Pitman v Porter Utilities Pty Ltd
[2016] VCC 1417
•28 September 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03669
| JOEL PITMAN | Plaintiff |
| v | |
| PORTER UTILITIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K.L. BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 20 September 2016 | |
DATE OF JUDGMENT: | 28 September 2016 | |
CASE MAY BE CITED AS: | Pitman v Porter Utilities Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1417 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the spine – pain and suffering only – range
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia & Anor (2006) 14 VR 602; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; State of Victoria vGlover [1998] VSCA 93; Abbas v Transport Accident Commission [2015] VSCA 217; Davidson v Transport Accident Commission [2015] VSCA 12
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Walters QC with Mr K Mueller | Stringer Clark |
| For the Defendant | Mr P Scanlon QC with Ms F Ryan | IDP 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 during the course of his employment with the defendant on 15 July 2012 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the spine.
5 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
7 The plaintiff relied upon two affidavits and gave viva voce evidence. His wife, Jodie, swore an affidavit on 13 September 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is thirty-six, having been born in January 1980. He and his wife, Jodie, have four young children: Jazmin, aged nine; Taylor, eight; Lincoln, seven, and Emily, aged four.
9 The plaintiff left school at the completion of Year 12. He worked as a labourer between 1998 and 2007 for the defendant’s predecessor and then in a similar role for a local contractor from November 2007 to 2009. His work to 2009 also involved plant operations and some supervisory duties.[3]
[3]Transcript (“T”) 6
10 Commencing in 1999, the plaintiff undertook a Certificate III in Civil Construction at Victorian University of Technology. This was a three-year certificate very similar to an apprenticeship, involving formal training and hands-on work.
11 In 2009, the plaintiff worked for Project Windows & Doors as a driver, and assembler of windows and doors for commercial and domestic premises.[4]
[4]T6
12 The plaintiff then worked as a sales representative for Challenge, selling agricultural equipment for just over twelve months.[5] In this role, he travelled around Victoria and South Australia working with a dealer network.[6]
[5]T6
[6]T7
13 In re-examination, the plaintiff explained he obtained the job with Challenge, as he had decided to further his career if he could, and he wanted to have a go at doing a sales job which was something new.[7]
[7]T25
14 The plaintiff left that job because he was required to look after such a large area. He did not want to do that much travelling with a young family. He really did not think he was a sales oriented person – he was no “scholar in sales”. He just did the best he could to keep his family afloat, to keep the money coming in. Sales was not his preferred employment because he had always been hands-on and enjoyed working outside.[8]
[8]T26
15 In late 2011, the plaintiff started work with the defendant. His work involved supervisory tasks and hands-on physical work such as plant operation, machinery operation and manual labour. The job was primarily as the supervisor and eighty per cent of the work was hands-on.[9]
[9]T7
16 Prior to the said date, the plaintiff had occasional treatment with an osteopath for occasional niggling back soreness. The symptoms were generally mild and intermittent and they did not prevent him working full time in heavy, unrestricted work, nor did they interfere with his usual recreational activities, family life or hobbies, such as fishing, camping or shooting.
17 On the said date, the plaintiff was at a worksite at Greenvale supervising directional drilling for gas mains. As he attempted to lower himself into a trench to inspect the pipework, the trench wall collapsed, causing him to fall heavily on his backside and injure his lower back (“the incident”).
18 After the incident, the defendant’s system of work was changed and ladders were introduced to enable workers to climb in and out of the trenches.
19 The plaintiff managed to complete his shift on the day of the incident. The following day, he had severe pain in his lower back, as well as soreness and tightness in his hamstrings. He took painkillers and reported the incident.
20 The plaintiff saw his osteopath, Bruce Frost, for treatment of his back a day or two after the incident. He also saw his general practitioner, Dr Sanderson, who initially organised an x-ray and later, MRI and CT scans of the plaintiff’s lower back.
21 In September 2013, the plaintiff was referred to Mr de la Harpe, orthopaedic surgeon, who advised against surgery and suggested Pilates and other conservative treatment. The plaintiff attempted Pilates but found that it irritated his back and he stopped after a few sessions.
22 In late 2013, the plaintiff started seeing a physiotherapist, Simon Ellis, who provided physiotherapy treatment and dry needling. When he swore his first affidavit in January 2015, the plaintiff was no longer having osteopathic treatment but was undertaking regular physiotherapy.
23 The plaintiff was then seeing Dr Sanderson for ongoing advice and management of his back condition. He was taking Panadol or Heron a couple of times a week, and the occasional Brufen. He continued to have counselling with Graham Dawes for depression caused by his ongoing back pain.
24 The plaintiff continues to attend Dr Sanderson every three or four months but he has advised there is not much more that can be done. The plaintiff funds his monthly physiotherapy with Mr Ellis. The plaintiff also does home-based exercises. Swimming had been suggested but he could not swimming because of work commitments.[10]
[10]T9
25 The plaintiff tries to avoid taking any type of medication and is concerned about the side effects of painkillers. Dr Sanderson has advised him not to take too many Nurofen because they are bad for his stomach. The plaintiff continues to take Panadol and Nurofen/Ibuprofen a few times a week.[11] Rather than take medication, he tries to avoid activities which he knows will cause his pain to flare up badly.[12] Dr Sanderson prescribes Valdoxan, which is both an antidepressant and a muscle relaxant, to help relieve the plaintiff’s back pain.
[11]T10
[12]T9
26 Having earlier seen Mr Dawes, the plaintiff has recently been referred to a psychiatrist, Dr Praveen, who he has seen twice to date and is due to see again in a month.
