Shabo v Victorian WorkCover Authority
[2023] VCC 1059
•27 June 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-03934
| TONY HERU SHABO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 June 2023 | |
DATE OF JUDGMENT: | 27 June 2023 | |
CASE MAY BE CITED AS: | Shabo v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1059 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the back – whether pain and suffering consequences are “serious” under the Act – whether loss of earning capacity as a result of the injury has been established – credit of the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139
Judgment: Leave is granted for the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of an injury to his back in the course of his employment with Dairy Country Pty Ltd.
The application for the plaintiff to bring proceedings to recover loss of earning capacity arising from the same injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
HIS HONOUR:
1This is an application brought by Originating Motion dated 20 September 2022, whereby the plaintiff seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for pain and suffering and loss of earning capacity arising out of, or in the course of, his employment with Dairy Country Pty Ltd (“Dairy Country”).
2The plaintiff seeks leave pursuant to the definition of “serious injury”, being of a long-term impairment or loss of body function to his back.
3The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following exhibits:
§Exhibit “A” – Plaintiff’s Court Book (“PCB”), pages 10 to 56, pages 58 to 60 and pages 78 to 96.
· The defendant tendered the following exhibits:
§Exhibit 1 – DVD surveillance film dated 20 July 2022, 14 November 2022 and 6 April 2023.
§Exhibit 2 – Plaintiff’s Court Book, pages 57 and 61 to 76.
§Exhibit 3 – Defendant’s Amended Court Book (“DCB”), pages 9 to 154.
4At the commencement of the proceeding, Mr McKenzie, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the plaintiff does not satisfy the statutory level of pain and suffering damages as a result of the physical injury to his back (range case);
(b) whether the plaintiff’s condition in respect of his lower back is permanent;
(c) the plaintiff is not working at his full capacity and, consequently, the loss of earning capacity claim for certification is not made out;
(d) the plaintiff has the capacity to work full time in employment of light duties;
(e) the plaintiff has not, as at the date of the hearing, fully engaged in pain management treatment;
(f) the credit of the plaintiff.[1]
[1]Transcript (“T”) 4-5
The statutory scheme
5The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment with Dairy Country before 1 July 2014;[2]
(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”;[3]
(c) the plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d) subsection (2)(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 a range of possible impairments or losses of a body function, may be fairly described as being “more than significant” or “marked”, and as being at least “very considerable”;
(e) subsections (2)(f) and (2)(g) provide that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(f) subsection (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(g) in conformity with Barwon Spinners,[4] 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 ss(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2] See s1 of the Act
[3]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[4] (2005) 14 VR 622
7I am required 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, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
The Plaintiff’s background
8The plaintiff was born in Iraq in 1981. At the time of the hearing, the plaintiff was forty-one years of age. The plaintiff migrated to Australia in 2013.[5]
[5]PCB 10
9The plaintiff is a married man and he and his wife have three children. The three children are aged nine, five and two.[6]
[6]PCB 10
10Prior to coming to Australia, the plaintiff attended school in Iraq until the age of nineteen. He then worked as a hairdresser, performing cleaning duties and serving coffee and tea.[7]
[7]PCB 10
11The plaintiff commenced employment with Dairy Country in April 2014 as a labourer. The plaintiff remained in employment with Dairy Country as a labourer in various capacities from 2014 until May 2020. The plaintiff was made redundant in 2020.
12The plaintiff reduced his employment hours in April 2019 on the basis of a certificate from Dr Karlov to two days a week at ten hours per day. The nature of the work, which was described as heavy, continued on a part-time basis for the two days a week. The plaintiff’s work at Dairy Country ceased when the new owners of the business would not continue his casual arrangement of two-days-a-week work.
13In September 2020, the plaintiff sought work in a hairdressing salon, known as Amazing Cuts, in Craigieburn.[8] The plaintiff was working twenty-five to thirty-five hours per week, earning between $500 and $600 per week at that time.[9]
[8]PCB 12
[9]PCB 13
14In the plaintiff’s evidence, he stated he worked on Sundays, Mondays, Tuesdays and Wednesdays for the same employer. His employer is Mr Aamir Jajo. The plaintiff had known Mr Jajo from previous connections in Iraq. The plaintiff’s evidence is that he currently works twenty hours per week for Mr Jajo on a contract basis for $25 per hour. The plaintiff has his own ABN number in order to work as a casual contractor for that business.
