Treloar v Victorian WorkCover Authority
[2023] VCC 2251
•12 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03022
| HARLEY NATHAN TRELOAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHIME HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2023 | |
DATE OF JUDGMENT: | 12 December 2023 | |
CASE MAY BE CITED AS: | Treloar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2251 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – plaintiff under 26 years of age at time of injury – injury to function of the spine – paragraph (a) – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Gauci v Winmart Pty Ltd [2012] VCC 53; MalecvJC Hutton Pty Ltd (1990) 169 CLR 638; State of New South WalesvMoss [2000] NSWCA 133; Jarvis v Woolworths Limited [2012] VCC 1329; Hunter v Transport Incident Commission & Avalanche [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Hounslow Lawyers |
| For the Defendant | Mr A Saunders | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in the course of, or due to the nature of his employment as a roof tiler with Excel Roofing Pty Ltd (“the employer”), between in or about January 2013 and in a particular incident which occurred on 11 March 2016 (“the incident”).
2The plaintiff seeks leave to bring proceedings for damages in relation both to pain and suffering and economic loss.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to paragraph (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘serious injury’ means—
(a)permanent serious impairment or loss of a body function.”
4The physical impairment relied upon is the function of the spine.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity”, which must be “serious” – that is, if the plaintiff is to succeed in his claim relating to the function of the spine, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments, ‘fairly described as being more than significant or marked, and as being at least very considerable’”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgement.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8Sections 325(e) and (f) of the Act set out the statutory formula by which, in usual circumstances, the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. However, given that the plaintiff in this case was under 26 years of age at the time of the incident, it is well established that his future economic loss is to be assessed pursuant to the common law principles which relate to the assessment of damages and not pursuant to the principles relating to suitable employment and rehabilitation referred to in the Act.[2] As stated by Judge Millane in Gauci v Winmart Pty Ltd:[3]
“It was common ground that when dealing with a worker under the age of 26 the common law position prevails, such that the Court may have regard to the probable income from personal exertion the plaintiff would have earned but for his injury over his probable earning life, rather than the formula contained in sub-section (38)(f) of the provision.[4] As submitted by counsel on behalf of the plaintiff, the determination of this young worker’s loss of earning capacity involves a discretionary judgment exercised with due regard to the facts.”
[2] Section 325(e)(i); see Gauci v Winmart Pty Ltd [2012] VCC 53 at paragraph [35], per Judge Millane
[3] Ibid
[4]See the Second Reading Speech (Victoria, Hansard, Legislative Assembly, 23 May 2000, 1169)
9An assessment of loss in this manner, requires the Court to assess the possibilities and probabilities relating to the future, with the Court doing the best it can in the context of a plaintiff whose work career has not yet formed. Numerous principles have emerged from the relevant case law, including the following:
(a)in assessing future loss, when the law takes into account the future or a hypothetical event, it can only do so in terms of the degree of probability on those events occurring. The process of determining possibilities is thus an imprecise and indeterminate one to be carried out within broad parameters;[5]
(b)the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It involves calculating the damage to a capacity to carry on various careers. It is an exercise in the estimation of possibilities, not the proof of probabilities;[6]
(c)where precise evidence is available, the Court naturally expects to have it. Where it is not, the Court must do the best it can;[7] and
(d)the Court expects that a plaintiff will call what evidence is available in relation to their loss of earnings and likely future loss of earnings.[8]
[5] MalecvJCHutton Pty Ltd (1990) 169 CLR 638 at 643
[6]State of New South WalesvMoss [2000] NSWCA 133 (“Moss”), per Heydon JA at paragraphs [66]-[87], particularly paragraph [81]; see also Jarvis v Woolworths Limited [2012] VCC 1329 at paragraph [23], per Judge Brookes
[7] Moss, at paragraph [72]
[8] Moss, at paragraphs [67]-[69]
10Having established his probable income from personal exertion (but for his injury), in order to establish that he has suffered a serious injury by reason of his economic loss, the plaintiff must establish a loss of earning capacity of 40 per cent or more.[9]
[9] Section 325(e)(i) of the Act
11In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[10]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[11]
[10]Section 325(2)(j) of the Act
[11]See generally Hunter v Transport Incident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
12Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
13By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment arising from the injury the subject of this application, and the range of possible physical impairments.
14In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[12] and Grech v Orica Australia Pty Ltd & Anor.[13]
[12](2005) 14 VR 622
[13](2006) 14 VR 602
15The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his mother, Ms Hope Madison. Ms Madison was not required to attend for cross-examination.
16In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[14] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[14]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
17The plaintiff was born in February 1992 and is presently 31 years of age. He lives with his mother.[15]
[15]Ex P1, p6 and 21
18At school he was never academic. He managed to complete Year 8 and after finishing his schooling, began a roof tiling apprenticeship.[16]
[16]Ex P1, p6
19His apprenticeship commenced with one firm, after which he took some time off. He ultimately returned to his roof tiling apprenticeship, this time with the employer. He stayed working with that firm until his lower back injury caused him to cease work.[17]
[17]Ex P1, p7
20While working for the employer, he recalls hurting his back in about April 2015. He woke up in severe pain and attended the Emergency Department at the Ferntree Gully Hospital. He does not recall being referred for any investigations. He does not believe he was experiencing any sciatica at that time. He was prescribed some painkillers and his back “settled down”. He was discharged from the hospital at around lunchtime. He was able to walk out of the hospital unaided. He recalls that he took about two weeks off work. He returned to work after about two weeks and returned to normal duties. He continued to perform his normal duties right up until the time of his injury on or about 11 March 2016, apart from a brief period off work in about December 2015, when he developed pain in his upper back and chest area after doing some bending and lifting at work.[18]
[18]Ex P1, p23-24
21In the lead up to the incident on 11 March 2016, he was “in pretty good shape”. Roof-tiling work is very physically demanding and “you would feel it after a particularly hard day”, but mostly he was able to get on with the job.[19]
[19]Ex P1, p8
22The number of hours he worked varied depending on the jobs that the employer was performing. Generally, he would work about 38 hours per week.[20]
[20] Ex P1, p8
23The work was fast paced. Tiles had to be cut and lifted. A stack of six tiles could weigh around 30 kilograms. On occasions, more than six were stacked. Bags of cement were also heavy. In a typical job, a stack of tiles would be conveyed to the roof by means of a tile elevator. The roof tilers on the roof would await the delivery of the stack and then have to lift and carry the stack to various parts of the roof to be laid and then cut. Then cement would be applied to attach the tiles to the roof and each other.[21]
[21] Ex P1, p9
24Most of the time he would be working on the roof with someone loading tiles on the ground. On a normal working day, he estimates that he would lift upwards of 150 stacks of tiles a day and physically lay all of those tiles on the roof. This could mean laying up to 1,000 tiles on any given day.[22]
[22] Ex P1, p9
25The work was extremely physically demanding, requiring almost constant lifting of heavy tiles. This work also involved bending and twisting the lower back. Additionally, awkward postures needed to be maintained when laying the tiles.[23]
[23]Ex P1, p9
The incident
26The plaintiff described the circumstances of the incident in the following way:
“On 11 March 2016, … [the employer] was laying roof tiles on a domestic house in Ashburton. As usual, I was on the roof taking deliveries of various stacks of tiles to be laid on the roof. A stack of five or six tiles made its way to the roof by means of the tile elevator. I lifted the stack and then carried them to an area of the roof for laying. As I le[a]nt forward to place them down, I felt heat and a pop in the region of my low back.
