Roche v Woolworths Ltd
[2014] VCC 1297
•18 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00956
| STEPHEN ROCHE | Plaintiff |
| v | |
| WOOLWORTHS LTD (ABN 88 000 014 675) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2014 | |
DATE OF JUDGMENT: | 18 August 2014 | |
CASE MAY BE CITED AS: | Roche v Woolworths Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1297 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – spinal impairment – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Slater & Gordon Ltd |
| For the Defendant | Ms J Forbes | Hall & Wilcox |
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 or about 21 January 2007 (“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 pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the spine.
5 Apart from being a serious injury, the injury must have arisen on or after October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of 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”.
9 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 particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 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 Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
12 The plaintiff relied upon three affidavits and gave viva voce evidence. He also relied on affidavits sworn by his friends, William Yates and Andrew Kunek. 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
13 The plaintiff is presently aged twenty-eight, having been born in January 1986.
14 Having completed secondary school, the plaintiff obtained teaching qualifications with a speciality in primary school education, more particularly, physical education.
15 Whilst the plaintiff was still at school, he commenced work with the defendant, and continued in that role throughout his tertiary studies.
16 Prior to the said date, the plaintiff was in good health and he had not suffered any significant illnesses or injuries. He had been a patient at Alphington Sports Medicine Clinic but he could not remember fracturing his left ankle or hurting his left knee and being treated for those injuries at that Clinic.[3]
[3]Transcript (“T”) 35
17 The plaintiff was physically active, playing tennis competitively during the summer and AFL football competitively during the winter. He also played competition basketball, albeit socially throughout the year.
18 In cross-examination, the plaintiff explained he had not played football since the 2005 season due to his work commitments as weekend manager with the defendant. He played in a weekly social basketball competition weekly whilst working for the defendant.[4]
[4]T25
19 The plaintiff regularly went for a run with his German shepherd dog. He regularly went water skiing during summer and snow skiing during winter.
20 The plaintiff lived at home with his parents and looked after the lawns and gardens, as well as helping with any cooking or cleaning. He also assisted his grandparents, who lived nearby, with their gardening upkeep.
21 On or about the said date, at work, whilst stacking olive oil tins above head height, the plaintiff felt a sudden severe pain in his lower back (“the incident”).
22 The plaintiff ceased work and reported the injury. He consulted a physiotherapist, who referred him to his general practitioner, Dr Blake, on 25 January 2007, just before he left on a long planned five-week trip to Thailand with friends.
23 While the plaintiff was away on that trip, he was very restricted, needing help with his luggage, and he could not do vigorous activities with his friends, largely having to rest.
24 Towards the end of the holiday, the plaintiff’s back condition was improving and he tried to return to normal duties but he found bending, lifting and twisting caused his back to deteriorate and he was experiencing pain and stiffness in his lower back, which would move down into his right leg.
25 In June 2007, the plaintiff again saw Dr Blake and he referred him for a CT scan and later, an MRI scan. He also referred the plaintiff to neurosurgeon, Mr Bittar.
26 Mr Bittar recommended against surgery, although he advised surgery might be needed if there was no improvement in the plaintiff’s condition. The plaintiff also attended a sports physician, who prescribed prednisolone and a McKenzie exercise program.
27 In August 2007, whilst at his family’s ski lodge at Mount Hotham, a friend accidently pushed the plaintiff down two stairs. After that incident, the plaintiff experienced a temporary flare-up of back pain but his condition settled to the level he was experiencing following his work injury.
28 At the end of 2009, the plaintiff was thinking surgery was the only option. He was frustrated with the up and down and constant flare-ups, and he went to the Alphington Clinic to see if there was any further treatment available.[5] He credited the McKenzie exercises given to him there for him not having surgery. The specific exercises allowed him to “manage the daily affliction”. The exercises certainly helped, along with the medication.[6]
[5]T27
[6]T28
29 The plaintiff agreed there had been an improvement in his condition towards the end of the treatment by Dr Mejak at Alphington in late 2009. There were days when there was no pain and the sciatica was really reduced.[7]
[7]T29
30 As of his first affidavit sworn in October 2012, the plaintiff was taking Nurofen regularly and doing McKenzie exercises. Whilst he obtained some good improvement from treatment initially, his back condition had not changed for a considerable period and he had not ruled out the prospect of having surgery at a later date, particularly if there was any deterioration.
31 The plaintiff then experienced a frequent sharp pain in his lower back on the right side and also an occasional throbbing pain in his gluteal area. The pain was brought on by prolonged sitting, after which he had to get up and move around to get comfortable.
32 The plaintiff had trouble standing for any length of time, which was a problem in his current job as a teacher, because he found standing for 50-minute classes to be quite painful. He was required to frequently bend to assist children. Bending or twisting could make his back worse and he avoided those activities as much as possible.
33 The plaintiff also had problems in taking Phys Ed classes, as he was unable to demonstrate many of the activities to the children. He found, at the end of a day’s work, he would be sore and exhausted and needed to rest at home.
34 The plaintiff had to be careful not to lift too much and be careful about the manner in which he lifted things to avoid re-injury. He tried to avoid lifting anything more than 5 kilograms.
35 The plaintiff’s sleep was often interrupted during the night due to back pain and stiffness and he woke frequently and often felt tired and lethargic during the day as a result.
36 The plaintiff was then restricted in his ability to do sporting and recreational activities. He could no longer play football, basketball, tennis or go water skiing, as the twisting and jarring that these activities involved was too painful for his back.
37 The plaintiff deposed he had tried to snow ski on a number of occasions but found he was restricted to the more gentle slopes where he was not required to move his back too much, but even skiing at that level made his pain very bad.
