Senczuk v LHG Plant Pty Ltd
[2012] VCC 1723
•13 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04296
| ANDREW SENCZUK | Plaintiff |
| v | |
| LHG PLANT PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 5 November 2012 | |
DATE OF JUDGMENT: | 13 November 2012 | |
CASE MAY BE CITED AS: | Senczuk v LHG Plant Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1723 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Pre-existing injury to lower back – whether the plaintiff suffered an aggravation of the pre-existing injury – whether the pain and suffering consequences and loss of earning capacity consequences of the aggravation were “serious”
LEGISLATION: Accident Compensation Act 1985, s134AB(38)(c) and (38)(g)
CASES CITED: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52; Halpin v Wilson Transformer Company [2012] VSCA 235
JUDGMENT: the plaintiff has leave to bring a proceeding at common law to recover damages for pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Nowicki Carbone |
| For the Defendants | Mr S Jurica | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 8 September 2011 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr M Walsh of Counsel appeared for the plaintiff and Mr S Jurica of Counsel appeared for the defendants.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 15-36; 45-65; 77-91 and 100-138 and from the defendants’ Court Book (“DCB”) pages 110-111 and 122: Exhibit A;
· The defendants tendered their Court Book, pages 9-62c; 65-72; 95-101; 115-121 and 123-139: Exhibit 1.
· The defendants tendered film taken of the plaintiff on 22 September 2012: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of his employment on or after 20 October 1999.[1]
[1]s134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(j) I am required by s134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
8 The plaintiff was born in 1965. He is now forty-seven years of age. He is a single man. The plaintiff has a daughter, who is about nineteen years of age, from a relationship which ended long ago. At the time when he swore his first affidavit on 18 February 2011, he was in a relationship, but by the time he swore his second affidavit on 11 October 2012, that relationship had come to an end.
9 The plaintiff was born in Waikerie in South Australia. In his first affidavit, he referred to completing Year 11 at a high school in South Australia. However, during his oral evidence, he said that he left school when he was fourteen years of age. If the high school system in South Australia is similar to that in Victoria, and I think it is, then he could not have been fourteen years of age when he left school, but more like sixteen or seventeen years of age.
10 It is more likely that the plaintiff left school when he was fourteen years of age. He said that the legal age to leave school in South Australia was then fifteen years of age. Upon leaving school at fourteen years of age, he said he went to work on a farm operated by his brother-in-law.[4] I prefer the account the plaintiff gave in his oral evidence concerning when he left school. It had a ring of accuracy about it, given that he was able to identify that he left school before the legal age permitting student to leave school, and then entering into the workforce on a farm operated by his brother-in-law.
[4]Transcript 90-91
The Plaintiff’s Prior Lower Back Injury
11 In 2003, the plaintiff was employed by the Baxter Group as a plant operator. He suffered an injury to his lower back when he was getting ready for work.[5]
[5]PCB 16
12 The clinical notes of the Total Care Medical Group reveal that the plaintiff saw Dr Chung, general practitioner, at 9.27 am on 10 February 2003 with soreness in his lower back. He was prescribed Diazepam and Digesic. The next occasion he attended that clinic was on 17 February 2003.[6]
[6]DCB 133
13 The plaintiff then attended a hospital conducted by Peninsula Health at 11.06 am on 10 February 2003. He was discharged four days later. He gave a history that he had suffered the sudden onset of severe low-back pain. A CT scan was taken which demonstrated a moderate focal bulge of the L4-5 disc directed postero-laterally to the left causing significant impression upon the theca and the left L5 nerve root sheath.[7]
[7]DCB 115-116
14 At the time that the plaintiff was discharged from the hospital, it was noted that the medication he was provided included Panadol, Panadeine Forte, Diazepam, Tramadol and Oxycodone. Each of them are known as a treatment for pain relief.[8]
[8]DCB 117
15 The plaintiff next attended the Total Care Medical Group on 17 February 2003. He was prescribed Diazepam. He was referred to have physiotherapy. He was also referred to Mr Williamson, orthopaedic surgeon. It is clear from the clinical notes of that day, and subsequently, that the plaintiff was treated for lower back pain on 17 February, 24 February, and 28 February 2003.[9]
[9]DCB 133-134
16 The plaintiff next attended Dr Marshall, general practitioner, on 10 March 2003, and subsequently on 10 April and 12 May 2003, complaining of pain in his lower back. Dr Marshall's notes are very difficult to read. The best I can make of them is that the plaintiff told him that he had suffered a disc prolapse, and that he had been referred to Mr Williamson. It would appear that the plaintiff was referred to have physiotherapy and was prescribed Panadeine Forte for pain relief.[10]
[10]DCB 128
17 The plaintiff attended another medical practitioner on 1 May 2003 complaining of lower back pain and pain radiating into his left buttock down to the knee. He was prescribed Panadeine Forte. The examining medical practitioner noted that the plaintiff was unable to return to work at that stage. The index to the Defendants’ Court Book suggests that the notes of that medical examination are the progress notes of Dr Marshall; however, the handwriting bears no resemblance to the handwriting of the clinical notes also said to be those of Dr Marshall referred to in the preceding paragraph. Furthermore, there was a note on the bottom right hand corner of the first page of those clinical notes which refers to Dr Marshall being the “LMO” of the plaintiff.[11] The latter notation suggests that these are the notes of a different medical practitioner.
