Tomolo v Superior Meat and Poultry Supply (Aust) Pty Ltd
[2020] VCC 851
•25 June 2020
| pIN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04133
| GIUSEPPE TOMOLO | Plaintiff |
| v | |
| SUPERIOR MEAT & POULTRY SUPPLY (AUST) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2020 | |
DATE OF JUDGMENT: | 25 June 2020 | |
CASE MAY BE CITED AS: | Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 851 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB(37) – serious injury application – injury to the spine – application in respect of pain and suffering damages and loss of earning capacity – essentially specific fall relied upon – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Ryan | Johnstone & Reimer Lawyers |
| For the Defendant | Mr D McWilliams | Wisewould Mahony |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity. In so doing, he relies upon paragraph (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
2 The injury relied upon is one to the spine. In particular, there is reliance upon impairment of the lumbar spine, a sacral injury requiring coccygectomy, and upon injury to the cervical spine. This shall hereinafter be referred to “the injury”. In relation to the occurrence of the injury, the plaintiff relies upon a specific incident on 15 July 2009 when he slipped and fell whilst in the course of performing his duties as a butcher. This shall hereinafter be referred as “the accident”. Whilst there was some reference to other falls and the course of employment, Ms Ryan, on behalf of the plaintiff, made it clear that reliance was principally placed upon the accident – see, for example, Transcript (hereinafter referred to as “T”) 2. Indeed, as the case unfolded, it was quite apparent that the plaintiff’s claim is based virtually entirely upon the injury suffered in the accident.
3 As I made clear, I had, and continue to have, difficulty with the concept that the defendant now contests the occurrence of the accident. For example, I would refer to T67 and 68. I can appreciate that the defendant may wish to ventilate issues concerning the state of the plaintiff’s back and health prior to the occurrence of the accident and after it. However, whether it be described as an accident or an incident, that the plaintiff suffered a fall whilst in the course of his employment on 15 July 2009 seems to me to be a difficult proposition for the defendant to deny. The defendant accepted a claim based on the occurrence of the incident. Without going through all the details, the plaintiff put in a claim for statutory benefits based upon the occurrence of the incident. The claim was accepted. The defendant has paid weekly payments of compensation. It has paid for medical and like expenses for a period of some 10 years. Indeed, in recent times this case was adjourned so that the plaintiff could undergo a coccygectomy, which was performed on 15 August 2019. To state the obvious, this was well after the date on which the proceeding was issued. The defendant paid for that surgery. I accept that, as Ms Ryan submitted, the challenge to the occurrence of the incident was very much at the last minute. After all the payments that had been made, including for ongoing medication and the like, if the plaintiff had known that a denial of the occurrence of the accident was going to be made, witness statements and further material might have been assembled.
4 I say at the outset that I accept that the accident occurred and that the defendant accepted liability in respect of it. Even if there had not been such a profound and ongoing acceptance, I would still be satisfied that the accident occurred. The plaintiff has sworn to it. There is no direct evidence to the contrary. Liability has been accepted for it. I am satisfied that it occurred and that it resulted in injury, ultimately leading to surgical intervention.
5 Ms A Ryan of Counsel appeared on behalf of the plaintiff. Mr D McWilliams of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the accident
6 The plaintiff is aged 56 years, he having been born in 1974. He is a divorced man, separated from his wife for some years. He has three children, all under the age of twelve. He was educated to Year 7 level, also doing a course as an apprentice butcher. After leaving school at the age of 14 years, he commenced work as a butcher. At times he worked as a mechanic, a cleaner and mowing lawns, but essentially he has always worked as a butcher since leaving school. When he was approximately aged 18 years, he moved to Perth and worked there as a butcher. He lived there for approximately 12 years. Thereafter he returned to work in Victoria. He commenced working with the defendant on approximately 15 December 2008. His duties were those of a general butcher and shop manager. He worked full-time from approximately 8.30am to 4.00pm, six days a week. He also did such things as ordering stock, ensuring food safety standards were met, keeping the shop clean and supervising some other staff.
(c) The plaintiff as a witness
7 It was submitted by Mr McWilliams on behalf of the defendant that the plaintiff was not a forthright witness. On the plaintiff’s behalf, it was submitted by Ms Ryan that he is simply not a sophisticated witness, who did not understand a number of the questions put to him. Dr Alan Gallogly, consultant psychiatrist, saw the plaintiff at the request of his solicitors on 18 February 2020. Whilst he noticed such things as the plaintiff walking stiffly and continuously shifting his weight when seated, Dr Gallogly expressed the view that the plaintiff was cooperative and respectful throughout the assessment. Mr Roy Carey, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, described him as being direct. The impression which I gained concurs with that of Ms Ryan. The plaintiff is not a sophisticated man. He had minimal education and seems to have had to fend for himself from an early age. In my opinion, he did his best to answer questions in an honest fashion and I accept him as a witness of truth.
(d) The state of the plaintiff’s health prior to the accident
8 This was a topic which received quite some attention in cross-examination and in the closing address of Mr McWilliams. The plaintiff agreed that he had suffered headaches prior to commencing work with the defendant, but described them as being manageable. However, he said that they were now migraines and quite severe. He denied the proposition that, prior to working with the defendant, he had difficulty “hanging onto a job for longer than two weeks” – see T19. He was uncertain how many employers he had prior to starting work with the defendant, but said that it was probably a few. It would be inaccurate to suggest that he had difficulty keeping a job. He denied that, prior to employment with the defendant, the headaches interfered with his working properly, saying that he did have long-term jobs.
9 The plaintiff also admitted having some form of treatment in relation to his back prior to commencing work with the defendant. He had no recollection of a fall onto his “backside” in 2007 or giving such a history at the Northern Hospital on 30 April 2008. He could recall seeing a doctor for some complaint in relation to his left leg, but had no recollection of a fall in 2007. He denied that what he was complaining about as happening in 2009 in fact occurred in 2007. He was quite adamant in relation to this – see T26. He did admit the occurrence of severe migraines approximately once a month prior to the accident.
