Silk v TAC

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-05008

MARTIN SILK	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 8 November 2011
DATE OF JUDGMENT:	14 December 2011
CASE MAY BE CITED AS:	Silk v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 1456

REASONS FOR JUDGMENT

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SUBJECT – TRANSPORT ACCIDENT – damages.
CATCHWORDS – Serious injury – impairment to the spine.
LEGILSATION CITED – Transport Accident Act 1986, s.93.
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129;
Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon [2010] VSCA
69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Tatiara Meat
Company Pty Ltd v Kelso [2007] VSCA 267

JUDGMENT – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis SC with	Arnold Thomas & Becker
Mr J Valiotis
For the Defendant	Mr D R Myers with	Solicitor for the Transport
Mr P J Gates	Accident Commission
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 12 February 2005 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”

3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the spine.
4          The inquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5          The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7          An application brought in relation to sub-paragraph (c), claiming a severe long term mental disturbance or disorder, was withdrawn in final submissions.
8          The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. He also relied on an affidavit sworn by his partner, Eleesa Ebbels (“Eleesa”), on 4 July 2011. 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
9          The plaintiff is presently aged thirty three, having been born in December 1978. He now lives with Eleesa and their child, aged eighteen months, and his stepson, aged two. The plaintiff has two other children from a separate relationship.
10        The plaintiff attended school to Year 9, then started an apprenticeship as a dry cleaner. After about a year and a half, as he was suffering from asthma as a result of his exposure to chemicals, he ceased his apprenticeship.
11        Thereafter, the plaintiff worked in a number of jobs, initially in factories but later mostly driving. He holds an MC licence which entitles him to drive vehicles up to and including B-doubles.
12        In re examination, the plaintiff confirmed he worked for a year in 2002 as a slaughterman doing very heavy work. His resume detailing this work at Perfect Pork was tendered.
Back Condition before the Accident
13        The plaintiff deposed in mid 2010 that over the years he had occasional back pains but never had any lengthy periods off work or long term problems. He had generally been in employment and the maximum time he had been out of work had been approximately two months. He had not previously had any neck problems.
14        The plaintiff was cross examined at length about back problems before the said date and also the histories given by him to various medical examiners that he had no problems with his back during that time.
15        The plaintiff was cross examined about the clinical records of his attendance at Harding Street Medical Centre (“the Medical Centre”) prior to the said date (“the history”).
16        The plaintiff was first seen at the Medical Centre on 28 July 1984. It was then noted there was a possible ligament strain of the back and there was management involving Naprosyn. The plaintiff could not remember being given medication for his back at this time when he was sixteen. He was playing football so heat treatment, pain medication and exercises for his knee were just a normal thing.
17        The plaintiff did not know how to explain an entry on 27 April 2001 which set out “Left hip, back and leg pain for two to three weeks – unable to walk”. He could not remember that. He could recall not being able to walk with his knee injury but not because of his back or other injury. He knew he had some time off work because of his knee. He could not recall having a CT scan of his back and could not remember being told anything about a disc protrusion.
18        The plaintiff could remember being referred to physiotherapy for sporting injuries. He could recall having Panadeine Forte in the past but could not recall if it was for a back injury. He knew he had muscle spasms in the upper buttock but did not recall that problem being related to a back injury. The only time the plaintiff could recall being on crutches was when he injured his knee.
19        When asked about his physiotherapist Mr Salerno’s notes of attendances on 14 and 21 April 2004 mentioning “lumbar spine”, the plaintiff could recall seeing him before the accident but thought it was earlier than April 2004. He did not believe he saw Mr Salerno in relation to a significant injury. The plaintiff’s back might have been sore, but he did not remember an injury.
20        The plaintiff did not recall complaining of increased back pain when he saw Mr Salerno on 30 August 2004. Having been reminded of these various attendances, the plaintiff said he did not remember them, but obviously he had attended and he had now been made aware that he had had back problems, including a prolapse.
21        The plaintiff was cross-examined about what he had told examining doctors of any back problems prior to the accident.
22        When he saw Mr Shannon in February 2008, the plaintiff agreed he denied any history of significant back pain and denied having treatment in the past for his back. The plaintiff explained that at that time he believed that to be the truth and he had forgotten the history.
23        The plaintiff was shown his TAC claim form, completed by his then fiancé on 26 April 2005, in which he denied having any lower back condition or pain before the said date. In that form, the plaintiff admitted to some neck and knee pain in relation to which he had physiotherapy. He remembered having some tablets for migraine but completely forgot he ever suffered any back pain.
24        The plaintiff was alerted to the history when it was put to him by a doctor whose name he could not remember, in late 2009/early 2010. When the history was put to him, the plaintiff said he did not recall it and later spoke to his general practitioner about it.
25        Whilst Mr Kudelka made no reference to the history in his report following examination in July this year, the plaintiff would have told him about the history if he had been asked.
26        It was put to the plaintiff that on re examination by Dr Weissman in July 2010 and May 2011, he confirmed his original history to Dr Weissman of no back pain before the said date. If Dr Weismann had read the history out to him, the plaintiff would have confirmed it but told him he could not remember it.
27        The plaintiff gave a similar explanation as to his failure to tell Mr Kelman of the history on re examination in June 2010 and May 2011. The plaintiff explained he did not look at any back injury before the said date as being a major one, obviously, because he did not recall it happening.
28        The plaintiff does not bring up the history to anyone unless a question is asked. He agreed it was important for a doctor to know his history.
29        This year, the plaintiff told Dr Gassin of the history. The plaintiff confirmed it was not a serious injury because he did not have any time off work and it was not significant enough to remember.
30        The plaintiff did not discuss with his solicitors medical reports obtained by them and he could not remember reading such reports.
31        When Mr Brownbill put the history to the plaintiff, the plaintiff said that he had no memory at all of the pain and that he did not have any pain that affected what he did before the said date.
The Accident
32        On the said date in Werribee, the plaintiff was a front seat passenger in a car struck on the passenger side by another. (“the accident”).
33        After the accident, the plaintiff felt no immediate pain but within an hour he developed back pain and went to the Werribee Mercy Hospital (“the Hospital”) where he was given medication and was discharged. A couple of days later, the plaintiff was also suffering from leg pain and returned to the Hospital where he was again examined and discharged.
34        In cross examination, the plaintiff confirmed he did not feel back pain until later that night and he was able to drive his car home. His main concern at that time was his daughter who was travelling with him in the car.
Treatment
35        The plaintiff first attended his general practitioner Dr MacGill on 24 February 2005, having seen Dr Teng in Wyndham Vale two days earlier.
36        In cross examination, the plaintiff agreed that after the initial visit to Dr Teng’s clinic on 22 February 2005, the plaintiff did not attend that clinic again until June 2005. There was a further attendance on 23 June when the results of the CT scan were reviewed.
37        The next attendance was on 8 September 2005 when it was noted that the plaintiff had been having lower back pain for some time but the last few days it had been worse.
38        The plaintiff saw Dr MacGill again on 8 March 2005. At that stage, he was trying to get back to full time work on normal duties.
39        Dr MacGill treated the plaintiff with medication and referred him for physiotherapy and hydrotherapy. She also referred him to Mr Malham who, in turn, referred the plaintiff to Dr Gassin at the Metropolitan Spinal Clinic.
40        Dr Gassin treated the plaintiff with injections and medial branch blocks which provided only very temporary relief.
41        The plaintiff was given the option of a spinal fusion insertion, a nerve stimulator or a disc replacement. As his father had a very bad result from neck surgery, the plaintiff was reluctant to undergo those options as at the time he swore his first affidavit in June 2010.
Level of Activity Following the Accident
42        The plaintiff was cross examined about a number of entries in his physiotherapist’s notes during 2005.
43        The plaintiff agreed he moved house in the middle of 2005. He helped with the moving and had assistance from family members.
44        The note on 5 July 2005 setting out the plaintiff was walking twenty kilometres a day at work was probably right because he was trying to get back to work. However this only happened on one day. On that occasion, the plaintiff was walking with two labourers behind him with their blowers and he was sweeping the footpath.
45        The plaintiff agreed he continued riding his motorbike after the accident but stopped riding before he finished work at Spotless. He agreed with the clinical note of 22 July 2005 that his back was sore after motorbike riding. His bike was sold in 2008 when his ex-fiancée took it.
46        The plaintiff agreed when he dug up his garden in October 2005 that involved probably planting three or four trees when he moved into his new house.
47        There was not a chance the plaintiff could perform this level of activity now – digging in the garden, riding his motorbike, helping with moving house, walking twenty kilometres a day.
48        The plaintiff explained his pain had gradually worsened and his level of inactivity increased. He did not stop work or cease activities straight away because he compared himself to his father who was much worse.
49        In cross examination, the plaintiff could recall a fall in the shower which was recorded by his physiotherapist in March 2005. The plaintiff could remember falling on at least two other occasions and that his back was possibly worse after those falls. The plaintiff denied, as recorded by his physiotherapist, that he had fallen out of a hammock in April 2005.
50        In re examination the plaintiff explained he needed to use a walking stick as he had lost confidence following the falls.
Return to Work
51        At the time of the accident, the plaintiff was working for Spotless Services Limited driving a street sweeper earning on average $800 gross per week.
52        The plaintiff deposed that after the accident he had about a week off work and then kept working on light duties. He was motivated by his father’s injury to continue working.
53        In cross examination, the plaintiff denied he returned to his normal duties. He returned to light duties on a doctor’s certificate, just driving the truck and filling it with petrol and water. He was not required to carry a back pack blower. The plaintiff could not recall which doctor wrote out monthly certificates.
54        The use of the blower at work referred to in the plaintiff’s physiotherapist’s note of 17 October 2005 referred to a mechanical blower that was attached to the truck, not the backpack blower the plaintiff used before the accident.
55        The plaintiff deposed he ended up leaving Spotless because he could get easier work with Advantage Tyres (“Advantage”). He felt that that it was not fair to Spotless for him to continue on light duties as they treated him very well and had been very accommodating.
56        The plaintiff was cross examined about his duties as a street sweeper/driver at Spotless. He denied as a driver he was responsible for cleaning the exterior of the sweeper or the pit area where the vehicle was washed at the end of the day. He was a union delegate and when he got back to the yard he worked more in the office dealing with paperwork.
57        The plaintiff agreed that a street sweeper was required to drive for six to seven hours a day in the traffic in the city residential area and there might have been the requirement for the odd manual handling. Further, a street sweeper was required to rake and use a backpack and do shovelling.
58        After the accident, the plaintiff was asked every day whether he was able to do this type of work. There was a day when he tried but his condition was aggravated so he did not continue.
59        In cross examination, the plaintiff confirmed he went to Advantage because he felt he did not pull his weight at Spotless and also the job at Advantage paid more.
60        At the interview for the Advantage job, the plaintiff was told there was no lifting. The plaintiff denied having a medical examination before starting this job. He could not recall passing a medical for the job on 13 January 2006, notes of which indicated on examination the plaintiff could straight leg raise to eighty degrees and he was unable to touch his toes.
61        The plaintiff deposed that he found the job with Advantage was more difficult than expected and there was manual lifting involved which he did not expect.
62        In cross examination, the plaintiff initially said that the Advantage job actually involved manual handling on very rare occasions, wheeling out a tyre or dropping off paperwork in boxes.
63        The plaintiff deposed he understood there was a suggestion he aggravated his back lifting a heavy tyre at Advantage. That was wrong. Whilst at work one day, a tyre came free from the pallet, heading towards the plaintiff, and he had to jump out of the way, whilst at the same time pushing his left hand to prevent the tyre impacting his body (“the tyre incident”).
64        The plaintiff did aggravate his back injury at that time but his back had been giving him trouble up to then, and after a short time his condition returned to the level that it had been immediately prior to the tyre incident. The plaintiff could not recall having any time off thereafter.
65        In cross examination, the plaintiff denied he lifted a one hundred and ten kilogram tyre without assistance and hurt his back. He confirmed the account of the tyre incident set out in his affidavit.
66        The plaintiff’s general practitioner’s note of 8 June 2006 setting out the plaintiff had lifted the tyre was wrong. The plaintiff could not lift one hundred and ten kilograms.
67        If the plaintiff had jumped when the tyre fell as Mr Brownbill noted, the plaintiff would have jumped towards it to stop it falling but the tyre just fell away straight to the ground.
68        The plaintiff continued working at Advantage until 14 February 2007. In cross examination, he explained that he eventually left Advantage because they wanted him to start manually loading the tyres in and out of cages and it was getting too hard physically for him to do that work.
69        The plaintiff was cross examined about his general practitioner’s note of 9 February 2007 that the plaintiff stopped working on that date – “experienced bullying, mental, psychological, getting blamed for things.” The plaintiff said he did stop work “because of the accusing of stock going missing.”
70        The plaintiff then said he did not really think the accusations were part of the reason he stopped working at Advantage, but later said perhaps it could have been “subconsciously” a reason for leaving. He confirmed he left the job because of the manual work unloading the cages.
71        The plaintiff told his doctor he left Advantage to find easier work.
72        The plaintiff deposed that he then found work with Bunker Freight Lines (“Bunker”), which he understood would definitely have no lifting requirements.
73        The plaintiff passed the medical for the Bunker job and he told the employer what his health was like. When asked about any pre-existing medical condition on a job application form signed by him on 26 March 2007, the plaintiff ticked “Excellent.” The plaintiff said he should not have ticked excellent but he if he did, he did.
74        The plaintiff gave a similar answer to a question about previous workers compensation claims and whether he took any medications that may affect his ability to drive. He explained if he was taking any medication at that time it was not affecting his driving.
75        The plaintiff commenced work at Bunker on 4 April 2007 and worked there until 3 October 2007.