I also experienced severe pain at this time. My workmates, including my boss ..., could see the agony I was in.
I was helped down off the roof and driven home by a workmate. I could hardly move. The pain was disabling.
I attended ‘Back in Motion’ physiotherapy in Wantirna South on 15 March 2016. By this time I had just started to regain limited movement.
On 21 March 2016 I attempted to resume work, this time at a job in Rowville. I hardly lasted half an hour before the back pain was again severe and stopped me from working.
Later that day, I was to attend Access Medical Group in Wantirna South and also Wantirna Osteo, where I saw Andrew Jacobs.
A WorkCover claim was made and accepted.
I have not been able to resume employment with … [the employer] since 21 March 2016 - no suitable employment was available. Ultimately, I resigned my employment in late 2017 ...
On 29 March 2016 I underwent a CT scan of my lumbosacral spine.
The low back condition certainly prevented me from undertaking preinjury work, but at that stage I was hopeful that with appropriate exercise and management, it would improve enough to allow a resumption of suitable work duties.
As at July 2016 the back was not so severe that it stopped me engaging in appropriate exercise (overseen by experts) such as playing basketball. The key was to avoid heavy and repetitive lifting.
I continued to work with Andrew Jacobs at Wantirna Osteo and was making small gains.
My back pain and restriction continued in a similar way for the next 12 months or so, but with an increasing number of bad pain days.”[24]
[24]Exhibit P1, p10-11
Evidence concerning the consequences of the Plaintiff’s injuries
27As set out above, the plaintiff swore two affidavits. The first was dated 18 February 2022 and the second was undated, but the Court was informed it was sworn on 7 September 2023.
28In summary, the evidence as to the pain and suffering and economic loss consequences which the plaintiff presently experiences, is as follows:
Experience of pain
(a) he suffers from constant daily back pain. On a normal day his back pain is at least 5/10. If his pain has been aggravated or he suffers a flare-up, then the pain increases up to 9-10/10. Sometimes after he has suffered a flare-up of back pain, it can last for two to four weeks before it settles down again;[25]
[25]Ex P1, p25
(b) he now gets sciatic pain down both of his legs. It is worse in his left leg. The sciatic pain goes into his left buttock, down his left hamstring, into his left calf and left big toe. If he has been driving for too long or seated for too long, he can also get sciatic pain going down the back of the right leg and into his right foot, as well as the outside three toes on his right foot, which go numb;[26]
[26]Ex P1, p25
(c) his back pain is aggravated by any prolonged sitting, standing or walking. He can only sit for about 15 to 20 minutes before his back and leg pain is aggravated. He avoids doing any activities which involve repetitive bending, twisting or heavy lifting. He has been advised by his physiotherapist not to lift more than about 5 kilograms;[27]
[27]Ex P1, p25
Treatment and medication
(d) on 15 August 2018, he underwent spinal surgery at the L3-L4 level of his lumbar spine. Mr David de la Harpe, orthopaedic surgeon, performed this surgery;[28]
[28]Ex P1, p13
(e) he understood that this surgery was technically successful, notwithstanding that he continued to experience constant low-back pain after that procedure.[29] On 14 July 2021, he underwent a second operation on his back, again performed by Mr de la Harpe at the Epworth Hospital. He understood that this operation involved a revision of the original surgery at L3-L4;[30]
[29]Ex P1, p16
[30]Ex P1, p21
(f) following this surgery, he was referred for physiotherapy treatment, and this has remained his main treatment since his second back operation;[31]
[31]Ex P1, p21
(g) he is now seeing Mr Scott Bednarz, physiotherapist. He sees Mr Bednarz approximately once a week for treatment;[32]
[32]Ex P1, p22
(h) he commenced seeing Dr Saleem Khan, consultant physician in rehabilitation and pain medicine, in about November 2022. He ceased this program in about late July 2023. Under the program, Dr Khan took charge of his medication. He was also seeing a psychologist once a week and a physiotherapist three times per week;[33]
[33]Ex P1, p22
(i) he is currently being prescribed Gabapentin, 300 milligrams; Celebrex, 200 milligrams and Panadol Osteo. He takes Gabapentin once daily, Celebrex as needed (but on average about two to three times per week), and Panadol Osteo as needed (normally about eight tablets per week). These medications are prescribed by Dr Khan;[34]
[34]Ex P1, p22
Sleep
(j) his sleep is “terrible”. Most nights he only sleeps for about four hours, before his sleep is disturbed by back and leg pain. Because he does not sleep very well, he does not feel refreshed when he gets up the next day;[35]
[35]Ex P1, p26
Activities of daily living
(k) his driving capacity is restricted by his back injury. If he drives for more than about 15 minutes, his back and leg pain is aggravated. He sometimes pushes on and keeps going, but will “pay for it” later, with increased back and leg pain;[36]
[36]Ex P1, p26
(l) he does very little housework because of his back injury. His mother now does almost everything around the house. He tries to help her by doing some of the dishes and some light shopping;[37]
[37]Ex P1, p26
(m) prior to the work injury, he used to do all of the domestic duties such as cooking, cleaning and washing. His mother now does “pretty much everything around the house”. He is now only able to go shopping for short periods of time and is only able to carry light shopping bags;[38]
[38]Ex P1, p38, paragraphs [41]-[42]
(n) his low-back injury has resulted in him socialising far less than he used to. Because of the ever-increasing pain that sitting or standing for lengthy periods causes, he is unable to socialise as he would like to. He has lost contact with many friends as a result;[39]
[39]Ex P1, pp18, 27
(o) he has always been a keen basketballer. He was able to continue basketball after the injury, but not after surgery. At one stage, he was encouraged by a physiotherapist to try and play a game, but he suffered a flare up of pain.[40] He no longer plays basketball.[41] He misses this sport very much;[42]
[40] Ex P1, pp17-18
[41] Ex P1, p26
[42] Ex P1, p18
(p) prior to his back injury, he used to enjoy “wakeboarding”, which is like being on a snowboard behind a speedboat. He has not been able to enjoy this water sport since his low-back surgery;[43]
[43] Ex P1, p18
(q) in his younger days he was “a pretty decent cricketer”. At one stage, he won a trophy. He has not been able to enjoy a game of cricket since his low-back surgery;[44]
[44] Ex P1, p18
(r) he enjoyed snowboarding and used to be invited by friends to participate in this activity. He could not even consider going snowboarding now, due to his low-back pain;[45]
[45] Ex P1, p18
(s) he is also unable to do less strenuous activities such as playing pool at the pub because of his back injury.[46] Recently, after playing a couple of games of pool, he had to stop because of the increase in his low-back pain;[47]
[46]Ex P1, p26-27
[47] Ex P1, p18
(t) his capacity for sexual relations is restricted by his back injury. His previous relationship broke up as a result of the consequences of his back injury. He has not resumed any relationship since that time;[48]
(u) he enjoys playing computer games. If his back is feeling okay, then he can play games for up to one to two hours about two to three times per week. He can sit and stand when he plays computer games. If his back injury is aggravated or has flared up, then he cannot play computer games at all. Sometimes he has been unable to play any computer games for about three to four weeks, because his back pain has flared up;[49]
Capacity for employment
(v) he has not worked at all since swearing his first affidavit.[50] After the incident in March 2016, his back pain did improve, but that is because he stopped working. Initially, he got some benefit from treatment by his osteopath; however, his back pain never resolved. In late 2016, he tried to get back to some light duties, but was never cleared to return to pre-injury duties. At that time, he was continuing to suffer from back pain and was also taking anti-inflammatories;[51]
