Vernon v Peter Saddler Transport Pty Ltd

[2019] VCC 1779

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-05396

TROY VERNON	Plaintiff
v
PETER SADDLER TRANSPORT PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2019
DATE OF JUDGMENT:	8 November 2019
CASE MAY BE CITED AS:	Vernon v Peter Saddler Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VCC 1779

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:   Serious Injury Application – injury to spine
Legislation Cited:                Workplace Injury Rehabilitation and Compensation Act 2013
Judgment:  The plaintiff’s Originating Motion is dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Smith QC with Mr P Johnstone	Slater and Gordon Ltd Lawyers
For the Defendant	Mr D Churilov	Hall & Wilcox

HIS HONOUR:

Introduction

1       The plaintiff applied for leave to commence proceedings at common law for damages for pain and suffering only caused by a work injury he sustained with impairment consequences to his spine. The occurrence of a work-related injury was not disputed by the defendant.

The plaintiff

2       The plaintiff is aged 30 years. He was born in New Zealand. He came to Australia with his parents when he was about 16. On completion of his secondary education, he found employment in a variety of retail positions. He developed an interest for a career in the real estate industry. That did not eventuate in the manner he had perhaps hoped.

3       Eventually, the plaintiff found employment with the defendant as a van driver. His work required him to deliver containers of soft drink and kegs of alcohol and unload the same at various metropolitan locations.

4       On 18 March 2015, while in the defendant’s employ, he experienced the onset of back pain. He carried this pain for a number of days. He said it worsened and began to extend into his right leg.

5       The plaintiff’s affidavits deposed to a history of light duties with the defendant, following injury, but in or about late 2016 this ceased.

6       In the early part of 2017, the plaintiff secured employment in real estate, working in the leasing arm of the Altona branch of Stockdale & Leggo. This lasted about seven months. He said the work required him to be seated for extended periods of time and was counterproductive to his condition, and was a trigger for pain. As well, he complained that the suit he was required to wear at work was tight and made his back uncomfortable. The plaintiff was, at this stage of his life, overweight.

7       I can say, immediately, I do not accept that the decision to leave real estate was other than a voluntary decision made by the plaintiff, and was not one borne of pain caused by his work injury with the defendant. Instead, I am satisfied, it was because the plaintiff had decided to pursue crypto currency trading full-time, and an IT business, he had commenced with others.

8       The plaintiff’s affidavits, affirmed 11 July 2018 and 8 July 2019,  canvass a number of ongoing consequences he experiences as a result of his injury. I will address them in due course.

The course of investigations

9       The plaintiff underwent medical assistance after his work injury developed. Dr Altaf Kazi has been one of two general practitioners the plaintiff has attended. Dr Kazi referred the plaintiff for x-ray of the lumbar spine on 23 March 2015. It reported “[n]o acute or chronic abnormality of the lumbar spine identified on plain films”.[1] Other investigations followed, including a CT scan of the lumbar spine on 12 May 2015; an MRI scan of the lumbosacral spine, dated 2 June 2015 and an MRI scan of the brain and whole spine, dated 2 June 2016, that revealed a “ Small left posterior paracentral disc protrusion at T11/12”.[2]

[1]Plaintiff’s Court Book (“PCB”) 28

[2]PCB 30

10      In February 2016, the plaintiff was referred to the Melbourne Spinal Group and seen by Dr Smith.

11      The plaintiff was involved in a motor car accident on 25 May 2015 that resulted in a temporary exacerbation of back pain, but shortly afterwards he returned to what he described as his “baseline back pain”.[3]

[3]Dr Robyn Horsley, PCB 94

12      The plaintiff’s early accounts of his condition included a complaint of pain in the mid-back and of pain that extended into the right big toe, a complaint of right-sided groin pain and lower back pain that is more evident on the left side, and pain extending into the left leg, as far as the knee. He also had complained of pain and numbness in his hands.

13      The plaintiff’s treatment has been minimal. It has included a CT-guided facet joint injection in late 2016, that he said provided relief, but for only about one month, after which the pain returned. The fact of the injection being warranted and the account of relief it provided, albeit temporary, is, as Mr Smith of counsel for the plaintiff submitted, of some assistance in corroborating an organic basis for the plaintiff’s pain, as is, the plaintiff’s evidence that he has experienced pain relief from medications such as Lyrica and Endep. Otherwise, the plaintiff’s regime has been some physiotherapy and gym attendances.

14      The plaintiff said he experiences ongoing pain. In the course of cross-examination, attention was had by Mr Churilov, counsel for the defendant, to the account of the plaintiff’s pain including right-sided groin pain as well as  the right big toe. The plaintiff said that those areas are no longer affected by pain and the pain and numbness in his hands that he had previously reported has also dissipated.

