Steen v WorkSafe Victoria and Bupa Australia Health Pty Ltd
[2013] VCC 1204
•13 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04833
| COLIN STEEN | Plaintiff |
| v | |
| WORKSAFE VICTORIA | First Defendant |
| and | |
| BUPA AUSTRALIA HEALTH PTY LTD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2013 | |
DATE OF JUDGMENT: | 13 September 2013 | |
CASE MAY BE CITED AS: | Steen v WorkSafe Victoria & Bupa Australia Health Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1204 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back – pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Henry Carus & Associates |
| For the Defendants | Ms K A Galpin | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the second defendant on or about 17 November 2006.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the low back.
6 The plaintiff relied upon three affidavits sworn by him, the first sworn 18 April 2011 and two further affidavits sworn 8 November 2012 and 27 June 2013. The plaintiff also relied on an affidavit of Jarrod Daniel Massie, sworn 12 November 2012, and an affidavit of his wife, Emi Nakamura-Steen, sworn 12 November 2012. The plaintiff was cross-examined. I have only summarised the plaintiff’s evidence about his work history. However, I will refer to the plaintiff’s other relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of his employment with the second defendant;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of his impairments to the low-back in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph at [42]
10 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
11 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
14 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[10] and in Grech v Orica Australia Pty Ltd.[11]
[10]supra
[11](2006) 14 VR 602
The issue
16 Counsel for the defendants informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s injury did not meet the test of seriousness for pain and suffering, in that the consequences could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s evidence of work
17 The plaintiff’s evidence was that he had a Masters Degree in Marketing and International Business. He returned to Australia from Japan in 2003 and commenced employment in sales. Between February 2004 and June 2006, he was running his own business, which ran at a loss. He received Centrelink benefits in 2006.
18 In June 2006, the plaintiff obtained employment with the second defendant as a sales representative, which involved visiting dentists and marketing HBA products. He continued in that role after the injury. In January 2007, he had a short period off work. He returned to work, at times working full-time hours, and at other times he was working modified duties. By August 2007 he was working one day per week in telemarketing with HBA, which he found demeaning, and so resigned.
19 The plaintiff remained unemployed since August 2007, save for occasional marketing and consultancy work, mainly in the hospitality industry, and worked from home, working fur days per week. In 2007 and 2008, he travelled to Indonesia for business.
20 In January 2011, the plaintiff commenced a cookery course.
21 In late 2011, the plaintiff obtained employment with NEC in sales and marketing.
22 The plaintiff’s employment with NEC as a marketing consultant and sales person was terminated at the end of October 2012. Currently, he is supporting his wife who is working full time, and caring for his two young daughters. He performs most of the housework. At the same time he has performed consultancy work when available.
23 While employed with NEC, the plaintiff travelled overseas on three occasions, unrelated to his employment with NEC. Two trips were to attend Microsoft events and one trip was to Japan to visit his father-in-law, who was very ill. The plaintiff did not report any difficulties with travel.
The Plaintiff’s medical evidence
Dr Philip Soffer
24 In approximately March 2007, Dr Soffer, general practitioner, commenced to treat the plaintiff for his November 2006 back injury. Dr Soffer said the plaintiff suffered a disc injury at L4-5 and L5-S1. He referred the plaintiff to Mr Schofield, orthopaedic surgeon.
25 In October 2012, Dr Soffer reported that he had prescribed analgesic medication, Tramadol, and arranged further gym and massage treatment to assist the plaintiff with his ongoing pain. He anticipated that there would be flare ups of pain from time to time and anticipated that in the long term, there would be a gradual reduction of the plaintiff’s symptoms, both in severity and frequency. He said the plaintiff is able to work but pain continues to be a persistent feature.
26 In May 2013, Dr Soffer prescribed Temazepam and Panadol for the plaintiff’s disc injury.
27 In July 2013, Dr Soffer said the plaintiff still required analgesia from time to time, and supervised gymnasium and massage programs. He said the plaintiff had a full capacity for his current employment and that his prognosis was optimistic.
Mr Stanley Schofield
28 Mr Schofield, orthopaedic surgeon, treated the plaintiff on nine occasions between March 2007 and March 2011.
29 In May 2007, Mr Schofield administered a nerve root injection on the left side of the L4-5 and L5-S1, which produced some benefit, as the plaintiff had less leg pain but continuing back pain.