38 The plaintiff has been to the snow since the incident on one or two occasions, but not to ski. One of those times was when he fell at the lodge. He has not actually got on skis again.[8]
[8]T32
39 Trying to explain these conflicting accounts, the plaintiff thought what was deposed to must have been two visits to the slopes with his family when he did not go to ski.
40 Since he was a very small child, the plaintiff had been a keen skier, having been on the double-black run, and jumps “and things like that”. That certainly was not the case when he went to the snow after the incident. He must have gone on the gentler slopes.[9]
[9]T33
41 The plaintiff was unable to accompany his family on a recent skiing trip to New Zealand.[10]
[10]T45
42 The plaintiff has not water-skied since the incident. His friend, Andrew’s family, previously had a boat. The plaintiff and Andrew used to go out all the time in their early years. After the incident, Andrew did not have anyone to ski with and as the boat was not used enough, it was sold. The plaintiff agreed he travelled to Asia with Andrew instead.[11]
[11]T32
43 Whilst the plaintiff still tried to mow the lawn, he found pushing a lawnmower to be very painful.
44 After completing study, the plaintiff worked as an emergency teacher in 2010 before travelling to London, where he worked as a teacher for a year.
45 In 2011, the plaintiff returned to Australia and again worked as an emergency teacher and also worked in a program called Melbourne School Holiday Club (“the Club”), which provides school holiday programs for socially disadvantaged children. The Club is live-in and caters for children aged six to fifteen and runs for the entire summer holidays.
46 The plaintiff is the co-ordinator of the Club and is paid in that role. He does a bit of the administrative work, and other workers take the children to activities such as Luna Park.[12] This role has definitely been a passion for him.[13]
[12]T22
[13]T23
47 The plaintiff is now going through a transition period and he has trained someone else to take on the role full time. The plaintiff will be taking a little backward step, because it was just becoming a bit much for him to do the job full time.[14]
[14]T24
48 The plaintiff generally lived a much quieter and more restricted life than pre incident. He had to be careful and guarded in his movements as any wrong or sudden movements could cause the onset of sharp pain.
49 Whereas before the incident the plaintiff had an active social life based around involvement in sport, because he was no longer able to play sport, he had lost contact with a lot of his friends and now spent a lot more time at home.
50 In cross-examination, the plaintiff confirmed his affidavit evidence in this regard.[15]
[15]T14
51 The plaintiff hoped in the future to settle down and have a family and he was very concerned about his ability to care for and be an active father to his children because of the problems he had with his back and the resultant restrictions.
52 In his affidavit of June 2014, the plaintiff confirmed he continues to suffer the symptoms and restrictions outlined in his previous affidavit. His back pains are worse in colder weather.
53 The plaintiff’s symptoms come and go during the day; however, they are generally worse with physical activity.
54 Sometimes the plaintiff suffers flare-ups for no apparent reason. When the pain is really bad, he takes painkillers on a more regular basis and needs to rest for a lengthy period. From time to time, he has also experienced severe right leg pain.
55 The plaintiff takes Diclofenac and Nurofen to manage his pain, generally two to three times a week; however, when he experiences a flare-up, he increases this intake. He also tries to manage his condition by performing McKenzie exercises and Pilates daily.
56 Otherwise, the plaintiff continues to experience difficulties in moving and using his spine and getting around.
57 The plaintiff described flare-ups when just sneezing unexpectedly. When that happened, he experienced shooting pain coming down his leg, reminiscent of “the old full-on sciatica”. Lesser flare-ups involve a build-up of back pain from the time he gets out of bed, and he then knows that it is going to be a bad day. The flare-ups depend a lot on what activity the plaintiff is doing. If he mows the lawn gently, his back is okay. He has to be careful. Standing is the main problem.[16]
[16]T44
58 If the plaintiff sits for too long at school he then does exercises in his office. He takes Nurofen when the pain is worse. The level of medication really varies. He can go through a week and maybe only take tablets once. Some weeks he has to take them nearly every day, just because he has overdone it. On average, he might take tablets two or three times a week.[17]
[17]T45
59 Doing exercises and taking Nurofen really reduces the frequency of flare-ups, but they are still potentially there if the plaintiff does something unexpected.[18]
[18]T46
60 The sciatica still comes back every now and then, but it is nowhere near what it was initially.[19] The pain is certainly manageable today.[20]
[19]T29
[20]T29
61 Had he not been injured, the plaintiff intended to coach young footballers. That was something he thought he would like to do, but he never ended up doing so due to work commitments and then following that, injuries. He thought he would be able to coach on the sidelines, but not actively. Sometimes he could do the actual “kicking and whatever”.[21]
[21]T43
62 The plaintiff now finds himself constantly assessing risk associated with any task and how it may aggravate his back pain. For example, if he goes for a run, even for a short distance, this will increase his back pain and his injury serves as a constant reminder of the limitations on his sporting activities, which were a large part of his identity and a great social outlet for him.
63 The plaintiff continues to consult his general practitioner on an ad hoc basis. His doctors have told him, essentially, there is little that can be done. However, should he continue to experience ongoing leg pain and his condition deteriorates, the plaintiff will likely require surgery.
64 The plaintiff has tried the whole time with exercises to avoid surgery, but the surgeon said it is still a prospect. Given his ups and downs, he may still revisit it in the future.
65 The plaintiff agreed that he did not attend the doctor often for his back problem, and unless he does so specifically, the conversation is about the other issue.
66 The plaintiff agreed that the last time he mentioned his back was on 19 May this year when he had a discussion with his doctor about medication. Prior to that, he agreed he last mentioned back pain a year earlier when his doctor noted continuing back pain recurring and using Nurofen. The plaintiff is not keen on taking medication because he feels a bit like a pill-popper.[22]
[22]T30
67 The plaintiff agreed he has plenty of sick leave, but he has not taken any because of his back condition, and he rarely takes sick days.[23]
[23]T31
68 During the course of a day at work, the plaintiff is constantly reminded of the loss of function and impairment of his back.