[11]DCB 113-114
18 The plaintiff next attended Mr Williamson on 6 May 2003. The plaintiff told Mr Williamson that the pain he was experiencing was mainly in the region of his lumbo-sacral junction. The pain sometimes radiated into his left buttock and the posterior aspect of his left thigh. After examining the plaintiff and looking at the CT scan, Mr Williamson was of the opinion that there was no need for surgical intervention. He reassured the plaintiff that his symptoms would settle over the next month or so, and he encouraged him to resume his normal activities.[12]
[12]DCB 110-111
19 The plaintiff next attended Mr Pullar, neurosurgeon, on 8 October 2003 at the outpatient clinic at the Monash Medical Centre on referral by Dr Marshall. Mr Pullar examined the plaintiff and looked at the CT scan. He was of the opinion that the plaintiff had a symptomatic disc prolapse with sciatica which had largely resolved. He considered that the plaintiff's complaints of backache were not due to the disc prolapse, but more likely due to an underlying tear in the lining of the disc and subsequent disc degeneration.[13]
[13]DCB 122
20 The condition of the plaintiff's lower back appears to have improved because he did not have any medical treatment after seeing Mr Pullar until 13 January 2005, when he attended the Total Care Medical Group. On that occasion, he complained of lower back pain with radiation of pain into his left leg over the previous four weeks. He was prescribed medication and referred to have physiotherapy. He subsequently attended on a further sixteen occasions until 28 July 2005.
21 Between 13 January 2005 and 28 July 2005, the plaintiff complained of lower back pain and pain radiating into his left leg. He was prescribed a variety of medications, including Panadeine Forte, Digesic, Diazepam and OxyContin. OxyContin became the dominant medication that he was prescribed from 8 February 2005.[14]
[14]DCB 134-136
22 On 28 July 2005, the clinical note reads “he needed a not[e] to his employer regarding his back problem”. It would appear that the plaintiff was probably working in July 2005, and probably working throughout 2005. There is nothing in the histories recorded by attending medical practitioners that suggests that, between 13 January 2005 and 28 July 2005, the plaintiff was off work. In fact, on 28 July 2005, the attending medical practitioner suggested to the plaintiff that he see an occupational physician to have an assessment made of his work capacity.
23 The plaintiff attended the Total Care Medical Group on 6 May 2006. He requested a “statement about his back”. The attending medical practitioner recorded that the plaintiff was not experiencing any pain in his lower back, that his spinal movements were free, and that his straight leg raising bilaterally was 90 degrees.[15]
[15]DCB 138
24 The plaintiff next attended Dr Weiss on 22 January 2007. Dr Weiss reviewed the CT scan. He prescribed the plaintiff OxyContin. He saw him again on 23 May 2007, and noted that the plaintiff's was reasonably free of pain in his lower back. It would appear that Dr Weiss offered the plaintiff Tramadol, Voltaren and OxyContin. The plaintiff declined the offer. A sidenote reads “Not to take at work” which I assume means that the plaintiff was working at that time.[16]
[16]DCB 129, and Dr Weiss’ report dated 2 May 2008 at PCB 53
A Compensable Injury?
25 In 2008, the plaintiff was employed by the first defendant as a plant operator. He said that he would spend up to 10 hours a day operating a variety of earth moving vehicles. He would be seated while doing so. On 5 March 2008, he said he was operating a haul truck, removing earth. He would then drive a dump truck used to carry the earth away. The ground upon which he drove these vehicles was uneven which resulting in him being jolted around the cabin of the vehicles.