76        In cross examination, the plaintiff agreed that whilst working at Bunker he did not go to the doctor for months.
77        The plaintiff agreed it was possibly correct that there was not much in the way of chemist expenses until the end of 2007 when there was also a CT scan. Whilst he could not recall taking medication during that time, he probably “leaned more to taking it at that time,” whereas now he is taking a massive amount of medication.
78        The job at Bunker involved dropping off empty trailers to customers. It was full time work, driving an automatic truck.
79        The plaintiff deposed that he performed well at that job but there was a lot of getting in and out of trucks. That activity eventually caused his back problem to be aggravated and he had to leave in October 2007 to undergo a course of injections. Whilst undergoing this treatment, the plaintiff was still on Bunker’s books.
80        In re examination, the plaintiff confirmed the escalation in his pain later in 2007.
81        The plaintiff returned to work at Bunker in May 2008 and worked there for a further two months. He finally left that job because getting in and out of the truck and dropping off the trailers all day was getting too much.
82        In cross examination, the plaintiff agreed he left Bunker having told the freight organiser it was because he could not get in and out of the truck constantly and he was not put on interstate work as he had requested.
83        The plaintiff then went to Metropolitan Express where he worked as a driver, delivering steel products with a manual truck with its own crane to unload the products.
84        In the application form for this job in August 2008, the plaintiff did not provide an answer to the question whether there was any pre-existing condition which may impact on his duties.
85        The plaintiff explained that he did not disclose he had a pre existing back injury because at that stage he did not think his back condition would affect his ability to work. However, he agreed he now has a back injury which means he cannot do any work.
86        The plaintiff worked at Metropolitan Express from 7 August 2008 until 16 February 2010. When it was very busy, he had to climb off the truck probably ten times a day. It was easier work than at Bunker. The plaintiff agreed he was capable of doing that job without his injury affecting him. He had to do minimal lifting which hurt, but it was not causing a major problem and it was nothing he could not handle.
87        The plaintiff agreed that his work in 2009 involved some truck driving and tightening loads on the back of the truck and that he was happy at work.
88        When asked about his affidavit evidence that he left this job because he had to lift items and was not able to, the plaintiff explained that situation related to cable tie boxes which he was required to lift from about September 2009.
89        The plaintiff explained he left this job because of that lifting and also being the union delegate, he “did not want to be there when the threats that were coming to him towards management flared up and something happened.” He told the employer he quit because of the “structure of management and drivers coming to him and saying they were going to punch the hell out of the manger.”
90        In a resignation letter dated 16 February 2010, the plaintiff advised that 25 February was to be his last day of employment. He thanked the management for the experience in the job. He then detailed problems with a fellow employee, Gordon Jones, and the stress in relation thereto and the fact the plaintiff could not physically cope with that stress.
91        The plaintiff typed up the letter and handed it in early on the morning of 16 February at a meeting with the state supervisor.
92        In cross examination, it was suggested to the plaintiff that he left Metropolitan because there was an issue of some steel falling from his load. The plaintiff had no recollection of that incident or his employment being ceased because of it. He first became aware of this matter on the morning of the court hearing.
93        The plaintiff was asked about his general practitioner’s note in early 2010 that the plaintiff was unable to continue work due to an aggravation of lower back pain. The plaintiff explained he had stopped working because he could not pass the medical.
94        The plaintiff deposed that he left Metropolitan because he was offered a better job with Bunker.
95        The plaintiff went back to Bunker having been told whilst still at Metropolitan that there was interstate driving work available at Bunker.
96        The plaintiff was under the impression he did not need a medical for the Bunker job and that is why he left Metropolitan Express. However, he required a medical and he was examined on Bunker’s behalf by a doctor at Medibank Health Solutions in Laverton.
97        The plaintiff deposed that at that medical examination, he was told by the doctor that his lower spinal movements were restricted. He told the examining doctor of his medication regime which, at that time, included between six and eight Panadeine Forte per day, Tramadol 300mg per day, as well as Endep, Naprosyn and Nurofen Plus.
98        After this medical, one of the superiors told the freight manager at Bunker that the plaintiff was not to be employed because he failed the medical.
99        In mid 2010, the plaintiff returned to the same clinic for another medical as he was keen on sourcing some sort of employment. However, he again failed the medical.
100       About the middle of 2010 the plaintiff approached Rod Brennan at Scott’s Refrigerated Freight Lines seeking work. The plaintiff drove a vehicle as part of a road test but was not able to successfully complete the driving test as it was too painful on his back, having to manoeuvre the gears on a manual vehicle. He was not offered the job.
Work in the Future
101       The plaintiff wants and needs to work because of financial pressures. He deposed in mid 2010 he thought he would require retraining and financial assistance to get back to work as his driving options were very limited.
102       The plaintiff remains keen to try and find some employment that does not place a strain on his back. He has been driving vehicles for a long time and it is a job with which he is familiar.
103       The plaintiff deposed he can drive but he is restricted with the vehicles that he can drive and he has had difficulty getting medical clearance to drive because of his medication.
104       The plaintiff does not have the confidence to be able to apply for work because of what has happened with the last couple of attempts. He deposed he takes a lot of medication and this can have the effect of making him drowsy which is dangerous for a driver of any vehicle, let alone a truck driver.
105       The plaintiff understands that he will have his back problem for a long time. He just wants to receive some assistance with helping him to return to work that he is capable of doing and lessening his back pain.
106       In cross examination, the plaintiff agreed he thought he was still capable of doing interstate truck driving in February 2010, driving up to ten hours a day with fifteen minute breaks every three to four hours. He thought he was able to do the job and was going to try. If given the opportunity today he would try but he did not think he could do the job full time.
107       The plaintiff was cross examined about a number of histories given to doctors about his limited driving and sitting capacity. In 2010, the plaintiff told Dr Weissman that he could just drive from South Yarra to Werribee. He told Dr Kelman that year his driving was limited to half an hour. The plaintiff said he could not attend a psychologist because it was too far to drive for forty five minutes.
108       The plaintiff explained that on a bad day, he would be up and down constantly all day and on a good day he could probably sit for three or four hours, but not straight. His sitting ability was not affected by the medication, although the medication helped to stop the pain. In the week prior to the hearing, the plaintiff probably had four bad days with very high pain, not ten out of ten on all occasions.
109       The plaintiff would find it difficult but he would work as an interstate truck driver if he had to. He felt he had to get back to work although he was not applying for jobs right now because he is more focussed on staying home with his young children.
110       Eleesa does not work any more, having lost her job about two months ago. Whilst she was working, when the plaintiff looked after the two young children, he needed help from his father who lived nearby.
111       When it was suggested to the plaintiff in cross examination that he overstated his level of restriction, he denied he wanted to focus everything on the worst possible picture he could paint. He “did not want to look at the negatives and did not want to be reminded of injuries and having to stop his life.”
Recent Driving
112       The plaintiff agreed that he had recently driven for more than half an hour or an hour in one trip.
113       The plaintiff had been caught on video driving 780 from Melbourne to Albury and back on one day in June 2010. He explained he could not drive that distance on a full time work basis.
114       The plaintiff then admitted this was not the biggest drive he had undertaken. He had also driven to Canberra just before Christmas 2009, making it there in one day.
115       The plaintiff then agreed he posted a Facebook entry setting out that on 7 February 2010, he drove 1,900 kilometres in three days, going to South Durras in New South Wales. The entry also set out that he needed a week of holidays to get over the weekend holiday, but had to work tomorrow and wondered if anyone else could work for him.
Pain
116       The plaintiff deposed in June 2010 that he continued to have consistent back pain dealt with by painkillers and made particularly worse by sitting for too long.
117       The plaintiff had had severe pain in his left leg but about one or two years earlier it subsided into numbness throughout the leg. He had control of his foot, and his reflexes were satisfactory but he had no sensation in his left leg.
118       The plaintiff then used a stick to walk when he went out of the house, as he did not feel confident on other than flat surfaces, although Dr MacGill did not encourage him to use it.
119       The plaintiff also had pain at the back of his neck, which was not there all the time and could develop into more widespread pain and migraines. He had migraines before the accident but believed thereafter they were more frequent and more severe.
120       The plaintiff’s sleep was variable and usually broken.
121       In his recent affidavit sworn in July 2011, the plaintiff deposed that his lower back pain has become worse over the past year. He uses his walking stick on most days and finds it helps to take some pressure off his back but he is afraid he has become dependent upon it. When he takes his children for a walk he uses the pram as a walking aid and not the stick.
122       Surgery has been discussed in the past but the plaintiff does not think he will go ahead with it as he is scared. He is also fearful that in the future he may need to undergo surgery and it is only something he would consider if it could be guaranteed. He considered surgery as a last resort.
123       The plaintiff has become more and more concerned about his future especially over the last year because his pain has worsened.
Restrictions on Activities
124       Before the accident, the plaintiff did maintenance work on cars but he is now unable to do so.
125       The plaintiff deposed that he no longer plays any of the sports he used to play and has not played football or indoor soccer since the accident.
126       In cross examination, the plaintiff said that prior to the accident, he was playing indoor soccer, cricket and basketball on a social basis. He had not played football for a while.
127       The plaintiff was asked about a statement made by him in December 1998 in relation to his right shoulder claim. Then aged twenty, the plaintiff stated he was not involved in any sports or related activities and last played football about four years ago. In re examination the plaintiff said that he resumed playing sport socially after his shoulder injury recovered.
128       The plaintiff deposed that since the accident he has had difficulty playing with his young children and he tries very hard to keep going and appear normal but it is very difficult to keep his emotions in check and he is often teary and upset. Bathing the children is very difficult as it puts a strain on his back and his involvement is limited to drying the children or helping them dress.
129       In re examination, the plaintiff said there were some days when he could play with his children, and other days he felt like the worst parent in the world. He felt like he should be the one bringing in the money and at work, and it was not up to his partner or his parents.
130       The plaintiff has a son, Declan, whom he sees every weekend and a daughter, Alana, whom he sees every second weekend. It has become more and more difficult to do fun things with them. This upsets the plaintiff because he is only young.
131       The plaintiff’s relationship with Eleesa, is very strained as until recently she had to work to bring home an income and she did most of the work about the house and looked after the children and she had a hard time looking after him. He knew she would have liked to have spent more time at home with their baby but someone had to work to make money and he had been unable to.
132       The plaintiff has become dependent upon Eleesa’s assistance and feels that he has to put too much pressure on her with his limitations and it is becoming too much for her to cope with.
133       The plaintiff has difficulty washing himself below his knees with problems bending to reach his feet. He tends to slip on his shoes and on many occasions does not wear socks, as they are hard to put on.
134       The plaintiff is fortunate to have Eleesa to help him with things he cannot do but when she is not around, he has to look after himself. He does not contribute meaningfully to the upkeep of the house. He can still prepare light meals and use the slow cooker and that is generally the extent of his contribution.
135       In cross examination, before he was shown the surveillance DVD, the plaintiff agreed that on 21 June 2010, nine days before he was filmed, when he saw Mr Kelman, he was using a walking stick. He denied he told Mr Kelman he could not bend over to put on his shoes and socks, as he does not wear socks.
136       The plaintiff agreed he told Mr Kelman he needed to use a walking stick, which he did with his right hand when outside. He said he told Mr Kelman generally he had to rest after driving for an hour. He agreed that his wife did not have a licence at that time. Whilst Mr Kelman recorded the plaintiff said he was unable to stand as this aggravated his back pain, the plaintiff said this was the case “on bad days”. The plaintiff told Mr Kelman he was unable to squat - “but that would be on the day.” The plaintiff said he told Mr Kelman on a bad day when driving, he would have to pull over after an hour.
137       The plaintiff did not understand why Mr Kelman had not mentioned anything about good or bad days. The plaintiff could not remember whether he had told various doctors of good and bad days.