15      The plaintiff’s claim thus concentrated on what he said was constant left-sided lower back pain with referred pain into his left leg.

The defence

16      The defendant argued that although it accepted that the plaintiff had suffered a soft-tissue injury, the preponderance of medical and occupational evidence is that any ongoing organic pathology attributable to the soft-tissue injury has resolved and that the plaintiff’s current state is not referrable to an organic condition but, instead, he would appear to have developed significant non-organic functional problems with some degenerative pathology. In any event, so the defendant argued, any component of organic pathology, if still operative, has not been productive of consequences that are more than marked, and certainly not serious.

17      No evidence of the plaintiff’s mental state was tendered.

18      The defendant further submitted that I should be wary of the claim alleging the occasioning of serious consequences because the plaintiff’s credibility had been put in issue and he had failed to disclose, in his affidavit evidence, the extent of business activities in which he had been involved since the injury.

19      For the reasons that follow, the application for a grant of leave to commence proceedings at common law must be dismissed.

The identification of injury

20      The identifiable injury on radiological investigations was a small left posterior paracentral disc protrusion at T11-12.

The plaintiff’s medical evidence

Treating report

21 Dr Altaf Kazi diagnosed Chronic Pain Syndrome of the lower back radiating to the right leg and the big toe,[4] and chronic neck pain, unexplained on MRI or CT scans.[5]

[4]PCB 33-34

[5]PCB 35

Medico-legal reports

22 Mr John O’Brien, orthopaedic surgeon, undertook an examination of the plaintiff on 11 July 2017, and furnished a report, also of that date,[6] and diagnosed chronic non-specific back pain. He said that investigations did not appear to define any significant pathology in the lower lumbar or upper sacral area and, furthermore, on the basis of physical indications and radiology, there was no specific pathology underlying pain generation. Therefore, with no organic foundation for the pain, Mr O’Brien concluded that the plaintiff “presents with chronic non-specific back pain”.[7] He said he was guarded as to the prognosis given the chronic nature of the plaintiff’s symptoms, and said that the plaintiff was incapable, now, of returning to any form of employment requiring heavy physical work, but was capable of undertaking suitable employment.

[6]PCB 77, Exhibit P5

[7]PCB 80

23      Two years later, in a report dated 11 July 2019,[8] Mr O’Brien wrote that the plaintiff’s ongoing symptoms indicated the presence of chronic nonspecific lower back pain, although investigations had not defined precise pathology underlying the pain generation. He thought, however, that the plaintiff’s pain was aggravated by mechanical factors. He considered that the plaintiff’s clinical condition was stable.[9] The plaintiff had reported no change in the nature, distribution or severity of pain in the two years since his initial examination. He thought that four years of chronic pain suggested a poor prognosis and that the plaintiff’s symptoms will continue.

[8]PCB 82

[9]PCB 85

24      Mr O’Brien did not assess the plaintiff as totally incapacitated, but thought he would require considerable modification to an employment environment. He reported that the plaintiff remains limited in his general, social, domestic and recreational activities, and this would now appear to be a permanent situation. He assessed the plaintiff overall as “limited in his general, social, domestic and recreational activities”,[10] a situation which he thought would persist.

[10]PCB 80

25      Mr Peter Blombery is a consultant physician (vascular disease and pain medicine), who examined the plaintiff on 14 June 2018, and followed up with a written report dated 22 June 2018.[11] He noted that the plaintiff’s back pain previously asymptomatic had been rendered symptomatic because of degenerative changes in the lumbar spine due to heavy lifting in the course of his employment. He discounted a pain syndrome as constituting a “major component”. He thought the prognosis for the plaintiff’s recovery was moderate to poor. He thought the plaintiff had no capacity to perform his pre-injury duties and that his incapacity is permanent. He considered him able to perform suitable employment doing light duties without heavy lifting, with the ability to be able to change positions on a regular basis initially on at least a part-time basis up to 20 to 30 hours per week.

[11]PCB 90, Exhibit P6

26      Dr Robyn Horsley is an occupational physician who examined the plaintiff on 25 February 2019 and furnished a report of that date to the plaintiff’ solicitors.[12] She recounted that the plaintiff presented with non-specific mechanical back pain and referred left thigh pain. He had originally presented to his doctor with right leg pain. She said that, radiologically speaking, there is minimal pathology. She noted that a plain x-ray on 24 March 2015 was within normal limits. An MRI scan of the lumbar spine on 2 June 2015 (after the motor vehicle accident of 1 June 2015 in which the plaintiff was involved), confirmed “a small left posterior paracentral disc protrusion, partly effacing the anterior thecal sac but with no cord compression”.[13]

[12]PCB 93, Exhibit P7

[13]PCB 99

27      Dr Horsley reported that the plaintiff had been referred to Dr Jacques Joubert, neurologist, on 22 January 2016, who proceeded to an MRI scan of the brain and whole spine, which showed “no MRI evidence of demyelination”.[14] The plaintiff had a small disc bulge to the left at T11-12, which was posterolateral, without convincing impingement of the exiting left T11 nerve root. She recorded that the plaintiff’s local general practitioner arranged for a CT-guided facet joint injection into the left L5-S1 facet joint on 18 August 2016 that gave him a few months pain relief.