Injury with Dairy Country Pty Ltd
15The plaintiff commenced his employment with Dairy Country as a labourer in 2014. Dairy Country were cheese producers and the plaintiff engaged in factory work, as described by him. His initial employment was performing such jobs as unpacking boxes of cheese and later being promoted to, what is described as, the shredding section of the business. The work involved the plaintiff transferring blocks of cheese onto a conveyor belt, which would then be moved along to pass through the cheese-shredding machine.[10]
[10]PCB 11
16The plaintiff stated, with overtime, he worked long hours at this employment. He stated that between Mondays and Thursdays, he would work ten to twelve hours. On Fridays, he would work ten hours and on a Saturday, he would work eight hours.[11] The total of those hours would be sixty-six hours per week.
[11] PCB 11
17In the Claim Form submitted on behalf of the plaintiff, he set out his hours as being fifty to fifty-five hours per week.[12]
[12]PCB 62-65
18The plaintiff described the work as repetitive and heavy. He stated that the blocks of cheese weighed either 10 kilograms or 20 kilograms. He was required to move these blocks of cheese onto the conveyor belt from the pallets.
19In September 2016, the plaintiff attended upon his general practitioner, Dr Basim Francis, at the Campbellfield Medical Centre, complaining of lower back pain. He was referred to Dr Karlov, consultant physician, at the Epping Consulting Suites in Cooper Street, Epping. On 15 September 2016, the plaintiff attended on Dr Karlov and was referred for an MRI examination.[13]
[13]PCB 58
20The MRI examination took place on 18 September 2016. The conclusion of the MRI report was as follows:
“Minor intervertebral disc desiccation with posterior annular fissuring at L4‑5. No other abnormality. No neural compression or canal stenosis.”[14]
[14]PCB 59
21The MRI scan performed on 18 September 2016 is the only radiological examination that forms part of the evidence in this case.
22The plaintiff continued to work with the same duties at Dairy Country until April 2019, when he attended upon Dr Karlov again. On 30 April 2019, Dr Karlov reported as follows:
“He has lumbar disc lesions and strain of the lower cervical spine.
Accordingly, he would not be capable of working more than two days a week.”[15]
[15]PCB 56
23The plaintiff continued working two days a week at a rate of ten hours per day in the same heavy employment until May 2020, when he was made redundant.[16]
[16] T30-31
Medical treatment
24The plaintiff first attended upon his general practitioner, Dr Francis, on 10 April 2015, complaining of lower backache for a few days. The plaintiff stated he was unable to sit or stand for a long time and he was unable to lift heavy things.[17] Dr Francis noted that the plaintiff had mild lower lumber tenderness, and advised the plaintiff to exercise by walking and swimming.
[17]PCB 78
25On 13 September 2016, the plaintiff attended on Dr Francis. The plaintiff was complaining of lower backache for the last three years. On examination, Dr Francis noted the plaintiff’s lower lumber disc tenderness. He referred the plaintiff to Dr Karlov.[18]
[18]PCB 80
26On 15 September 2016, the plaintiff attended upon Dr Karlov and was referred for an MRI examination. I have previously set out the findings of this MRI examination.
27The plaintiff then re-attended at Dr Francis’ clinic on 20 October 2016. Dr Francis noted there was a discussion about the MRI scan findings and found the plaintiff had lower backache, with radiating pain into both legs, which affected his daily activities. Dr Francis noted that the mild lower disc tenderness was still present. He prescribed analgesia and daily exercise.[19]
[19]PCB 80
28In the calendar year of 2016, the plaintiff attended his general practitioner on two occasions, and Dr Karlov on one occasion. Throughout that year, he continued to perform his normal duties at work.
29The plaintiff attended Dr Francis again on 7 June 2017. The plaintiff was complaining of recurrent lower backache. Dr Francis again examined the plaintiff and noted mild lower-lumbar disc degeneration and prescribed analgesia and daily exercise.[20]
[20]PCB 82
30The plaintiff attended upon Dr Francis on 14 July 2017 complaining of recurrent lower backache.[21]
[21]PCB 83
31On 18 July 2017, the plaintiff attended again on Dr Francis. On this occasion, the plaintiff was complaining of recurrent lower backache, which was worse recently. Pain was radiating to both sides of his legs. Dr Francis noted, in the examination, there was mild lower lumbar disc tenderness. Again, the advice was for analgesia and daily exercise, including walking and swimming.[22]
[22]PCB 83
32In the calendar year of 2017, the plaintiff attended upon his general practitioner on three separate occasions, with complaints of backache. The plaintiff continued to perform his normal duties throughout 2017.
