Troon v T J and F L Pohlner Pty Ltd (trading as Pohlner; Engineering) and Anor

[2010] VCC 1142

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-02543

STUART JOHN TROON	Plaintiff
v
T J AND F L POHLNER PTY LTD	First Defendant
(trading as POHLNER ENGINEERING)
and
WORKSAFE VICTORIA	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Ballarat
DATE OF HEARING:	22 June 2010
DATE OF JUDGMENT:	20 August 2010
CASE MAY BE CITED AS:	Troon v T J & F L Pohlner Pty Ltd (trading as Pohlner Engineering) & Anor.
MEDIUM NEUTRAL CITATION:	[2010] VCC 1142

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(38)(a) and (b) – low-back injury – pain and suffering only – relevant principles – whether “serious”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K D Mueller	Ryan Carlisle Thomas
For the Defendants	Mr P D Elliot QC with	Herbert Geer
Mr I S Gourlay
HIS HONOUR:

Introduction

1 By way of Originating Motion dated 9 June 2009, Stuart John Troon (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to his lower back suffered by him over the period from 20 October 1999 and, in particular, on 24 January 2005 (“the injury”) arising out of, or in the course of his employment with T J & F L Pohlner Pty Ltd (trading as Pohlner Engineering) (“the first defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.

3          The application was heard over one day and the following evidence was adduced:

(a)	The plaintiff gave viva voce evidence and was cross-examined;
(b)	The plaintiff tendered pages 8-69 and pages 77-202 of the Plaintiff’s Court Book (Exhibit 1);
(c)	The defendants tendered the following evidence:

(i)         pages 158-205 of the Defendants’ Court Book (Exhibit A);

(ii)        hand and typewritten notes from the practice of Dr Jinks and Dr O’Brien (Exhibit B);

(iii)       12 pages of notes of Mr Casey commencing 27 January 2005 (Exhibit C).

Relevant Legal Principles

4          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).

5          The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:

“serious injury means—

(a) permanent serious impairment or loss of a body function; ...”

The part of the body said to be impaired is the low-back.

6          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by him arose out of, or in the course of his employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resulting impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” of the low-back impairment in relation to “pain and suffering” are “when judged by comparison with other cases in the

range of possible impairments ... may be fairly described as being more

than significant or marked, and as being at least very considerable”:
(my emphasis) (see s.134AB(38)(a) and (b) of the Act).

7          The test is sometimes referred to as the “narrative test”.

8          In determining the application, the Court:

(a)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(b)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(c)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).

The Issues

9          After the opening by leading counsel for the plaintiff, Senior Counsel for the defendants advised the Court that there were two essential issues:

(a)	which “incident” of injury is the cause of any impairment suffered by the plaintiff; and
(b)	in any event, whether the consequences now suffered by the plaintiff in respect of his undoubted low-back injury, satisfy the narrative test.

The Background of the Plaintiff, “The Injury” and Medical Treatment

10        The Court refers to the affidavits sworn by the plaintiff respectively on 3 February 2009 (at page 8 of Exhibit 1 and from now on referred to as “the first affidavit”) and on 8 June 2010 (at page 14 of Exhibit 1 and from now on referred to as “the second affidavit”). The contents of these affidavits were sworn to be “true and correct” by the plaintiff: (see T21, L10-19).

11        The plaintiff also gave evidence-in-chief that he is presently employed as “maintenance worker”.

12        In his first affidavit, the plaintiff gave the following evidence:

•  He is a forty-seven year old (born 18 July 1963) married man with two children, one born in 1989 and the other in 1992.

•  He left school after repeating Year 10 and over the years has obtained no formal trade or professional qualifications. He notes that his English speaking skills are good and that his reading and writing skills are “fair to reasonable”: (see paragraph 3).

•  Since leaving school he has had the following employment history:

ƒ from 1980 to 1985, he was employed by Freighters Pty Ltd as a welder (during this period of time he commenced his apprenticeship as a fitter and turner but this was not completed);

ƒ for about a year, commencing in 1985, he was employed by Glass

Glow as a fibre glasser;

ƒ for about six to eight months from 1987, he was employed by Berklee’s
Pty Ltd as a production welder;

ƒ from 1988 to 1989, he was employed by Wilke Colour as a press

operator;

ƒ	from about 1989 to 1992, he was employed by Cook’s Body Works as a welder;
ƒ	from 1993 till mid 1997, he was employed by Frontline Ballarat as a welder.
•	In mid 1997, he commenced employment with the first defendant as a boilermaker/welder, working a 38-hour week with occasional overtime.
•	The first defendant was in the business of fabricating and repairing trailers and farm machinery. The plaintiff describes his “normal duties” as follows:

“My normal duties at Pohlnar involved manually lifting (on my own or with other workers) heavy and/or awkward objects including steel sheets and water tanks. The work could be physically stressful. It either required a lot of bending, twisting, lifting, prolonged standing as well as working in awkward and/or confined spaces. My job required the full and free use of the back.”

