Veeraraghavan v Horizon Global Pty Ltd and Victorian WorkCover Authority
[2019] VCC 972
•4 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03355
| SENTHILVEL VEERARAGHAVAN | Plaintiff |
| v | |
| HORIZON GLOBAL PTY LTD | Defendant |
-and-
Case No. CI-19-00132
| SENTHILVEL VEERARAGHAVAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27 March 2019 | |
DATE OF JUDGMENT: | 4 June 2019 | |
CASE MAY BE CITED AS: | Veeraraghavan v Horizon Global Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 972 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Mobilio v Balliotis [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms M Cameron | Zaparas Lawyers |
| For the Defendants | Mr D Masel SC with Ms K Gladman | Russell Kennedy |
HER HONOUR:
1 The plaintiff seeks leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) for injury suffered by him in the course of his employment with Horizon Global Pty Ltd (“the defendant”).
2 The 2019 application relates to the plaintiff’s work from March 2008 to December 2016 (“the period of employment”) and as a result of incidents on 6 February 2012, 17 October 2014 and in or about April 2016. Ultimately, focus was on the injury suffered in 2014, following which the plaintiff was unable to return to normal duties.
3 The body function relied upon is the lumbar spine.
4 Counsel for the plaintiff indicated the application was mainly pursued under ss(a) but an application under ss(c) was not abandoned.[1] It was submitted the plaintiff had suffered a discrete psychiatric injury,[2] not a Chronic Pain Syndrome involving the principles in Veljanovska v Socobell OEM Pty Ltd.[3]
[1]Transcript (“T”) 8
[2]Dr Schutz’s diagnosis
[3][2005] VSCA 227
5By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7 Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA with whom the Court agreed said that “severe” was used in the definition as a stronger word than “serious”.
[4][1998] 3 VR 833
9 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
13 The plaintiff swore three affidavits and was cross-examined. It became apparent in cross-examination that his first affidavit dated 20 September 2016 was not sworn until February 2017 when he had different solicitors.[7]
[7]T22
14 Further, the plaintiff relied on an affidavit sworn by his wife, Bhavani Nithyanantham (“Bhavani”) on 3 September 2018. She was required for cross-examination. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
Background
15 The plaintiff was born in Chennai, India, in November 1979 and is currently aged thirty-nine years. He migrated to Australia in January 2008. He is married and lives with his wife and two young children, aged three-and-a-half years and six years.
16 The plaintiff completed Year 12 in India and then studied toolmaking before working in that role in Chennai. He then studied a degree in Business Administration but never worked in that field, either in India or later in Australia.
17 In 2008-2010, the plaintiff worked as a causal kitchen hand at Gateway on Monash.[8]
[8]Second affidavit
Employment with the Defendant
18 The plaintiff commenced employment with the defendant in about March 2008 on a full time basis. He worked the nightshift for two years from about 2009 to about 2011 and the dayshift from 2011. Throughout the course of his employment, he worked regular overtime, including working Saturdays.
19 When he commenced this job, the plaintiff worked at the defendant’s factory in Dandenong. In about 2012, the factory moved to Keysborough.
20 The plaintiff was employed as a machine operator, working in the L3030 laser machine area. There were four laser machines in the area, three being used to cut out parts from steel sheets and the fourth for the cutting of tubular steel. The defendant’s business involved the manufacturing of vehicle towbars.
21 The plaintiff agreed his job with the laser machines involved computer programing, with some data entry relating to the parts that were required to make up a machine.[9] That part of the job was not physically demanding but he had to sit for prolonged periods doing it.[10]
[9]T24
[10]T25
22 The plaintiff has had an interest in computers since studying in India although he has not done a basic computer course.[11]
[11]T25
23 Most of the plaintiff’s work duties involved repetitive lifting, bending, carrying and stooping.
24 In about February 2012, the plaintiff was required to lift a number of heavy offcuts of steel while operating the laser machine. On this particular day, he was lifting steel rectangular plates that weighed approximately 20 to 40 kilograms. He had lifted about six to eight heavy rectangular plates when he felt pain in his lower back (“the first injury”).
25 The plaintiff’s WorkCover claim in relation to this injury was accepted. He saw his general practitioner, Dr Gunawardana, at the Doveton Medical Centre (“Doveton”) and was referred for a lumbar x-ray, which was undertaken on 17 February 2012. Later that month, on 27 February 2012, the plaintiff had a lumbar CT scan. He was then referred for physiotherapy treatment at Physio Works in Cranbourne, and to Dr Mark Patrick, rheumatologist.
26 As a result of the first injury, the plaintiff had a few weeks off work, before returning to work on light duties which continued for approximately twelve months before he was given a clearance to return to his pre-injury duties in about early 2013. At that time, he continued to suffer intermittent pain in his lower back and referred pain into his right leg. Having later been shown Dr Gunawardana’s records, the plaintiff agreed he was in fact certified fit for pre-injury duties in July 2012.[12]
[12]Second affidavit
27 However, the plaintiff later said, following this clearance, he worked full-time modified duties until October 2014, when he injured himself cleaning the rails, and then again went on lighter duties.[13]
[13]T26
28 After mid-2012, the plaintiff had ongoing physiotherapy treatment, including Pilates at Physio Works and he took over-the-counter pain medication on a ‘as needs’ basis. Until October 2014, the plaintiff continued to complain to the defendant from time to time about his back pain and about the problems he was having doing some of the heavy lifting at work. As a result of his back pain, he was required to take regular time off work, which he took as sick leave, ten days per annum.
29 In about October 2014, the plaintiff was required to undertake work cleaning the feed rails on one of the newer laser machines. This job was very physical and involved a lot of bending into awkward positions and pushing and pulling. It was usually a two-person job.
30 On 16 October 2014, the plaintiff’s team leader, Geoffrey Ruston, helped him perform this task; however, the following day, the plaintiff was required to perform this job by himself.[14] Having done so for a full day, he developed severe pain in his lower back (“the second injury”).
[14]Second affidavit- Mr Ruston helped the plaintiff briefly that day
31 The plaintiff went home after work and his pain continued to worsen over the weekend. The following Monday, he came into work and reported his injury to his team leader, Mr Ruston. The plaintiff then saw Dr Gunawardana, who referred him for another lumbar CT scan on 21 October 2014.
32 The plaintiff was then referred by Dr Gunawardana to rheumatologist, Dr Mark Patrick, whom he had previously seen after the first injury in April 2012.
33 In about 2011, the plaintiff had moved from Dandenong to live in Narre Warren South. After this move, he started seeing another general practitioner, Dr Peiris, at Pound Road. Following the second injury, he started seeing Dr Peiris for this injury.
34 The plaintiff had a lumbar MRI scan on 17 February 2015.
35 Dr Peiris referred the plaintiff to neurosurgeon, Mr Drnda, who saw him in about March 2015. Mr Drnda did not recommend any lumbar surgery but suggested a CT-guided epidural injection and a course of prednisolone. He also advised the plaintiff to avoid lifting heavy items at work and that he should not lift anything over 5 kilograms and avoid any unnecessary bending and twisting.
36 The plaintiff’s new WorkCover claim as a result of the aggravation of his back condition in the second injury was accepted. He subsequently returned to work with the defendant on light duties with restrictions, including no heavy lifting and no repetitive bending or twisting.
37 In about late 2015, the plaintiff was warned by management that unless he was able to return to his normal pre-injury duties, he would be sacked. He could not afford to lose his job so he went to his general practitioner at Pound Road and asked to be cleared to return to full duties. The plaintiff was given a clearance certificate to return to his pre-injury duties by another doctor as Dr Peiris was on leave.
38 The plaintiff then worked for a few months doing normal duties as best he could when he aggravated his back pain in about April 2016 after he was required to stand for a prolonged period working in the preparation area on the brake press. He had been moved to that area when cleared for pre-injury duties. He also aggravated his back and right leg pain while working on the brake press machine because he had to repetitively press down on the pedal with his right leg.[15]
[15]Second affidavit
39 After this aggravation in about April 2016, the plaintiff was told by the defendant that he had to put in a new claim form. He did so and the claim was accepted.
40 Up until 16 December 2016, the plaintiff worked for the defendant on restricted duties as certified by Dr Peiris. He worked eight hours per day, five days a week, with no overtime. These restrictions included no sustained leaning over, no standing in one position for greater than 20 minutes, stretching and walking for three and a half minutes every hour, no lifting greater than 5 kilograms, no repetitive lifting and to avoid sitting for greater than 10 minutes at a time. He had been working under these restrictions since aggravating his back in about April 2016.
41 In late December 2016, the plaintiff travelled to India to explore some treatment options for his four-year-old daughter, who suffered from autism. When he returned to Australia, he went back to work on 7 February 2017 and was told by the defendant that day that it could no longer offer restricted duties to him, and he was sent home.
42 On about 14 February 2017, the plaintiff had a meeting with the defendant regarding his work arrangements. He was again advised that the defendant could no longer offer him any restricted duties and he was told to stay home. He has not worked since 16 December 2016 as a result of his injuries.
43 When he swore his first affidavit in February 2017, the plaintiff was constantly anxious about his future working for the defendant. He was worried it would terminate his employment if he was not able to return to his pre-injury duties. He had recently been advised that his pay was going to be reduced because he had been working in the packing area. He continued to be on restrictions because of his back injury and was unfit to work any overtime.
Progress of treatment
44 As of February 2017, the plaintiff continued to attend Dr Peiris about once a month for his back pain. He was not then taking any prescription medications for his back pain, because the prolonged taking of medication upset his stomach. Instead, he took fish oil and herbal medication from India.
45 The plaintiff continued to have physiotherapy treatment at Complete Care Physio in Hampton Park, about once a week, funded by WorkCover. He also did Pilates three times per week at that clinic.
46 As of September 2018, the plaintiff continued to attend his general practitioner regularly. He had another lumbar CT scan on 24 March 2018. He was then taking one tablet of Lyrica and one tablet of Cymbalta for his low back and right leg pain, as well as for psychological symptoms. He continued to take daily fish oil and herbal medication from India.
47 The plaintiff no longer had regular physiotherapy treatment or Pilates because WorkCover ceased funding, and he could not afford to pay for it himself. He was attending physiotherapy at Complete Care Physiotherapy from time to time, under Medicare, but was only entitled to five sessions per year.
48 Since the said date, the plaintiff had undergone reasonably regular physiotherapy with various physiotherapists, which gave him some temporary relief from symptoms. Since stopping this treatment, his back pain and right leg pain had been slowly getting worse.
49 The plaintiff understood some of the doctors he had recently seen for his case had recommended that he have further treatment for his back injury, including an opinion from a spinal physician regarding surgery, attendance at a pain specialist, ongoing pain management, and regular review by a physiotherapist to manage an exercise program; however, as WorkCover ceased funding and he was not receiving any income, he could not afford to have any of the recommended treatment.