(w) he does not believe there is any work that he could do on a reliable and consistent basis, because of his back injury. He does not believe that he would be a reliable employee because of his back injury and the flare-ups of back pain that he experiences. He suffers a flare-up of back pain on average two times per week, but this varies. Sometimes he does not get a flare-up for a few weeks and then he will suffer a flare up of back pain that will last for three to four weeks. It is unpredictable and, because of this, he is very unreliable. When he is suffering from a flare-up of back pain, there is simply no way that he could turn up for any sort of job;[52]
(x) as far as retraining, he did look at doing a TAFE course for the purpose of upgrading his education, because he left school when he was in Year 8. He discussed doing this course with his physiotherapist. However, he could not go ahead with this course, because he did not believe that he would cope with the prolonged sitting required to complete it;[53]
(y) as a roof tiler he earned around $1,000 per week. His goal was eventually to run his own roof-tiling business. His older brother has done that and has been extremely successful, including financially. He knows that he cannot return to roof tiling because of his low-back injury;[54]
(z) from around mid-2017, he did some sporadic work in a call centre which he found difficult to cope with. That was mainly because it involved extended periods of sitting down.[55] He failed to get through the probationary period in this job;[56]
(aa) he has read that one of the jobs being recommended by the defendant is to be employed as a sales assistant. He has never had any experience as a salesperson. He believes he would have difficulties with the prolonged standing involved in being a sales assistant and he would not be able to reach up to get things down from storage, if he was required to do this;[57]
(bb) he has read that one of the jobs being recommended by the defendant is for him to be employed as a clerk. He does not have any skills in administration. He has never worked in administration. He left school in Year 8;[58]
[48]Ex P1, p27
[49]Ex P1, p28
[50]Ex P1, p23
[51]Ex P1, p24
[52]Ex P1, p28
[53]Ex P1, p24
[54]Ex P1, p14
[55]Ex P1, p12
[56]Ex P1, p29
[57]Ex P1, p29
[58]Ex P1, p29
Effect on mood
(cc) he feels very anxious and depressed most of the time because of his back injury. He was seeing a psychologist once a week when he was doing the pain management program and found that this was helpful. He is no longer seeing a psychologist.[59]
[59]Ex P1, p27
29Under cross-examination, the plaintiff gave the following relevant evidence:
(a) in April 2015, he suffered from quite severe back pain, which required him to attend at the Emergency Department of the Angliss Hospital;[60]
[60]Transcript (“T”) 28-T29
(b) on that occasion, he was prescribed heavy medication and it was recommended that he have an MRI scan;[61]
[61]T29, L4-5
(c) he agreed that he had told doctors at the hospital that the onset of pain was when he went to get up from the couch “last night”;[62]
[62]T29, L24-26
(d) when he attended at hospital, he was sitting in a wheelchair because of the level of pain from which he was then suffering. At that time, he was unable to walk without assistance;[63]
[63]T30, L23-31
(e) he agreed that there was no mention of his work in the notes of the history that he had given to the doctors. He denied that this is because he did not give the doctors any such history;[64]
[64]T31, L3-8
(f) he told doctors on that occasion that he occasionally suffered from mild back pain and that this had been the case since about 2014;[65]
[65]T31, L9-18
(g) he attended at a medical centre on Wednesday, 22 April 2015, and told the general practitioner (“GP”) a similar history to that which he had given in hospital. He agreed that the note did not record any reference to work. He denied that this is because he did not tell the GP about any work connection at that time;[66]
[66]TT32-33
(h) he reported to the GP on that occasion that he had pain in his lower back on his left-hand side which “goes down leg to left knee”;[67]
[67]T33, L18-25
(i) shortly after the incident, he filled out a disability questionnaire in which he disclosed that he thought he had a “90 per cent disability”. He agreed that in May 2016, about six weeks later he filled in the same type of questionnaire. In that document, his estimated level of disability had reduced to 54 per cent. He agreed that this meant he had made quite a significant improvement within that six-week period;[68]
[68]TT34-35
(j) he agreed that by 19 October 2016, his self-described level of disability was 18 per cent. He agreed that this represented a very substantial improvement over his previous presentation. In response to this line of questioning, he replied, “I was improving”;[69]
[69]T35, L12-31
(k) at that time, he felt so much better that he stopped seeing his osteopath, Dr Jacobs, and started to self-manage his condition. He agreed that he then started going to a gym;[70]
[70]TT35-36
(l) at this time, he had made “a good improvement”;[71]
[71]T37, L23-31
(m) he tried to return to playing basketball in the middle of 2016. He said that he was also doing a gym program to try and strengthen his back. He said that this was with a personal trainer and that he was not able to lift very heavy weights, “I built up as I went through”;[72]
[72]T38, L11-31
(n) he continued playing basketball into 2017. He said that he was “playing with a group of friends … No coaches or anything, just friends.”[73]
[73]T39, L4-19
(o) his participation in basketball continued until he was suspended in 2017, because of an altercation;[74]
[74]T39, L27-29
(p) it was put to him that at this time, no medical practitioner was prescribing him any medication. He said that he was in fact taking medication, because he had “leftovers” from medication he had previously been prescribed. He said he was also getting over-the-counter anti-inflammatories;[75]
[75]T40, L2-15
(q) he denied that he had made a full recovery by this stage. He denied that he was “pain-free during this period”;[76]
[76]T40, L25-31
(r) he had a further recurrence of back pain in February 2017. At this time, his symptoms were quite significant, and he returned to see his osteopath;[77]
[77]T41, L1-8
(s) he agreed that he saw a vocational assessor. He said that the note of him reporting that he had no difficulties with spelling, grammar or punctuation, is accurate. He thought that it is fair to say that his level of literacy is “reasonably good”;[78]
[78]TT42-43
(t) he thinks he is good with numbers. He can use basic functions on a calculator and can complete simple mental arithmetic;[79]
[79]TT43-44
(u) he has some basic computer skills, including operating a smart phone and using it to access the internet. He agreed that he has a computer at home which he uses to access the internet and also for gaming;[80]
[80]T44, L13-23
(v) he is able to use email applications and would be capable of putting in job applications and résumés online. He agreed that programs such as Word and Excel are “pretty straightforward” and “easy … to get on top of if you had to”;[81]
[81]TT45-46
(w) he completed a pain management course, but said that he did not really derive any benefit from it;[82]
[82]T46, L14-16
(x) he said that he is currently thirty-one years of age and would “love to” get back to some kind of work.[83] He qualified this answer by saying “I would be pretty unreliable at the moment due to the nature of my injury … so, it’s a bit hard to obtain work when you are unreliable”;[84]
[83]T46, L17-19
[84]T46, L22-25
(y) it was put to him that Dr Horsley had expressed an opinion that he may be able to get back to part-time work. He acknowledged this, but said, “at the moment I don’t think that I would be able to do it”;[85]
[85]T47, L3-10
(z) he said that he has not been offered any retraining in recent times. He agreed that he applied to do a TAFE course, and said:
“I just wanted to try and get something going in my day. Like, I have got nothing, you know. I wanted to hope that I could get back to work and retraining into a mature age high school graduate would help that.”[86]
[86]T47, L16-29
(aa) he acknowledged that Dr Horsley had endorsed the idea of him retraining in this way, and said that he had discussed the matter with his physiotherapist. His physiotherapist thought that he could attempt the course “maybe part-time but at the moment I don’t think it’s possible due to my sitting and standing restrictions”;[87]