(See paragraph 6).

• On 24 January 2005, the plaintiff was required to dig holes (some of which required breaking through layers of cement) using a shovel known as a “Kanga” hammer. The plaintiff states, in part:

“ … I dug the first hole. It required breaking through the cement layer. I felt a bit of [a] twinge in the low-back. The second hole was through direct (sic) and clay. It was near the end of the shift when I was working on about the third hole (which involved breaking through dirt and clay). By the next morning I was experiencing severe low-back pain as well as problems in the right leg.”

(See paragraph 7).

• He attended his general practitioner, Dr Jinks, the next day and was prescribed physiotherapy and certified to be off work for about two to three months.

• The plaintiff returned to work with the first defendant on modified duties and graduated hours, such duties involving TIG (light) welding with no heavy lifting or repeated or constant bending, and gradually built up to normal hours.

• The plaintiff resumed work on normal duties, except that he was able to avoid “constant and repeated bending, and heavy lifting” and any other activities (such as including crawling in and around machinery) which he thought his back could not “handle”: (see paragraph 8).

• He states that:

“My back and right leg conditions gradually improved over the time I was back at work. In March 2006 however, I suffered a flare-up of severe low-back and right leg pain and had to be taken to the Wimmera Base Hospital by ambulance. I have not returned to work at Pohlner.”

(See paragraph 8).

• He made a claim for compensation pursuant to the provisions of the Act, which was accepted, and he received weekly payments of compensation, together with payment of medical and the like treatment until early 2008.

• He has received treatment for his back condition from the general practitioners, Doctors Jinks and O’Brien, who referred him to the neurosurgeon, Mr David Wallace. His treatment has included physiotherapy, exercises, injection, wearing a spinal brace and the taking of painkillers and anti-inflammatories.

• In February 2008, he obtained employment with Blue Lake Milling at Dimboola, about 32 kilometres from his home in Horsham, where he works in “maintenance”. In particular, the plaintiff states:

“My job involves walking around the premises making sure the machines are operating properly. I oil and grease the machinery. I work full-time with regular overtime. With overtime I can take home between $750.00 and $850.00 a week. I am concerned as to my future job prospects given my past medical history. The current employer is aware of my back condition. My current duties are of a light nature and I am currently coping. I take anti- inflammatories if my duties involve sitting for a prolonged period. I also see my physiotherapist on a regular basis in order that I can remain in the workforce.”

(See paragraph 17).

• He suffers “non-stop pain in the low-back” with the level of pain varying and usually “activity related”. Such activities which generally increase the level of pain include bending, twisting and lifting, as well as prolonged sitting and bending. He constantly has pain in the “right leg” which varies from a “dull ache to sharp pain”. He experiences “constant pins and needles in the sole of the right foot” and there is also constant “numbness affecting the right leg”. His back pain and discomfort breaks up his sleep and although his sleep pattern has improved over the time since the injury, he continues to sleep in bursts of a few hours at a time: (see paragraph 12).

• Before the injury he was a “fit person”, enjoyed his work with the first defendant, “loved working on cars, as well as spending quality time with the kids, including playing sport with them”, enjoyed “bike riding” and had an “easygoing temperament and enjoyed my relationships with Rayleen, with my children, and with other family members”. He had “quite a few friends and enjoyed their company”: (see paragraph 14).

• The injury has “caused major changes to my life” and he believes he has become “very short-tempered and intolerant” which causes difficulties with other members of the family. He has lost interest about mixing with his family and other people and also the incident affects his ability to work on cars, go on long drives and bike riding.

• Prior to the injury, he recalls suffering back symptoms in 1999 as a result of a work incident involving overturning a 6-foot x 4-foot trailer. He believes he was off work for approximately two weeks and then obtained a full medical clearance. He also had “minor back symptoms” in 2003 and 2004 for which he sought physiotherapy assistance. He believes that he had “fully recovered” at the time of the 2005 incident of injury.

13        In his second affidavit, the plaintiff gave the following evidence:

• His solicitor has pointed out that on 13 February 2004, he underwent a CT scan at the Wimmera Base Hospital: (see paragraph 2).

• During 2003 and 2004, he remembers attending for physiotherapy and also attending Dr Jinks from time to time, who prescribed painkillers from time to time for relief of back pain. He was off work in February 2004 for about two weeks and was then certified to return to work on light duties and after several months returned to full duties without any restrictions due to his back. He “occasionally had back niggles and spasms” which he was able to work through without restriction: (see paragraph 3).

• He continues to work for Blue Lake Milling and such work involves “performing routine maintenance, greasing the machines, performing minor repairs and getting outside contractors to perform work on major breakdowns”. There is no heavy manual lifting involved and most of the machines are at head height and are not required to perform much bending: (see paragraph 4).

