Walker v VWA
[2015] VCC 1357
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02766
| MARC WALKER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8,9 and 14 September 2015 | |
DATE OF JUDGMENT: | 1 October 2015 | |
CASE MAY BE CITED AS: | Walker v VWA | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1357 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering only – injury to lumbar spine – whether intervening events or other ailments produced the consequences of which plaintiff now complains – reliability of evidence given by plaintiff with psychiatric illness – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Meadows v Lichmore [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Woolworths Ltd v Warfe [203] VSCA 22; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Arnold Thomas & Becker |
| For the Defendant | Ms D Manova | Hall & Wilcox |
Table of Contents
Relevant legal principles................................................................................................................. 1
The plaintiff’s background............................................................................................................. 3
The incident........................................................................................................................................ 4
The plaintiff’s evidence................................................................................................................... 4
Duties at Highvale........................................................................................................................ 5
Experience of pain, medication and treatment....................................................................... 5
Plaintiff’s qualifications for work................................................................................................ 7
Attempts to return to work............................................................................................................ 7
Attempt to work at Oak Tree Village as an intervening incident........................................... 9
Other alleged intervening events............................................................................................ 10
Effect of psychiatric illness....................................................................................................... 10
Activities of daily living.............................................................................................................. 11
The lay evidence ............................................................................................................................ 12
The issues ....................................................................................................................................... 13
The plaintiff’s credit.................................................................................................................... 13
Reliability of the plaintiff’s evidence....................................................................................... 18
(a) Did the plaintiff recover from the injuries he sustained in the incident?............... 18
(b) Was the plaintiff subsequently injured at another workplace?................................18
Stoic plaintiff................................................................................................................................ 19
Compensable injury.................................................................................................................. 19
Substantial organic basis.......................................................................................................... 20
Is the compensable injury permanent for the purposes of the Act?................................. 22
The task of disentanglement – other medical conditions suffered by the plaintiff......... 22
Pain and suffering consequences of the incident ................................................................ 23
Medical evidence – treating doctors........................................................................................ 23
The plaintiff’s medico-legal evidence..................................................................................... 24
The defendant’s medico-legal evidence................................................................................ 26
Conclusions as to pain and suffering.................................................................................... 26
Pain.......................................................................................................................................... 26
Interrupted sleep.................................................................................................................... 27
Effect on social life and activities of daily living............................................................... 27
Work restrictions.................................................................................................................... 28
Medication and treatment.................................................................................................... 28
Do the consequences satisfy the narrative test? .................................................................. 29
Conclusion....................................................................................................................................... 30
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with RBD Property Management Pty Ltd (“Highvale”) on 22 June 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act.
4 The impairment of body function relied upon is function of the spine, and the injury is said to be to the lumbar spine.[1]
[1]T5 (21-26)
5 The plaintiff swore two affidavits, gave viva voce evidence and was cross-examined. The plaintiff’s mother also swore an affidavit. She was not cross-examined. The defendant required the plaintiff’s general practitioner, Dr Webster, to attend for cross examination. No other witnesses gave viva voce evidence.
