Viney v Victorian WorkCover Authority
[2024] VCC 309
•22 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-00835
| CHRISTOPHER LESLIE VINEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2024 | |
DATE OF JUDGMENT: | 22 March 2024 | |
CASE MAY BE CITED AS: | Viney v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 309 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine – paragraph (a) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pt Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr B Johnson | Slater and Gordon Lawyers |
| For the Defendant | Mr L Howe | Wisewould Mahony |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in the course of his employment and in particular in an incident which occurred on or about 9 March 2018 (“the accident”) while he was employed with Jacuzzi Hoppers Crossing Pty Ltd (“the employer”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to part (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a) permanent serious impairment or loss of a body function; …
… .”
4The physical impairment relied upon is the function of the spine.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity”, which must be “serious” – that is, if the plaintiff is to succeed in his claim, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases, in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2] Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
10By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
11In reaching my conclusion in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor & Anor.[5]
[4] (2005) 14 VR 622
[5] (2006) 14 VR 602
12The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his former son-in-law, Mr Lachlan Bentley, sworn on 21 December 2023. Mr Bentley was not required to attend for cross-examination.
13In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
14The plaintiff was born and grew up in Geelong. He is married and has two school-aged children from that marriage.[7]
[7]Ex P1, p6
15He completed Year 10, before commencing a mechanical apprenticeship with Forest Motors in Lara. He completed two years of the apprenticeship before the business folded and then he moved to the Gold Coast, where he worked as a fencer for around three years in Burleigh Heads. He then worked in a role manufacturing spas for Lifestyle Spas for around five years, before moving into the pool service industry. He worked for Blue Wave Pools and Spas for around two years, servicing pools, before moving to Geelong. He then worked for Barwon Pool Shop, servicing pools for about two years.
16He commenced employment with the employer on or about 24 September 2007, as a service manager.[8]
[8]Ex P1, p7
Other medical conditions or injuries
17The plaintiff suffers from Type 2 diabetes, having been diagnosed with this condition in around 2015. He is on medication to control this condition and he continues to take that medication.[9]
[9]Ex P1, p7
18Subsequent to the accident, on 12 November 2020, he had a minor fall from a ladder, which was investigated at hospital.
19Other than that, he had occasional backaches over the course of his employment with the employer, but remained fit and well prior to the accident.
20On or about 12 January 2023, he suffered a heart attack and was admitted to the Geelong Hospital. For the first few months after this event, he was significantly restricted in his physical activity, but has slowly regained his physical health and is now much better.
21As a result of the heart attack, he needs to be cautious in what he undertakes physically and to avoid lifting heavier weights or over-exerting himself.[10]
[10]Ex P1, p16
The accident
22The plaintiff described the circumstances of the accident in the following way:
“My role involved servicing and repairing spas, as well as assisting in the delivery of spas which often weighed between 300 and 400 kg. A special trailer was later purchased for moving and carting spas, however I continued to be required to move spas around the shop as required. I initially experienced lower back pain in around 2011, and attended Corio Bay Medical Centre. I then attended Corio Bay Physiotherapy for treatment around the end of March 2011.
On or about 7 March 2018 I attended Dr Malbody at Corio Bay Medical Centre as I had been experiencing back pain for around four days, particularly after bending at work.
My work involved a lot of manual handling and lifting of heavy and awkward weights. Throughout the course of my employment I suffered injury to my lower back on performing manual handling of spas and spa products on or about 9 March 2018 whilst lifting a pool pump from the floor in the shop to place in my van for delivery the next day(sic). The pool pump was heavy and I had not previously received training in lifting by my employer. I experienced immediate pain and a popping sensation in my lower back. It was towards the end of the day, so I told my manager about my injury and went home. I was in significant pain but thought I would get better.”[11]
[11]Ex P1, pp7-8
23He attended Wellbeing Chiropractic on or about 21 March 2018 for treatment of his lower back but did not continue with that treatment. On or about 29 March 2018, he attended Myers Street Medical Centre and was prescribed Endone for pain relief. He was referred for a CT scan of his lumbar spine. He was certified unfit for work, but at that stage, did not want to pursue a WorkCover claim, as he hoped he would get better.[12]
[12]Ex P1, p8
24On or about 3 April 2018, he underwent a CT scan of his lumbar spine and subsequently saw his general practitioner, who informed him there was a broad-based paracentral disc bulge at the L5-S1 level and a right-sided paracentral disc protrusion at the L4-S1 level, touching the L5 nerve root.[13]
[13] Ex P1, pp8-9
25He was referred on or about 5 April 2018 for a CT-guided epidural injection for his lumbar spine, which he underwent on or about 17 April 2018. This provided some relief for his back pain, but, over time, the pain returned. His general practitioner suggested he try alternative duties, but he remained in pain in his lower-back area.[14]
[14]Ex P1, pp8-9
Evidence concerning the consequences of the Plaintiff’s injury
26The plaintiff swore two affidavits, the first dated 21 September 2022 and the second dated 20 December 2023.