• He is able to work full-time and averages about ten hours overtime per week and on average is called out about once a month.

• He drives 32 kilometres to work each day and is “okay with driving this short distance”: (see paragraph 6).

• He suffers “from constant background pain which varies in intensity, particularly depending on the weather”: (see paragraph 7).

• When his back pain flared-up badly in 2006, he was “initially consuming up to eight Panadeine Forte tablets per day and did so for a year or so” after which, for the next eighteen months or so, he reduced his consumption of Panadeine Forte to about a packet of 24 tablets every week or so: (see paragraph 8).

• His doctor then prescribed him Panadol Osteo, which he takes on a “needs basis two or three times a week”; Diclohexal, which he believes is an “anti-inflammatory of which I take regularly two tablets a day”; Lyrica which he takes to “control the burning sensation in my foot”; Crampeze “which I take at night to ease the cramps when I have spasms” which happens two or three times a month when in bed: (see paragraph 9).

• He continues to have a lot of trouble “with back pain in bed at night” and his sleep is interrupted most nights, causing him to have hot showers during the night about three nights per week.

• Prior to the incident, he loved working on cars and, in particular “1968 Falcons” and he now seldom works on cars.

• He used to enjoy going out into the bush with a chainsaw getting firewood and now is required to “buy it”. He has tried to mow the lawn about twelve to eighteen months ago but found the vibration of the machine caused a very “unpleasant sensation in my leg”: (see paragraph 14).

• Prior to the injury, he was actively involved in his son’s football team as a runner and as goal umpire when required (2004). Since the incident, although he goes along to watch his son play, he is usually in the timekeeper’s box which is “quite comfortable and was heated”: (see paragraph 15).

• He used to enjoy going out with his daughter and son on motorbikes which he is unable to do now.

• His social life has “suffered a good deal” and he is unable to do regular trips with friends to places such as Mount Gambier, Melbourne and Adelaide.

• He is fit for full-time work provided that there is no lifting or repeated bending required.

14        Dr G A O’Brien and Dr D A Jinks are situated in Horsham and seemingly have been the general practitioners of the plaintiff.

15        Dr O’Brien reports that the plaintiff attended him on 2 December 1999 following an injury to his back at work on the previous day when rolling a trailer. In a report dated 29 October 2009 (see page 24 of Exhibit 1), Dr O’Brien states:

“As he was rolling a trailer he stated that he had heard a ‘popping’ sound and felt acute back pain in his right lower lumbar and sacro-iliac regions. The description of injury and site of pain and tenderness were in keeping with a facet joint injury, but Mr Troon also had pain and paraesthesia referred to the right S2 nerve root, with a positive stretch test reducing straight leg raising to 70 degrees on the right. However, this referred pain subsided quickly, and he had regained normal function by 17.12.99.

Mr Troon was treated with anti inflammatories and had physiotherapy to regain function. He returned to light duties on 20.12.99, and when last seen by me on 04.02.00 he had made a full recovery and was cleared as fit for normal duties.”

(My emphasis).

16        In a report dated 21 February 2005 (see page 26 of Exhibit 1), Dr Jinks notes that the plaintiff had further bouts of lumbar pain in June 2003 and February 2004. In particular, he states:

“His current bout of pain stemmed from a minor incident on 24/1/05 resulting in right sciatica and lumbar pain. From his previous presentation in February 2004 a lumbar CT scan had confirmed disc degeneration with foraminal disc herniation and his current presentation was in my opinion a further exacerbation of this condition.”

17        As noted by Dr Jinks, the plaintiff underwent a CT scan of his lumbar spine on 13 February 2004: (see page 67 of Exhibit 1). The conclusion of such a report states:

“Mild to moderate right foraminal disc herniation at L5-S1, mild posterior

disc bulge at L4-5.”

18        I refer to the report of Dr G A O’Brien, undated (at page 21 of Exhibit 1), where he describes the attendance by the plaintiff on him on 17 March 2006 with acute back pain with radicular pain in the distribution of the right S1 nerve root. Dr O’Brien states, in part:

“Mr Troon had aggravated a previous work-related injury in which he had a disc herniation at L5/S1, which had slowly settled with conservative treatment.

On this occasion, Mr Troon had severe pain/paraesthesia in the distribution of his right S1 nerve root, resulting in grossly limited function, precluding full examination. A repeat CT scan was arranged, and this showed a mild disc bulge at L4/5 and a focal herniation of the L5/S1 disc into the right subarticular and foraminal position with compromise of the descending S1 nerve root.

Mr Troon has been treated with a course of oral steroids, analgesic and physiotherapy. A caudal epidural steroid injection is to [be] performed at Wimmera Base Hospital on 10/04/06, and may need to be repeated in subsequent weeks.”