10 Also, the plaintiff could not recall complaining to his doctor on 1 September 2008 that he had had back pain for six months and that it was worse more recently. He stated that he probably did see an osteopath in 2007, that osteopath being his cousin, but that was in relation to his leg. He was playing sport at the time. He did not recall having problems with his lower back. In Western Australia, he had some tests in relation to his headaches, “but they found that I was okay” – see T35. It was put to the plaintiff that he had told Associate Professor Love, examining on behalf of the defendant, that, prior to the accident, he did not have significant back ache, but had attended a chiropractor for treatment of headaches. Similarly, he could not recall telling either Dr Karna or Mr Carey that he had suffered no prior spinal injuries. He could recall suffering a meniscal injury in the right knee many years ago and fracturing his left collar bone when playing cricket at a church picnic. He also had a benign cyst in his elbow.
11 It is apparent, and not disputed, that the plaintiff had a CT scan of the sacrum and coccyx performed on 2 September 2008. This did reveal a fracture line of the second coccygeal segment consistent with an old trauma (although an MRI performed on 5 May 2010 was reported as showing that there was no evidence of the fracture of the sacrum or coccyx). Mr Roy Carey, consultant orthopaedic spine surgeon, examined the plaintiff on 16 April 2018. At that stage, he did not have a history of any prior coccygeal treatment or treatment for it. On 20 March 2019, he reported without seeing the plaintiff again. The Northern Hospital Admission Note on 1 September 2008 was difficult to read, but Mr Carey noted that there appeared to be a reference to a “fall onto backside 8/12 ago”. Mr Carey observed that:
“Sacrococcygeal areas come in all shapes, sizes and inclinations and I would not accept that necessarily that there had been ‘previous trauma’ without seeing the images myself.
If at that time (and it is too late now) sacrococcygeal treatment was said to be causative of this man’s problems, then appropriate imaging by Bone Scan/SPECT rather than just plain x-rays or CT alone would have been appropriate.
I am happy to examine the imaging should you wish to send them to me.”
12 Apparently, the sending of the imaging never occurred. Accordingly, I was left with the opinion of Mr Carey that he would not accept that necessarily there had been “previous trauma”.
13 It is apparent from the report of Dr Ian Stone of the Sports and Soft Tissue Injury Clinic at the Northern Health, such report being dictated on 1 September 2008, that he arranged for the CT scan to be performed at the Northern Hospital. The history which he took is that the plaintiff presented on 1 September 2008 with a six-month history of lower back and coccygeal pain, which occurred a month or two after a fall on his buttocks, resulting in initial pain which subsequently settled. There was also a reference to some vague left leg pain. These symptoms were worse when the plaintiff was sitting and after prolonged standing in one position. However, there has been no aggravation of symptoms with coughing or sneezing and no apparent neurological sequelae in the lower limbs. The plaintiff was taking occasional Voltaren and Nurofen Plus. Whilst examination revealed tenderness maximal over the coccyx, there was a good range of movement of the lumbar spine “although Joe is relatively inflexible”. Neurological examination of the lower limbs was within normal limits. Dr Stone expressed the view that the plaintiff’s presentation appeared to be more consistent with coccydynia following the initial trauma, although he thought it prudent to exclude discogenic causes for the lower back pain. Accordingly, he had arranged the CT scan. He was to review the plaintiff in four weeks’ time.
14 Whether or not this in fact occurred is unclear, as there is no further material from Dr Stone or Northern Health after the CT scan, other than the report of it. It is to be noted that the referral to Dr Stone was from Dr Jack Deady, the plaintiff’s usual treating general practitioner. The complaint of the plaintiff seems to have been of constant lower back pain, occasionally severe, and pain under the left foot “worse few weeks from constant standing at work”. There is also, in handwriting, “4/12”, which I would interpret as being that the plaintiff’s symptoms had been present for four months. This is roughly consistent with the report of Dr Stone, which history is set out above, of a six-month history of lower back pain occurring a month or so after a fall, resulting in initial pain which subsequently settled. If that be so, it would appear that the plaintiff’s symptoms were not sufficient to interrupt his working full time as a butcher and earning the unchallenged income which is consistent with full-time work. It is also consistent with the history taken by Dr Deady of “constant standing at work”. It is apparent that the plaintiff saw Dr Deady again on 11 July 2008, at which time he was struggling at work because of migraines. There is no reference to any lower back or coccyx problems. A quite lengthy report from Dr Deady to the plaintiff’s then solicitors, the date of which report is difficult to find but is described in the index as being 1 September 2016, refers to the plaintiff as having been working for the defendant for approximately two years, having had about three falls involving slips, with resulting intermittent pain in his back and legs, but suffering a major injury to his lower back when he fell on 15 July 2009. I accept this.
15 The bottom line is that I am not persuaded that the plaintiff had suffered any prior back injury of note. There is no proof of this. He has asserted that he did not. The plaintiff’s 2008 tax return was put in evidence. With one employer, namely Lago Smallgoods Pty Ltd, the plaintiff earned $35,171. For the second employer, Provincial Meats Pty Ltd, the plaintiff earned $7,837. In other words, between 1 July 2007 and 30 June 2008, the plaintiff, working as a butcher, earned $43,008. Clearly this is not suggestive of someone not lasting more than a fortnight in any one job or missing substantial time because of injury. In relation to the quantum of earnings, it is to be remembered that these are figures from work done as an employee butcher 12 years ago. They do not seem to me to be obviously inconsistent with such an employee being engaged in full-time work. In any event, as shall be discussed, they are the plaintiff’s earnings for the financial year ending 30 June 2008 according to his tax return and effectively there was no challenge to them.
(e) The injury, its treatment and diagnosis
16 As stated, the plaintiff slipped and fell in the course of his employment on 15 July 2009.
17 The plaintiff’s treating general practitioner for many years has been Dr Jack Deady, who is now based at Manningham General Practice. Previously Dr Deady was based in Epping. However, in approximately 2014 he moved to his present location. Apparently there was a problem associated with records of treatment prior to the move from Epping. Ultimately, on 3 September 2018, the solicitors for the defendant were able to obtain clinical records relating to the treatment by Dr Deady of the plaintiff. These were in fact added to the Plaintiff’s Court Book. As the most recent report from Dr Deady was on 1 September 2016 and as he moved to Manningham General Practice on 14 August 2014, there is no commentary from him on entries made prior to that date. However, I would point out the following. It would seem from the plaintiff’s second affidavit of 19 April 2019 that Dr Deady left the Manningham General Practice and the plaintiff began seeing Dr Mohammad Khan on 2 March 2018. Dr Khan is at the Nexus GP Superclinic at Wallan.