69 Whilst he continues as a teacher, he has to modify the way he teaches and accommodate his restrictions. In particular, when dealing with students, he has problems with prolonged sitting, standing or walking. He is significantly restricted in activities involving bending, lifting, pushing, pulling, twisting, carrying and performing overhead activities.
70 The plaintiff finds the task of report writing difficult as it involves lengthy periods of sedentary work, thus he does this in a piecemeal fashion.
71 The plaintiff is extremely frustrated with his situation. He is in the prime of his life yet he finds himself watching friends leading carefree and active lives while now he has to carefully consider every activity he wishes to do. He once led a very adventurous and spontaneous lifestyle but it has now been curtailed by reason of his back injury.
72 The plaintiff swore a third affidavit on the date of the hearing, having been shown the Defendant’s Court Book which included excerpts from his Facebook page and surveillance footage taken on 15 and 16 February 2014.
73 The plaintiff confirmed his Facebook entries contained photographs of him and his friends enjoying themselves on various overseas trips.
74 The plaintiff deposed that in addition to his Thailand holiday in early 2007, he also went to Thailand, India and Vietnam later that year for about a month. He also went on a series of tours lasting between one and three weeks in 2010 and 2011 whilst living and working in London and he went on a holiday for three months to North and South America in 2012.
75 On each of these holidays, the plaintiff arranged to travel as part of an organised tour so he had help with his luggage and he had good sleeping arrangements. On these tours, he was unable to engage in a wide range of physical activities. For example, in 2008, he could not go on a longer hike in Nepal, do jet boat rides or longer hikes and white water rafting, and other physical activities on the American and European trips. In Canada, he once attempted a fairly steep hike for 3 kilometres and experienced very severe back pain for days afterwards.
76 The plaintiff agreed he swore his first affidavit in October 2012, three months after his return from South America, and there was no mention of that trip or any other travel in that affidavit or his second affidavit, other than the pre-booked Thailand trip and working in London.
77 The plaintiff agreed his affidavits conveyed an impression he had lost contact with his friends and he spent a lot of time at home.[24]
[24]T15
78 The plaintiff confirmed there were numerous trips whilst he was working in London, using that time as the opportunity to “see as much stuff as he could”.[25]
[25]T16
79 The plaintiff also went on a trip with friends during the university summer holidays in 2008 or 2009 through Nepal, India and Vietnam for five or six weeks.
80 The plaintiff increased his medication intake while on the trips. He travelled as he had a bigger purpose in mind as it was better to see the world than “just sit and take the pain lying down”.[26]
[26]T46
81 At the time of incident, the plaintiff weighed 70 kilograms and was very fit and active. Because of the restrictions placed on him by his injury and the lack of activity, his weight has increased to 86 kilograms.
82 The plaintiff finds it quite distressing that he cannot exercise on a regular or sustained basis. He figures that if he can live a bit of a reduced lifestyle then he might be able to avoid surgery.[27]
[27]T47
83 In about September last year, the plaintiff underwent a blood test because of some abdominal problems and was advised that they showed he had a fatty liver and he should attempt to exercise to lose weight.
84 The plaintiff started a walking program and after a period of time, he interspersed that with slow jogging and then moved to simply slow jogging. However, after about a week, he noticed a gradual build up in his back pain which was becoming quite severe.
85 The plaintiff then rested for a week before returning to walking and attempting to build up his jogging again. On each occasion when he tried to move beyond a walk or slow jog, his back pain increased. He tried this program a number of times but ultimately had to give it away in March 2014 because of increased back pain.
86 The plaintiff explained that in the surveillance footage where he was shown working on his motorbike on 16 February 2014, he had earlier that day removed the farings, which form part of the bike chassis, to fix a coolant leak. The screws for the farings were quite low down and by the time he removed them, he was beginning to experience some back pain and he asked his younger brother, who has an intellectual disability, to assist him, because he knew he would have problems re-attaching the farings, given how low they were to the ground.
87 This is a ‘one-man’ job which, if the plaintiff was uninjured, he would have been able to do without assistance. Ultimately, his brother was unable to align the screw holes and the plaintiff had to attend to the re-attaching himself. The bike repairs had been finished by the time the film finished and the plaintiff did no more work on the bike that day or since.
88 The plaintiff bought the bike last year and does not ride it very often. It is “more of a pleasure thing”. Sometimes it is easier to use it than to drive.[28]
[28]T37
89 The plaintiff agreed he was definitely bending, kneeling, reaching and he was definitely not seen having any difficulty of the type he deposed to in relation to his spinal movements.[29]
[29]T37
90 The plaintiff agreed he was also shown going for a walk, then breaking into a jog on his regular 3-kilometre circuit. He was trying to do the circuit daily at that stage, and had been doing it for a couple of weeks, building up to a 3‑kilometre jog; however, “it kind of felt like a balloon pumping up pressure” and he had to stop.[30]
[30]T38
91 The plaintiff had been trying jogging earlier on, as he described to a doctor in November 2011, doing the same routine, getting up a bit of fitness but then having a flare-up.[31]
[31]T39
Lay evidence
92 The plaintiff’s friend, William Yates, lawyer, swore an affidavit on 2 July 2014.
93 Mr Yates has known the plaintiff since 2001 when they were working with the defendant.
94 Whilst working together, Mr Yates saw the plaintiff about three times a week. Since ceasing work, they have remained good friends and they see each other about once a month.
95 Mr Yates could recall the plaintiff informing him of his back injury and thereafter, he took on heavier aspects of the work, leaving the plaintiff to perform light-duty work.
