Oztonguc v Clive Peeters Ltd
[2015] VCC 1802
•16 December 2015
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05327
| BULENT OZTONGUC | Plaintiff |
| v | |
| CLIVE PEETERS LTD (in liquidation) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 August 2015 | |
DATE OF JUDGMENT: | 16 December 2015 | |
CASE MAY BE CITED AS: | Oztonguc v Clive Peeters Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1802 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – identity of injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) VSCA 33; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
Judgment: Leave granted to bring proceedings for pain and suffering damages only.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Mr B G Anderson | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms K E Judd QC with Mr A Anderson | Russell Kennedy |
HIS 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 injuries suffered by the plaintiff in the course of his employment with Clive Peeters Ltd between January 2003 and 18 December 2008, with particular episodes in July 2008 and on 18 December 2008.
2 At the outset, the plaintiff sought leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. During final addresses, Senior Counsel for the plaintiff advised that the application with respect to loss of earning capacity was withdrawn.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There “serious injury” is defined, relevantly, as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the lumbar spine. The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. By ss(38)(c) of the section, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be described at the date of hearing as being “more than significant or “marked” and as being “at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this application with other cases in the range of possible impairments or losses of body function.
9 Pursuant to ss38(h) of the Act, the consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak.[1]
[1][2005] 14 VR at 622
11 The defendant concedes that the plaintiff has suffered an injury to the lumbar spine in the course of his employment, as alleged, but says such physical injury has produced consequences which do not meet the threshold as set out by the Act for pain and suffering.
The issues
12 In view of the late withdrawal of the claim for economic loss, defence counsel submitted that the plaintiff had not met the required threshold, principally for the following reasons:
(a)There had been no substantial treatment or medication after the plaintiff’s employment was terminated in June 2009;
(b)The plaintiff had returned to full-time pre-injury duties for approximately a month before his employment was terminated in June 2009;
(c)The plaintiff had ultimately obtained employment with Australia Post on a part-time basis in December 2011. He had applied, at that time, for a full-time position and had represented to that employer that he had no medical condition which would limit his activities;
(d)The ingestion of painkilling medication in 2013, and up until the present time, was on account of neck and shoulder injuries suffered in the course of his employment with Australia Post and was not referable to the subject injury of these proceedings.[2]
[2]See Peak Engineering & Anor v McKenzie [2014] VSCA 67
13 Plaintiff’s counsel, on the other hand, relied on the following criteria as demonstrating serious injury:
(a)The plaintiff had a good work history, not only with the defendant but with a prior employer, doing similar heavy manual work;
(b)The plaintiff was suffering from significant pathology in his lumbar spine which was causally related to the work duties complained of;
(c)The plaintiff had an excellent work ethic and requested a return-to-normal duties in, or about, May 2009, while still suffering from significant symptoms, and that it was unlikely he would be able to continue in such work;
(d)As at the date of hearing, the plaintiff was incapacitated for his pre-injury duties on account of his lumbar spine injury;
(e)The pain emanating from the lumbar spine, together with the sciatica, was probably permanent and had consequences not only leading to restrictions in employment, but with respect to the whole range of daily activities, such that there was a probable need for surgery in the future;
(f)The plaintiff was entitled to be regarded as “stoical”, in accordance with the dicta set out by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2).[3]
[3][2008] VSCA 260
Factual background
14 The plaintiff was born in 1968 in Turkey and came to Australia when he was about three years old. He attended secondary school at Footscray Technical School, but left during Year 9.
15 In about 1986, he began working as a storeman at “Billy Guyatts”. He worked there for about sixteen years, until the company closed down. Thereafter, he commenced working for the defendant “Clive Peeters”, as a full-time storeman from January 2003 until June 2009. His duties in that employment were heavy and involved a lot of repetitive lifting. He was lifting goods such as ovens, fridges and televisions.
16 Due to the heavy nature of his work duties, he would suffer from back pain from time-to-time. He made reports of back strain on various occasions between 2003 and 2008, while working as a storeman.
