Ring v Toll Holdings Ltd
[2016] VCC 290
•18 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06491
| MARK ANDREW RING | Plaintiff |
| v | |
| TOLL HOLDINGS LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2016 | |
DATE OF JUDGMENT: | 18 March 2016 | |
CASE MAY BE CITED AS: | Ring v Toll Holdings Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 290 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation injury pre-existing asymptomatic lumbar spine – pain and suffering – whether consequences “very considerable” – “range” case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Barwon Spinners v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group & Anor [2009] VSCA 108; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment:Leave granted in respect to pain and suffering
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Hounslow Lawyers |
| For the Defendant | Mr J Batten | Thomas Geer |
HER HONOUR:
Preliminary
1 The plaintiff, Mr Ring, alleges he suffered injury to his lower back in the course of his employment with the defendant, Toll Holdings Ltd, on 17 November 2010. He was employed as a tanker driver. He claims he suffered injury when he slipped on the top step of the ladder as he was getting out of the cabin of his truck. (“the incident”).
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and leave is sought in respect of pain and suffering only.
3 The body function said to be lost or impaired is the functioning of the lumbar spine.
4 It was accepted by both parties that Mr Ring had a pre-existing degenerative condition in his lower back, which was asymptomatic prior to the incident. It is alleged by Mr Ring that this incident rendered his degenerative condition symptomatic, and that such symptoms have continued since that time. To succeed in his claim, Mr Ring must satisfy me that work is still a cause of his condition, that the condition is permanent, and that the consequences arising from the aggravation are serious.
5 Only Mr Ring was called to give evidence and was cross-examined. In addition, an affidavit of his wife, together with medical reports, an MRI scan and other material were tendered in evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which I consider to be most relevant and what I have relied upon in coming to the conclusions referred to in this Judgment.[1]
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley J A in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
6 For reasons that I will explain below, I am satisfied Mr Ring’s current condition is related to his employment, that his impairment is permanent and that the consequences suffered by him meet the “very considerable” test.
Relevant background
7 Mr Ring is forty two years of age. He is married, although recently separated. He is the father of three children, the youngest being nine years of age and the eldest fourteen years of age.
8 He attended school until Year 11. He then commenced employment with his father’s wholesale meat business. There he worked as the operations manager, doing office work. He subsequently left that business and set up his own transport company. Again, during this period, he worked in the office and did not undertake truck driving himself. After that business went bankrupt he drove trucks for Aldi for about two years and then Coutts Transport for five to six months.
9 Mr Ring had previously been a professional basketball player, playing for the North Melbourne Giants.[2] He also played Australian Rules football for Bacchus Marsh. However, he suffered a knee injury in approximately 1993 when playing a practice match of football. After that, he required a knee reconstruction and he did not return to basketball or football.
[2]Plaintiff’s Court Book (“PCB”) 13
10 Prior to suffering the injury the subject of this claim, Mr Ring said that he would run five kilometres daily to keep fit. He had been the runner for his son’s football team. He also enjoyed camping with his family once or twice a year.
11 Mr Ring gave evidence, and it was accepted by the defendant, that he had not suffered any symptoms of lower back pain prior to the incident.
The injury and its consequences
12 Mr Ring started working for the defendant in about October 2010. He was employed as a tanker driver, and was responsible for delivering fuel to Shell Service Stations.
13 On or about 17 November 2010, Mr Ring was getting out of the cabin of his truck when he slipped on the top step of the ladder and jarred his back.
14 The incident occurred on a Tuesday and Mr Ring was rostered off for the next two days. An incident report noted that he telephoned the defendant’s office to report what had happened to him at 6.00pm on 18 November 2010. An incident report was then completed the following day.[3] In this report it suggested that Mr Ring “to come in on day shift to see the company doctor as a precautionary measure”.[4]
[3]PCB 20-22
[4]PCB 20
15 Mr Ring attended upon Dr Michael Henderson at the Sonic Health Plus Clinic on 19 November 2010.[5] Dr Henderson obtained a history that he had suffered a back injury two days ago when:
“Foot slipped as he was getting out of truck, twisting back. Subsequently pain central lumbar. Saw physio Wednesday and was put off work till end of week…
Mark says much improved…”[6]
[5]Exhibit 3, Sonic Health Plus Summary
[6]Ibid
16 Mr Batten, for the defendant, put to Mr Ring that he had told the doctor he was “much improved”. Mr Ring denied that[7] and further said he could hardly walk at the time[8]. I note this is consistent with Dr Henderson’s record from that date which recorded that he “walks with some difficulty”.[9] I will return to this later in my Judgment.
