation to the Finke Desert Race, that this was a very strange activity to be undertaking in circumstances where he went to such extreme lengths at his home to eliminate dust, for example ripping up the carpet and putting down floorboards. His explanation for undertaking this activity was that it was on his “bucket list”. He said that he used his medication to assist him to get through this race and he was able to complete it. It was clear that he had not hidden this activity from the medico-legal experts, this activity being specifically referred to in at least one of the reports provided in the court books.
43 As to the plaintiff’s low back injury, the plaintiff frankly admitted that the injury had occurred and that he had attended at the hospital emergency department because of the severity of his symptoms at that time. He said that the symptoms had resolved because he followed the advice he was given, which was to rest. There was no evidence that suggested that this injury was ongoing or in any way impeded his ability to exercise at this time.
44 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative and honest witness who was doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. On numerous occasions, he gave evidence which was contrary to his own interests. His explanations for particular matters were cogent and clear.
45 Furthermore, I find that the plaintiff’s account of his symptoms and its effect on his life has remained consistent throughout the period in which he has been seeing his treating medical practitioners, consulted with medico-legal assessors, and provided evidence to this Court. The content of many of the medico-legal reports corroborates the plaintiff’s account of events, as does the affidavit from his wife.
46 After consideration of all of the evidence, particularly the evidence of the plaintiff, as corroborated by the medical material and the affidavit from his wife, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate the consequences of his symptoms.
Stoic Plaintiff
47 I also formed the view that the plaintiff is extremely stoic in relation to his condition. An analysis of the evidence demonstrates that he has suffered from variable but constant respiratory symptoms since 2011 when he worked on the wind farm project, and more recently, since 2014 when he returned from Western Australia. Despite this, I find that he has made a concerted effort to remain in work and to change the nature of his work in order to manage his symptoms. I also find that he has continued to find ways to exercise and to engage in personal activities with his family such as camping, even though he is constantly affected by the respiratory condition which he developed while working with the defendant.
48 I accept the evidence of the plaintiff’s wife that the plaintiff is the kind of male that does not want to sound weak and that he tries to “push his problems aside”. I accept the evidence from both the plaintiff and his wife that he has left inhalers all around the house and in his car and sports-bag so that he may manage his symptoms wherever they arise. I accept the evidence from the plaintiff that he is fearful of having a serious asthma attack.
Compensable injury
49 The details of the occurrence of the injury are not in dispute.
50 Having considered all of the medical evidence from the plaintiff’s treating doctors as well as the medico-legal experts on both sides, I am satisfied that the plaintiff suffers from the consequences of an injury that he developed in the course of his work with the defendant between April 2011 and October 2012. That injury is in the form of industrial asthma, which continues to affect the function of the plaintiff’s respiratory system. There is no dispute that the injury is organic in nature.
Is the compensable injury permanent for the purposes of the Act?
51 Having considered the relevant reports, in particular the reports from Dr Viney,[133] Dr Hoy,[134] Dr Burdon[135] and Professor Pain,[136] I find that the plaintiff is likely to suffer from the injury he sustained in the course of his work with the defendant, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
[133]Ex P1, p47
[134]Ex P1, pp51-52
[135]Ex D1, p17
[136]Ex D1, p27
Are the consequences to the Plaintiff of the injury “serious”?
52 Having regard to all of the relevant evidence, I find that as a result of the injury to the function of his respiratory system alone, the plaintiff suffers from the following consequences:
(a)a permanent impairment of his ability to breathe, which is aggravated in environments where there is dust, smoke, fumes, humidity, wind or extremes of temperature. When the plaintiff is wheezy, he finds it hard to take a deep breath. His breathing is laboured and strained. He has shortness of breath and gets an unpleasant sensation of tightness and squeezing in his chest. When it is bad, the plaintiff feels unsettled and scared;
(b)the need to use preventative medication every day, sometimes multiple times a day. The plaintiff does not go anywhere without his puffer, as he is worried about having an attack and not being able to breathe. He takes the medication to manage the symptoms he experiences, not to make his condition better. He understands that there is no cure for his injury and that he needs to live with his symptoms for the rest of his life;
(c)the need to take his asthma pump to the gym, where he generally uses it three to four times during a 40-minute session;
(d)interrupted sleep several times per week. He often wakes up coughing and short of breath in the middle of the night. At these times, he needs to use his puffer during the night. After a bad night, the plaintiff wakes up tired;
(e)interference with his activities of daily living. The plaintiff’s breathing difficulties have slowed him down and has limited what he can do physically. The plaintiff becomes breathless during sex. He has to stop to catch his breath, and at times has had to use his medication whilst being intimate with his wife. It has impacted on his relationship with his wife and is upsetting for both of them;
(f)an inability to play with his children for more than short periods, before he becomes short of breath and has to stop. This is greatly upsetting and especially disappointing for the plaintiff as he used to be very fit and an active father. His respiratory difficulties and the risk of having an acute asthma attack also interfere with his ability to participate in the camping and outdoor activities that he once enjoyed;
(g)a permanent decline in his pre-injury fitness level. His main hobbies at present are riding motorbikes and doing weights at the gym. He has tried to undertake cardiovascular exercise, but he is more limited than before. He avoids cardiovascular activities when he attends the gym. He can no longer do the extreme exercise he used to enjoy like triathlons and long-distance running. He struggles to run more than a kilometre, and when he does, he suffers from breathlessness. He finds it increasingly difficult to swim laps and has been forced to pull up early due to breathlessness;
(h)a need to modify his work duties. At work he drives an excavator. He sometimes burns off trees. The smoke aggravates his symptoms for days. The smoke can also cause the plaintiff to experience acute attacks, which is a cause of concern for the plaintiff. Due to his injury, he is unable to return to employment that involves very physical work or exposure to dusts or airborne contaminants. His job prospects are now greatly limited and the plaintiff is worried about the future.
53 In Haden Engineering Pty Ltd v McKinnon,[137] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[138] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[139] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness, and especially where the plaintiff has been found to be stoic, there is no reason to reject his ongoing descriptions of the pain suffered by him.[140]
[137](2010) 31 VR 1
[138](ibid) at paragraph [9]
[139](ibid) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[140]Ibid
54 I have already made observations about the plaintiff’s demeanour and presentation in Court. I have found that the plaintiff was both a witness of credit and also stoic in his presentation and attitude to managing his injury.
55 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injury which he suffered in the course of his work with the defendant between April 2011 and October 2012.
56 In particular, the plaintiff endures permanent, daily impairment of the function of his respiratory system, which causes significant discomfort and restrictions in various aspects of his life. This condition causes interrupted sleep and has impacted upon his ability to interact with his children. It has caused a permanent decline in his level of fitness. It has affected his intimate relationship with his wife and also on his ability to engage in the recreational activities which he used to enjoy. The level and nature of his respiratory condition is such that he is required to take medication multiple times a day to control his respiratory symptoms. He will have a lifelong need to avoid occupations and activities that expose him to dust, fumes, smoke, humidity or extremes of temperature. He remains vulnerable to, and fearful of, an acute exacerbation of his asthma.
57 The fact that after the injury, the plaintiff was prepared to keep working 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):[141]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[141][2008] VSCA 260
58 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury that he sustained in the course of his work on the Macarthur Windfarm are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
59 For the reasons set out above, I am satisfied that as a consequence of the injury sustained in the course of his work with the defendant between April 2011 and October 2012, the plaintiff has suffered a “serious injury”, as that term is defined in the Act. The application is granted.
60 I will hear the parties on the question of costs.
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