Work post incident
27 As a result of his back injury, the plaintiff was not able to return to normal duties and was moved to an alternative position undertaking paperwork. He was “just shuffling around”. Working in the office was the only job available.[13] It was a made-up role and there was often no meaningful work for him to do. It became clear he would have to look for another employer.
[13]T8
28 In about September 2012, Dr Sanderson told the plaintiff he thought he would not last long in his current job. On his advice, the plaintiff obtained an alternative job as a sales representative with CJD Equipment, selling Volvo construction equipment.[14]
[14]T7
29 The plaintiff worked from home much of the time, although he was required to drive around to various worksites. He missed working in his old job and he had always preferred manual, physical jobs in the outdoors.
30 Had the plaintiff not been injured, he and his wife Jodie wanted to start their own excavating contracting business with their own plant and equipment, but since the incident, he had been unable to do so because of the amount of physical work that would be involved. It was very important to the plaintiff that he be self-employed as he wanted his children to understand how great it was being your own boss and being in your own business instead of having to work for someone else.[15]
[15]T26
31 Before the said date, the plaintiff had a discussion with the defendant’s managing director floating the idea of his own excavating business, and was told by him that he would be given twelve months work on a subcontracting basis. The plaintiff and Jodie decided to go ahead with this plan but the defendant then squashed the idea and reduced the contract term to six months as it wanted the plaintiff to continue in its employ.[16]
[16]T26
32 As a result of his injury, the plaintiff had lost his chosen career path and was now restricted to working in non-physical work, such as sales, which he did not find enjoyable or rewarding. He was concerned that he did not have the same job security as pre-incident.
33 The plaintiff’s present job involves a lot of driving, which he no longer enjoys. That was not the case before the incident and he was able to drive very long distances uninterrupted. Now he needs to stop and have a break and stretch after about an hour and a half. If he is particularly stressed for time, he has to push on and the pain increases a lot and his back becomes very stiff and sore.
34 On average, the plaintiff is away from home two nights per week. He does not particularly enjoy this situation. But for his back injury, he would drive longer distances to get home at night, which would enable him to be at home more with his family.
35 The plaintiff’s area of work is the Western Region from Ballarat to the border up to the Murray and Ouyen. The job requires between fifty and sixty kilometres driving per annum.
36 The plaintiff is mainly involved in selling excavators, loaders and articulated haulers and he meets potential customers on site. Although he did some sales work in the past, this is a very different job to what the plaintiff was doing pre incident. Until that time, the bulk of his work had been hands-on and physical, rather than operating plant or supervision.
37 The plaintiff greatly enjoys working with his hands and believes he is more naturally suited to hands-on work. He does not enjoy working in sales, although the pay is similar to what he was previously earning.
38 The plaintiff’s current work hours vary from day to day, 8.00am to 5.00pm, sometimes with overnights. Whilst he does not keep a diary, he would regularly work a 38 to 40-hour week with a lot of after hours’ work trying to get sales done. He presumes, with other tasks like emails and telephone calls, he works about 50 hours a week.
39 In the last three years, the plaintiff has earned about what he earned in his previous job with the defendant. However, the first year was very difficult, when he was trying to build up a client base. He receives commission on sales as well as a salary.[17] He is doing his job to the best of his ability, gaining clients’ trust.[18]
[17]T12
[18]T12
40 The plaintiff finds staying away from home tough, especially with four young children. He wanted to avoid this situation and that is why he went back to work with the defendant after Challenge as he was told there would be no work away from home in the role with the defendant.[19]
[19]T27
Pain and restrictions
41 When he swore his first affidavit in January 2015, the plaintiff described constant aching and tightness in his low back and occasional flare ups. Back soreness was as a result of prolonged postures. He regularly had to adjust his posture. He had increased back pain as a result of driving for extended periods and was limited to driving for about 90 minutes before he had to stop because of back pain.
42 The plaintiff suffered from stiffness and reduced range of motion in his low back, as well as tightness in his hamstrings. He had trouble bending at the waist and often suffered from flare ups and locking in his back as a result of picking things up.
43 The plaintiff had difficulty dressing, especially putting on his shoes and socks. He often had to lean against a wall when putting on his pants. He also had trouble on a daily basis while bending over to wash his legs while in the shower.
44 Presently, the plaintiff is not able to do as much vacuuming and sweeping as he did previously because of the repetitive movements involved. Pushing and pulling the vacuum cleaner irritated his back. Not being able to help out much at home makes him feel worthless.[20]
[20]T30
45 In his recent affidavit, the plaintiff described previously being a very solid sleeper who seldom woke during the night. Now, typically, he wakes at least once a night. He tries not to get up and usually rolls over and tries to get into a comfortable position, but his back pain often keeps him awake for a while until he is able to get back to sleep.
46 The plaintiff’s physiotherapist has recommended that he do as much walking as he can. Most nights, after the children have gone to sleep, he goes for a walk for 15 to 20 minutes. If he goes out for much longer, he gets stiff and sore.
47 The plaintiff’s back injury had also taken a psychological toll. He had become depressed and lost self-esteem because of the change in his life and the inability to undertake many of the things he used to love, such as playing with his children in a free and unrestricted way or working in his chosen field. The injury has also been placing pressure and strain on his marriage.
48 Prior to the back injury, the plaintiff had never really suffered from depression or been on antidepressants. What really upsets him now is that he knows how fit and active he was at work and recreation pre incident, and he finds it very upsetting that at his age there are so many things he can no longer do indefinitely into the future.
49 The plaintiff’s injury has also greatly impacted on his sexual relationship with Jodie. They no longer have intercourse as often as before and it is not nearly as much fun. He has had to learn to accommodate his injury so he avoids positions and movements that might cause too much pain.
