Sutherland v Barden Steeldeck Industries Pty Ltd
[2017] VCC 1390
•25 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI- 16-04325
| KEITH SUTHERLAND | Plaintiff |
| v | |
| BARDEN STEELDECK INDUSTRIES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19,20,21,22 September 2017 | |
DATE OF JUDGMENT: | 25 September 2017 | |
CASE MAY BE CITED AS: | Sutherland v Barden Steeldeck Industries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1390 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury-low back-two incidents
Legislation Cited:
Cases Cited:
Judgment: Leave granted for both incidents
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Hartley QC with Mr N Griffin | Maurice Blackburn Lawyers |
| For the Defendant | Ms K Galpin | Hall and Wilcox |
HIS HONOUR:
1 Mr Sutherland seeks leave and relies on a low back two level disc injury sustained he says in two distinct incidents in the course of his employment with the defendant.[1] The first occurred on 20 September 2011 and the second on 20 February 2013. They both came on a background of past lumbar disc pathology and symptoms so each incident was said to be a further aggravation.
[1]Transcript (T) 6
2 The plaintiff worked as a roof plumber with the defendant. He had pursued that trade effectively from when he failed year 10 at school and went off to TAFE, completed an apprenticeship and then worked all his adult life as a qualified man.[2] He has never known any other work. He worked roofing commercial buildings.
[2]Plaintiff’s Court Book (PCB) 14
3 He started with the defendant on 12 August 2008. The first incident was when he was working on the roof of a large water tank at a Baulderstone construction site in Carrum Downs on 20 September 2011. The second was when he was working on a Lend lease construction site high rise roof at Docklands on 20 February 2013. That last date was the final day he worked as he only came in next day in order to pick up his tools.
4 He is a 49-year-old man who clearly had suffered some low back symptoms in the years prior to starting with the defendant on 12 August 2008. However they were intermittent and able to be managed. They required very little time off work and treatment was minimal. He had some therapy and medication but over decades he was able to carry out his heavy manual trade working full time. Copious clinical notes show he also suffered some kidney problems and the notes are not always clear as to whether it was kidney based symptoms being recorded in the low back area or truly spinal complaints.
5 Taking a before and after approach I accept the evidence that really he only need occasional chiropractic and medical treatment prior to the first incident. He was working full-time carrying out full duties. He was leading a normal life outside of work, around the house and enjoyed a wide range of leisure pursuits. Some of these were quite physical and the records indicate that included motorbike riding, chopping wood and runs and rides around Cardinia Reservoir.[3] When asked in cross-examination about the impact of his back condition on his leisure activities he stated that they were “pretty much unencumbered”.[4]
[3]PCB 18-20
[4]T 186
6 I accept this contrasts starkly with his life after the 2011 first incident. Those leisure activities could not be enjoyed due to back pain. Fishing and camping ceased. He had bought a new motorbike just before the incident but he had not ridden since. Even housework had to be done in stages and limits. His social life was affected in that he was unable to go on the outdoor activities such as push bike riding that he used to previously enjoy.[5] In addition the pain he suffered was much more significant and interfered with the sleeping and caused him to lack energy through the day. [6] In my opinion these are pain and suffering consequences of his low back impairment that can be fairly described as at least very considerable when judged by comparison with other cases across the range of impairments.
[5]PCB 19
[6]PCB 18
7 He went to his local doctor on 6 July 2011 when muscular low back pain was recorded.[7] He had a CT scan the next day which showed some disc degeneration.[8] For a man working for years in his heavy trade that degeneration was not surprising. Mild to moderate was the language used but degeneration does not necessarily translate into symptoms of any consequence let alone any real impairment given his age and work. He took no time off work at that time . Consistent with him not having any significant impairment, he was offered the option of going to a neurosurgeon at the time but he did not take that offer up. In fact he did not go and see any doctor again until the attendance on Baulderstone ‘s Dr Gopathy on the day he hurt his back in the first incident.