6 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[2] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[2]the plaintiff’s court book was marked Ex P1; the defendant’s court book was marked Ex D1
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]Section 134AB(19)(a) of the Act
8 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
9 To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with Highvale on or after 24 October 1999;[4]
[4]Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
[5]Barwon Spinners Pty Ltd & OrsvPodolak (ibid) at [33]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[6]
[6]Section 134AB(38)(b) and (c) of the Act
10The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
11In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
12In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
[7]Section 134AB(38)(h) of the Act
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[8]
[8]Section 134AB(38)(j) of the Act
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[9]
[9] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
13The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[10]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 [67]
The plaintiff’s background
14The plaintiff was born on 24 August 1972. He is single and lives with his parents. He has one brother who is aged 39.[11]
[11]Ex P1, pge 11, paragraph 2
15He attended a special school, finishing in 1988, aged 16.[12] He had difficulty with academic work. In his last year of school he also worked at Coles, stacking shelves.[13]
[12]Ex P1, pge 11, paragraph 3
[13]Ex P1, pge 11, paragraph 3
16After finishing school, he went to a sheltered workshop called “Helpmates” in Ashwood. At Helpmates, the residents would go out in groups to do lawnmowing and similar jobs. He was not there for very long. In about 1991, the plaintiff’s back was injured at Helpmates when a lawnmower fell off the back of a truck. After a few months he had completely recovered from this injury and had no further problems.[14] He then worked at the Melbourne Football Club as a water boy for the under 19s. He did that for two seasons until the under 19s competition finished.[15]
[14]Ex P1, pge 13, paragraph 17
[15]Ex P1, pge 11, paragraph 4
17Following that, the plaintiff did some courses at TAFE in hospitality. He then got a traineeship at Highvale, a retirement village. He was there for about eight or nine years before he was injured.[16]
[16]Ex P1, pge 11, paragraph 5
18The plaintiff’s job at Highvale was as a kitchenhand and cleaner. The cleaning role was mainly cleaning the serviced apartments within the complex, as well as common areas. At the time that he was injured, the plaintiff was working twelve hours per week, being four shifts, each of three hours. While at Highvale, he mostly worked as a kitchen hand preparing light meals, serving, cleaning up in the kitchen and washing the floors.[17]
[17]Ex P1, pge 11, paragraphs 7-8
19Prior to the incident, the plaintiff was prescribed antipsychotic medication, for schizophrenia. He has been in receipt of a disability pension for his schizophrenia since February 2003.[18]
[18]T49 (14-22)
The incident
20In his affidavit sworn 24 January 2014, the plaintiff described the accident at work (“the incident”) and its immediate aftermath in the following terms:
“9.… At about 6 o’clock I went into the cool room. This is a walk-in room. As I went in the door of the cool room, there was a tray sticking out, partly blocking up the entrance. I bumped it and a box of butter packs in foil fell to the floor. I think there was also some grated cheese on the tray. I slipped on the butter packs and twisted and fell. I felt pain in my knees but mostly in my back. I also had some bruising from the fall.”
10.I called out and my supervisor…came and assisted me….she sat me down and called my mother. I was very upset, in pain and in shock. My mother came to get me.[19]
[19] Ex P1, pge12, paragraphs 9-10
The plaintiff’s evidence
21The plaintiff swore two affidavits, the first on 24 January 2014 and the second on 13 August 2015. He was extensively cross-examined and was also re-examined. In summary, the evidence given by the plaintiff as to the pain and suffering consequences which he experiences as a result of the incident, was as follows:
Duties at Highvale
(a) at the time of the incident, the plaintiff worked about three or four hours per shift, on different days.[20] His duties included mopping floors, sweeping floors, serving food to the residents and preparing food.[21] Prior to that he had been working about 15 to 20 hours per week. About six to eight months prior to the incident, his hours were cut to about 10 hours per week;[22]