27In summary, the plaintiff’s evidence as to the pain and suffering consequences with which he presently experiences, is as follows:
Experience of pain
(a) he continues to experience back pain on a daily basis. This pain does not go away. The pain continues to occur at around 6-7/10 and continues to be worse with activity. As best he can, he avoids bending, lifting, pushing, pulling and twisting of his torso. This is primarily due to his lower back pain. He is also conscious of his need to avoid over exertion due to his heart condition;[15]
[15]Ex P1, p17
(b) he experiences stabbing pain in his lower back which, when it occurs, extends into his right leg. This type of pain can happen several times a day, without any particular activity causing it;[16]
[16]Ex P1, p17
(c)he continues to work in a self-employed role in pool and spa servicing. Prior to his heart attack in January 2023, he was working around ten hours per day over five days per week. He has since reduced this to eight hours a day over five days per week;[17]
[17] Ex P1, p16
(d) he continues to avoid the lifting of heavy items. He was already avoiding this activity before his heart attack. The pain in his lower back continues to restrict his ability to perform his work in pool and spa servicing, in particular, twisting, lifting, bending and forward leaning. After his heart attack, his former son-in-law began assisting him in his business, as he was unable to do anything. This assistance was available up until around October or November 2023. Since Mr Bentley stopped assisting him with the spa and servicing work, he is trying to manage as best he can on his own;[18]
[18]Ex P1, pp16-17
(e) he experiences pain every day with his work. He manages to perform this work because he can “self pace” (sic), stop and rest as required, and stretch his back if necessary;[19]
[19]Ex P1, p6
(f) the pain he experiences is worse in the mornings and he wakes up with a sore back;[20]
Treatment and medication
(g) he continues to see his general practitioner, Dr Jacqueline Ford, at Lara Medical Centre. He goes on about a monthly basis to obtain medication and for checkups, or more often if required;[21]
(h) since the accident, in addition to taking medication and having radiological investigations, he has undergone the following treatment:
(i)27 April 2020: a CT-guided lumbosacral spine injection at the L4-5 level;[22]
(ii)4 August 2020: a CT-guided lumbosacral spine injection to the S1 nerve root;[23]
(iii)5 November 2020: a nerve root sleeve injection and pulsed radiofrequency with local anaesthetic and steroid injection in the right S1 nerve root;[24]
(iv)26 May 2021: a right medial branch blockade;[25] and
(v)26 October 2021: a radiofrequency neurotomy;[26]
[20] Ex P1, p12
[21]Ex P1, p16
[22] Ex P1, p24
[23] Ex P1, p24
[24] Ex P1, p32
[25] Ex P1, p34
[26] Ex P1, p36
(i) in May 2020, he was referred by Dr Ford for physiotherapy and began attending a Keiser physiotherapy program. He continued this until around December 2021. His attendance was intermittent, due to COVID restrictions;[27]
(j) he currently takes around eight paracetamol tablets per day. These tablets do not take the pain away, but “just lessens it a little”. He takes amitriptyline, 10 milligrams once per night. He used to take Mobic, 15 milligrams, one tablet per day, but has been unable to continue taking this medication since he suffered a heart attack;[28]
Sleep
(k)at night, his pain is bad. Previously, his sleep was badly affected by pain and he was woken at night, on average two to three times per night. When he woke up, he would take medications, such as paracetamol, to try and control the pain before he returned to sleep. By reason of his back pain, he has difficulty finding a comfortable position to sleep in. As a result, he wakes unrefreshed in the morning;[29]
(l) he has begun taking amitriptyline to assist him with sleep. Without this medication he would continue to be woken by pain during the night. Now, if he does wake up, he will take a Panadol as required during the night. When he wakes up, it is due to pain in his lower back;[30]
[27] Ex P1, p10
[28]Ex p1, pp11 and 16
[29]Ex P1, p12
[30]Ex P1, p17
Activities of daily living
(m) he finds that walking longer distances causes him pain in his lower back and he needs to sit and rest. His mobility is more limited now because of his lower back injury. In particular, he tries to minimise walking on uneven surfaces.[31] Occasionally he will use ladders, but tries to avoid this where possible. If he can take a lift rather than the stairs, he will do so. That is primarily because of the pain he experiences in his lower back. He also tries to avoid any activities involving over exertion due to his heart condition;[32]
(n) prior to the accident he was more involved in household tasks such as shopping, cooking and cleaning. He still tries to help, but the majority of this work is now done by his wife, as these activities can cause him pain in his lower back. He finds that vacuuming, washing clothes, gardening, changing beds and cleaning around the house, increases the pain in his lower back;[33]
(o) he is also more restricted in his gardening activities, but self-paces so as not to aggravate his back pain. He used to mow the lawn with a push mower, but since the accident he has purchased a ride-on lawnmower, which minimises the need for lifting, bending and twisting-type activities;[34]
(p) he lives on a one-acre farm and has an excavator that he uses from time to time. This activity does not require much by way of physical exertion and he generally only does this for short periods, to move soil;[35]
(q) he used to enjoy performing handyman work around the home, such as building retaining walls and fixing things around the home. He is now restricted in his ability to lift, bend, twist and use ladders, and misses the satisfaction of completing these projects in the way that he used to do;[36]
(r) he used to go trail-bike riding about once a month in the bush near his home. He now avoids this activity because of the pain in his lower back from the jolting and jarring caused by off-road riding. He occasionally uses his trail bike to travel on the road, but experiences pain when he does this just by putting his leg over the bike. He avoids this wherever possible.[37] He has tried to do this activity on several occasions since he swore his first affidavit, but had difficulty coping with the pain in his lower back and no longer enjoys it;[38]
(s)he finds that he is more irritable around other people and has less patience as a result of the pain; [39]
(t) he feels that he can no longer enjoy life in the way that he used to because of the pain that he experiences from his back injury. Unfortunately, he expects to continue to experience this pain for the foreseeable future, which makes him very sad and upset about the things that he will miss.[40]
[31]Ex P1, pp12-13
[32]Ex P1, p17
[33]Ex P1, p13
[34]Ex P1, p13
[35]Ex P1, p18
[36]Ex P1, p13
[37]Ex P1, p13
[38]Ex P1, p18
[39]Ex P1, p13
[40]Ex P1, p13
28Under cross-examination, the plaintiff gave the following relevant evidence:
(a) the salt required for dosing up pools comes in 20-kilogram bags. Often multiple bags of salt are required.[41] The salt needs to be unloaded from the back of a truck onto a trolley and taken into the pool area;[42]