50 As of February 2019, the plaintiff continues to attend his general practitioner regularly. He takes Lyrica and one Cymbalta tablet every night, as well as daily fish oil and herbal medication. He still cannot afford to fund physiotherapy himself, so is limited to five sessions per year through Medicare. His wife massages his low back most days.
51 In about December 2018, the plaintiff started seeing a psychologist to help with his psychological problems. He attended about four times. The psychologist then went on holiday and moved clinics, so the plaintiff stopped seeing him.
Pain
52 As of February 2017, the plaintiff suffered from constant daily pain in his lower back. He also experienced constant pain and numbness in his right leg which went down his buttocks and into his toes. His pain level and numbness fluctuated from day to day. On average, he had two to three bad days per week. His back and leg pain was aggravated by any prolonged sitting, standing and walking. He avoided any activities that involved repetitive bending, twisting or lifting. He avoided walking long distances because this aggravated his back pain.
53 At the time of swearing his second affidavit on 4 September 2018, the plaintiff continued to have constant low back pain, as well as numbness in his right leg. His back pain was more severe than the pain in his right leg. He continued to try and avoid activities involving repetitive bending, twisting or lifting, and also avoided lifting anything that weighed more than a few kilograms, as these activities aggravated his low back and right leg pain.
54 In the previous twelve months, the plaintiff’s low back and right leg pain had become more intense. He felt that he was in more pain then than he was when he swore his first affidavit. He was struggling more with day-to-day activities. He usually had three bad days a week when the pain was severe. On good days, he could usually manage to sit, stand and walk for about 40 minutes until his pain became extremely severe and he needed to lie down. He often struggled to do much else for the rest of the day. He tried to avoid sitting, standing or walking for that long because of the resultant intense pain.
Consequences
55 In his February 2017 affidavit, the plaintiff described a range of consequences of his back condition which continued as of September 2018 when he swore his second affidavit.
56 The plaintiff’s sleep was constantly being affected by his back pain. As a result, he rarely, if ever, got a good night’s sleep.
57 The plaintiff’s capacity to do household chores was very restricted by his back pain. He struggled to do chores such as packing the dishwasher, vacuuming or cleaning the windows. Outside the house, he no longer mowed the lawns or washed the car. Previously, he enjoyed gardening, but now was very restricted in what he could do.
58 The plaintiff found it difficult to look after his two young children and play with them. He was very upset that he was very restricted in his capacity to play games with them.
59 The plaintiff’s capacity for sexual intimacy with his wife was restricted.
60 Prior to injuring his back, the plaintiff used to enjoy playing social cricket, tennis and badminton on a regular basis with friends. In the summer, they played cricket regularly, but he could no longer play cricket at all. If they were not playing cricket, then they played tennis, which he could no longer do. All year round he played badminton with friends indoors on a fairly regular basis but he could no longer play badminton.
61 Prior to injuring his back, the plaintiff used to do a form of yoga called Surya Namaskar every day for about one hour. He could no longer do it at all because of his back injury.
62 As a consequence of his back injury, the plaintiff was restricted to driving short distances only. If he drove for a longer period then he experienced increased back pain and numbness going down his right leg.
63 Because of his back pain, the plaintiff had problems with showering and dressing himself. In particular, he had problems putting his shoes and socks on and putting on his trousers.
64 On one occasion when showering, when the plaintiff lifted his left leg, he felt a lot of pain and felt like his back became stuck. The numbness in his right leg, together with this stuck feeling in his back, meant he lost his balance. He did not aggravate his back pain when he fell over – his back pain was aggravated when he lifted his leg and his back became stuck.
65 In December 2018, when the plaintiff was brushing his teeth and suddenly sneezed and coughed, his back completely seized up. He could hardly move. He called his friend, who came over to help, because his wife was overseas. His friend’s wife is a physiotherapist and she told him how to massage Voltaren cream into his back. He spent several days resting, and the pain gradually improved and returned to its usual levels.[16]
[16]Third affidavit
66 As of February 2017, the plaintiff had difficulty travelling. In a recent trip to India, he suffered severe pain and restriction in his lower back, which he tried to alleviate with herbal medication. He would not have travelled to India, had it not been for his daughter’s treatment.
67 In about late October 2018, the plaintiff went to India with his wife and children for a few weeks. His mother and mother-in-law are unwell, so he and his wife went to visit them with their children. His wife and children stayed in India for a few months, and the plaintiff came back to Melbourne alone in November 2018 because he wanted to keep looking for work.
Psychological state
68 Since early 2017, the plaintiff had become very depressed and anxious because of his back injury. Before being told in February 2017 that the defendant did not have any more suitable work for him, he felt worried about his future and upset about his injury, but he was generally okay psychologically.
69 Since February 2017, the plaintiff’s psychological state had deteriorated a lot. When the defendant put him off work, he did not want to tell his wife because he was ashamed that he was no longer able to properly support his family. He constantly felt depressed and anxious all the time. He could not stop thinking about his injury and how he was going to support his family in the future.
70 The plaintiff was a lot more forgetful than he used to be, and struggled to concentrate because his constant pain was very distracting, and it was hard to focus properly on anything else.
71 The plaintiff was a lot angrier and more irritable than he used to be. He argued with his wife a lot, and had very little patience with his young children. He always felt guilty after he had been angry with them, as they were doing their best to support him. He felt disappointed that he had come to Australia for a better life and now was injured and unemployed. He struggled to become motivated and had lost interest in his life and future.
72 The plaintiff’s general practitioner prescribed Cymbalta to help with his psychological symptoms, which he had been taking since about mid 2017.
Employment
73 In about April 2018, the plaintiff was told by the defendant that it was terminating his employment because he could not return to his pre-injury duties, and there were no other suitable jobs with the restrictions that Dr Gunawardana had prescribed.
74 Before his employment was terminated, the plaintiff’s work mainly involved counting screws and bolts, and some light packing work. He also helped his co-workers with any general light tasks. He did not believe that it was a real job that would be available on the open market.
75 When the plaintiff last worked with the defendant in mid December 2016, he was working full time on these modified duties, but was struggling, despite being allowed to take breaks whenever required, and was working a lot slower than he should have been. He was pushing himself to continue working full time because he was very worried that if he asked to reduce his hours, he would lose his job. Unfortunately, that happened anyway.
76 The plaintiff would really like to return to work but was not sure what job on the open market he would be able to do on a consistent and reliable basis and the restrictions that his pain causes. He struggled to concentrate, as his constant pain is very distracting. He is now taking Lyrica, which often made him drowsy. Occasionally it made him feel a bit dizzy too. He took Lyrica at night to try and avoid experiencing the drowsiness during the day, although he still sometimes woke up feeling very drowsy and struggled to get out of bed.
77 To return to work, the plaintiff would probably need to take at least one tablet of Lyrica in the morning or during the day to help him manage the increased pain that working would cause, although he was concerned this might bring about drowsiness or dizziness while at work.
78 Even if the plaintiff could find a job on the open market that he could cope with despite his low back and right leg pain, the most hours he believed he could manage to work in that job was a similar number of hours to what he was working in the computer business. He would need to be able to take breaks whenever his pain became severe or he was no longer able to concentrate. He would also need a flexible employer who would allow him days off at short notice or to leave work early if he did not feel up to working.
79 The plaintiff’s general practitioner told him that if he was able to find a job on the open market he should only work in that job every second day, so he could have a day in between each working day. With a day off in between each working day, he could probably manage to work up to about 5 hours on the days he was working. He would be in a lot of pain at the end of the day but could rest and recover the next day.
80 As of September 2018, the plaintiff had started attending a job agency through Centrelink. It was trying to help him find a job that he could manage considering his restrictions from his back injury and psychological problems. As part of the job-seeking program with Centrelink, the plaintiff was required to follow up on job applications the agency had made for him by contacting the employer.
81 The job agency had then made two job applications for the plaintiff: one at a nursery and another at a metal warehouse. When he followed up with the nursery, he was told that the job involved a lot of lifting, and he concluded that he would not be able to do this job because of his back injury.
82 Lifting anything that weighed more than a few kilograms, or lifting anything repetitively, caused the plaintiff a lot of low back and right leg pain. He was not exactly sure what the job at the metal warehouse involved, but he thought the warehouse work would involve a lot of lifting – either heavy or repetitive.
83 The plaintiff has not returned to any work since leaving the business and is receipt of Newstart.[17] He has applied for jobs with the help of the job agency and has to apply for at least twelve jobs each month. The part-time jobs he has applied for include receptionist, telemarketer, executive assistant, retail assistant, customer service officer, weighbridge operator, food deliveryman, mortgage broker, personal care assistant, pharmacy assistant and trades assistant. He has completed a job search record form for ‘At Work’, which records what jobs he has applied for and are provided to Centrelink. He had not applied for any labouring jobs.[18]
[17]T99
[18]T100
84 None of the plaintiff’s job applications have been successful. He does not have the qualifications or experience needed for most of the jobs that he is applying for. He also does not know what is involved in most of these jobs and whether he would cope, but he is desperate to find some sort of work and give it a go. His family is really struggling financially. He thinks he would struggle to work more than about 15 hours a week though because of his back and leg pain.
85 The plaintiff had not applied for any jobs in the last year using his experience in running an IT business. He explained - “it’s not experience, that’s a failure model business”.[19]
[19]T100
Business interests
86 In February 2017, the plaintiff deposed that in about 2015, he set up a personal business called Astute Staff Technologies[20] (“the computer business”). The call centre for the business operated out of Chennai. The plaintiff was listed as a director of this business and was responsible for monitoring correspondence from Australia; however, he did not earn any wages. The business continued to be registered and ran at a loss.[21]
[20]Astute Soft Technologies – correct name
[21]Confirmed in cross-examination; T28
87 The plaintiff was a director of Astute Soft Technologies.[22]
[22]T28
88 In about late 2016, the plaintiff was approached by a friend who asked to set up a business in his name called “Aust IT”' (“the friend’s business”). This business was registered in the plaintiff’s name and he was listed as a director. Aside from this, he had no involvement in the friend’s business and believed it was still registered.
89 In his second affidavit sworn 4 September 2018, the plaintiff deposed that the friend’s business had then been deregistered. The plaintiff had no involvement in that business, other than arranging the registration in his name and then arranging the deregistration. He registered the friend’s business in his name as a favour for his friend who did not want to register the business in his own name, as he was working in a job for a similar company and he was worried he might get into trouble from his employer.
90 The friend, Das, was a work colleague who lived in Hampton Park.[23]
[23]T27
91 The plaintiff had no involvement in the friend’s business at all. Das put it under the plaintiff’s name. All the work was done by Das but he wanted only the call centre assistance from the plaintiff. Das resigned from his directorship and changed it to the plaintiff’s name so it would not be apparent he was part of the business.[24]
[24]T73
92 The computer business had been operating under the names Astute Soft Technologies and Microzite for a couple of years because of problems they had with Google advertisements and the need to maintain ongoing subscriptions with Microzite. The plaintiff thought he had been involved in Microzite since about 2015, but after looking at its financial documents, realised he started operating that business in the 2013-2014 financial year. His involvement in Astute Staff Technologies ceased in about mid 2017.