[7]Exhibit 2
[8]PCB 49-50
8 A before and after analysis of his employment shows he was working unimpeded carrying out his daily heavy duties in full-time employment with the defendant before the first incident. [9] This changed after that. He worked on but never on full duties from thereon and he said “I wasn’t actually lifting, bending, stretching at the time”.[10] He described his limited role at work between the first and second incidents and said “It was sort of left up to my own, you know, what I could cope with at the time”.[11]
[9]PCB 14
[10]T 42
[11]T 52
9 He was getting other men to help him on the job such as lifting sheets of roofing which he had done himself previously.[12] He also said “I never got back to the same tasks that I was doing before I had the injury” and he described how he was limited in carrying tools, climbing up and down ladders and unloading trucks compared with how he had been before the first incident.[13]
[12]T 116
[13]T 184
10 Looking at the before period of more than three years between starting with the defendant on 12 August 2008 and that first incident on 20 September 2011, there is no evidence from the employer or anywhere else that he took any time off for a back problem. There is also no evidence from the employer defendant of him ever being on any light or reduced duties in those years. It is also relevant that apart from going into his local doctor in July 2011 when he had the CT scan that showed degeneration, he had no attendances on doctors for low back symptoms over that period of three years. It is apparent he was able to work on and cope with full duties with the assistance of some sporadic chiropractic treatment.[14]
[14]PCB 46-48
11 The probabilities are he had no real impairment of the back at all. While there was some intermittent , minor symptoms as he worked away each day in his heavy trade he suffered no incapacity with respect to work or daily life generally.
12 Then the first incident occurred when a gust of wind caught some roofing he was carrying on the roof. It caused him to suddenly twist. He felt immediate pain in his back. Baulderstone was the head contractor on site and one of its employees took him to their doctor. This was a Dr Gopathy who issued a number of WorkCover certificates. The plaintiff has never seen these as they were taken away by the Baulderstone employee. Dr Gopathy referred him for physiotherapy.
13 The plaintiff said he was off work for about six weeks although it may have been less than that. He was suffering very significant symptoms. They made it difficult for him to move and he was essentially on his back. He was taking large quantities of Panadeine Forte.[15] When he returned to work he never resumed his previous full manual duties.[16] I am satisfied he never got back to full duties.[17] He was accurate when he described how he was going as “ I wasn’t managing well”.[18]
[15]PCB 16
[16]T 71
[17]T 116
[18]T 67
14 The affidavit described his job at that time as “a more supervisory role” but the plaintiff did not really agree he was a supervisor. While it was difficult sometimes for this man to explain himself in the sense that his comprehension was very limited, even when answering straightforward questions, I take his evidence as describing light duties rather than any real supervision.
15 He had an apprentice who carried out the heavier tasks.[19] The plaintiff really worked on doing what he could cope with. He did this for nearly a year until about August 2012 when one of the defendants employees left the work site to go to another site. This meant the plaintiff had to take on more manual tasks as they were one employee down. This caused him more back symptoms. He was finding that at the end of the day he had a back pain radiating down to the hip and groin area. He would need to rest in his car for half an hour or so before he was able to drive home because of his low back pain. He went on performing light duties assisted by some chiropractic treatment. Over the next year or so following the first incident there were a number of other occasions which I take to be flare-ups of low back symptoms. One was in about June 2012 which he reported to his boss and involved severe low back spasm after lifting a 4 metre long sheet of iron. He had to take himself home because of the symptoms. [20] While he was still able to work on doing ten hour shifts it was on reduced duties the first incident was a clear aggravation of his low back condition.
[19]T 47
[20]PCB 16
16 After the Christmas break he started at the Docklands site. The second incident occurred as he was laying the roof on a high-rise building when his hand/finger became caught between a clip and a roofing sheet. He exerted a lot of pressure to try and free his hand and in the process suffered severe pain in his low back. He went to the Lend Lease first aid officer on site who wrote down the incident in the Lend Lease first aid register. [21]
[21]T 74
17 The question whether or not he hurt his back in this second incident and whether it was reported, was probably the major topic on which the plaintiff’s credit was scrutinised. He had earlier been asked about when he first attended his own general practitioner following the first incident and some discrepancy between his affidavit and what the clinical notes illustrate was pointed out. The plaintiff readily conceded he was probably wrong and he had not attended on Dr Too as promptly as he had originally thought.