[41]Transcript (“T”) 7-8
[42]T8, Lines (“L”) 5-7
(b) he remained at work with the employer until about October 2018. He was supposed to be on light duties, “but that didn’t happen”. He began his own business in around October 2018, when he became a sole trader cleaning pools;[43]
[43]TT9-10
(c)as a sole trader, he often worked twelve-hour days over five or six days a week. This would be “at my own pace”. He agreed that he may do more hours than this in the summertime;[44]
[44]T9, L9-16
(d) his duties include service work, pool cleaning, installing pumps, and putting salt into pools;[45]
[45]T9, L19-23
(e) when clients need salt for their pools, he usually directs the customer to purchase the salt and he tells them how many bags to buy. He gets the client to put the bags into the pool area;[46]
[46]TT9-10
(f) to the extent that he is ever required to buy salt himself, that might be about five bags per week;[47]
[47]T10, L4-9
(g) he agreed that he has installed heat pumps as part of his new business;[48]
[48]T10, L18-20
(h) he usually has hired help to assist him with that task;[49]
[49]TT10-11
(i) at all times since 2018, when he started his business, if he is installing heat pumps, he would arrange help to do so;[50]
[50]T11, L25-31
(j) it was suggested to him that if a heat pump needed to be installed, that was something that he would do himself, if necessary. To this, he replied, “I wouldn’t lift it myself, I couldn’t left (sic) it myself”;[51]
[51]T12, L6-8
(k)an average week of work for the plaintiff includes cleaning pools, servicing spas, vacuuming, scooping, emptying baskets and testing water as a general service. With spa servicing, it involves the same thing, but above ground, namely vacuuming, cleaning filters and testing the water. He also repairs spas and might replace pool lighting;[52]
[52]T12, L9-24
(l) it was suggested to the plaintiff that prior to Mr Bentley being employed in early 2023, he used to perform all of these duties himself. To this, he replied, “unless it was heavy lifting”. He agreed there had never been any reason for him to take a day off with back pain while performing the duties that he did;[53]
[53]TT13-14
(m) he agreed that other than lifting heat pumps from the back of a truck or from a vehicle, he did not require any further assistance from anyone else;[54]
[54]T14, L4-6
(n) he denied that he would often be on top of a roof replacing the rubber hosing for solar setups. He said, “I sell the heat pump rather than do solar heating”;[55]
[55]T14, L21-23
(o) he agreed that if an existing customer came to him and needed him to replace or fix an aspect of their solar heating, he would do that;[56]
[56]T14, L27-29
(p) he agreed, for this purpose, he might have to go up on a roof. To this, he replied:
“Yes. That’s when I fell off a ladder … Mainly I only choose flat roofs or very low … [I] always had issues with my back doing that and I have to climb the ladder with my left leg mostly. So I press on my left leg all the time to get up a ladder. I still use my right leg but most of the weight is on my left leg. … .”[57]
[57]TT14-15
(q) he agreed that once he is up on a roof, there is no difficulty “if it’s a flat roof, no issue at all”;[58]
[58]T15, L9-10
(r) he said that when he is up on a roof, “I would mostly be sitting down doing it there”. It was put to him that when he is doing a plumbing job or servicing a pump, there are often times when he is bending over the equipment. To this, he replied, “I’d be on my hands and knees”;[59]
[59]T15, L11-15
(s)it was suggested to him that sometimes he has to get under a house. He replied: “Never get under a house. I’ve never got under a house;”[60]
[60]T15, L18-20
(t) when it was put to him that there are times when he must got down the side of a house and manoeuvre his body into a small space, he replied: “I’ve just got to do it in my own way at my own pace.” He did agree that some jobs can be “quite awkward”;[61]
[61]T15, L16-26
(u) he clarified that when he talks about doing things in his own way at his own pace, he is effectively saying that he modifies the way he would normally have done his work. He does this because otherwise it would be too difficult for him to complete the task. He said that the evidence he was giving to the Court is that he can do these things, but it is not the way that other people might do them, “it’s a slower way”;[62]
[62]TT15-16
(v)the reason he modifies these tasks is so that his back does not hurt;[63]
[63]T16, L12-13
(w) when he is up a roof and sits down to do his work, that is so there is no bending over. He said he modifies his work to take account of the fact that he has pain. This is how he is able to keep working;[64]
[64]T16, L14-20
(x)he tries to avoid bending wherever he can;[65]
[65]T16, L21-23
(y)it was suggested to him that his work does involve some repetitive bending and lifting, such as picking up pool pumps or picking up salt bags to use to dose a pool. He denied that these activities were regular and said: “No. Like I said, I only rarely move salt … one or two bags. You’re not putting a lot of salt in pools all the time … it’s not all day every day;”[66]
[66]T17, L12-26
(z)he agreed that he reduced his working hours after he had a heart attack in January 2023;[67]
[67]T19, L21-24
(aa) he presently works five days per week, leaving home around eight in the morning and arriving home between 4.30pm and 5.00pm;[68]
[68]T19, L12-15
(bb) between 2018 and up until 2023, when he had his heart attack, contrary to what was in his affidavit, he was actually working six days a week and up to twelve-hour days;[69]
[69]T19, L25-28
(cc) he agreed that this amounted to a significant workload.[70] He reduced his hours because of his heart attack and not because of his back;[71]
[70]T19, L29-30
[71]TT19-20
(dd) he employed Mr Bentley as a contractor. He was not employed on a full-time basis. Initially the plaintiff said that he employed Mr Bentley every day. He then qualified this evidence by saying “only mostly when I needed him to lift stuff. After I had a heart attack there wasn’t much I could do, so I was teaching him the service work.” When pressed on this issue, he said that Mr Bentley was working “most weeks every day”;[72]
[72]T20, L13-22
(ee) later, when further pressed on this issue, he clarified that between February and October 2023, Mr Bentley was employed “as required”;[73]
[73]T21, L6-10
(ff) bank statements evidencing payments to Mr Bentley were examined by the parties. It was put to the plaintiff that during the whole period between February and October 2023, the bank records indicated that there was not one week in which Mr Bentley was paid for full-time hours. The plaintiff did not accept this proposition, clarifying: “Sometimes I had cash on me and I paid him some cash as well.” The plaintiff denied that he had changed his evidence on this point. The plaintiff agreed that he could not say with any precision whether Mr Bentley worked full time or not during this period;[74]
[74]TT28-29
(gg) he agreed that after his heart attack there was a period when he was unable to do many tasks, but he was able to build back up to the point where he was back doing what he was before the heart attack, albeit doing less hours;[75]
[75]T29, L12-18