[14]PCB 99

28      Dr Horsley wrote that the plaintiff presented with ongoing mechanical back pain and referred left leg pain, the nature of the pathology being uncertain.

29      Dr Horsley considered that, given the length of time since the plaintiff’s injury and the ongoing nature of his symptoms, they were likely to persist.

30      Dr Horsley thought that the plaintiff was appropriately self-managing with a gym program which he was attending five days per week, including treadmill exercises for 30 to 60 minutes. She thought that an assessment by a physiotherapist and advice about a core-strengthening program would be of value, and that a dietician and Pain Management Program might assist.

31      Dr Horsley reported that, based on the history taken, it is likely the plaintiff sustained a soft-tissue injury. She noted that other than the very small left paracentral disc protrusion at T11-12, with no evidence of neural compression identified on MRI scan, there was no other specific pathology. She observed that Dr Joubert had concluded “there was no significant organic pathology. He could not explain Mr. Vernon's ongoing symptoms”.[15] Dr Horsley wrote[16] that it was:

“difficult to relate [the plaintiff’s] current presentation four years later, with the historical information in the materials attached. Initially, he presented with back and right leg pain. He now presents with back and referred posterior left thigh pain.”[17]

[15]PCB 100

[16]PCB 100

[17]PCB 100

The defendant’s medical evidence

32      Dr Ian Taubman is a consultant physician in general medicine, who examined the plaintiff on 20 July 2015 and prepared a report dated 20 July 2015.[18] He observed the presence of a small left posterior paracentral disc protrusion at T11-12. He wrote that the plaintiff’s obesity would predispose him to back pathology. He wrote that the plaintiff’s medical condition is “new and not an aggravation, an acceleration, an exacerbation, a recurrence or a deterioration of any pre-existing disease”.[19] He noted that there was no evidence of radiculopathy on physical examination.

[18]Defendant’s Court Book (“DCB”) 30-31, Exhibit D3

[19]DCB 30-31

33 Dr Taubman provided a further report, dated 26 October 2015,[20] and he again expressed the opinion that the plaintiff’s injury was not “a recurrence, an acceleration, an exacerbation or a deterioration”,[21] but a new injury. He thought that the initial injury may have been due to a soft-tissue aggravation, but which had probably now resolved. He was unable to explain the plaintiff’s present symptoms due to organic pathology. He considered that the plaintiff’s prognosis with regard to a return to pre-injury duties was poor, due to considerable functional overlay. He thought that the plaintiff exhibited evidence of abnormal illness behaviour. He reported that the plaintiff had expressed avoidance to carrying “even a loaf of bread”.[22] He considered the need for ongoing medication was not warranted. He said that the plaintiff was unable to return to pre-work duties. He was satisfied that the plaintiff would not be suitable at any time in the future for employment as a truck driver, but he considered he was suitable for full-time employment on alternate duties.

[20]DCB 36

[21]DCB 36

[22]DCB 35

34      Dr Kevin Fraser is a rheumatologist who examined the plaintiff on 15 March 2016 and produced a report dated 22 March 2016.[23] He said that there was no convincing evidence that there has ever been an injury, although he said he could not exclude the possibility that his initial symptoms were due to a soft-tissue strain but that if so they should have since resolved.

[23]DCB 43, Exhibit D4

35      Dr Fraser thought the plaintiff’s current symptoms to be quite atypical and with marked overreaction on physical examination, and he did not believe that there was any organic basis for them.

36      Dr Fraser considered that, although non-organic factors of a psychosocial nature are likely to be an ongoing impediment to rehabilitation for the foreseeable future, there was no physical reason for him to lose any further time from his usual work and he was physically fit for normal work forthwith.

37      Mr Tony Kostos is a rheumatologist whose report, following on examination of the plaintiff, dated 2 November 2017,[24] contained the opinion that his only possible diagnosis was one of a chronic pain syndrome[25] (and the plaintiff’s presentation was not consistent with an injury). He said there was no need for a caudal epidural injection. He thought that the plaintiff’s prognosis was extremely poor due to psychosocial factors.