[20]T17 (16-25)
[21]T17 (26-28)
[22]T18 (1-13)
Experience of pain, medication and treatment
(b) following the incident, the plaintiff went to see Dr Webster, his general practitioner.[23] Dr Webster put him off work.[24] Under cross examination he said that he remembers that he saw Dr Webster the day after the incident.[25] Over the next eight weeks, he was off work and had physiotherapy;[26]
[23]Ex P1, pge 15, paragraph 2
[24]Ex P1, pge 15, paragraph 2
[25]T19 (28-31), T 20 (4-9)
[26]Ex P1, pge 13, paragraph 11
(c) he continues to have constant pain in the middle of his lower back.[27] It is there all the time and he finds it very painful. Under cross-examination he said that the back pain was there, even when in the past he was seeing his doctors about his psychiatric illness;[28]
[27]Ex P1, pge 16, paragraph 4
[28]T113-114
(d) he said that initially he was taking just Panadol, then he moved onto Panadol Osteo, two or three times per day.[29] He then started taking Panadeine Forte, and he has been on that ever since.[30] He said that when he was taking only Panadol, he was “just putting up” with the pain;[31]
[29]Ex P1, pge 14, paragraph 19
[30]T81-82; T116 (9-24)
[31]T82 (14-22)
(e) he now takes Panadeine Forte six times per day. This is prescribed to him by Dr Webster.[32] He has some limited physiotherapy through Workcover, five sessions per year. He has exhausted his present allocation of physiotherapy;[33]
[32]Ex P1, pge 16, paragraph 8
[33]Ex P1, pge 16, paragraph 8
(f) he can walk for varying amounts, depending on the day.[34] His back pain is made worse by bending and lifting.[35] He can sit but standing increases the pain. With sitting he cannot, for example, sit for long enough to enjoy a movie.[36] Some days are better than others;[37]
[34]Ex P1, pge 16, paragraph 5
[35]Ex P1, pge 14, paragraph 19
[36]Ex P1, pge 17, paragraph 9
[37]Ex P1, pge 16, paragraph 5
(g) he also has developed some numbness and pins and needles in both legs, going from his buttocks down to his knees. He has those symptoms mainly at night time.[38] Those symptoms developed about twelve months after the incident;[39]
[38]Ex P1, pge 16, paragraph 5
[39]T126-127
(h) he has trouble sleeping because of his back and leg problems.[40] It takes him a long time to get to sleep, which makes him tired during the day. He often ends up having a nap.[41] Recently he has been waking up in the early hours of the morning with pain and numbness. He gets very depressed when this happens. He feels hopeless knowing that the pain is not going to go away;[42]
[40]Ex P1, pge 16, paragraph 5
[41]Ex P1, pge 16, paragraph 5
[42]Ex P1, pge 16, paragraph 6
(i) under cross examination he said that the intensity of his pain varies: “one day I might be all right, next day it might not be, so I sit in bed”[43] and “sometimes I just have to be like a baby and not do anything…at all”[44]
[43]T138 (29-30)
[44]T138 (26-28)
(j) under cross examination the plaintiff said that he gets headaches in the back of his neck, that are referred from his back.[45] He said that he has had them since the incident, “on and off”[46] and that they are worse recently.[47] He also sometimes gets migraines, for which he needs to lie down.[48] He denied that there was anything other than the incident in 2004 that had brought on this symptom;[49]
[45]T181 (12-15)
[46]T181 (5-10)
[47]T181 (11)
[48]T181-182
[49]T181 (16-21)
(k) he has been told by the doctors to walk as much as he can to try and help his back. He does so, but it gets painful. This limits how much walking he can do.[50] Under cross-examination he said that regarding his weight, he has been walking a fair bit, but the tablets he’s on for his psychiatric illness cause him to gain weight;[51]
[50]Ex P1, pge 16, paragraph 7
[51]T33 (28-30)
Plaintiff’s qualifications for work
(l) he can read and write at a basic level but could not get a desk job. He can really only do physical work. He loved the work at Highvale and loves to have a job. He would really love to be able to work but can’t because of his back; [52]
[52]Ex P1, pge 14, paragraph 18
Attempts to return to work
(m) after eight weeks, he was going to return to Highvale doing light duties. He never ended up returning to work,[53] going in on one day or so, but he could not cope.[54] Under cross examination, he said that he went in to work, only to sign a document.[55] Since that time, he had one job, in his uncle’s bakery, one four hour shift, one day a week, for around 12-18 months;[56]