(hh) he was taken to Mr Bentley’s description of the work involved in being a pool and spa technician. It was put to him that the work described there was inherently heavy work. The plaintiff replied: “For him, yes. If that’s what he said, yeah, correct.”[76] It was suggested to the plaintiff that save for installing heat pumps which he had someone to assist him with, the duties he would perform, even when Mr Bentley was not there, were similar to those which Mr Bentley described. To this proposition he replied: “Incorrect;”[77]
[76]T29, L21-31
[77]T30, L5-8
(ii) he repeated that while Mr Bentley was employed, Mr Bentley would do all the heavy lifting and he would do the lighter jobs, such as plumbing, which is “just PVC plumbing and assembly”;[78]
[78]T30, L12-21
(jj) these days he would only install a heat pump about once per month as the work has “slowed down”;[79]
[79]T30, L22-27
(kk) he has not returned to being a handyman after the accident. He said that he is “very cautious on what I do with me back. I don’t want the first pain to come back”;[80]
[80]T31, L16-22
(ll) the reason that he had to change from a push mower to a ride-on mower, was that pushing the push mower through thick grass and walking for long periods was a problem;[81]
[81]T31, L25-27
(mm)he denied that he walks for long periods of time as a usual part of his work;[82]
[82]T31, L28-30
(nn) he agreed that the only thing he does now as far as landscaping is using a ride-on mower and using an excavator to dig or move dirt;[83]
[83]T32, L3-6
(oo) he agreed there was not a whole lot of time to do landscaping around his house, after working six days a week and long hours;[84]
[84]T32, L12-15
(pp) he has attempted to return to trail-bike riding, but only on the road, not in bush or on rough roads. He agreed that it is the lifting of his leg over the bike that causes the most pain. He said that riding on the road is not as bad because it is smooth. He said that he has not tried to get back into off-road trail-bike riding;[85]
[85]T32, L18-26
(qq) apart from not being able to do trail-bike riding, he is unable to do sports with his kids as part of their recreation;[86]
[86]T33, L1-8
(rr) he used to go trail-bike riding “all the time, especially with my other boy”. Now he does not go at all. He just takes his children to the motocross track. He said his children play roller hockey every Tuesday night. He takes them to practice and watches. He cannot help them, interact with them and play with them as he would like to. He said, “I’d love to be involved but I’m too scared of injuring my back falling off skates”;[87]
[87]T33, L11-27
(ss) he was taken to Facebook entries which depicted him holding a fence post-hole digger as part of a landscaping project on his property. He said he was only holding the post-hole digger. He agreed that he may have been using it in one of the photographs. He said, “it was a few years ago”;[88]
[88]T36, L7-26
(tt) he said that Mr Bentley helped him with this project. Mr Bentley poured the concrete and did the heavier work involved in constructing a retaining wall. He said that he was able to operate the excavator to move dirt around for a lawn to be put down. He agreed he was able to undertake these tasks comfortably;[89]
[89]TT36-37
(uu) he estimated that the post-hole digger weighed around 25 kilograms. He said that he had lifted it in the past;[90]
[90]T38, L2-8
(vv) he denied that what he was now saying was directly contrary to evidence he had given before lunch, where he said he had not returned to landscaping after his injury. He said, “I don’t call that landscaping … With machinery … Holding a post … it wasn’t heavy”;[91]
[91]T38, L9-22
(ww) he said that this is the only handyman job that he has done around the house;[92]
[92]T39, L8-12
(xx) he agreed that prior to his heart attack he was able to do gardening. He said that he had not been digging holes, but that he could put in plants “and stuff like that”. He agreed that he was able to do that without restriction;[93]
[93]T39, L18-31
(yy) it was put to him that his sleep has improved over recent times. In response to this, he responded, “only with medication, yeah”. It was suggested to him that he was now able to sleep eighth hours at night. To this he replied, “Yes, I have of late.” He said that prior to his heart attack, he was up at 4 o’clock in the morning. It was put to him that his difficulty with sleep related in part to the stress of running a successful business that would keep him up at night. To this he replied: “Could be but I couldn’t say for sure;”[94]
[94]T40, L2-17
(zz) he was shown an entry from a Facebook page which depicted solar hoses up on a roof. It was put to him that he had installed the new solar heating depicted in that photograph. In response to this, he replied, “yes, with assistance”. He said his old neighbour had helped him. He said the neighbour had been paid. He said that he sat down while he did that job. When he was challenged in relation to that proposition, he said, “I did the pipe work at the end, that was my job … Sitting down and joining all the little hose”.. He was asked whether he had any involvement in rolling out the solar heating hosing. In response to this, he replied: “None at all, no;”[95]
[95]TT41-42
(aaa)he was shown a photograph from a Facebook page extract which it was suggested depicted him “bending over the side of the spa”. To this, he replied, “I’m leaning over, yes”. It was suggested to him that this was a posture that he regularly adopts at work. He said that this is true, “[i]f I’m leaning on something, yes”;[96]
[96]T42, L17-23
(bbb)he was shown a photograph from a Facebook page which depicted a ute loaded up with salt. It was suggested to him that it was common for him to have his ute loaded up with salt bags in that manner. He said: “That was a pick-up of salt, yes.” He agreed that he was involved in loading that ute on that occasion. He said he had help from his old neighbour with this task;[97]
[97]T43, L11-22
(ccc)since starting his own business he has made more money than he would have, had he remained employed by the employer;[98]
(ddd)he intends to continue running his business as long as he can. He agreed that there is no reason he can see at present, which would preclude him from being able to build the business;[99]
(eee)in 2022, he had $548,432 worth of sales revenue;[100]
(fff) at that time he had his old neighbour helping him on and off. When asked about the neighbour’s involvement he said: “Just helping me move heavy equipment … Sometimes once or twice a week.” He said that other times he did not get his neighbour to help him at all;[101]
(ggg)since he incorporated his business, he is now paid a salary out of the business;[102]
(hhh)in 2023, the revenue for the business was $447,498. He agreed that the $120,000 claimed there as payroll, is the amount that is paid to him;[103]
(iii) it was suggested to him that he is still involved in the majority of the household tasks such as shopping, cooking and cleaning. He said that he still does those chores but he does them “with pain”;[104]
(jjj) it was suggested to him that he was no longer having any physiotherapy treatment. In response to this, he replied:
“No, I’ve been waiting for approval to start Kieser again, because I was doing Kieser and that was the best thing for my back but then COVID lockdowns happened and just locking down, opening up, locking down and it finished. … .”