[7]T 37: 30
[8]T 37:28-29
[9]Exhibit 3, Sonic Health Plus Summary
17 Mr Ring returned to the clinic on 22 November 2010, and saw Dr Roy Wilkinson. Again, the note stated “back pain improved”.[10] Mr Ring again denied giving that history to the doctor.[11]
[10]Exhibit 3, Sonic Health Plus Summary
[11]T 38: 8-14
18 The next consultation is with Dr Henderson at this clinic on 24 November 2010. The record on this date stated “back aggravated by drive to and from work. Also, seated duties aggravate because his desk is relatively low”.[12]
[12]Exhibit 3, Sonic Health Plus Summary
19 Mr Ring saw Dr Henderson on 1 December 2010. The note of this consultation stated “no improvement”.[13] The note also indicates that Dr Henderson received a call from Mr David Love, the Injury Claims Manager at Toll. The note indicated that Mr Love was concerned about Mr Ring’s poor progress and Dr Henderson shared his concerns.
[13]Ibid
20 Mr Ring saw Dr Henderson again on 8 December 2010. His note on that day said “request an MRI scan be performed”. [14] Dr Henderson also called Mr Love on this day to discuss alternate duties, and his note referred to “back four hours per shift, sit or stand as required”.
[14]Ibid
21 On 15 December 2010, Mr Ring again attended Dr Henderson. It was recorded that he was undertaking administrative duties at work. The records state “now improving. Physio – twice weekly”.[15] It also records that Dr Henderson called Mr Love and was advised that Mr Ring had not been at work for the last two days. It records that there had been surveillance of him over the weekend and he was observed to sit in his car for extended periods with no apparent discomfort.
[15]Ibid
22 Mr Ring’s final attendance upon Dr Henderson was on 22 December 2010. At that time, Dr Henderson’s note recorded:
“says much better. Says now approximately 90 per cent. Ok for resumption of normal duties Monday, 29”.[16]
[16]Exhibit 3, Sonic Health Plus Summary
23 When asked about this note in cross-examination, Mr Ring told the Court that he would have said that he had to get a full medical clearance, as he was worried about retaining his job.[17]
[17]T 41:6-10
24 Whilst consulting Dr Henderson at the Sonic Health Plus Clinic, Mr Ring was also obtaining physiotherapy treatment from Mr Byron Espedido. He consulted Mr Espedido the day after suffering the injury. In a letter from Mr Espedido to Mr Ring’s doctor dated 23 November 2010, Mr Espedido stated:
“My assessment last week revealed moderate swelling over his lumbar spine, severe loss of lumbar mobility (he walked in hunched over), and pain with palpation at L4/5 on the left side.”[18]
[18]PCB 33
25 Mr Ring obtained regular physiotherapy treatment for approximately three months after the injury, thereafter he attended as required over the following year.[19]
[19]PCB 38
26 Mr Ring was certified as fit to return to normal duties in late December 2010.
27 However, he continued to have ongoing back pain and his back never fully recovered following the incident. Mr Ring said that he took annual leave and sick leave from time-to-time to cope with his back pain.[20]
[20]Affidavit of plaintiff sworn 22 August 2014, PCB 3
28 Mr Ring suffered an exacerbation of his symptoms in late March 2012 when he bent down to put a hydrant onto a fuel point. On 3 April 2012 he consulted his regular general practitioner, Dr David Frost, in Caroline Springs. In cross-examination Mr Ring said that was the only occasion that he consulted Dr Frost regarding his lower back injury.[21] However, it is apparent from Dr Frost’s report dated 18 May 2012 that he also saw him on 15 May 2012.[22]
[21]T 18:14-15
[22]PCB 37
29 Dr Frost took a history that Mr Ring initially hurt his lower back when getting out of the cabin of his truck approximately fifteen months earlier. He noted that Mr Ring returned to work and “continued to get intermittent flares of back pain and back stiffness. He recorded that Mr Ring had some physiotherapy treatment, however, his symptoms continued.”[23] At this time, Dr Frost recommended an MRI scan be performed.[24]
[23]PCB 36
[24]Ibid
30 The MRI scan taken on 18 April 2012 showed multilevel chronic degenerative disc disease with mild central canal stenosis at L2-3, L3-4 and L4-5 secondary to combination of disc bulges in conjunction with facet joint/ligamentum flavum hypertrophy.[25]
[25]PCB 32
31 Dr Frost concluded that Mr Ring would make a full recovery.[26] He last reviewed Mr Ring on 15 May 2012, at which time he was looking forward to Mr Ring being able to return to unrestricted duties in the near future.