18 There was also some challenge about how long he was off work following the first incident. While he thought it was off about six weeks, Dr Gopathy’s notes would indicate that it may have been closer to 2 weeks. Again the plaintiff conceded he was vague about dates. I did not draw any adverse inference as to credit with respect to his poor recollection of these details so far back.
19 But the major attack as I have already indicated was with respect to the question of the reporting of a back injury in the 2013 second incident at Docklands. The plaintiff told his own boss in the smoko shed but he just “laughed and made a big joke of it.” [22] The back pain was such that it forced him to his knees. After a rest he got into his car but could not drive for 20 minutes or so. A stranger had helped him and after driving home he collapsed with pain just inside the door. He slept on the floor due to back pain and the next day he contacted his boss by text message. Except for going into work to pick up his tools the next day he has been unable to continue working since.
[22]T 75
20 In cross-examination the plaintiff was attacked on what was in or not in a very lengthy set of clinical notes. His recollection of nearly all of these was very limited indeed. Often it was clear that he had a quite a lack of even basic comprehension as to just what it was counsel was asking him. Some of the records he was asked about were 15 or more years old going back to 2002. It was of little assistance to the court in terms of being a challenge to credit.
21 Caution must be exercised in relation to dealing with computer-driven clinical notes. Unfortunately none of these doctors were called. However it is clear that these brief notes could not possibly be anything like a full record of the exchange between doctor and patient. They are patently just a very short hand version, often in a one word or two, recording a complaint or a problem.
22 Just how inadequate notes are can be seen when as late as 1 July 2016 under the heading “Previous Conditions” there appears “None Recorded” when there have been pages of various attendances and conditions reported going back to December 2000. Similarly on the same day under “Medical History” all the notes say is “03 URETERIC STONE”. In my opinion the clinical notes in this case are so brief and inadequate that often they are nonsensical. The inferences that are sought to be drawn from these notes, with respect to what is mentioned there or what is absent there, is little more than impermissible speculation.
23 Examples of the medical evidence the plaintiff was questioned about included the notes between 2002 and 2008 where there is some record of past back complaints. These are mixed in very often with problems with his kidneys. The kidney problem in itself leads to some vagueness about just what these notes were intended to record by way of low back problems. Clearly there is an overlap between kidney based symptoms and a low back condition and the plaintiff conceded as much. I do not need evidence to satisfy me that kidneys and the lumbar spine are situated in the same general region of the human body. Just this fact highlights the danger in too heavy a reliance on skimpy notes that were not explained by the doctor.
24 What is clear is that after he started work with the defendant in August 2008 there is a distinct absence of any problems with his back as recorded by his doctors until the time of the CT scan three years later on 7 July 2011.[23]
[23]PCB 49-50
25 As to credit he was also questioned about medical notes and WorkCover certificates concerning the left shoulder. These seem to start up in about 2014 and the plaintiff concedes he hurt his left shoulder in the second incident. He repeatedly said he thought the Workcover certificates were for both the back and shoulder and that the doctor at some stage just added the shoulder in to the certification as to capacity. This is probable as the patient did have shoulder complaints arising from the work incident and the doctor would have been keen to ensure he was being paid by Workcover for medical treatment directed to the shoulder. The shoulder was no secret. The plaintiff described he suffered pain in his left shoulder in his very first affidavit. [24] I accept the plaintiff’s evidence that he was contacted by someone working for the insurer who told him the shoulder could not be just added in, as the doctor had done, but a separate Workcover claim needed to be filed. That was done because he readily agreed he had hurt the shoulder in the second incident.
[24]PCB 17
26 Shoulder problems coming on top as they did of his continuous and constant low back pain and impairment, neither affects his credit in this case nor the strength of the application for the primary impairment, namely the low back. I accept his evidence that he has not got shoulder pain now.[25] Overall he impressed me as having a rather stoical attitude to his back and health issues generally.