[98]T44, L1-6
[99]T44, L7-11
[100]T44, L14-15
[101]T44, L12-26
[102]T44, L27-30
[103]T45, L1-8
[104]T45, L11-24
(kkk)he sought approval to resume Kieser therapy back in September 2023, but has not heard anything. He said that he had followed this up with his general practitioner. He said that in the absence of being unable to do Kieser, he does his home exercises, bending, stretching;[105]
[105]T46, L14-27
29Under re-examination, the plaintiff gave the following evidence:
(a) he does not like taking medication every day for his pain;[106]
[106]T47, L23-29
(b) the amitriptyline assists him to stay asleep;[107]
[107]TT47-48
(c)prior to his injury, he was “just a ball of energy, I could do anything”;[108]
[108]T48, L18-21
(d) he is now never pain free;[109]
(e) despite taking the amitriptyline, he still occasionally does have interrupted sleep, although the amitriptyline has helped with that;[110]
(f) prior to his injury, he did not have any restrictions on his work capacity;[111]
(g) because of the fact that he must modify his work and work at his own pace, “I do things differently. So I do it slower and I think about how I’m going to bend or anything like that.” He agrees that this increases the time that he takes to perform his tasks;[112]
(h) he was asked how it feels not being able to participate in his children’s recreational activities. To this, he replied: “A little deflated, a bit depressed about it, but I still go along there and encourage there (sic) and watch them and everything;”[113]
(i) now, when he works on his property, he has to use machines because “I can’t do it by hand much any more”. When asked what prevents him from doing those tasks, he replied “Pain in my back”;[114] and
(j)the housework and gardening that he does is not pain free.[115]
[109]T48, L22
[110]T48, L23-27
[111]T49, L8-11
[112]T49, L12-18
[113]TT49-50
[114]T50, L21-31
[115]T59, L1-2
The lay witness – Mr Lachlan Bentley
30The plaintiff relied upon an affidavit sworn on 21 December 2023 from Mr Lachlan Bentley. Mr Bentley is a former employee of the plaintiff and also his former son-in-law. In his affidavit, Mr Bentley swore to the following relevant matters:
(a) between January and October 2023, he was employed by the plaintiff as a pool and spa technician;[116]
(b) the work of the plaintiff included servicing pools, fixing spas and installing pool equipment like heat pumps and solar heating. The work was physically demanding and required repetitive lifting of heavy weights, repetitive bending, twisting and use of his spine;[117]
(c)when he first started work for the plaintiff, the plaintiff told him that he needed Mr Bentley to work for him to perform more of the lifting and manual labouring work because his back was “poor” and that he had had difficulty performing this work without experiencing significant pain in his back;[118]
(d) during the time that Mr Bentley was employed by the plaintiff, the plaintiff would regularly complain about back soreness and strong pain, even from leaning forward just to tighten bolts on equipment or fencing;[119]
(e) the plaintiff would routinely request Mr Bentley to lift heavier items while he was employed and any work that required awkward or sustained postures or force through the back, was performed by Mr Bentley;[120]
(f) if Mr Bentley and the plaintiff installed heat pumps, it would be Mr Bentley who did the lifting onto and off the trailer;[121]
(g) Mr Bentley would take solar hose rolls or rubber onto a roof and it would be Mr Bentley who would be crawling under decking or doing other tasks that were awkward or difficult. The plaintiff would assist as best he could, but Mr Bentley observed that he was limited in what he could do because of his back pain;[122]
(h) the plaintiff would complain of pain on a daily basis, particularly in the morning, “he would already be complaining about his back”. They would regularly stop at service stations to buy Panadol for the plaintiff, often in the afternoons;[123]
(i) if they were installing heat pumps, Mr Bentley often observed the plaintiff having difficulty with bending over to hook up piping, and the plaintiff would have to stand up and stretch his back. In that instance, Mr Bentley would “routinely take over” from the plaintiff on this task;[124] and
(j) outside of work, he observed the plaintiff struggle to lift his grandson, and the plaintiff described pain after short periods of time with physical activities involving his lower back.[125]
[116]Ex P1, p20
[117]Ex P1, p21
[118]Ex P1, p21
[119] Ex P1, p21
[120] Ex P1, p21
[121] Ex P1, p21
[122]Ex P1, p21
[123]Ex P1, p22
[124]Ex P1, p22
[125]Ex P1, p22
The medical evidence
31There were numerous medical reports contained in the tendered material. Both parties provided reports from medico-legal experts. A précis of the of the relevant medical material is set out below.
The Plaintiff’s medical evidence
32The plaintiff relied on two reports from Dr Jacqueline Ford, general practitioner, the first dated 31 January 2023 and the second dated 1 December 2023. In the first report, Dr Ford set out the following matters:
“Regarding … [the plaintiff’s] mechanical back pain with S1 nerve root impingement injury. Since my last report dated May 2021, … [the plaintiff] has been under the management of Pain Specialists through Pain Matrix Geelong. He has also been reviewed for a neurosurgical opinion with Mr James King at Geelong Neurosurgery.
Treatments with Pain Matrix have included injections and radiofrequency ablation, unfortunately these have been without benefit to his symptoms. He has been tr[i]alled on medications including NSAIDs and paracetamol. … [The plaintiff] has also undertaken a group pain management program completing in November 2022.
Upon his recent review with Mr King [in] August 2022, his opinion and advice was that surgery is unlikely be of benefit. Recommended treatment continues to be of a conservative approach with regular physiotherapy
…
Regarding … [the plaintiff’s] prognosis; his chronic back pain has not stabilised and continues under pain specialist treatment.
His movement continues to be restricted by pain in lifting, twisting, bending, stooping, pushing, pulling and repetition of these. He is also restricted in kneeling, squatting, crouching. Prolonged sitting, walking, standing are restricted. Walking up inclines, stairs and ladders are restricted. It is expected he would avoid these activities iIf they are exacerbating pain.”[126]
[126]Ex P1, p41
33In the second report from Dr Ford, she stated her opinion that the plaintiff’s current symptoms from his back injury are now stable. In particular, she noted:
“● …he continues to suffer lower back pain, with associated nerve root compression symptoms in his legs. His current treatment regimen involves regular GP review and medication. He is prescribed amitriptyline for regular analgesia.
● … I expect his prognosis is of long term fluctuating pain symptom severity, with resulting impact on his ability to do mechanical labour tasks.
…
● It is my opinion … [the plaintiff] suffers minor impairment to his ability to perform social, domestic and recreational activities.
●It would be expected he may suffer an exacerbation of pain from activities that involve physical lifting and prolonged sitting
●This is expected to be a long term implication of his back injury.”[127]
[127]Ex P1, p47
34The plaintiff relied upon a report from Mr Joshua Priest, physiotherapist, dated 14 May 2021. In that report, Mr Priest confirmed that the plaintiff appeared to have sustained:
“… an injury to his disc at the L5/S1 level on the right side of his lumbar spine leading to the radicular leg symptoms and local back tenderness as … confirmed on CT scan … .”[128]
[128]Ex P1, p52
35The plaintiff relied upon a report from Mr James King, consultant neurosurgeon, dated 2 June 2020. In that report, Mr King stated:
“This 50 year old man has recurrent/residual right S1 radiculopathy following a right sided L5/S1 disc prolapse.