26 It was about lunchtime when the plaintiff experienced pain in his lower back. He said that he reported the incident to the first defendant. He then attended Dr Weiss on 6 March 2008. The relevant part of Dr Weiss's clinical notes for that day are as follows:
“ - Recurrence of LBP
- … sciatica
- working on a Marina.”[17]
[17]DCB 129
27 Dr Weiss referred the plaintiff to have physiotherapy. He also referred him to have an MRI scan. He prescribed him Prednisolone and Valium. The plaintiff attended Dr Weiss on 7 March 2008 at which time Dr Weiss recorded that the severity of the plaintiff’s pain had increased. He prescribed him Panadeine Forte.[18]
[18]DCB 129
28 The plaintiff had an MRI scan on 11 March 2008. The radiologist reported that it demonstrated a central disc protrusion at L5-S1 with minor thecal encroachment. There was a more left sided disc protrusion at L4-5 compressing the proximal left L5 nerve root sheath. There was moderate bilateral foraminal encroachment on both sides.[19]
[19]PCB 46
29 Dr Weiss referred the plaintiff to Mr McMahon, neurosurgeon, who first saw the plaintiff on 2 April 2008. Mr McMahon referred the plaintiff to have a second MRI scan which was taken on 23 December 2008. The radiologist reported that it demonstrated significant bone and disc degenerative changes at L4-5 and L5-S1. There was a central and left sided disc bulge at L4-5 causing mild proximal L5 nerve root sheath encroachment as well as a foraminal narrowing, greater on the left and the right. There was disc bulging at L5-S1 with relatively minor foraminal encroachment.[20]
[20]PCB 47
30 Mr McMahon appears to have formed the opinion that the MRI scans demonstrated much the same pathology. However, he noted that the L5-S1 central disc bulge had improved significantly when the second MRI scan was compared with the first. Mr McMahon diagnosed that the plaintiff was suffering from lumbar spondylosis with facet joint degeneration and left L5 nerve root compression secondary to lateral recess stenosis and a small L4-5 disc prolapse. He considered that the plaintiff's prognosis depended upon management of his chronic pain and perhaps surgery in the future. He considered that the plaintiff was not fit to his pre-injury work, but was fit for light work such as desk or office type work. In the longer term he considered that the plaintiff would be able to work with restrictions on lifting of no more than 20 kilograms and not undertaking work requiring repetitive bending below waist or repeatedly reaching above head height.[21]
[21]PCB 51-52
31 It would appear that the plaintiff's present treatment comprises seeing Dr Weiss on a monthly basis, and taking one to two Panadeine Forte per day for pain relief. Dr Weiss has prescribed him other medication to treat depression. In his last report dated 23 October 2012, he noted that the plaintiff had engaged in substance abuse of alcohol and cannabis and was suffering from major depression.[22] The plaintiff now attends Dr Taylor, general practitioner, who appears to work from the same clinic as Dr Weiss.[23]
[22]PCB 64-65
[23]PCB 21-22
32 The plaintiff made a claim dated 7 March 2008 in which he said that he suffered pain in his lower back resulting from driving a haul truck over rough terrain.[24] The first defendant contested the basis upon which the plaintiff made his claim asserting that the vehicles driven by the plaintiff could not have caused him a compensable injury.[25] However, the claim was assessed in favour of the plaintiff for injury to his lumbar spine and his left leg. A lump sum of compensation was assessed based upon a 10 per cent combined whole person physical impairment.[26]
[24]PCB 24-25
[25]PCB 26-27
[26]PCB 28-33
The Issues
33 Mr Jurica submitted that the impairment of the function of the plaintiff's lower back and the consequences which he suffers are consistent with the plaintiff’s previous injury to his lower back. He submitted that the plaintiff had not suffered a compensable injury resulting from his work which he performed in March 2008.
34 Alternatively, he submitted that, if the plaintiff did suffer a compensable injury, then the impairment of the function of his lower back is no longer due to the compensable injury.
35 Alternatively, he submitted that, if the plaintiff has a compensable injury now, then the pain and suffering consequences and loss of earning capacity consequences cannot satisfy the statutory test.