[87]TT48-49
(bb) he was pressed on whether or not he would be able to attend the course, at least on a part-time basis, to which he replied:
“I don’t think I could do it … maybe once a week to start or something. It would be very hard for me to continuously do it throughout the week, just generally because when I sit at home and stuff I have pillows and things that I can use, whereas going into TAFE, you wouldn’t be able to take those in.”[88]
[88]T49, L9-13
(cc) it was put to him that he could start with the TAFE course “slowly”. He said this would have to be “with doctor’s agreement”. When it was put to him that the TAFE course is something he thinks he could start now, doing “bit-by-bit”, he replied, “No I don’t”;[89]
[89]T49, L16-21
(dd) he said that he is worried about returning to work, but “I would like to do it. As I say, I would love for tomorrow to wake up and be all good and go back to work.”[90] When it was put to him that unless he actually tries some work he will not know the true extent of his work capacity, he replied, “But at the same time in saying that, I did try to do … call centre work and it did not work out, due to the prolonged sitting”. It was suggested to him that this was before the second surgery. He agreed with this proposition, but added:
[90]T49, L29-30
“… I still have trouble managing. I still see the physio from the pain management program … I flared up twice throughout the treatment and had to extend the period of the treatment. So generally a pain management program goes for 12 weeks and mine went for a lot longer than that because I had to have time off due to the increased activities that I was doing for the pain management. I flared up and had problems … .”[91]
[91]T50, L1-25
(ee) he agreed that his pain is under better control now with the treatment from Dr Khan.[92] In those circumstances, it was put to him again that he could now try the TAFE assessment course, to which he replied, “I don’t believe I could, no”;[93]
[92]T51, L2-3
[93]T51, L4-7
(ff) the various roles that were put forward by the defendant as potentially suitable for the plaintiff were put to him. They were “production clerk”, “hirer controller” and “asset protection officer/facilities administrator”. In relation to each of these positions, the plaintiff agreed that in theory, he would have the skills to perform the role. However, in relation to each of the roles, he pointed out that the demands of his back pain would mean that he would be unable to fulfil the role reliably. He also thought that some of the demands of the role, such as walking or sitting, would be beyond him and that he could not perform those roles in his current capacity:
“… as I struggle to do just general household things around the house, and my Mum has previously stated in her affidavit that she does the bulk of that because of the pain it puts me in just to do those activities … .”[94]
[94]TT51-59
(gg) during re-examination, the plaintiff explained that after the incident in March 2016, he has –
“… never fully recovered. I have always had lingering issues in the lower back and left leg, getting worse with flare-ups and things like that. So it’s never really subsided to zero.”[95]
[95]T61, L1-5
(hh) in response to a question about how many days a week or how many times a day he lies down on his bed, he replied:
“Maybe about five, six. Depending … if I have had a flare-up it’s a lot worse but if it’s just a general day, it just depends on what the activities of the day are.”[96]
(ii) when asked to explain the issues that he has with driving a car, he replied:
“Well, after about 25 minutes of driving my right leg starts to get a little bit numb and the last three toes on my right foot go completely numb, and it feels like they are just sitting there while I am driving. They are shaking and it just feels really weird, and then I get some pain in the left big toe and down the left leg as well. … I have driven further than that but I do pay for it afterwards.”[97]
(jj) when asked how reliable he would be in any of the jobs proposed by the defendant, he replied, “I personally don’t believe I would be too reliable at this stage of my life with my current capacity”.[98]
[96]TT61-62
[97]T62, L4-15
[98]T63, L5-7
The Lay witness
Ms Hope Madison
30The plaintiff’s mother, Ms Hope Madison, gave the following relevant evidence in an affidavit sworn on 7 September 2023:
(a) she is aware that her son suffered a back injury at work in March 2016. Prior to that time, he was in regular employment and was very healthy. She is not aware of any particular injury or illness that prevented him from working full time;[99]
(b) the plaintiff was active socially and used to enjoy playing basketball prior to the incident. He seemed to be very happy in what he was doing;[100]
(c) following the incident in March 2016, she recalls him telling her that he had “done something to his back at work”. Since that time, he has consistently complained of his ongoing back pain, even though he has had two operations. She has not seen any substantial difference in his condition despite those surgeries;[101]
(d) not only did the plaintiff tell her that he was in pain, but she could see from how he walked and bent forward that he was clearly in pain. There has been occasions where she has been brought to tears seeing the pain that her son is in;[102]
(e) the plaintiff returned to live with her full time in about July 2021, when he had his second operation. She has not seen any significant improvement in his condition as a result of that surgery. He complains daily of pain which she can see for herself;[103]
(f) they moved into the current address about twelve months ago. There are bedrooms upstairs, but downstairs, she has converted the dining room into a loungeroom and the loungeroom into a bedroom for the plaintiff. He therefore sleeps downstairs and has his own toilet. The shower is upstairs, which he uses, but that is generally the only time he goes upstairs;[104]
(g) she does not believe that the plaintiff could live on his own. She does most of the housework for him. She does the vacuuming, sweeping and mopping. The plaintiff has tried to assist at times, but is clearly in pain. She washes and dries his clothes. She changes and makes his bed. There is a backyard, and she does the mowing. The plaintiff does some light shopping for milk and bread and similar items, but normally they do the heaving shopping together;[105]
(h) occasionally, the plaintiff drives her to work and complains about back pain. It is very sad to see him in his current predicament, as he has a very restricted social life. She recalls that he had to call a mate to come around to change a tyre on his car as he could not do it. He is not a reader and often plays computer games, but he needs to have a cushion on his chair and often takes breaks and goes to lie down for a while. There are also times when he tells her that his back is too sore to play computer games and he spends most of the time lying down.[106]
[99]Ex P1, p30
[100]Ex P1, p30
[101]Ex P1, p30
[102]Ex P1, p31
[103]Ex P1, p31
[104]Ex P1, p31
[105]Ex P1, p31
[106]Ex P1, p31
The medical evidence
31There were numerous medical reports contained in the tendered material. Both sides provided reports from medico-legal experts. A precis of the medical materials is set out below.
The Plaintiff’s medical evidence
32Numerous radiological reports were contained with the plaintiff’s court book. The two most significant were a CT scan of the lumbosacral spine dated 23 April 2015 and a further CT scan of the lumbosacral spine dated 29 March 2016.
33The report of the April 2015 CT scan contained the following relevant observations:[107]
“Clinical History: L5/S1 sciatica
…
L3/4: On the background of a shallow disc bulge here is a focal central/left paracentral disc protrusion which causes mild indentation of the anterior thecal sac. No spinal canal narrowing. There is minimal narrowing in the inferior aspect of the left intervertebral foramina. No suggestion of compromise of the exiting L3 nerve roots. No significant facet joint osteoarthritis.
…
Conclusion:
[107]Ex D1, p60
Multilevel shallow disc bulges in the lower lumbosacral spine not resulting in spinal canal narrowing. No suggestion of compromise of the exiting nerve roots in the lumbosacral spine.”