33From 4 September 2018, the plaintiff attended upon Dr Francis, complaining of recurrent lower backache radiating to both sides. Dr Francis found, on examination, that it was mild lower lumbar disc tenderness. He prescribed analgesia and daily exercise for the plaintiff.[23] In the calendar year of 2018, this visit was the only visit by the plaintiff to his general practitioner for that year. Throughout that year, the plaintiff continued to perform his normal duties at work.
[23]PCB 85
34On 7 March 2019, the plaintiff attended upon Dr Francis, complaining of lower thoracic and backache for the last few years, which had become worse recently. The pain was radiating to both legs. Analgesia was not dealing with his pain levels. The general practitioner noted, on examination, the plaintiff’s lower lumber disc tenderness, and an MRI scan showed L4-5 posterior annular fissuring (18 September 2016). Dr Francis prescribed analgesia, together with daily exercise of walking and swimming.[24]
[24]PCB 86
35Dr Francis then referred the plaintiff to Dr Karlov.
36As previously noted in these reasons, Dr Karlov prepared a letter of capacity dated 30 April 2019, stating that the plaintiff was only capable of working two days a week. On the basis of that certificate, the plaintiff continued to work his normal duties two days a week, ten hours per day.
37In September 2019, the plaintiff was referred to Pamela Teoh, physiotherapist. Ms Teoh administered treatment of soft-tissue mobilisation, passive thoracic lumbar intervertebral mobilisation and dry needling. Her report to Dr Francis is dated 24 September 2019.[25]
[25]PCB 57
38In October 2020, the plaintiff was referred to chiropractor, Dr Janet Georgis. This referral to the chiropractor is after the plaintiff had ceased work with Dairy Country. Dr Georgis prepared a report dated 1 December 2020, setting out her treatment as follows:
“Treatment has involved a combination of light manual adjusting, Soft tissue therapy, Laser,Dry Needling,Flexion Distraction, Stretches and Home exercises. According to the patient there has been a 50% improvement in reduction in pain & stiffness in the lower back, Again thank-you for the referral of [the plaintiff] and please don't hesitate to contact myself if you require further information.”[26]
(sic)
[26]PCB 55
39The plaintiff changed his general practitioner to Dr Atheer Hmood at the Barry Road Medical Centre on 14 January 2021.[27] On that occasion, the plaintiff was complaining of back pain. Dr Hmood has diagnosed the plaintiff with lower back pain. Dr Hmood stated in his report as follows:
“… His imaging that was arranged by his previous doctor shows minor intervertebral disc desiccation with posterior annular fissuring at L4/L5.”[28]
[27]PCB 48
[28]PCB 49
40Dr Hmood stated that he was not the general practitioner for the plaintiff at the time of the alleged back injury, which the plaintiff told him was in 2016. Dr Hmood was not prepared to comment on a prognosis for the plaintiff, as he would require further investigations and a specialist input to be able to give a proper prognosis.[29] In his report, Dr Hmood noted the plaintiff had told him he was working three to four days, a total of twenty-five to thirty-five hours per week.[30]
[29]PCB 49
[30]PCB 50
41The plaintiff gave evidence that he had ceased treatment with Dr Georgis, the chiropractor. He stated that he is now being treated at Wellbeing Chiropractic.[31] He also gave evidence that he had changed his general practitioner to a Dr Issa. There are no reports from the now treating chiropractor, nor Dr Issa, the general practitioner. The plaintiff, in his evidence, stated that Dr Issa had referred him back to Dr Karlov and had scheduled an MRI examination. It is unfortunate and unsatisfactory that there is no report from the current general practitioner, Dr Issa, nor the current treating chiropractor.
[31]T51-52
42The plaintiff’s other treatment is limited to ingestion of Nurofen once or twice a week.
Medical opinions
The Plaintiff’s doctors
Dr Atheer Hmood, general practitioner
43Dr Hmood prepared a report dated 11 July 2022 for the purposes of this application. In his report, Dr Hmood stated that he had first seen the plaintiff on 14 January 2021. That visit was in relation to back pain complaint by the plaintiff. Dr Hmood noted, in his report, that he continued to see the plaintiff after the first visit for back complaints on 14 January 2021, but stated it was usually for other medical issues.