18 There is a note in the clinical records of Dr Deady of the plaintiff being tender in the area of S1 and the coccyx on 1 September 2008. Earlier, there is a reference to constant lower back pain, occasionally severe, on 30 April 2008. Then, on 15 July 2009, being the day of the accident, there is an entry in capitals “LOWER BACK”. There is then no entry until 18 March 2010, when there is a referral to radiology. On that same day, there is an entry referring to constant lower back pain for a few years, but worse in the last eight months. The entry goes on to record that the plaintiff had lost several jobs over it, but then, in capitals it stated “MANAGER NOW” and the observation that it is slightly easier. However, it is also noted that the plaintiff cannot stand up and that there is now “c pain”. Apparently the plaintiff had been seeing a chiropractor for some six months. On 6 April 2010, Dr Deady had recorded that the plaintiff had lost his job “as not enough hands on”. On 14 April, it is noted that the plaintiff had been seeing a chiropractor twice a week since the previous July, but could no longer afford it. There was again emphasis on a fall at work in July and a reference to the plaintiff twice slipping when coming from the freezer and having a bad fall on his back.
19 By 3 May 2010, the plaintiff was seeing a chiropractor two to three times a week. On 4 May 2010, it is again recorded by Dr Deady that the plaintiff fell on 15 July 2009, when he slipped back onto his coccyx and had pain thereafter. His boss had sent him to a clinic. The x-rays were okay. The plaintiff wanted to keep his job and worked until 13 March 2010. Whilst it is ambiguous, he may have said that the chiropractor had kept him going. Thereafter, there are similar entries, including references to depression and stress. In the ongoing entries, which are many, there is a further reference to the fall at work.
20 On 20 October 2011, the plaintiff was very upset, as he had tried work that day. He had suffered a severe headache after three hours from trying to protect his back. On 21 October 2011, it is noted that the plaintiff was on WorkCover, but now he was working. On 3 February 2012, it is noted that the plaintiff wanted to stay at home as he could not work. It is noted that he had tried five times. There is a reference in capitals to WorkCover and the date, 3 February 2012. Thereafter, there are some references to WorkCover certificates and to medications. For example, on 14 February 2013, it seems to be noted that the plaintiff was taking Panadeine Forte tablets six hourly because of pain. On that day it is also noted that the plaintiff had severe lower back pain. There are also references to migraines, as well as lower back pain, in notes in 2014.
21 Also included in these notes are a couple of entries from Dr Beeby, who seems to have been associated with the same clinic. However, these seem to relate to migraines and dizziness, although there is a reference to numbness in the legs on 23 September 2009.
22 The plaintiff’s evidence in his original affidavit is also somewhat sketchy in relation to treatment received almost 10 years before the swearing of that affidavit. That is hardly surprising, given the passage of time. Further, as stated, the plaintiff is a man of very limited education and could hardly be expected to have kept a diary of events. Indeed, even those fortunate enough to have had much more education do not necessarily keep records or diary notes of medical treatment.
23 In any event, after the accident the plaintiff never returned to full-time hours or unrestricted duties. He was restricted to serving in the shop and could not perform ordinary butchering duties, such as boning, trimming and the like. Ultimately, it reached the situation that the defendant could no longer accommodate him and he finished working for it on 25 March 2010. He completed his WorkCover claim form on 31 March of that year. Returning to the history of medical treatment, it is apparent that Dr Deady referred the plaintiff for an MRI scan of the lumbar spine on 5 May 2010. The brief history contained in the report of the radiologist is that the plaintiff had constant lower back pain, left thigh popliteal fossa, worse in the previous eight months and “?disc or coccyx”. In any event, there was no evidence of a fracture of the sacrum or coccyx and in general, no abnormality was detected.
24 On 17 August 2010, Dr Deady completed a report or questionnaire, which was forwarded to the defendant’s insurer. The diagnosis of Dr Deady was of lower back pain since a fall at work in July 2009. The writing of Dr Deady is very difficult to read, but there would seem to be a reference to little improvement and the fact that the plaintiff was seeing a specialist. Dr Deady also wrote that the plaintiff may have long-term pain and needed pain management, there also being a reference to facet joint injections. He noted that the plaintiff seemed agitated and depressed, there being a further reference to pain. He thought that the plaintiff could perform light duties, if these were available. There was a further reference to a possible facet joint or medial branch block.
25 It is also apparent that Dr Deady referred the plaintiff to Dr Brian Lovell for the purpose of the carrying out of branch blocks to assist in the making of a definitive diagnosis. On 12 July 2010, Dr Lovell wrote to the plaintiff’s insurer seeking an acceptance of liability in relation to these procedures. The brief history contained in that letter is one of left-sided focal pain referring down to the buttock into the leg after a fall, when slipping at work, in July 2009. It would appear that, ultimately, liability was accepted in relation to the undertaking of such procedures, the first branch block being carried out on 23 March 2011. This procedure had to be abandoned, as the plaintiff suffered a vaso-vagal attack. Dr Lovell sought authorisation for the procedures to be performed under sedation. Approval was granted in relation to this, although the plaintiff had some anxiety about returning for such treatment. Liability was again accepted, and a left L3, L4 and L5 medial branch block was carried out under sedation on 29 August 2012. The result was positive. In 2014, Dr Bruce Mitchell requested approval for a diagnostic block of the plaintiff’s sacroiliac joint, although also referring to C2-3 and C5-6. He made observations that the plaintiff’s pain chart clearly showed he had pain from his original injury, as well as around his lower back and pelvic girdle. Dr Mitchell had taken over the management of the plaintiff, Dr Lovell having retired. Dr Mitchell appears to have been a member of the Metro Pain Group in Clayton. Again, the treatment picture unfortunately is somewhat confusing, through no fault of the plaintiff.
26 In any event, Dr Mitchell wrote to Associate Professor Paul McCrory on 10 October 2014, setting out a history of events. It would appear that the plaintiff had a left L3-5 medial branch block on 29 August 2012, temporarily anaesthetising the L4-5 and L5-S1 facets. This reduced his pain from 9/10 to 3/10. He had a control block in July 2013, which reduced his pain from 9/10 to 1/10. It then took four months to get approval for his radiofrequency neurotomy, which was performed in late-November 2013 on the left L3-5 facets. When the plaintiff was reviewed after this, his burning coccyx pain had gone, but he was still complaining of bilateral buttock pain into the legs, in addition to C2-3 and C5-6 facet joint pain and headache. Dr Mitchell organised an MRI of the lumbar spine, which appears to have been performed on 14 July 2014. This showed slight dislocation of the L4-5 disc with slight canal narrowing at L4. Dr Mitchell did not consider that these changes were significant.