93 As of September 2018, the plaintiff’s wife continued to run the computer business. The plaintiff was not involved and was no longer a director. He had been involved in the business for about two years from about mid 2015 until about mid 2017. He mainly monitored correspondence from Australia. This involved checking and responding to emails, which he did in English. It also involved some simple bookkeeping.
94 On average, the plaintiff worked about two to three hours per day on weekdays doing this work, from his computer at home. He was able to spread his work out over the day and did not have any set hours. He could take a break whenever his pain became too much to handle, and came back and continued the work when he was feeling better. If he was not feeling up to working on a particular day because of his pain, he did not have to. His wife was able to deal with anything urgent for him, and anything else he dealt with when he felt able to.
95 The plaintiff confirmed he told Dr Slesenger that his wife managed the call centre based overseas and that he had been working in the business in an administrative role for two or three years but he did not know for how many hours at the time. He did not have any timesheets.[25]
[25]T55
96 The plaintiff ceased involvement in the computer business in about mid 2017 because he was having issues properly concentrating on the work and doing a good job, because of his pain levels. The business was running at a loss and he thought they should close it down, but his wife felt they had invested too much money in it to abandon it, so she began running it by herself. She worked about the same number of hours in the business as the plaintiff had worked when he was involved. As far as the plaintiff was aware, the business was still running at a loss.
97 The plaintiff was cross-examined in great detail about his involvement in these businesses, especially the computer business.
98 During that time, I queried whether a complex forensic exercise of this nature was appropriate during a serious injury application on originating motion. Counsel for the defendants responded that the endeavour was simply not to understand the accounts but to paint a picture of the complexity.[26]
[26]T68
99 The plaintiff did not actually set up the computer business. It was the idea of Barhiban, a distant relative of the plaintiff’s wife who lived in Chennai who already had a qualification in computers and worked in that industry. Barhiban was the “brain”.[27]
[27]T37
100 The plaintiff initially ran Microzite. He registered it on line and opened a bank account on its behalf at the request of his wife’s relatives.
101 The plaintiff was told to open a merchant account. Astute could not get a credit card under the company name so it wanted to use the plaintiff’s personal credit card. The plaintiff gave his credit card details in 2013 and that was how Astute Soft Technologies started its work in Australia through Microzite.[28] During that time, the plaintiff continued to work with the defendant although he had a bad back.[29]
[28]T34
[29]T34
102 The plaintiff thought that he started Microzite in about 2013 or 2014 and then set up Astute Soft Technologies in about 2015.[30] For a couple of years both Microzite and Astute were operating the computer business. There might have been simultaneous operations in the middle of 2015.[31]
[30]T30
[31]T40
103 Microzite ran at a loss then got a lot of problems and could not get customers so they tried to close it down.[32]
[32]T31
104 The plaintiff was told Astute Soft Technologies was involved in fixing computer problems. He did not have any idea what it did - just what he was told by his relative. A customer would ring a number if they had a computer problem. Everything was done in India, where the call was received. Astute advertised on Google. A client would ring a toll-free number which was diverted to the call centre in Chennai.[33]
[33]T33
105 The company sold a one-year computer fix package. It also sold cleaning software.[34] Otherwise, the plaintiff did not know what the company did because the service was run by others in India. The plaintiff himself did not on occasion install software for customers but the company did it from overseas and he did not know how they did it.[35] Installing work happened in India and it could be done for clients in Australia from India.[36]
[34]T52
[35]T53
[36]T54
106 The correspondence the plaintiff deposed he monitored was bank statements he received and if there were any “charge back” letters, he had to take a photograph and send that to the computer business. This occurred when a customer was not happy. Every time there was a disputed transaction, the plaintiff received a letter. He did not have to do anything. He just took a photograph and sent it back to India where all the disputes were processed. The number of such letters was unpredictable.[37]
[37]T35
107 The plaintiff would also receive correspondence from ASIC once a year and he would collect the statements and give them to the business’s accountant in Australia. Whatever letters the plaintiff received, he would file and give the original to the accountant.[38]
[38]T36
108 The simple bookkeeping deposed to was collecting all the statements and keeping them in a folder. The plaintiff thought he had deposed he did this for three hours a day on the weekend, he was not sure.[39]
[39]T54
109 Whilst the plaintiff has a qualification in business management, he has never worked in that field. Anyone could do what he did with these businesses. If he guided anyone they could do it. They did not need any qualifications. It was simple. “They” guided him and the work was done by Barhiban and his team.[40]
[40]T97
Bank accounts
110 Initially, Microzite had a bank account with the ANZ bank but the plaintiff was not sure. He opened accounts with other banks later because the computer business had a lot of problems with ANZ. He was not sure which other banks were involved with Microzite and Astute but ultimately he agreed with a very detailed summary of these accounts provided by counsel for the defendants.[41]
[41]T77
111 The plaintiff explained the computer business needed multiple bank accounts with international currency and he could only operate those accounts as he was a bank customer in Australia.[42] He and his wife also operated a joint bank account.[43]
[42]T105
[43]T62
112 It was not a complex business arrangement. All banking was online, although the plaintiff agreed he had a lot of interaction with the bank.[44] When the accounts were operating, he had to look at the statements and make sure everything was okay.[45]
[44]T98
[45]T99
113 A particular fee paid by customers went into the merchant account[46] and the money then ultimately went to the business account after a couple of days.[47]
[46]T43
[47]T44
Google problems
114 The plaintiff described problems with Google leading to a suspension of the Microzite Google application.[48] Google was paid by a direct debit against the plaintiff’s credit card. During 2015, he was being charged $1,000 AUD for the advertisements.[49] His ANZ Visa credit card statement for the period 22 May 2015 to the following month included ten payments of $1,030 in Australian dollars to Google.[50]
[48]T41
[49]T42
[50]T65
115 The plaintiff did not really know much about the problems with Google, he only looked after the correspondence. The payments to Google were not his money, it was coming from his credit card, but he agreed it was his debt.[51]
[51]T42
116 Every time someone clicked on Google, Google charged the business.[52] The plaintiff thought Google suspended the account in 2015 at the ANZ because of the number of “charge backs”. At that time, there was a problem with the Windows 10 software.[53]
[52]T44
[53]T46
117 The plaintiff was the person who had to fix it when the Microzite account was suspended. The bank called him. He explained the situation to them but they did not want to listen. They told him they found suspicious activity and they wanted to suspend the account. The plaintiff then had to go and find another merchant facility with a different bank.[54]
[54]T50
118 The plaintiff also explained a problem the company had with the need to maintain ongoing subscriptions. There was a one-year guarantee period after the company did a job where the problem would be fixed for free.[55] They had to run the company until the expiry of the subscription.[56]
[55]T50
[56]T51
ASIC documents
119 The plaintiff confirmed the accuracy of the figures shown on the 2014-2015 Microzite profit and loss statement. He agreed that in 2014 he had taken a director’s salary of $13,000 from the company. This was not inconsistent with his affidavit where he said he had not earned any wages after 2015. That was his first and last salary from that company.[57] There was no intention to hide anything and he had provided all the documents he had.[58]
[57]T57
[58]T58
120 The plaintiff confirmed in 2014, his wife earned a salary from Microzite of $13,000, and $8,000 the following year. She did not have a background in computers or business and had a degree in microbiology. She did not do anything in 2013-2014. In the first year he, not his wife, did most of the work.[59] He just did it and she saw every day what he was doing at home. It was a very simple clerical job. Anyone could do it and you did not need a qualification to do it. When he felt pain, she used to do the work.[60]
[59]T61
[60]T60
121 The plaintiff agreed Microzite sales increased from $98,449 in 2014 to $194,140 the following year. Expenses increased from $97,525 to $197,014. He did not expect the cost of supplies to also double if sales doubled but it happened. It was not something he learned about in business school which was nearly ten or fifteen years ago.[61]
[61]T62
122 The plaintiff agreed there were outsourcing expenses of $41,000 and wages of $7,800 to his wife in 2015. Whenever he felt pain, she used to do the work. He was not paid a salary that year.[62]
[62]T62
123 The plaintiff was asked about travelling expenses totalling $8,787.00 claimed in 2015. This sum related to his travel overseas to meet his wife’s relatives. Because of the sales volume, they wanted to establish a new office and the plaintiff wanted to go and have a look how they set up everything. He had forgotten to mention this travel in his affidavit.[63] His later explanation of this figure during cross-examination was somewhat confused.[64]
[63]T63
[64]T102
124 The plaintiff was not sure if he had incurred other expenses partly for the business that he had told his accountant about, like heating and electricity.[65]
[65]T103
125 When asked to explain “IT and other supplies” in 2014 – $80,897 and $111,424 in 2015 – the plaintiff did not know whether it included Google. He had supplied all the invoices to the accountant.[66]
[66]T64
126 The Microzite Pty Ltd 2015-2016 profit and loss statement also showed sales and expenses almost doubling from the previous year. Sales increased from $197,142.11 to $361,118.05 and expenses $197,015 to $382,639.82.