[24]DCB 45, Exhibit D5

[25]DCB 48

38      Dr Michael Lucas is an occupational physician, who furnished a report dated 18 October 2018, following an examination on 10 October 2018.[26] He diagnosed a mechanical low back pain with non-verifiable radicular symptoms. He considered indicated imaging findings appeared reassuring. He reported that short and long-term prognosis for mechanical low back pain is generally viewed more favourably in the presence of an active lifestyle. He wrote that the plaintiff indicated that his symptoms have stabilised, and he considered his prognosis was favourable. He did not believe that employment materially contributed to injury. He believed that the plaintiff may reasonably be considered as fit to undertake desired employment and non-employment-related activities by maintaining appropriate back care awareness, manual handling limitation awareness, and by maintaining a degree of cardiovascular fitness, commensurate with his desired and required activity participations.

[26]DCB 91, Exhibit D6

39      Dr Lucas furnished a supplementary report of 22 October 2018 and wrote[27] that, in his opinion, the plaintiff may reasonably be considered as fit, and as having a physical capacity to undertake suitable jobs on a full-time basis.

[27]DCB 100

40      Dr Lucas, on 28 June 2019,[28] maintained his opinion of mechanical low back pain,[29] and a favourable diagnosis. He did not think that the events of 18 March 2015 may reasonably be considered as not materially contributing to Mr Vernon’s current symptom awareness.

[28]DCB 163

[29]DCB 165

41      Associate Professor Graeme Brazenor examined the plaintiff on 9 November 2018.[30] He reported that, on the balance of probabilities, the plaintiff suffered a minor soft-tissue injury in the lumbar spine on 18, 19 and 20 March 2015 from which he has completely recovered. In a further report dated, 17 June 2019,[31] Associate Professor Brazenor commented on the suitability of jobs identified in a Recovre report and expressed the opinion that the plaintiff mainly could do such jobs with ease. He found no pathology extant and the plaintiff required no treatment other than to avoid recurrent bending at the waist and heavy lifting, which are the activities he concluded made him temporarily symptomatic in May 2013 and March 2015. He said there was no evidence of a loss of body function or impairment.

[30]DCB 130, Exhibit D7

[31]DCB 156-157

42      Dr Jacques Joubert, in a report dated 15 Jan 2016,[32] wrote that physical examination of the plaintiff was unremarkable, with no evidence of neurological dysfunction. MRI and nerve conduction studies had been normal and he was at a loss to explain the plaintiff’s symptoms on an organic basis. In a further report, dated 12 February 2016,[33] he noted that, on physical examination, the plaintiff was distinctly tender over the left sacroiliac joint.

[32]DCB 173, Exhibit D8

[33]DCB 176

43      Dr Frank Laska is a consultant physician/rheumatologist, who examined the plaintiff and prepared a report dated 25 June 2017.[34] He said that the plaintiff’s presenting complaint was in keeping with, primarily, a musculoligamentous strain. He said there was no evidence of connective-tissue disease or arthropathy. He said he was optimistic that, if the plaintiff was to follow recommendations and achieve relevant endpoints and goals to strengthen muscular supports, he would return to a normal level of comfort and functional capacity for all aspects of activities of daily living. He considered it was unlikely there would be a need for surgical intervention.

[34]DCB 177, Exhibit D10

The plaintiff’s oral evidence

44      In oral evidence-in-chief, adduced from the plaintiff by way of leave and additional to his affidavits, he said that the flare-ups of pain he experiences are about 7/10, and the pain can last a couple of hours to a couple of days and that he experiences such flare-ups once or twice a week.[35] He said he treats such occasions by way of rest.[36] He said the level of his chronic pain is about 3-5/10.

[35]Transcript (“T”) 26

[36]T26

45      The plaintiff said he has been required to purchase a special bed that can raise and lower his leg.

46      The plaintiff takes Naproxen for pain.[37] He said his sleep is still disturbed by pain[38] about twice a week, and while he can get to sleep, he is woken by back pain. Typically, on the occasions his sleep is disturbed, he will have only managed three to four hours,[39] and will then be awake anywhere from 30 minutes to the balance of the night.

[37]T26

[38]T27

[39]T27

47      The plaintiff said he once enjoyed compound archery weekly, and it was a pursuit that he could pursue socially, as well as alone, but the degree of pull-back required of it by means of back and arm strength, is not something he can manage, and he said he had sold his bow.[40]

[40]T25

48      The plaintiff said he had also previously enjoyed four-wheel driving, perhaps monthly, and also annually through rural Victoria, but has not done so since the onset of injury.

49      A prior hobby of model tank building was now restricted to plastic model boats, from which he said he does not derive the same level of enjoyment.