[53]Ex P1, pge 16, paragraph 3; T 21 (1-21)
[54]Ex P1, pge 13, paragraph 13
[55]T22 (3-17)
[56]T34
(n) under cross-examination he said that his duties at the bakery included scrubbing floors, mopping floors, cleaning up and taking the rubbish out.[57]
[57]T34 (23-27)
(o) While working at the bakery, he would suffer back pain every day that he worked and his mother would have to help him out when he came home: “I used to sleep for about two to three days because my back was so sore.”[58] He said that his parents told him to leave that job because he was in too much pain.[59] He did that job because he wanted to work and to do something. He said that he told the doctor that his back was sore during this time, but the doctor has lost the notes of the consultations,[60] or did not write down what he was told.[61] Dr Webster confirmed that the handwritten medical notes from this time had been lost when his clinic moved. He also said that sometimes he made handwritten notes, sometimes entries in the computer, and sometimes employed both methods of taking notes. As such, what was on the computer was not necessarily a complete record of what the plaintiff had told him – Dr Webster’s evidence is referred to in more detail at paragraph 29 below;[62]
[58]T34 (26-27)
[59]T37 (21-26)
[60]T37 (3-19)
[61]T47 (9-13)
[62]T199 (7-25)
(p) eventually the bakery job stopped for family reasons.[63] Under cross examination he said that when he left that job he looked for other work[64] because he wanted to prove to himself “that I can go back to work,”[65] and because his parents were trying to make him work.[66] Those attempts to get back to work included having a tryout at a pub in Cairns[67] and part of a shift at another retirement village called Oak Tree Village.[68] He was not successful at any of those attempts to get back to work,[69] because of his back.[70] In respect of Oak Tree, he said that it was “way too hard – lifting, bending;”[71]
[63]Ex P1, pge 13, paragraph 13
[64]T 34 (17-21)
[65]T41 (8-13)
[66]T45 (8-12)
[67]T40 (9-31)
[68]T53 (1-6)
[69]T41 (11-12)
[70]T39 (4-15)
[71]T53 (11-16)
(q) in about the middle of 2013, he went for an interview at a place called “Matchbox” in Broadmeadows, which assists disabled people to find work. He was wanting to work, but realised that he would not be able to do the type of work that they would offer, so he did not follow that option up.[72] Under cross examination he said that he did not think he would be able to do kitchen hand work at present, because of his back. He said that he went to Matchbox to please his family: “my family were trying to get me off my bottom;”[73]
[72]Ex P1, pge 14, paragraph 21
[73]T124 (18-31)-T125 (1-6)
Attempt to work at Oak Tree Village as an intervening incident
(r) under cross-examination it was suggested to the plaintiff that the reason he was looking for work was because he “felt better and didn’t have back pain”. He denied that this was the case.[74] It was also suggested to him that his back pain had resolved before he went to Oak Tree Village, and that he had hurt his back during his one shift at that establishment. [75] He also denied this proposition. He said that even before he started at Oak Tree his back was sore, and that he was “still the same” afterward;[76]
[74]T43 (5-12)
[75]T57-58; T79 (24-28), T80 (1-6), T80 (26-31)-T81 (1-8); T149 (23-27); T150 (27-30)
[76]T73 (27-31); see also T 193 (16-31) – T 194 (1), where the plaintiff confirmed that every time he tried to work after the incident, he would experience a flare up of back pain, he would rest and then it would go back to the same base level.
(s) under cross examination the plaintiff was asked about an entry dated 28 November 2008, where the GP noted “back strain lifting a pailing (sic) at work…pain in s/i region Script written…Diclofenac…” In response, the plaintiff said that he had only ever worked in the kitchen at Oak Tree, and that he had never worked outside. He said that he had “definitely not” lifted any palings, either at Oak Tree[77] or at another place of work;[78]
[77]T55-56; T 73 (10-12)
[78]T60 (2-7)
(t) he said that he had not hurt his back at any place of work, other than Highvale.[79] He confirmed that in the past he had injured his back at “Helpmates, which was many years ago before that.”[80] He said that after the injury at Helpmates, he was off work for about eight weeks, then he made a one hundred per cent recovery: “when I was working at Highvale I used to wear vacuum packs…walking up and down stairs... so I made a...full 100 per cent recovery;”[81]
[79]T92 (22-26)
[80]T194 (7-10).