127 In 2016, the plaintiff’s wife was paid a $9,000 salary that went in to the joint bank account.[67] The plaintiff never said anything about his wife receiving or not receiving money in his affidavits.[68]
[67]T70
[68]T98
128 The plaintiff agreed that the profit and loss statement for Astute Soft Technologies in 2016-2017 showed an increase in sales from the previous year of $32,873 to $178,593 and that the company was operating at a loss – $354 in 2016 and $24,447 in 2017.[69]
[69]T72
129 In 2016-2017, there were travelling expenses totalling $9,857. The plaintiff did not know if the activities he deposed to – a little bit of bookkeeping and a few emails – required travelling expenses of this amount.[70]
[70]T102
130 The plaintiff agreed he had been to Chennai for his sick child. Since 2014, he has been there maybe two or three times. He went with his daughter in 2016. He also saw people about the business but was not sure what part of the travel expenses were claimed in that year.[71]
[71]T101
131 The plaintiff explained that the company paid back to the joint account what he had paid to Google and also topped up the accounts to keep the balance going.[72]
[72]T79
132 Lump sum payments were made to his account.[73] If the balance was low, the account would be topped up by the company online.[74] There were instances where the company was paying him back because he had used his credit card. The plaintiff paid back the company for any personal expenses he put on the company credit card[75] but then denied the company was paying him back for personal expenses he had paid. He was being repaid for what he had paid to Google. These amounts did come out in different rounded-up sums.[76] There was a need to top up his accounts to pay Google.[77]
[73]T90
[74]T91
[75]T92-T93
[76]T94
[77]T95
133 The plaintiff denied that as well as drawing a wage or a director’s fee, the business had topped up his personal credit card which was used to pay for private expenses and in that way he had drawn a financial benefit from the business.[78] He confirmed the issue of the top up and the fact that the business had never been profitable.[79] They were constantly chasing their tail paying more into the credit card to keep paying Google to keep generating sales. He agreed that had been the pattern all the way through the years.[80]
[78]T98
[79]T104
[80]T103
134 The plaintiff’s wife’s relatives dealt with Skype and various other providers.[81]
[81]T106
135 The plaintiff had given the company authorisation to use his credit cards. These expenses were paid by the business in Chennai on his credit card. He confirmed he was not using company funds to pay personal expenses.[82]
[82]T106
136 The plaintiff was asked about a printout of the web conversation on 1 August 2015 and the reply by Microzite tendered by the defendant.[83] He was listed as a technician on that document.[84] His name was included as the registrant and his address was given. Because he was listed as a “tech” it did not mean he was a technician.[85] Whilst he was interested in computers, there was not much of an interest.[86] He “knew like a normal person how Google worked”.[87]
[83]T81 – tendered by the defendants
[84]T82
[85]T83
[86]T84
[87]T84
137 The plaintiff’s wife is still running the business because they needed to pay off the credit card debts totalling $40,000 to $50,000, “otherwise who will pay it off?” He denied the credit cards were used for private expenses, “If you request the Judge to go through those documents as provided and find there is nothing untoward in terms of those bills”.[88]
[88]T100
138 The plaintiff confirmed the business was continuing even though it was running at a loss.[89] There are some costs cutting measures that are happening there at the moment.[90]
[89]T107
[90]T108
Lay evidence
139 The plaintiff’s wife, Bhavani Nithyanatham, swore an affidavit in September 2018. She was born in November 1983. She and the plaintiff married in India at the end of 2009, and moved to Melbourne. She then worked part time from home in her business, “Astute Staff Technologies”.
140 Bhavani was aware the plaintiff injured his back on numerous occasions while doing heavy and repetitive work for the defendant. He was injured in 2012 and had back pain thereafter, which became progressively worse, as did right leg pain. He had not complained of back pain prior to 2012.
141 Bhavani confirmed the level of pre-injury activity deposed to by the plaintiff.
142 The plaintiff now frequently complains that he has constant pain in his low back and down his right leg. She now does almost all the chores around the house as he has told her that doing them causes him worse pain in his low back and right leg. She had observed him avoiding bending, twisting and lifting anything heavy whenever he can. He rarely lifts up their children, even their nine-month-old baby. He sometimes comes to the shops with her to get out of the house, but he is not very helpful and getting things off low shelves.
143 The plaintiff does not do much gardening anymore, and their garden is a mess. She tries to do some gardening when she can, but has very little time as she is looking after the children, working in her business, and doing almost all of the household chores. The plaintiff rarely sees his friends anymore, and he no longer does yoga, or play badminton, tennis or cricket.
144 The plaintiff now seems very flat, and he is also very stressed and worried and very bad tempered. He used to talk to her about their future with excitement, but now he is very negative. He worries about how they are going to manage financially. They used to have a good marriage, but now they frequently argue. They are rarely intimate anymore, because the plaintiff says that it causes him too much pain, and he also does not feel like it because he feels depressed. They still sleep in the same bed and she often hears him tossing and turning in the night, complaining of a lot of back pain and difficulty getting comfortable.
145 Because of his back injury, the plaintiff has been significantly limited in his ability to help out with their children, particularly their eldest daughter, who has autism.
146 Bhavani would really like the plaintiff to return to work. They are struggling to pay their mortgage now that he is no longer working, and she is extremely worried about their financial future; however, she is not sure what work he could do considering the pain and restrictions he experiences because of his back injury.
147 When the plaintiff was last working for the defendant in December 2016, Bhavani observed him to be struggling a lot, but he told her that he was determined to keep working full time for as long as he could because he was worried that he would lose his job if he did not. She also observed him having difficulty coping with his work in the computer business which he was working for about two years from 2015. Even though he had no fixed hours in his work for this business (so he was able to do this work whenever he felt up to it) and he was also able to take as many breaks as he needed to, there were often times where she had to deal with urgent matters for him because he was in too much pain to do it himself.
148 By about mid-2017, the plaintiff was no longer able to cope with working in the business. He told her that he was in too much pain to concentrate properly, and that he was making a lot of mistakes. He wanted to shut down the business, but she felt they had invested too much money into it, so they decided to continue it by herself.
149 The plaintiff is no longer involved in the business at all. She does about two or three hours’ work on the business most days, which she understood to be similar to the amount of work that he was doing on it. The work mainly involves checking and responding to emails. Because of the flexibility of running her own business, she can work around her duties looking after the children. The business still runs at a loss.
150 In cross-examination, Bhavani confirmed her overseas qualification in microbiology and her lack of experience in IT and computers.[91]
[91]T114
151 Bhavani denied the plaintiff set up Astute Soft Technologies. It was her relatives’ idea when she and the plaintiff saw them overseas. The business was not already operating in India when she and the plaintiff first went there.[92] Her relative was experienced in this business area.[93]
[92]T115
[93]T116
152 To set up the business, the plaintiff had to set up some bank accounts and he dealt with letters and telephone calls. It did not take a lot of time to set up the business. At the beginning, she used to monitor what he was doing and if he had a problem with his back, she would help out and do the bills.[94]
[94]T117
153 There were problems with “charge backs”. She would take the photographs. In the early days, she helped the plaintiff but now she “does it fully”.[95]
[95]T118
154 When asked what was her understanding of what the business did, Bhavani replied “practically speaking we are not mostly focussing on the business, so it’s not about giving any profit to us”.[96] Having been shown the business bank statements, she said “Frankly speaking, I am not very familiar with all those things”.[97] She was not familiar with a credit card in her name attached to the business.[98]
[96]T119
[97]T120
[98]T210
155 Bhavani and the plaintiff have a Go MasterCard that is used to buy everyday household items but she was generally confused about whether the company paid for personal expenses. Sometimes a business account pays off her credit card.[99]
[99]T121
156 Bhavani was generally confused about when she received a salary but thought she did at the start when Microzite “was in a very good condition”.[100]
[100]T122
157 Bhavani is currently a director of Astute Soft Technologies and is responsible for checking the bank accounts, but the plaintiff still helps. She is not “related with the IT field and reading the things” so she is “poor” in that, so she gets help and will work with the guidance of the plaintiff. She agreed, that is because he is the one who knows all about the banking system and he is the one who set up the bank accounts.[101] At the end of the financial year, they give everything to the accountant.[102]
[101]T123
[102]T126
158 Bhavani explained the stressful situation at home with an autistic child and that is why she needs help from her husband with the business and he can give it to her.[103] In re-examination, she confirmed the business was the idea of her relatives in India. They needed a bank account in Australia and could not get one because they were Indian citizens and could not do overseas transactions.[104]
[103]T126
[104]T127
The Plaintiff’s medical evidence
Treaters
159 Dr Gunawardana answered a number of medical practitioner questionnaires in 2012 and 2014.
160 On 1 October 2012, Dr Gunawardana noted the plaintiff attended for management of his back injury on 17 July 2012. The diagnosis was lumbar disc prolapse. On 8 July 2012, the plaintiff had returned to pre-injury duties.
161 In a subsequent questionnaire of March 2013, Dr Gunawardana noted he last saw the plaintiff on 17 July 2012 for management of a lumbar disc prolapse, and then no further treatment was required.
162 The final questionnaire was completed on 19 November 2014. In that document, Dr Gunawardana stated the plaintiff’s current injury being treated was a lumbar disc prolapse, L5-S1 arthropathy and right radiculopathy.
163 Dr Gunawardana certified the plaintiff fit for modified alternate duties, with a maximum lifting weight of 10 kilograms, no forward bending or twisting, no squatting, pushing or pulling. The plaintiff had a sitting tolerance of 30 minutes and a walking and standing tolerance of an hour.
164 Nick Adcock, physiotherapist, recommended the plaintiff return to light modified duties in March 2012. That practitioner completed a treating health professional questionnaire in September 2012. He thought the plaintiff would remain on modified duties not involving heavy or repetitive activities. He was then treating him with physiotherapy once a week. He noted the plaintiff was improving in his condition and coping well at work but would need a further three to six months of treatment.
165 Mr Adcock completed a further questionnaire in April 2013 in which he advised the plaintiff required a further six to nine months of treatment. He was then working full-time pre-injury duties with overtime and managing well, in conjunction with physiotherapy and Pilates.
166 Dr Mark Patrick, rheumatologist, first saw the plaintiff on referral from his general practitioner in April 2012. The plaintiff had then been on modified duties for the last month. Dr Patrick reported that since February 2012, the plaintiff noted back pain at the end of one shift after repetitive lifting of ten to twelve sheets.
167 Dr Patrick thought imaging confirmed a degree of facet osteoarthritis and a mild L4-5 disc bulging and prolapse. There were no marked changes and certainly no significant compromise of the cord or nerve roots.
168 On examination, back movement was normal. Neurologically, the lower limbs were also normal.
169 Dr Patrick thought what should be done in terms of back management had already been done. There should be ongoing restriction for the next eighteen months and perhaps longer term regarding heavier repetitive lifting. Core strengthening work could be self-managed after three to four months of physiotherapy. Voltaren could be taken intermittently on a bad day and Panadol Osteo was available on a more liberal basis. There was then no requirement for neurosurgical intervention or steroid-based intervention.
170 The plaintiff saw Dr Patrick again in October 2014. Dr Patrick then noted low back pain and facet arthropathy with a mild L4-5 disc. All seemed to improve with physiotherapy since the last visit.
171 However, on the Friday of the previous week, the plaintiff was told to clean the rails of a laser machine which involved a lot of pushing and pulling and ultimately, had low right, greater than left, paralumbar pain by the end of the shift.
172 A further CT scan had confirmed the persisting problem at L4-5 with a broad-based disc herniation. There was bilateral facet arthropathy at L5-S1, perhaps more severe on the left.
173 Clinical examination in October 2014 revealed a good range of back movement but with some irritability with back extension of lateral flexion and rotation. The plaintiff was tender clinically over the left L5-S1 facet joint.
174 Most of the plaintiff’s pain was paralumbar midline to perhaps left more than right sided. There was some less marked radiation down the right leg into the foot and there was numbness more than pain. The plaintiff was able to stand and walk for up to 40 minutes and there was still sensitivity and a degree of back protection.
175 Dr Patrick thought the plaintiff could probably start light duties the following week. Treatment should focus on facet joint irritability, oral steroid – limited dose – for three weeks and possibly facet joint injections. Later, physiotherapy, core strengthening and work management practices would be considered.