17 During 2008, he began to suffer from worsening back pain while performing his work duties. A CT scan taken at the behest of his then general practitioner, on 10 July 2008,[4] revealed a bulging disc at L4-5, which extended:
“… as a prolapse inferiorly to the left impinging upon the left interior aspect of the spinal theca and the left L5 nerve root origin.
At the lumbosacral level there is a right posterior disc prolapse impinging upon and displacing the right S1 nerve root origin and also impinging minimally upon the left S1 nerve root origin.”[5]
[4]Exhibit E
[5]Plaintiff’s Court Book (“PCB”) 36
18 The plaintiff remained at work, and on 18 December 2008, he suffered an episode of severe back pain while loading goods at work and was also getting pains down his right leg. The injury was reported and he had to completely stop working at that stage. His general practitioner certified him off work and he was prescribed medication for the pain.
19 In early 2009, the plaintiff returned to work on light duties at the warehouse four hours a day from about January to April 2009. He was being prescribed painkilling medication from his general practitioner and was also wearing a back brace.
20 On 10 February 2009, the plaintiff was examined by orthopaedic surgeon, Mr Peter Kudelka, on behalf of the defendant. Mr Kudelka subsequently reported on 12 February 2009.[6] He recited the history of work duties and injury as described above. At that stage, the plaintiff was:
“… on light duties avoiding lifting altogether and doing mainly supervisory work and using a computer … He is wearing a surgical corset and taking Oxycontin, an addi[c]tive drug which should not be used for prolonged periods.”[7]
[6]Exhibit 7
[7]Defendant’s Court Book (“DCB”) 43
21 On examination, Mr Kudelka noted that the right ankle jerk was absent. He considered that the presenting condition was:
“… restriction of movement of the lumbar spine and clinical evidence of right sciatica. This affects his mobility, his activities of daily living and has reduced his capacity for work to administrative duties only.”[8]
[8]DCB 44
22 Mr Kudelka considered the diagnosis to be one of a lumbosacral disc protrusion with right sciatica. The management plan was for him to be referred –
“… to a spinal Surgeon for an MRI and probable decompression surgery to relieve the pressure on the sciatic nerve.”[9]
[9]DCB 44
23 Mr Kudelka believed that the contributing factors to the plaintiff’s condition had been excessive lifting at work. He also considered that the natural ageing process had not superseded the work-related injury to the lower back.[10]
[10]DCB 45
24 In, or about, May 2009, the plaintiff returned to work duties, which he swore were similar to his normal duties, but avoiding heavy lifting. He swore that he struggled to cope with the work because of the ongoing pain in his back and right leg.[11] Thereafter, the plaintiff was terminated from the employment because of a dispute at work with a co-worker, and both had to leave the company. It was common ground this was unrelated to his back injury.
[11]Exhibit B, affidavit sworn 30 May 2014 at paragraph [10]
25 Thereafter, the plaintiff was in receipt of Centrelink payments while looking for a different type of work. In approximately 2010, he returned to Turkey for several months, to be with his father following the death of his mother. On returning to Melbourne in 2010, the plaintiff was back on Centrelink, looking for light work.
26 On 9 November 2010, the plaintiff made a claim for impairment benefits on account of his lumbar spine injury and ultimately received a Notice of Entitlement, dated 21 January 2011.[12]
[12]Exhibit D
27 The defendant had the plaintiff examined by occupational physician, Dr Chris Baker, on 7 January 2011, after which the entitlement to permanent impairment was admitted. Dr Baker reported on 7 January 2011.[13] Dr Baker took a history of the plaintiff returning to work on a graduated basis in 2009, although he had continuing symptoms in the back and right leg. Dr Baker noted the plaintiff was terminated on 30 June 2009 for an unrelated matter and, at that stage, had not worked since. Dr Baker also took a history that the plaintiff had been asked to return to full duties:
“… and he accepted this and returned to full duties on 20 May 2008. He worked undertaking his normal duties and normal hours up until the time he was terminated, however, he was suffering incrrased (sic) symptoms.”[14]
[13]Exhibit 8
[14]DCB 49
28 Further, the plaintiff told Dr Baker that he was capable of working; however, he noted that employers were reluctant to hire someone who had a WorkCover Claim for a back injury. The symptoms complained of included:
“… pain in the lower back, at least sometime during every day and he gets symptoms into the right leg, the lower part of the buttock, the back of the thigh and down to the calf … .