19        In a later report, dated 29 May 2008 (at page 22 of Exhibit 1), Dr O’Brien notes that the plaintiff underwent the caudal epidural steroid injection with little improvement and was subsequently referred to the neurosurgeon, Mr David Wallace, who arranged for the plaintiff to undergo an MRI scan. The scan was undertaken on 15 May 2006 (see page 68 of Exhibit 1) and the radiologist, Dr C Trotman, comments:

“Degenerative changes in the L4/5 and L5/S1 discs with a disc protrusion

at L5/S1 on the right affecting the right S1 nerve root.”

20        After the incident in 2006, the plaintiff was off work until resuming with Blue Lake Milling in February 2008. In the 29 May 2008 report, Dr O’Brien states:

“Mr Wallace was reluctant to consider surgery for Mr Troon, and instead encouraged regular physiotherapy and exercises, along with regular reviews in his consulting rooms. Mr Troon’s condition slowly improved over the next year or so, and by late 2007 he was able to do light household duties and a little gardening. Early in 2008 he was able to find employment as a Maintenance worker which entailed very light work with no repeated bending or lifting.

When last seen on 01/04/2008, Mr Troon was coping well with work. His back pain had reduced considerably and was now more of a vague discomfort. He no longer had referred pain to his right leg, but some ongoing sensory loss extending to his right foot.

In summary, Mr Troon has multi-level disc disease of his lumbo-sacral spine, with prolapses at L4/5 and L5/S1, and resultant instability at these levels. As a consequence he has a permanent disability which will prevent him from engaging in heavy manual work in the future. However, with careful use and regular exercises, he should be able to continue with light work, such as is entailed in his current employment, with minimal discomfort. No further treatment modalities or other intervention is planned at this time.”

(My emphasis).

21        Mr Wallace initially examined the plaintiff on 8 May 2006, and on the history given to him was of the opinion that the plaintiff had suffered:

“A lumbar disc injury approximately six years ago when handling a heavy trailer, and has had exacerbations of his back injury, directly related to that event, as outlined above. He has suffered a significant lumbar disc injury at L4/5 and L5/S1, but I would be hopeful that with careful management of his complaint he will get by without surgical intervention. … ”

(See report dated 26 July 2006 at page 30, Exhibit 1).

22        Mr Wallace subsequently reviewed the plaintiff on 12 December 2006 and on 23 February 2010. Mr Wallace arranged for the plaintiff to undergo a further MRI scan on 23 February 2010. In his report dated 24 February 2010 (see page 33 of Exhibit 1), Mr Wallace states, in part:

“He has had an MRI scan today which shows loss of signal in the lower two lumbar discs, but above L4/5 his back is like the back of a 20 year old, and abnormally normal. However, the narrowing of the L4/5 and L5/S1 is not a time bomb that he is sitting on, there is no significant disc prolapse nor central canal stenosis, but only tiny central disc bulges or protrusions, the more significant thing being nerve root canal stenosis.

The common surgery recommended for such cases of insertion of artificial discs or multilevel spinal fusions in a man as fit and strong as him are not in his best interests. There would be the option of a nerve root decompression which I could do if it was ever required, but I think he might well get by without such intervention. … ”

23        I refer to the report of Mr Wallace dated 16 April 2010 (see page 34 of Exhibit 1) where he comments on “causation” and states:

“ … I agree with the opinion of Dr David Ho that the most contemporaneous 2006 ‘event’ is not a new injury but a continuation of the old injury dated 24.01.2005. In fact, I would go further to say that the original injury that has predisposed this man to his intermittent back troubles is a work related injury on or around 1999, in which he suffered a significant lumbar disc injury, which has been a recurring problem since then. It is absolutely classical that such injuries lead to intermittent bouts of pain interspersed with a complete normality, and yet may suddenly re-appear ‘out of the blue’ many years later, sometimes as long as 20-30 years later. … ”

(My emphasis).

24        I also refer to the physiotherapy treatment notification forms completed by the physiotherapist, Dr Shaun Casey, dated 27 January 2005 and 29 March 2006 (respectively at pages 47-48 of Exhibit 1). I note that Dr Casey commenced treating the plaintiff on 27 January 2005 on referral from Dr D Jinks, and treatment was still being undertaken as at June 2006.

The Cross-Examination of the Plaintiff

25        Under cross-examination, the plaintiff gave the following pertinent evidence:

•  He had no problems with his back prior to 1999 as best as he can recall: (T22, L20-21).

•  He had “flare-ups of back pain” after 1999 up until 2006, when he left work: (T22, L24-28).

•  If there had been suitable work he would have gone back to the first defendant after the 2006 incident of injury.

• For the 2005/2006 financial year he earned $30,580 with the first defendant and, with his present employer, for the year ending 30 June 2008, he earned $52,305, and for the year ending 30 June 2009, he earned $64,441: (T24, L3-12).