176 Dr Patrick thought repetitive stretching and extension movements should be avoided. Heavier loads greater than 15 kilograms should also be avoided and repetitive lifting greater than 10 kilograms should be restricted.
177 Following review on 11 November 2014, Dr Patrick advised there was enough here to consider some form of ongoing right-sided L5 nerve root irritation and he had organised a right-sided nerve root injection. He intended to review the plaintiff in six to eight weeks and he would have an MRI scan and consideration for surgical management if his symptoms do not settle.
178 Scott Williams, physiotherapist, first saw the plaintiff in July 2012. When last seen in March 2014, the plaintiff advised he was coping well with work despite experiencing ongoing symptoms. Mr Williams then advised he would like to think the plaintiff could completely self-manage the symptoms by September 2014 but he would possibly need intermittent physiotherapy beyond that point.
179 Mr Armin Drnda, consultant neurosurgeon, examined the plaintiff in March 2015, following referral for an opinion and management of his right-sided sciatica.
180 The plaintiff told Mr Drnda that in October 2014, he had developed low back and right leg pain, relating his symptoms to his strenuous work, working on a laser cutter, cutting metal sheets and lifting these sheets. He was then taking Lyrica and Tramadol.
181 On examination, the plaintiff did not appear to be in distress, which one would expect with the claimed intensity of pain. Straight leg raising and femoral stretch were negative bilaterally. All reflexes were symmetrical and normal, as was muscle strength.
182 An MRI scan dated 17 February 2015 was reported to show that at L4-5, there was a moderate disc bulge with displacement of the nerve roots in the lateral recesses, more on the right side. That description did not match the plaintiff’s pain, that was more in keeping with S1 dermatomal distribution.
183 Mr Drnda offered the plaintiff an epidural injection, both for therapeutic and investigational purposes, which he declined, instead choosing to come back for review after continuing physiotherapy. Mr Drnda suggested more active exercise rather than passive local treatment.
184 Mr Drnda reviewed the plaintiff on 30 March 2015. The plaintiff then brought further scans. Mr Drnda found a broad-based disc bulge at L4-5 without neural contact.
185 In Mr Drnda’s opinion, there was no mechanical issue there but it was rather an inflammatory process causing the plaintiff’s right leg pain. He gave the plaintiff a request for a CT-guided epidural injection in case he changed his mind in regard to that kind of treatment. Otherwise, Mr Drnda suggested the plaintiff take a course of prednisolone and proposed active physiotherapy and avoidance of repetitive bending, twisting and lifting heavy items. He also suggested the plaintiff was capable of lifting items up to 5 kilograms at a time.
186 Mr Drnda diagnosed a soft tissue injury of the lower back with aggravation of pre-existing degenerative changes at L4-5 with mild bulge without neural compression and without definite signs of radiculopathy.
187 Mr Drnda thought the plaintiff's employment was a significant contributing factor to his injury. He noted the plaintiff was exposed to repetitive bending and twisting of his back and lifting frequently heavy items so his condition was work related. His employment was a contributing factor to his condition and was causing aggravation of pre-existing degenerative changes in his lumbar spine.
188 Mr Drnda thought the plaintiff then was not fit to return to pre-injury employment or any employment. He expected him to improve with the conservative management he proposed and if he improved, he would have been fit only for alternative duties, where he would need to avoid repetitive bending and twisting in the lower back and to avoid lifting anything heavier than 5 kilograms.
189 Dr Telge Palitha Peiris, general practitioner at Medihouse Clinics Hallam, first saw the plaintiff on 6 February 2015.
190 Dr Peiris noted the circumstances of the first injury, following which the plaintiff saw Dr Gunawardana. Following x-ray and CT scans, the plaintiff was diagnosed with a disc injury at L4-5.
191 The plaintiff was off work for two to three weeks, before returning on modified duties and resuming normal duties after one year. He continued physiotherapy until May 2014.
192 The plaintiff advised of the second injury circumstances following which he saw a doctor on 20 October 2014. A CT scan showed an L4-5 disc prolapse.
193 Dr Peiris noted the circumstances of the October 2014 injury. The plaintiff saw a doctor on 20 October 2014. A CT scan showed an L4-5 disc prolapse.
194 The plaintiff then had another month off, and had reduced his hours with a maximum weight lifting allowed of 5 kilograms. He was having physiotherapy regularly, and still had severe pain. He was happy with computer programming duties. He saw Dr Drnda, neurosurgeon, who confirmed the injury and ruled out surgery. He was referred to psychological counselling and was prescribed Cymbalta for depression and anxiety.
195 In his 2018 report, Dr Peiris diagnosed a Chronic Pain Syndrome, secondary to an L4-5 disc prolapse and disc injury. The syndrome was severe enough, so bending, twisting and lifting brought on back pain and the pain was down both of his legs, making him severely disabled.
196 Further, the plaintiff had depression, anxiety and an Adjustment Syndrome, not having adjusted properly to his disabled status. He became angry, had insomnia and became irritable. He had constant arguments and fights with his wife as a result. His symptoms were consistent with his injury, which was work related, and secondary psychological issues were also disabling. He was not fit for pre-injury employment. He could do alternative duties as per the restrictions but he could expect exacerbations and aggravations regularly.
197 When psychiatric conditions were added, Dr Peiris thought the plaintiff was not suitable for any duties, as the psychiatric condition was secondary to the original injury which was incurable. Further, he thought the plaintiff should get physiotherapy when aggravated, pain management, and regular psychological treatment. He considered the prognosis of this condition was very poor, as regular exacerbations could be expected.
198 Rany Louka, physiotherapist, commenced seeing the plaintiff on 5 October 2015 for the management of his work-related lumbar spine injury.
199 The plaintiff told him of the first injury after which he was able to get back to light duties and progressed gradually to pre-injury duties. On 24 October 2014, he injured his back again while lifting about 7 kilograms at work. He reported that he was experiencing ongoing lower back and right leg pain with occasional pins and needles.
200 The plaintiff was then attending physiotherapy two to three times a week, mainly for an exercise program to help with his core strength, and his condition was gradually improving. He stopped physiotherapy for a while as his condition was stable and then he came to the clinic on 1 August 2016. He reported that his back flared up again while at work on 1 April 2016. He was using a new laser machine that involved standing all day and pressing a peddle with the right leg which seemed to aggravate his lower back and right leg pain again. At that time, his treatment involved facet joint mobilisation, deep tissue massage, along with his exercise program that he was doing at the clinic.
201 On 27 October 2016, when the plaintiff was last seen, he was still experiencing lower back and right leg pain and numbness, aggravated by prolonged sitting or standing.
202 Due to the size and location of the bulging disc, Mr Louka thought it was very common that the plaintiff’s back may flare up from time to time. He might also experience lower back and leg pain due to the foraminal narrowing and L5 nerve root compression.
The Plaintiff’s medico-legal evidence
203 Dr Mohammed Awad, neurosurgeon, saw the plaintiff on 29 June 2018.
204 The plaintiff told Dr Awad his job was working on multiple machines with the aim of building towbars for vehicles. In February 2012, he was doing some heavy lifting and noticed the onset of lower back pain. He required a few weeks off work before returning to work on light duties. He never fully recovered from his injury; however, due to the obligations he had, he continued to work.
205 The plaintiff managed to get back onto full duties, and by October 2014, his pain was severe and he had to go back on light duties. By late 2015, he again wanted to return to full duties and ultimately had a few cycles of pain and time off requiring light duties. He eventually took some time off for a holiday in December 2016 and when he returned to work in February 2017, was advised that given that he was unable to complete his tasks consistently and reliably, he was dismissed from work. He had not been able to work since.
206 The plaintiff’s current symptoms included: constant lower back pain which he described at best as a 5 out of 10 and during bad times can be a 7 to 8 out of 10. He had a maximum sitting and standing time of 20 to 30 minutes. He had a poor broken sleep as a result of his pain. Numbness and pins and needles into his right leg were becoming more frequent.
207 Dr Awad thought the plaintiff presented with aggravation of lumbar spondylosis and right L5 sensory disturbances.
208 In Dr Awad’s opinion, taking into account the nature of his repetitive and heavy workplace activities, the plaintiff’s employment had most likely been a significant contributing factor to aggravation of his lumbar spondylosis. His employment remained a significant contributing factor to his ongoing pain, disability and requirement for treatment.
209 Dr Awad thought in his current state, the plaintiff did not have the physical capacity to undertake his pre-injury employment. He did in theory have the physical capacity to undertake extremely sedentary work several hours per day several days per week if a suitable job was available. In practice, taking into account his age, education, training, skills, work experience, as well as the nature and severity of his work-related lumbar spine condition, he thought it would be unlikely that the plaintiff would be able to procure suitable employment and, if he did, it would be extremely unlikely that he would be able to carry this out in a reliably consistent fashion.
210 Dr Awad considered the plaintiff was currently not fit for his pre-injury employment and was fit theoretically for alternate duties in the form of a maximum of two to three hours a day for a maximum of two to three days per week. This would have to be an occupation with restrictions on any form of lifting, pushing, pulling, bending, twisting or repetitive lumbar spine movement. Also any occupation that the plaintiff did undergo would have to allow him to alternate between sitting and standing at 20 to 30-minute intervals.
211 Dr Awad had read the September 2017 vocational assessment report. Taking into account the plaintiff’s back injury alone,[105] the occupation that the plaintiff may be suitable to perform potentially was a despatch clerk. Even then, Dr Awad would anticipate the plaintiff would have a maximum capacity to perform this two to three hours per day for a maximum two to three days per week. He would have to also be allowed to alternate sitting and standing 20 to 30-minute intervals. It would remain to be seen whether he would be able to continue to perform this consistently and reliably.
[105]Mr Awad finished this sentence in his report – “and disregarding any consequences from this”
212 Dr Awad did not believe that the plaintiff had the capacity to perform most of the other employment options identified, as these were more likely to aggravate his lumbar spondylosis and render him in pain and with subsequent immobility. However, as to whether he would be able to perform any of these employment options, including despatch clerk, consistently and reliably, would remain to be seen.
213 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 3 July 2018.
214 Dr Slesenger noted that in February 2012, the plaintiff injured his low back whilst manoeuvring offcuts of steel whilst working on a laser machine. He reported the injury and attended his general practitioner.
215 The plaintiff was certified unfit for work for a few weeks, returning to work on a graduated return to work plan. He remained on light duties for a few months, during which time he remained under the care of his physiotherapist and his general practitioner and advised of a gradual improvement in his symptoms.
216 The plaintiff was able to return to unrestricted duties; however, he advised that he had ongoing intermittent pain in the lower back with pain radiating into the right leg. He had intermittent time off work after returning to full duties and would take occasional sick leave (two to three days at a time). He did not receive any formal treatment during this time.