The plaintiff cross-examined

50      The plaintiff was asked about his experience of the onset of pain on 18 March 2015. He said he initially encountered pain in the back, and then two days later, while still working, his symptoms worsened and he encountered shooting pain from the lower abdomen and the big toe. He said the stabbing pain in the right groin and in the right big toe occurred some two days later, that is, on or about 20 March 2015, and he subsequently went on light duties, and underwent an x-ray to the back, followed by a CT scan on 12 May 2015.

51      The plaintiff said that the transport accident he was involved in on 1 June 2015 caused a temporary aggravation to his back pain. He said that the aggravation was productive of symptoms to his lower back, but he experienced no symptoms into his legs. He said symptoms he attributed by way of aggravation into his lower back were “pretty intense” and lasted a day, or perhaps two days.[41] He said that, thereafter, he continued to experience back pain, and right leg, right big toe and right groin symptoms of pain.

[41]T29

52      The plaintiff agreed that, from March 2015, he was regularly attending doctors at the Point Cook Medical Centre. He said his regular treating doctor for many years, and after the 2015 March 2015 incident, was Dr Ogaji.[42]

[42]T30

53      The plaintiff said he remembered attending Dr Taubman. Dr Taubman, in his report, mentioned that the plaintiff, in the course of attending for examination on 20 July 2015, was “sighing and groaning”. The plaintiff said he remembered being in quite a bit of pain.[43] He said that all the doctors he had been to see had pushed in specific parts of his back, and when a certain part of his back is pushed it causes pain, and therefore he might well have groaned, but he could not remember.

[43]T30

54      The plaintiff said the experience of right groin pain is accompanied with right big toe pain that he described it as a “pulsating, sharp nerve pain”.[44] He said they are felt separately, but at the same time, and there is no distribution of pain from the groin all way to the right big toe.[45]

[44]T31

[45]T31

55      It was in the course of the second examination with Dr Taubman in late October 2015, when the plaintiff was reported to have said he avoided carrying objects, including even a loaf of bread. He said he could not remember saying so.[46] He said he did recall a conversation about groceries, and he told Dr Taubman he would exercise care going about “[t]wisting bottles of milk or a bag of groceries or something it would trigger a bit of pain”.[47] He said he was “cautious”,[48] but he could lift a loaf of bread. He said he could never remember saying he was unable to lift a loaf of bread.

[46]T32

[47]T32

[48]T32

56      The plaintiff was asked about discussions with his general practitioner concerning the source of the pain in his back. He said the issue was, that the scan came back with T11-12, which he understood was the upper region, whereas he said his pain has always been in the lower region. He agreed that his general practitioner had told him that he could not explain the problem at T11-12.[49] He was taken to notes of attendance on his general practitioner on 18 November 2015 in which it was recorded, by way of symptoms, that the plaintiff was “still getting nerve pain and now it’s tended to be upper limb”[50] with “distribution to the right hand, left hand and lower limbs, right posterior thigh to the big [toe].”[51] The plaintiff said he could remember left arm and left hand pain, but said he did not know if it was related to the work incident, but he reported it to his doctor because it was a matter of concern to him. He said he could not remember when left hand or arm pain commenced, but that, in any event, it has since disappeared.[52] The note from the plaintiff’s general practitioner included that he was “[n]ot really sure now why upper limb also affected. Stating pain occurs all the time off and on lasting a few seconds, 10 and 20 seconds”.[53]

[49]T33

[50]T33

[51]T33

[52]T33

[53]T33

57      The plaintiff was seen by his general practitioner on 28 November 2015, who recorded that: “States has not been attending work, and still gets [occasional] pins and needles in upper and lower limb lasting few seconds with minimal [movement].”[54] The plaintiff said he thought that account made sense.[55] The general practitioner’s note went on to include:  “cannot explain thi ssymptoms with referred pain from lwoer /mid back to upper limbs” (sic).[56] The note included the doctor having advised the plaintiff that, “I cannot really prove relationship of minima (sic) t11/12 disc protrusion with present pain needs to see a neurologist”.[57]

[54]PCB 43

[55]T34

[56]PCB 43

[57]PCB 43

58      It was as a result of his general practitioner’s uncertainty about the origin of symptoms that he referred the plaintiff to Dr Jacques Joubert. The plaintiff saw Dr Joubert on 15 January 2016. Dr Joubert reported:[58]  “Since the 18th March he has had pulsating pain in both lower limbs, his right groin and his right big toe.”[59] He added, “[h]e has now developed pains in his wrists and fingers and electric shock like symptoms through his body.”

[58]DCB 173

[59]DCB 173

59      The plaintiff continued to see his general practitioner during the course of 2016. On 24 February 2016, he attended and a further history of symptoms was provided. It was noted that the plaintiff told his doctor that he could not open a jar at the weekend and felt weak in his hands. The plaintiff was unable to remember the account about being unable to open a jar.