•  The incident of injury in 1999 with the first defendant was significant and that his back was never the same after that: (T24, L25-29).

•  The plaintiff has not lost any time off work because of his back condition over the last few years: (T25, L19-22).

•  In relation to his present employment with Blue Lake Milling:

ƒ it “seems like that”, that he is earning about double his income

compared with the first defendant: (T25, L12-13);

ƒ “to an extent” his present job is of a mechanical nature: (T25, L27-28);

ƒ the premises of Blue Lake Milling consist of a corrugated factory

containing two cleaning plants, two flour mills and a roller mill and there

are presently about twelve employees: (see T26 generally);

ƒ	approximately there are thirty to forty machines which are under the care of the plaintiff as he is the maintenance operator: (T28, L19-22);
ƒ	the milling machine is a large machine consisting of three levels which are reached by a stair-type case: (T27);
ƒ	he works on Monday from 6.00 am until probably 2.30-3.00 pm in the afternoon and on Tuesday to Thursday he works from about 8.00 am until approximately 4.00 pm, sometimes until 6.00 pm, and on Friday he works from 6.00 am until 6.00 pm at night: (T29, L12-15);

ƒ at present he is performing weekend work and, accordingly, he is

working seven days a week: (see T29 generally);

ƒ	it is an ongoing thing “servicing and maintaining the machines”: (T30, L3-4);
ƒ	he has a work bag and trolley and uses shifters, regular ‘open end’ and ‘ring’ spanners, sockets, impact sockets, pliers and screwdrivers: (T30, L13-19);
ƒ	his work involves him oiling and greasing machines and he must keep the machines properly serviced: (T30, L23-26);

ƒ sometimes whole gearboxes have to be replaced and he performs

work unbolting them and uses a forklift which he is able to drive to

remove the gearbox: (T31, L4-13);

ƒ he is able to pick up and carry around a “work bag” weighing

approximately 8 kilograms: (T31, L23-25);

ƒ he rotates with the other maintenance worker every month to be

available for a “call out”: (T32, L22-25);

ƒ	he drives from Horsham to Dimboola, a distance of 32 kilometres each way when he attends his workplace.
ƒ	At the first defendant’s premises, he performed fabricating and welding.
ƒ	After his back injury on 24 January 2005, he returned to modified duties in March 2005, and on 1 April 2005, he was certified to perform 8 hours’ work a day performing light duties, and as from 10 May 2005, he was certified to return to “normal duties” avoiding “heavy lifting and repeated bending”: (T35, L29-T36, L16).

ƒ He continued working with the first defendant until 16 March 2006,

during which time he performed TIG welding which did not involve any

heavy lifting or twisting: (T36, L31-T37, L10).

ƒ	After the incident of injury in 2006 he would have carried on with the light welding work if the job he had been performing up to then had been available to him: (T48, L31-T49).
ƒ	His current employment was obtained by him applying directly to the company: (T50, L3-4).

ƒ His current employment does involve occasional bending into the

machine to carry out maintenance, and a little bit of heavy lifting which

is not heavy: (T51, L25-30).

ƒ	His current employment involves walking and he is on his feet “most of the day”: (T53, L1-2).
ƒ	When queried as to why he cannot perform his hobby of repairing cars, he stated:

“I lose patience because I can’t bend; I can’t do a lot of things that I like doing; I can’t crawl around in through the engine bays; I can’t get under the dashboards of cars. Things I’d enjoyed doing I can’t do it because I just – it starts to irritate the back and I’ve just got to walk away from it.”

(T56, L1-7).

• When his son played football, the football club was a “social outlet where we’d sometimes mix with people”: (T59, L13-16).

• He has driven down to Melbourne “on occasions” but it is “very hairy” because he has no control in his “right foot”: (T60, L28-T61, L15).

• He continues to see the physiotherapist, John Casey, which “keeps me going for two or three days”: (T63, L31-T64, L5).

The Re-Examination of the Plaintiff

26        Under re-examination, the plaintiff gave the following pertinent evidence:

•  The worst thing that has happened to him because of his back is that he is unable to enjoy being with his family as much as before. In particular, he states:

“I don’t really feel like I’m a family man, like, I just seem to be the provider of food for the kids and keeping a shelter over their head.”

(T64, L16-19).

• Prior to 2005, when employed by the first defendant, he was required to get inside tanks and weld them: (T69, L18-26).

• When he was a runner with his son’s football team, he was running for about “30 minutes” over the length of the match of 120 minutes: (T70, L23-27).

Medico-Legal Reports

27        The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)	the industrial physician, Dr A G Capes, on 3 September 2009 (see report of same date at page 49 of Exhibit 1) and on 9 February 2010: (see report of same date at page 55 of Exhibit 1);
(b)	the orthopaedic surgeon, Mr S F Schofield, on 3 September 2009: (see report dated 16 September 2009 at page 57A of Exhibit 1).