30 In March 2012, Mr Schofield reported to the plaintiff’s solicitor. Mr Schofield said, when last examined by him in March 2011, the plaintiff had persistent pain in his back and left leg since the injury in November 2006. He said the plaintiff had minimal signs of radiculopathy. The MRI scan has shown persistent compression of the left L5 nerve root at the L4-5 level, with the lowest lumbar disc being sacralised.
31 It was his view that the plaintiff had evidence of a disc prolapse with left-sided low lumbar tenderness, wasting of the left buttock and mild restriction of straight leg raising, producing pain on the left to 80 degrees. The MRI scan demonstrated a prolapse at the lowest mobile disc, which has occasionally been reported as the lumbosacral level.
32 Mr Schofield thought the plaintiff’s prognosis remained guarded and that it was more likely than not that the plaintiff would require surgery in the future.
Mr Peter Wilde
33 Mr Wilde, orthopaedic surgeon, treated the plaintiff on referral from Mr Schofield. Mr Wilde treated the plaintiff on four occasions, last seeing him in January 2012.
34 In June 2012, Mr Wilde reported that the plaintiff suffered a left L5-S1 disc prolapse causing S1 and L5 intermittent radiculopathy. He recommended that the plaintiff be treated with conservative measures. He noted that the plaintiff’s current medications were Tramadol and Panadeine Forte. He described the plaintiff’s disability as mild, relating to lumbar pain and stiffness.
35 Mr Wilde said that at the plaintiff’s last consultation in January 2012, he thought the plaintiff had a work capacity for sedentary light duties work, although he noted the plaintiff struggled with the prolonged sitting required. He noted that he worked in an office.
36 Mr Wilde said the plaintiff’s prognosis was guarded and he expected that he would always suffer with low-grade symptoms of chronic lumbar pain and stiffness. He said the plaintiff would need to modify personal and work activities to accommodate his symptoms to avoid further deterioration. He did not recommend surgery.
Mr John S O’Brien
37 Mr O’Brien, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors in June 2010, August 2012 and July 2013.
38 In July 2013, the plaintiff complained of constant pain in the lower back with pain in the left buttock. The plaintiff assessed the severity of his pain at 3 out of 10 on the Visual Analogue Scale. Mr O’Brien said in the past twelve months, there was no change in relationship to clinical findings. The plaintiff demonstrated some painful restrictions of lumbar movement.
39 It was Mr O’Brien’s view that the plaintiff had chronic back and left leg pain which relates to discogenic pathology at the lowest motion segment of the lumbar spine. He accepted that employment remained a significant contributing factor to the plaintiff’s chronic symptoms. He said the plaintiff’s clinical condition remained stable. He noted the plaintiff had continued with a fairly active exercise program and used medication, which he described as frequent rather than regular use, in particular, painkilling medication.
40 Mr O’Brien said the plaintiff’s prognosis remained poor, as he will continue to experience chronic pain. He said the plaintiff continues to describe moderate disability and that he is capable of light physical duties of a sedentary nature on a full-time basis. He said the plaintiff has not chosen to return to work but he was sure that when he does, employment will have to be confined to light duties. Overall, the plaintiff does remain mildly limited in his general, domestic, social and recreational activities, which he considered would be permanent.
Associate Professor Hart
41 Associate Professor Hart, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitor in December 2009, January 2010, October 2012 and July 2013.
42 In July 2013, Associate Professor Hart reported that the plaintiff said the pain had persisted since he was last seen but was minimal in the lower back, and that the major pain was in the left buttock and anterior aspect of the left thigh. The thigh pain extends to mid-thigh level and is constant, and occasionally extends to the knee. The pain is aggravated by impact loading, bending and lifting, activities which he avoids.
43 The plaintiff reported that he was retrenched in October 2012, had undertaken two market research contracts, which occupied him for eight weeks in total, and that he would be interested in returning to work of a similar nature with the proviso that prolonged sitting was avoided. Currently, he is working as a house husband.
44 Associate Professor Hart said that he thought the plaintiff is likely to have aggravated pre-existing posterior facet degeneration and possibly pre-existing disc degeneration, but the prolapse at L5-S1 and possibly L4-5 occurred as a direct result of the injury at work in November 2006. He thought surgery was unlikely to be appropriate. He did not detect any significant functional component or psychological reaction. He said the plaintiff would be unable to perform any activity which involved repetitive bending, lifting more than 10 kilograms and repetitive pushing and pulling. He is also limited in his ability to sit for prolonged periods. He noted that the plaintiff’s work has been predominantly of a sedentary nature and said that if he was to return to that type of work, he would need to have a position where he could readily change posture and stand as required. He thought the plaintiff could perform contract work on a full-time basis with the restrictions described.