217 Dr Slesenger noted the circumstances of second injury in October 2014 when the plaintiff developed severe low back pain. Once again, the plaintiff reported the injury and attended his general practitioner. He was referred for physiotherapy. He was off work for two months before returning to work performing light duties.
218 However, in late 2015, the plaintiff was warned that he was required to return to pre-injury duties, otherwise, his job was not secure. He returned to pre-injury duties and continued to do so, although with considerable discomfort.
219 The plaintiff had a further injury in April 2016 whilst performing prolonged standing, working in the preparation area on the brake press and subsequently was allocated to light duties, working eight hours a day, five days a week until December 2016 (for example stores area, counting and bagging bolts and nuts).
220 In December 2016, the plaintiff took an extended holiday to India and on returning in February 2017, he was advised that there were no suitable alternative duties available. He had not returned to work since.
221 On examination, the plaintiff complained of ongoing severe lower back pain radiating into the right leg. The pain was aggravated by activity and cold weather. The pain was dull in character, with occasional sharp pain. The symptoms were aggravated by activity, the pain could deteriorate spontaneously and could be more severe up to three days per week (with associated increase in his functional limitations).
222 The plaintiff advised that his wife manages a call centre based overseas. He had been working in this business in an administrative role for two to three years on a part-time basis (working 15 to 20 hours a week). He ceased working in the business in mid-2017.
223 Dr Slesenger diagnosed lumbar spine mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine and chronic lower back pain with radiating features, but no evidence of radiculopathy. He also diagnosed psychological impairment, although this was outside his area of expertise.
224 Dr Slesenger was satisfied that based on the evidence presented, the occupational exposures were a plausible cause of the plaintiff’s impairment. In support of this, he noted the manual handling and the postural demands and also the temporal association between the workplace exposures and the incident under consideration.
225 Dr Slesenger thought the plaintiff could not return to pre-injury duties, noting the manual handling and the postural requirements. The plaintiff should return to work with restrictions: namely, avoid push pull carry lift over 5 kilograms, avoid repetitive bending/twisting, avoid prolonged static postures and four hours, for days a week.
226 Dr Slesenger subsequently reported on 4 September 2018, having seen the 2017 Recovre report.
227 One suggested role was as CNC (Computer Numerical Control) Operator. The job demands required workers to lift weights of up to 20 kilograms, to bend, to climb, to over shoulder reach and to forward reach. Dr Slesenger advised against the plaintiff returning to work in this role as the job demands lay outside his capacity limits.
Production Clerk in Dandenong South
228 Dr Slesenger noted the job demands were predominantly sedentary with the lift limit of 5 kilograms required infrequently. He had some reservations with regard to the plaintiff’s capacity to perform this role given his basic computer skills and the occasional lift limit up to 5 kilograms (noting there appeared to be some discrepancy between the plaintiff’s computer skills as reported to Dr Slesenger and those reported to the vocational assessor).
Despatch Clerk in Paper Products Manufacturing Plant
229 Dr Slesenger was generally optimistic that the plaintiff could perform the inherent demands associated with this role; however, he also noted that the requirement to perform computer tasks, and based on the evidence available, he anticipated that the plaintiff would have difficulty performing the computer demands associated with this role.
Stock Clerk (Credits Clerk) in Scoresby
230 Dr Slesenger thought the plaintiff may have difficulty performing the manual tasks associated with this role given the job demands that occasionally require manual handling greater than 5 kilograms. He also noted the plaintiff wold have difficulty performing some of the computer-based tasks.
IT Service Desk Analyst (with retraining)
231 The plaintiff did not have any experience within this role. There were requirements to perform lifting weights of up to 7 kilograms. Dr Slesenger advised against the plaintiff returning to work in this role.
232 As noted, Dr Slesenger thought the plaintiff retained a capacity for work with restrictions, working up to four hours a day, four days per week, and anticipated that he would be able to maintain these activities on a consistent and reliable basis.
233 Dr Gregor Schutz, consultant psychiatrist, assessed the plaintiff on 1 June 2018.
234 The plaintiff indicated that in the course of his employment, he sustained injuries to his back, which at various times were aggravated. He reported that his employment was subsequently terminated in February 2017 due to a reported inability to do his full pre-injury duties. That was significantly distressing for him.
235 The plaintiff advised he subsequently developed symptoms of anxiety and depression that had yet to resolve and had an ongoing impact on his functioning and quality of life.
236 On mental state examination, the plaintiff presented as mildly restricted and depressed.
237 In Dr Schutz’s opinion, on balance of probabilities and based on the history provided, mental state examination and collateral sources of information, the plaintiff had developed a psychiatric condition as per a recognised classification system DSM-5. The onset of the condition was in February 2017 after his position was terminated. He had developed a moderate Adjustment Disorder with Anxious and Depressed Mood.
238 The plaintiff reported a range of symptoms that had yet to resolve. These included poor sleep, frequent ruminations, lowered concentration, lowered energy, irritability, sadness, loss of interest, social isolation and suicidal thinking. These symptoms were associated with subjective distress and impairment in functioning. His condition was not in remission. There was insufficient evidence of a Personality Disorder, Post-Traumatic Stress Disorder, Psychiatric Pain Disorder or Substance Use Disorder.
239 Dr Schutz thought the plaintiff’s Adjustment Disorder had arisen in the context of back pain, as well as the termination of employment. From a purely psychiatric perspective, he thought there was a reduction in the plaintiff’s work capacity, either for pre-injury or alternative employment. The plaintiff did not appear to have had occupational rehabilitation. He had been out of the workplace for over sixteen months. He had active symptoms of anxiety and depression. He reported some reduction in energy and motivation, as well as reduction in concentration. There was likely to be loss of confidence. These factors would reduce his capacity for full-time work.
240 Dr Schutz thought at the same time, some employment may be beneficial for the plaintiff’s mental health in terms of structure, routine, income and less time for rumination. He noted the plaintiff appeared to have a range of transferable skills and was well educated. He thought, on balance, the plaintiff currently had a partial work capacity of approximately 20 to 25 hours per week in a role which was physically manageable with a supportive employer and an opportunity for breaks.
241 Dr Schutz was asked to consider whether the plaintiff would have the capacity from a psychiatric perspective to perform suitable employment options identified, namely: CNC (Computer Numerical Control) operator, production clerk, despatch clerk, stock clerk and IT service desk analyst (with retraining).
[120]T152
321 It was submitted the Court should be very cautious of accepting the totality of the plaintiff’s evidence, firstly, on the basis of what he says; and, secondly, in the more technical legalistic question of how he presented the case in the way it is acceptable to law – in accord with Filipowicz.[121]
[121]T152
322 In response, counsel for the plaintiff asked “what are and who are the authors of the non-organic consequences?” It was submitted there was a wealth of supportive material from all the treaters. There is a substantial organic basis and the only reason Mr Drnda did not operate was because the pain was coming from the plaintiff’s back rather than his legs. Otherwise, there would have been an operation.[122]
[122]T181
323 Counsel also relied on the 2015 MRI scan which showed disc bulge impingement and mild nerve root displacement. It was submitted the plaintiff’s current presentation is organic “in spades”, not overwhelmed by any sort of pain behaviour.[123]
[123]T182
324 Taking into account all the evidence, I am satisfied the plaintiff’s present lumbar condition has a substantial organic basis.
325 Dr Taubman is alone in his view of the transitory nature of any aggravation of the plaintiff’s underlying degenerative condition.
326 Dr Peiris diagnosed a physically-based Chronic Pain Syndrome secondary to L4-5 prolapse and disc injury, in addition to depression, anxiety and an Adjustment Disorder. Mr Awad diagnosed aggravation of lumbar spondylosis and right L5 sensory disturbances. Dr Slesenger thought the plaintiff suffered a lumbar mechanical injury, aggravation of degenerative disease, and chronic low back pain with radiating features. Whilst both Dr Yong and Mr Brazenor considered there were functional/psychological features in the plaintiff’s current presentation, they both thought the plaintiff had suffered a discal injury at L4-5 as shown on the 2015 MRI.
327 Further, psychiatrists who examined the plaintiff for medico-legal purposes did not consider he is suffering from any pain syndrome.
Credit
328 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[124]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[124](2010) 31 VR 1 at paragraph [12]
329 Counsel for the defendants submitted credit was a very significant issue, both directly and indirectly. Directly, because the question of what tasks the plaintiff performed in the business, and on one view he still performs, which are highly relevant to the question of the income he is presently deriving or capable of deriving in suitable employment.
330 Also indirectly, it was submitted there was a disharmony between the level of pain the plaintiff complained of and the organic findings, such that it may be a question of embellishment which is credit; it may be a question of mixed psychological and physical presentation which is all dealt with differently under the law.
331 It was submitted the plaintiff is not ultimately creditworthy and the Court should not readily accept his evidence absent inherent probability or independent corroboration or reliable objective medical evidence or like evidence – premised upon facts which the Court otherwise finds to be truthful and complete rather than incomplete.[125]
[125]T136
332 It was submitted there were key parts of the affidavit evidence that were clearly false or at least significantly misleading, such as the nuance of language of ‘listed” as a director and the plaintiff’s attempts which were described as inordinate to try and use language that distanced his wife from the operation of the business and the use of the word “they”, meaning those in India, because it was submitted it became clear in cross-examination that there were very significant tasks being performed in a very busy and active business in Australia performed by the plaintiff.[126]
[126]T137
333 While he deposed he was listed as a director, in both affidavits the plaintiff spoke of his involvement being only either monitoring correspondence from Australia or mainly monitoring correspondence and simple bookkeeping.137
334 In reply, counsel for the plaintiff submitted the defendant “really put all of its eggs in the credit basket” and it was submitted they failed, because what had been put to the plaintiff in no way imposed significant damage on his credit.[127]
[127]T168
335 While it is said it was embellishment, nothing was put to the plaintiff that there was any doubt about the expenses of the business – “The defendant would have it that the plaintiff is Australia’s answer to Bill Gates and he is a computer tycoon who is working away in a process type job in a factory over many years whilst squirreling away undeclared income of some kind”. It was submitted that really was not made out in any way at all.[128]
[128]T169
336 Whilst the plaintiff’s affidavit evidence of not being paid a salary was criticised, it was submitted the plaintiff gave a very frank account in this regard. There was no intention to hide anything. There was a notice to produce, following which the plaintiff voluntarily handed over thousands of pages of documents relating to the business.[129]
[129]T169
337 It was submitted in those circumstances, “you could not get a more frank and open approach from the plaintiff”. Further, it was submitted it was beyond the pale to expect he would be able to explain every entry in the profit and loss statement.[130]
[130]T170
338 It was submitted all that was done in cross-examination was point out there was a disproportionate change in expenses which the plaintiff accepted.[131]
[131]T171
339 The attack on the plaintiff’s credit was all in terms of the business dealings and not in relation to his level of complaint or hours he believes he can work. It was submitted there was no suggestion to the plaintiff there was something inappropriate with the disproportionate increase in expenses.[132]
[132]T170
340 Counsel for the defendants took umbrage at the submission he had not put these matters to the plaintiff. He maintained he cross-examined extensively in relation to the use of credit card for domestic expenses and that the allegation of private benefit for the credit card paid by the business was squarely put.[133]
[133]T184
341 In extensive cross-examination of the plaintiff in relation to his involvement in the computer business, whilst there were some unusual features such as the regular $1,000 a day payments by him to Google, I do not have any significant issue with the truthfulness or reliability of the plaintiff’s evidence. I accept his description of ongoing lumbar pain and restriction. I consider him to be a man with a good work ethic, as demonstrated by his attempts to continue in heavy work with the defendant, despite back pain, after incidents in 2012, 2014 and again in 2016, following which his employment was ultimately terminated.