96 Prior to the incident, he could recall the plaintiff being very physically active. In particular, they shared an enthusiasm for outdoor activities. The plaintiff enjoyed water skiing and he played football for a local team. They also played basketball together for a couple of seasons. On one occasion, Mr Yates was invited to the plaintiff’s family lodge in the mountains to go skiing. The plaintiff was a keen skier.
97 Mr Yates believed, because of his injury, the plaintiff’s ability to participate in those activities, which were once a great source of enjoyment and fitness, had now been severely compromised.
98 In particular in 2008-2009, when a group of friends went on a houseboat water skiing holiday, the plaintiff did not do any water skiing and was upset he was not able to join in the fun.
99 Mr Yates understands the plaintiff no longer plays football or skis. After the incident, he was only nominated as an emergency player on the basketball team. He could recall the plaintiff once advising he was not able to play because of his back injury.
100 Mr Yates has always known the plaintiff to be an adventurous person and, had he not been injured, he had no doubt the plaintiff would have continued many of his activities, particularly water skiing and skiing, and would likely have engaged in new pursuits.
101 Mr Yates believes the plaintiff to be a man of integrity and pride. On many occasions, he has expressed his frustrations at having a life that is no longer spontaneous and carefree and simple activities such as running have been lost to him. It saddens the plaintiff that at such a young age, he now needs to consider what activities he engages in to ensure he does not cause further injury.
102 Whilst the plaintiff displays his stoical disposition and tends to underplay his difficulties, Mr Yates senses the plaintiff has lost part of his identity in not being able to participate in many of his former sporting activities.
103 Andrew Kunek swore an affidavit on 1 July 2014. Mr Kunek is also a friend of the plaintiff. They attended school together and also both worked with the defendant.
104 Since he has known the plaintiff, the plaintiff has always played some sort of sport or outdoor activities, including tennis, basketball and football. Since the incident, the plaintiff has had difficulty doing many of those activities. He could recall the plaintiff playing basketball a few times post incident; however, he played tentatively on each occasion and complained of increased back pain.
105 The plaintiff was also a very good skier, having skied from a young age. As children, their families went to the ski lodge annually and then as adults, the plaintiff organised annual trips to the lodge, but by reason of his back injury, he no longer skis.
106 The plaintiff also enjoyed water skiing and every summer they spent time on the water. However, he has not skied following injury.
107 Since the plaintiff’s injury, Mr Kunek has tried to encourage the plaintiff at the gym but the plaintiff is reluctant, as he is worried about a flare-up and has told him occasionally he will try and go for a run; however, each time it causes a flare-up of back pain.
108 Prior to the injury, the plaintiff was the one who would organise trips and get everyone into gear. In late 2006, he had organised a group trip to Thailand in early 2007. During that trip, the plaintiff was not his normal self and spent a great deal of time sitting on the beach, and Mr Kunek had to carry his luggage most of the time.
109 Prior to the incident, the plaintiff was a ‘happy go lucky’ man who loved sporting activities and the outdoors. He was always prepared to try his hand at something new. Since the incident, he had become more cautious and led a more sedentary life. It was evident that the plaintiff was frustrated with his ongoing back condition, which significantly restricted and limited his ability to enjoy life to its fullest.
Investigations
110 On 20 July 2007, Dr Blake organised a CT scan of the plaintiff’s lumbosacral spine. It was reported there was relatively focal right-sided L5-S1 disc protrusion with displacement of the right S1 nerve root sheath. It was noted that would account for the right-sided symptoms.
111 On 11 October 2007, Dr Blake organised an MRI scan of the plaintiff’s lumbosacral spine.
112 It was reported findings confirmed the presence of a moderate size right paracentral disc protrusion – extrusion L5-S1, with clear neurocompression of the traversing right S1 nerve root.
113 The plaintiff underwent a CT-guided sacral nerve root injection on 19 October 2007.
Treaters
114 Dr Blake from the North Blackburn Square Clinic has provided a number of reports. He initially saw the plaintiff on 25 January 2007 with acute back pain since lifting strain at work.
115 Following his overseas holiday in February 2007, Dr Blake considered the plaintiff had made a good recovery and was fit to resume full duties. However, in June 2007, the plaintiff was complaining of further back pain with some right-sided symptoms that had developed over the last couple of months.
116 Investigations were organised and the plaintiff was prescribed Codalgin Forte and was able to return to limited duties after August 2007.
117 Despite conservative treatment, the plaintiff’s condition did not improve and an MRI scan was organised. The plaintiff needed to take time off work because of his pain.
118 The plaintiff was then seeing Dr Bates, a sports medicine specialist, who gave him an injection in his back, and Dr Blake referred the plaintiff to neurosurgeon, Mr Bittar, who confirmed a disc prolapse and suggested conservative treatment with the option of surgery if there was no sustained improvement.
119 The plaintiff underwent further injections in April and September 2008 and as a result of emotional stress, he had some counselling and was prescribed antidepressant therapy during 2009.
120 Dr Blake diagnosed a right-sided disc prolapse of L5-S1 with nerve root compression of S1 occurring, consistent with the incident.
121 As of 2010, Dr Blake thought the plaintiff was restricted in employment activities involving bending, lifting, twisting and stooping, pushing, pulling and overhead activities, prolonged sitting, standing and walking. He thought the plaintiff was then able to do modified duties part time up to 30 hours a week.
122 In his most recent report of June 2014, Dr Blake confirmed his earlier diagnosis and he advised the plaintiff’s condition had stabilised.
123 Dr Blake noted the plaintiff was currently still affected by the condition in the form of recurrent pain that may happen with unguarded movements or if he tries to jog. Recurrences of pain have usually settled with time and use of anti-inflammatories.