Causation
36 I am not satisfied that there is any merit in the submission that the plaintiff did not suffer a compensable injury.
37 Firstly, I accept the plaintiff's evidence that he was driving vehicles on road surfaces which resulted in jolting through the cabin of the vehicles. I am fortified in reaching that conclusion because on 23 May 2007 Dr Weiss recorded that the plaintiff was reasonably free of lower pain in his lower back, and the plaintiff declined medication which had previously been prescribed and which the plaintiff had used for pain relief. The fact that the plaintiff declined to use that medication appears to me to demonstrate that he did not consider that the level of the lower back pain that he was suffering at that time necessitated treatment for pain relief by using medication. The plaintiff did not obtain any other medical treatment until 6 March 2008 which confirms that he was reasonably free of lower back pain.
38 Secondly, the plaintiff obtained medical treatment contemporaneously with the onset of pain in his lower back which he associated with driving the offending vehicles. There is a clinical note which confirms the onset of lower back pain on 6 March 2008, and a Claim for Compensation dated 7 March 2008.
39 Thirdly, Mr Dooley, orthopaedic surgeon, was engaged by the defendants to give an opinion, among other things, on whether the plaintiff had suffered a compensable injury. In letters dated 19 April 2012; [27] 10 September 2012;[28] 24 October 2012,[29] and 31 October 2012,[30] the solicitors for the defendants provided Mr Dooley with the clinical notes; radiology; some of the medical reports; and some of the history relevant to the plaintiff's lower back injury, which I have reviewed and set out above. Mr Dooley considered all of that material and was of the opinion that the plaintiff may have aggravated the underlying degenerative disease in his lumbar spine as a result of the work he performed in March 2008.[31] However, he was also of the opinion that the contribution of the aggravation was not significant.
[27]PCB 35-37
[28]PCB 38-40
[29]PCB 41-42
[30]PCB 43
[31]DCB 62a
40 It appears to me that the opinion of Mr Dooley confirms that the determination made on 24 September 2009 to accept that the plaintiff’s claim was justifiable at the outset. There are other medical opinions which are likewise supportive of the conclusion that the plaintiff suffered a compensable injury in March 2008: Dr Poppenbeek, occupational physician;[32] Mr Hart, orthopaedic surgeon;[33] Mr McMahon;[34] Dr Weiss;[35] Dr Myers, physician and geriatrician;[36] Professor Myers, general surgeon, and[37] Dr Davison, occupational physician.[38]
[32]DCB 9-22, and in particular at 11-12 and 16-17. It is significant that Dr Poppenbeek was asked specifically to consider evidence suggesting that the work the plaintiff undertook could not have caused him a compensable injury, at DCB 11 and 16-17
[33]DCB 24-34. Mr Hart was requested to undertake an impairment assessment and was not specifically asked questions relating to causation, however, by inference he did not disconnect the work the plaintiff performed in March 2008 from the production of a compensable injury
[34]PCB 51. Mr McMahon did not state unequivocally that the plaintiff's work resulted in the aggravation, but it is patent by inference that he made a connection between the history he was given of the work the plaintiff was performing and the onset of lower back pain for which the plaintiff seeking treatment from him
[35]PCB 53-54 and 64
[36]PCB 85-91, and in particular, at 88
[37]PCB 100-104, and in particular, at 103
[38]PCB 106-125, and in particular at 109-110 and 124
A Compensable Injury at Present
41 The most recent medical opinions are those of Dr Weiss, Professor Myers and Mr Dooley. Dr Weiss and Professor Myers are of the opinion that the pre-existing injury to the plaintiff's lower back was aggravated by the work the plaintiff performed in March 2008, and that the impairment of the function of his lower back is partly due to the aggravation.
42 Mr Dooley accepted that there was an aggravation, but changed opinion in his last report to some degree, in saying that the contribution to the impairment of the function of the plaintiff lower back by the aggravation is not significant. However, he has not discounted some implication of the aggravation in the persisting symptoms complained of by the plaintiff.
43 On my analysis of all of the medical opinions, it would appear that there was no doubt that the plaintiff suffered an aggravation of the previous injury to his lower back until Mr Dooley provided his last report. It is for this reason that I reject the opinion of Mr Dooley to the extent that it can and should be interpreted as Mr Dooley being of the opinion that plaintiff is no longer suffering a compensable injury of any substance.
Pain and Suffering
44 Following on from my analysis of the evidence relevant to whether the plaintiff suffered a compensable injury, I find that he suffered an impairment of the function of his lower back which is permanent.