44Dr Hmood’s diagnosis was that the plaintiff had lower back pain. He noted the findings of the MRI scan performed in September 2016.
45Dr Hmood was asked to comment on the likelihood of further deterioration of the plaintiff’s back injury and he responded in the following way:
“… [The plaintiff] has stated he feels his conditions has deteriorated over the last few years. I am unable to comment on this due to the brief time that I have known him. Further input from specialist and further imaging may help to see if the injury has changed over the course of the past few years.”[32]
(sic)
[32]PCB 50
46It is unclear when the plaintiff last attended upon Dr Hmood.
47The plaintiff gave evidence that he now attends Dr Issa as his general practitioner. There is no report from Dr Issa.
48There is also no report from the initial general practitioner at the time the plaintiff attended Dr Francis. A report from Dr Francis over the period of treatment, and up to and subsequent to the plaintiff ceasing work, would have been of some assistance to the Court.
Dr V Karlov, consultant physician
49Dr Karlov has prepared a report dated 15 September 2016 in response to his referral from general practitioner, Dr Francis. In that letter, Dr Karlov diagnosed the plaintiff as suffering from the following:
“Occasionally the pain goes down the right leg but usually is confined to the back.
His SLR sign is negative but he is tender over the lower back.
It appears that he has a mainly non neuro compressive annulus type of disc lesion in his lumbar spine and I have ordered an MRI to clarify.”[33]
[33]PCB 58
50There is no later report from Dr Karlov commenting on the results on the MRI scan which was performed on 18 September 2016 or later treatment by him.
51The only other “report” from Dr Karlov is dated 30 April 2019 and is a certificate-of-capacity-type report.[34]
[34] PCB 56
52The plaintiff also tendered reports of Dr Georgis, chiropractor, and the defendant tendered the report of Ms Teoh, physiotherapist. These reports are considerably dated and the treatment for the plaintiff had ceased at or about the time of those reports.
Mr Thomas Kossmann, orthopaedic surgeon
53The plaintiff was examined by Mr Kossmann for the purposes of this litigation. Mr Kossmann prepared a medico-legal report dated 14 February 2023. Mr Kossmann’s diagnosis was that the plaintiff was suffering from:
“… minor intervertebral disc desiccation with posterior annular fissuring at the L4/5 level. … .”[35]
[35]PCB 36
54Under the heading “Prognosis”, Mr Kossmann stated as follows:
“… [The plaintiff’s] prognosis regarding his lumbar spine is guarded. He will require further treatment with pain medication and anti-inflammatories. He may also benefit from physiotherapy and hydrotherapy; however, this has to be monitored very carefully to avoid any aggravation. … [The plaintiff] may develop further degenerative changes in his lumbar spine, for which he may require further treatment. The chance of him undergoing surgery to his lumbar spine is, in my opinion, small.”[36]
[36]PCB 36
55On the issue of work capacity, Mr Kossmann stated as follows:
“… [The plaintiff] works as a barber on a self-employed contractor basis. He can choose how many hours and how many days per week he wants to work. Since … [the plaintiff] choose[s] the amount of work he is doing, he should be able to continue to work as a barber. However, I recommend that he should be cautious to walk long distances, walk on uneven ground, walk upstairs and downstairs, walk on inclines and declines, climb up and down ladders, kneel or squat, or carry heavy items weighing more than 2-5kg. … [The plaintiff] is at risk that at some stage in his life he may become incapacitated as a result of his back injury; however, I cannot anticipate a timeframe if and when this may occur.”[37]
[37]PCB 36
56Mr Kossmann was not shown, nor asked, to comment upon the vocational assessment report prepared by Recovre dated 7 December 2022. The limitations set out in his report do not disqualify the plaintiff from being capable of undertaking the occupations referred to in that report on a full-time basis.
Dr Robyn Horsley, occupational physician
57Dr Horsley examined the plaintiff on 5 April 2023 for the purposes of this application. Dr Horsley prepared a report dated 5 April 2023. Dr Horsley noted that the plaintiff exhibited mild fear avoidance behaviour.[38]
[38]PCB 44
58Dr Horsley noted that the thoracic discomfort complained of by the plaintiff had settled. She noted that his lower back pain has persisted. She stated:
“… [The plaintiff] has had very little management, other than chiropractic on a weekly basis since 2020. He presents with ongoing chronic mechanical back pain with no clinical radicular features.”[39]
[39]PCB 44
59In respect of prognosis, Dr Horsley stated as follows:
“Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. … [The plaintiff], in the first instance, would benefit from an up to date MRI of the lumbar spine. It is likely that the L4/5 disc disruption has progressed to a disc prolapse, on the basis of the history of persistent right leg pain with a positive right slump test.