124 The plaintiff has not reported all events of pain to Dr Blake but he noted, on 17 April 2013 and 19 May 2014, the plaintiff had recurrent events of pain which had not led to any documented loss of work.
125 Dr Blake considers the plaintiff remains at risk of recurrence and has counselled him to avoid bending, lifting and stooping and avoiding prolonged postures. Any activities that can cause pain should be noted and avoided and these restrictions should be continued for the foreseeable future.
126 Dr Blake noted the plaintiff works as a teacher and has been capable of that work as long as he avoids troublesome activities, and he has become proficient at managing his back condition.
127 Dr Blake thought the prognosis remained a little guarded with respect to debilitating sciatica again and possible need for disc surgery if the condition does not settle conservatively and pain remains severe and chronic.
128 Dr Blake considered further degenerative changes were likely in the future with their severity very hard to prognosticate accurately.
129 Dr Blake has fears that future surgery will be possibly needed and that surgery might involve a laminectomy and discectomy, lumbar fusion and decompression of spinal canal stenosis.
130 Dr Blake thought current assessment by a specialist was not indicated but in the future, the speciality involved could be neurosurgeon, orthopaedic surgeon or a chronic pain specialist.
131 Mr Bittar wrote to Dr Blake in October 2007, having seen the plaintiff for a neurosurgical opinion.
132 At that stage, the plaintiff presented complaining of lower back pain and right sciatica and his treatment comprised analgesia and physiotherapy.
133 Mr Bittar noted an MRI scan of October 2007 demonstrated a large right L5‑S1 intervertebral disc prolapse which was causing compression of the right S1 nerve root. He diagnosed S1 radiculopathy secondary to an L5-S1 intervertebral disc prolapse. He thought work had been a significant contributing factor.
134 In view of the plaintiff’s recent improvement, Mr Bittar recommended ongoing conservative treatment with physiotherapy at least twice a week for the next three months and analgesia as required.
135 Mr Bittar advised he would be pleased to review the plaintiff if he did not continue to improve. At that stage, the plaintiff may be a candidate for a microdiscectomy.
136 Mr Bittar emphasised to the plaintiff he must avoid heavy lifting, as well as bending, twisting or prolonged sitting. If he developed any symptoms of cauda equina dysfunction such as left leg pain, incompetence or impotence, Mr Bittar advised he should seek urgent medical attention.
137 Dr Mejak from Alphington Sports Centre, reported in April 2010.
138 The plaintiff first saw Dr Mejak for back pain on 18 September 2008 and she reviewed him in October that year and also in November and December 2009.
139 Dr Mejak noted the plaintiff had been a patient of the clinic since June 2001 and he had seen another doctor three times for his back in October and November 2007.
140 Dr Mejak diagnosed a L5-S1 right-sided disc prolapse causing back pain and referral of pain down the right leg resulting from the incident.
141 Dr Mejak noted, in 2007, the plaintiff had seen a physiotherapist at Box Hill Physiotherapy and then saw Dr Bates on 5 October 2007, who diagnosed an L5-S1 disc prolapse and prescribed high dose prednisolone with improvement over the following days. There was then a cortisone injection on 19 October 2007.
142 When first seen by Dr Mejak on 18 September 2008, the plaintiff reported the cortisone injection had reduced pain overall by 20 per cent.
143 When last reviewed by Dr Mejak in December 2009, the plaintiff reported that with the new McKenzie program, he had more periods with no pain at all. There was no severe pain to report and when the pain was present, the intensity was less than previously. On examination, the plaintiff’s pain-free range of movement had markedly improved. She had not seen him since.
144 Dr Mejak noted she had received a short letter from Mr Laing on 15 February 2010, stating the plaintiff’s pain was markedly reduced and his function had improved considerably.
145 Dr Mejak thought, looking into the future, the plaintiff should maintain some level of McKenzie home exercises and it did not look like he would need surgery at any stage.
146 Given the long history of back pain, Dr Mejak thought it would be likely the plaintiff would experience low-grade low back pain long term for the rest of his life, with a predisposition to further exacerbations. She thought teaching was appropriate with minimising movement. With the plaintiff’s current maintenance therapy, she thought he would have the ability to undertake any job within the restriction she described. She cautioned him against returning to his pre-injury work.
147 With aspects of his life, Dr Mejak advised the plaintiff to minimise flexion, lifting, twisting, stooping but not necessarily avoid them entirely. Pushing and overhead activities would be much lower risk of causing an exacerbation and any sustained and repetitive back movement was advised against.
Medico-legal evidence
148 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in June 2014.
149 On examination, the plaintiff was somewhat tender to the right of the midline around L5-S1. There was some restriction of lumbar movement. Reflexes and power in the lower limbs were normal and there was no wasting.
150 The plaintiff could straight leg raise to 75 degrees on the left without any significant problem but only to 40 degrees on the right, which gave him pain radiating down the leg.
151 Mr Doig noted the investigations which showed a large L5-S1 disc prolapse which looked like it was hitting the right S1 nerve root.
152 Mr Doig thought the mechanism of injury was consistent and work had been a significant contributing factor. He diagnosed a right L5-S1 disc prolapse treated conservatively and he thought the plaintiff’s condition had substantially stabilised.
153 The plaintiff told Mr Doig if his back was causing enough trouble, he would consider further treatment, but there were no plans at that stage.
154 Mr Doig thought that the plaintiff would be significantly restricted in activities involving bending, lifting, pushing, pulling, twisting, carrying and overhead activities. He would have difficulty with prolonged posture and overhead activities. These difficulties would be permanent.
155 Noting the plaintiff was coping in his current job, Mr Doig thought the prognosis was somewhat guarded. He thought it was likely the plaintiff was going to continue to have ongoing ache and pain in the back, even though he was actually coping with it reasonably well at this stage. Mr Doig did not think the plaintiff was at significantly increased risk of arthritis.