50 The plaintiff is now a lot more moody and a lot less patient, particularly with his children, which he deeply regrets.
Sporting and family activities
51 In his first affidavit, the plaintiff described how his injury continued to limit his recreational activities and lifestyle. Pre incident, he was very active, with a full active outdoor life and enjoyed regularly playing games and sports with his children.
52 As a result of his injury, the plaintiff was no longer able to run and was limited in walking about a kilometre before suffering increased back pain.
53 The plaintiff was restricted in his ability to engage in a range of outdoor activities such as playing soccer or riding bikes with his children. He struggled with those activities and had to stop and rest after only a short period and then felt worn out and sore for the rest of the day. He had a lot of trouble picking up his youngest child because of his back injury.
54 None year old Jazmin is a keen and quite talented basketball player. Lincoln, who is seven, is very keen on soccer, cricket and all ball sports. The plaintiff tries to play sport with his children and have a kick of the football and play a little basketball because he does not want to tell them that he is incapacitated. However, after half an hour or so, he has to find an excuse to stop.
55 The plaintiff and Jodie made a decision to have children while they were young so that they could be active young parents with them. As a result of his injury, the plaintiff is physically restricted like someone who is much older. When he plays with his children, he often pays for it afterwards and his back takes a long time to settle down.
56 The plaintiff tries to be active with his children and he can do their sporting pursuits with them, whether it be football, soccer, netball or whatever. He may not do it at the same pace or with the same regularity but, nonetheless, he is still able to participate.[21]
[21]T22
57 The plaintiff takes his children to their sporting activities, travelling sometimes to Melbourne, and also locally. He tries to help out with jobs like being a goal umpire and participating, just as all the dads do.[22]
[22]T23
58 The plaintiff can have a kick of the footy and do similar activities, but he has to find an excuse to stop and say that is enough because he knows he is going to have pain and soreness afterwards. He could probably do those types of activities for half-an-hour, but before the incident, he could do anything he wanted. He is now limited compared to other dads.[23]
[23]T30
59 The plaintiff was restricted in his ability to engage in activities such as camping or shooting because of his back pain, and had difficulty carrying heavy objects or walking for long distances. He went camping and shooting much less frequently than he used to.
60 Before suffering the injury, the family went camping three or four times a year, mainly on the Murray and often with extended family. Jodie’s parents have a ski boat and the plaintiff would take his 12-foot tinny and go fishing.
61 Before the incident, the ski boat would be going most of the day. The plaintiff would be on the boat driving or as an observer for hours on end as well as doing knee boarding. Now, he is comfortable going out on the boat if the water is smooth. He can observe or drive the boat when the water is flat, depending on how many people are on the river.[24]
[24]T13
62 Since the incident, the plaintiff would be lucky to have gone out a handful of times on the boat. He needs to take care looking over his shoulder. He no longer does knee boarding or goes out on a rubber tyre, which is probably twice as bad as a knee board because of the bouncing around involved.[25]
[25]T28
63 The plaintiff has sold the family’s pop-up caravan. Instead, when the family go camping, they now stay in cabins, as the plaintiff’s back can no longer cope with sleeping on a blow-up mattresses and “roughing it” as he did previously.[26]
[26]T13
64 The plaintiff has since sold his small fishing boat. He would have trouble getting it into the water from his car.[27] Since the injury, fishing is difficult. Trying to cast a rod and teaching his children, with all the twisting and bending, the plaintiff later has a stiff and sore back. He has probably only fished off the shore a handful of times since the injury.[28]
[27]T12
[28]T12
65 The plaintiff always planned to do a big trip around Australia. Originally, he and Jodie thought they would do so when the children were off their hands. However, they have decided to bring the trip forward as the plaintiff is concerned that if he leaves it much longer, he will not be sufficiently mobile to enjoy it.
66 They now plan to go on a big trip with the children in a year or so. This would be an ideal time because the children are not yet in high school. They have rented their home for a year with a six-month option and presently live with Jodie’s parents.[29]
[29]T23
67 The bus on which they are going to travel is currently being renovated and fitted out as a camper bus by a friend who lives locally. The plaintiff removed a few seats from the bus and sold them on the internet. The bus is going to have a proper bed with a mattress and pillows.[30]
[30]T27
68 They plan on travelling for a year and where they go depends on what they will find on the way. They will home school the children and the plaintiff and Jodie will probably work on the road, trying to get employment through contacting work agencies.[31]
[31]T15
69 The plaintiff would be driving from time to time and then they would move on. He was going to travel a lot of kilometres over a distance.[32]
[32]T16
70 Hopefully, on his return, the plaintiff would be able to go back to his current job, depending on how he negotiates how long they go for. He has not discussed anything yet with his current employer. The plaintiff has not decided when he is going to leave, but his employer knows he has rented his house because the plaintiff had to advise of his change of address.[33]
[33]T16
71 The plaintiff then said that his boss knew they were planning to travel around Australia, and they had discussed the prospect of coming back to work if his job had not been given to someone else. That is the plaintiff’s plan but, obviously, things change.[34] His employer know about his plans but not in any great detail.[35]
[34]T17
[35]T18
Gardening and home maintenance
72 The plaintiff has difficulty with a wide range of household tasks such as heavier cleaning activities which involved repeated bending or strenuous back movement.
73 Before the house was rented out, the plaintiff was mowing the lawns.[36] In 2014, he was assisting his wife with the domestic duties of cooking and cleaning.[37]
[36]T24
[37]T25
74 The plaintiff used to enjoy gardening and maintaining his yard. He was now very restricted in this regard because he had trouble bending over, digging or lifting heavy objects. He is limited to gardening for only about two hours before he has to stop because of back pain. He missed being able to work in the garden in an unrestricted way.