[26]PCB 36
32 Mr Ring explained that he saw no point in continuing to see his general practitioner as he understood there “was not much they could do for my back.”[27] Instead he focused on undergoing home exercises, gym work and intermittent physiotherapy treatment.
[27]Further affidavit of plaintiff sworn 25 February 2016, at PCB 11
33 Mr Ring ceased working for the defendant on 10 May 2013. He had continued with normal duties from late December 2010 through until sometime in March 2013. At that stage, he received two speeding fines. The fines then precluded him from doing delivery work for Shell. However, Mr Ring thought it was because the defendant was trying to get rid of him because of his lower back injury.[28] He made reference to challenging his termination at Fair Work Australia, and that he was subsequently reinstated.[29] When he returned to work he was given a mentor and was required to undertake deliveries for 7-Eleven stores. Mr Ring said he lasted only one day in that role as it involved too much bending.[30]
[28]T 21: 11-12
[29]T 21: 12-14
[30]T 45: 11-20
34 On the same day that he stopped work with the defendant, Mr Ring was offered a job with Linfox. He said that he had applied for this job before the speeding fine,[31] as he thought that the work with Linfox would be physically easier and he thought that it would better suit his lower back injury.[32]
[31]T 23: 10-13
[32]T 22: 29-30
35 Prior to commencing employment with Linfox, Mr Ring was required to complete a pre-injury examination. He expressly denied a lower back injury. He explained this in cross-examination by stating that he lied to get the job.[33]
[33]T 25: 6-10
36 Mr Ring commenced with Linfox soon after 10 May 2013. He initially worked in the grocery section and later in the fuel section. When he moved to the fuel section, he attended another pre-employment examination. He failed to disclose his lower back injury. Once again he explained this by stating that he was worried that he would not get the job if he told the doctor about his back.[34]
[34]T 27: 7-8
37 Mr Ring said he was able to cope with the work at Linfox as it involved electronic dipping at Shell Service Stations. He said that work involved less bending than if he had stayed with the defendant and worked at the 7-Eleven locations.
38 Mr Ring now works in a pump truck, where all the work is automatic. He works twelve hour shifts. It is a three week rotating roster and he works four days in the first week, four days in second week, and five days in the third week. This includes night and day shifts.
39 Mr Ring has a daily routine to minimise his back pain. He starts with a warm shower and then rubs Nurofen Gel into his lower back. He then does stretching exercises for about fifteen minutes and also rolls on massage balls to loosen the muscles in his lower back. On the days that he works, he repeats these stretching exercises at the end of the day. He also applies a heat bag to his back at the end of every day.[35]
[35]PCB 5
40 Mr Ring takes four to six Nurofen every day. He takes two Nurofen in the morning and two in the evening. He said that two to three days a week he takes Nurofen at lunchtime to help him get through the day. He said that he is most likely to take six Nurofen on the days that he is working.
41 In addition to the exercises that he does at home, he attends the gym every two to three days. He said he tends to go on his rostered days off and sometimes goes after he has finished work. At the gym he does work focusing on his core muscles. He does “dead lifting” and is able to lift 100 kilograms on a bar. He said that he had not undertaken bodybuilding work before the incident. He took up gym work as part of his rehabilitation plan. He also walks on the treadmill at the gym, but never jogs.
42 In relation to domestic duties, Mr Ring said that he is no longer able to mow the lawns. For several years after suffering his injury he paid a gardener to do it. He recently bought a lawnmower as his eldest son is now able to mow the lawns.