He suffers cramping of the right leg during the day and at night he is able to stand in the shower and dress. He notes putting on shoes and socks is a struggle. He cuts his toenails with difficulty.”[15]
[15]DCB 49
29 Dr Baker noted the plaintiff was not taking any medication, but noted:
“… that his back cramps up in bed and he has to straighten his leg. He often has to get up at night and walk about. He walks and rides a bike for exercise. He did not advise me of any other treatment he is receiving. He notes his main problem is finding employment.”[16]
[16]PCB 50
30 On examination, Dr Baker noted that the plaintiff had a diminished right ankle jerk compared to the left. He also noted that, after the examination, the plaintiff was able to dress with some difficulty, especially putting on his socks.[17] In conclusion, Dr Baker noted that liability for the lower back had been accepted and it was his opinion the plaintiff had a –
“… lumbosacral disc prolapse to the right side with symptoms into the right leg and depressed right ankle jerk.”[18]
[17]DCB 50
[18]DCB 51
31 Finally, Dr Baker considered the plaintiff had suffered a permanent impairment which had stabilised.[19]
[19]DCB 51
32 It seems there was no medical treatment between June 2009 and 2012 on account of the lumbar spine.
33 In December 2011, the plaintiff found suitable light work with Australia Post, working four hours a day, five days a week. The plaintiff swore that his back would get sore from being on the bike for those hours; however, he persisted and continued with the work. The plaintiff further swore that he did not believe he could have worked full-time in this role.[20]
[20]Exhibit B, affidavit sworn 30 May 2014 at paragraph [13]
34 While engaged with Australia Post, the plaintiff swore that he attended his general practitioner –
“… on occasions during 2012 to obtain medication to help manage my back pain.”[21]
[21]Exhibit B, affidavit sworn 30 May 2014 at paragraph [13]
35 The plaintiff tendered clinical notes from the Summerhill Medical Centre with respect to the 2012 consultations.[22] On 16 July 2012, his general practitioner has noted “fewer back pains today. Back pain on and off for years.”[23]
[22]Exhibit S
[23]PCB 110
36 On 18 July 2012, the notation is “Back pain since Monday. Low back stiff”.[24] Further on, 16 August 2012, there is the notation:
“c/o stiff low back
Postie Riding bike all day
Has had Physiotherapy before
Does some exercises daily. Tries to remain active”[25]
[24]PCB 111
[25]PCB 111
37 Thereafter, the plaintiff suffered a left shoulder and neck injury in the course of his employment with Australia Post on or about 2 September 2012, such that he had to cease work. He underwent scans on his neck and left shoulder and had osteopathic treatment which continued during 2013. It would appear that on, or about, 10 May 2013, he was prescribed Endep for his shoulder pain and on, or about, 21 August 2013, Tramal was added to the Endep for his neck pain.[26]
[26]Transcript (“T”) 39, Lines (“L”) 6-20
38 The plaintiff has sworn that he has continued to suffer from constant pain in his lower back since 18 December 2008, and it has never gone away.[27] The plaintiff has further sworn that, as a result of his back pain, he does not ride a bike anymore and cannot walk for long distances. His ability to do even basic chores around the home and garden has been reduced and he cannot lift anything heavy. He says he can bend and twist, but this can cause a pinching feeling in his back.[28] Further, the plaintiff swears he continues to suffer from pain and cramping, which comes and goes, in his right leg. He swears he gets these sensations every day and he also, at times, gets a feeling of pins and needles down his right leg.[29]
[27]Exhibit B, affidavit sworn 30 May 2014 at paragraph [15]
[28]Exhibit B, affidavit sworn 30 May 2014 at paragraph [16]
[29]Exhibit B, affidavit sworn 30 May 2014 at paragraph [17]
39 In addition to Mr Kudelka and Dr Baker, the defendant tendered two reports of orthopaedic surgeon, Mr Michael Dooley, dated 2 October 2014 and 7 July 2015.[30] In the first report, Mr Dooley took a history that, in 2009, the plaintiff had approximately two months off work and then returned to light duties.