342 Dr Taubman is the only practitioner who considered the plaintiff largely embellished/exaggerated his level of complaints. Although Mr Brazenor thought the plaintiff was feigning his leg weakness and had a functional component to his presentation, he accepted the plaintiff still suffers from a work-related discal injury as did Dr Yong.
343 Significantly, whilst there was surveillance of the plaintiff between 2015 and 2018 of 36 hours and film of 27 minutes 37 seconds, no film was shown during the hearing.[134]
[134]T183
Are the consequences of the Plaintiff’s lumbar impairment “serious”?
344 Counsel for the defendants, however, conceded if the whole of the consequences the plaintiff now complains of are accepted and are attributable to an identifiable event and there was no disentangling of physical and organic and psychiatric, then there would be a very compelling claim for the clam to be allowed on a pain and suffering basis;[135] however, counsel asked how could the Court be satisfied with the credit issues and the deficiencies in the medical reports that these pain and suffering consequences were made out?[136]
[135]T136
[136]T163
Overview
345 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment are serious and permanent as at the date of hearing.
346 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[137]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[137](2010) 31 VR 1 at paragraph [11]
347 The plaintiff continues to experience constant pain in his low back and numbness in his right leg, the pain in the former more severe. He usually has three bad days a week when the pain was severe.
348 The plaintiff’s lumbar condition has been treated conservatively with physiotherapy at different times. He continues to see his general practitioner regularly. He takes Lyrica and Cymbalta nightly.
349 The plaintiff continues to try and avoid activities involving repetitive bending, twisting or lifting, and also avoided lifting anything weighing more than a few kilograms, as these activities aggravate his pain. On good days, he can usually manage to sit, stand and walk for about 40 minutes until his pain becomes extremely severe and he needs to lie down, often struggling to do much else for the rest of the day. He tries to avoid sitting, standing or walking for too long because of the resultant intense pain.
350 The plaintiff has described his pain and restrictions in similar terms to examiners in recent times: Mr Awad, Dr Slesenger and Dr Yong.
351 The plaintiff continues to experience the range of consequences deposed to in his first affidavit: avoiding activities involving bending and prolonged postures, having problems with sleep, household duties, playing with his children, intimacy, driving, personal hygiene, social life and sports.
352 In general terms, as counsel for the plaintiff submitted, the plaintiff has a spinal issue impinging on the nerves. There is constant daily pain, pain and numbness in the right leg going to the buttocks down the toes on an average of two to three bad days a week, aggravated by prolonged sitting, standing, walking. The plaintiff rarely, if ever, gets a good night’s sleep. His capacity to do household chores is very restricted. He no longer mows the lawn or washes the car. He is only thirty-nine.[138]
[138]As Ashley and Beach JJA noted in Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [43], the duration of symptoms in a young person could render an impairment serious which would not be serious in an old person
353 Further, it was submitted the plaintiff is restricted playing with his children, in his marital relationship, his ability to play cricket, badminton and tennis. He can no longer do yoga or enjoy long drives. He has difficulty showering, losing his balance, because of numbness in his right leg. He had severe pain travelling to India and moreover, he has lost his ability to do heavy work.[139]
[139]T180
354 I accept, as counsel for the plaintiff submitted, the plaintiff’s inability to do unrestricted physical work is a considerable disadvantage for a man whose only choice when he came to Australia was to do a heavy role. His inability to do a heavy job has resulted in him now relying on the Newstart allowance and looking for part-time work, but without success. The loss of ability to earn a living in the way he formerly could is a very considerable consequence for a man of the plaintiff’s age, background and education.[140]
[140]T181
355 Further, it was submitted the plaintiff has never used his business qualification. He did that course years ago and has forgotten a lot of what he had learnt. In those circumstances, if he were able to earn a living in a business, he would be doing it. It was submitted, the computer business was a model for failure – it had not resulted in any ongoing income “only a mountain of debt which he can now ill afford to pay”.[141]
[141]T181
356 The plaintiff believes he is currently able to work about 15 hours per week on light work similar to that he carried out in the business. His general practitioner holds a similar view. Whilst medical practitioners differ in their view as to the plaintiff’s current work capacity, they all agree he no longer has a capacity for unrestricted physical work, although Dr Taubman thought this was due to non-compensable factors.
357 Although the plaintiff has a business qualification, he never worked in that field in Australia or India, and obtained factory work only months after his arrival. The inability to engage in similar work in the future because of his back pain and restrictions is a serious consequence.
358 Accordingly, I am satisfied that the pain and suffering consequences are “serious” and grant leave to bring proceedings for damages.
Loss of earning capacity
359 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
360 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
361 The former must be calculated by reference to the six-year period specified in s325(2)(f).
362 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
363 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
364 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[142]
[142]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [70]
365 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
366 Counsel for the plaintiff suggested the appropriate figure was $82,630, that being the highest amount earned by a comparable employee with the defendant during the 2016-2017 financial year.[143]
[143]T10
367 Alternatively, it was submitted the plaintiff would have been able to earn something of the order of $70,000 to $80,000 and a compromise figure of $75,988 was suggested.[144]
[144]T20
368 In opening, counsel for the defendants advised there was not a figure at that stage and it was submitted the approach being taken by counsel for the plaintiff was “cherry picking”.[145]
[145]T17
369 The defendants did provide details of comparable employee wages from 2013-2014 to 2017-2018, which showed an increase of 25.3 per cent over that period. On that basis, the appropriate figure was $75,988, being the plaintiff’s earnings in 2013-2014 of $60,645 x 25.3 per cent. Sixty per cent of that amount is $54,592.80 or $1,049 per week.
Has the Plaintiff suffered the requisite loss?
370 Noting my comments about the present application not being the place for a forensic examination, counsel for the defendants submitted ultimately the question was: Does the plaintiff, who bears the onus of proof, discharge that and where it depends on the reliability or credit of information in the plaintiff’s own camp, if that information is sufficiently disturbed, then the Court cannot be satisfied the plaintiff has made out his case.[146]
[146]T138
371 Counsel for the defendants submitted the facts in cross-examination established first of all the computer business was a very, very active one with thousands of transactions and lots of attention required by those who were operating it. Perhaps as telling as anything else, this was a business in which the plaintiff had committed himself to personal liability of $1,000 a day over an extended period. It was submitted he would not be doing this for “they” or “them”.[147]
[147]T137
372 Further, it was submitted the absence of a profit by the business should not be accepted as a fact; “that the facts speak quite to the contrary and it can be demonstrated why”.[148]
[148]T138
373 Reference was made to the plaintiff’s first affidavit where deposed he did not earn any wages from the business.[149] It was submitted his response in cross-examination was totally disingenuous. He received a director’s salary of $13,000 in 2013-2014 from Astute Soft, the successor to Microzite.[150] Despite his explanation that he received no payment in 2015, it was submitted the plaintiff’s answer “simply read as a lie”. Further, the disclosed salary to the plaintiff’s wife of $7,800 the following year again raises the issue of the financial benefits to the plaintiff or the plaintiff and his family.[151]
[149]T138
[150]T139
[151]T140
374 It was submitted that it was quite clear the plaintiff’s wife really had no understanding of the details of the working of the business which was inconsistent with her having been involved when she was drawing a wage and equally inconsistent with the proposition the plaintiff does not run the business anymore and she does. She readily conceded he helped because of childcare commitments.[152]
[152]T140
375 It was submitted it was clear beyond doubt that there were domestic payments and are still payments being met under the guise of business expenses.[153] An example was the trip to India in December 2016 which the plaintiff deposed was entirely related to the care of his daughter. It was submitted the plaintiff loses both ways, because he is actively involved in the business and not only its local management, and otherwise, he is getting a domestic benefit claimed through the business.[154]
[153]T140
[154]T141
376 Another example cited was the plaintiff’s attempt to justify business expenses of $8,787 in 2015-2016 in terms of motorcar and petrol expenses; however, as I commented during the hearing, I did not consider the plaintiff’s evidence to be to this effect.[155]
[155]T142
377 Counsel for the defendants cast serious doubt on the reliability of the profit and loss statement as a true reflection of the business.[156] The plaintiff and his wife each hold Go credit cards but they are linked to the same account and the debt on that account is paid by the business. Whilst the plaintiff conceded there were some domestic expenses paid, it was submitted it was “how they are unravelled” that is left in some doubt. It was submitted the unravelling would involve a significant financial benefit in relation to domestic matters or at least that there is significant unreliability in any case to the contrary.[157]
[156]T143
[157]T144
378 Having noted sales and expenses had both doubled the previous financial year, counsel noted the Microzite 2015-2016 profit and loss statement where sales had grown by approximately 180 per cent from $197,000 to $361,000 “but that the catch all in expenditure” – computer IT and other supplies had grown by approximately 260 per cent, going from $111,000 to $289,000. It was submitted that caused “forensic alarm bells”. It was submitted the disproportionate increase was a “tell-tale sign of concealed expenditure”.[158]
[158]T145
379 At that stage, I indicated to counsel for the defendants that this submission was “a big jump”. Whilst the onus is on the plaintiff, the defendants were suggesting hidden money was going back to the plaintiff, a theory that I considered speculative.[159]
[159]T145
380 Counsel for the defendants submitted this point was but one of a number of links in a chain that should not be judged in isolation. It started off with the false statement – “I've got no wages” – and it was submitted, putting all the matters together, the Court should not be satisfied in the veracity of the plaintiff’s statement that the business makes no money.[160]
[160]T146
381 When I reminded counsel that the profit and loss statements showed small profits or small losses,[161] it was submitted the Court could not rely on the plaintiff’s evidence he was not earning, even with the presence of supporting financial documentation.[162] The question was posed: why do the plaintiff and his wife continue to operate the business when he maintains the business model is flawed? It was submitted that told overwhelmingly against the proposition that on true accounting and after allowing properly for benefits that accrued, the business was operating and continues to operate at a loss. If it was a loss-making business, “you would pull up stumps” but the plaintiff and his wife continue to operate to pay off the credit card debt. You could not pay off that debt unless there was a surplus being generated.[163]
[161]T146
[162]T147
[163]T148
382 It was submitted the credit card debt was really a debt racked up of domestic expenses over time because the business was generating a profit truly but it was funded through a credit card, the credit card being paid off by the business. Rather than go to the bank and ask for a personal loan, it had been done this way. It was submitted the continuation of the business was inexplicable on any other basis. It would make no sense, as Mr Brazenor observed, for the plaintiff, who is a highly intelligent, articulate man, and understood the principles that he was operating by.[164]
[164]T148
383 Counsel for the defendants also queried the plaintiff’s wife’s evidence that she was drawing presently $8,000 a month but it was conceded that was an intuitive estimation rather than a real figure and that “it would be difficult to pin anything on that concession”. It was a large rather than small sum.[165]
[165]T149
384 As I indicated during the hearing, I considered the plaintiff’s wife’s knowledge or understanding of the business was not particularly great.[166] Counsel for the defendants submitted that what was shown in this regard was sufficient to cause the Court not to accept the plaintiff’s account.[167]
[166]T150
[167]T151
385 Counsel submitted the defendants submitted the plaintiff in cross-examination presented as a person who was seeking to avoid giving truthful answers, responding “they told him everything”. The only possible inference given the wife’s lack of knowledge was that the plaintiff “is continuing to pull the strings” and his wife even made that concession, so it is more than an inference.[168]
[168]T151
386 It was submitted the Court should not accept that the plaintiff presently has nil earnings and if it does not, it is not a question necessarily of substituting some other positive findings of what he is earning. Rather, it is a question on the facts of this case of the Court not being satisfied that the plaintiff has established what he has to establish in order to establish a loss of earning capacity leave, which is that the sum he is earning or is capable of earning would be productive of 40 per cent loss or more.[169]
[169]T152
387 It was submitted any medical opinion will be highly predicated on the veracity of the plaintiff’s account of what the plaintiff has done to date. If the doctors are not told of the computer business or given the limited account in the affidavits, it was submitted that was not a true picture of what the plaintiff has done.[170]
[170]T153
388 It was submitted in those circumstances, the plaintiff failed to discharge his burden of proof in establishing the requisite loss.