The Defendants’ medical reports
Mr Michael Dooley
45 Mr Dooley, orthopaedic surgeon, saw the plaintiff in October 2012 at the request of the defendants’ solicitors.
46 Mr Dooley said that the plaintiff sustained a left-sided disc prolapse at the L4‑5 level in the work-related episode of November 2006. He said the plaintiff had naturally occurring degenerative disc disease of the lower lumbar spine. He said the disc prolapse did involve an aggravation of the underlying degenerative process. It was his opinion that the plaintiff should continue his exercise and fitness program and sensibly modify his activities. He believed that it was unlikely the plaintiff would require surgery. He said the plaintiff’s current employment was appropriate; he has the physical capability to carry out light physical and clerical-type work. He could not engage in regular heavy physical work or work that involved a lot of bending and lifting.
Video-surveillance
47 I was shown no film of the plaintiff, even though video-surveillance of the plaintiff was undertaken. I can only conclude that the film did not assist the defendants.
Credit of the Plaintiff
48 The plaintiff was university educated. He was articulate and provided the Court with a comprehensive history of his condition and its consequences.
49 There were a number of issues with the plaintiff’s evidence which were inconsistent with other evidence he gave. First, Counsel for the defendants questioned the plaintiff about his stated “career goals” in an assignment he completed for the Certificate III course in hospitality. I accept the plaintiff’s evidence that he was not building a restaurant in Japan: it was a concept only.
50 Second, in his second affidavit, the plaintiff said that while he was employed with NEC he was concerned that his back injury and time off work would affect his ability to continue to work and was considering approaching NEC about reducing his hours. This was inconsistent with what he told Associate Professor Hart in October 2012. The plaintiff reported to Associate Professor Hart that he planned to reduce his hours to part time because of the stress of the job, which he said was not specifically related to the injury.
51 Third, the plaintiff told Mr O’Brien that the job involved a moderate amount of travel, which caused some aggravation to his pain. He told the Court the travel was around the CBD and involved walking.
52 Fourth, in his second affidavit, the plaintiff swore:
“Since commencing employment with NEC, I have had to take time off in the form of sick leave and annual leave because of my back pain. I have taken all my sick leave and have exhausted all my annual leave, because of my back pain.”
53 This is not consistent with the plaintiff’s evidence of taking leave to travel for conferences unrelated to work, visiting Japan when his father-in-law was dying or the NEC leave history for the plaintiff. In cross-examination, the plaintiff agreed he was entitled to annual leave and ten days of personal carer/sick leave. His evidence to the Court was that he was employed by NEC from late 2011 until October 2012, approximately twelve months. His evidence was that during this time, he took leave to travel overseas in March, June and September 2012. This is not consistent with his evidence that he exhausted his leave because of his back pain.
54 As a consequence of inconsistencies in the plaintiff’s evidence, I approach the plaintiff’s evidence with caution. I place greater weight on his evidence when it is supported by independent evidence.
Analysis
55 All doctors accepted the plaintiff suffered a work-related injury and that the injury was permanent. Counsel for the defendants considered that the plaintiff had suffered a prolapse, but whether it was at one level or another is a matter of some difference of opinion. However, it was not material to the overall issue that needed to be decided.
56 The issue was whether the consequences satisfied the statutory test.
57 I must make the assessment as at the time of the application. Accordingly, I place greater reliance on the more up-to-date medical evidence of Dr Soffer, Mr O’Brien, Associate Professor Hart and Mr Dooley.
58 The plaintiff described the pain he suffered to Mr Dooley, Mr O’Brien and Associate Professor Hart. He told Mr O’Brien he had constant pain in the lower back which he described as 3 out of 10 on the Visual Analogue Scale. He reported minimal pain in the low back to Associate Professor Hart and said the major pain was in the left buttock and anterior aspect of the left thigh. He described ongoing low-back pain affecting the left buttock and thigh regions to Mr Dooley.
59 The plaintiff reported to Mr O’Brien that the pain was aggravated by prolonged sitting for more than 20 minutes and sudden movements such as twisting his back and any jarring of the back. He told Associate Professor Hart that he could stand for 30 minutes and drive for 15 to 20 minutes before developing discomfort, and is able to continue those activities beyond that point.