27 Dr Mitchell noted that the plaintiff was struggling to sit for any period of time because of his headache and sacroiliac joint pain. He repeated a letter to the insurer regarding performing a diagnostic block of the sacroiliac joints and the C2-3 and C5-6 medial branches. He did not request an MRI of the head or neck. A letter to Associate Professor McCrory of 9 July 2015 indicates that approval had been obtained from the insurer in December 2014 for the diagnostic injections on the plaintiff’s back and neck. However, some difficulty had arisen in that regard, this relating to the available transport for the plaintiff from the hospital to his home. In a brief letter to Dr Deady from Dr Mitchell on 28 July 2015, he refers to the plaintiff as being disabled for the foreseeable future. There was reference to his headache and neck pain being “pretty bad”.
28 On 10 March 2016, Dr Mitchell wrote to the defendant. He stated that the plaintiff’s left L3-5 radiofrequency neurotomy had worn off and that there was a need to re-treat his facets in order to determine how much residual pain was coming from his sacroiliac joints. There was also a reference to ongoing neck pain and headaches. Dr Mitchell was seeking approval to proceed with the diagnostic blocks. This included a diagnostic block of the plaintiff’s bilateral sacroiliac joint and deep interosseous ligaments. A brief letter of the same day headed “To whom it may concern” stated that the plaintiff had significant ongoing lower back, pelvic girdle, neck pain and headache secondary to probable facet pain and sacroiliac joint pain. He was not able to pursue any paid employment and Dr Mitchell did not think that the situation would be improving for the foreseeable future. Somewhat confusingly, there was another letter to the defendant from Dr Mitchell on the same day. This is a longer letter and also sets out the history of events. It is apparent from it that the plaintiff was seeing Associate Professor McCrory in relation to headaches. It is also apparent that the plaintiff had failed to attend some consultations and hospital bookings and that others had been cancelled due to transport problems. Dr Mitchell stated that the plaintiff’s lumbar facets had been proven to be a source of his severe coccygeal pain and that the plaintiff’s injuries were due to the fall at work.
29 It is apparent that the plaintiff underwent an occipital nerve and C5-6 medial branch block on 16 August 2016. Further, Dr Mitchell provided a lengthy report to the plaintiff’s solicitors on 31 August 2016. In that report, Dr Mitchell provided a diagnosis. It was as follows. The plaintiff is suffering from known lumbar facet joint pain, presumptive pain of his sacroiliac joints and probable cervical facet pain. His lumbar facets have proven to be a source of his severe coccygeal pain. Further diagnostic blocks were awaited. His injuries were due to the fall in the workplace. Dr Mitchell thought that the prognosis for the facet joint pain was good, but the plaintiff would require ongoing lumbar radiofrequency neurotomies every nine to 18 months. He could not comment on the prognosis for other areas of pain. He thought that the plaintiff had no current capacity for employment and was hopeful the situation could change if the plaintiff’s pains were brought under control and he completed a rehabilitation program. Whilst no recent assessment had been carried out, Dr Mitchell believed the plaintiff to be very restricted in his current functioning.
30 In a letter to the defendant on 24 November 2016, Dr Mitchell stated that the plaintiff’s left back, buttock and leg pain had been well controlled from his lumbar frequency neurotomy performed in July. However, his coccyx pain had not resolved. The coccyx pain had been present from the first time the plaintiff saw Dr Lovell in 2010. Approval was sought for a diagnostic block on the plaintiff’s sacrococcygeal joint. Approval for this was apparently granted and it seems to have been carried out on 7 February 2017. Whilst it is a little hard to work out, it would appear that, prior to the operation, the plaintiff’s coccyx pain was assessed at nine. It disappeared immediately after the surgery, but by day twelve had returned to nine. On 3 July 2017, Dr Mitchell sought approval from the defendant for a repeat left L3-5 radiofrequency neurotomy. On 14 August 2017, he sought from the defendant approval to proceed with a sacrococcygeal joint injection only. Exactly what occurred in that regard is not clear, but on 22 November 2017, there was performed a lumbar radiofrequency neurotomy at left L3-5 medial branches. On 20 February 2018, on the basis of a diagnosis of coccydynia, a sacrococcygeal joint intra-articular injection was administered, presumably with the approval of the defendant, this having been sought earlier.
31 On 24 July 2018, Dr Mitchell wrote to Dr Deady. Dr Mitchell stated that, if it was confirmed that the plaintiff’s pain level had gone to zero for a short period following the block in February, he would refer the plaintiff to Mr Andrew McQueen for excision of the bottom two segments of the coccyx. On 22 November 2018, Dr Mitchell wrote to the defendant, seeking approval for a repeat of the sacrococcygeal joint intra-articular injection. He was hopeful that this might provide six months’ relief. The alternative was for the plaintiff to have excision of the coccyx. It would appear that the injection was carried out on 30 January 2019. On 12 April 2019, Dr Mitchell wrote to Mr McQueen. He referred to the fact that some relief had been given by earlier blocks, and stated that a repeat injection done in January 2019 had given the plaintiff relief for several weeks only and then the pain had returned. Dr Mitchell believed that the plaintiff required excision of his coccyx and sought the opinion of Mr McQueen in that regard. He wrote to the defendant on the same day, advising, inter alia, of the referral to Mr McQueen. He also sought approval for a C5-6 medial branch block, and for a radiofrequency neurotomy of the left lower back.
32 Dr Mitchell wrote again to the plaintiff’s solicitors on 5 June 2019. This report, whilst detailed, repeated much of the material that had been contained in the 31 August 2016 report, but also updated it. It foreshadowed the excision of the coccyx. Dr Mitchell was hoping that the pain could be controlled. He described the plaintiff as having limited work capacity for the foreseeable future. On 22 January 2020 he again wrote to the defendant, seeking approval for a repeat of the radiofrequency neurotomy.