43 Mr Ring would previously wash his car by hand. He now takes it to the drive-thru car wash.
44 Mr Ring complained he has not gone camping since suffering his lower back injury. Further, he stated that his sexual relations with his wife have been impacted upon by his back injury.
45 There is an affidavit from Mr Ring’s wife.[36] She confirmed many of the consequences claimed by Mr Ring.
[36]PCB 15-19
Medical evidence
46 There is no current medical material from Mr Ring’s treating practitioners. He has not seen a general practitioner since May 2012. He explained the reason for this is that he understands there is no treatment that can be offered to him by his general practitioner.
47 There is also no current medical material from his physiotherapist, whom he sees every six-eight weeks. There is no medical material from the myotherapist or massage therapist whom he sees in Port Melbourne.
48 Mr Batten did not ask me to draw an adverse inference in relation to the failure to provide current material from these treating practitioners. It seemed to be accepted that nothing had materially changed for Mr Ring since 2012 when the last medical reports were written.
49 In addition to the report of Dr Frost referred to above, I also considered the report of Mr Ring’s physiotherapist Ms Jodie Jones. In her report dated 27 June 2012, she noted that he had initially received physiotherapy for approximately three months (at that time it was provided by Mr Espedido), and thereafter as required. She noted that after the initial injury, “His back has never felt back to 100%.”[37] She concluded that his physiotherapy treatment:
“... has been and is essential in enabling Mark to continue with his full work hours and duties. Physiotherapy is providing relief from symptoms that he is experiencing at work.”[38]
[37]PCB 38
[38]PCB 40
50 Further, Ms Jones noted that Mr Ring had commenced a home exercise program including strengthening exercises and walking. She noted that he had recently consulted a muscle/exercise specialist to assist with his rehabilitation.
51 Mr Ring’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr John O’Brien, on 24 November 2015.[39] In his report Mr O’Brien opined that the incident:
“... precipitated right-sided back pain which extended into the right buttock. The patient reported that this has subsequently been a constant problem which has somewhat fluctuated in severity.”[40]
[39]PCB 44-47
[40]Ibid, at 46
52 Mr O’Brien thought that Mr Ring suffers chronic non-specific low back pain, and the likely scenario is that his symptoms arose from aggravation of the extensive lumbar spondylosis. He considered employment remains a significant contributing factor, noting that Mr Ring reported constant pain since the incident, albeit with some fluctuation in severity. In his final paragraph
Mr O’Brien stated:
“The patient currently describes a moderate disability associated with chronic low back pain. Physically he is restricted by chronic pain and cannot undertake unrestricted manual duties. Indeed he is limited to modified duties where there is no requirement to undertake physical tasks such as lifting and bending. Thus it would appear that to remain in employment this patient will continue to require modified duties and while such is available, he will be able to continue full-time employment. The patient however has significant symptomatic lumbar pathology, and this will result in permanent restriction in his general, social, domestic and recreational activities.” [41]
[41]Ibid, at 47
53 Mr Ring’s solicitors also arranged for him to be examined by Dr Jane Wadsley, occupational physician. She examined Mr Ring on 29 January 2016. In her report she diagnosed “persistent pain and mild dysfunction at the lumbar spine following aggravation of lumbosacral degenerative changes relevant to the claimed injury”.[42]
[42]PCB 49–56, at 54
54 Dr Wadsley noted that Mr Ring self-manages with the use of a massage ball, exercise, and oral Nurofen. She thought he would not be able to perform full-time heavy manual work, and he has a lifting restriction of no more than
10 kilograms. Further, she noted that he should avoid repeated bending and twisting of his lower back.
55 The defendant arranged for Mr Ring to be examined by Mr Ian Jones, orthopaedic surgeon, initially for the purpose of a s98C lump sum claim under the Act. Mr Jones first examined Mr Ring on 22 October 2013. In that report he expressed the opinion that:
“In the absence of any previous history of back injury or symptoms, the incident of 17 November 2010 appears to have aggravated a previously asymptomatic degenerative condition affecting his lower lumbar spine.”[43]
[43]Defendant’s Court Book (“DCB”) 48
56 Mr Jones obtained a history from Mr Ring that following the incident, he responded to conservative treatment and returned to a level of 50 per cent of normal prior to the further incident, which occurred in March 2012. Mr Jones concluded that Mr Ring did not suffer any permanent impairment as a consequence of the claimed injury.