75 Prior to the incident, the plaintiff was intending to landscape his backyard but had not been able to do so because of his back injury.
76 Until 2009, the plaintiff’s family had a home on a quarter block at Sebastopol. The plaintiff did a great deal of work both on the house and around the garden. He built a large deck and built extensive retaining walls, paths and garden beds with lots of lawn. He was very proud of the lawn which people teasingly said looked like a bowling green. He also built a playground for the children.
77 The house was sold in 2009 and they bought a steep block in Mt Clear, where they had great plans to undertake extensive landscaping, which the plaintiff started before the incident. Thereafter, he was able to do very little of the work and had to pay contractors to do most of the work that he otherwise would have enjoyed doing. Jodie did a good deal of the work which made him feel pretty bad, greatly affecting his self-esteem, often watching her work while he stood by.
78 The land at Mount Clear was purchased in about 2010-2011. They built in 2011 and moved in January 2012.[38] It was in a very hilly area on an incline and the plaintiff planned to do all the landscaping and related jobs. The work on the front yard was completed before the incident.[39]
[38]T18
[39]T19
79 Post incident, the backyard needed to be retained, paved and planted out.[40] The plaintiff tried to help out where he could; he put in some sleepers on the first part. The cubby house from the old house was moved to the new property and erected by the plaintiff with his father’s help.[41]
[40]T19
[41]T20
80 The plaintiff installed some of the pine sleeper retaining walls, but mostly this work was done by Rhino Landscaping. The plaintiff participated as much as he could and he did some planting out of the garden.[42] He thought he was lucky to have done 10 per cent of the sleepers. Had it not been for his injury, he would have been able to do it all himself.[43]
[42]T20
[43]T29
81 If he had not been hurt, the plaintiff would have probably done all the bamboo planting and jobs out the back, he did required assistance from Jodie and his younger son. Had he not been hurt, the plaintiff would have carted the crushed rock up the hill. Instead, Jodie barrowed most of it and he did only a couple of buckets as it irritated his back.[44]
[44]T29
82 The plaintiff did not play a part in installing the large deck area. He did not do any of the preparation for the decking, it was done by a builder. The plaintiff had put up the deck at the Sebastopol property with the help of his father-in-law. Had he not been injured, he would have built the deck at the new property the same way.[45]
[45]T21
83 The plaintiff agreed he had been relatively busy in the garden at the property ; he was very proud of his home and very proud of the way it now looks.[46] He did a significant amount of work in the backyard with planting out. He generally did as much as he could. Jodie helped and did more than he did but he did what he could.[47] A local contractor was paid to do some of the labour work. Had he not been injured, the plaintiff was going to do it all himself.[48]
[46]T22
[47]T22
[48]T28
84 The plaintiff agreed that moving sleepers into position for retaining walls was relatively hard work. It was a lot harder than vacuuming or sweeping, but they still had an effect on his back pain. The plaintiff has never said he could not do anything, he is just very limited in how much he could do. He will do whatever he can.[49]
[49]T24
Lay evidence
85 The plaintiff’s wife, Jodie, swore an affidavit on 13 September 2016. She has been married to the plaintiff for ten years. She works part time, about 10 hours per week, contracting as a consultant in a quality assurance business.
86 Pre incident, the plaintiff occasionally complained about aches and pains in his back but otherwise he was physically very fit. He was “happy go lucky.” He was very handy and loved working with his hands. When he was not at work he would be in the shed “tinkering” and if there was anything that needed fixing around the house, he enjoyed doing it.
87 When they bought a house on a quarter-acre at Sebastopol, it had no garden. The plaintiff erected a large deck and did extensive landscaping. He was very proud of the lawn, which was very well maintained.
88 After that house was sold, they bought a block at Mt Clear with plans of landscaping, but the plaintiff did not get very far with them before he was hurt.
89 Since then, they have paid for most of the work that the plaintiff would otherwise have done. She has also undertaken a lot of the labouring work which he otherwise would have enjoyed doing, including wheelbarrowing a lot of crushed rock uphill.
90 On one occasion, she could recall they had two pallets of sleepers delivered which were quite heavy. Sometime after the incident, they received a call from the bobcat operator that the sleepers had to be moved to give him access to the property. This had to be done quickly and on this occasion it was raining. She moved as many of the sleepers as she could in the rain while the plaintiff watched, looking miserable. Halfway through, she called her father to help.
91 These incidents have really hit at the plaintiff’s pride and self-esteem. He had previously been a happy and outgoing person but now he gets really cross and she often has to tell him to go for a walk until he calms down. His psychologist has encouraged him to take time out when he feels angry. However, there are times when he goes off on his own, so depressed and down in the dumps that she is worried whether he will come home.
92 The plaintiff has always prided himself on being fit and active and looked forward to being a great dad and doing lots of active things with the children. He is still a great father and he hates letting the kids down and tries to play with them but often has to cut it short because his back becomes too painful.
93 The older children have asked her when the plaintiff is going to get better and why he cannot be like other kids’ fathers. They also asked why he is no longer much fun. They tend to make comments like that to her because they know it would upset him.
94 The injury has changed the plaintiff a lot. He is in pain most of the time, the level of which seems to vary a good deal. When he is feeling better, he tries to do a little more but often pays the price.
95 The plaintiff loved his job with the defendant and really enjoyed manual work. He is not a natural salesman by inclination and obviously does not enjoy that work.