34The report of the March 2016 CT scan contained the following relevant observations:[108]
“CLINICAL NOTES:
Back pain; left sided sciatica
…
CONCLUSION
[108] Ex P1, p74
The main abnormality is at L3/4 disc space demonstrating a central broad-based disc herniation (more prominent towards the left) causing pressure on the thecal sac and the suggestion of compromising the L4 nerve roots bilaterally, however due to the prominence of the herniation to the left, there is suggestion of more pressure on the left L4 nerve.”
35As can be seen, there was a significant deterioration in the presentation of the plaintiff’s lumbosacral spine between the first incidence of back pain in 2015, where no nerve compression was seen at any level, and the aftermath of the incident in 2016, where compromise of the L3-4 disc space and the L4 nerve roots bilaterally, was observed.
36The plaintiff relied upon the report of a Medical Panel dated 21 October 2019, provided in the context of an impairment claim. In that report, having taken a comprehensive history and examined the plaintiff, the Medical Panel, comprised of a rheumatologist and a neurosurgeon, concluded that:[109]
“… [the plaintiff] suffers from persisting lumbar back pain and dysfunction with residual left thigh wasting from a left sided L3/4 disc prolapse and L4 radiculopathy successfully decompressed surgically … .”
[109]Ex P1, p53
37The plaintiff relied on two reports from Dr Andrew Jacobs, osteopath, the first dated 11 November 2016 and the second dated 18 June 2017. In the first report, Dr Jacobs noted an initial diagnosis of L3-4 central broad-based disc herniation, more prominent towards the left, causing impingement of the thecal sac and left L4 nerve root. His diagnosis at that time was “left mechanical lower back pain with referred symptoms to the left side”.[110] Based on the disability questionnaires which the plaintiff had filled in, Dr Jacobs was of the opinion that the plaintiff’s injury had significantly improved since its onset and he thought that the plaintiff’s requirement for manual osteopathic treatment had reduced significantly. He stated that he was aiming for the plaintiff to be “fully self-managing his injury by January 2017”.[111]
[110]Ex P1, p83
[111]Ex P1, p84
38In Dr Jacob’s opinion, the plaintiff’s capacity to return to his full-time unrestricted pre-injury duties was then impeded due to the “unrealistic return to work capacity his employer established”. Dr Jacobs thought that if the plaintiff was able to return to work on light duties and then was given the ability to progress to modified pre-injury duties, the outcome of the plaintiff’s injury would be improved. He said he could not, with confidence, confirm the capacity in which the plaintiff would be able to perform his full-time unrestricted pre-injury duties as a roof tiler. He thought that at most, the plaintiff would be able to work three full days, with one day off in between or five half days. There would be a 10-kilogram maximum lifting capacity and a 20-kiligoram maximum carrying capacity. He thought the plaintiff would need to manage his repetitive bending movements. He thought that the plaintiff had a good prognosis, but said:
“Unfortunately due to the nature of … [the plaintiff’s] L3-4 central broad based disc herniation injury, he could be at a high risk of re-aggravating his injury if he was to perform the duties of a full time roof tiler.”[112]
[112]Ex P1, p86
39The plaintiff relied upon a letter from Mr David de la Harpe, orthopaedic surgeon, to the plaintiff’s general practitioner, dated 24 May 2018. In that letter, Mr De La Harpe noted that the results of the MRI scan were “consistent with an L3-4 disc prolapse on the left hand side displacing the L4 nerve root”. He noted that at that stage, the plaintiff had tried more than a year of physiotherapy and gym work. He said that the plaintiff did not want to have any further conservative management. He noted that an epidural injection had been done, but did not work. He said that the plaintiff would rather proceed with surgery than have a further epidural. He thought that if the plaintiff proceeded with a microdiscectomy, “it may have a reasonable chance of improving some leg pain but … [the plaintiff] may still have back pain for which he will need to continue physiotherapy”.[113]
[113]Ex P1, p93
40The initial operation was performed on 1 August 2018.[114]
[114]Ex P1, p96
41Due to ongoing pain, a further surgical procedure in the form of a revision of the original microdiscectomy at the L3-4 level, was performed on 14 July 2021.[115]
[115]Ex P1, p98
42The plaintiff relied upon a further letter from Mr de la Harpe to the plaintiff’s general practitioner, dated 1 September 2021, in which he noted that, following the revision procedure:
“He still has some symptoms into the legs but I think overall he is doing alright. … .
As far as his rehab is concerned, as soon as lockdown allows I would like him to get back to the physios at Back in Motion.”[116]
[116]Ex P1, p101
43The plaintiff relied upon a report from Mr Daniel Heffernan, physiotherapist, dated 16 March 2020. In that report, Mr Heffernan noted that the plaintiff’s lumbar pain had not then improved and that the pins and needles in his leg were getting worse. He had recently noticed bilateral pins and needles when using the toilet. It was noted that the plaintiff had been consistent with his physiotherapy which involved a combination of exercise and manual therapy. Mr Heffernan thought that in light of the plaintiff’s lack of improvement and recent symptoms, a further MRI scan of his lumbar spine may be of benefit to help guide ongoing management and identify if any major pathology was present.[117]
[117]Ex P1, p107
44The plaintiff relied upon a report from Mr Scott Bednarz, physiotherapist, dated 7 September 2023. Mr Bednarz had seen the plaintiff as part of a multi-disciplinary pain management assessment on 6 January 2023. Mr Bednarz considered that due to his physical injuries and significant ongoing impairment, the plaintiff is unfit for any suitable work. He thought that the plaintiff’s incapacity would continue indefinitely and that he will continue to experience significant pain, impairment and be markedly restricted in function and daily activities.[118]
[118] Ex P1, p186
45The plaintiff relied upon four reports from Mr Peter Wilde, orthopaedic surgeon, the first dated 23 September 2020, the second dated 15 March 202, the third dated 5 July 2023 and the fourth supplementary report dated 7 September 2023. In the report dated 5 July 2023 Mr Wilde noted his previous diagnosis that the plaintiff is suffering from “lumbar dysfunction following a left L3-4 disc protrusion managed surgically …”. He opined that “[the plaintiff’s] stated pain and lumber dysfunction is disproportionate to the pathology seen on the most recent MRI scan suggesting that he has developed a pain syndrome”. Nevertheless, he thought that the plaintiff’s condition continues to be related to the incident that occurred on 11 March 2016. He said that the plaintiff remains unfit for his pre-injury employment as a roof tiler due to the heavy bending, lifting and twisting that the job requires. His opinion was that the plaintiff’s current symptoms were likely to continue into the foreseeable future.[119]
[119]Ex P1, p172
46In response to a report provided to the defendant by Dr Ashish Jonathan, consultant neurosurgeon, dated 9 May 2023, Mr Wilde was asked to provide his opinion as to whether or not the plaintiff’s current condition is in fact related to the incident on 11 March 2016. That is, because Dr Jonathan expressed a contrary view.
47In relation to this matter, in a report dated 7 September 2023, Mr Wilde gave the following opinion:
“I do not agree with Dr Jonathan … the CT scan of the lumbosacral spine conducted on April 23, 2015, describes shallow disc bulges at L3-4 and L4-5 without radiological evidence of neural compression.
To quote from the conclusion of the radiology report:
‘Multi-level shallow disc bulges in the lower lumbar spine do not result in spinal canal narrowing, with no suggestion of compromise of exiting nerve roots in the lumbosacral spine.’