60      The plaintiff said that if he lies on his back in bed, he has to bend his legs, otherwise he is in pain.[60] He said that prior to earning sufficient money from trading crypto currency to buy his mechanical bed he was forced to use a pillow, but his new bed permits his legs to be lifted.[61]

[60]T36

[61]T37

61      The plaintiff continued to work with the defendant on light duties until February 2016, by which stage he had worked his way back up to 30 hours a week. He was consistently working 30 hours a week, but doing modified administrative tasks.[62]

[62]T37

62      After a period without work, the plaintiff then commenced employment with Stockdale and Leggo. The work was substantially administrative in nature, but he also attended and visited clients from time to time.[63] He remained in that work for a period of approximately seven months. However, he said the clothing or uniform that he was required to wear included tight pants that created a lot of pain in his lower back. He said he now wears “flexing pants”.[64] The plaintiff agreed that it was possibly the case that by the middle of 2017, and until he ceased with Stockdale and Leggo, he was working full-time hours.[65]

[63]T37

[64]T38

[65]T39

63      The plaintiff accepted that his departure from Stockdale and Leggo coincided with his decision to pursue currency trading.[66]

[66]T39

64      The plaintiff purchased a used BMW sports car in February 2018.[67] He agreed that he had taken his car to a sports track “to have a drive around”.[68] He said he flies a drone and said, “I don’t have to do any physical for that”,[69] but he said he had lost some interest in it and had not “used it for maybe six months”.[70]

[67]T40

[68]T41

[69]T41

[70]T41

65 As to model building, the plaintiff said he puts them together from scratch but that he sits and stands when undertaking the activity. He said the time he spends on the models could be from 10 minutes to half an hour,[71] and that he had only completed two models in four years. He said the process can take months, and once assembled, he also paints them. He separated out the functional aspects of model ship-building, comparable to the assembling of remote-controlled tanks that he formerly pursued.[72]  He said, when he was able to build remote-controlled tanks, he would go to a club where there was infrared interactions with other hobbyists.[73] He said the model tanks weighed a lot, and so he has been unable to continue with them for that reason.[74]

[71]T42

[72]T43

[73]T43

[74]T43

66      The plaintiff was asked about his travels to New Zealand in June 2018. He said, while there, he saw friends and his partner’s family.[75] He said he spent the first few days in pain after the flight,[76] but had been able to fly between islands. He said he could not remember the trip “too well”,[77] and explained his lack of recollection because he thought he may have visited New Zealand twice in 2018.[78]

[75]T44

[76]T44

[77]T44

[78]T45

67 In relation to the operation of his business interests, the plaintiff said he had systems set up to help monitor the trading variations in the currency market that operates on a 24 hour cycle. He agreed it needed to be monitored closely,[79] and he said sometimes he will stay up late at night for this purpose. But he disagreed that he wakes in the middle of the night for the purpose of monitoring what is happening and said that “[o]nce I go to bed, I usually set up my stuff to look after itself”,[80] and that he tried not to let the trading cycle affect his sleeping patterns.[81] When it was put to him that he goes to bed fairly late as a result of trading in the currency he said, “[p]ossibly”,[82] but also said that he tries to keep a somewhat normal routine meaning being in bed “by midnight”, but that sometimes perhaps it was later. He said the last three weeks had been very volatile in the market.

[79]T48

[80]T49

[81]T49

[82]T49

68      The plaintiff agreed that his first trade had been in July 2017.[83]

[83]T50

69      However, crypto currency trading was not the only business in which the plaintiff had been involved. He had been operating a business called “PC Techies”[84] that had been registered on 28 April 2017, with the business name being cancelled on 6 September 2018. The plaintiff had set up a Facebook page for the business, which offered “[r]epairs, upgrades and services, viruses, malware, spyware removal, custom PCs built to your needs, general IT advice, networking issues, website design, branding logo design, graphics design”.[85] He agreed these had been services he had been trying to offer,[86] but that the business never really took off. He said he only encountered two paying customers, one being his partner’s mother, and the other, someone he worked with at Stockdale and Leggo.[87] The business advertised that he was prepared to accept payment for services in crypto currency.[88]

[84]T50

[85]T51

[86]T51

[87]T52

[88]T53

70      Another business in which the plaintiff was involved was “crypto Hub Official”, but that, he said, was never a profitable business. It offered paid subscription-based services, to which members could learn about crypto trading,[89] but he said he left that business in 2018.[90]

[89]T55

[90]T56

Pain and suffering consequences

71      The plaintiff said the day-to-day pain he had described in evidence-in-chief as between 3-5/10 had “toned down”.[91]

[91]T62

72 The plaintiff said he had no memory of seeing Mr Blombery. But it was the plaintiff’s attendance on him in June 2018, when in addressing his current status, Mr Blombery reported the plaintiff rated his pain overall as 3-5/10. He accepted that was so. Mr Blombery reported that, overall, the plaintiff’s pain was “much less severe than it had been previously”,[92] and the plaintiff[93] said he had learnt a good deal over the years on how to manage his pain.