389 I then posed the question: if the plaintiff had business/administrative qualifications in India, why, when he came to Australia, did he work as a machine operator? Why would he have not worked in the field in which he was qualified at the beginning with a clerical middle class background?[171]
[171]T153
390 Counsel for the defendants submitted that the plaintiff came to Australia as a relatively young man and worked in what appears to be a fairly unattractive job, although not all physical, but it did involve a second aspect which was computer-related, entering data which the plaintiff enjoyed.[172] It was submitted that was a starting job but the ultimate timeline, it was submitted, was fairly significant.[173]
[172]T153
[173]T154
391 It was submitted the plaintiff with his “educated background, family contacts, intelligence and knowledge he had a crook back, was thinking of ‘Plan B’ – his own business and he’s obviously got very high hopes for the business, perhaps he’s been hoodwinked by his wife’s family, we don’t know.”[174]
[174]T155
392 When I asked: why did the plaintiff not stop work after the first injury in 2012 or after injury in 2014 but kept working until his employment was terminated, counsel for the defendants submitted the plaintiff was working on light duties part of the time when the business was expanding and then there was the rapid rate of growth in total sales. It was submitted it was highly possible the plaintiff was simply waiting until the right time when the business found itself.[175]
[175]T155
393 Counsel for the defendants submitted the relevant issue is capacity, not the ability to make money, nor is the issue determined by one particular venture.[176] If the plaintiff’s case ends up being sufficiently unreliable, then the Court would be unable to be satisfied of the requisite loss.[177]
[176]T156
[177]T156
394 Further, it was submitted the plaintiff had the physical capacity to perform each of the jobs identified by Recovre.[178] This is not a case where the plaintiff that had the capacity to work only as a “human” horse. In those circumstances, it was submitted losing the ability to do unrestricted manual labour was not so significant in the particular circumstances of this case.[179]
[178]T162
[179]T165
395 Counsel for the defendants conceded the plaintiff is not limited to manual work. Mr Brazenor says he is a highly intelligent man and has adaptive skills.[180]
[180]T161
396 Counsel thought there was limited need to refer to any of the vocational assessments because they are clearly premised on a proper understanding of what the plaintiff has done in the past.[181]
[181]T160
397 If a particular job was suggested, it was IT service desk. Reference was made to the note in the report of the plaintiff being a “technician”. While he needs some retraining, it is not beyond his field of interest and would be a good starting point.[182]
[182]T163
398 In response to my comment that while being an intelligent man, the plaintiff could not be great up front because of language difficulties. Counsel for the defendants submitted in a multicultural community, there would be jobs where the language would not be a difficulty.[183]
[183]T161
399 Counsel for the plaintiff responded briefly to the lengthy submission relating to the plaintiff’s involvement in the business.
400 Counsel explained that the plaintiff was prepared to commit himself to a Google bill of $1,000 per day because he had a relative in India who wanted a business address in Australia and the plaintiff became the “post box”. All the work was done in India: the call centre and all the staff are there.[184]
[184]T172
401 In those circumstances, it was submitted the plaintiff had frankly disclosed he was doing up to 15 hours a week putting together bank statements, things in a folder to take to the accountant, photocopying and sending to India charge back letters. It was submitted he was certainly doing an administrative role part time, none of which had resulted in any demonstrable profit.[185]
[185]T172
402 Counsel for the plaintiff described the $13,000 director’s payment in 2013-2014 as “flash in the pan” and it occurred when the plaintiff was still working for the defendant and there had been no such payments since.[186]
[186]T172
403 Counsel for the plaintiff also posed the question that if the business was going as well as was submitted on the defendants’ behalf, why would the plaintiff continue to push himself in heavy work with the defendant in a factory.[187]
[187]T173
404 Counsel for the plaintiff submitted the plaintiff continued to operate the business to at least make some payments on the credit card. He wanted to get out of the business because of his pain and difficulties concentrating, but his wife did not want to.[188]
[188]T173
405 Counsel confirmed that the plaintiff’s venture into the business was not income productive or indicative of any particular skills.[189]
[189]T176
406 Further, it was submitted the plaintiff was never challenged about his evidence that he can only work three hours a day, fifteen hours a week, over three non-consecutive days – a view shared by Mr Drnda.[190]
[190]T179
407 There is no evidence the plaintiff is or ever has been since the 2014 injury, effectively capable of working more than fifteen hours a week in light work. The only time he attempted to, he was further injured in 2016. Counsel submitted the only people really making money were the banks issuing the credit cards and Google.[191]
[191]T177
408 In summary, Mr Awad said the plaintiff was fit to work four to nine hours per week and could potentially do the despatch clerk job, two to three hours a day for a maximum of two to three days a week.[192]
[192]T12
409 The most recent certificate from Dr Peris, general practitioner, dated 22 March 2019 set out the plaintiff is fit for sedentary duties, four hours per day every second day.[193]
[193]T16
410 It was submitted Recovre had details of the plaintiff’s business activities.[194] Counsel for the defendants did not put any of the suggested jobs to the plaintiff and in any event it was submitted, none of the Recovre jobs measured up anyway.[195]
[194]T176
[195]T16
411 Whilst a number of full-time roles were suggested, Dr Yong thought the plaintiff could start on twenty hours and did not believe he presently has the capacity to do full time at the moment. Mr Awad thought the plaintiff may be suited to perform the job despatch role on very limited hours but he did not believe the plaintiff had the capacity to perform most of the other employment options which would aggravate his lumbar spondylosis.[196]
[196]T175
412 Counsel for the plaintiff submitted the plaintiff does not have a qualification in computers to be able to do the IT service job. His qualification is in business management and he does not have the requisite qualifications for the jobs suggested. Counsel repeated my concerns about the plaintiff’s ability to communicate at a service desk due to language difficulties.[197]
[197]T178
413 Counsel for the plaintiff relied on Mr Brazenor’s opinion insofar as he said in the present industrial environment the plaintiff will not be able to find work of any sort unless retrained with a marketable skill;[198] however, it was submitted this is a situation where the plaintiff says he cannot concentrate enough to do fifteen hours a week in the business. Business issues had to be referred back to him because his wife was struggling with the children.[199]
[198]T19
[199]T179
414 Taking into account all the evidence, I am satisfied that as a result of his back condition, the plaintiff has suffered the requisite loss – being unable to earn in excess of the “without injury” earnings figure of $1,049 per week.
415 If the plaintiff has the business acumen counsel for the defendants submitted, I do not believe on his arrival in Australia he would have taken up heavy physical work and continued in that role after injury until his employment was terminated.
416 While the plaintiff has a business qualification, it is now very outdated, his role in the computer business is not, and has never been, a major one given the business is based in Chennai where all transactions take place and the call centre is located.
417 The plaintiff’s involvement in the business commenced at the request of his wife’s relatives who, unlike the plaintiff, were experienced in the field and needed an Australian base – credit card and finance facilities available to him that were not available to the business in India.
418 A greater involvement and financial benefit as suggested by the defendants is purely speculative. While payments were made to the plaintiff, I accept they were repayments for the Google payments made by him.
419 The financial documents provided for both entities set out the business is running at a loss. The only time a director’s payment was made to the plaintiff was in 2013-2014 and small payments have been made to his wife.
420 I accept the continuation of the business running at a loss is an attempt to pay off some of the debts.
421 The plaintiff has had difficulty working even fifteen hours a week in a limited role in the business due to his back pain and difficulties concentrating.
422 Having lost the capacity for unrestricted physical work, sitting and concentrating in a more sedentary job would also cause him difficulty.
423 Whilst I consider the plaintiff’s capacity is about fifteen hours per week on alternate days, even if he was able to work twenty-five hours a week in the suggested roles, he would still suffer the requisite loss, being unable to earn in excess of $1,049 per week.
424 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
425 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
426 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
Psychiatric claim
427 Having granted leave in relation to the application claim pursuant to paragraph (a), it is not necessary to determine the application pursuant to paragraph (c).
428 In any event, I was addressed only very briefly in relation thereto by counsel for the plaintiff, who relied on Dr Schutz’s view that the plaintiff had a work capacity for twenty to twenty-five hours a week. Noting the plaintiff had had no psychiatric treatment, counsel for the plaintiff advised that application was not being abandoned but agreed “that was all you really could say about (c), which in itself was a very considerable circumstance”.[200]
[200]T182
429 Counsel for the defendants dealt with the psychiatric claim in written submissions. It was submitted that the contended psychiatric injury was not severe or likely to be permanent and the prognosis in relation thereto was uncertain.[201]
[201]PCB 85
It was submitted in any event, the conditions suffered in part were in response to the loss of a job which in turn relates back to the back injury sustained in one of three alleged incidents or a combination of them and so runs into the Filipowicz problems.
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