[25]T 153
27 Following the second incident there was a spurt of treatment. His own general practitioner, Dr Too, treated him conservatively with physiotherapy, medication, gymnasium programs but also referred him to a neurosurgeon Dr Paul D’Urso. He thought surgery was not a treatment option so conservative treatment has been pursued up to the present time. The lift in the level of treatment after the second incident clearly demonstrates support for the plaintiff’s evidence about a heightened level of back symptoms following that aggravation.
28 I accept the evidence of the plaintiff that since going off work in February 2013 the current situation is his constant back pain has continued even though the level of pain varies. When it is bad he seeks relief by lying on the floor. It is difficult sitting in a car for any length of time and even 30 minutes is a limit to car journeys. It is continuous pain he suffers in the low back. Any exercise aggravates the pain as well as making him feel tired. He continues to see his general practitioner and take pain killing and other medication.[26] Unfortunately there has been no other viable treatment option offered to him. Since stopping work his “symptoms have stayed the same”.[27]
[26]PCB 18,20,21-23
[27]T 49
29 In virtually every aggravation case the evidence of the worker is crucial in judging an impairment. This even more so here where there was some pre-existing back problems, then the aggravation caused by the first incident and then the further aggravation caused by the second incident. This was a lengthy serious injury hearing occupying four days. I had the considerable advantage of not only hearing the plaintiff give evidence but observing him in the witness box. He failed year 10 at school and then left. He does not even own a computer let alone have any computer literacy. He struck me as a very shy and unsophisticated man who had a great deal of difficulty at times even following straightforward questions. He did not even know what “radiology” was or what “ a despatch area” meant. [28] He was speaking candidly and accurately when he said, because of his personality when asked about a sales job, “I would say that I am not that - that forward with people ,to sell them something”.[29]
[28]T 161,147
[29]T 183
30 He was clearly embarrassed about not being able to follow paperwork very well. After enquiring several times about his difficulty in this regard and whether he needed spectacles as he held the written documents well away from his body and in different postures, he volunteered rather sadly that “I can’t do English or maths or anything” when it came to paperwork.[30] After reading “three words he got lost”.[31] The hand written letter he wrote to a doctor speaks volumes about his severely limited writing capacity for a man whose first language is English.[32]
[30]T 77
[31]T 172
[32]PCB 25A
31 He was a very compliant witness. He often seemed anxious to agree with virtually anything that was suggested to him as he appeared very uncomfortable and keen to be out of the witness box. His lack of comprehension was so obvious on repeated occasions I enquired whether he understood a simple question or was on the right document[33] . In the end, in spite of these limitations, I found he was a man who was trying his best at all times to tell the truth.
[33]T 48, 51,54,60,68
32 He was a reliable and consistent witness in terms of his description of how his back was before and after each incident. He was accurate with respect to a history prior to the first incident of only intermittent, insignificant low back symptoms made very worse by the first incident and even worse again by the second. He presented as a man with a good work ethic who had worked in a heavy trade all his adult life. He was still very anxious to work. Unfortunately given his age, lack of education, experience and other personal characteristics he is a man with very real limitations for employment other than in the only work he has ever known.
33 I will now direct some comments to the medical evidence. After the first incident he was taken to Dr Gopathy who was Baulderstone’s doctor and his notes have been supplied. They confirm the attendance on 20 September 2011 with follow-up visits the next day, two days later then about two weeks later. There was a referral for physiotherapy, he was put on light duties and low back spasms were noted on a number of occasions. Also medication was prescribed.[34] The last time the plaintiff saw this doctor was 6 July 2012 when after some other flareup in about June, swelling and tenderness in the low back were recorded as was spasm. [35] The contrast between the treatment journey in the years prior to the first incident and what happened as soon as he got to Dr Gopathy supports a major aggravation in that incident. There is no up-to-date material from this general practitioner to assist the task of judging impairment now and he did not see him after July 2012.
[34]PCB 129-130
[35]PCB 128
34 The plaintiff’s local doctors have been Dr Too and Dr Molnar from the Access Medical Group and their considerable notes starting in 2000 have already been referred to. Dr Too wrote an undated report that from the text seems to be in late June 2006.[36] It described back complaints and treatment up to that time but it is now over eleven years old and is of very limited weight in assessing an impairment now especially seeing the worker went on full time roof plumbing for almost the next seven years until 20 February 2013.