[92]T62

[93]T62

73      The plaintiff was asked about his evidence that, initially, and for quite a while after March 2015, he had pain in his right leg, right groin, and the right big toe. He said the pain is now just in his left leg, but he said “down the left side”.[94] He said he did not any longer have right leg pain, and no longer has right leg and toe pain.[95] He was unable to say when the symptoms changed from one leg to the other.

[94]T63

[95]T63-64

74      The plaintiff was asked about the distribution of his left leg pain currently, and he said “[o]nly to the knee. Only to the knee. But it’s just under the thigh and the butt area when it flares up”.[96]

[96]T64-65

75      The plaintiff described a series of aggravators that can trigger the under-leg pain, as he described it, such as walking up stairs or going uphill, which, although he deposed in his affidavit had been a problem, said “[n]o, it’s still a problem”.[97] It was suggested to him that this was inconsistent with the account he gave to Dr Horsley who said.[98] “[h]e originally had issues with stair and hill ascending and descending; these are no longer an issue.”[99] She went on to say, “[h]e lives in a two-storey townhouse. The stairs are not an issue unless his back is irritable”.[100] The plaintiff could not recall providing that account to Dr Horsley, but he added that it is true, and “[s]o the stairs are very minimal, they’ve got a twist in them. And if I am sore, then it makes it worse”.[101]

[97]T65

[98]PCB 97

[99]PCB 97

[100]PCB 97

[101]T66

76      The plaintiff was taken to records from Dr Kazi. The plaintiff first attended on 22 January 2018 with back pain. The next attendance related to his back occurred on 3 April 2018. The attendance gap in relation to his back is very much more than deposed to in his affidavit where, at paragraph 20, it is recorded he continued to see his general practitioner fortnightly for ongoing management. He accepted it was an error on his part to suggest that his current frequency of seeing his practitioner was fortnightly.[102] The plaintiff said, when he was directed to numerous attendances on his general practitioner that do not indicate his back as the reason, that “I would always mention my back and just make sure we were up-to-date” with medication prescriptions.[103] The plaintiff takes Meloxicam, two to three times per week,[104] and he takes Naproxen, maybe once or twice a week if it flares up, but he takes Nexium beforehand to protect his stomach.[105]

[102]T68

[103]T72

[104]T73

[105]T74

77      The plaintiff, it seems, has had a sleep apnoea problem, and there were a number of variables related to it, including his weight and, indeed, the structure of his nose. He had used a CPAP machine, which has made a difference.[106]

[106]T71

78      The plaintiff has sold his car, and he said, in relation to questions concerning driving tolerances, that he sold it because “it wasn’t practical”.[107] Lest it be thought the car was impractical because of pain consequences, he agreed that part of the sale was because he was contemplating a move from Melbourne and returning to New Zealand.[108] I am satisfied this is what prompted the sale.

[107]T75

[108]T75

79      The plaintiff said he recently attended a music festival and he had a bad time “trying to stand”.[109]  As there was a prolonged period of time where he was required to stand, it was “uncomfortable”.[110]

[109]T76

[110]T76

80      The evidence of impositions to the plaintiff’s domestic existence is not substantial.  I arrive at that finding conscious of the submission made by counsel for the plaintiff, in the course of his final address, that he “moderates every aspect of his life in terms of his domestic activities; the postures and attitudes he adopts, the degree of physical activity in which he engages – to ensure that his pain does not get aggravated”.[111] The plaintiff said he has his groceries delivered after ordering them online because it avoids the need to “grab tedious items off the shelf, put it in a trolley… self serve yourself or go through the checkout” and that “…by the end of it, that’s a repetitive physical task and it does create pain.”[112]

[111]T107

[112]T77

81      I am not persuaded that the plaintiff’s omission of having lodged an up-to-date tax return referred to by the defendant is of much relevance, whereas, I was troubled by the omission of detail of the extent of businesses in which he had been engaged, and proactively so, since the date of the onset of the work injury. The extent of, as opposed to the success of, the plaintiff’s involvement in crypto currency trading, and other business ventures, is what is pertinent. The plaintiff was not forthcoming about it until it was pursued in cross-examination.