96 Before the plaintiff was injured, he had ambitions to open his own excavation business but knows that to do so he would have to be hands-on and has to now put that ambition out of his mind. He is also concerned that as a result of his injury, there are now a whole lot of jobs he is unable to perform, and he worries about his long-term job security.
The Plaintiff’s medical evidence
Treaters
97 In his most recent report of April 2014, the plaintiff’s general practitioner, Dr Sanderson, confirmed his diagnosis of multilevel lumbar disc degeneration and unresolved lumbar spine soft tissue injury.
98 Dr Sanderson thought the plaintiff’s injuries were responsible for him being unable to ever return to his previous employment. He considered the plaintiff should be suitable for duties which did not include manual labour.
99 Dr Sanderson noted the plaintiff and his family had reported he had become more isolated and reserved since the incident and he had been unable to participate in many family activities due to his back injury.
100 Dr Sanderson thought the plaintiff would require ongoing back strengthening and flexibility exercises and Pilates treatment.
101 Dr Sanderson concluded the injury had been a significant life changing event for the plaintiff. He noted that the plaintiff’s income had dropped considerably, he was depressed and reserved and his outlook for future employability did not look hopeful.
102 Dr Bruce Frost, osteopath at Ballarat Osteopathic Clinic, reported in February 2014.
103 At that stage, he noted the plaintiff had moved to a more sedentary occupation where he had more of a hope of remaining employed, unlike manual work.
104 Dr Frost also noted that prior to his injury, the plaintiff was able to undertake all activities anyone would think reasonable around the house and for long periods. The plaintiff had a young family and had trouble playing with his children for half-an-hour. He had to be cautious as to what was involved in any social activity and whether there would be any seats available for him.
105 Prior to the injury, Dr Frost saw the plaintiff irregularly. When he came in, he sometimes required one treatment, and on other occasions, required a few, and then his back would settle. This was always to the point that the plaintiff could do as he wanted around the house and at work without fear that he would be in pain after a short period. This had not been the case since the injury.
106 Dr Frost noted treatment would be ongoing and he would like to see joint blocks offered.
107 In Dr Frost’s view, the plaintiff continued to suffer from a very unstable low back problem which could be controlled but not cured by ongoing treatment.
108 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff in September 2013 on referral from Dr Sanderson.
109 At that stage, the plaintiff had had to change occupations and was now in sales as he could not do manual work. He was taking Heron Blue on an intermittent basis for pain. He tried Pilates but felt that aggravated his condition. He was having osteopathic treatment.
110 On examination, Mr de la Harpe found limited lumbar movement with no neurological abnormality in the lower limbs.
111 Mr de la Harpe diagnosed an aggravation of pre-existing degenerative disc disease in the lumbar spine causing discogenic and mechanical back pain. He thought these physical injuries had caused the plaintiff to be unfit for pre-injury duties now and into the foreseeable future.
112 Mr de la Harpe considered the degenerative changes in the lumbar disc now excluded the plaintiff from returning to duties of a manual nature but there may be possibility of retraining into suitable sedentary employment.
113 Mr de la Harpe thought it likely the plaintiff’s symptomatic degenerative lumbar disc will now have an impact on his social, domestic and recreational activities into the foreseeable future. For example running, sports and contact activities will not be possible as they will cause increased degenerative back pain.
114 Mr de la Harpe thought conservative treatment and activity modification was appropriate in the future. The prognosis was somewhat guarded as he believed the plaintiff had permanent damage in the lower lumbar discs and would suffer ongoing degenerative back pain into the foreseeable future. There will always, in his view, be limitations in the plaintiff’s employment, social and recreational activities.
115 Mr Dawes, psychologist, saw the plaintiff on referral from Dr Sanderson. The plaintiff attended counselling with Mr Dawes on six occasions between 3 December 2013 and 6 June 2014.
116 Mr Dawes noted the plaintiff, prior to his back injury, had been a physical person and therefore the limitation in movement and mobility due to his injury was making him feel low, useless and, at times, angry. He reported he was not spending enough time with his children.
117 The plaintiff reported at least five symptoms associated with the depressive episode, namely, low mood, difficulty sleeping, social isolation, lethargy, recurrent thoughts of death and feelings of worthlessness and guilt.
118 Initially, Mr Dawes diagnosed Major Depressive Disorder, single episode, mild severity. However, after undertaking treatment, the plaintiff’s condition was now in partial remission.
119 Based on the progress to date, Mr Dawes thought the plaintiff had recovered from his initial presentation but his prognosis remained guarded, with his mood largely dependent on his back condition, with noticeable lowering of his mood upon re-injury.
120 Mr Dawes considered further regular and consistent psychological support and application of CBT techniques would improve the plaintiff’s prognosis.
121 Simon Ellis, musculoskeletal physiotherapist, first saw the plaintiff in November 2013 due to ongoing low back pain,
122 In his report of 25 July 2015, Mr Ellis stated his working diagnosis had been that of a discogenic pathology causing secondary movement impairment problems.
123 As a result of his injury, the plaintiff had been unable to undertake physical work with any degree of confidence. To this end, Mr Ellis believed the plaintiff’s physical injuries caused him to remain unfit for pre-injury duties in the foreseeable future.
124 Mr Ellis considered the plaintiff will most likely experience flare ups of his back into the future and may require some hands-on treatment from time to time, as well as an ongoing regime of home exercises.
Investigations
125 The plaintiff underwent a lumbosacral spine x-ray on 27 July 2012.
126 It was reported there was no destructive lesion seen. Sacroiliac joints were unremarkable. There was no compression or wedge fractures evident. There was mild irregularity of the anterior lips of L4 and L5.