28        Following a letter dated 4 February 2010 from the solicitors acting on behalf of the plaintiff, Mr Schofield amended his initial report: (see page 58 of Exhibit 1).

29        After his first examination, Dr Capes said the plaintiff had suffered an injury to his low-back when working for the first defendant over the period from 1997 to March 2006. In particular, he considered the incident in January 2005 and the further incident in March 2006 “aggravated and possibly accelerated his lumbar disc degenerative disease that he incurred at L5-S1 a disc prolapse”: (see page 52 of Exhibit 1).

30        Dr Capes noted that there was evidence of ongoing S1 radiculopathy in respect of the right leg and that the plaintiff had no capacity for pre-injury duties but had a capacity for light suitable work.

31        In his final report, Dr Capes opines that the “original injury” was in 2005 with an aggravation and flare-up in March 2006. He makes a diagnosis of L5-S1 disc lesion as a “consequence of the duties Mr Troon was required to perform … [with the first defendant] … on or about 24 January 2005”: (see page 56 of Exhibit 1). Furthermore, Dr Capes thought that the injury suffered by the plaintiff would preclude and/or restrict various social, domestic and recreational activities.

32        After the examination on 3 September 2009, Mr Schofield was of the opinion that on the history obtained by him at that time, the plaintiff had suffered a “ruptured disc causing right sciatica” as a result of the incident of injury in 1999 (when manoeuvring the trailer). He was further of the opinion that the jarring force in March 2006 was consistent with a “further rupture occurring in the presence of pre-existing degenerative change and probably a weakened posterior wall on the right side”: (see page 57D of Exhibit 1).

33        Mr Schofield was of the opinion that the plaintiff was unfit to resume his pre- injury duties but was able to cope with restricted duties. In particular, Mr Schofield states:

“In addition, he needs to have an MRI scan of the lumbar spine to determine the size of the prolapse and the degree of degenerative change. These two investigations will help to determine what prognosis your client might have for the future with further conservative treatment, which I believe will fail. The decision will then need to be made as to what type of surgery will be best suited to his injury in the long term.”

(See page 57D of Exhibit 1).

34        After receiving the letter from the solicitor acting on behalf of the plaintiff (refer to paragraph 28 above), Mr Schofield amended his report to now include, inter alia, the following paragraph:

“The injury on the 24th January 2005 was one of which he was breaking up cement with a jackhammer, kneeling on hands and knees and forcing the jackhammer down. This would require significant muscle action of the lumbar spine, both pushing down and pulling up the jackhammer and the additional repetitive jarring that occurs whilst holding a jackhammer. Such a force is consistent with the development of a lumbar disc prolapse in the presence of previous degenerative change and that in this patient’s case, probably a mild bulge at the time, which became a prolapse requiring up to three months off work, followed by modified duties and with resulting inability to resume his pre-injury activities, complaining of persistent right back pain.”

(See page 61 of Exhibit 1).

35        The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)	the occupational health consultant, Dr David Ho, on 6 April 2006 (see reported dated 10 April 2006 at page 164 of Exhibit A) and on 5 April 2007 (see report dated 11 April 2007 at page 170 of Exhibit A);
(b)	the occupational physician, Dr David Kotzman, on 5 August 2008 (see report of same date at page 180 of Exhibit A);
(c)	the orthopaedic surgeon, Mr M Polke, on 21 April 2009 (see report of the same date at page 193 of Exhibit A);
(d)	the occupational health consultant, Dr Andrew Miller, on 19 January 2010 (see report dated 20 January 2010 at page 198 of Exhibit A).

36        After his first examination, Dr Ho was of the opinion that the plaintiff had suffered an L5-S1 disc protrusion as a result of the incident in January 2005 and that his back had suffered a further extension of the L5-S1 disc protrusion as a result of the incident in March 2006. He states:

“In my opinion, Mr Troon had aggravated his previous back injury dated 24 January 2005. In my opinion, it is not a new injury but a continuation of the old injury dated 24 January 2005.”

(See page 168 of Exhibit A).

37        After his second examination, Dr Ho was of the opinion that there had been some improvement in the low-back condition of the plaintiff and he was unfit for unrestricted duties: (see page 173 of Exhibit A).

38        Dr Kotzman examined the plaintiff for the purposes of rendering the AMA impairment assessment. Dr Kotzman was of the opinion that the plaintiff was suffering from persisting “low-back dysfunction with a right S1 radiculopathy as a consequence of an L5-S1 disc prolapse relevant to the accepted aggravation of low-back injury occurring on 16 March 2006”: (see page 184 of Exhibit A). In particular, and perhaps curiously in the overall circumstances, he was of the opinion that the current impairment arises wholly from the injury occurring on 16 March 2006.