57 Mr Jones re-examined Mr Ring on 2 February 2016. On this occasion, Mr Jones concluded that Mr Ring is likely to suffer varying degrees of lumbar back pain and stiffness with gradually deteriorating symptoms of stiffness and pain in the long term.[44] He thought that the incident resulted in a:
“... transient exacerbation of back pain related to his degenerative condition
...
I believe that the effects of the exacerbation of this man’s symptoms following the incident with Toll Holdings has resolved.”[45]
[44]DCB 53
[45]DCB 54
58 In his report, Mr Jones thought Mr Ring’s regime of treatment was “ideal and ongoing conservative measures are appropriate”.[46] He further commented:
“This man’s lower back condition has impacted upon his enjoyment of regular sporting activities including domestic activities in and around his home.”[47]
[46]DCB 54
[47]DCB 54
59 Finally, Mr Jones stated that Mr Ring is capable of work that does not require repeated bending, twisting or heavy lifting.[48]
[48]DCB 55
60 I was also referred to the Medical Panel decision in respect of Mr Ring’s s98C claim. The Certificate of Opinion dated 9 January 2014 stated that it was the Panel’s opinion that Mr Ring suffered a 5 per cent whole person impairment resulting from the accepted injury of aggravation of previously asymptomatic degenerative condition affecting the lower lumbar spine injury.[49]
[49]PCB 43
Plaintiff’s credibility
61 There was no major attack on Mr Ring’s credibility. However, there were two matters raised in cross-examination, which were in part used to challenge his credibility.
62 Video surveillance was shown of Mr Ring on 8 December 2014. It showed him walking with his daughter. Mr Ring accepted that he was walking normally. It then showed him at a petrol station vacuuming his car. Whilst performing this task he bent forward to vacuum the floor and seats of the car for a few minutes. He later put petrol in his car and then drove to his workplace.
63 Mr Batten acknowledged that it was short footage taken some time ago, but submitted that it did not show activity of a person with a very considerable lower spine injury. I disagree. At one stage, when he stood up from vacuuming the right hand passenger’s floor, he put his hand on his lower back to rub it and appeared to take a few steps with a limp.
64 It was next submitted that Mr Ring was prepared to lie about his back injury when applying for jobs. I accept he did so as he had an honest belief that he was unlikely to secure the job if he told the truth about his back. I therefore do not think this impacts on his credibility in this Court.
65 Overall I found Mr Ring to be a credible witness. I accept the substance of his evidence in respect of the pain he suffers and the impact it has on his life.
Causation
66 Mr Ring was cross-examined about whether he told the doctors at the Sonic Health Clinic that he had “improved” when he attended there on 19 and 22 November 2010. He denied that he had. The note of 19 November included the comment “walks with some difficulty”. Ultimately I do not have to decide this either way, as even if he reported some improvement, I expect it was relative to how he was when he was first injured. The subsequent entries at the Sonic Health Clinic are consistent with him having ongoing difficulties with his lower back. So, too, were the contemporaneous letters of Mr Espedido. However, by 22 December 2010, Mr Ring reported being much better and was now at 90 per cent. I accept Mr Ring’s explanation that at this time he was motivated to return to work as he was worried about his job.
67 After considering all of the medical material, together with Mr Ring’s evidence, I accept that he suffered an aggravation of pre-existing degenerative changes in his lumbar spine as a consequence of the incident. I further accept that this aggravation has persisted since that time and has caused Mr Ring ongoing pain.
68 There is no allegation that Mr Ring’s work caused the underlying degenerative changes. All of the doctors, including Mr Jones, accept that the incident aggravated the previously asymptomatic condition. However, Mr Jones now concludes that the effects of the exacerbation have now resolved. He offers no explanation for how employment ceased to be a cause. He refers to Mr Ring suffering a transient exacerbation, but this is inconsistent with the plaintiff’s evidence that the pain has never gone away since the incident.