127 An MRI scan of the lumbar spine was organised by Dr Sanderson in September 2012.
128 It was reported there was established disc desiccation consistent with developing degenerative change. No neurological compromise or focal disc protrusion was seen.
129 A CT scan of the lumbar spine was carried out on 1 August 2012. It was reported there was some minor degenerative change but no evidence of focal disc protrusion nor of any significant canal stenosis.
Medico-legal evidence
130 Mr Thomas Kossmann, orthopaedic surgeon, initially examined the plaintiff in 2013 and re-examined him in September 2014.
131 Mr Kossmann diagnosed aggravation of pre-existing degenerative lumbar disc disease to which work was a contributing factor.
132 Mr Kossmann thought the plaintiff had a capacity to perform suitable employment. He noted the plaintiff had changed jobs and now worked for a company as a sales representative, which was mostly sedentary in nature. He seemed to cope with those duties.
133 Mr Kossmann considered the plaintiff’s impairment was permanent. His prognosis was guarded and would require conservative treatment in the future.
134 Mr Kossmann thought the plaintiff was restricted in relation to employment and related activities. He considered the plaintiff had no capacity to perform his pre-injury duties. This situation was permanent.
135 In Mr Kossmann’s view, the plaintiff’s social, domestic and recreational activities had been affected by his condition. He was not able to play with his children as he would like. Furthermore, he had to give up fishing.
136 Mr Kossmann thought the plaintiff’s prognosis was guarded, with conservative treatment required in the future.
137 Mr Brearley, general surgeon, first examined the plaintiff in June 2014 and re-examined him in August this year.
138 On re-examination, again there was no deformity or tenderness of the lumbar spine. There was some marked limitation of movement. Straight leg raising was to 80 degrees.
139 Mr Brearley diagnosed mechanical lumbar back pain due to aggravation of pre-existing lower lumbar degenerative disc disease. He noted there was no evidence of compression, either clinically or on investigation.
140 Mr Brearley thought the plaintiff was no longer able to carry out labouring-type work or any job which involved heavy lifting or repeated bending and stooping, driving plant equipment or heavy vehicles. The plaintiff could not undertake his previous duties either part time or fulltime.
141 In Mr Brearley’s view, the plaintiff was capable of carrying out suitable employment and he was doing that now working as a sales manager with CJD Equipment, where he was able to do the job without difficulty and there was no lifting, bending or stooping involved.
142 Mr Brearley noted the plaintiff was working full time and had required no time off work since he started with the company three years ago.
143 Mr Brearley thought the plaintiff’s incapacity for other physical work was permanent.
144 In Mr Brearley’s view, the plaintiff was precluded, in regard to social, domestic and recreational activities. He was not able to play basketball or football with his four children or play other games with them for the foreseeable future.
145 Mr Brearley thought the plaintiff would be precluded from work involving helping his wife with the vacuuming and sweeping and was unable to undertake heavier aspects of the gardening on a permanent basis.
146 In the future, Mr Brearley thought the plaintiff would require occasional physiotherapy and analgesics when he had a recurrence of his low back pain or exacerbations of the pain.
147 Mr Brearley thought it most likely that pain episodes and difficulties will persist. There will be exacerbations of low back pain with any strain by lifting or too much bending. He thought the plaintiff would need to exercise care with regard to protecting his back for the foreseeable future.
148 Dr David Fish, occupational physician, examined the plaintiff on behalf of the defendant in October 2014.
149 The plaintiff told him he continued to suffer lower back pain, which was aggravated by cold weather, walking for more than one kilometre or driving more than 90 minutes. He found his sleep was disturbed by pain at night. The pain usually radiated into the buttocks and posterior thighs at both legs.
150 The plaintiff told Dr Fish that he was now working as a sales manager for a different company selling construction equipment and was managing his job well.
151 The plaintiff was then taking Ibuprofen, as needed, on average two to three times a week. He saw a physiotherapist, as needed, every three to four weeks and had massage manipulation and dry needling, and felt improvement for two or three weeks after each treatment.
152 On direct examination of the lumbar spine, the plaintiff held a stiff back in flexion and had normal motion otherwise. There was evidence of dysmetria, with restricted flexion and spasm when the plaintiff performed lateral flexion to the left and right. There was tenderness present over the L4-5 interspace.
153 Dr Fish had available the x-ray and MRI scan of the lumbar spine.
154 Dr Fish concluded the plaintiff had a history of pre-existing lumbar disc degeneration causing minor symptoms, but no lost time. He now presents with an aggravation of lumbar disc degeneration with persistent symptoms, necessitating a change of job. There were no clinical signs of radiculopathy.
155 Dr Fish thought the plaintiff was suffering from aggravation of lumbar disc degeneration relevant to the accepted back injury and allowed a percentage impairment pursuant to the AMA Guide.
156 By letter in December 2014, Allianz advised the plaintiff that his claim pursuant to s98C was accepted relating to an injury to the lumbar spine on 25 July 2012, following examination by Dr Fish.
The Defendant’s medico-legal evidence
157 The plaintiff was examined by Dr David Ho, occupational physician, in January 2013 in relation to his statutory benefit entitlements.
158 The plaintiff then reported tightness in his buttocks and hamstrings and there was a little niggling in his lower back, depending on what he did and how he did it. There was always pain in his lower back but it was bearable and there were no days without pain. He did not have any symptoms in the legs, in particular, pins and needles or numbness or tingling.
159 Dr Ho had available all investigations.
160 Dr Ho noted active thoracolumbar spine movements were restricted in flexion as the plaintiff was not confident with flexion beyond 45 degrees. He said he was able to flex further normally, but had difficulty getting up or straightening up from a flexed position.