[36]DCB 181-182
35 Five other reports from that clinic bring things up-to-date and are most helpful in assessing the impairment now. In April this year Dr Molnar could not have been clearer in effectively saying his patient was unemployable. He reported “He has no capacity to resume his former duties. He is able to work in any job which does not involve working at heights or involves bending or lifting more than 10 KG. Taking into account his age work skills and experience, it is very unlikely he will be able to work again.”[37]
[37]PCB42
36 He had also said earlier this year with respect to a suggested alternative job as a sales assistant cashier that “Given his education and training and experience together with his debilitating medical condition he is unable to perform duties as sales assistant cashier. Mr Sutherland will continue to have back pain for a very long time if not forever.”[38]
[38]PCB 40
37 This doctor took over treatment at the clinic after Dr Too retired some years ago and he has seen the patient on multiple occasions. He knows Mr Sutherland best of all. I accept Dr Molnar’s opinion that as a result of the impairment of his low back the plaintiff is unemployable when the concept of suitable employment is looked at realistically. His incapacity is permanent.
38 Mr D’Urso saw the plaintiff in June 2013 on referral from this clinic. This attendance on the neurosurgeon was again a new, higher level of treatment. He took a history of the 20 September 2011 and a February 2013 flare-up when lifting a metal sheet at work. He commented on CT scanning and also an MRI scan which he arranged on 28 May 2013. This not only demonstrated two level disc degeneration at L2/3 and L3/4 as had been reported previously, but annular tears and central prolapse. [39]
[39]PCB 27
39 The specialist thought surgery was not an option and in spite of Mr Sutherland suffering chronic pain it was only conservative management that was recommended. As to work he said “Keith Sutherland does not have capacity for unrestricted physical or manual employment and is likely not to have capacity for pre-injury employment. I believe that Keith Sutherland would have capacity for light employment within restrictions mentioned in the text above.”[40]
[40]PCB 28-29
40 Those restrictions from Mr D’Urso were very wide and when looked at realistically all but disqualified the plaintiff from any employment. They included that he should avoid heavy bending, twisting and lifting activities and should not lift in excess of 15 KG. Also he should not lift weight from below the knee or above the shoulder and should avoid awkward and sustained postures of the lumbar spine. He would need the ability to ambulate freely in the workplace and avoid sitting and postures in excess of one hour. When the open employment market out in the real world is looked at, this amounts to the plaintiff having no capacity for any “suitable employment”. I accept Mr D’Urso’s opinion.
41 In a chiropractic report from Sally Kannar dated 30 March 2017, she was also rather pessimistic with respect to her patient. She reported “it was recommended to Mr Sutherland that he look at a different occupation as it was felt his capacity to continue in this line of work was very poor. The prognosis for Mr Sutherland is not good for employment in areas involving heavy physical labour. He has a chronic lower back injury…”[41].
[41]PCB 48
42 Benjamin Croxford was the treating physiotherapist and he reported back in February 2014 so it is now out of date. But even then he stated “I feel that his previous work may not be appropriate due to the nature of the work involving regular lifting and twisting, however if restrictions on lifting were set in place it may be feasible. It is difficult to estimate the specifics of these restrictions at this time but lifting limit of 10 KG is a ballpark figure along with regular opportunities for rest and stretching”. [42]
[42]PCB 33
43 All these treating practitioners have been charged with managing the patient and trying to get him back to work. They have had the advantage of a number of consultations. While they often did not delineate between the two incidents as they treat their patient’s back condition as an overall package, I give them greater weight on work capacity than some of the medico-legal opinions.
44 Dealing with them, Professor Bittar , neurosurgeon, took a full history of the plaintiff’s work and more to the point, of both incidents. Not surprisingly his diagnosis was aggravation of lumbar spondylosis. As to causation he really just lumped them all together in the mix as it were when he said that “his employment with Barden Steeldeck Industries Pty Ltd has been a significant contributing factor.”[43] He then seems to comment in a context that indicated 20 September 2011 was in that mix.