60 All doctors accepted the level of pain the plaintiff reported. All doctors accepted that bending and lifting were activities that would affect the plaintiff’s level of pain. I accept the plaintiff’s evidence that bending, lifting, prolonged sitting and sudden twisting and jarring movements affect the level of pain he suffers.
61 In May 2013, the plaintiff’s general practitioner prescribed Tramadol and Temazepam and said the plaintiff required analgesia from time to time. In 2010, the plaintiff told Mr O’Brien he was taking the occasional Tramal for pain and sleeping tablets. In 2013, the plaintiff reported to Mr O’Brien he was taking Tramadol once every few days and limiting anti-inflammatory medication. The plaintiff reported to Associate Professor Hart that he was taking Tramal on alternate days, the occasional Mobic and Temazepam. The plaintiff told the Court he was taking Tramadol on a daily basis and Temazepam at night about twice a week to help him sleep. The plaintiff reported side effects of the Tramadol of drowsiness and impaired concentration. I accept that the plaintiff takes medication on an ‘as needs’ basis and that currently he is taking Tramadol daily and Temazepam twice a week. I accept that his sleep is affected.
62 The plaintiff told the Court that he visited his general practitioner every three to four months. Otherwise, he managed his pain.
63 In November 2012 the plaintiff said he thought he would benefit from a further nerve root injection. Medical witnesses who reviewed the plaintiff in 2013 have not recommended such a procedure.
64 The plaintiff reported to the doctors that he cycled regularly. He told Associate Professor Hart he was cycling 5 kilometres three times per week but told the Court that during the cold weather he was not cycling. He reported walking regularly and swimming once per week. He had a home-based gymnasium where he performed exercises. All doctors accepted that it was appropriate for the plaintiff to continue his exercise and fitness regime.
65 Mr Schofield said it was more likely than not that the plaintiff would require surgery in the future. As opposed to this view, Mr Wilde did not recommend surgery and Mr Dooley said the plaintiff was unlikely to require surgery. Associate Professor Hart agreed with Mr Wilde. On balance, I prefer the evidence of Mr Wilde, Mr Dooley and Associate Professor Hart. Their view is the majority view and they have examined the plaintiff more recently than Mr Schofield. Accordingly, I accept it is unlikely the plaintiff will require surgery.
66 The plaintiff also said he was taking quinine for cramps and was suffering bladder dysfunction. He had referrals to see a neurologist and urologist. There was no suggestion in any of the medical reports that these matters were in any way related to the injuries he suffered as a result of the work accident. Accordingly, I do not accept the cramps and bladder dysfunction are consequences of the work injury.
67 In May and July 2013, Dr Soffer examined the plaintiff and said there was minimal ongoing disability, and his prognosis was optimistic. He prescribed Temazepam and Tramadol. He said the plaintiff required analgesia from time to time, and supervised gymnasium and massage programs.
68 In July 2013, Mr O’Brien said the plaintiff was capable of light physical duties of a sedentary nature on a full-time basis.
69 In July 2013, Associate Professor Hart examined the plaintiff. He said the plaintiff’s work had predominately been sedentary. If he returned to the work he previously had performed, he would require a position where he could change posture as required. He said the plaintiff could return full-time to contract work with restrictions of no repetitive bending, lifting more than 10 kilograms and no repetitive pushing or pulling and no prolonged sitting.
70 In November 2012, the plaintiff was examined by Mr Dooley and complained of back pain and pain affecting the left buttock and thigh region. Mr Dooley said the plaintiff had a capacity for light physical work and clerical work.
71 The evidence was that prior to the injury, the plaintiff was in the large part working from home in a marketing consultancy business. He and his wife shared the household duties equally. Since the injury, the plaintiff has largely remained unemployed save for occasional marketing and consultancy work, working from home. In late 2011, he had a period of full-time employment working for NEC. That work was terminated at the end of 2012. Since then, the plaintiff has chosen to be responsible for the care of his family and maintaining the house. On occasions, he obtains contract work.
72 The up-to-date medical evidence is that the plaintiff can work light physical duties of a sedentary nature on a full-time basis. Associate Professor Hart and Mr Dooley imposed restrictions of avoiding repetitive bending and lifting. Mr Dooley said he should avoid prolonged sitting. There was no evidence that the marketing and consultancy work the plaintiff has performed would be prohibited by the restrictions imposed. Accordingly, I accept that the plaintiff has the capacity to do similar work to what he has performed in the past, both before his injury and after his injury, including the work he performed in 2012 with NEC. I accept that the plaintiff has not been excluded from pre-injury work.