161 From the history, Dr Ho thought the plaintiff had most likely sustained a soft tissue injury in his low back from the reported jarring to his spine in the incident.
162 In time, and with treatment, the plaintiff reported improvement in his lower back pain. However, he had the level of pain described. Dr Ho noted clinical examination revealed good range of movements in the lower back but lack of confidence with flexing beyond 45 degrees.
163 Following that examination, Dr Ho believed the plaintiff had recovered well from the likely lumbar soft tissue injury. He thought the plaintiff did not require ongoing osteopathic treatment currently. He should be doing a gym program with regular swimming. He thought the plaintiff’s current employment as a sales manager was reasonable and appropriate.
164 With restoration of core strength and his level of physical fitness, Dr Ho believed the plaintiff would be able to return to his pre-injury duties and hours. However, he noted that the plaintiff had left his previous employment and was currently working as a full-time sales manager.
165 On 1 June 2015, the Medical Panel found that the plaintiff suffered from a soft tissue injury to the lower back in the setting of pre-existing lumbar spondylosis without radiculopathy. This was temporary in nature and had since resolved.
166 The Medical Panel was of the view that the plaintiff’s soft tissue injury to the lower back in the setting of pre-existing lumbar spondylosis without radiculopathy resulted from, and was materially contributed by, the claimed injury to the lower back. Given the decision that the soft tissue injury was temporary in nature and had since resolved, the Medical Panel did not consider the appropriateness of a number of treatment modalities.
167 In closing addresses, counsel for the defendant made reference to a number of paragraphs in the Medical Panel’s Reasons.
168 The plaintiff told the Panel that his general practitioner advised him to change his occupation to less manual work on account of his back pain and he resigned in December 2012. He said he obtained employment as a full-time sales manager, which he has held since. He said his duties involved travelling about 60,000 kilometres per year, two to three hours per day, on average.
169 The plaintiff told the Medical Panel he currently continues to experience a dull pain in his lower back every morning, which may continue through the rest of the day, but about two days a week he has no back pain during the day. He said his lower back pain spreads to both buttocks without any numbness or tingling. He says he has no pain on sneezing or coughing, but walking further than 1,500 metres, bending, lifting more than 10 to 15 kilograms, or sitting for longer than an hour-and-a-half, all tend to aggravate his lower back pain. He said he has normal urinary and bowel control.
170 The plaintiff told the Medical Panel he wakes twice a night with lower back pain. His current analgesic medication consists of either Nurofen or Panadol, averaging about twenty-four tablets every two or three weeks. He said, in addition to his analgesic medication, he also takes a number of supplements, including magnesium.
Overview
171 There was no dispute that the plaintiff suffered a compensable injury to his lumbar spine in the incident. His claim for compensation was accepted and he received an impairment benefit pursuant to s98C.
172 Counsel for the defendant conceded that the plaintiff has a pre-existing degenerative spinal condition which was initially aggravated in the incident.[50]
[50]T33
173 Whilst the plaintiff had some aches and pains in his lower back prior to the incident treated by osteopathy, such treatment was negligible. His osteopath Bruce Frost confirmed that, pre incident, the plaintiff was able to engage fully in heavy, physical work and was unrestricted in his other daily activities.
174 There is no suggestion that the plaintiff’s current lumbar impairment lacks a significant organic basis. However, medical opinion relied on by the defendant is to the effect that the soft tissue injury suffered in the incident has largely resolved.
175 The main issue in this case, however, is one of range.
176 Counsel for the defendant conceded there is an impairment with some pain and suffering, which requires some medication from time to time, but the plaintiff also has an ongoing capacity to engage in employment and other sporting and recreational activities.[51]
[51]T38
177 Reliance was placed on Ashley JA’s comments in Dwyer v Calco Timbers Pty Ltd (No 2)[52] as to the relevance of what was retained:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[53]
[52][2008] VSCA 260
[53]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
178 Counsel for the defendant submitted that the plaintiff remains in full-time employment working significant hours, attempting to look after his fine young family, as he does.[54] Any impact on his sporting and recreational activities is not at the level where it satisfies the serious test.[55]
[54]T33
[55]T38
179 In response, counsel for the plaintiff submitted the plaintiff has never said that he could not do anything if he tried. However, he has to avoid as much aggravating activity as he can and has resolutely avoided taking medication
180 In addition to home maintenance, gardening and renovations, a number of the plaintiff’s recreational activities are now quite limited.[56] Whilst he currently has a sales position, there are real limitations as to alternative positions he can take up if he loses that job.[57]
[56]T40
[57]T45
181 It was submitted the injury has been a significant life changing event for the plaintiff, as Dr Sanderson described.[58]
[58]T45
Credit
182 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[59]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[60]
[59](2010) 31 VR 1 (“Haden Engineering”)
[60]Haden Engineering at paragraph [12]
183I found the plaintiff to be truthful and reliable witness, although his evidence was somewhat confusing as to what he had told his current employer about his proposed bus trip around Australia.
184Further, no medical examiner considered the plaintiff was exaggerating or embellishing his symptoms.
185The plaintiff’s wife confirmed the plaintiff’s evidence as to his level of pain and restriction. Her evidence was unchallenged.
Pain
186As Maxwell P said in Haden Engineering,[61] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about pain both in court and to doctors.
[61]Haden Engineering at paragraph [11]
187 Since the incident, the plaintiff has suffered from constant aching and tightness in his low back and at times, experiences flare ups. His back is stiff at times and his range of movement is reduced. He has difficulty bending and also has increased back pain with prolonged postures.