[43]PCB 66
45 A number of the medical reports tendered by the defendant are somewhat deficient in assessing causation. This is because doctors have been specifically directed to the 20 September 2011 incident and either say nothing at all about the 20 February 2013 incident or in one case, were specifically asked to ignore it. While it is incumbent on a doctor to always seek to get a full history, this unsatisfactory state of affairs is perhaps understandable to some extent in early assessments due to the 2013 Workcover claim not then being on foot. But even after the serious injury application was served together with the plaintiff’s affidavit clearly setting out how that second incident put him off work due to back injury, it seemed some doctors still made assessments without any proper consideration of the 2013 trauma. These reports are really of very limited assistance on causation for those reasons.
46 In spite of that deficiency , some of these doctors still reach a view that due to his employment with the defendant the worker has permanently lost his trade due to the low back impairment. They also put permanent restrictions on him that support my view, that looking at it realistically, he has no capacity for other suitable employment.
47 Mr M Shannon, general surgeon, reported in 2014 after being asked to look at an injury on 20 September 2011.[44] It seemed that he still took some history of an incident simply bending over in June 2012 and a January 2013 back incident. [45] For some reason in 2014 he was asked not to assess the second incident. [46] He seemed to conclude these had caused ongoing vulnerability in the back and I read his report as saying a consequence of the 2011 first incident was a certain vulnerability.[47]
[44]DCB 12,20
[45]DCB 13
[46]DCB 23
[47]DCB 16-17,20-21
48 He said “My interpretation of the history is that his back has been permanently worse and he has had more significant recurrences of symptoms since the specific and accepted work-related injury.”[48] I accept Mr Shannon as saying the 2011 incident coming on top of pre-existing degeneration caused a vulnerability for more significant recurrences of symptoms. The 2013 incident was one of those more significant recurrences that Mr Shannon had predicted.
[48]DCB 21
49 As to work the surgeon thought Mr Sutherland had a very limited work capacity. He could not work as a roof plumber and “He is capable of alternative employment with restrictions on bending and lifting and which permit him to vary his posture”.[49] As with nearly all the doctors in this case his opinion as to diagnosis was mechanical back pain with disc injury at two levels. [50]
[49]DCB 26
[50]DCB 16,24
50 The occupational physician, Dr Malcolm Brown, was also asked by the insurer to look at the 20 September 2011 injury. He took a very brief inadequate history of it. He took no history whatsoever of the 2013 incident. Then in July 2016 he was asked to re-examine the plaintiff this time by the defendant’s solicitors. Again it was only the one injury he was directed to so he took no further history about the 2011 incident and stayed totally silent about the second incident in 2013. He saw the plaintiff a third time at the request of the defendant’s solicitors in May 2017. The history about the 2011 first incident was just repeated verbatim from the two earlier reports and the second incident was still left out.
51 Why the solicitors did not bring to his attention the serious injury application and its description of the 2013 incident and the plaintiff’s affidavit about it was not explained. In the enclosures that he was sent the report of Mr Durso was included. It contained a good deal of discussion about the 2013 incident. Still it did not even rate a mention in Dr Brown’s two later reports. Dr Brown’s history is so inadequate that I place no weight on his opinions.
52 Dr M Rahgozar, occupational physician, reported as late as 26 October 2016. He was also asked to look at the 20 September 2011 incident in spite of the fact that the serious injury application covering both incidents was well underway by that time. He took no history at all of the 2013 trauma. In a supplementary report there was still no history taken about 2013. In my opinion his reports are so flawed that they are no assistance with respect to causation.
53 He did make a comment though with respect to the plaintiff’s capacity for work based on his chronic low back pain, whatever its cause. It was a rather pessimistic view. He said “However, from a physical point of view he has capacity for restricted duties subject to being able to avoid frequent kneeling and squatting, e.g. faster than once every five or 10 minutes, lifting, pulling, pushing, carrying heavy objects heavier than five or 10 kg and avoidance of frequent bending and twisting of his back, e.g. faster than every 5 to 10 minutes.”[51] When read carefully, for a man with no experience other than decades of manual trade work, these multiple restrictions in the real employment world all but rule him out of any suitable job.