33 The plaintiff was referred to Mr McQueen. He reported back to Dr Mitchell on 29 April 2019. In a brief letter, he stated that the plaintiff had obtained excellent relief from a number of celestone injections into the unstable fragments of the coccyx. He thought it reasonable to do a coccygectomy and had discussed this with the plaintiff. On 30 April 2019, he wrote to the defendant. He noted that, based on the information provided to him by the plaintiff, he believed the proposed surgery to be related to the original injury and thus a compensable claim. The surgery proposed was coccygectomy. It is apparent that approval was obtained. Ultimately, surgery was performed by Mr McQueen on 15 August 2019. He reported to the plaintiff’s solicitors on 25 November 2019. The history obtained by him referred to a number of falls, but most significantly that of 15 July 2009.
34 In any event, a coccygectomy was performed on 15 August 2019. When last seen by Mr McQueen on 30 October 2019, the plaintiff was making a very satisfactory recovery from the coccygectomy and his pain was settling. However, his condition had not yet stabilised. The finding at surgery had been of very mobile multiple segments of the coccyx, this being consistent with an injury due to a fall on 15 July 2009. The findings at surgery were also consistent with what could be seen on the CT scan of 2008. In the opinion of Mr McQueen, the fall had aggravated the pre-existing situation. He thought that the prognosis was good, in that the pain and symptoms should resolve to an acceptable degree. He thought that the plaintiff should be able to return to work as a butcher in the next two to three months, initially on a part-time basis.
35 It is apparent that Mr McQueen reviewed the plaintiff on 28 November 2019, reporting to the plaintiff’s then general practitioner, Dr Khan, on that day. The plaintiff had an ongoing problem with post-coccygectomy local pain and had difficulty sitting. He did not feel that there had been a dramatic improvement, this being described by Mr McQueen as a disappointing situation. Mr McQueen stated that this was particularly relevant when the plaintiff had some significant pathology found at the time of surgery. He felt that there was still a good chance that the pain would settle further in the next few months. The plaintiff also complained of lower back pain and left leg pain and numbness. Again, Mr McQueen noted that the plaintiff does have significant lumbar spine pathology and was being treated by Dr Mitchell.
36 On 2 December 2019, Mr McQueen provided a letter headed “To whom it may concern”. He described the plaintiff as continuing to have significant local pain in the region of the coccyx, along with problems with prolonged sitting and standing. As a separate issue, he also had left leg sciatica-type problems. Mr McQueen wished to amend his previous report. He stated that the plaintiff’s convalescence may be much more extended and it would need to be decided in the future as to when he could return to work, noting that his previous work was as a butcher. Mr McQueen reviewed the plaintiff again on 5 February 2020, reporting briefly to the plaintiff’s solicitors on that day. The plaintiff was continuing to have two problems. One was local coccygeal pain aggravated by sitting, the other being left-sided sciatica, which was being treated by Dr Bruce Mitchell. Mr McQueen concluded that, in relation to the coccyx pain, he was disappointed that the plaintiff was not making a fast recovery and would have anticipated more improvement by the date of his letter. His overall conclusion was that the plaintiff’s local coccygeal pain will persist in the medium to long term. On the following day, Mr McQueen sent a further brief letter to the plaintiff’s solicitors. In it, he stated that, with regard to the coccyx problem and surgery, it would appear that the plaintiff has ongoing pain and disability of a permanent nature. Mr McQueen had anticipated that the majority of such pain would settle within approximately five months. That had not occurred. As far as the coccyx was concerned, Mr McQueen stated that it would appear that the plaintiff’s ongoing problem is permanent.
37 I have gone through the plaintiff’s medical history since the accident at some length in order to clarify and emphasise how much treatment he has had. In each instance, where surgical or specialist treatment has been required, the defendant has been notified in advance and has accepted liability.
38 There are a few other reports in evidence from practitioners who have treated the plaintiff. I shall deal with some of them very briefly. Ms Rosemarie Tomolo, who is in fact a cousin of the plaintiff, is an osteopath. The actual dates when she saw the plaintiff are not clear, but there is a reference to the plaintiff seeing a chiropractor in April 2010. That may have been a different chiropractor. Ms Tomolo would appear to have seen the plaintiff on 21 April 2015 and there is a further report, which is apparently undated, but may have been written later in April 2015. In any event, the plaintiff has sworn that such treatment failed to cure his pain. It is also apparent that he saw a chiropractor, Mr Richardson, in early 2012, specifically giving 15 July 2009 as the date of injury. He was also seen on review from Dr Deady by Dr Gavin Weekes, pain specialist, on 13 October and 17 November 2015. Dr Weekes took an appropriate history in relation to the accident. Dr Weekes thought that ultimately he would advise a pain management program. The plaintiff then seems to have seen Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, who appears to have rooms in the same surgery as Dr Weekes. At this stage, it was envisaged that Dr Weekes would perform some medial branch blocks, but I am uncertain as to exactly what happened in this regard.
39 Finally, and leaving to one side a couple of brief reports which do not seem to be particularly relevant, there are some reports from Dr Mohammad Khan, the plaintiff’s current treating general practitioner. He issued an undated certificate in which he described the plaintiff as having been under his care since 2 March 2018. At the time, the plaintiff had lower back pain and was using one crutch. He was performing modified duties at work two to three hours a day, but was in agony. Dr Khan thought that the plaintiff was genuinely in pain and requiring possible surgical shaving of his coccygeal bone. I note that, on his Health Summary Sheet of 3 April 2019, Dr Khan described the plaintiff as having chronic back pain, referring to a fall at work in 2009. It is apparent that the plaintiff was on considerable medication. Dr Khan wrote to the plaintiff’s solicitors on 15 February 2020. He again referred to the plaintiff as having chronic back pain and to the fall at work in 2009. There were some psychiatric symptoms, primarily in the context of pain. The plaintiff’s condition had affected his quality of life, resulting in work disruption and optimisation of working hours. The plaintiff was working a 15-hour week, with which he struggled. Dr Khan expressed the opinion that the plaintiff’s condition primarily resulted from the physical injury which he had suffered in the fall in 2009, also stating that there was secondary anxiety and depression.
40 That concludes the summary of the reports from those who have been treating the plaintiff. I would repeat that some confusion exists, at least partly contributed to by the absence of the clinical records of Dr Deady for a substantial period.