Video Surveillance
138       On 30 June 2010 at about 11.00 am, the plaintiff was shown entering a shop using a walking stick, displaying a very severe limp favouring his left leg. He returned to his car, walking with a stick, carrying a plastic bag in his left hand at 11.14 am.
139       At 11.50 am, the plaintiff stopped his vehicle in the emergency lane of the Hume Freeway near the Broadford Flowerdale Road sign. Over the next fifteen minutes or so he was shown securing blue plastic over the trailer he was towing. He walked slowly around his vehicle without the assistance of a stick. At times he squatted fully to tie down the plastic. He also was shown bending from the waist. At other times, he reached above his head and over the trailer to secure the plastic.
140       At about 12.05 pm, the plaintiff drove from the area.
141       The plaintiff was then filmed at 1.41 pm at a service station. He was shown squatting fully putting air in each of the tyres of his vehicle. He did not appear restricted in his movements although he walked slowly around the car to put air in the tyre on the other side.
142       The plaintiff drove from that location. He was next seen at the Wodonga CFA where he was shown on film with his father in law.
143       The plaintiff’s vehicle had been reversed into a driveway at the CFA. The plaintiff was shown tying a load onto the trailer with the hatchback of his vehicle raised. The plaintiff was not shown moving with any restriction as he stretched and bent at various times to secure the load.
144       The plaintiff’s partner and her father stood by while the plaintiff tied up the load which he explained was a cabinet his father in law had given him.
145       The plaintiff then departed, driving the vehicle with the trailer attached, heading back to Melbourne.
146       On 28 July 2010, the plaintiff was shown walking using a stick, whilst his wife was pushing a child in a pram. He walked very slowly, with a limp, favouring his left leg.
147       There was a total of 18 minutes and 5 seconds of video was shown.
148       Whilst the entire trip was not shown, it is clear that on 30 June the plaintiff drove to and from Wodonga, departing at about 9.30, returning home at about 8.25 pm.
149       In cross examination, the plaintiff described the manner in which he was shown walking at the start of the video in the service station was how he walked on an average day. He agreed he was not shown limping when putting the tarp over the cage of the trailer, but disagreed he was quite vigorous and said he would not need a walking stick doing this task. The plaintiff agreed he appeared to be able to climb up the towbar, but was not sure whether he was actually standing on his toes. He agreed he was shown bending down while fixing the tarpaulin, and he repeatedly bent forward to secure the tapes.
150       The plaintiff agreed he demonstrated squatting down and standing up rapidly without difficulty on several occasions, and got into the car without difficulty. He agreed he was shown pumping up the tyres and pulling on the hose, but said he then walked with a slight limp.
151       The plaintiff denied whilst shown at the Wodonga CFA he was told by his father in law that he was being filmed. The plaintiff was not aware he was being filmed on this particular occasion but he always assumed he could have been.
152       The plaintiff agreed that it was a massive day, travelling to Wodonga and back. If he had had back pain ten out of ten, then he would not have driven to Wodonga that day – or on a bad day.

Attendances at Sunshine Hospital
153 The plaintiff agreed that on 24 July 2009, he went to Sunshine Hospital with a problem with his chest. It was possibly right as noted in the Hospital records that at that stage he was doing a lot of throwing, tying down loads up on the truck. The plaintiff said the entry in the Hospital notes “no back pain”, meant no additional back pain.
154 The plaintiff was taken by ambulance to the Sunshine Hospital, at the insistence of his employer, on 11 September 2009 following a car accident.

155       When seen at the Hospital, the plaintiff said he had his normal level of back pain. There was no increase in his pain because of the car accident. The reference to constant lumbar pain of four out of ten was probably about right on a general working day. The reference in the note to seven out of ten meant the level of his pain at the start of that day..
156       When it was suggested to the plaintiff that when he saw Mr Kelman in May 2011 that he told Mr Kelman his pain was ten out of ten, the plaintiff explained constantly he said his pain was gradually getting worse, and had gone from four out of ten in September 2009 to ten out of ten in May 2011.
157       The plaintiff’s pain had increased because he not working, he was not doing any moving around, and this was causing his back to seize up and cause pain. By continuous movement the plaintiff found he had better relief.

Other Evidence
158 A Transport Accident Commission printout dated 16 August 2011 set out payments totalling $56,225.95 had been made to the plaintiff.
159 There were a number of leave application forms and medical certificates provided to Metropolitan by the plaintiff. A number of documents related to applications for annual leave. The medical certificates set out the plaintiff was unfit for work but did not state the reason.

Lay Evidence
160       The plaintiff’s partner, Eleesa, swore an affidavit on 4 July 2011. She is presently aged twenty five and has one child of her own in addition to her child with the plaintiff. She has lived with the plaintiff for about eighteen months but known him for much longer.
161       When she moved in with the plaintiff, in November 2009, she saw he had difficulty cleaning the house and he struggled to do physical tasks. He did not do any gardening, lawn mowing, sweeping or mopping. He could do some cooking and tried to vacuum, but did so with difficulty and had to have breaks.
162       In early 2010, Eleesa learnt she was pregnant with Brianna.
163       During their time living together, the plaintiff has been able to prepare dinner on most evenings. He can wash and sterilise the baby bottles/ He is able to and look after, pick up and hold the babies and pick up Brianna but has to get on the floor to do so.
164       The plaintiff does not try to pick up Tyler because he is too heavy. The plaintiff has difficulty putting the children in the back seat of the car.
165       What upsets the plaintiff a lot, is his inability to get down on the floor and play with the children and carry them around, particularly Tyler who is bigger.
166       At the time of swearing her affidavit, Eleesa had been working fulltime for two months. She was doing most of the housework with the plaintiff assisting occasionally with the vacuuming. After exerting himself, she has seen the plaintiff lying on the floor in pain, having difficulty moving and crying.
167       The plaintiff can prune trees as long as he can stand up and not put pressure on his back, but he cannot do anything in the garden for very long.
168       From the time they have lived together, Eleesa has seen the plaintiff’s mobility worsen. He finds it hard to get around without his stick although he tries to. He does not like visiting friends or having people over because he is embarrassed how he looks.
169       In the past eighteen months, Eleesa and the plaintiff have managed to drive to Canberra for a holiday. Both she and the plaintiff took turns driving and they took regular breaks along the way for the plaintiff to stretch and for the children to get some fresh air.
170       The plaintiff’s sleep has been disturbed. He has woken her on many occasions by trying to get comfortable in bed and he asks her to get medication and a glass of water for him during the night.
171       Eleesa is worried about the plaintiff’s emotional state as he seems to be becoming more and more anxious and upset about the future. He knows they cannot afford to go on holidays or socialise and it concerns him that he is physically unable to work and provide for his family. That was the reason she returned to work earlier this year.
172       Eleesa has become the plaintiff’s carer when at home because he cannot contribute to the upkeep of the house. She has to help him dress, and when he is in the shower she has to help him wash his feet.
173       The plaintiff has had enough of the whole situation and just wants to be normal again and he tries to cope with his pain, but he has a lot of difficulty dealing with it.