[51]DCB 75
54 The defendant relied on two reports from Dr G Doig dated 28 August 2017 and 12 September 2017. He took fairly full histories of both 2011 and 2013 incidents but he did not differentiate the two in terms of causation. He did confirm Dr Durso’s views about disc injury at L2/3 and L3/4 but he also added L4/5.[52] I also read DR Doig’s report as supporting pain and suffering consequences flowing from the 2011 incident.[53]
[52]DCB 83
[53]DCB 84
55 He was then asked a series of questions in a follow-up letter. He confirmed that radiologically shown disc protrusions were often present in an asymptomatic population as people age.[54] This supports the view I have formed that the degenerative changes shown on radiology before the first incident did not mean there were any real symptoms or impairment that limited work or lifestyle.
[54]DCB 78
56 He thought the plaintiff was capable of working as a sales assistant and as a vocational education teacher but he put “stated restrictions of 10 KG lifting, pushing, pulling with limited bending, twisting and squatting and breaks from prolonged sitting, standing and driving”.[55] Again these restrictions for a man of the age and limitations of Mr Sutherland are so significant when examined carefully as to make him effectively unemployable for the foreseeable future.
[55]DCB 79
57 Both parties relied on material from vocational assessors. I did not gain much assistance from this material. In the defendant’s documents there were a number of alternative jobs that were suggested. They were a TAFE teacher/ vocational educator, sales representative and forklift driver. When these are looked at carefully and each of the dot point requirements of these jobs are considered it is clear that the plaintiff would never be able to meet them.[56] At times they have physical demands that are beyond him and at other times, for reasons of his lack of skills and work experience as well as his personality and computer illiteracy, the jobs are just theoretical.
[56]DCB 155-171
58 The plaintiff was also taken in his oral evidence to his capacity for each of these suggested job alternatives and I accept his evidence as being realistic when he pointed to the various aspects of them that would be beyond him. [57] These jobs do not take a proper account of the considerations that are required by the definition of “suitable employment” nor of his real impairment.
[57]T 181-184
59 I reject the defendant’s submission that the plaintiff has not really tried to get other work. He only had to act reasonably. It is pointless given his back impairment, constant pain and real limitations for him to apply for any work. On the probabilities he is incapable of any suitable employment. He is not a realistic retraining prospect. His personality, experience and back impairment all add up to him being a man who was able to carry out in the past the only trade he has ever worked in, but that has now been permanently lost to him. He has nowhere to go in effect as to other work.
60 Finally some comment is required on the defendant’s submission that there was no back injury suffered in the second incident. The defendant relied on affidavits from three workers about that 2013 incident. They are Luke Bolding, Nick Wood and David Carroll. They are extremely brief affidavits and in some respects quite vague. Certainly on that affidavit material there was a fall on the roof.
61 Mr Luke Bolding said he was on the roof with the plaintiff when he “got his finger caught in the clip, lost his balance and fell over”.[58] He said the plaintiff never said anything about a back injury. In fact, Mr Bolding does not say the plaintiff said anything at all. This is in spite of a fall having occurred and the plaintiff going off to first aid.
[58]DCB 1
62 Mr Nick Wood swore that he was the foreman and the plaintiff was working as part of a crew of roof plumbers. The plaintiff said it was a crew of eight. All Mr Wood really says is that he was in the sheds with other roof plumbers when the plaintiff told him he had cut his finger. Mr Wood said “I jokingly asked him whether he was planting the seed so to speak to take some time off”. [59]
[59]DCB 3
63 I find this consistent with what the plaintiff said about speaking to his foreman in the shed and the foreman making a big joke of it and laughing it off. [60] Given the quite shy personality of the plaintiff, I accept his evidence that he did not say anything further in the face of that sort of response, particularly in front of other men. Mr Wood also said he was there the next day when the plaintiff attended and took away his tools which largely confirmed the plaintiff’s account of the next morning.