156 Mr Doig thought it certainly possible surgery may have a part to play in the future. He had noted the plaintiff had a restriction of straight leg raising, although he had no focal neurological signs. He had ongoing pain radiating down the leg, although at this stage, he was coping with it reasonably well. Mr Doig thought it likely the plaintiff would continue to have that and at some stage, it may well be, if he deteriorates significantly, then surgery does have a part to play, but there are no plans at this stage.
157 Having seen the surveillance of the plaintiff walking and breaking into a run and then working under a motorbike, Mr Doig noted the plaintiff was able to bend and squat down fairly comfortably and there was no obvious sign of pain. He was able to stand and bend over and appeared to do that without discomfort. He was able to get down on his hands and knees, again without apparent discomfort.
158 Mr Doig noted the plaintiff appeared to walk and run without too many problems. From the clinical point of view, that did not alter the range of motion that Mr Doig observed on examination.
159 Mr Doig commented it appeared the plaintiff was having less trouble with his back when the surveillance was taken than when examined. Having said that, the plaintiff also said he was working full time and he was able to cope with the occasional pain he got.
160 Mr Doig noted it was clear the plaintiff was able to be reasonably mobile when filmed, but noted none of the activities involved lifting, pulling, pushing, twisting or carrying or overhead activities. They did involve bending and it was apparent, at least on these days, the plaintiff was not significantly restricted in his activities involving bending, which is different from what Mr Doig originally wrote.
161 Mr Doig felt the plaintiff might have difficulty in prolonged walking to a moderate extent. He noted it was clear from the plaintiff’s activity, at least on that day filmed, that he was able to walk for a significant distance and break into a jog, although he did say when he tried to do that, that would aggravate his back afterwards.
162 In conclusion, Mr Doig thought the film indicated the plaintiff in fact had a less uncomfortable range of movement than what appeared when examined. However, it did not show the plaintiff involved in any physical activities, or lifting, pushing, pulling and carrying and, therefore, it did not alter Mr Doig’s basic assessment.
Surveillance
163 Counsel for the defendant admitted that there was a total of 30 hours’ surveillance on various dates in 2013 and 2014, during which 11 minutes of film was taken.
The Defendant’s medical evidence
164 Dr Mejak wrote to Dr Blake in July 2009 advising the plaintiff had seen him earlier that month with left knee pain, having previously seen him for back pain. Dr Mejak noted the plaintiff had an episode of left knee pain in 2006 and was referred to a specialist, Dr Hayden Morris. Conservative treatment was suggested, and indeed the pain settled.
165 Dr Mejak noted that nine months prior to coming to see her, the plaintiff fractured his left ankle. Physiotherapy was recommended. Dr Mejak advised that if the plaintiff’s pain did not settle within six weeks, he should consider a knee arthroscopy.
166 In her view, long-term management for the plaintiff, whether or not he had an arthroscopy, would consist of anti-inflammatories and exercise and possibly, in the long-term, a total knee replacement.
Medico-legal evidence
167 The plaintiff was examined by Mr Weaver, orthopaedic surgeon, in October 2007.
168 At that stage, Mr Weaver thought the plaintiff would be best advised to avoid having surgery to his lumbar spine. He thought the symptoms were going to improve slowly over the next two or three months, and there were grounds for arguing the plaintiff would eventually be left more or less asymptomatic.
169 Mr Weaver thought the plaintiff’s lumbar disc pathology was initiated in the incident, and that at most, the fall at the ski lodge sometime in July was responsible for causing a transient exacerbation of the problem.
170 Mr Weaver thought it was clearly the case that the plaintiff presented with both clinical radiological and MRI evidence that he was suffering from a substantial lumbar intervertebral disc prolapse.
171 The plaintiff was examined by psychiatrist, Dr Shan, for the purposes of a s98C assessment in November 2011.
172 From a psychological point of view, Dr Shan thought the plaintiff did not present as unwell during the examination. He was appropriate in emotions when describing his situation, and he had positive plans for the future now his physical symptoms had been relieved to some extent.
173 The plaintiff told Dr Shan that physiotherapy helped considerably, so that now he only occasionally took Nurofen, and he had not had a major flare-up for some time.
174 Dr Shan believed the plaintiff did, at one stage during 2009, warrant an Adjustment Disorder diagnosis with Mixed Anxiety and Depressed Mood, but that complication was now no longer present.
175 Mr Michael Troy, orthopaedic surgeon, first examined the plaintiff in December 2012.
176 On examination, straight leg raising was to 60 degrees with hamstring pain on the right. There was some restriction of thoracolumbar movement.
177 Mr Troy confirmed he saw the investigations which showed an L5‑S1 disc protrusion. He thought the plaintiff had a degenerative L5‑S1 disc, giving him right leg sciatica.
178 Mr Troy considered the plaintiff’s current condition was stabilised. He thought that his symptoms were under control unless he had another major incident. If he became overweight and unfit, the plaintiff would have deterioration in the already degenerative disc at L5‑S1, and Mr Troy thought his prognosis was really in his own hands as regards his wellbeing.
179 Mr Troy re‑examined the plaintiff in January 2014.
180 Straight leg raising on the right was then to 40 degrees with pain, and to the left 80 degrees. There was some restricted lumbar movement. Mr Troy confirmed his earlier diagnosis
181 Mr Troy noted the plaintiff’s tolerances appeared to be less than previously, as he could now sit and stand for half an hour, whereas previously, he could do so for an hour or more. The reason for that would be because he had put on extra weight.
182 Mr Troy thought the plaintiff’s prognosis was excellent if he maintained his fitness and controlled his weight. He did not require any further treatment and his symptoms had stabilised.