“In time he asked his doctor to return to full time work. He did this but he said he noted increasing low back pain and he could not continue his work. He stopped work around mid 2009.”[31]
[30]Exhibit 9
[31]DCB 54
40 Mr Dooley further noted that, following employment as a postman in December 2011, the plaintiff was unable to work beyond September 2012 because of neck pain, left shoulder girdle pain and left upper pain. With respect to his lumbar spine, the plaintiff complained of constant ongoing low-back pain.
“At times he notes right lower limb pain. He notes cramping of his right leg at night. Currently he takes Tramal and Endep at night for his pain. He attends physiotherapy both for his lumbar spine and for his left shoulder. [The plaintiff] said that surgical intervention has been discussed in relation to the management of his lumbar spine. He is not keen on surgery. [The plaintiff] said that he spends most of his time ‘sitting at home going mad’.”[32]
[32]DCB 55
41 On examination, Mr Dooley found mild tenderness of the lower lumbar region on the right side and flexion of his back caused lower back pain. Mr Dooley also noted that the right ankle jerk was absent and that there was altered sensation in the whole of the right lower limb. In answering specific questions, Mr Dooley considered there was an organic physical basis to his complaints and the main component of his pain symptomology. Mr Dooley further noted that, from an orthopaedic point of view, he would expect the plaintiff to note some ongoing intermittent lower back pain and intermittent right lower limb pain. Mr Dooley did not believe that surgical intervention would be required. Further, the finding of an absent right ankle jerk and mild wasting of his right calf musculature are in keeping with the previous right-sided lumbosacral disc prolapse. He thought, however, there was an inconsistent finding in relation to loss of sensation affecting the right lower limb in a non-dermatomal distribution. However, Mr Dooley considered the work-related injury of December 2008 materially contributed to the plaintiff’s condition.
42 In conclusion, he stated:
“Overall I believe that [the plaintiff] presents as a sensible and genuine historian. I believe that he has had an expected psychological reaction to his situation but that overall this does not excessively influence his current presentation.”[33]
[33]DCB 57
43 Importantly, Mr Dooley thought the plaintiff could not return to his pre-injury duties and, from an orthopaedic point of view, he had –
“… a physical capacity to carry out light physical work and clerical duties. Return to suitable work would need to be on a graduated basis.”[34]
[34]DCB 58
44 Further, the plaintiff would not be able to return to heavy physical work or work that involved a lot of bending, lifting and manoeuvring.[35]
[35]DCB 58
45 Without further examination, Mr Dooley was asked for a follow-up report, which he gave, dated 7 July 2015. He stated as follows:
“It is evident that prior to the work related episode of December 2008, [the plaintiff] suffered from low back pain and probable sciatica pain. It is clear that he had established degenerative disc disease of the low lumbar spine. It is clear that CT scanning of the lumbar spine in July of 2008 showed definite degeneration at the L4/5 level and degeneration and a right sided lumbosacral dis prolapse. I remain of the view that during the course of his work in December of 2008 [the plaintiff] aggravated underlying degenerative disc disease of the low lumbar spine and may have sustained further disc prolapse on the right side at the lumbosacral level. His clinical condition improved with time. As expected, [the plaintiff] noted some ongoing intermittent low back pain and some lower limb pain. He was however able to work as a postman. From an orthopaedic point of view, I would have expected him to have been able to continue in this regard.”[36]
[36]DCB 59
46 The plaintiff’s solicitors had him examined by orthopaedic surgeon, Mr Russell Miller, on 20 May 2014 and 13 April 2015 and he, thereafter, furnished two reports dated 10 June 2014 and 14 April 2015, respectively.[37] Relevantly, the plaintiff’s history included that, in 2009:
“He stated that he was subsequently able to return to normal duties and normal hours. He stated that he had a further deterioration in his symptoms and was subsequently placed on restricted duties.