Following the incident on March 11, 2016, … [the plaintiff] described a different type of pain, radiating into the left leg for the first time. A CT scan of the lumbosacral spine performed on March 29, 2016, shows a left central and paracentral L3-4 disc protrusion displacing the left L4 nerve root. These images are markedly different from the previous MRI and CT scans. This is confirmed by the radiologist’s report.”
48When specifically asked about the cause of the plaintiff’s current pain and associated presentation, Mr Wilde said:
“In my opinion, the work incident on 11/3/2016 produced the disc prolapse on the left at L3/4. This compressed the left L4 nerve root with resultant left leg sciatica (left L4 radiculopathy). Mr De La Harpe made the correct diagnosis and subsequently performed an appropriate left L3/4 microdiscectomy [to] relieve this man of radiculopathy. The surgery was successful as it relieved the left leg pain. The current symptoms of low back pain relate to the disrupted and inflamed disc at L3/4. This is not uncommon after microdiscectomy as the internal structure of a disc does not return to normal. The disc loses height and volume and heals with fibrosis and scarring. The ongoing back pain has prevented … [the plaintiff] returning to work as a roof tiler. … .”[120]
[120] Ex P1, pp292-293
The Defendant’s medical evidence
49The defendant relied upon three reports from Dr Sam Soliman, occupational medical consultant, the first dated 24 June 2019, the second dated 1 December 2020 and the third dated 9 November 2021. In the most recent report, Dr Soliman was of the opinion that the plaintiff had aggravated a pre-existing condition in his back. He thought that the plaintiff’s report of pain and restrictions were consistent with the described injury and surgery to a certain degree. He thought that employment continued to be a materially-contributing factor to the plaintiff’s current condition.
50The defendant relied upon one report from Dr Ashish Jonathan, consultant neurosurgeon, dated 9 May 2023. In that report, Dr Jonathan expressed the opinion that the plaintiff’s employment had not contributed to his current condition. He said that before the reported incident the plaintiff had been:
“… symptomatic with sciatica and had a radiologically proven L3/4 disc prolapse in April 2015. This disc prolapse was unchanged following the reported incident. The reported incident caused an exacerbation of the pre-existing degenerative disease of the lumbar spine. This exacerbation resolved by 19 October 2016, as documented by Dr Andrew Jacobs (Osteopath) in his letter dated 11 November 2016.”[121]
[121]Ex D1, p56
Expert evidence in relation to the Plaintiff’s employment capacity
51The defendant relied upon two vocational assessment reports from an organisation called “Recovre”, the first dated 5 April 2022 and the second dated 29 August 2023. In those reports, various alternative vocations were proposed as suitable for the plaintiff to engage in, given his current work restrictions. Ultimately, of the many vocations initially proposed, the defendant confined its closing submissions to the suitability of three vocations, namely: production clerk, hire controller, asset protection officer. In relation to each of these roles, the relevant Recovre report noted the following matters:
(a) Production Clerk:
Workers use computer-based applications. Computer-based activities are required for short intervals regularly across the work day.[122] Printing, which was described as “the bulk of activities associated with this role”, was noted to involve “dynamic standing and walking within the office area on a constant basis.”[123] Task rotation was noted as “very high, with frequent change of posture”. There were no reaching requirements. Lifting and carrying tasks were light and trolleys are available for pushing and pulling. There were no formal education requirements, although basic computer skills including email, screen navigation and basic keyboard skills were needed. It was noted that “use of the industry specific applications” would be “taught on the job”;[124]
(b) Hire Controller:
The role was noted to be entirely administrative and requiring workers to perform a range of computer, email and telephone-based activities. Typical tasks included generating hire agreements and entering relevant data, scheduling delivery and pick up of equipment whilst ensuring optimal use of the business delivery driver services, liaison with workshop staff to ensure adequate and timely availability of equipment, generation of simple reports and tending to general telephone/email enquiries.[125] The use of various computer databases is required. Intervals of data entry are constantly required, but can be broken up by interspersing telephone and manual tasks in between the computer-based tasks.[126] Ideally, workers would have prior administration experience or have completed a certificate in business administration, although it was noted that this was not “essential”.[127]
(c) Asset Protection Officer:
The worker is responsible for assessing council assets (footpaths, crossways and stormwater drains) to determine whether they have been damaged during planned construction and related works. Driving is required, sometimes up to an hour per trip. Several trips may be made each day. Standing and walking for 20-30 minutes is required. Workers may have to sweep areas of footpath or shovel small piles of debris. Administrative and computer duties also need to be attended to.[128]
[122] Ex D1, p100-101
[123] Ex D1, p102
[124] Ex D1, pp102-103
[125] Ex D1, p104
[126] Ex d1, p105
[127] Ex D1, p106
[128] Ex D1, pp107-110
52The defendant relied upon an opinion from Dr Soliman dated 9 November 2021, where he stated that the plaintiff was capable of performing the physical requirements of the jobs identified in the Recovre vocational assessments. He thought that the plaintiff would be fit to work full normal hours of either suitable or alternative duties, but that he may need to start with reduced hours for a couple of months to allow time for his physiotherapy to take effect. He thought that the plaintiff needed to change posture regularly and to avoid repetitive bending and lifting over an 8 to 10-kilogram weight limit below waist height. He said that it was likely that the plaintiff would have intermittent flare-ups depending on his activities, as he had experienced in 2015, before the alleged incident. He thought that the frequency of such flare-ups would mostly depend on the plaintiff’s approach, lifestyle and maintenance of his core-muscle strength.[129]
[129]Ex D1, pp48-49
53Lastly, the defendant relied upon the opinion of Dr Jonathan, who was of the opinion that the plaintiff’s capacity for work is limited, viz:
“… as he suffers from degenerative disease of the lumbar spine. He does not suffer any incapacity due to the exacerbation which ceased in November 2016.”[130]
[130]Ex D1, p56
54In Dr Jonathan’s opinion, any work restrictions and activity modifications which the plaintiff now experiences “do not arise as a result of the reported incident or … [the plaintiff’s] employment in general”.[131] Dr Jonathan was of the opinion that the plaintiff is physically fit to pursue all of the vocations proposed by the defendant “with adjustments [to] accommodate the restrictions and activity modifications listed above”.[132]
[131]Ex D1, p56
[132]Ex D1, p57
55The plaintiff relied upon three reports from Dr Robyn Horsley, occupational physician, the first dated 8 June 2017, the second dated 27 February 2022 and the third dated 21 June 2023. In her most recent report, Dr Horsley expressed the opinion that the plaintiff’s work had been a significant contributory factor to the plaintiff’s current presentation, against the background of a pre-existing L3-4 disc prolapse from 2015. She noted that following the 2015 incident, the initial pain and tightness in the plaintiff’s back and left leg settled, and then he worked for the next twelve months in his physical role as roof tiler. Overall, she believed that the primary event was the incident in March 2016.[133] She thought that the following work restrictions applied with respect to the plaintiff’s lumbar spine:[134]
[133] Ex P1, p143
[134] Ex P1, p143
“· Avoidance of repetitive over reaching;
·Avoidance of repetitive pushing and pulling;
·Avoidance of working in awkward and confined spaces;
·Good manual handling technique even when lifting light items;
·Avoidance of repetitive bending and lifting;
·Avoidance of truncal rotation;
·Avoidance of static postures of the lumbar spine particularly static forward flexion;
·Avoidance of lifting items greater than 12-15kgs, except on an occasional basis;
·Avoidance of lifting items up to 10kgs on a repetitive basis;
·Variation in posture.”