45 Next, I must consider whether the consequences of the aggravation are serious in terms of pain and suffering consequences.[39] In doing so I must, firstly, undertake an analysis of the impairment of the function of the plaintiff’s lower back both before and after the aggravation, and, secondly, determine whether the aggravation resulted in an impairment and consequences which are permanent.[40]
[39]Petkovski v Galletti [1994] 1 VR 436
[40]at 444
46 It cannot be doubted that the plaintiff suffered a discal injury as demonstrated in the earlier CT scan. All the medical practitioners who looked at the CT scan appear to be in agreement that what was demonstrated on the CT scan is likely to have been the nature and extent of the injury suffered by the plaintiff in 2003.
47 Furthermore, it cannot be doubted that the plaintiff was troubled by the injury to his lower back in 2003, 2005 and 2007. However, before March 2008 he was working full time driving the vehicles which have been previously described over rough terrain. That in itself demonstrates that his lower back was functioning well, and well enough for him to sustain the arduous nature of that work up to 10 hours per day.
48 It appears to me that the aggravation was significant because it saw the plaintiff seek out immediate medical treatment, and thereafter he had a significant amount of medical treatment from Dr Weiss, Mr McMahon, from a physiotherapist and he was in receipt of prescriptions for painkilling medication, such as Panadeine Forte, which he continues to take daily. However, I do not accept that the plaintiff is taking Panadeine Forte in the quantities he described in his oral evidence.
49 The consequences which I am satisfied are causally connected to the compensable injury which the plaintiff suffered in March 2008 are as follows:
· Persistent pain in his lower back.
· The necessity for the use of painkilling medication, namely, Panadeine Forte of the probable dosage of one to two per day.[41]
[41]Referred to in the report of Dr Weiss dated 23 October 2012 compared with the evidence of the plaintiff that he was taking up to 6 Panadeine Forte per day and sometimes more at Transcript 52-53 and 80-81
· An incapacity for the plaintiff’s pre-injury work, but a retained capacity to undertake suitable work of a lighter nature.
· By inference, that with persistent pain in his lower back and with restrictions on his capacity for work that must interfere with his capacity to undertake domestic tasks and engage in social and recreational activities where stress and strain would be placed on his lower back.
· Interference with his capacity to sleep.
· Difficulty driving long distances, such as to his hometown in Adelaide, and trips within Victoria, for example trips to the Murray.
· Interference with his capacity to sit and stand.
50 I do not accept much else of the plaintiff's evidence. At times, the plaintiff gave me the impression that he was giving an answer to questions put to him in cross examination just to give an answer. For example, his evidence about fishing; tinkering in his shed, and alternative forms of work which he has considered struck me as unacceptable.
51 In relation to fishing, the plaintiff was simply unable to give any estimate of the number of occasions he went fishing in any given year prior to March 2008. After I invited him to think about it seriously, he simply seized upon going on fishing trips maybe a dozen times per year, but that was in the background of not being able to give any sensible answer at all earlier in his evidence.[42]
[42]Transcript 57-59
52 In relation to tinkering in his shed, the plaintiff gave unimpressive evidence. The plaintiff said that he went into his shed and tinkered but he was unable, or unwilling, to say what he was tinkering with and to what extent. It was left unexplained.[43] In relation to working on his car it was as if what he actually did with his car had to be dragged out of him.[44]
[43]Transcript 47-48 and 83
[44]Transcript 49-50
53 In relation to any consideration he has given to pursuing suitable employment, his evidence was almost bizarre. He said he had looked for work by going to places of employment. However, he did not describe the names of any place of employment, the nature of the work he was enquiring about, or, in fact, any detail of any kind which left me with any confidence that he had in fact made any attempts to actually look for employment. The most bizarre part of his evidence was his stated interest in the work of the coroner. Again, he gave no detail of any kind about what sort of coronial work he was thinking about.[45] For a man with education limited to what he could obtain by the age of 14 years of age to think that he could work in coronial work is very strange.
[45]Transcript 71-72
54 My overall impression of the plaintiff's evidence was that he was a very unreliable witness and a very unreliable historian. He struggled almost all the way through his evidence to give a simple picture on most subjects on which he was asked questions. It was not as if he was subjected to pressing cross- examination, or was exposed to questioning at a level beyond the reasoning understanding of a man with his education, experience and training. He seemed to me to be operating at a very low level of understanding. His demeanour suggested that his level of comprehension was very low. He would often throw his head back and open his eyes widely when asked a question as if the question was a surprise or on a subject on which he had little or no comprehension.
55 I have, therefore, approached the determination of serious injury by only accepting evidence where there is some corroborative evidence of what the plaintiff says or where it is fair to draw an inference. For example, if the plaintiff has persistent lower back pain that it is likely to interfere with his mobility and his capacity to undertake tasks which would put stress and strain on his lower back.