The Plaintiff’s Medical Evidence
174       Dr MacGill from Harding Street Medical Centre reported on a number of occasions.
175       Dr MacGill noted the plaintiff had pre existing episodic low back pain with mild L5-S1 disc protrusion. He had been a patient since 1994.
176       Prior to the accident, the plaintiff reported several episodes of back pain but not any neck pain.
177       The plaintiff first attended for back pain on 28 July 1994. Clinical examination was then consistent with sacroiliac ligament strain and L5-S1 facet joints bilaterally. Management involved Naprosyn, heat and exercises. It was noted the plaintiff had no further concerns at the following appointment on 22 August.
178       The plaintiff attended Dr Arulantham at the clinic on 27 April 2001. The note of that attendance set out “Left hip, back and leg pain for two to three weeks, unable to walk”. Examination indicated possible discogenic cause. A CT scan on 30 April 2001 concluded mild L5-S1 central disc protrusion slightly indenting the thecal sac. The plaintiff was referred to physiotherapy and commenced on Panadeine Forte. On review on 9 August, the plaintiff stated his back and neck were good. He was playing basketball and studying.
179       The plaintiff next attended in relation to back pain on 28 January 2002 following a basketball game with clinical left sacroiliac ligament strain and no clinical features suggestive of a recurrence of his discogenic pain. He responded to Celebrex and was referred for physiotherapy. On 23 April 2002, the plaintiff attended for another matter and his back was not an issue.
180       The plaintiff attended on 24 February 2005, following the accident, reporting back pain. He was referred to physiotherapy and given Panadeine Forte and a certificate for a week off.
181       On 8 March 2005, the plaintiff advised that overworking and not doing his stretches had exacerbated his back and he woke with neck pain.
182       It was noted as of 5 May 2005, the plaintiff was seeing a physiotherapist twice a week for his neck and low back.
183       It was noted Dr Teng organised a CT scan on 22 June 2005.
184       On 17 June 2006, the plaintiff advised he had exacerbated his back on 8 June by lifting a one hundred and ten kilogram tyre without assistance at work. He had no immediate pain but woke the next day with low back pain. He stated his worst back pain had been following the accident when it was ten out of ten and the pain after this incident was eight out of ten. He had physiotherapy twice and was treated with Naprosyn.
185       The plaintiff attended on 26 February 2007. He was concerned that his TAC payments for physiotherapy had been ceased as his back pain had been exacerbated since treatment ceased.
186       Dr MacGill noted the plaintiff was referred to Mr Malham, neurosurgeon, on 3 October 2007 who concluded the plaintiff was totally incapacitated for work and recommended assessment and treatment by a spinal clinic.
187       The plaintiff attended Dr MacGill regarding the deterioration of his back problems on 23 October 2007, providing copies of his investigations and Mr Malham’s report. The plaintiff advised his pain was still too severe to consider work and he had not been working since 9 September.
188       The plaintiff was referred to Dr Gassin at the Metropolitan Spinal Clinic and prescribed Panadeine Forte and Tramal. He attended Dr Gassin in November 2007. The plaintiff started hydrotherapy and Pilates.
189       Dr MacGill recommended the plaintiff increase Tramadol to 100 milligrams and also commenced him on Naprosyn and intermittent Stilnox to assist exacerbation of insomnia.
190       In her next report, Dr MacGill noted the plaintiff was reviewed by Mr Malham on 31 July 2008 and that the plaintiff had been referred to a psychologist under Medicare on 12 March 2009.
191       The plaintiff reported that his neck and back pain was exacerbated on 14 May 2009 which he attributed to trying to work fulltime and, at that stage, he was requiring higher dosages of his analgesics.
192       Dr MacGill reported in January 2010 that she thought the plaintiff was currently totalled disabled for his previous duties of long distance driving. She noted he was highly motivated and determined to work and had been negotiating duties with a considerate employer. She thought the plaintiff was currently capable of modified part time duties.
193       In a report dated 1 September 2010, Dr MacGill advised she referred the plaintiff to a psychiatrist, Dr Assadi, in June 2010 who recommended increasing his Endep. She noted TAC ceased the plaintiff’s physiotherapy in April 2010 which had further aggravated his low back and neck pain.
194       At that time, the plaintiff’s medication included six Panadeine Forte a day, Endep 75 milligrams, Naprosyn 100 milligrams, Tramadol 200 milligrams and Temazepam.
195       In a later report, Dr MacGill noted the plaintiff did not obtain significant sustainable improvement of his pain with a series of facet joint injections. An MRI was carried out on 14 October 2010.
196       Dr MacGill referred the plaintiff to Mr de la Harpe to consider the plaintiff’s surgical options, but noted the defendant had delayed the process of referral.
197       In her most recent report dated 5 September 2011, Dr MacGill advised that on 10 March 2011 the plaintiff saw Mr de la Harpe who requested an extensive physiotherapy and pain management program.
198       Dr MacGill noted the plaintiff was reviewed by Dr Gassin on 27 June 2011. An MRI was requested due to the deterioration of symptoms. At that stage, the plaintiff’s medication included eight Panadeine Forte a day, Endep 75 milligrams, Naprosyn SR 1000 milligrams, Tramal 200 milligrams and Temazepam.
199       Dr MacGill advised she had seen the surveillance DVD which did not cause her to reconsider her understanding of the plaintiff’s injuries and incapacity for work. She noted the plaintiff’s pain varied in severity and he was on a high dose pain relief. She noted fortunately the plaintiff does not experience sedation due to his medication. After performing unusual or painful activities, the plaintiff states his condition is often aggravated for a period of days or weeks and he has to rely on the stick.
200       Dr MacGill considers the plaintiff totally disabled for his previous duties, both fulltime or modified.
201       In Dr MacGill’s view, the plaintiff had an exacerbation of his pre-existing L5-S1 disc injury which had not clinically or radiologically been as severe as his new injury since the accident. The plaintiff also had new injuries at L4-5 and changes at L5-S1, including desiccation of both discs and potentially irritating the descending L4-5 and L5-S1 nerve roots. It appeared, in her view, that the new L4-5 disc injury which was not present on the CT scan of 30 April 2001 may be the more serious concern and may require surgical intervention in the future.
202       Dr MacGill considered the investigations after the accident were distinctly different to the appearance of the CT prior thereto. In her view, the lumbosacral disc and facet joint injuries required further treatment. She noted that the plaintiff had also sustained injuries to his cervical spine for which he required ongoing physiotherapy.
203       Further, Dr MacGill reported the plaintiff had symptoms of stress and anxiety with insomnia with variable levels of depression. She noted the plaintiff found prolonged standing, walking and sitting aggravated his back as did most simple household tasks.
204       In Dr MacGill’s view, if the plaintiff’s condition improved in the future, he would be seeking light duties, such as administration or supervision, of which he had some experience but no recognised training. She noted unfortunately, there were few places that would consider employing him.
205       Dr MacGill noted the plaintiff was currently awaiting approval for an intensive physiotherapy and pain management plan and, if unsuccessful in reducing the severity of injuries, the plaintiff may require surgical options. She considered the plaintiff’s condition had not yet stabilised with regard to his requirement for further surgery.
206       Mr Malham, neurosurgeon, first saw the plaintiff on 3 October 2007.
207       The plaintiff reported over the past month his low back pain and sciatica had worsened significantly, preventing him from returning to work.
208       On examination, the plaintiff walked with a left sided limp using a walking stick and wearing a soft lumbar brace. On supine examination, straight leg raising to thirty degrees caused low back pain. There were nerve root tension signs in the left lower limb. Muscle wasting and sensation was normal. On prone examination, there was palpation tenderness right lower lumbar facet joints.
209       The MRI of September 2007 was noted.
210       Mr Malham discussed with the plaintiff that his back pain had discogenic and mechanical features from both the right low lumbar facet joints and also from L4-5 and L5-S1 disc injuries with an annular tear at L5-S1. The predominantly left L5 radicular pain was secondary to the L4-5 disc prolapse on the left side. In the first instance, Mr Malham referred the plaintiff to the musculoskeletal physician, Dr Verrills, to have localised facet joint injections and targeted nerve root injections with local anaesthetic and steroid to improve his symptomatology.
211       On review on 30 July 2008, the plaintiff told Mr Malham his low back pain and left sciatica had improved with the injections. He had returned to work on light duties but ceased work five weeks earlier due to low back pain. The plaintiff’s main concern was neck pain with associated headaches.
212       The MRI scan of the cervical spine of June 2008 was noted.
213       Mr Malham reassured the plaintiff his neck was stable and safe and no surgery was indicated. He discussed with the plaintiff he could undertake sporting and work duties as tolerated.
214       Mr Malham diagnosed mechanical low back pain secondary to left lower lumbar facet joint capsule pain, L5 and L5-S1 discogenic pain, left L4-5 and L5-S1 disc protrusions causing left L5 and left S1 radicular lower limb pain and symptomatic C5-6 disc degeneration with cervicogenic headaches.
215       Mr Malham thought the plaintiff may benefit from repeat facet joint injections and epidural nerve root injections and that eventually he may require targeted cervical injections.
216       Mr Malham considered the plaintiff’s pain and disability would wax and wane into the foreseeable future. Recurrent episodes of acute or chronic pain could be managed by targeted injections and would impact on future work and leisure activities.
217       Mr Malham noted there were no known or reported behavioural or psychological factors influencing the plaintiff’s claim. On all the information available to him, the plaintiff suffered a work injury on the said date which was a significant contributing factor to his ongoing neck, low back and left lower limb pain. There was no neurological deficit on examination and no surgery was indicated or planned.
218       The plaintiff was referred to Dr Gassin, musculoskeletal physician, by Mr Malham and consulted him on five occasions between November 2007 and 27 June 2011.
219       The plaintiff told Dr Gassin his current symptoms included central low back pain shooting down the medial aspect of his leg to the foot, associated tingling and pins and needles in the arch of the left foot. The plaintiff reported his pain varied in intensity from seven out of ten to nine out of ten. The plaintiff told him he had had no past history of low back pain.
220       Initially Dr Gassin wrote to the defendant requesting liability for cortisone injections which were performed on 11 January 2008. The injections had little impact on the plaintiff’s low back pain but significantly relieved his left leg pain.
221       On 18 February 2008, Dr Gassin encouraged the plaintiff to return to work as a truck driver, starting with four hours daily and gradually increasing his hours every one or two weeks thereafter.
222       Medial branch blocks performed in April 2008 were positive. A control block performed in May 2008 was negative, suggesting the plaintiff would not benefit from a left low lumbar medial branch radiofrequency neurotomy. Injections of cortisone in June 2008 resulted in a fifty per cent improvement in the plaintiff’s low back pain.
223       On review in July 2008, the plaintiff reported impaired sensation in the left leg and that his low back pain was moderately severe. Following that examination, Dr Gassin recommended a repeat MRI scan of the lumbar spine which was performed in September 2008.
224       In October 2008, Dr Gassin advised the plaintiff that the MRI scan had not revealed any obvious source of neural compromise which would explain the sensory symptoms in his left leg. He suggested the plaintiff return to see Mr Malham for referral to a local neurologist for further assessment, and discharged him from his care.
225       The plaintiff was referred back to Dr Gassin by Dr MacGilll and saw him in February 2010. The plaintiff then reported persistent central low back pain radiating to both buttocks, and leg numbness. He had not yet seen a neurologist. At that stage, Dr Gassin considered the plaintiff’s symptoms were most likely of discogenic origin and suggested he stay on his current medication, and organised for a review by Mr Hale, a pain psychologist.
226       The plaintiff last saw Dr Gassin in June 2011. The plaintiff then advised that since his previous appointment his low back pain had increased in intensity and he was experiencing more left sciatica. He had ongoing numbness in the left leg with episodes of severe leg pain.
227       On examination, the plaintiff was noted to have a decreased range of lumbar spine movement, decreased sensation to light touch and pinprick to the whole left leg up to the groin. He was acutely tender to palpation of the low back.
228       Dr Gassin noted that the examination findings suggested a functional component to the plaintiff’s symptoms. He wrote to the defendant requesting liability be accepted for an MRI scan and suggested review thereafter.
229       In Dr Gassin’s view, the plaintiff suffered lumbar discogenic back pain with neuropathic left leg pain. He noted in addition, the plaintiff’s recent presentation suggested a significant functional component. Assessment suggested the plaintiff suffered severe depression.
230       Dr Gassin thought the plaintiff’s treatment should be conservative. However, if the scan revealed a treatable lesion, he should be treated. Dr Gassin thought the plaintiff should obtain the opinion of a psychiatrist regarding the contribution of psychosocial factors to his presenting symptoms.
231       Dr Gassin thought the plaintiff’s condition had stabilised and he expected the plaintiff to suffer persistent moderate to severe pain and severe low back related disability for the foreseeable future. He thought the plaintiff’s symptoms impacted significantly on his leisure activities and that he had no current work capacity.