This man bent down to pick up a pool pump in March of 2018 and developed sudden onset lower back pain and noticed a pop in his lower back. The next day he was very stiff and then developed severe right sided sciatica, with pain radiating down the leg, through the buttock, into the posterolateral thigh and calf and into the foot. He had a Cortisone injection in May of 2018 with good relief and a further injection in September of 2018 with improvement. Symptoms were good for a period of time until October of 2019 when they became more significant. At that time he had a further injection, which really did not provide any relief.
He now complains of midline lower back pain radiating through the buttock into the thigh, but does not extend into the foot. There are no left leg symptoms, no weakness or sensory disturbance and no bowel or bladder disturbance. He is managing to work full-time but is somewhat reliant on the medication to do so.
…
On that basis, … [the plaintiff] in (sic) not keen on pursuing surgical treatment. I have suggested ongoing conservative management with weight loss, regular exercise and avoidance of aggravation of injury. He can use intermittent analgesia as required. If his sciatica were to become a significant recurrent problem, I would be happy to review him and he could undergo surgery in that circumstance.”[129]
[129]Ex P1, p50
36The plaintiff relied upon two reports from Dr Brett Chandler, pain specialist, the first dated 21 October 2021 and the second dated 1 June 2023. In the second report, Dr Chandler made the following observations:
“… The diagnosis of … [the plaintiff] remains an L5-S1 disc prolapse, producing right-sided S1 radicular pain. This has progressed to also include facet joint arthropathy that was diagnosed by medial branch blocks on the 26th May 2021. Since the last report, … [the plaintiff] has been through a Pain Management Program.
The prognosis for … [the plaintiff] is ongoing pain at similar levels that he has at the current time and current functional levels.
It would be my opinion that … [the plaintiff] is unlikely to need future surgery or other medical treatments. It is also my opinion that … [the plaintiff] is unlikely to have any long-term deterioration of the condition and that the condition is likely to stay at similar levels to what it is currently.
…
… [The plaintiff] works 8 to 10-hours a day, 5-days a week. This does reach his capacity and has impacts on his ability to perform activities outside the work capacity.”[130]
[130]Ex P1, p58
37The plaintiff relied upon a medico-legal opinion provided by Professor Richard Bittar, consultant neurosurgeon, dated 15 September 2023. In that report, Professor Bittar diagnosed the plaintiff as presenting with lower leg pain and right leg pain secondary to L5-S1 intervertebral disc prolapse. He said that the plaintiff shows clinical evidence of S1 radiculopathy on the right. Professor Bittar thought that the plaintiff’s employment had been a significant contributing factor. He said: “Specifically, his employment with Jacuzzi Hoppers Crossing Pty Ltd has been and remains a significant contributing factor to his lumbar spine condition.”[131] He thought that the plaintiff’s symptoms and treatment had been stable for more than twelve months.[132] In relation to the effects of the back pain and leg pain on the plaintiff, Professor Bittar noted that the plaintiff socialises moderately less than he did previously due to constant pain, as well as difficulty sitting or standing for long periods of time. He noted the plaintiff’s recreational activities are moderately impacted. He noted the plaintiff had previously enjoyed motorbike riding and a variety of other activities with his younger children. He noted that the plaintiff’s sleep is moderately impacted and the plaintiff frequently experiences daytime tiredness. He said that the plaintiff’s domestic activities, namely his ability to undertake gardening and shopping, is impacted, and the plaintiff relies heavily on his wife for assistance with these. He thought that, overall, the plaintiff’s quality of life was “moderately diminished”.[133] Professor Bittar thought that the plaintiff should continue with his current treatment regime. In relation to the plaintiff’s prognosis, he commented that the plaintiff was likely to experience pain and disability at the current levels into the foreseeable future. He thought that the plaintiff’s L5-S1 intervertebral disc is likely to degenerate faster than it otherwise would with the ageing process.[134]
[131]Ex P1, p62
[132]Ex P1, p61
[133]Ex P1, p60
[134]Ex P1, pp62-63
38The plaintiff relied upon a report from Mr Roy Carey, orthopaedic surgeon, dated 2 March 2022. This report was originally provided to the defendant for the purposes of an impairment assessment. In that report, Mr Carey made the following observations:
“… [The plaintiff] continues to have right-sided low back discomfort which varies according to posture, activity and temperature. … He has constant pain best described as right sciatica which goes down to the foot and toes, particularly the outer toes. He has intermittent tingling. Generally he feels better on the move, but does limp when he first gets out of a chair or out of the car. … He is able to self-care. He undertakes most home duties. … He had a subsequent fall from a ladder which produced an exacerbation but not an aggravation. … He was on and off work following the injury until he resigned from this employer in late 2018 and commenced his own pool cleaning business which is much lighter, and he remains in control of his own hours. …[135]
His current situation was produced by the subject injury. His injury at work continues to materially contribute to his current situation. …[136]
… [The plaintiff] has ongoing back pain and right sciatica due to an unresolved right L5/S1 disc protrusion. He has ongoing signs of radiculopathy (an absent right jerk). …[137]
The prognosis is for continued discomfort into the foreseeable future without any alteration to his treatment plan. …[138]
He is not likely to suffer injury/harm by engaging in appropriate occupational and daily living activities – he is working appropriately at present. … The condition is now stable and is unlikely to change substantially. …[139]
… [The plaintiff] seemed a pleasant and genuine witness to his complaints with no evidence of embellishment. … .”[140]
[135] Ex P1, p75
[136] Ex P1, p76
[137] Ex P1, p77
[138] Ex P1, p77
[139] Ex P1, p77
[140] Ex P1, p78
The Defendant’s medical evidence
39The defendant relied upon two reports from Mr Graeme Brown, consultant orthopaedic surgeon, the first dated 7 December 2022 and the second dated 12 December 2023.
40In the first report, Mr Brown noted that the plaintiff currently has right-sided back pain which radiates to his buttocks. He said that the plaintiff describes the pain as “constant”. Using the Visual Analogue Scale, the plaintiff rated the constant pain as 5/10. The plaintiff reported that the back and buttock pain is aggravated by walking, standing for about thirty minutes and sitting for fifteen to thirty minutes. The plaintiff reported that when he is seated, he has to move around and often moves his legs. He said that when the pain is more severe, he rates the pain at 9/10.