39        Mr Polke was of the opinion that the plaintiff suffered from “disc bulges of the lower lumbar spine” (see page 195 of Exhibit A), and that there appears to be “a direct relationship of his condition related to his work”: (see page 195 of Exhibit A). In particular, Mr Polke states:

“His injury affects his enjoyment of life, particularly as he cannot work in his original trade; he cannot participate in activities with his 16 and 19 year old children such as ride bikes or horses, train them in netball and football; he cannot chop and cannot work on old cars.”

(See page 196 of Exhibit A).

Mr Polke was of the opinion that surgical treatment was “not indicated at this time”.

40        Mr Miller was of the opinion that the plaintiff suffered from “mild to moderate disability of his back due to local discomfort and limitation of movements, however, there is no firm evidence of spinal nerve root involvement”: (see page 201 of Exhibit A).

Mr Miller considered that the “underlying pathology” appeared to be a “lumbar intervertebral disc lesion” which had contributed to by the “physical requirements” of his employment with the first defendant: (see page 201 of Exhibit A).

41        In particular, Dr Miller states:

“Mr Troon is currently capable of working only with the following

restrictions:-

1       avoid lifting in excess of 10 kg;

2       avoid forceful pushing or pulling activities;

3       avoid prolonged static posture such as sitting or standing in the same position for more than 45 minutes at a time;

4       avoid movements of his back beyond a comfortable range.

He appears to be coping reasonably well with his current duties and I believe he could be able to continue with those duties. Mr Troon stated that his general lifestyle has been compromised considerably as he used to be keen on working on automobiles and doing sporting activities with his family but he stated that these activities have since been severely curtailed.”

Submissions Made by the Parties

42        Before the parties commenced their final addresses, I queried leading counsel for the plaintiff, whether he sought to rely solely on the incident of injury suffered by the plaintiff on 24 January 2005. In so doing, I indicated to him that a consideration of all the evidence would suggest to the court that the 2005 episode was a cause of whatever impairment the plaintiff now suffered.

43        Leading counsel for the plaintiff, as I understand his position, was content that the “injury” said to be the “serious injury” was that which occurred on 24 January 2005. I also understood him to be content that if the “injury” was a “serious injury” as defined by the Act, leave would be given in relation to the incident of injury on 24 January 2005. Senior Counsel for the defendants conceded that on the evidence before the Court, that particular incident had a causal relation to whatever impairment the plaintiff now suffers. I consider such a concession totally appropriate given a consideration of all of the evidence and the ramifications of Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraphs [57]-[58].

44        In relation to the central issue as to whether or not the plaintiff satisfies the narrative test, Senior Counsel for the defendants submitted:

•  The plaintiff is working full-time and although not “completely decisive”, it is a strong factor to be taken into account, bearing in mind that it is appropriate to assess as to what has been “retained by the plaintiff rather than what is lost”: (T83, L27-T84, L3).

•  The plaintiff has a physical capacity to work 52 hours a week and although not a particularly heavy job, does involve maintenance and the performance of “mechanical type things”.

•  The plaintiff is earning “well over double what he earned” with the first defendant and working far more hours than he was with the first defendant.

•  The plaintiff has not lost his ability to be a “qualified tradesman as he was not a qualified tradesman” and in any event he is capable of doing the lighter form of welding which he would have returned to with the first defendant if he had been asked. He is performing some welding with his current employer.

• If his pain was really extensive he could not perform the work he is performing for the number of hours that he is undertaking with his current employer.

• The first defendant accepts that the plaintiff has “constant pain that fluctuates to some degree” in his low-back and that his “symptoms” in his right foot are pretty well there all the time and that he receives treatment for such pain. However, the first defendant maintains that the pain cannot be of a major degree as the plaintiff would be unable to perform the type of work that he is presently performing with his current employer.

•  He is capable of driving 32 kilometres to work there and back each day.

•  Although he complains of the pain affecting his sleep, it cannot be that great as he is able to perform the number of hours of work that he is now performing with his current employer.

•  The need for any surgery is unlikely.

•  The plaintiff is working long hours which would impinge on other activities, including recreational activities.

•  There is no issue in relation to credit and what is put by the defendants is summarised by Senior Counsel at T95, L22, where it is stated:

“He made concessions and he described the work in great detail and gave a full picture of it. Just, again, it’s not one of those cases where I need to attack the credit and say he’s a liar, don’t believe him, we simply say if you believe him he doesn’t get there.”

45        Leading counsel for the plaintiff made the following submissions:

• The plaintiff was a “highly honest witness and came across as someone who did not exaggerate his symptoms”.

• The plaintiff cannot perform his “previous employment” which he “loved to do”: (T101, L27-28). In particular, he is cut out of work where he could do full-time normal welding and that is something which he enjoyed doing.

• The plaintiff has pain pretty much all the time, although it fluctuates, and he needs to take medication frequently to control the pain.