… [The plaintiff] would benefit from involvement in a functional restoration program to provide education about the nature of his back injury, and to improve his functional tolerances further.”[40]
[40]PCB 45
60Dr Horsley noted the plaintiff was working twenty hours per week as a barber. Dr Horsley’s opinion was that the plaintiff should have an up-to-date MRI scan and referral to a pain specialist for assessment to increase his functional restoration program. Dr Horsley’s opinion was that the plaintiff will continue to suffer ongoing back pain, but better management of his back would decrease the level of discomfort for him.
61Dr Horsley was not given the advantage of seeing the Recovre report dated 7 December 2022. I was informed, during the course of the hearing, that the Recovre report had been served on the plaintiff’s solicitors in December 2022. An addendum report from Dr Horsley commenting upon the proposed jobs in the Recovre report would have been of great assistance to this court in determining the loss of earning capacity application for serious injury. This has not happened.
The Defendant’s medical practitioners
Mr Barclay Reid, general surgeon
62The plaintiff was examined by Mr Barclay Reid on 17 December 2021. A report dated 30 December 2021 was prepared by Dr Reid for the purposes of this application.
63Mr Reid’s diagnosis was that the plaintiff suffered from a lower back injury with minor disc injury of L4-5, with no neural compression or canal stenosis. He noted there was no radiculopathy.[41]
[41]DCB 12
64Mr Reid’s opinion was that the plaintiff will continue to have lower back pain for another year or two. He was of the opinion the current injury would probably heal in around two years from now. He noted that there should be restrictions on the plaintiff’s duties of no repeated bending or lifting more than 5 kilograms and no firm pulling or pushing. At the time Mr Reid saw the plaintiff, he was taking no medication and was having physiotherapy and using Voltaren cream.
Dr Umberto Boffa, occupational and environmental physician
65Dr Boffa has prepared three reports, dated 11 March 2021, 20 July 2022 and 7 December 2022, for the purposes of this litigation. He examined the plaintiff on behalf of the defendant. Dr Boffa, on his examination of the plaintiff, was told by the plaintiff that he was barbering between twenty-five and forty hours per week.[42]
[42]DCB 20
66In his July report, Dr Boffa stated as follows:
“3. The … [plaintiff] has chronic discogenic low back pain without radiculopathy.
4. The … [plaintiff] is capable of fulltime duties that avoid prolonged sitting and driving and repetitive bending twisting pushing pulling lifting and carrying more than 5kg.
5. …
6.The … [plaintiff] can work fulltime as a hairdresser with pain, taking breaks as he can and resting in the evening after work.
7.Without successful epidural injection or decompressive surgery, the … [plaintiff] has a poor prognosis for recovery or a full return to unrestricted duties in the foreseeable future.”[43]
[43]DCB 21
67Dr Boffa was then sent a copy of the Recovre report, which is dated 7 September 2022, and asked to comment on the appropriate employment. In his report, he stated as follows:
“The … [plaintiff] is fit for the hairdresser machine operator process worker packer and assembly roles if he can sit and stand as required and avoid repetitive bending twisting pushing pulling lifting and carrying more than 5kg, but not for the forklift role because of unsuitable prolonged sitting and repetitive boarding and alighting from a vehicle.”[44]
(sic)
[44]DCB 22
68Dr Boffa is the only occupational-related physician who has had the advantage of seeing the Recovre report and commenting fully upon the recommendations within that report. I accept his recommendation as being a fair and proper assessment of the plaintiff’s capability to engage in employment with his ongoing back complaints.
The credit of the Plaintiff
69The defendant engaged investigators to conduct surveillance of the plaintiff on a total of sixteen days. The total of the surveillance was for a period of forty-eight hours. In the course of the hearing, three sets of video surveillance film were shown to the plaintiff and the Court. The total of the video surveillance film was thirty-five minutes-and-forty-three seconds. The surveillance film showed the plaintiff acting, and being able to engage, in a normal way in his attendance at a church event and also watching his children play in a park. In the third video surveillance film, the plaintiff attended at his place of work on one occasion with a bucket, and what appeared to be, a mop. The plaintiff conceded he would, and could, clean up at the barbershop. The final day of the video surveillance showed the plaintiff attending at his daughter’s school to pick her up and subsequently at a shopping centre.