[81]T194 (22-26)
Other alleged intervening events
(u) the plaintiff denied having had a fall that hurt his back in May or June of 2009.[82] He said that he started complaining about severe back pain in late 2008 “because I wanted something stronger for my back.”[83] He said that there was “definitely” no particular incident that had happened in the meantime;[84]
[82]T102 (11-25)
[83]T83 (15-23)
[84]T83 (24-26)
Effect of psychiatric illness
(v) the plaintiff confirmed that between 2004 and 2008, he suffered from very serious psychiatric problems, which have now been controlled with medication.[85] Under cross-examination he said that he did not tell the doctors at the psychiatric hospital that he had a sore back.[86] He said he no longer suffers from auditory hallucinations: “I’ve actually improved…[I’m] really good.”[87] In re-examination the plaintiff confirmed that he now takes Abilify, Effexor and Valium for his psychiatric symptoms. He said that the effect of those medications, as far as he can judge, has been “extremely good…I’ve had no symptoms at all…no voices, no nothing for probably two years;”[88]
[85]Ex P1, pge 13, paragraph 14
[86]T33 (7-9)
[87]T108 (23-26)
[88]T188 (13-26)
(w) after he started to get mentally better, and with his problems with the job at the bakery, he started to pay attention to his back. He went to two solicitors who were unhelpful. He eventually went to his present solicitors;[89]
[89]Ex P1, pge 14, paragraph 14
(x) he has not been told by his GP that he can’t work because of his schizophrenia.[90] He said that his psychiatrist has specifically told him that he can work, but that “I’ve got the back issue”;[91]
[90]T119 (7-10)
[91]T119 (11-12); see also T128 (1-4)
Activities of daily living
(y) at home he relies a lot on his family. He does as much as he can but it is slower than before and he is limited in what he can do.[92] Prior to hurting his back at work, he would help with the washing, cleaning up, sweeping, dishes and taking the rubbish out “all that sort of thing”.[93] He said that since he hurt his back “Mum and Dad do everything”;[94]
[92]Ex P1, pge 14, paragraph 20
[93]T143 (24-27)
[94]T143 (22-23)
(z) his days are spent by having breakfast, maybe putting on the washing which his mother will hang out, having a shower, maybe going out, but he can’t go to the movies as he cannot sit for long enough. He might go shopping with his parents but because he can’t walk for long periods around the shopping centre with them, he usually waits and meets them at the front. He finds his days are very boring.[95] In the past he has been to the football, but he doesn’t go as much because of his back;[96]
[95]Ex P1, pge 17, paragraph 9
[96]T132 (12-18)
(aa) the main problem which the plaintiff experiences is that his capacity to work has been taken away. He would love to do kitchen hand or similar work, but he can’t.[97]
[97]Ex P1, pge 14, paragraph 19
The lay evidence
22The plaintiff’s mother, Margaret Mary Walker, swore an affidavit dated 24 January 2014, in which she deposed to the following relevant matters:
(a) she has seen Marc’s first affidavit and believes it to be true and accurate insofar as it deals with matters that she knows of;[98]
[98]Ex P1, pge 18, paragraph 2
(b) she knows that Marc was injured at work with Highvale. He told her about it on that day. She had to go and get him from work. He was in obvious pain and was upset;[99]
[99]Ex P1, pge 18, paragraph 3
(c) they went to a doctor. Marc was off work for a couple of months and went back for only a very short period.[100] After that, Marc was mentally in a very bad way and that was the main problem that confronted them. There were suicide attempts and at least one inpatient psychiatric admission;[101]
[100]Ex P1, pge 18, paragraph 4
[101]Ex P1, pge 18, paragraph 4
(d) during that period he would often say that his back was sore but she and her husband assumed that it would get better.[102] The family had a lot on their plate: she was working at the time, there were problems with Marc’s mental health and there was the breakdown of her other son’s marriage. She thinks that Marc’s back problem was shuffled to the rear of her attention;[103]
[102]Ex P1, pge 18, paragraph 4
[103]Ex P1, pge 18, paragraph 4
(e) Marc worked for her brother in her brother’s bakery. She can’t remember when, but thinks it was in around 2006 or 2007. Right from the start of that employment, Marc was struggling because of his ongoing back pain. She does not believe that there was any fresh injury. Marc had been complaining of back pain throughout. He was working one day per week and each night when he worked, he would come home with a sore back and she and her husband would have to help him;[104]
[104]Ex P1, pge 19, paragraph 5
(f) she is able to confirm Marc’s account of his own symptoms.[105]
[105]Ex P1, pge 19, paragraph 6
23Mrs Walker was not cross examined.