41 The plaintiff has also been examined for medico-legal purposes. He was seen by Mr Ash Chehata, orthopaedic surgeon (although I note that he seems to specialise more in upper-limb surgery), on 2 April 2019. I note that, in the history taken, Mr Chehata has referred to a CT scan being organised by Dr Ian Stone on 5 September 2009, but, in a case where there is considerable medical confusion, that would not appear to be correct and indeed, in a supplementary report of 21 February 2020, Mr Chehata seems to have made an appropriate amendment to the date of the CT scan, referring to it as being in 2008. I would point out that this report of Mr Chehata pre-dates any surgery performed by Mr McQueen on 15 August 2019, and thus, at least to some extent, has been overtaken by events. In any event, Mr Chehata diagnosed the plaintiff as suffering from coccydynia, coupled with lumbar facet joint pain, as well as cervical spine multilevel facet pain. He implicated employment. He stated that there were certainly physical structures that were driving the plaintiff’s unremitting and constant pain. He noted that the plaintiff was struggling to perform his casual part-time employment as a butcher.
42 Subsequently, Mr Chehata provided a further report dated 21 February 2020, apparently without seeing the plaintiff again. He had been forwarded the documentation of Mr McQueen in relation to the surgery and the apparently permanent disability related to the failure of operative intervention. He stated that there was no doubt but that the fall on 15 July 2009 was a significant contributing factor and that there had been an obvious aggravation of the pre-existing coccyx injury, as well as an aggravation of lumbar spine and cervical spine spondylosis. It was only after the accident that the plaintiff’s disability and pain appeared to worsen substantially and deteriorate, the accident being the inciting precipitating event. The accident precipitated a downward spiral in a situation where there may have been pre-existing cervical and lumbar spondylosis. He did not believe that the plaintiff had a capacity for any form of work. It was unlikely that he would be able to regain reliable and consistent employment in the open marketplace in the future.
43 Dr Dion Suyapto, occupational and environmental physician, examined the plaintiff at the request of his solicitors, reporting on 3 February 2020. He obtained a detailed history of the accident. This included the fact that the plaintiff had also hit his neck and head when he fell. He was complaining of constant severe pain in the lower back, with the neck pain not as severe. He stated that the pain varied in intensity and in nature between an ache and a sharp pain, also complaining of pain radiating to both legs, but particularly to the left. The plaintiff also told Dr Suyapto that recently he had obtained work for three hours a day, five days a week in a butcher’s shop. The plaintiff stated that it was a very supportive environment, but he struggled to complete the work that was provided. He did some serving of customers and worked “as tolerated”. In summary, Dr Suyapto noted that the plaintiff had had multiple injections and block procedures performed.
44 Dr Suyapto had been provided with a report of Dr Philip Mutton, consultant occupational physician, who had examined the plaintiff at the request of the defendant. He disagreed with the opinion of Dr Mutton that the plaintiff could work as a weighbridge operator and business support officer, as he was having difficulties with prolonged sitting and pain into the coccyx, apart from neck and lower back problems. Dr Suyapto also pointed out the plaintiff’s limited experience and training, he having been a butcher for most of his life. Similarly, he disagreed that the plaintiff had a capacity to be retrained to perform office work. He thought that the plaintiff was currently working to the limits of his capacity, which may in fact reduce. He did not believe that the plaintiff had a capacity for suitable employment other than that which he was currently performing.
45 The defendant has also had the plaintiff examined. Associate Professor Bruce Love, consultant orthopaedic surgeon, saw the plaintiff on 3 December 2014. Of course, his report has been overtaken by events, at least to a considerable extent. Further, it is apparent that, substantially, his attention was directed to proposed procedures, including medial branch blocks. Associate Professor Love diagnosed a chronic pain syndrome and illness behaviour. He observed that the pathology that was causing the symptoms had not been defined and thought it unlikely that it ever would be. In conclusion, he thought it reasonable that the proposed steps in relation to nerve-root injections were reasonable on a “one off” basis.
46 Dr Roy Karna, rheumatologist, examined the plaintiff, reporting to the defendant on 1 December 2015. The history taken by him was one which focussed considerably upon the accident. Upon examination, he noted non-uniform loss of lower back movements and tenderness. He could find no evidence of significant neck restriction. He thought it reasonable to suggest that the plaintiff may have sustained a soft-tissue injury to the neck which had resolved. However, the plaintiff had persistent lower back dysfunction and symptoms, without features of radiculopathy. Essentially, Dr Karna diagnosed a soft-tissue injury to the lower back. At least part of his attention seems to have been directed towards an assessment of permanent impairment, his report pre-dating the surgery performed by Mr McQueen.
47 As earlier stated, Dr Philip Mutton, consultant occupational physician, examined the plaintiff at the request of the defendant on 5 April 2018. When he saw the plaintiff, the plaintiff was on a Disability Support Pension and was performing some 10 hours per week work at a butcher’s shop. He could work flexible hours. The plaintiff complained of a constant burning sensation in the tailbone, extending into the left buttock. The neck pain was less severe. Dr Mutton thought that the plaintiff presented without significant disability. It is to be remembered that this report pre-dated the surgery by more than a year. Dr Mutton placed various restrictions on the type of work which the plaintiff could perform, referring to the avoidance of pushing, pulling, straining and bending at the waist. His conclusion was that he suggested that the plaintiff would be able to work up to two hours per day, five days per week, which, given that the plaintiff seems to have informed him that he was working 10 hours per week, is perhaps not surprising. The plaintiff would need appropriate training in relation to clerical administration tasks. Dr Mutton referred to duties such as a weighbridge operator or security in a control room. He concluded by saying that the plaintiff would require retraining if he were to work outside his field of butchering. He added that the plaintiff has no transferable skills.
48 Dr Mutton reported for the second time on 22 January 2020. He was forwarded reports of the surgery performed by Mr McQueen. He noted that the plaintiff was continuing to do so some part-time work, 10 to 15 hours per week, but in a different butcher shop. Some of his work was serving customers. He was not looking for work, as he did not believe that he had the capacity for any further work. At this time, he had only been back at work for some three weeks. Dr Mutton expressed the opinion that the plaintiff now presented with more discomfort than previously. There had been a setback with the surgery. Nevertheless, the plaintiff had returned to part-time work in the butcher’s shop. Dr Mutton seems to have discussed with the plaintiff the options of working as a weighbridge operator or a business support officer. The plaintiff rejected both of these on the basis that there was a large amount of computing, for which he was not trained. He also believed that the work would aggravate his migraines. He had an inability to sit and had reduced flexibility in the lower back. Dr Mutton said that the plaintiff would need support in relation to computing. He would need to undertake retraining. There may be an increase in headaches. However, with an appropriately ergonomically-fitted-out office arrangement, both the suggested jobs would be suitable. There would also have to be some flexibility or accommodation. Dr Mutton made the interesting observation that the plaintiff would have difficulty negotiating such flexibility or accommodation with a new employer. He thought that the plaintiff would need to undertake office work and basic computer training.