232       Mr Salerno, physiotherapist, from Wyndhamvale Physiotherapy Clinic initially reviewed the plaintiff on 22 February 2005 when the plaintiff reported central and left sided lower back pain, increasing headaches and neck pain.
233       Mr Salerno diagnosed cervical whiplash resulting in a C5 disc bulge causing cervical instability and headaches, lumbar dysfunction secondary to L4-5/L5- S1 disc bulges with irritation of the L5 and S1 nerve roots and pain with associated fear avoidance beliefs due to the injuries.
234       Mr Salerno reported the plaintiff was most recently reviewed between October 2009 and January 2010 complaining of increasing low back pain and headaches despite several procedures being performed. Mr Salerno thought the plaintiff’s condition was certainly associated with his initial injury.
235       Treatment was primarily focused on the development of a lumbar cervical stabilising exercising program. At the time of the last review, the plaintiff had extremely poor activation of the central neck and lumbar stabilisers.
236       Mr Salerno thought the plaintiff’s injuries had a significant impact on his employment. Any work that involved travelling for more than an hour would be limited, such as the plaintiff’s previous occupation as a truck driver. Mr Salerno also thought lifting would be most affected. He suggested the plaintiff should not lift more than five to ten kilograms and not perform repetitive lifting. He should also avoid bending, twisting or stooping.
237       Mr Salerno noted the plaintiff was not currently receiving treatment as payment had been denied by the defendant.

Medico-Legal Evidence
238       The plaintiff was initially assessed by Mr Kelman, orthopaedic surgeon, on 31 March 2009. The plaintiff told him he had had no surgery in the past and that he did not take any medication regularly for the medical condition. Further the plaintiff told him that he had no back injuries or neck injuries in the past.
239       Mr Kelman diagnosed accident related cervical spondylosis secondary to disc bulges at C2-3 and C3-4 and disc prolapse at L4-5, L5-S1 resulting in mechanical and neurological backache in the lumbar spine.
240       Mr Kelman then considered the plaintiff was not totally incapacitated for employment as he was able to drive a vehicle, but he was not able to carry out any physical or labouring work and, although in constant pain, he continued to work. Mr Kelman thought the prognosis was guarded, noting large disc protrusions visible on the MRI. In future, he thought the mechanical backache would become worse.
241       On examination, the plaintiff walked with a limp typical of pain on the left side. There was reduced lumbar lordosis and restriction of movement. There was weakness in the tibialis anterior and extensor hallucis and extensor digitorm on the left side.
242       Mr Kelman thought the weakness of ankle extensors and toe extensors on the left side were explicable on a clinical anatomical basis due to the large disc prolapses present at L4-5 and L5-S1.
243       Having reviewed the MRI scans, Mr Kelman thought the plaintiff should come under the care of an orthopaedic surgeon and might consider that removal of the discs and fusion from L4-5 to S1 might give him considerable relief.
244       The plaintiff was re-examined on 21 June 2010. He agreed with previous histories given by him and told Mr Kelman his back pain had become worse. His sitting was limited to half an hour and, after driving a car for an hour, he had to rest. Mr Kelman added a further diagnosis of chronic pain syndrome with central neural sensitisation resulting in loss of sensation in the lower leg and intermittent paresthesia in the face. He noted the plaintiff presented with ongoing lumbar back pain and neck pain. He also now had demonstrated global loss of sensation in his left lower limb and related intermittent paresthesia of his face.
245       In Mr Kelman’s view, these were features of a chronic pain syndrome with central neural sensitisation and the plaintiff should be seen by a neurologist in that regard and also have pain management.
246       Mr Kelman thought the plaintiff was not able to work and his mobility was severely restricted. Mr Kelman considered that it was a long term problem, noting that such pain syndromes do accommodate in time but never completely resolve. He thought the plaintiff’s present capacity for work was severely limited and he was unable to do his pre injury driving with problems in his left leg when operating the clutch and also climbing in and out of the vehicle. Other employments which were desk based would also be difficult as the plaintiff could not sit for more than half an hour and was not able to stand for any length of time.
247       There was a further re-examination on 24 May 2011 when the plaintiff again agreed with the history given by him at the first examination.
248       Mr Kelman noted the plaintiff stated on most occasions his pain was ten out of ten and that he had numbness of the left leg. He could sit in the car for up to forty minutes and his sitting time was limited to thirty minutes.
249       Mr Kelman noted nothing had changed significantly since the examination two years earlier but movements of the plaintiff’s back were now more restricted. He noted the most significant change that had occurred was in the plaintiff’s psyche and the plaintiff now had the appearance of being markedly depressed. He considered the plaintiff should be assessed by a psychiatrist and undergo a multi-disciplinary pain management program. He noted the plaintiff had reached the stage where he chose not to go outside.
250       Mr Kelman reported further having been provided with reports from Mr Shannon and Mr Brownbill and also the surveillance DVDs.
251       Mr Kelman noted there was a marked discrepancy between observing the plaintiff walking carrying a shopping bag and walking out with another person pushing a stroller. On these occasions the plaintiff walked with a marked limp using a walking aid. This was inconsistent with his movements for an extended period twice whilst securing tarpaulins over a trailer. On those occasions, the plaintiff did not use the walking aid, bent forward frequently and was able to easily climb up onto and over a tow bar. His gait at that time was relatively normal.
252       Mr Kelman noted the plaintiff also demonstrated the ability to squat and his back remained straight. Further the plaintiff showed limited straight leg raising when examined however, the flexion he carried out when shown working around the trailer was considerably in excess of the range movement demonstrated on both clinical examinations.
253       In Mr Kelman’s view, the observations of the DVD would cause him to consider that the range of movement of the plaintiff’s back was not consistent when compared to previous clinical examinations.
254       In a further supplementary report of August 2011, Mr Kelman advised, having reviewed the DVD supplied, it confirmed that the range of movement of the plaintiff’s back, which was demonstrated when carrying out various unobserved activities, was far greater than that demonstrated on clinical examination.
255       Mr Kelman considered the plaintiff suffered from a mechanical backache which dated back to the time of the accident. Mr Kelman stated it needed to be reiterated that the clinical presentation at examination did not correlate well or consistently with what was seen when the plaintiff was not aware of being observed. The plaintiff portrayed a much more serious condition than was obviously the case. However, Mr Kelman thought the plaintiff did suffer from a degree of mechanical backache as a result of the accident.
256       Mr Kelman still thought the plaintiff would not be able to return to pre-injury heavy work. However, on observing the DVD, he considered the plaintiff was not totally disabled and would be able to undertake work of a lighter nature including driving and operating machinery.
257       Dr Weissman, psychiatrist, first examined the plaintiff on 1 May 2009 and re- examined him in July 2010 and in May 2011.
258       On initial examination, Dr Weissman noted there was no medical history, no psychiatric history and no family history of psychiatric illness.
259       On examination, the plaintiff used a walking stick. He spoke softly, consistent with depression and he appeared very flat and subdued. The quality of his affect was mildly depressed, flat, subdued, restricted in range, anxious and close to tears and there was almost some psychomotor retardation.
260       The plaintiff’s thought stream was normal and there was no formal thought disorder. The content of his thinking revealed thoughts, reminders and flashbacks about the accident, mild PTSD symptoms and features of traumatisation and moderate, mixed reactive depressive and anxiety symptoms, signs and features.
261       There were no formal abnormalities of perception such as illusions or hallucinations. The plaintiff’s insight and judgment were characterised by lowered self esteem and confidence, diminished motivation and frustration.
262       In Dr Weissman’s view, the plaintiff was suffering from mild, but not insignificant, PTSD symptoms and features of traumatisation directly related to the accident. He was also suffering from a moderately severe mixed reactive depressive syndrome with depression and frustration, tearfulness and diminished motivation as a consequence of, or secondary to, his accident related pain, injuries and disability.
263       Dr Weissman considered the plaintiff had sustained and developed a major depressive disorder of moderate severity which had not yet stabilised and he required treatment.
264       In Dr Weissman’s view, the plaintiff should probably be reviewed by an independent psychiatrist in about a year.
265       On re-examination on 16 July 2010, the plaintiff listened carefully and agreed with the content of the past history documented in the original report.
266       Dr Weissman confirmed his earlier diagnosis. He thought collectively and cumulatively, the plaintiff was suffering from moderate accident related psychiatric, psychological, emotional and behavioural symptoms, signs, features and disorders.
267       In Dr Weissman’s view, on purely psychiatric grounds alone, mainly because of his resilience, stoicism and determination, the plaintiff would have a partial capacity for suitable duties. Physically speaking, he understood the plaintiff had no capacity to perform duties. He thought the plaintiff’s psychiatric prognosis was only fair. He considered the plaintiff required a therapeutic trial of anti-depressants and would benefit from referral to a consultant psychiatrist and a psychologist for treatment of his anxiety and depression.
268       When re-examined on 11 May 201, the plaintiff again confirmed the earlier history given and Dr Weissman confirmed his earlier diagnosis.
269       Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on 28 July 2011.
270       On examination, the plaintiff’s lumbar spine was tender in the lower lumbar midline and right sacroiliac region with limited movements. Reflexes were equal and motor power was clinically normal.
271       Mr Kudelka believed the plaintiff’s demonstrated partial impairment was now related to his back symptoms and the diagnosis was that the accident was one of aggravation of degenerative changes, the effect of which had not yet resolved.
272       In the future, Mr Kudelka thought the plaintiff may require attendance on Dr MacGill for analgesic medication, but on an ‘as needs’ basis as the DVD suggested good function in the plaintiff’s lumbar spine.
273       Mr Kudelka thought the plaintiff’s condition had stabilised. He considered radiological evidence also supported degenerative changes in the two lumbar discs which were consistent with persistent back pain, stiffness and some sciatic nerve root irritation.
274       Mr Kudelka thought the plaintiff was fit for employment which avoided heavy lifting of more than five to ten kilograms, repetitive bending, stooping and prolonged driving.
275       Present restrictions referred to bending, stooping, lifting, prolonged driving, sitting and standing. However, Mr Kudelka did not think the plaintiff was totally disabled.
276       Mr Kudelka noted the plaintiff had made several attempts to find suitable employment which minimised the strain on his back. He only ceased work when he was rejected by doctors in a medical examination on the basis of his painful back.
277       The plaintiff’s long term prognosis was that his back pain, stiffness and restricted function would persist indefinitely.
278       Mr Kudelka noted he had viewed the DVD which showed the plaintiff driving a utility and a trailer and he was stationary by the side of the road placing a tarpaulin over the trailer but the plaintiff was doing no heavy lifting or prolonged physical work, although he did bend over and move quite freely. He noted the plaintiff was squatting and pumping up his tyres. This confirmed Mr Kudelka’s opinion that the plaintiff was not totally impaired and was capable of suitable employment, which was the opinion he had before seeing the DVD.