He stated that he remained on restricted duties, but there was a further event in approximately June 2009 … [and] his employment was terminated. At that time he was on restricted duties.”[38]
[37]Exhibit N
[38]PCB 64
47 The plaintiff’s present history with respect to the lower back was that he had low-back pain and discomfort.
“It radiates into the buttocks and further down the legs particularly the right leg with feelings of numbness, tingling and weakness in the leg. He is bothered by leg pain particularly at night, but back pain remains the dominant feature. He stated his symptoms fluctuate. There has been no pattern towards improvement. He reported significant sleep disturbance.”[39]
[39]PCB 64
48 It was noted the plaintiff was continuing to use a range of medications, including Tramadol and Endep.[40] Further, Mr Miller noted:
“He has had physiotherapy in the past, but this is not ongoing. He has had osteopathic treatment in the past, but this is not ongoing. He has not had hydrotherapy in the past. He does not use a brace or orthosis. He has not had surgical intervention.
He does not take anti-depressant medications. There is no psychiatric intervention.”[41]
[40]PCB 64
[41]PCB 65
49 On physical examination, Mr Miller noted that straight leg raising was positive on the right side at 50 degrees and neurological examination revealed an absent right ankle jerk. Mr Miller’s diagnosis was one of a musculoligamentous strain to the lumbar spine, aggravation of degenerative disease in the lumbar spine and probable disc injury at the L5-S1 level. Mr Miller thought that there was a degree of radiculopathy, as he had noticed the absence of a right ankle jerk. Mr Miller considered the prognosis to be fair/poor.[42] In terms of the plaintiff’s capacity for work, Mr Miller considered that:
“… has suffered a significant injury to his lumbar spine and this is likely to leave him with long term work restrictions which would include no repetitive bending, no repetitive lifting, no lifting of weights more than 5kg and a requirement to shift his posture on a regular basis. Therefore, in my opinion he would not be able to return to pre-injury duties on any significant full time or part time basis.”[43]
[42]PCB 66
[43]PCB 67
50 On Mr Miller’s follow-up report of 14 April 2015, there appears to be no substantial alteration to the original opinion.
51 The plaintiff’s solicitors also had him examined by neurosurgeon, Mr Paul D’Urso, who reported on 2 June 2015 and 14 July 2015.[44] In the first report, he took a history that, in 2009 –
“… he struggled on to work in a part time light duties capacity from January to May 2009. His employment was terminated in June 2009.”[45]
[44]Exhibit P
[45]PCB 91
52 On examination, once again, Mr D’Urso noted:
“His right ankle reflex is absent and other reflexes were present … Sensation was altered in the right leg.”[46]
[46]PCB 91
53 An MRI scan was reported on 8 July 2014, which noted, inter alia:
“At L4-5 there was a moderate diffuse disc bulge causing moderate canal stenosis and compression on the L5 nerve roots. At L5-S1 there was a right paracentral disc prolapse with compression of the right S1 nerve root and to a lesser extent the left S1.”[47]
[47]PCB 92
54 Mr D’Urso’s diagnosis was that the plaintiff had sustained injury to his lumbosacral disc causing right S1 radicular pain as a result of workplace injuries sustained on 18 December 2008, which injuries had stabilised. Mr D’Urso considered that if nerve root compression was still present on imaging, then surgical decompression would be appropriate. In any event, at that stage, he considered the plaintiff had no capacity to perform any type of repetitive bending, twisting or lifting activities. The plaintiff did not have the capacity to lift weight in excess of 10 kilograms.[48] Further, Mr D’Urso considered the plaintiff had limited capacity for any social, domestic and/or recreational activities and he did not have the capacity to perform more arduous domestic, cleaning or gardening activities. Finally, Mr D’Urso considered the plaintiff would appear to have a degenerative condition of his lumbar spine, particularly affecting the lower three motion segments. He thought it would be likely there will be a degree of progressive degenerative change with time, but this could be somewhat difficult to determine and predict.[49] At that stage, Mr D’Urso considered that surgical intervention by way of a microdiscectomy procedure may well be a good option for the plaintiff, and surgical fusion of the L4-5 and L5-S1 motion segments would be an option, but a last resort.[50] Mr D’Urso thought the plaintiff had –
“… a permanent incapacity of a total nature for employment at the present time and into the foreseeable future.”[51]
[48]PCB 92
[49]PCB 93
[50]PCB 94
[51]PCB 94
55 On the second consultation, Mr D’Urso had the benefit of an MRI scan performed on 28 May 2015. He noted that the report stated that the broad-based disc bulge at L4-5 caused compression of the left L5 nerve root and contact with the right L5 nerve root. Mr D’Urso considered that this would appear to be consistent with the previous imaging that had been performed. Therefore, he considered the plaintiff appeared to have ongoing, untreated nerve root compression in his lumbar spine, and that surgical decompression of the L5 nerve root by way of either a microsurgical discectomy or, possibly, an interbody fusion procedure, would appear to be appropriate options for the plaintiff.[52] It was Mr D’Urso’s opinion that, on the balance of probabilities, a successful surgical intervention would be of benefit to the plaintiff.[53]
[52]PCB 95
[53]PCB 96
Are the pain and suffering consequences “serious”?