69 Therefore, I do not accept Mr Jones’ opinion, and prefer the opinions of Mr O’Brien and Dr Wadsley that the incident is still a cause of his current condition. Further, I accept that Mr Ring is suffering from degeneration of the lumbar spine, resulting in chronic low back pain.
Permanent
70 In order to satisfy the definition of serious injury, Mr Ring must prove the injury and its consequences are both serious and permanent.
71 It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time.”[50]
[50]Barwon Spinners v Podolak (2005) 14 VR 622, [19]
72 I am satisfied Mr Ring’s injury and the consequences which flow from it are permanent. The pain has persisted for over five years. There is no recommendation that he undergo surgery or any other type of treatment which may lead to an improvement. His treatment regime has been the same for the last few years and he has not improved.
Pain and suffering consequences
73 I must now consider whether the consequences for him meet the test of “very considerable.”
74 In Haden Engineering Pty Ltd v McKinnon,[51] Maxwell P said at paragraphs 9–12:
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
[51](2010) 31 VR 1
75 In relation to his “experience of pain”, Mr Ring said and I accept, that he suffers from constant low back pain. He wakes up stiff each morning. His pain is unpredictable and can be exacerbated without any apparent cause. His back often seizes up in the night and it disturbs his sleep. All these are subjective measures, but I accept Mr Ring’s evidence of them.
76 Mr Ring has a daily regime which he undertakes to minimise his back pain. In addition, he goes to the gym two to three times a week and has a personal trainer once or twice a week. Mr Ring attends physiotherapy every six to eight weeks. He also gets massage therapy (which he thinks is provided by a myotherapist) every few months.
77 Mr Batten submitted that a critical indicia for me to consider is the treatment Mr Ring is receiving. In circumstances where Mr Ring understands that no medical treatment is available, I give little weight to his failure to consult his general practitioner regarding his back pain. Further, I note that Mr Jones considered his treatment regime is “ideal”.[52]
[52]DCB 54
78 Mr Batten submitted that his activities at the gym and his involvement with a personal trainer belittles the concept of his injury being serious. I do not accept this submission. I accept that Mr Ring only began to attend the gym and consult a personal trainer as part of his rehabilitation.[53] Further, I accept that the exercise he does at the gym is consistent with his desire to keep his core muscles strong and minimise his back pain.[54]
[53]T 30:17-19
[54]T 29: 20-27
79 In considering the pain and suffering consequences, Mr Batten submitted I should consider Mr Ring’s full-time employment as an indicia. He referred me to the decision in Sumbul v Melbourne All Toya Wreckers Pty Ltd[55] where Chernov JA said that it is ordinarily very difficult for a plaintiff to establish a serious injury where the plaintiff has returned to alternate employment. However, Mr Dunstan, for the plaintiff, referred me to the later decisions of Stijepic v One Force Group & Anor[56] and Sutton v Laminex Group Pty Ltd.[57]
[55][2006] VSCA 292
[56][2009]VSCA 108
[57][2011] VSCA 52
80 In Stijepic, Ashley JA and Beach AJA stated:
“It is plain that Sumbul is no authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.”
81 They took Chernov JA to be saying that a worker successfully returning to alternate duties,
“will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious.”[58]
[58][2009] VSCA 108 at [47]
82 This is not a case where there is an “absence of other relevant evidence”. I have already commented on the ongoing treatment Mr Ring undergoes. In addition to that, I now observe the “disabling effects of pain” for Mr Ring and accept the following consequences:
· he no longer goes jogging, and this is an activity he previously did on a daily basis;
· he can no longer participate in sport activities with his children. He was previously a runner for his eldest son’s football team, but cannot do this because of his back injury. As he is a young father, I consider that in the winter months when his son is playing football, this a significant consequence for him;
· he can no longer go camping with his family and this is an activity he previously enjoyed;
· he is limited in the tasks he can perform around the home. He is no longer able to mow the lawn.
83 When looking at his experience of pain, and the disabling effects of pain, when judged by comparison with other cases in the range of possible impairments or losses, I am satisfied that the consequences for Mr Ring are very considerable.
Orders
84 Mr Ring’s application for leave to commence a claim for common law damages for pain and suffering succeeds. I shall make consequent orders.
---
0
7
0