49 Mr Roy Carey, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 16 April 2018. At least to an extent, this is yet another report which has been overtaken by the passage of time and the surgery. The history he obtained was of no spine pain or injury before the accident. He noted that the plaintiff was taking Lyrica, Epilim (for pain) and Sandomigran for his headaches. When examined, the plaintiff rated his pain generally at 8.5/10. He was not experiencing great pain in the neck on that particular day. In relation to his coccyx, the pain at the time of examination was 10/10. The plaintiff’s sleep was disturbed most nights. In relation to his psychological or psychiatric condition, he was seeing a counsellor on an as-needed basis. He was currently working 10 hours per week. He was a direct witness. Mr Carey was of the view that the plaintiff had sustained a fall at work nearly nine years previously and had ongoing and diffuse pain, with no specific examination or imaging findings as to suggest a specific cause. His diagnosis, which he conceded was not particularly specific, was the likelihood of aggravation of lower-lumbar spondylosis. He was of the opinion that the plaintiff had a degree of pain far in excess of findings on examination or imaging would suggest. He thought that there was a significant psychological reaction to the injury (but the subsequent surgery is to be borne in mind). Mr Carey thought that the plaintiff was undertaking appropriate work at the time. If his pain or discomfort became significantly reduced, Mr Carey expected that the plaintiff’s work capacity would increase both in hours and duties.
50 Mr Carey provided a brief supplementary report on 20 March 2019. There is no indication that he saw the plaintiff again. Rather, his attention was directed towards the treatment of the plaintiff prior to the accident. Notes from the North Western Osteopathic Clinic indicated some nine attendances. Mr Carey thought that it would be difficult for the plaintiff to have forgotten this. In addition, a record of the Northern Hospital of 1 September 2008 showed a fall some eight months previously and some tenderness over the coccyx. Mr Carey was also provided with the CT report of 5 September 2008. However, he would not necessarily accept that there had been previous trauma without seeing the images for himself. The other two enclosures seemed to indicate a history of sacrococcygeal-area discomfort. He thought that the attendances at the osteopath would have been difficult to forget, given their number. Nothing further from Mr Carey which post-dated the surgery has been put in evidence.
51 I am quite satisfied that the plaintiff suffered injury to the cervical spine, lumbar spine and particularly the area of the coccyx in the accident. As stated by his treating and operating surgeon, Mr McQueen, he had a number of unstable fragments of the coccyx. There was an abnormality of the tip of the coccyx and some fragmentation indicated on the CT scan of 2 September 2008, but the fall aggravated the pre-existing situation. This is consistent with the opinion of Mr Chehata that, in the accident, the plaintiff suffered an aggravation of lower back symptoms, as well as an aggravation of coccyx pain. There was also an aggravation of cervical spine spondylosis. Again, as pointed out by Mr Chehata, there had been earlier falls, but the plaintiff continued to be able to work and with no essential change in his symptoms or significant disability. It was after the accident that the plaintiff’s disability and pain substantially worsened and deteriorated. The accident was the “inciting precipitating event”. I accept this, in relation to the coccyx, the lumbar spine and the cervical spine.
52 As is evident from the above, I accept that the plaintiff did have some previous lower back symptoms. The CT scan of 5 September 2008 does show some fracture line and fragmentation “due to old trauma”. Certainly the plaintiff has given a history of previous falls. However, it is interesting that the MRI scan of 5 May 2010 specifically stated that, in particular, there was no evidence of a fracture of the sacrum or coccyx. The MRI scan of 12 July 2014 does not seem to have been directed towards the coccyx, but indicated some discogenic degeneration at L3-4 and L4-5, also referring to mild disc bulges and no significant neurocompressive lesion. Thus, the situation is a little blurred, but I would accept that the plaintiff had suffered previous falls. He suffered some lower back pain in April 2008, and hence was seeing Dr Deady and Dr Stone. However, he was able to work full time in his occupation of butchering.
53 I am satisfied that the consequences of the injury and the accident are permanent within the meaning of the Act in that they will persist for the foreseeable future. After being initially optimistic, Mr McQueen, the operating surgeon, has stated that, as far as the coccyx is concerned, it would appear that the plaintiff’s ongoing problem is permanent. In his more recent report, Mr Chehata said that it was unlikely that the plaintiff would be able to gain reliable and consistent employment in the open marketplace in the future, having also observed that he did not believe that the plaintiff had a capacity for any form of work. In short, and bearing in mind that much of the medical material pre-dates the surgery, I accept and prefer those opinions. In reality, there is little, if any, material or argument to the contrary.
54 Paragraph (c) of the definition is not relied upon in this case. Accordingly, any consequences of a psychological or psychiatric nature shall not be taken into account. I might say that little, if any, emphasis was placed by the defendant upon disentanglement of psychological of psychiatric factors. Indeed, any argument in this regard scarcely obtained a mention in either the opening or closing addresses of Mr McWilliams. Nevertheless, there are scattered references to such conditions in the medical material. In short, consequences of a psychological or psychiatric nature shall not be taken into account, but I would be far from convinced that they play any significant role in, for example, the restricted number of hours which the plaintiff is now working. Certainly, the impression made by him in the witness box was not that of a person with noticeable mental-health problems.
Other developments since the injury
55 The plaintiff’s work history since the injury is not entirely clear. I accept that he worked with the defendant in a restricted fashion until his employment was terminated on 25 March 2010. He is not critical of such termination, referring to the defendant’s understanding attitude in having given him significant flexibility and lighter duties. His work history thereafter is not entirely clear. He has worked part time in various butchering jobs. It is apparent that, when he swore his first affidavit on 20 October 2017, the plaintiff was working approximately 10 hours per week in the meat section of a supermarket in Thomastown. That was still the situation when he swore his second affidavit on 12 April 2019, although the name of the supermarket had changed. The paid employment he was then engaged in consisted of light cutting work with a small knife and preparing of trays for display. It would appear that he did supermarket work for something between five and seven years.