73 The plaintiff said that the pain interferes with the activities he undertakes with his children. He no longer feels comfortable lifting his five-year-old daughter. He finds it difficult to run and chase them and play ball sports. A number of the doctors said the plaintiff would be unable to run. None of the doctors commented on ball sports. I accept that, to a limited extent, the plaintiff’s activities with his children have been interfered with, although the plaintiff has retained the capacity to cycle, swim and walk, which are activities he will be able to perform with his children, which I must take into account.
74 The plaintiff reported difficulty in bending and lifting and undertaking physical tasks such as mowing the lawn. He said he is able to undertake domestic duties, except for making the bed and cleaning the shower.
75 All doctors accepted the limitations the plaintiff reported. Mr O’Brien said that overall, the plaintiff remained mildly limited in his general, domestic, social and recreational activities, which will be permanent. I accept he is restricted in some of the activities he engages in or would like to engage in with his children.
76 In his second affidavit, the plaintiff said his sex life had been affected by his injury. This was not reported by any of the medical witnesses; he did not refer to it in his most recent affidavit and it was not referred to in his wife’s affidavit. Accordingly, I take it into consideration but do not place great weight on this consequence.
77 The plaintiff relied upon two further affidavits; one of Jarrod Massie and another of his wife. I have read those affidavits. Mr Massie’s affidavit, in part, is inconsistent with the plaintiff’s evidence and with the medical evidence. I prefer the evidence of the plaintiff and medical witnesses to that of Mr Massie. The affidavit of Ms Nakamura-Steen provides a detailed history of the plaintiff’s medical condition and limitations. However, I must consider the plaintiff’s consequences at the date of hearing. Ms Nakamura-Steen supports the plaintiff’s evidence that he can perform activities, but with consequences. For example, after playing with his children, he requires rest. This, I can take into account.
78 The issue was whether the consequences of the plaintiff’s injury met the test of seriousness for pain and suffering, in that they could be considered to be “more than significant or marked”, and as being “at least very considerable” when compared to other cases in the range.
79 In considering whether the plaintiff’s impairment is “at least very considerable” weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[12]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[12][1998] 1 VR 702
80 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of “very considerable” magnitude. Although the plaintiff’s low-back injury has had a notable affect on his life, he retains the capacity to participate in many activities and to undertake light full-time work of the kind he was performing when in employment with NEC and pre-injury.
81 In Stijepic v One Force Group Aust Pty Ltd,[13] Ashley JA and Beach AJA said:
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[14]
[13]Ibid
[14]Stijepic v One Force Group Aust Pty Ltd (Ibid) at paragraph [42]
82 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[15]
[15]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
83 It is accepted that the plaintiff has residual symptoms with his low back. The plaintiff has the capacity to perform light physical work consistent with the work he has been engaged in previously. He can swim, walk and cycle. He has retained the ability to perform gymnasium exercises. The plaintiff was an active man and, to his credit, he has maintained an active lifestyle. He drives his motor vehicle, even though after 15 to 20 minutes he is aware of the pain.
84 The plaintiff has retained the capacity to travel overseas. He attended Microsoft events in March and June 2012, unrelated to his employment with NEC, and also travelled to Japan in September 2012 to visit his father-in-law. He did not report any difficulty with international travel. He reported public transport was difficult, but he did travel by public transport. Currently he is a house husband and is able to perform all duties other than making the bed and cleaning the shower.
85 I am satisfied the plaintiff has suffered an injury to his low back that has had consequences to him. He has intermittent mild pain, for which he takes analgesic medication. His sleep is disturbed and he takes medication to help him sleep. He is restricted to light physical work, of the type he was previously employed in. He has lost the ability to undertake heavy physical work such as making the beds and cleaning the shower and has difficulty with mowing the lawn. He requires a rest during the day. His activities with his children have been limited. I accept these are consequences I can take into account.
86 Although the plaintiff’s low-back injury has had an effect on his life, he retains the capacity to participate in many activities and to undertake full-time work.
87 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept that the plaintiff suffered an injury to his low back at work in November 2006. I accept that the injury has had consequences to him, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
88 Accordingly, I dismiss the application.
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