Investigations
279       Dr Arulantham organised a CT scan of the plaintiff’s lumbar spine on 30 April 2001.
280       It was reported that at L1-2, L3-4 and L4-5, no focal disc protrusion or other abnormality was shown. There was a mild L5-S1 central disc protrusion slightly indenting the thecal sac.
281       On 22 June 2005, Dr Teng organised and x-ray and CT scan of the plaintiff’s cervical spine.
282       On CT, Slight disc bulges were present at C2/3 and c3/4 levels. There was no spinal stenosis. No causes were seen to account for the clinical presentation of pins and needles to both arms. In view of that finding an MRI was suggested.
283       On 12 September 2007, Dr Teng organised an x-ray and MRI of the plaintiff’s lumbar spine.
284       It was reported that at L4-5, there was a left paracentral disc protrusion contacting and potentially irritating the descending left L5 nerve root in the lateral recess. At L5-S1, there was a left paracentral disc protrusion contacting and potentially irritating the descending left S1 nerve root in the lateral recess.
285       An MRI scan of the plaintiff’s cervical spine was organised by Dr MacGill on 16 June 2008. It was reported there was mild reversal of cervical lordosis centred at C5-6 level. Associated with uncovertebral degeneration and disc bulge, there was mild spinal canal narrowing at that level with altered AP diameter of the spinal cord, as described. Cord signal was still normal and surrounding CFS spaces were still present. There was no significant syrinx seen. The rest of the cervical levels demonstrated normal appearance with no significant spondylitic changes or facet degeneration.
286       An MRI of the lumbar spine was organised by Dr MacGill on 13 October 2010. It was reported there was two level (L5 and L5-S1) disc degeneration with minor retrolisthesis at L4-5 and broad based central disc protrusion with minor indentation on the theca. It was noted marginal spur results in mild bilateral bony foraminal stenosis without neural compromise at L5-S1.

The Defendant’s Medical Evidence
287       Mr Michael Shannon, orthopaedic surgeon, first saw the plaintiff on 4 February 2008. He e-examined him in June 2009 and June 2011 and provided a supplementary report having been provided with the surveillance DVD.
288       On the initial examination, the plaintiff denied any history of significant back pain (not that he can remember). He denied having any treatment in the past for his back.
289       Mr Shannon had available to him a report from the plaintiff’s general practitioner setting out the history. Mr Shannon also noted that on 17 June 2006 the plaintiff was said by his general practitioner to have exacerbated his back pain lifting a one hundred and ten kilogram tyre without assistance at work.
290       On the material with which he had been provided, Mr Shannon did not think it appeared low back pain was of particular significance until the accident. The plaintiff sustained aggravation of pre-existing cervical and lumbar disc degeneration. Mr Shannon noted the plaintiff nevertheless continued working for several years and further injured his back lifting a tyre. Mr Shannon suspected that was the more significant contributing factor to the plaintiff’s back condition although he had underlying degenerative change which had been symptomatic for a number of years.
291       On examination, Mr Shannon noted the plaintiff had quite a reasonable range of neck movement and doubted that was a significant limiting factor in the resumption of employment. He noted the plaintiff however had significant restriction of movement of his lower back with spasm on lateral flexion, although there was no objective neurological abnormality. He noted however, certainly the plaintiff had radiological evidence of lumbar disc prolapse and some symptoms of radiculopathy.
292       On examination, the plaintiff limped slowly into the consulting room on a stick. Thoracolumbar movements were limited by about a third and there seemed to be some spasm on lateral flexion. Straight leg raising was to fifty degrees and there was no neurological abnormality.
293       Mr Shannon thought the plaintiff’s symptoms at that time were consistent with cervical disc degeneration and lumbar disc prolapse. He believed those symptoms had an organic basis but were only in part attributable to the accident and the plaintiff may well have had a subsequent work related injury to his low back as well as a pre existing and previously symptomatic low back condition.
294       Mr Shannon thought the plaintiff’s treatment was likely to remain conservative.
295       Mr Shannon considered the plaintiff was not fit for his former occupation and, at that stage, it was not necessarily appropriate for him to undertake re training. He was hopeful the plaintiff’s back condition would subside to the level where he could drive a truck, but he would probably never be able to safely load and unload.
296       In June 2009, Mr Shannon noted the plaintiff had recently obtained employment as a steel driver with limited physical activity.
297       The plaintiff then complained of constant low back pain radiating into both buttocks and complete loss of feeling in the whole of his left leg. Mr Shannon noted this was confirmed by the plaintiff’s treating specialist at the Metropolitan Spine Clinic where he was having medial branch blocks.
298       In terms of past history, the plaintiff denied he had ever had the slightest trouble with his neck or back prior to the accident and also denied he had any injury to his neck or back subsequent to the accident. He explained the reference to lifting a one hundred and ten kilogram tyre was a mistake and that he had just tried to fend it off. Mr Shannon noted the plaintiff did not specifically relate the onset of numbness to the injections although they occurred at about the same time.
299       The plaintiff told Mr Shannon he could walk for about an hour on a good day and the limiting factor was back pain. He used a walking stick all of the time when outdoors because of the numbness and weakness.
300       On clinical examination, the plaintiff was able to stand on heels and toes and had a moderate restriction of thoracolumbar movement with minor spasm on lateral flexion. Straight leg raising was to fifty degrees on the right and forty degrees on the left. Waddell’s signs were positive suggesting a non organic component.
301       Mr Shannon diagnosed cervical and lumbar disc degeneration and noted those areas were vulnerable to further injury.

302       He noted, if anything, there had been some improvement in the plaintiff’s condition and he returned to work. The plaintiff had almost minimal restriction of rotation of his neck.
303       In regard to his back, Mr Shannon noted the plaintiff had evidence of lumbar disc degeneration and disc bulging. The plaintiff appeared to have some genuine restriction of movement with minor spasm on lateral flexion. Mr Shannon thought the sensory loss in the left lower limb was not consistent with organic pathology. Nor was it clear why the plaintiff needed to use a walking stick.
304       In Mr Shannon’s view, there was no evidence the plaintiff sustained a significant injury to his neck in the accident. Whilst there had been clearly a previous problem with his back, Mr Shannon was unable to exclude the accident had made the plaintiff’s back worse. There was apparently genuine restriction of movement of the back with spasm but he did not accept the numbness was organic or accident related.
305       In August 2010, Mr Shannon further reported having been given the records of the Metro Spinal Clinic, Mr Malham’s report and the surveillance DVD.
306       The latter, in Mr Shannon’s view, showed the plaintiff to be considerably more active than he would acknowledge with varying use of a walking stick and the ability to walk normally, to climb up and down from a trailer, to bend quite freely and to squat. Further, the plaintiff spent a lot of time tying down a tarpaulin and really showed no evidence of any disability in his neck, back or leg. At other times, he appeared to be significantly disabled, in particular when leaving a doctor’s consulting room. It was clearly not the case as the plaintiff told Mr Shannon that he used a walking stick all the time.
307       The plaintiff was re-assessed on 24 June 2011. He then continued to complain of pain across the low back extending into the right groin. He either used a walking stick or a baby pram. He could walk one hundred and fifty metres before he had to sit down. He had no sensation at all in his left leg.
308       On examination, thoraco movements were moderately restricted, particularly flexion and extension. There was no real spasm. The plaintiff confirmed complete anaesthesia of the left leg came on after one of his injections. Straight leg raising was to thirty degrees and there was no muscle wasting and the reflexes were normal.
309       Mr Shannon diagnosed aggravation of lumbar disc degeneration and possible aggravation of pre existing cervical disc degeneration.
310       In his view, the prognosis was uncertain, particularly because of non organic factors. He noted there had been a change in the plaintiff’s condition since the previous examination and that his neck was no longer a source of significant symptoms with a normal range of movement.
311       Mr Shannon noted it appeared that the back was documented as painful soon after the accident, although the impression was the symptoms were more in the upper region. In any event, he thought it reasonable to accept the accident aggravated the plaintiff’s lower back condition which had previously been symptomatic.
312       On last examination, Mr Shannon thought the plaintiff was fit for work as a truck driver but not for loading and unloading.
313       Although he thought the plaintiff was much more active on the film, Mr Shannon would still be of the view that given he had disc degeneration and protrusion at two levels in the lumbar spine, the plaintiff should avoid work involving prolonged or repetitive bending or heavy lifting. Mr Shannon thought the situation probably pertained prior to the accident, noting also there had been a number of injuries including the tyre incident.
314       Mr Shannon also noted an acute exacerbation of back pain in July 2008, a further episode in November 2008, a car accident in September 2009 and a flight to New Zealand in June 2009. He noted at all other times the plaintiff’s general practitioner recorded his back as relatively normal. Mr Shannon thought the accident probably did not result in a significant injury to the lumbar spine, but it may well have aggravated underlying degenerative change.
315       In terms of any radiological change, Mr Shannon noted there was at least one significant intervening episode between 2001 and September 2007. Therefore, he could not say the L4-5 disc protrusion pre-existed the accident due to the plaintiff’s current condition after the accident or if it was due to disc degeneration and bulging which were present before the accident, but there was no reliable information about the L4-5 disc.
316       Mr Shannon thought it possible that that injury was as a result of the accident and only diagnosed after the September 2007 scan, but it was also possible it was pre-existing or occurred as a result of some subsequent incident.
317       In Mr Shannon’s view, there was no indication for surgery. He thought the plaintiff’s back condition limited his capacity to perform physical work involving prolonged or repetitive bending or heavy lifting, but not as a truck driver if he did not have to load, unload and tie down loads.