56 Having seen the plaintiff in the witness box, I consider him to be an honest witness who, at all material times, was trying to tell the truth. I concur with the defendant’s orthopaedic surgeon, Mr Dooley, to the effect that the plaintiff –
“… presents as a sensible and genuine historian”.[54]
[54]DCB 57
57 I also accept Mr Dooley’s assertion that the plaintiff –
“… has had an expected psychological reaction to his situation but that overall this does not excessively influence his current presentation.”[55]
[55]DCB 57
58 In my view, the nature and extent of the pathology already identified by the various medical practitioners adequately accounts for the permanency and severity of the symptoms claimed.[56]
[56]See Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167
59 I further accept that the plaintiff did not resort to any substantial medical treatment by way of consultations or prescriptions from June 2009 until July 2012 on account of his back injury. I also accept that the medications prescribed of Tramal and Endep in 2013, were principally on account of his neck and shoulder injuries. Obviously those medications would affect his lumbar symptoms, as well as the other areas of his body, but I am unable to find, on the facts of this case, that the need for those medications is a consequence of his lumbar spine injury. I also accept senior defence Counsel’s submission that, ordinarily, these factors would gravitate against a finding of serious injury.
60 On the other hand, I find that the plaintiff is considerably restricted in his ability to perform manual work on account of his lumbar spine condition and that this is directly referable to his work-related injury. Insofar as he did return to normal duties for approximately one month prior to the termination of his employment, I consider that this was at his own instigation and that he, nonetheless, continued to suffer from symptoms while at work in the month following. I also accept that the plaintiff has had an admirable work history prior to his injury and that partaking in the workforce has been a strong motivating factor at all material times, both before and after his injury. I would accept that, as a single man, his self-esteem and significant enjoyment of life lay in his ability to perform manual work. I consider that this has been permanently significantly reduced in his case and has had a profound effect on his life.
61 In terms of his evidence with respect to requesting full-time duties prior to his dismissal from the defendant, I accept his explanation to the effect that the employer –
“… would’ve eventually got rid of you, with the restricted duties … if you can’t do physical work they’re not gonna want you.”[57]
(sic)
[57]T 21, L5-11
62 Obviously this is not evidence which can be used to the employer’s detriment, but I do accept that it was an honest opinion held by the plaintiff and was motivating him to continue at work despite ongoing symptoms. I also accept that when the plaintiff applied for full-time work with Australia Post, that he had not revealed his back injury because he wanted to –
“… get the job … to get my foot in the door … .”[58]
[58]T29, L25-31 and T32, L30-T33, L21
63 In my view, the consequences flowing from the work-related injury in the range of possible impairments can be considered to be “more than significant or marked” and as “at least very considerable”.
64 Leave will be granted to the plaintiff to issue proceedings for damages for pain and suffering on account of a lumbar spine injury he has suffered in the course of his employment with the defendant.
65 I will hear the parties as to any consequential orders.
- - -
0
4
0