56 By the time of the affidavit of 27 February 2020, he was working no more than 15 hours per week. His evidence before me was to the effect that he was working approximately 15 hours per week for PJM Meats in Thomastown and had been so doing since the beginning of the year. The plaintiff gave evidence, which I accept, that, if he was not doing those hours of work, he would receive a full pension. However, he cannot work more than 15 hours per week. (T42 and following pages) The end result is that the plaintiff has been working on a part-time basis as a butcher for a number of years. There was some cross-examination of him concerning deposits and withdrawals in his personal bank accounts, but I accept his evidence given at T45 and following pages. I am not of the view that he has been receiving income from exertion from other sources and this aspect of matters did not receive much, if any, attention from Mr McWilliams in his closing address.
Ruling
(a) Loss of earning capacity
57 I am satisfied that the plaintiff has discharged the burden of proof in relation to loss of earning capacity. Further, I am satisfied that the diminution in his earnings is a consequence of the physical injuries suffered by him in the accident. I would refer to the summary of medical opinions set out above. I shall turn to this aspect of matters when discussing “after injury” earnings.
58 There is little or no dispute concerning the figure of “pre-injury” gross annual earnings. The figure suggested by Ms Ryan is that of $43,008 as set out in the plaintiff’s tax return for the 2008 financial year. I accept it.
59 In relation to the issue of loss of earning capacity, there was a contest concerning the appropriate figure for “after injury” earnings. Firstly, it was suggested that the plaintiff had a greater earning capacity than the 15 hours per week which he is currently performing. Secondly, there was argument based upon the report of Dr Mutton. Essentially, it was to the effect that Dr Mutton had indicated that the plaintiff had a capacity to perform work as a weighbridge operator or business support officer. These employments, or employments of a similar nature, would be productive of an earning capacity far in excess of 60 per cent of pre-injury average weekly earnings.
60 I am of the view that the plaintiff is working currently to his full capacity in suitable employment and that this situation will continue for the foreseeable future. Generally, I prefer and accept the opinions of Dr Suyapto, as well as accepting the evidence of the plaintiff himself. Dr Suyapto has referred to the plaintiff’s limited experience and training and to the fact that he has been a butcher for most of his life. In addition, I would point out his very low level of education and the impression which he made in the witness box. Dr Suyapto has expressed the clear opinion that the plaintiff is currently working to the limits of his capacity and that this situation is most likely to continue into the foreseeable future. In fact, the plaintiff’s capacity may reduce. Apart from anything else, his clear opinion is to be contrasted with the more equivocal conclusions set out by Dr Mutton in his more recent report of 29 January 2020. He has stated that the plaintiff would require some flexibility or accommodation, particularly in relation to his sitting, and particularly in the shorter term. However, he has gone on to say that the plaintiff would have difficulty negotiating such flexibility or accommodation with a new employer, which would be less likely to provide this to a new employee. He has also stated that the plaintiff would need to undertake office work and basic computer training. I was not provided with the questions that had been addressed to Dr Mutton. In relation to one of them, his answer is “This will be difficult to overcome”. The next sentence refers to a further period of time to allow healing from the recent surgery, which may in fact result in some general overall improvement and a better response to a possible return to work. I prefer the clear views of Dr Suyapto. I would also point out that the plaintiff has sworn that he has attempted to work longer hours than the 15 per week which he is now performing. However, he is not able so to do and this coincides with the opinion of Dr Suyapto that he is working to the limits of his capacity.
61 There are two other matters which I will point out in relation to this issue. The first is that, for quite a period after the resumption of work on a restricted basis, the plaintiff was working 10 hours per week. It speaks well of his motivation that he has increased this to 15 hours. In addition, and this also reflects upon his motivation, the part-time work which he is performing has resulted in him being on a part pension. As he stated, if he was not working those hours, he would be getting a full pension. Further, I accept that the plaintiff actually likes being at work for as long as he can be. It would appear that he is divorced. He does not want to go home, because he gets depressed. Hence, even though he can only work for 15 hours, sometimes he remains at work “just for the sake of not going home” – see T42. Thus, whilst he is not able to work for more than 15 hours per week, sometimes he remains at the premises, without working, for a longer period. Generally, I would refer again to T43.
62 Accordingly, I am of the view that the 15 hours per week light duties which the plaintiff is currently performing represents his maximum “after injury” earning capacity. The material supplied by his present employer, PJM Meats Pty Ltd, reveals that his current annual salary is $16,333.20. I accept this as representing accurately the plaintiff’s “after injury” earning capacity.
63 The end result is that the plaintiff’s “without injury” earning capacity is $43,008. The plaintiff’s “after injury” earning capacity is $16,333. If that be so, the drop in the plaintiff’s income is one of just over 62 per cent and he is only earning approximately 38 per cent of his “without injury” earnings figure.
64 Thus, the plaintiff has discharged the burden of proof in relation to loss of earning capacity.
(b) Pain and suffering
65 The plaintiff having discharged the burden of proof in relation to loss of earning capacity, it is unnecessary for me to consider whether the burden has also been discharged in relation to pain and suffering. I would refer to the decision of J Forrest J in Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and to various decisions of this Court. In any event, I would have found that the plaintiff had so discharged the burden. Without going into it in detail, I would refer to the affidavits sworn by the plaintiff, including his most recent one. In it, he has sworn that, since undergoing the surgery, he has suffered from severe pain in the region of the coccyx. This is in addition to the pain in the lumbar spine. He wakes several times a night in pain. He can no longer enjoy the gardening and landscaping which he used to perform. As he told Dr Suyapto, who reviewed him after the surgery, he is in constant severe pain in relation to his lower back. In short, were it necessary, he has discharged the burden of proof in relation to pain and suffering.
A further observation
66 As earlier stated, the plaintiff is relying upon injury to the spine as a whole, although the focus of attention during the conduct of the case was very much upon his lower back and coccyx. I accept that he also suffers from some neck pain, although this would seem to be considerably less severe than that associated with the lower back and coccyx. I accept that the pain and restrictions associated with the cervical spine also play a role in his overall pain and suffering and loss of capacity. However, the injury to his lower back and coccyx is productive of consequences sufficient to satisfy the burden of proof in relation to both loss of earning capacity and pain and suffering.
Conclusion
67 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to issue proceedings for pain and suffering damages and loss of earning capacity. I shall hear the parties as to any further orders that are required.
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