Sunshine Hospital
318       The plaintiff attended Sunshine Hospital on 24 July 2009 complaining of chest pain. It was noted he had no back pain and no other pains. It was also noted the plaintiff does a lot of throwing/tying down loads upon the truck so he thinks he may have strained some chest muscles on the right side.
319       The plaintiff attended the Sunshine Hospital Emergency Department on 11 September 2009. It was noted his boss called an ambulance as a precaution This followed a transport accident where the plaintiff was attempting to turn left in his truck when a car overtook on the inside, impacting on the right side of the car. It was noted the plaintiff had a history of back pain due to car accident four years earlier and had constant back pain four out of ten. He rated his pain at seven out of ten at that time.
320       On examination lumbar pain was described as sharp and tenderness. It was noted although the plaintiff stated his neck is always sore, that day it was no different.

Shoulder Injury
321 The defendant relied upon a statement made by the plaintiff in December 1998 in relation to his right shoulder injury and a history given to Mr Weaver in December 1998 that he had no particular sporting interests at that time.

Video Surveillance
322 There was a total of 18 minutes and 5 seconds of film of the plaintiff’s activities most of which was taken on 30 June 2010. He was also filmed for a couple of minutes on 28 July.

Overview
323       It is accepted that the plaintiff suffered an injury to his back in the accident. His claim for compensation was accepted by the defendant and statutory benefits were paid.
324       There is no real dispute as to the diagnosis of the plaintiff’s condition.
325       Treater, Dr MacGill and medico legal examiners Mr Shannon and Mr Kudelka thought the plaintiff had suffered an aggravation of lumbar disc degeneration in the accident.
326       Mr Kelman and Mr Malham diagnosed mechanical low back pain, the later adding that such pain was secondary to left lower lumbar facet joint capsule pain, L5 and L5-S1 discogenic pain, left L4-5 and L5-S1 disc protrusions causing left L5 and left S1 radicular lower limb pain. In Dr Gassin’s view, the plaintiff suffered lumbar discogenic back pain with neuropathic left leg pain.
327       Although Dr Gassin thought there was a significant functional component in the plaintiff’s presentation and Mr Shannon thought his findings of anaesthesia in the left leg had no organic basis, the preponderance of medical opinion is that the plaintiff’s back condition is organically based
328       Counsel for the plaintiff submitted there had been a significant worsening in the plaintiff’s back condition in the accident, confirmed on the 2007 MRI of the lumbar spine.
329       A comparison was made between the April 2001 CT scan where no focal disc protrusion or other abnormality was shown at L4-5 and the September 2007 MRI scan where it was reported, at L4-5, there was a left paracentral disc protrusion contacting and potentially irritating the descending left L5 nerve root in the lateral recess.
330       Dr MacGill thought the investigations after the accident were distinctly different to the appearance of the 2001 CT. Mr Malham thought the plaintiff’s predominanlty left sided radicular pain was due to the L4-5 disc prolapse on that side.
331       As he did not have the original 2007 scan and it was not easy to compare a CT scan with an MRI reported on by different examiners and because there was at least one supervening event - the tyre incident – between the accident and the 2007 scan, Mr Shannon was unable to say whether the L4-5 disc protrusion pre dated the accident, occurred in the accident or occurred in a subsequent episode like the tyre incident
332       It is not necessary for me to make a finding in this regard as it is the impairment not the injury that is the relevant matter for consideration.
333       However I accept that the plaintiff’s complaints of pain relate mainly to his L4- 5 disc.

Pre-Accident Condition
334       Relying on what was submitted to be a significant back condition prior to the accident, counsel for the defendant argued that the plaintiff’s application failed on a Petkovski v Galletti [1994] 1 VR 436 analysis as any aggravation in the accident was not of itself serious.
335       It was submitted that prior to the accident, in April 2001, the plaintiff had a significant back problem with the CT scan showing a degenerative condition with an L5-S1 central disc protrusion. Further, the plaintiff was noted as being unable to walk by Dr MacGill at that time.
336       However, these problems were not ongoing. On the next attendance for back pain in early 2002, Dr MacGill then noted the plaintiff’s pain was not discogenic in nature. The only other treatment for a lumbar condition prior to the said date was three physiotherapy sessions in 2004, the last in August.
337       The plaintiff was able to work in a full time heavy job as a slaughterman in 2002 without difficulty performing his duties or the need for medical treatment. He required no time off for any back problem
338       This situation continued in the time he worked as a truck driver for Spotless from February 2003 to the said date, save for the attendances at the physiotherapist.
339       In these circumstances, I do not accept the plaintiff’s degenerative lumbar condition was causing the plaintiff any problems as at the said date.

Credit

340

As Maxwell P stated in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:
“… 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. … .”

341       There was a significant challenge to the plaintiff’s credit in this case. It was submitted that the plaintiff could not be relied upon, taking into account his many “interesting” answers in cross-examination, the way he filled out claim forms and job applications, particularly answering “excellent” to the question in the Bunker form in which he said he would not have any problems interfering with his ability to do that job.
342       Whilst the plaintiff’s complaints of pain and restriction were not specifically challenged in cross examination, the defendant relied on the level of activity shown in the film and the plaintiff’s driving.
343       Much reliance was placed on the level of activity shown by the plaintiff in the surveillance film particularly when shown securing a trailer load, bending freely and stretching and later squatting whilst putting air in his car tyres and at other times limping markedly and using a stick.
344       Clearly this level of movement differs dramatically from how the plaintiff performed on examination with Mr Kelman nine days earlier when he presented like a cripple able to flex to only 10 degrees where flexion to 90 degrees was shown in the film.
345       In my view, of more significance in terms of the plaintiff’s credit was what was not shown on film but admitted by the plaintiff namely that he drove to Wodonga and back to Melbourne on the same day in June 2010 – a matter not commented upon by those of the doctors who did not attach much significance to what was shown on film.
346       There was no reference by the plaintiff to this trip in his affidavit and this level of driving was greatly at odds with his description of his very limited driving capacity to doctors.
347       This episode of driving was not a one off. In cross examination, the plaintiff also admitted to driving to a wedding near Canberra around Christmas time 2009 and in February 2010, driving 1900 kilometres over three days on a trip to the New South Wales coast.
348       Taking these factors into account, I have some concerns as to the reliability of the plaintiff’s evidence.
349       The other credit issue raised by counsel for the defendant – the failure to tell examining doctors of the history after being made aware of it in late 2009/early 2010 – does not cause me particular concern.
350       The plaintiff’s explanation for that omission is understandable - namely he could not recall having a specific back problem (there being only a couple of attendances at the doctor), he thought any injuries at that time were related to his sporting activities and he did not require any time off work.

Consequences
351 The plaintiff is still a relatively young man, now aged thirty three.
352 As Beach and Ashley JA stated in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, at paragraph 43:
“All things being equal, impairment consequences which a man … will have to put up with for 40 years might well be judged more serious than the same consequences which a man … may have to put up with for a much shorter period of time.”

353 I accept that the plaintiff has had back pain or varying degree since the accident. His condition fluctuates with a worsening in 2007 and more recently early last year and at times he requires assistance with a walking stick. I do not accept however that the plaintiff’s pain it is at the consistent high level of nine to ten out of ten as he has described or that his pain results in the major restrictions mentioned to medico legal examiners.

Work

354

The consensus of medical opinion is that the plaintiff has no capacity for his pre injury work or work of a heavy physical nature.

355

Dr MacGill considered the plaintiff was totally disabled for his previous duties, both fulltime or modified. If the plaintiff’s condition improved in the future, he would be seeking light duties, such as administration or supervision, of which he had some experience but no recognised training.

356

Mr Malham considered the plaintiff’s pain and disability would wax and wane into the foreseeable future. Recurrent episodes of acute or chronic pain would impact on future work and leisure activities.

357

Dr Gassin thought the plaintiff’s symptoms impacted significantly on his leisure activities and that he had no current work capacity.

358

In January 2010, physiotherapist Mr Salerno thought the plaintiff’s injuries had a significant impact on his employment. Any work that involved travelling for more than an hour would be limited, such as the plaintiff’s previous occupation as a truck driver. Mr Salerno also thought lifting would be most affected. He suggested the plaintiff should not lift more than five to ten kilograms and not perform repetitive lifting. He should also avoid bending, twisting or stooping.

359

Having seen the surveillance DVD, Mr Kelman still thought the plaintiff would not be able to return to pre-injury heavy work however, he considered the plaintiff was not totally disabled and would be able to undertake work of a lighter nature including driving and operating machinery.

360

In July 2010, Dr Weissman thought on purely psychiatric grounds alone, mainly because of his resilience, stoicism and determination, the plaintiff would have a partial capacity for suitable duties. Physically speaking, he understood the plaintiff had no capacity to perform duties.

361

Having seen the surveillance DVD, in July 2011 Mr Kudelka thought the plaintiff was fit for employment which avoided heavy lifting of more than five to ten kilograms, repetitive bending, stooping and prolonged driving.

362

On the last examination in June 2011, and having seen the surveillance DVD, Mr Shannon thought the plaintiff was fit for work as a truck driver but not for loading and unloading. Although he thought the plaintiff was much more active on the film than on examination, Mr Shannon still thought given the plaintiff had disc degeneration and protrusion at two levels in the lumbar spine, he should avoid work involving prolonged or repetitive bending or heavy lifting.

363

Counsel for the defendant submitted any employment consequences were not serious, relying on the plaintiff work history after the accident until he left work with Metropolitan in early 2010.

364

It was submitted the plaintiff was able to return to work at Spotless where he continued his driving duties until leaving to take a better paid job at Advantage. During 2005, the plaintiff was able to engage in a range of other activities such as moving house, gardening, riding a motor bike and on one occasion at work, walking twenty kilometres whilst performing cleaning duties.

365

Whilst working at Advantage there was the tyre incident in which the plaintiff admitted he aggravated his back condition. Whilst the plaintiff said he left Advantage because of problems with lifting cages, in cross examination he admitted that the issue of missing stock may have also have been a reason for leaving this job.

366

The plaintiff then obtained work at Bunker having passed the medical and essentially stated in his application form that his ability to do that job was excellent. Further, the had plaintiff relatively little treatment in early 2007 whilst in that job.

367

The plaintiff initially said in his viva voce evidence that he could cope with the duties in his next job at Metropolitan but then later said he could not cope with lifting cable ties. Further the plaintiff’s letter of resignation to Metropolitan made no mention of any difficulty with the physical aspects of this job.

368

Counsel for the defendant submitted the plaintiff’s plan to undertake interstate truck driving with Bunker in early 2010 indicated he had a significant work capacity.

369

However, the plaintiff disputed some of these matters and I accept that he did experience difficulties at work at various jobs until he left Metropolitan in February 2010.

370

The return to Spotless was on light duties and the plaintiff was not required to wear the blower back pack. Whilst there was the issue of the missing stock, I accept that the plaintiff had difficulty with lifting heavy cages at Advantage.

371

Although the plaintiff’s back condition was aggravated in the tyre incident,, he attended the doctor on only one occasion and did not see Dr MacGill again for over six moths. Further he did not require any time off work after that incident.