[60]T75
64 Mr David Carroll worked with the plaintiff for five years which is the whole time the plaintiff was with the defendant. Mr Carroll corroborated the plaintiff losing balance and falling over on the roof and then going off to first aid. He said the plaintiff told him about the cut finger and that is understandable if he was off to the first aid office to get a wound treated. That was obviously the immediate injury. He never mentioned any back or shoulder injury to Mr Carroll.
65 It is no more than common experience that often when people fall in public in front of others there can be some embarrassment. He fell in front of other workmen on a large construction site. The absence of mention is no surprise given the stoic personality of the plaintiff, the confused emotional state he described to the court and the real effects of the back pain probably not immediately obvious to him. [61] It is also worth noting the plaintiff’s evidence that he did enter the injury in Lend Lease’s first aid book and he has tried to gain access to that book on three occasions but to no avail. [62]
[61]T 167-168
[62]T 91-93-100-103
66 Curiously, Mr Carroll worked with the plaintiff over the five years but did not even mention the admitted compensable injury suffered by the plaintiff in the first incident in 2011 at Carrum Downs which put him off work for some weeks.
67 I am not prepared to accept on the face of these rather non-specific and extremely brief affidavits that the plaintiff’s account is in any way impugned. More importantly, I am not prepared to accept these affidavits as indicating a back injury did not occur. What did not occur was any specific complaint about it to the men. That is not surprising given his personality and what transpired when he did try to say something to his foreman in the shed in front of others.
68 I am satisfied the plaintiff fell while up on the roof on 20 February 2013 in the circumstances he described. He was conscious of back pain suffered as a result and struggled to get home and when at home. Also I accept he dosed up on “a large quantity of Panadeine Forte before he was able to see Dr Too. “[63] When he did see Dr Too in March he reported “stopped work 3/52”and lumbar pains were recorded in the brief notes immediately after the words just quoted. [64] For a stoical man with the excellent work ethic and work record over decades of Mr Sutherland, to then go off and remain off due to increased back symptoms supports my finding that he suffered a major aggravation of his pre existing two level disc degeneration in the second incident. That final aggravation caused him to go off work entirely and will keep him off for the foreseeable future.
[63]PCB 17
[64]Exhibit 2
69 I am satisfied on all of the evidence that in the first incident the plaintiff suffered an aggravation of his pre-existing lumbar disc degeneration. I am satisfied that one of the consequences of that are that he lost his capacity for full-time work performing all the normal duties including heavy tasks of a roof plumber. I am also satisfied that he suffered pain that had become more constant than previously. That aggravation in 2011 also left him with a vulnerability to further strain or injury that he had not carried up until that time. That vulnerability was manifested by the fact that in June 2012, just with bending down to pick up a sheet of roofing iron, he collapsed to the ground due to back pain. [65]
[65]T 116-117
70 I have referred already to a number of activities in terms of his lifestyle, recreations and interests that ceased from the first incident onwards due to the impairment of his lumbar spine. He has proved “serious injury” with respect to pain and suffering consequences from the 2011 first incident aggravation.
71 Dealing then with the second incident in 2013, I accept that he sustained a further aggravation of his two level lumbar disc degenerative disease. One of the consequences of this was that his low back was made even more vulnerable. Something as innocuous as simply putting a sock on in February 2014 caused him to have such an acute episode with pain radiating to the right hip that he had to have a physiotherapy treatment.[66] Worse was to come by way of vulnerability when in May 2016 just reaching into a fridge to get some butter caused such a significant flare up like an electric shock of his back that he ended up on the floor.[67]
[66]PCB 13
[67]T 50, Exhibit 2 note of 27 May 2016
72 The final aggravation in 2013 caused his low back to be rendered unreliable even for the most innocuous day to day activities. I am satisfied that this fragile, vulnerable state of his lumbar spine will be with him for the foreseeable future. Up until then he had been working 10 hour days at times six days a week holding down a roof plumbing job, albeit in a supportive environment avoiding the heavier tasks. This final aggravation ended that capacity.
73 I grant leave to bring proceedings for pain and suffering damages with respect to the first incident and for pecuniary loss damages with respect to the second incident. In accordance with practice it follows that leave is also granted for pain and suffering damages with respect to the second incident.
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