70None of the video surveillance film showed the plaintiff being extremely physically active or lifting anything of substantial weight. The video surveillance film was consistent with a person who was able to go about their normal life in a normal way, getting in and out of vehicles, walking around and watching his children.
71The plaintiff, in the course of his evidence, on a number of occasions stated he felt “the pain inside him”. This complaint is consistent with what he reported to his general practitioner and Dr Karlov way back in 2016 and 2019.
72The surveillance film does not show the plaintiff to be highly active and/or result in an appropriate attack on the credit of the plaintiff.[45] The impact of the surveillance film really is to show the ordinary day-to-day activities of the plaintiff, which are normal.
[45]Church v Echuca Regional Health (2008) 20 VR 566
73The main issue that arose from the testing of the plaintiff’s credit was only revealed in cross-examination, that he was planning to go back to Dr Karlov and to have an MRI scan in the future.[46] In the witness box, was the first time this appointment with Dr Karlov had been mentioned, despite the fact that the plaintiff had an opportunity to swear his final affidavit on 30 March 2023. The relevance of this development is whether or not the plaintiff’s current condition could not be improved if he had further rehabilitative treatment, for example a pain management course. Both Dr Horsley and Dr Hmood recommended that treatment. At the time of the hearing of this application, such further treatment had not taken place.
[46] T73
74There was a large amount of cross-examination of the plaintiff about his bank statements. There were cash entry deposits into the plaintiff’s account, which the plaintiff said were transfers of cash from his wife into his account. There was no evidence to the contrary. The plaintiff’s wife is currently in receipt of social security payments in respect of caring for the children. The plaintiff’s evidence was that she received $1,200 a fortnight from Centrelink. He said that money was the source of his cash payments into his account.
75Mr McKenzie challenged the plaintiff on the fact that he had managed to pay $30,000 off the mortgage balance for his home in the period between the first and second affidavits. It was put that this was payment at a rate of $3,000 per month. The plaintiff’s answer was that he had made a withdrawal from his superannuation to make such a payment to reduce the mortgage balance. There was no documentation to verify that evidence.
76The deposits of cash into the plaintiff’s account and the substantial reduction in his outstanding mortgage in a short period of time, is difficult to reconcile with his financial position of receiving $500 gross per week from barber activities and his wife receiving $1,200 per fortnight from social security. Nevertheless, I do not find that the plaintiff was deliberately misleading the Court about his financial position, or that he was hiding another form of income or employment in the past.
77The plaintiff required the assistance of an interpreter, both at the time of swearing his affidavits and also in his examinations with doctors. He also had the assistance of an interpreter in this hearing. It is always difficult for a court to fully assess the credibility of a witness who receives the questions and delivers his answers through the agency of an interpreter. On some occasions, it was clear to me that the plaintiff fully understood the question when asked in English. The plaintiff has been in Australia for ten years and, no doubt, has picked up at least some rudimentary use of English in the spoken form. I do not find the plaintiff was seeking to “hide” behind the use of an interpreter in the Court proceeding. It is fully understandable that a person with limited English would prudently seek the assistance of an interpreter in the formal setting of court and giving evidence.
Consequences of the back injury to the Plaintiff
78The plaintiff relied upon two affidavits sworn by himself, dated 18 May 2022 and 30 March 2023. The plaintiff also relied upon an affidavit from his wife, Brinda Kareem, sworn 17 May 2023 and his employer, Aamir Jajo, affirmed 13 June 2023. Each of these affidavits depose as to the consequences of the back injury to the plaintiff.
Pain
79I accept that the plaintiff has suffered pain in his back over a long period of time. His first attendance on his general practitioner was in 2015, complaining of pain in his lower back due to the workload at Dairy Country. The plaintiff’s complaint of pain is that it is continually with him and it interferes with his sleep. The plaintiff also complains that the pain limits the amount of employment he can engage in.
Medication
80I note that the plaintiff has very limited medication to ameliorate the pain symptoms. His evidence reveals that he has Nurofen on one to two occasions per week. I accept that the plaintiff is a person who has fear, or reservation, about engaging in the use of medication on a regular basis.
Work
81The plaintiff has taken the change of employment from heavy manual labour to being a barber for at least twenty hours a week. It is clear that, on one occasion at least, he did work forty hours per week. He has provided medical practitioners with various work hours, ranging from twenty to twenty-five hours per week through to thirty-five to forty hours per week. I do not accept that the plaintiff’s pain is to such a level that he can only work twenty hours per week.