372

The plaintiff clearly had increasing problems with his back whilst working on the trucks for Bunker in 2007. After funding for his physiotherapy treatment ceased in February that year, the plaintiff’s back condition worsened to the point where he was forced to cease work in September 2007.

373

The plaintiff then underwent treatment from Dr Gassin who carried out joint injections and the plaintiff’s medication was increased. After several months off work, the plaintiff returned to Bunker but could not cope with frequently getting in and out of trucks and had to leave that job. He complained to Dr MacGill of this problems in July 2008

374

Whilst working at Metropolitan In November 2008 the plaintiff told Dr MacGill he had an exacerbation of back pain whilst tying down a load. The plaintiff told Mr Kelman in March 2009 he was in constant pain and unable to carry out physical or labouring work. The plaintiff reported an exacerbation of back and neck pain to Dr MacGill on 14 May 2009 which he attributed to trying to work full time. He had further problems from September 2009 when he was required to lift cable ties.

375

The Metropolitan job was the plaintiff’s last. He failed the medical examination for Bunker due to his restricted back movement and the level of medication he was then taking for his back condition.

376

The plaintiff’s next attempt at seeking work was unsuccessful when he was unable to complete a driving test on a manual vehicle due to back pain.

377

I accept that the plaintiff has lost the capacity to do heavy unrestricted work. Having seen the surveillance DVD, Mr Kelman and Mr Shannon thought this was still the case.

378

In my view, given the plaintiff’s capacity to drive for long periods as evidenced by his ability to cope with driving duties in his post accident employment and also the extent of his recent recreational driving, the plaintiff does has a capacity for driving work, but not work not requiring lifting or bending, loading or unloading a vehicle.

379

The plaintiff himself said he felt he had to get back to work and would do interstate driving although he would find it difficult but right now he was not applying for such work because he was focused on staying home with his daughter.

380

I consider that in a relatively young man with little education and a history of manual work, the inability to work unrestricted in a range of heavy employments is a consequence which is more than considerable.

Medication and Treatment
381       The plaintiff’s present medication regime is significant and continues to be funded by the defendant.
382       After the accident he was initially prescribed Panadeine Forte. Naprosyn was prescribed after the tyre incident.
383       After funding for physiotherapy ceased in 2007, the plaintiff’s symptoms worsened. In late 2007 in response to complaint of disabling back pain Dr MacGill recommended an increase in Tramadol and use of Panadeine Forte. The plaintiff was also commenced on Naprosyn and intermittent Stillnox to help him sleep.
384       As at the time of the medical examination for the Bunker job in early 2010, the plaintiff was taking six and eight Panadeine Forte per day; Tramadol, 300 milligrams per day; as well as Endep, Naprosyn and Nurofen Plus.
385       In June 2011, the plaintiff was taking eight Panadeine Forte a day; Endep, 75 milligrams; Naprosyn SR, 1000 milligrams; Tramal, 200 milligrams; and Temazepam.
386       Counsel for the plaintiff relied on the comments of Dodds-Streeton AJ in Tatiara Meat Company Pty Ltd v Kelso [2007] VSCA 267, at paragraph 199, where her Honour stated the endurance of permanent daily pain requiring frequent medication must, according the ordinary human experience, raise a real prospect of a very considerable consequence.

Treatment
387       Since the accident, the plaintiff has required physiotherapy treatment at various times from Mr Salerno, most recently from October 2009 until January 2010 when the defendant again ceased funding treatment.
388       Dr Gassin’s treatment has included cortisone injections in January 2008, medial branch blocks in April 2008, a control block performed in May 2008 and injections of cortisone in June 2008.
389       In terms of future treatment, Mr de la Harpe requested an extensive physiotherapy and pain management program. Mr Malham thought recurrent episodes of chronic pain could be managed by targeted injections.

Other Consequences
390       The plaintiff has difficulty with prolonged standing and walking due to his back condition.
391       I accept that the plaintiff is restricted in his ability to play with and care for his very young and older children because of his back condition. This is a matter which upsets him significantly.
392       Whilst not a great sportsman before the accident, the plaintiff enjoyed social cricket, basketball and soccer, activities in which he can no longer participate.
393       Because of his physical restrictions, the plaintiff is largely reliant on his wife both in terms of home duties and also looking after him.
394       The plaintiff’s pain and restrictions cause him anxiety and frustration. He became tearful in the witness box describing how his back condition impacted on his relationship with his children and his inability to be the breadwinner.
395       I am permitted to take into account these expected mental consequences when considering the serious of the plaintiff’s physical impairment: see Winneke P in Richards v Wylie (supra).
396       The plaintiff’s depression, loss of self esteem and confidence as a result of his accident injuries was confirmed by Dr Weissman on examination in May earlier this year.
397       As the plaintiff’s back pain and restriction has persisted for nearly seven years without any sustained significant improvement, and the consensus of medical opinion is that the plaintiff’s pain and disability is likely to persist, in my view, his impairment is long term impairment.
398       Taking into account all the evidence, I am satisfied that the plaintiff has a long term serious impairment of his lumbar spine.
399       Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.

- - -

Credit
340	As Maxwell P stated in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:

Work
354	The consensus of medical opinion is that the plaintiff has no capacity for his pre injury work or work of a heavy physical nature.
355	Dr MacGill considered the plaintiff was totally disabled for his previous duties, both fulltime or modified. If the plaintiff’s condition improved in the future, he would be seeking light duties, such as administration or supervision, of which he had some experience but no recognised training.
356	Mr Malham considered the plaintiff’s pain and disability would wax and wane into the foreseeable future. Recurrent episodes of acute or chronic pain would impact on future work and leisure activities.
357	Dr Gassin thought the plaintiff’s symptoms impacted significantly on his leisure activities and that he had no current work capacity.
358	In January 2010, physiotherapist Mr Salerno thought the plaintiff’s injuries had a significant impact on his employment. Any work that involved travelling for more than an hour would be limited, such as the plaintiff’s previous occupation as a truck driver. Mr Salerno also thought lifting would be most affected. He suggested the plaintiff should not lift more than five to ten kilograms and not perform repetitive lifting. He should also avoid bending, twisting or stooping.
359	Having seen the surveillance DVD, Mr Kelman still thought the plaintiff would not be able to return to pre-injury heavy work however, he considered the plaintiff was not totally disabled and would be able to undertake work of a lighter nature including driving and operating machinery.
360	In July 2010, Dr Weissman thought on purely psychiatric grounds alone, mainly because of his resilience, stoicism and determination, the plaintiff would have a partial capacity for suitable duties. Physically speaking, he understood the plaintiff had no capacity to perform duties.
361	Having seen the surveillance DVD, in July 2011 Mr Kudelka thought the plaintiff was fit for employment which avoided heavy lifting of more than five to ten kilograms, repetitive bending, stooping and prolonged driving.
362	On the last examination in June 2011, and having seen the surveillance DVD, Mr Shannon thought the plaintiff was fit for work as a truck driver but not for loading and unloading. Although he thought the plaintiff was much more active on the film than on examination, Mr Shannon still thought given the plaintiff had disc degeneration and protrusion at two levels in the lumbar spine, he should avoid work involving prolonged or repetitive bending or heavy lifting.
363	Counsel for the defendant submitted any employment consequences were not serious, relying on the plaintiff work history after the accident until he left work with Metropolitan in early 2010.
364	It was submitted the plaintiff was able to return to work at Spotless where he continued his driving duties until leaving to take a better paid job at Advantage. During 2005, the plaintiff was able to engage in a range of other activities such as moving house, gardening, riding a motor bike and on one occasion at work, walking twenty kilometres whilst performing cleaning duties.
365	Whilst working at Advantage there was the tyre incident in which the plaintiff admitted he aggravated his back condition. Whilst the plaintiff said he left Advantage because of problems with lifting cages, in cross examination he admitted that the issue of missing stock may have also have been a reason for leaving this job.
366	The plaintiff then obtained work at Bunker having passed the medical and essentially stated in his application form that his ability to do that job was excellent. Further, the had plaintiff relatively little treatment in early 2007 whilst in that job.
367	The plaintiff initially said in his viva voce evidence that he could cope with the duties in his next job at Metropolitan but then later said he could not cope with lifting cable ties. Further the plaintiff’s letter of resignation to Metropolitan made no mention of any difficulty with the physical aspects of this job.
368	Counsel for the defendant submitted the plaintiff’s plan to undertake interstate truck driving with Bunker in early 2010 indicated he had a significant work capacity.
369	However, the plaintiff disputed some of these matters and I accept that he did experience difficulties at work at various jobs until he left Metropolitan in February 2010.
370	The return to Spotless was on light duties and the plaintiff was not required to wear the blower back pack. Whilst there was the issue of the missing stock, I accept that the plaintiff had difficulty with lifting heavy cages at Advantage.
371	Although the plaintiff’s back condition was aggravated in the tyre incident,, he attended the doctor on only one occasion and did not see Dr MacGill again for over six moths. Further he did not require any time off work after that incident.
372	The plaintiff clearly had increasing problems with his back whilst working on the trucks for Bunker in 2007. After funding for his physiotherapy treatment ceased in February that year, the plaintiff’s back condition worsened to the point where he was forced to cease work in September 2007.
373	The plaintiff then underwent treatment from Dr Gassin who carried out joint injections and the plaintiff’s medication was increased. After several months off work, the plaintiff returned to Bunker but could not cope with frequently getting in and out of trucks and had to leave that job. He complained to Dr MacGill of this problems in July 2008
374	Whilst working at Metropolitan In November 2008 the plaintiff told Dr MacGill he had an exacerbation of back pain whilst tying down a load. The plaintiff told Mr Kelman in March 2009 he was in constant pain and unable to carry out physical or labouring work. The plaintiff reported an exacerbation of back and neck pain to Dr MacGill on 14 May 2009 which he attributed to trying to work full time. He had further problems from September 2009 when he was required to lift cable ties.
375	The Metropolitan job was the plaintiff’s last. He failed the medical examination for Bunker due to his restricted back movement and the level of medication he was then taking for his back condition.
376	The plaintiff’s next attempt at seeking work was unsuccessful when he was unable to complete a driving test on a manual vehicle due to back pain.
377	I accept that the plaintiff has lost the capacity to do heavy unrestricted work. Having seen the surveillance DVD, Mr Kelman and Mr Shannon thought this was still the case.
378	In my view, given the plaintiff’s capacity to drive for long periods as evidenced by his ability to cope with driving duties in his post accident employment and also the extent of his recent recreational driving, the plaintiff does has a capacity for driving work, but not work not requiring lifting or bending, loading or unloading a vehicle.
379	The plaintiff himself said he felt he had to get back to work and would do interstate driving although he would find it difficult but right now he was not applying for such work because he was focused on staying home with his daughter.
380	I consider that in a relatively young man with little education and a history of manual work, the inability to work unrestricted in a range of heavy employments is a consequence which is more than considerable.

[2011] VCC 1456

14 December 2011