41Mr Brown noted that the plaintiff reported having pain at night. At that time, the plaintiff reported that the pain “typically wakes him up at 4 am. He doesn’t try to get back to sleep after the pain wakes him up. Most nights … [the plaintiff] sleeps between five to six hours”.[141]
[141]Ex D1, p6
42Mr Brown noted that the plaintiff is now self-employed, working on repairing and servicing spas. He said that the plaintiff does no installation, “which means he avoids heavy lifting”. He noted that the plaintiff continues to help out domestically and cleans and cooks. He said that the plaintiff “has not cut back on these activities”. He noted that the plaintiff can no longer mow the lawn using a push mower. He noted that the plaintiff has stopped digging and doing any landscaping around his garden. He noted that the plaintiff had enjoyed dirt-bike riding as his main leisure activity and he would do this every weekend; however, he has not returned to dirt-bike riding since the accident, because he is worried that the jolting will flare-up his back pain.[142]
[142]Ex D1, pp6-7
43Mr Brown confirmed that the plaintiff had suffered a right S1 radiculopathy due to a right-sided L5-S1 disc prolapse. He did not detect the presence of any functional component or psychological reaction to the plaintiff’s physical condition.[143]
[143]Ex D1, pp8-9
44In the second report, Mr Brown reported that the plaintiff told him he still has right-sided back pain:
“… but the pain now radiates more down the outside part of his leg into his foot. … [The plaintiff] noticed that the pain was more extensive when he left the hospital following his heart attack and subsequent heart surgery.
… [The plaintiff] feels the pain is worse because he no longer takes Meloxicam. Using a visual analogue scale (VAS), … [the plaintiff] rates this constant pain as 7/10. … .
In addition to the pain, … [the plaintiff] noticed pins and needles in his right foot two months ago. These symptoms have persisted. … .”[144]
[144]Ex D1, p11
45Mr Brown noted that the plaintiff’s general practitioner wanted him to recommence physiotherapy to help his back and leg pain. He noted that there has been no WorkCover approval for this treatment.[145] Mr Brown thought that with the plaintiff’s more extensive symptoms and the presence of neurological symptoms in his foot (objective signs of which had been observed by Mr Brown, namely reduced back movement, a positive straight leg raise and reduced sensation to light touch in the L5 dermatome), the most likely diagnosis is a right L5 nerve root compression, possibly due to foraminal stenosis.[146]
[145]Ex D1, p12
[146]Ex D1, pp12-13
The Plaintiff’s credit
46During cross-examination, the plaintiff was challenged in relation to some aspects of his evidence, in particular, his ability to complete particular tasks, such as installing heat pumps and other heavy equipment as part of his usual employment duties, his ability to garden and landscape in his spare time and the true extent of his interrupted sleep.
47In relation to the first matter, the plaintiff maintained that, at all times following his workplace injury, when he was required to complete any heavy task, such as installing a heat pump, loading a ute full of salt or engaging in awkward or sustained bending, he would either obtain assistance from Mr Bentley or his old neighbour, or significantly modify the manner in which he performed the task.
48When it was suggested to him that he had in fact been involved in installing a solar system on top of a roof, and was taken to the Facebook images showing this installation, the plaintiff gave unchallenged evidence that he had been able to sit down to perform his tasks, which effectively involved joining pipes at one end of the system. He gave unchallenged evidence that his old neighbour had assisted him on this job and that this person had done all of the heavier aspects of the work.
49Mr Bentley corroborated the plaintiff’s account of events, his evidence confirming that he provided assistance to the plaintiff in performing the heavier aspects of his job as a spa technician, including installing heavy heat pumps.
50It was suggested to the plaintiff that now that Mr Bentley is not assisting him, it is necessary for him to do the heavier aspects of the job himself. In response, the plaintiff gave evidence that because of his back pain, he needs to modify the way that he performs his work tasks and work at his own pace: “… I do things differently. So I do it slower and I think about how I’m going to bend or anything like that.” He said that this increases the time that he takes to perform his tasks. In his first affidavit, the plaintiff had also deposed to the fact that he manages to perform his current employment tasks “because I can self pace, stop and rest as required and stretch my back, however I experience pain every day with work. … ”.[147]
[147] Ex P1, p11
51In relation to issues to do with the plaintiff’s ability to perform gardening and landscaping activities, the plaintiff was taken to various Facebook photographs. Notwithstanding that the plaintiff had clearly given evidence a short time earlier that he had not done any landscaping, when shown these photographs, he did acknowledge having been involved in this type of activity. However, he qualified his evidence by saying that he did not consider what he was doing at that time to be “landscaping”. He explained that when he was referring to landscaping he was talking about doing the tasks manually. It was clear that the plaintiff drew a distinction between using machinery such as an excavator to perform tasks such as shifting dirt, rather than performing these types of tasks by hand. I note that nowhere in the affidavits which he filed, the plaintiff said that he was unable to do activities such as gardening. What he had deposed to was the fact that he is “more restricted” in his ability to do such tasks and must “self pace (sic) what I do so as not to aggravate the pain in my lower back”.[148]
[148]Ex P1, p13
52In relation to his interrupted sleep, the plaintiff was frank about the fact that the introduction of amitriptyline into his medication regime had assisted him with sleep. He was frank about the fact that in recent times, he had been experiencing some uninterrupted sleep. He said that despite taking amitriptyline, sometimes he is still woken during the night. Under re-examination, he gave evidence that he does not like to take tablets to assist him to manage his pain.
53Having had the benefit of observing the plaintiff while giving evidence to the Court, I formed the view that he was an honest witness who appeared to be doing his best to provide accurate responses to the questions asked of him. Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating practitioners, consulted with the medico-legal assessors and provided evidence to this Court. His account of events and the consequences from which he presently suffers, is corroborated by the evidence of Mr Bentley, who was not required to attend for cross-examination. In addition, the medical reports of the treating medical practitioners and the medico-legal experts for both parties, contained accounts of his injuries and consequences which were supportive of the plaintiff’s account of his pain and its consequences to him.
54After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of Mr Bentley and the medical reports tendered to the Court, I consider he was a credible witness in the sense of being a truthful person.
Stoic Plaintiff
55Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been extremely stoic in relation to his condition and has taken numerous steps to try to continue working and living his life as best he can.
56I find that despite the consequences of his injuries, which he has suffered daily since the workplace incident, he has continued to work and moved to starting his own business so that he could work at his own pace. Acknowledging the difficulty which some of the tasks which are inherent in his business cause him, the plaintiff obtains assistance with the heavier tasks when necessary, and has otherwise modified the way in which he does the tasks, so as to avoid the impact of the heavier duties. For instance, if there is a need to dose a pool or spa with a lot of salt, he asks the client to purchase that salt and to place the bags in the pool area for him. This avoids the need for him to load up numerous bags of salt at one time. Similarly, when faced with awkward tasks, because he is self-employed, he can self-pace and work in his own way. I accept his evidence that he now takes the time to stop and think about how he will do a task, in order to try to avoid exacerbating his back pain.