82The fact that the plaintiff has continually experienced pain in his back as a result of his employment for almost eight years, and that it is likely to continue into the future, is a very considerable consequence. The fact that the plaintiff takes minimal medication to ameliorate that pain level does not reduce the effect of the consequence upon him. I accept that it interferes with his sleep and also interferes with his ability to fully engage with his three children. I find that the interruptions and interference with the plaintiff’s sleep, and his ability to fully play with his children, is a very considerable consequence.
Household duties
83The plaintiff continues to engage in the activities of daily living in a limited way. He does not do all of the household tasks that he had previously been able to perform. I do not accept that those consequences amount to the “very considerable” level as is required under the Act.
Ongoing treatment
84The plaintiff, on his evidence, states that he is continuing to receive chiropractic treatment. There is no report from the chiropractor who is currently treating the plaintiff. Dr Horsley, in her report, stated that the chiropractic treatment has reached a plateau and was not recommending it to be continued. The ongoing treatment for the plaintiff is, at this stage, unknown. The only evidence in this Court hearing about future treatment was the prospect of a referral to Dr Karlov and a further MRI scan. That evidence does not amount to a very considerable consequence in respect of ongoing or further medical treatment.
85I accept the evidence of the plaintiff’s wife in relation to her observations of the plaintiff suffering pain and that it interferes with his sleep. The plaintiff’s wife was not required for cross-examination.
Conclusion
86I accept that the plaintiff’s consequences in relation to the pain in his back and the effect it has on his ability to sleep, and generally enjoy his life, are very considerable consequences. I find the consequences of the back injury to the plaintiff, when considered in the range of possible consequences arising from that back injury are “more than significant and marked” and are best described as being “at least very considerable”. The plaintiff’s application for leave to commence proceedings for damages for pain and suffering arising from, and as a result of, his injury to his back in the course of his employment with Dairy Country is granted.
Loss of earning capacity
87The plaintiff seeks a certificate to be granted leave to bring proceedings for loss of earning capacity damages as a result of his back injury during the course of his employment. The plaintiff is required to establish, on the balance of probabilities, that he has a loss of earning capacity of 40 per cent or more. The loss of earning capacity is to be permanent.
88The calculation for the 40 per cent loss of earning capacity is to be measured by comparing what the plaintiff’s gross income from personal exertion was for the three years prior to the injury, compared with the three years after injury. The gross income is to be calculated by the plaintiff’s income from what he was earning from suitable employment, or what he was capable of earning in suitable employment. The “withoutout injury” gross earnings of the plaintiff for the three years full-time work were:
(a) 2016 ꟷ $69,762;
(b) 2017 ꟷ $72,084;
(c) 2018 ꟷ $81,082.
89I note, for completeness, for the year of 2019 ($70,881), the plaintiff only worked two days a week from April to June of 2019.
90The plaintiff’s affidavit evidence was that, in order to earn his income, he was working sixty-six hours per week.[47] In his evidence, under cross-examination, he clarified that his total hours per week were in fact fifty to fifty-five hours, including overtime. The plaintiff said that the Claim Form dated 11 February 2021[48] had incorrectly stated that the fifty to fifty-five hours was overtime.
[47]PCB 11
[48]PCB 64
91The discrepancy between the sixty-six hours’ work per week as deposed to in the plaintiff’s first affidavit and his evidence concerning the error in the Claim Form, was not explained by the plaintiff. I accept that the plaintiff regularly did overtime to achieve the income set out in the above figures. I am not satisfied the plaintiff worked the amount of overtime prior to injury as he has stated in his affidavit.
92The average annual gross earnings for the years 2016, 2017 and 2018, is $74,309. The average gross weekly earnings are $1,429. In order to calculate the plaintiff’s earning capacity from personal exertion which most fairly reflects the capacity prior to his injury, an allowance needs to be made above the average gross annual earnings of $74,309. The figures relied upon by the plaintiff include the gross earnings from overtime work.
93Doing the best I can on the imprecise evidence before the Court, a fair figure for “without injury” earnings is the proximate midpoint between the three-year average of $74,309 and the last year figure of $81,082 (for the year ending June 2018). The reason for this is the fluctuation between the availability of overtime work and the plaintiff’s capacity, or availability, to take up the offer of overtime work, given his family commitments. The “without injury” earnings figure is $77,700 gross per annum. The average gross weekly earnings is $1,494, and 60 per cent of the average gross weekly earnings is $897.