56 I have had regard to a number of decisions of the Court of Appeal which set something of a benchmark as guidance for judges at trial.[46] The plaintiff's application is not clear cut, but at the same time it bears out the sort of characteristics consistent with pain and suffering consequences referred to in a number of Court of Appeal decisions and are consonant with the methodology applied by judges in this court in determining whether an application should succeed or fail.
[46]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52, and Halpin v Wilson Transformer Company [2012] VSCA 235
57 Despite my misgivings about the quality of the plaintiff's evidence, I accept that he has the pain and suffering consequences referred to in paragraph 49 above. I have considered those consequences against the film shown of the plaintiff. I am not persuaded that the fact that the plaintiff stood behind a car preparing his fishing tackle, climbed into the back of a small motorboat, and was able to sit for over an hour and a half impinge upon his credit very dramatically.
58 I am satisfied that the plaintiff suffered an aggravation of the pre-existing injury to his lower back. I am satisfied that the aggravation has impaired the function of the plaintiff's lower back permanently, and that he has permanently suffered the pain and suffering consequences to which I have already referred. Therefore, I find that the plaintiff has suffered pain and suffering consequences which meet the statutory test.
Loss of Earning Capacity
59 I accept that the plaintiff is no longer fit for his pre-injury work. The preponderance of the current medical evidence is that the plaintiff is fit for work: Dr Weiss;[47] Professor Myers,[48] and Mr Dooley.[49] The other medical practitioners whose evidence I have reviewed were also of the opinion that the plaintiff was essentially unfit for his pre-injury work, but fit for light work.
[47]PCB 65
[48]PCB 104. Professor Myers did not expressly state that the plaintiff is fit for light work, but in saying that he cannot undertake manual pre-injury employment it appears to me that it does not exclude the plaintiff having a capacity for light work
[49]PCB 60
60 The medical evidence inevitably leads me to conclude that the plaintiff has a residual capacity for work. Whether he has a residual capacity for suitable employment as defined in s5(1) is another matter. However, the plaintiff has made no serious effort to pursue rehabilitation and retraining to determine the nature of his residual capacity and whether it can be exploited in suitable employment.
61 I return to my observations about the plaintiff's evidence and his attempts to find work. I do not accept that the plaintiff has made any serious attempts to find work. I have some lingering doubts as to whether the plaintiff made the efforts which he described in his oral evidence. The plaintiff cannot succeed in discharging the onus he bears under the s134AB(19)(b) if he is also unable to also discharged the onus he bears under ss(38)(g).
62 I find that the plaintiff has a residual capacity for work. I am unable to determine whether the plaintiff has undergone any rehabilitation or retraining. The only rehabilitation that the plaintiff has undergone is the medical treatment which I have referred to above. He has not engaged in any level of rehabilitation in the sense of improving his capacity to cope with the injury to his lower back and his educational level. He is not undergone any retraining except to undertake a computer course.
63 The purpose served by ss(38)(g) is to prevent the plaintiff from succeeding with a claim for loss of earning capacity where the plaintiff has not taken the steps to determine whether it would result in the plaintiff being fit for suitable employment. In the end, I do not accept that the steps taken by the plaintiff are reasonable in terms of meeting the demands of the subsection.
64 The plaintiff has abused alcohol and cannabis to a significant degree. That appears to be the opinion of Dr Weiss, who referred to the plaintiff having a substance use disorder, being depressed, and suffering and a reduction in his motivation. By inference, it would appear that the reduction in his motivation has been contributed to not only by the injury to his lower back, but also by his depression and his substance abuse disorder.[50]
[50]PCB 65
65 I do not accept that the plaintiff's resort to alcohol and cannabis is a consequence of the lower back injury. The plaintiff was charged with possession and cultivation of cannabis. The particulars of the charge related to a period predating March 2008. In light of such evidence, it is clear that the plaintiff was using cannabis for some time prior to March 2008.[51] It is likely that he was probably using alcohol in significant quantities as well for some time prior to March 2008. The evidence is unclear as to whether the plaintiff’s use of cannabis and alcohol increased after March 2008.
[51]Transcript 34-36
66 I am not satisfied that the plaintiff has discharged the onus which he bears to prove that the impairment of function of his lower back has resulted in the plaintiff suffering a total loss of earning capacity.
Conclusion
67 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.
68 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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