• His social relationships have deteriorated, both with a formerly wide circle of friends and, indeed, with his family.

• The plaintiff cannot drive for an extended period of time.

• His sleep is interrupted most nights because of pain causing him to have showers during the night to assist his back pain on average three times a week.

• He has lost the ability to pursue his passion of reconstructing cars and, in particular, Falcons.

• The Court should take into account that there is a “prospect” that the plaintiff may come to surgery.

Analysis of the Evidence

46        A consideration of all the evidence would suggest that the likelihood is that the plaintiff suffered his “original injury” in or around 1999 when he suffered a significant lumbar disc injury which has been a recurring problem since then. In this respect, the opinion of Mr Wallace (page 34 of Exhibit 1) identifies the likely course of events.

47        Of course, that is not to say that the incident on 24 January 2005 did not make the condition of the plaintiff materially worse and, indeed, this is demonstrated by him never being able to go back to full unrestricted duties with the first defendant after that injury.

48        I am satisfied that the plaintiff suffered a compensable low-back injury arising out of, or in the course of his employment with the first defendant on or about 24 June 2005. As I have already indicated, I am satisfied that the injury on that date was a cause of any low-back impairment now suffered by the plaintiff.

49        I am also satisfied that the compensable injury has contributed to a “permanent” impairment of the low-back of the plaintiff within the meaning of that word as used in the Act. As I would understand the situation, there is no dispute in relation to any of these findings.

50        In relation to the critical issue, I am assisted by several Court of Appeal decisions:

(a)  Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 (delivered 14 August 2009), Ashley JA and Beach AJA, by way of dicta, stated:

“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”

(See paragraphs [40] – [42]).

(b)	In Stijepic (op cit) Ashley JA and Beach AJA also refer to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, wherein, at paragraph
[27] , it is stated:

“‘ … the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.’”

(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24] whereat his Honour stated:

“ … If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’”

In Stijepic (op cit), Ashley JA and Beach AJA commented, in relation to those words:

“The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”

(d) I also refer to Sabo v George Weston Foods (op cit) where Neave and Mandie JJA made reference to the decision of TAC v Dennis [1998] 1 VR 702 and adopted the words of Callaway JA when he discusses the weight which must be given to the adverb “very” in the words “at least very considerable”. Callaway JA, at page 703, stated:

“‘Many [impairments] are considerable, in the sense that they are

important or substantial, without being very considerable.’”

(e) I also refer to Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 (delivered 31 March 2010) where Maxwell P. stated that the concept of “a pain and suffering consequence” encompasses both a worker’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life: (see paragraph 9).

51        Consistent with the submissions of both leading counsel for the plaintiff and Senior Counsel for the defendants, I find the plaintiff to be essentially a witness of truth and, accordingly, there is no appropriate reason for me to not accept his account of the impact of his low-back impairment on his day-to-day life.

52        To this end, the plaintiff has given sworn evidence that:

(a)	he is in constant but fluctuating low-back pain which requires some medication on a daily basis and other medication on a “needs basis”;
(b)	that he has constant symptoms in his right foot for which he takes medication;
(c)	his sleep is interfered with by pain several times a week;
(d)	the constant nature of the pain has had an impact on the way he can relate to other members of his family and other people in respect to social and recreational activities;
(e)	his passion of being able to restore cars has been virtually lost because of his inability to bend and crawl around cars;
(f)	he has an inability to travel long distances by car and, accordingly, this has affected his ability to mix with friends.

I am of the opinion that the evidence in no way establishes that it is probable that the plaintiff will come to surgery and at best, surgery is a remote possibility. Furthermore, I accept that given the nature of his back injury, the plaintiff is unable to return to the full rigors of all aspects of welding. Considering that he enjoyed welding and a significant proportion of his past employment involved welding, such a loss must be taken into consideration. However, as submitted by Senior Counsel for the defendants, such a loss must be seen in the context that he was not a qualified welder and that in any event, he was capable of performing lighter welding and did perform some welding from time to time with his current employer.

53        The essential submission made by Senior Counsel for the first defendant was all these matters had to be analysed in the context of a man who has returned to alternative employment working a large number of hours, earning over double what he was earning when employed by the first defendant and performing work not as arduous as that undertaken with the first defendant, but certainly involving the use of tools, being on his feet and performing mechanical work.

54        Given such a situation, the first defendant asks rhetorically, does such a situation bespeak of a “serious injury” and how bad can the pain, loss of sleep and impairment be if such work can be undertaken?

55        There is some force in such a submission. After carefully considering all of the evidence, I am of the opinion that this is a lineball case but am ultimately persuaded that the consequences now suffered by the plaintiff, as the result of his low-back impairment, satisfy the narrative test.

56        Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a low-back injury suffered by him on or about 24 June 2005.

57        I will hear the parties on the question of costs.

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