183 Mr Troy noted the plaintiff has the ability to continue as a schoolteacher in light of his previous back injury and the degenerative changes which are now still there give him some intermittent symptoms. He thought it would be unadvisable for the plaintiff to return to labouring-type work. Hence, the sedentary-type alternative modified duties he is now doing full time as a teacher is the preferred option.
184 Mr Troy did not think the plaintiff had any major loss or impairment of his body function for the present work that he was now doing, and hence his recommendation he stay there.
185 Mr Troy considered the incident in the snowfield in July 2007 had not caused any deterioration in the present clinical condition of the plaintiff’s lumbar spine at L5‑S1.
186 Having seen the video, Mr Troy commented that it indicated the plaintiff had no disability preventing him from being actively engaged in exercise and walking, jogging, kneeling down and squatting without any hesitation or abnormal gait in these observations.
187 Mr Troy noted, as the plaintiff indicated in his last visit, he was able to cope fully with all his teaching duties, look after himself domestically, and he had previously played sport before 2007, being tennis, basketball and football, and he is also helping run a holiday program for disadvantaged children.
Overview
188 There is no dispute that the plaintiff suffered a compensable injury to his back in the lifting incident on the said date.
189 The defendant accepted liability for the payment of weekly payments and medical expenses on 21 March 2007 and accepted the plaintiff’s claim pursuant to s98(C) in May 2012.
190 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[32] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[32](2010) 31 VR 1
191 Whilst the injury which gives rise to the impairment is not, itself, the subject of evaluation, and that evaluative task is addressed to the impairment,[33] there is no dispute that the plaintiff suffers from a right-sided prolapsed disc at L5-S1 with displacement of the right S1 nerve root sheath, confirmed on investigations.
[33]Humphries & Anor v Poljak [1992] 2 VR 129 at 134
192 There is no suggestion of any pre-existing back condition.
Credit
193 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[34]
“… 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.”
[34](2010) 31 VR 1 at paragraph 12
194 Counsel for the defendant attacked the plaintiff’s credit in terms of his affidavit material.[35]
[35]Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
195 The plaintiff’s first two affidavits disclosed the trip to Thailand planned before the incident and also working in London. Only after the Facebook entries were put to him did the plaintiff depose to other overseas trips and difficulty he had travelling.
196 As the plaintiff agreed, the impression he created in his earlier affidavits was of a sedentary life, whereas he had travelled extensively until 2012, when he commenced full-time teaching.[36] Further, the first detailed affidavit was only a month after returning from a three-month trip of South America.
[36]T50
197 However, Counsel for the plaintiff submitted that it was unfair to say the plaintiff did not disclose overseas travel, as he mentioned the trip to Thailand and also working in London. Further, the Thailand trip was corroborated by Mr Kunek.
198 It was submitted the important aspect was not that the plaintiff travelled but the reduced quality of that travel as a consequence of his back condition, in that he needed someone to help with luggage; he went on tours rather than independent travel and he could not engage in more physical activities such as jet boat racing.[37] It was submitted the plaintiff travelled, as he thought it was better to try and get on with things, taking more medication to deal with pain, rather than just be at home and sedentary.[38]
[37]T59
[38]T60
199 Whilst the plaintiff did not mention the true extent of his travel in his earlier affidavits, I generally found him to be a credible witness who was prepared to make concessions in the witness box as to a number of matters.
Pain
200 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain (both in Court and to doctors) and what the doctors say about the extent and intensity of the plaintiff’s pain.[39]
[39]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P at paragraph 11
201 Whilst Counsel for the defendant conceded the plaintiff has suffered ongoing low back pain radiating to the right side since the incident,[40] in his viva voce evidence, it was submitted the plaintiff described a lesser level of back pain than that deposed to.
[40]T54
202 In his affidavits, the plaintiff described frequent sharp pain on the right side, and occasional throbbing in the right gluteal area. There was no mention of pain-free periods or a lessening of sciatica which he admitted to in cross-examination.[41]
[41]T52
203 As the plaintiff agreed, sciatica has substantially resolved. It still comes back every now and then but it is nowhere what it was initially. The back pain is certainly manageable today.[42]
[42]T29
204 Further, the plaintiff admitted flare-ups are now intermittent and do not require an attendance on a doctor. Their frequency is really reduced if he does exercises and takes Nurofen but potentially still there if he does something unexpected.[43]
[43]T46
205 While he continues to suffer from episodes of pain, and will continue to do so, the plaintiff does not suffer a continuous substantial level of pain. Confirmatory of this is that the plaintiff’s pain appears to be controlled by moderate strength, non-prescription medication.[44]
[44]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph 48
206 I accept the plaintiff has difficulty sleeping because of back pain but also he has problems in this regard because of his abdominal condition.T31 Further, he has not been prescribed any sleeping medication to assist with back pain.
207 Medical opinion does not place the nature and extent of the plaintiff’s pain at a particularly high level.
208 Dr Blake thought the plaintiff had become proficient at managing his back condition and had been capable of doing his job as long as he avoided troublesome activities
209 Mr Doig thought it was likely the plaintiff was going to continue to have ongoing ache and pain in his back even though he was coping with it reasonably at this stage. The plaintiff told him he was able to cope with the occasional pain he got.
210 Mr Troy did not think the plaintiff had any major loss or impairment of his body function for his present job.
211 I accept however that with his back condition, the plaintiff would have some difficulty with bending, lifting, overhead activities, reaching and prolonged postures, as all doctors agree.
212 However, albeit for a short time, the plaintiff was shown working on his bike, bending and lying on the ground without apparent difficulty. Further, he did not appear to have any difficulty when walking and later jogging in the further footage.