94The plaintiff’s gross annual earnings “after injury” for the three years are:
(a) 2020 ꟷ $26,751;
(b) 2021 ꟷ $8,390;
(c) 2022 ꟷ $18,975.[49]
[49]PCB 60
95The average gross annual earnings for that three-year period has been $18,038. The average gross weekly earnings is $347. The evidence from the plaintiff is that he works casually as a barber for an average of twenty hours per week for the contract price of $25 per hour. That is gross weekly earnings of $500. The plaintiff states he could work more some weeks, but could not work full time. The plaintiff relied upon a document prepared by his employer’s accountant for the period of 20 February 2022 until 26 February 2023 to establish his gross annual earning capacity at the present time. The document shows a total of $25,735 gross annual earnings. The work is as a casual barber. The gross average weekly earnings as a barber is $495.
96The test to be applied in assessing the plaintiff’s “with injury” earnings is the greater of either what the plaintiff is earning ($25,735)[50] or what the plaintiff is capable of earning in suitable employment.
[50]PCB 22
97The plaintiff was assessed by Janette Ash, occupational therapist, and Robyn Willett, vocational consultant, from Recovre. A report dated 7 December 2022 was part of the evidence in this case. The plaintiff reported that he worked thirty to forty hours per week as a barber/hairdresser on a casual basis.[51] The assessment by Ms Ash and Ms Willett was that the plaintiff was capable of working full time in the following occupations:
(a) hairdresser ꟷ $994 gross per week;[52]
(b) forklift driver ꟷ $1,405 gross per week;[53]
(c) machine operator/pasteuriser ꟷ $1,026 gross per week;[54]
(d) packer ꟷ $1,001 gross per week;[55]
(e) product assemblerꟷ $1,080 gross per week.[56]
[51]DCB 25
[52]DCB 30
[53]DCB 41
[54]DCB 36
[55]DCB 46
[56]DCB 32
98Dr Boffa, occupational physician, examined the plaintiff for the defendant on 11 March 2021. Dr Boffa prepared three reports, dated 11 March 2021, 20 July 2022 and 7 December 2022. Dr Boffa was told by the plaintiff he worked twenty-five to forty hours per week as a casual barber.[57] Dr Boffa opined the plaintiff could work as a hairdresser/barber, machine operator and process worker, and packer and assembly roles, with restrictions of sitting and standing as required and no lifting of weights greater than 5 kilograms.[58] Dr Boffa ruled out the role as a forklift driver because of the unsuitable prolonged sitting and repetitive boarding and alighting from the vehicle.[59]
[57]DCB 20
[58]DCB 22
[59]DCB 22
99The plaintiff has not undertaken any pain management course. The ongoing medical treatment to date is not significant and his condition is of lower back pain without radiculopathy. The plaintiff has been referred to Dr Karlov, and an MRI scan was booked for 22 June 2023. The fact of a referral to Dr Karlov and the booking of the MRI examination are not part of the evidence that can form part of my decision in this case.
100I find that the plaintiff is capable of performing the roles of a hairdresser/barber, machine operator and product assembler on a full-time basis; that is, thirty-eight hours a week. Each of these jobs will produce an annual gross earnings greater than 60 per cent of $77,700. Indeed, these jobs would result in an income greater than 60 per cent of $81,082; that is, the last and highest income earned by the plaintiff prior to him ceasing work at Dairy Country’s premises.
101Dr Boffa’s opinion is the plaintiff would not be able to perform the role of a forklift driver. I note the plaintiff’s evidence was that he held a current forklift licence and he had asked Dairy Country to put him on as a forklift driver prior to being made redundant in May 2020.[60] In other words, he thought he could do the work as a forklift driver at, and around, the time his employment ceased with Dairy Country. The video surveillance showed the plaintiff getting in and out of his Corolla vehicle and the family SUV without any apparent difficulty. For the purposes of this application, I do not have to make a finding of whether or not the plaintiff is capable of working as a forklift driver.
[60]T76-T78
102The occupations I have found to be suitable for the plaintiff result in a gross annual income from personal exertion that is greater than 60 per cent of his “without injury” earnings.
103The application for leave to bring common law proceedings to recover damages for loss of earning capacity as a result of the injury to his back in the course of his employment with Dairy Country is dismissed.
104I will hear the parties on costs.
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