56Dr Horsley said that the plaintiff’s current functional tolerances are “quite poor”, despite his current functional restoration program. She said that the plaintiff reported that:[135]
“· His comfortable sitting tolerance is 15 minutes. The pain then rises. He can sit for up to 40-60 minutes, before getting up and about;
·His driving tolerance is 40 minutes;
·His static standing tolerance however is only 5 minutes;
·His comfortable walking tolerance is 20-30 minutes, although he is only currently recommended to do ‘an 8 minute walk around the block’, by Advanced Health on the days that he does not attend the pain management program;
·His dynamic standing tolerance on history is 20-30 minutes.”
[135] Ex P1, p143
57Dr Horsley thought that given the length of time since the injury and the ongoing nature of the symptoms, the plaintiff’s current level of disability would be likely to continue for the foreseeable future. She thought that he was permanently unfit to return to roof tiling. She said that on the basis of his current presentation, assuming increased functional tolerances with the involvement of advanced health over the next couple of months, the initial goal would be to return to work at least on a part-time basis, in the vicinity of 15 to 20 hours per week, within the restrictions as outlined, in a sedentary role. She said that he required proactive assistance to look at return to work options. She said this could only occur with the upgrading of his skills, formal assessment of his literacy and computer skills, access to WISE and support from a rehabilitation provider to find appropriate work. Notwithstanding this observation, she said that the plaintiff’s progress overall for a return to work is “guarded at best”.[136]
[136]Ex P1, p143-144
58The plaintiff relied upon two reports from Mr Paul Hartley, vocational assessor, the first dated 22 March 2021 and the second dated 29 June 2023. In the most recent report, Mr Hartley noted various barriers to the plaintiff regaining the ability to participate in alternative employment, including:
(a) his poor sitting tolerance;
(b) his severe distracting pain;
(c) his poor postural and driving tolerances;
(d) his likely need to enhance his English literacy given his low level of education;
(e) the chronic severe pain and sleep disturbance that diminish his capacity to concentrate for sustained periods, affect his recall, and ability to remember new information;
(f) his inability to think clearly, organise and plan;
(g) his lack of employment diversity as a basis for alternative vocational training into new and less physically-demanding forms of employment;
(h) the fact that his existing computer skills do not meet the criteria for a description of “basic”, from a commercial or study perspective;
(i) the fact that his digital literacy would require a considerable enhancement before his competencies could be considered commercially functional for most clerical or other administrative work roles;
(j) the fact that he cannot cope independently at home and could not consistently cope with a work situation at this stage; and
(k) the fact that the severity and chronicity of his pain and sleep deprivation see him very frustrated at times, such that he no longer believes he could effectively work, either as part of a team, or independently, due to his chronic injury symptoms.[137]
[137]Ex P1, pp253-255
59In terms of the plaintiff’s attempt to obtain other employment, Mr Hartley observed that, “his demonstrably and unsurprisingly poor performance in a call centre for one week also sees no transferable skills attached”.[138] In addition, he considered that the plaintiff’s long-term job detachment-related inability to provide a recent reference for any job for which he may apply, would also be a substantial barrier to employment.[139]
[138]Ex P1, p255
[139]Ex P1, p258
60Mr Hartley agreed with Dr Horsley that on the basis of the plaintiff’s current presentation, he has no realistic or reliable capacity for work until his functional tolerances improved. He said that it is clear that the plaintiff remains significantly limited by pain, exacerbations of pain with even minor activities and sustained postures, and that his pain is not yet well controlled. He noted that Dr Horsley’s hope that the plaintiff could embark upon training towards a new form of work in early 2023, had not yet come to fruition.[140]
[140]Ex P1, p263
61Ultimately, it was Mr Hartley’s view that:
“… [The plaintiff] would … need to find a role that accommodates his:
▪ physical impairments and functional tolerances, which would potentially necessitate unscheduled breaks and with time off when his pain increases;
▪ a highly supported work environment that could accommodate his need for workplace restrictions, provide a sit-stand desk, and allow him a graduated and flexible return to work process;
▪ accommodating his associated injury symptoms such as negatively impacted memory, reduced concentration, poor sleep, and progressive pain and fatigue; and
▪ sourcing a position in consideration of all factors that he could perform to acceptable commercial expectations and perform within the restrictions and limitations noted by medical professionals.
Realistically, this would prove very difficult and consequently very significantly narrows … [the plaintiff’s] future employment prospects. I asked … [the plaintiff] if he could guarantee a potential employer if he could reliably and consistently arrive at work each day and perform his duties as required and he was very much aware that he could not, particularly in his current state.”[141]
[141]Ex P1, p264
62On this basis, it was Mr Hartley’s opinion that the plaintiff did not have any realistic capacity, either for his pre-injury employment or for any alternative employment.[142]
[142]Ex P1, p266-267
The issues
The Plaintiff’s credit
63During cross-examination, the plaintiff was challenged in relation to many aspects of his evidence, but in particular, the manifestation and chronology of the symptoms which he suffered at different times. He was also cross-examined about his capacity to undertake the various roles proposed by the defendant.
64In relation to the first matter, questioning of the plaintiff centred, first, around whether the onset of pain in 2015 was work related, and whether he suffered from pain in his leg at that time and, second, whether he had in fact fully recovered after the incident in 2016, to the point where he ceased receiving treatment and had resumed certain leisure activities, such as playing basketball.
65In relation to each of these matters, the plaintiff gave clear and consistent evidence. He provided cogent explanations in relation to each matter. For instance he did not dispute that he may have experienced leg pain in 2015, although he could not recall that. He maintained that he had told doctors about having “a heavy week of work” in the lead up to that incident. Further, the history, which was unchallenged by the defendant, indicated that he had resumed full-time duties after that experience of pain and continued working right up until the incident in March 2016.
66As to the consequences of the 2016 incident, the plaintiff acknowledged that he returned to playing basketball in mid-2016. He had made a “good recovery” by the end of 2016, to the point that he had ceased seeing his osteopath and GP and was not being prescribed any pain medication. He agreed that he was attending the gym, but said it was for rehabilitation purposes. The plaintiff denied that he was ever “pain free” during this time. He said that he continued to take “left over” medication. He was never able to return to work. He maintained that in February 2017, he had a flare-up of pain associated with the 2016 incident. He denied that he had fully recovered from the 2016 incident. He denied that the onset of pain in February 2017 was a new incident. There was nothing in the evidence before the Court which cast doubt on this account of events.
67As to his work capacity, it was suggested to the plaintiff that the defendant had proposed roles which included tasks that he thought he would be able to perform. In relation to each of these positions, the plaintiff agreed that in theory, he would have the skills to perform the role. However, as set out above, in relation to each of the roles, he pointed out that the demands of his back pain would mean that he would be unable to fulfil the role reliably. He said that some of the demands of the role, such as walking or sitting, would be beyond him. Once again, there was nothing in the evidence before the Court which cast doubt on the plaintiff’s account of his pain flare-ups and general work capacity.
68Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest witness who appeared to be doing his best to provide accurate responses to the questions asked of him.
69Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating practitioners, consulted with the medico-legal assessors and provided evidence to this Court. His account of events and the consequences from which he presently suffers, is corroborated by the evidence of his mother, who was not required to attend for cross-examination. In addition, the medical reports of the treating medical practitioners and the medico-legal experts for the plaintiff, contained accounts of his injuries and consequences which were supportive of the plaintiff’s account of his pain and its consequences for him.
70After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of his mother and the medical reports tendered on his behalf, I consider that he was a credible witness in the sense of being a truthful person.
Stoic Plaintiff
71Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been somewhat stoic in relation to his condition and has taken some steps to try to continue living his life as best he can.
72I find that despite the consequences of his injuries, which he has suffered daily since the incident, he attempted to resume playing basketball in a social setting, but was unable to continue with this activity. The plaintiff also tried to resume employment in the form of work at a call centre. After a very short time in this role, it became plain that it was unsuitable for him.
73Similarly, the evidence demonstrates, and I find, that the plaintiff carefully followed the advice he was given about how to manage his back condition and did make some steps toward improvement. Despite this, he suffered a further setback in relation to his condition in February 2017. Following this flare-up of pain, the plaintiff ultimately required surgery on his lumbar spine on two occasions.
Compensable injury
74The details and occurrence of the incident are not in dispute.
75Having considered all of the medical evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of the incident, the plaintiff suffered, inter alia, an organic injury to his spine in the form of a L3-4 disc prolapse on the left-hand side, displacing the L4 nerve root, managed surgically.
Is the compensable injury permanent for the purposes of the Act?
76Having considered the relevant reports and, in particular, the reports from Dr Horsley,[143] Mr Wilde,[144] and Mr Bednarz,[145] I find that the plaintiff is likely to suffer from the consequences of the injury that he sustained while working for the employer for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[143] Ex P1, p144
[144] Ex P1, p173
[145] Ex P1, p186
Conclusions as to economic loss
77The weight of the evidence satisfies me that the plaintiff has no realistic capacity to engage in his pre-injury employment as a roof tiler. None of the defendant’s medical evidence suggested a conclusion to the contrary.
78As to the plaintiff’s post-injury work capacity, I note that in Richter v Driscoll,[146] the Court of Appeal held that in assessing a plaintiff’s fitness to engage in alternative employment, the Court is –
“… required to consider whether the entirety of the [plaintiff’s] relevant personal circumstances—that is, his injury-caused incapacity and other relevant personal circumstances … meant that he would likely be unsuccessful in obtaining employment because he had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.”
[146][2016] VSCA 142 at paragraph [106] (citing Cardiff Corporation v Hall [1911] 1 KB 1009, at 1020 and 1027)
79With the exception of Dr Horsley, with whose evidence I deal with below, the totality of the plaintiff’s medical evidence is to the effect that the plaintiff has no capacity for alternative employment.
80Dr Horsley differed in her opinion, only to the extent that she opined that on the basis of his presentation in June 2023, “assuming increased functional tolerances with the involvement of Advance Health over the next couple of months, the initial goal [for the plaintiff] would be to return to work at least on a part-time basis, in the vicinity of 15-20 hours per week, within the restrictions as outlined above, in a sedentary role”. Notwithstanding this observation, I note her opinion that the plaintiff’s progress overall for a return to work is “guarded at best”.[147] Further, I note that as at the date of the hearing, it had been three months since Dr Horsley’s most recent assessment, and that despite her hope to the contrary, the evidence indicated that there had been no increase in the plaintiff’s functional tolerances. In relation to this point, I note that in her report dated 27 January 2022, Dr Horsley acknowledged that “on the basis of [the plaintiff’s] current presentation, he has no realistic or reliable capacity for work until his functional tolerances improve”.[148] (emphasis added)
[147]Ex P1, p144
[148] Ex P1, p133
81Similarly, Mr Hartley thought that the plaintiff had no realistic capacity for any employment. He outlined the fact that the plaintiff candidly acknowledged that he would be unable to guarantee attending any workplace on a consistent and reliable basis, due to the unpredictable nature of his pain.[149] He noted the very great disadvantage which the plaintiff’s low level of education and lack of computer skills posed, in terms of the need for retraining and as a barrier to obtaining any alternative employment.
[149]XXX
82The defendant relied upon the opinions of Dr Soliman and Dr Jonathon. As referred to above, Dr Soliman thought, in 2021, that the plaintiff had the capacity for a gradual return to work in certain roles. Dr Jonathon was of the opinion that the plaintiff is not suffering any employment-related incapacity for work. Assessing the medical evidence as a whole, I note that Dr Jonathon’s opinion entirely differs to that of the balance of the medical experts who provided opinions in relation to this matter. I also note that Dr Jonathon’s opinion relies upon his view that there was no substantial difference between the result of the CT scan dated 23 April 2015 and that dated 29 March 2016. As set out above, this view is not supported by a reading of the reports in relation to each. On this basis, I do not accept the opinion expressed by Dr Jonathon.
83Similarly, I note that Dr Soliman’s opinion as to the plaintiff’s capacity for employment, is almost three years old. Necessarily, that opinion has not considered the plaintiff’s current presentation, nor addressed the refractory nature of the plaintiff’s ongoing pain symptoms. Lastly, and importantly, despite acknowledging that it is “likely” that the plaintiff will experience, intermittent flare-ups of pain, nowhere in his report did Dr Soliman, consider the plaintiff’s personal circumstances, to assess whether and to what extent they would impact on his ability to participate in the proposed roles, on a consistent and reliable basis.
84Those personal circumstances include the plaintiff’s experience of constant and variable pain, the unpredictable nature of the pain flare-ups from which he regularly suffers, his difficulties with sleep and his reduced functional tolerances, including a limited ability to drive.
85Given this, I prefer the opinions of the plaintiff’s experts as to these matters, since their opinions were expressed having taken into account the issues which I must consider.
86As a result, I am satisfied that the consequences of the injury to the function of the plaintiff’s spine have resulted in the plaintiff being unfit for both his pre-injury duties and indeed, for any other employment. Further, I find that even if the plaintiff has a theoretical physical capacity for some employment, by reason of his personal circumstances, the plaintiff is not presently “merchantable” as a prospective employee, due to his experience of pain, the consequential difficulties which he experiences and his inability to attend at work on a consistent and reliable basis. I have already found that the injuries from which the plaintiff suffers (and therefore the ongoing effect of those injuries), are permanent for the purposes of the Act.
87I am also required to consider issues of retraining and rehabilitation pursuant to s325(2)(g) of the Act.
88In light of my findings as to the plaintiff’s physical impairment and his present incapacity for employment due to his experience of pain, the unpredictable nature of his pain flare-ups, his vastly reduced functional tolerances and his inability to attend at work on a consistent and reliable basis, I am satisfied that there is no rehabilitation or retraining that the plaintiff would be able to undertake, which would alter the fact that he has a permanent incapacity for work. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g) of the Act.
89In those circumstances, I am satisfied to the requisite standard that the plaintiff has suffered a 100 per cent loss of his pre-injury earning capacity. I am therefore satisfied that the consequences of the injury to the function of his spine from which the plaintiff suffers as a result of the incident, are “serious” for the purposes of the Act.
Conclusion
90Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity in respect of a serious injury to the function of his spine, suffered in the course of his employment with the employer, and in particular in an incident which occurred on 11 March 2016.
91I will hear the parties on the question of costs.
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