82      Counsel for the defendant submitted that the doctors in the main, accept there was a musculoligamentous soft-tissue injury.  Although the same doctors are at a loss to explain, on an organic basis, the presentation the plaintiff has had, and certainly the radiology is inexplicable to explain the distribution of the symptoms of which the plaintiff complained and continues to complain. The pathology has never matched the description of the symptoms the plaintiff relied upon from the outset, which were symptoms not in his upper back, not in his middle back, but in his lower back, radiating into the right leg initially. The defendant pointed out that the plaintiff, himself, had a curious description of his right groin pain pulsating and being connected to the right big toe pain, and yet there had been no distribution down the leg into the right toe.

83      The plaintiff’s general practitioner, during 2015 and 2016, could not explain the source of his pain, nor could not correlate it to the protrusion.

84      The defendant’s doctors are of the opinion that the plaintiff presented with evidence of functional overlay.[113]

[113]See Dr Taubman July 2015

85      Mr O’Brien’s analysis for example, is fundamentally a diagnosis by way of reverse engineering that, in the absence of organic pain, there must be some reason for the non-specific back pain.

86      As far as the intrusion on the plaintiff’s sleep is concerned, I am satisfied that there is an equally reliable account that his difficulties with sleep are a combination of his work activities in crypto currency trading and his sleep apnoea, and possibly earlier also having been related to his weight gain, but that the use of the CPAP machine has assisted this problem.

87      The plaintiff’s treatment is minimal, although he does take some medication, but the need for it is relatively infrequent, and depends upon the nature and severity of the claimed flare-ups.

88      Counsel for the plaintiff argued that to concentrate on the original symptomology was to lose sight of what the plaintiff’s current complaint is, which is now mostly left-sided lower back pain, with some pain into his left leg. Mr Smith submitted that the plaintiff’s account was more readily to be assessed by way of a genuine presentation, with some symptoms having dissipated, than of a person who was psychogenically disposed to not obtain any benefit or remediation of pain over a period of time.

89      Furthermore, contrary to the distillation of attendances on the plaintiff’s general practitioner, counsel for the plaintiff pointed to a number of entries that identified attendances on the doctor addressing back pain. I accept there have been some such attendances.

Summary and conclusion

90      The difficulty associated with counsel’s submission is that, even accepting as I do on balance, that the plaintiff experiences pain and that also on the balance of probabilities, his account of the same is referable to the development of a chronic pain syndrome having its origin in the original injury, nonetheless, when judged according to the narrative test, the consequences he experiences do not reach the level of seriousness warranting the grant of a certificate.

91      While I accept that the plaintiff suffered a physical injury as a result of his work in about March 2015, I am not satisfied that the injury leads to consequences that, when judged against a range of like impairments, constitutes seriousness. I am not persuaded by the efforts made on the plaintiff’s behalf to portray him as a previously active person from whom much has been taken away. Indeed, the plaintiff appeared to me to be a person for whom his online trading life and his computer-related business activities were themselves contra indications to a person who has been seriously affected by limitations occasioned to recreational and domestic activities because of his injury.

92      Accordingly, it is somewhat of a subordinate question to determine whether or not the plaintiff’s back pain has resolved. I am minded, on balance, to think that it very largely has done so and has been overtaken by a pain syndrome. While the substantial majority of doctors’ opinion are that the back pain should have resolved (and the account of pain is unable to be reconciled to the original pathology of a bulge at T11-12), for the reasons I have expressed, the pain itself and its manifestation in the nature of a chronic pain syndrome, does not impact on the plaintiff to an extent that reaches the level necessary for the granting of a certificate.

93      There are plainly enough some pursuits by way of recreational hobbies which the plaintiff says have been impeded by his back pain. The compound archery, for example, and the ability to undertake the level of attention to his model making, as he had once pursued, and the very occasional four-wheel driving pursuits. In their stead, has been less arduous model-ship building, and it seems also, at times, an interest in drones. His car rallying was reduced. The sale of his BMW sports sedan was not due to the consequences of driving being an aggravating factor to his pain but, rather, because it became no longer practical to retain in light of what he anticipated might be a move back to New Zealand.

94      While I accept there has been a loss of some enjoyment of life and that the occasion of pain has an impact on the plaintiff, the consequences are, in my judgement, no more than moderate. They have been replaced by other interests and, while these may not be commensurate, nonetheless, the disparity in them is not so sufficient as for me to regard them as “serious” consequences. As to the circumstances in which he says he needs to avoid activities for concern of triggering aggravations, I am not entirely comfortable with the evidence given by the plaintiff and find, in some respects, he was unreliable, especially when taken to, and endeavouring to explain, the disparate account of Dr Horsley.

95      Overall, I am not satisfied that the degree to which the plaintiff suffers from the identified consequences are “more than significant or marked” and, in my value judgement, do not amount to consequences that are deserving of the description of “being at least very considerable”.

96      For the reasons expressed, the plaintiff’s application to commence proceedings at common law for pain and suffering damages is refused.

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