57Similarly, the evidence demonstrates, and I find, that the plaintiff has accepted the advice to undergo numerous injections and other types of treatment in order to manage his pain and has also followed all of the advice that he has been given about how best to manage his back condition. The evidence indicates that he was referred to Keiser therapy, a form of physiotherapy designed to manage his back pain, and that he attended Keiser as much as the COVID restrictions would allow at that time. He gave evidence, which I accept, that he found that type of therapy to be the most beneficial form of physiotherapy for him. I note that he wants to continue with this therapy but has been unable to obtain WorkCover approval to provide funding. He has followed this matter up with his GP and is still awaiting a response to this request from WorkCover.
Compensable injury
58The details in the occurrence of the incident are not in dispute.
59Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of the incident, the plaintiff suffered an organic injury to his spine in the form of an L5-S1 intervertebral disc prolapse, leading to clinical evidence of S1 radiculopathy on the right-hand side. This condition has progressed to include a facet joint arthropathy which was diagnosed by medial branch blocks on 26 May 2021. I note that the defendant’s medico-legal expert, Mr Brown, also diagnosed the presence of a right L5 nerve root compression, possibly due to foraminal stenosis.
Is the compensable injury permanent for the purposes of the Act?
60Having considered the relevant reports and in particular the reports from Dr Ford,[149] Mr King,[150] Dr Chandler,[151] Mr Carey[152] and Professor Bittar,[153] I find that the plaintiff is likely to suffer from the consequences of the injury that he sustained while working for the employer, for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[149]Ex P1, p47
[150]Ex P1, p50
[151]Ex P1, p58
[152] Ex P1, p77
[153]Ex P1, p62
Are the consequences to the Plaintiff of the workplace injury “serious”?
61Having considered all of the evidence, I find, by reason of the accident alone, the plaintiff suffers from the following consequences:
(a) back pain on a daily basis, worse in the mornings. He wakes up with a sore back. This pain does not go away. The pain continues to occur at around 6‑7/10 and continues to be worse with activity. Due to his back pain, he avoids bending, lifting, pushing, pulling and twisting of his torso;
(b) pain every day as a result of performing his work. He manages to perform his work because he can pace himself, stop and rest as required, and stretch his back if necessary;
(c)stabbing pain in his lower back which, when it occurs, extends into his right leg. This type of pain can happen several times a day, without any particular activity causing it;
(d) the need to take around eight paracetamol tablets per day. These tablets do not take the pain away, but lessen it a little. He also takes amitriptyline, 10 milligrams once per night to help him sleep;
(e) difficulty sleeping without taking strong medication in the form of amitriptyline. Without this medication he would continue to be woken by pain during the night. Now, if he does wake up, he will take a Panadol as required;
(f) difficulty walking longer distances and limited mobility. In particular, he tries to minimise walking on uneven surfaces;
(g) more limited involvement in household tasks such as shopping, cooking and cleaning. He still tries to help, but the majority of this work is now done by his wife, as these activities can cause him pain in his lower back. He finds that vacuuming, washing clothes, gardening, changing beds and cleaning around the house all increase the pain in his lower back;
(h) restriction in his ability to participate in gardening activities;
(i) restrictions in his ability to perform handyman work around the home. He misses the satisfaction of completing these projects in the way that he used to do;
(j) an inability to go trail-bike riding as he used to, due to the jolting and jarring of his back when the bike is used off road. He occasionally uses his trail bike to travel on the road, but experiences pain when he does this just by putting his leg over the bike. He avoids this wherever possible;
(k)an inability to participate in sporting activities with his children as he would like to do;
(l) experiencing increased irritability around other people, together with less patience as a result of the pain;
(m) an inability to enjoy life in the way that he used to. This makes him very sad and upset about the things that he will miss.
62In Haden Engineering Pty Ltd v McKinnon,[154] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[155] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[156]
[154] (2010) 31 VR 1
[155](ibid) at paragraph [9]
[156](ibid) at paragraph [12]
63I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in his approach to managing his injury, particularly in the form of his commitment to treatment, his attempts to return to his usual activities of daily living and his attitude to performing his work duties in a modified manner.
64The fact that the plaintiff has been prepared to keep working since the accident, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[157]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[157][2008] VSCA 260 at paragraph [3]
65As was observed in Hooley v Transport Accident Commission:[158]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[158][2019] VSCA 263 at paragraph [51]
66In Kelso v Tatiara Meat Co Pty Ltd,[159] the Court observed that –
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[159](Supra) at paragraph [199]
67An analysis of the evidence clearly demonstrates that by reason of the fact that he experiences daily lower back pain and frequent flare ups of that pain, the plaintiff’s injury has caused life changing consequences. These includes his ability to participate in sporting activities with his children, to enjoy his activities of daily living, his ability to perform his domestic chores, his ability to work pain free, his ability to get a restful night’s sleep without strong medication and the consequent effect of his experience of constant pain on his mood and his mobility. By reason of the plaintiff’s age and intention to keep working for a number of years, I find that he will continue to suffer from these consequences for a lengthy period of time, which in turn means that these consequences are more significant for him than they might be for a plaintiff who is closer to retirement.
68Having regard to the relevant case law and by reason of the findings which I have made above about the life changing consequences from which the plaintiff suffers as a result of his spinal injury, I am satisfied to the requisite standard, that those consequences are properly described as being “very considerable”. In those circumstances, I am satisfied to the requisite standard that by reason of the workplace events, the plaintiff suffered a “serious injury” as that term is defined in the Act.
Conclusion
69As set out above, I am satisfied, to the requisite standard, that as a consequence of the workplace events, the plaintiff suffered a “serious injury”, as defined in the Act, in the form an organic injury to his spine in the form of an L5-S1 intervertebral disc prolapse, leading to clinical evidence of S1 radiculopathy on the right-hand side. This condition has progressed to include a facet joint arthropathy. I note that recently, the plaintiff was also diagnosed as suffering from a right L5 nerve root compression, possibly due to foraminal stenosis. In those circumstances, the application is granted.
70I will hear the parties on the question of costs.
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