188 The plaintiff’s evidence in this regard was not challenged.[62]
[62]The history of being pain free two days a week set out in the Medical Panel’s Reasons was not put to the plaintiff nor was history of improvement noted by Dr Ho on examination in January 2013
189 The plaintiff is now only thirty-six and will have to endure pain and restriction for many years into the future.
190 In Stijepic v One Force Group Aust Pty Ltd,[63] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[63][2009] VSCA 181 at paragraph [43] (“Stijepic”)
191 The Court held that, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Treatment
192 The plaintiff’s back condition requires ongoing treatment. He remains under the care of his general practitioner, Dr Sanderson. He referred the plaintiff to orthopaedic surgeon, Mr De la Harpe, who suggested conservative treatment. Surgery has not been recommended.
193 After an initial period of osteopathic treatment, the plaintiff has continued to undergo physiotherapy approximately monthly. Of recent times, he has paid for this treatment after funding ceased. He also undertook Pilates for a short time but this did not help his condition. He continues to do home-based exercises.
194 Whilst the plaintiff tries to avoid taking medication and is worried about the side effects thereof, he still requires painkillers two or three times a week for back pain, taking over-the-counter medication such as Ibrufen.
Domestic and recreational activities
195 I accept that prior to the incident, the plaintiff led an active life which has now been significantly curtailed by his back injury.
196 Counsel for the plaintiff described Jodie’s reference in her affidavit to the plaintiff’s problems moving the garden sleepers as a “vignette of a person who is very miserable and affected by the impact of the injury in his life”.[64]
[64]T40
197 Prior to the incident, the plaintiff was able to landscape his own garden and build the deck at the Sebastopol property without the assistance of external labour. Whilst he has done a bit of the work on the new block, he had to pay someone to build the deck and Jodie has had to do much more work than he would like her to do. External contractors were also required to carry out other tasks, doing jobs the plaintiff previously enjoyed and carried out without difficulty.
198 Further, the plaintiff is limited in his ability to perform simple household cleaning tasks which involve repetitive or heavy movements such as vacuuming.
199 The plaintiff has difficulty bending to get dressed and also to clean himself in the shower. At times, he has suffered from flare ups and locking in his back when engaging in these activities. His evidence in this regard was not challenged.[65]
[65]T41
200 The plaintiff sometimes wakes with back pain. Sleep difficulties were reported by the plaintiff to Dr Fish and the Medical panel. The plaintiff also experiences ongoing problems in his intimate relationship, as his wife Jodie confirmed.
201 The plaintiff is no longer able to run as a result of his back injury. He is unable to play freely with his four very young children. Whilst he still takes them to sport and has a kick of the footy and other similar activities, he can only do so in a restricted, careful manner and for a limited period of time, unlike other fathers.[66] Jodie and Dr Sanderson confirmed the plaintiff’s ongoing problems in this regard.
[66]T41
202 Because of his back injury, the plaintiff has sold his small boat and now goes fishing very rarely and has difficulty casting when doing so. He is unable to go knee boarding or ride on a tube behind the ski boat. He no longer goes shooting. He has sold the family pop-up camper van as he is unable to go camping in the rough as he has to sleep in a proper bed.
203 The plaintiff has played a limited role in renovating a bus to take it camping around Australia with his family. He has required the help of a friend to do most of the work.
204 In addition to domestic ad recreational activities, the plaintiff’s injury has impacted considerably on his employment situation.
205 Most medical practitioners who have examined the plaintiff consider he no longer has the capacity for unrestricted, heavy, physical work of the nature he carried out pre incident and he is now suited to more sedentary employment. Dr Ho is the only practitioner who considered the plaintiff has a capacity for his pre-injury duties, last seeing him in January 2013.[67]
[67]The Medical Panel did not address the issue of employment
206 As counsel for the plaintiff submitted, loss of flexibility in employment may be a serious consequence although it does not presently result in financial loss.[68] By reason of his injury, the plaintiff has lost the opportunity to undertake hands-on work whether employed or self-employed in an excavation business such as that explored pre incident.
[68]T40; State of Victoria vGlover [1998] VSCA 93; Abbas v Transport Accident Commission [2015] VSCA 217
207 The plaintiff is essentially a hands-on person who does not regard himself as a particularly good salesman. His current work role is significantly different from the type of work he had previously engaged in, save for the year at Challenge where he did not enjoy being on the road and away from his young family. He left that job to work the defendant, as that job allowed him to be at home with his family.[69]
[69]T34
208 I am satisfied that but for the incident injury, the plaintiff would have continued in a largely hands-on role with the defendant or taken steps to start his own excavation business such as the proposal he discussed with the defendant prior to his injury.[70]
[70]Davidson v Transport Accident Commission [2015] VSCA 12
209 Unlike the plaintiff in Stijepic,[71] who was unsuccessful in his application for leave, I accept that the plaintiff has lost the ability to do work which he intended to do.
[71]Supra
210 Although the plaintiff is managing in his present job, with earnings comparable to those when working for the defendant, he does have some difficulties. With long drives, he has to stop and stretch every hour and a half. He also tends to stay overnight rather than drive home the same day after he has had to travel to see a client.
211 Whilst the circumstances of this case put it somewhat on the borderline, taking into account the evidence as to the plaintiff’s level of pain and restriction, his relatively young age, his difficulties with four young children, the need for ongoing physiotherapy and regular, albeit not daily over-the counter-medication, the limitations and restrictions on his domestic, recreational and in particular, work activities, I am satisfied the pain and suffering consequences of his compensable injury satisfy the statutory test.
212 As the plaintiff’s lumbar condition has persisted for in excess of four years without significant improvement, I am satisfied this impairment is permanent as a number of medical practitioners have opined.
213 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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