213 As both Mr Doig and Mr Troy noted, there was a greater level of activity and movement shown on the film than on examination.[45]
[45]T56
Treatment
214 The plaintiff has undergone limited conservative treatment some time ago with physiotherapy in 2007 and specialist referral to Mr Bittar also during that year. He had three cortisone injections in 2008.
215 Further, the plaintiff attended Dr Mejak until the end of 2009 when he reported, with exercises, had no pain at all. There was no severe pain and when pain was present, the intensity was less than previously.
216 There has been no referral since 2008 for treatment by allied health professionals.
217 As the plaintiff agreed, he has only mentioned back pain to his doctor once in 2013 and once this year.
218 There have been no further radiological investigations since 2007.
219 The plaintiff requires limited low-grade medication with a couple of Nurofen a week – two to three tablets.
220 No surgeon is of the view that at the present time, surgery is anything more than a possibility in the future. I accept that this occurrence of injury might predispose the plaintiff, if there is further injury, to the need for surgery.
221 However, no deterioration has been reported by the plaintiff warranting further specialist referral
Work
222 Whilst I accept that the plaintiff has problems with prolonged postures such as sitting and standing and that bending and reaching is difficult, the plaintiff has been able to complete his tertiary study and undertake full-time teaching since the incident.
223 The plaintiff has not required time off work in relation to his back condition nor has any restriction been suggested by medical practitioners on the plaintiff’s duties. The plaintiff told Mr Troy that he was able to cope fully with all his teaching duties. Although he has plenty of sick leave, the plaintiff has not taken such leave because of his back condition.
224 Further, significantly, during the school holiday period for the last two years, the plaintiff has worked in a paid full-time position as the co-coordinator of a school program for six weeks in the summer holidays. In addition to arranging activities during the day, the plaintiff stays overnight with the young children participating in the program.
225 Whilst involvement with young people is the plaintiff’s passion and he has recently decided to cut down his role in the program, engaging in this role for the duration of the holidays and not having a break does not suggest the plaintiff’s back pain is such that it could be described as being “more than significant or marked” or “at least very considerable”.
Sport
226 The plaintiff’s affidavit gave the impression that he was playing football at the time of the incident and had to cease playing as a result of his injury. However, as the plaintiff conceded he last played in the eighteen months before the incident, ceasing due to work commitments.
227 Further, the plaintiff explained, in re-examination, had he not been injured, he did not plan to play, but intended to coach young children, and he conceded he could still do so, albeit not in a full active role.
228 It was not suggested that basketball was more than a social interest for the plaintiff at the time of the incident.’
229 I accept that the plaintiff has not water skied since the incident, having previously enjoyed that activity with his friend, Andrew Yates and his family. There was no mention however in Mr Yates affidavit of his family selling the boat because the plaintiff was no longer able to ski.
230 The plaintiff was a competent skier before the incident having skied since an early age. Whilst his evidence as to his level of skiing since that time was a bit unclear, having given conflicting answers in this regard, I accept that he is no longer able to ski at his pre injury level.
231 Whilst the plaintiff has been unable to return to skiing and water skiing, these are not consequences which can be properly described as “serious”.
232 Previous injuries to the plaintiff’s left ankle and left knee noted by Dr Mejak were not explained by the plaintiff.
233 Whilst the lay evidence was unchallenged, there was no mention in Mr Kunek’s travel with the plaintiff at the end of 2008 to Asia for six weeks, mentioning only the trip immediately after the incident. Mr Kunek made no mention of his family selling their boat after the incident.
234 Further, Mr Yates’ in his affidavit also gave the impression the plaintiff was still playing football at the time of the incident, which is clearly incorrect.
235 As shown on video, the plaintiff clearly can still jog and walk some distance without obvious difficulty, I accept that he has back pain thereafter on occasions and that he is unable to exercise freely as was the case before his injury and put on weight as a result.
236 The plaintiff has taken up a new activity in the last year, having bought a motorbike, largely as a pleasure activity.[46]
[46]T55
237 Whilst Dr Blake is pessimistic about the likelihood of degenerative changes in the future, this view was not shared by Mr Doig, who, though somewhat guarded about the prognosis, did not think the plaintiff was at significantly increased risk of arthritis.
238 Mr Troy thought the plaintiff’s prognosis was excellent if he maintained his fitness and controlled his weight.
239 As counsel for the defendant submitted:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”[47]
[47]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
240 The plaintiff is able to keep working full time as a teacher in his chosen field and has been able to take on related activities. Whilst he maintains there are restrictions on his travel, he has been able to travel extensively before starting full-time teaching in 2012.
241 Taking into account all the evidence, I am not satisfied the consequences of the plaintiff’s spinal impairment could be described as “more than significant or marked” and certainly not “at least very considerable”.
242 Accordingly, the application is dismissed.
- - -
Appendix “A”
Exhibit 1
DVD Video-Surveillance Film of the Plaintiff
Surveillance DVD Exhibit 1 – Length: 11 minutes 45 seconds
| Date | Time | Event |
| 15 February 2014 | 7:58am | Plaintiff filmed walking down the street |
| 8:09am | Plaintiff filmed jogging | |
| 8:14am | Plaintiff resumes walking | |
| 16 February 2014 | 11:06am | Plaintiff filmed exiting his house, approaches a vehicle and kneels down appearing to check a tyre with a male. Plaintiff continues to squat on his knees and walk around to inspect the vehicle. Plaintiff is filmed squatting and leaning over the vehicle |
| 11:11am | Plaintiff is filmed squatting on both knees working on his motorcycle with a male | |
| 11:13am | Plaintiff bends down on both hands and knees to inspect some parts underneath the motorcycle | |
| 11:15am | Plaintiff pivots his body around to the opposite side of the motorcycle one knee at a time | |
| 11:16am | Plaintiff gets up and walks around for a few seconds before pushing his motorcycle away – out of the camera’s view |
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