The issues
The Plaintiff’s credit
24The plaintiff was vigorously cross examined over two days of hearing. The detail in the medical records of his GP, Dr Webster, was extensively explored as the defendant endeavoured to demonstrate that, contrary to the plaintiff’s account of matters:
(a) he had recovered from the injuries suffered in the incident, but had been involved in a further accident, possibly at another place of work, which had seen the onset in late 2008, of the serious back pain from which the plaintiff now suffers; and
(b) that most if not all of the consequences from which he presently suffers, are not attributable to the back injury he sustained in the incident, but are in fact the result of another incident in which he injured his back, and also to other physical and mental ailments from which he presently suffers.
25It was clear that the medical records prima facie disclosed an incident in or around November 2008 where the plaintiff reported to his general practitioner that he had hurt his back lifting a paling at work. It was from this date that regular complaints of pain appeared in the GP’s computerised medical records.
26On its face, this incident occurred about a month after the plaintiff attempted to work at Oak Tree village. The plaintiff gave evidence that he only stayed for two to three hours of his first shift at that job, as he was unable to cope with the duties. He said that his back hurt from trying to perform the tasks involved in this job and his employer and he were concerned about that, so his mother came to take him home and he did not return.
27Under persistent questioning on this topic and as referred to in detail at paragraph 22(r)-(t) above, the plaintiff repeatedly and consistently denied that he had injured his back further at this place of work, or indeed, at any other time following the incident. He denied having ever lifted a paling at work. He was unable to explain the 28 November 2008 entry in the GP’s notes.
28As a result, the plaintiff’s GP, Dr Webster, was required to attend for cross examination. Dr Webster’s evidence corroborated the evidence given by the plaintiff. The substance of his evidence was as follows:
(a) he had prepared nine reports in relation to this matter dated between 10 November 2009 and 12 February 2015.[106] Those reports reflected the opinions which he had formed from time to time as he had been handling the medical treatment of the plaintiff.[107] His report dated 25 July 2012 concerned a different issue, and so was “irrelevant to the back injury”;[108]
[106]T197 (24-27)
[107]T197 (28-30)
[108]T236-237
(b) he had a long standing involvement with the plaintiff and his family;[109]
[109]T198 (1)
(c) when the note-taking in his practice began to be computerised (in around 2003 or 2004), his standard of competence at handling the computer was “not good”.[110] Prior to that he had recorded his notes by hand.[111] The practice had a dual system of hand written and computerised notes until about 2009; [112]
[110] T198 (4-12)
[111]T198 (13-14)
[112]T198 (15-24)
(d) the older, hand written notes were partly lost and partly damaged in the course of a move of Dr Webster’s practice from one location to another;[113]
[113]T199 (7-17)
(e) at around the time of the incident, he was treating the plaintiff for his schizophrenia. He confirmed that the plaintiff’s back problem may well have been mentioned to him, but that the schizophrenia was the primary condition which he was treating;[114]
[114]T230 (1-9)
(f) it does not surprise Dr Webster that if the plaintiff was unwell with psychiatric symptoms, other physical problems from which he might have suffered, took second place at that time.[115] Similarly, it does not surprise him that now that the plaintiff’s psychiatric symptoms are stable, he has begun complaining about what has effectively been an untreated back problem all these years;[116]
[115]T203 (18-21)
[116]T203 (22-25)
(g) Dr Webster used to get his x-rays done by a small laboratory that did not have a computerised interface with his practice.[117] The absence of a report of an x-ray being done in 2004 does not indicate to him that one was not done;[118]
[117]T200 (3-10)
[118]T200 (22-23)
(h) the plaintiff’s psychiatric condition has been stable for a number of years.[119] He could not recall ever telling the plaintiff that he could not or should not work because of his psychiatric condition;[120]
[119]T201 (7-14)
[120]T200 (24-28)
(i) he agrees with the orthopaedic specialist, Mr Hau, that the plaintiff’s back pain is “mechanical” in nature. Dr Webster said that mechanical back pain means a soft tissue injury or strain of the muscles or ligaments associated with the back “and that can be quite severe and debilitating”;[121]
[121]T201 (18-21); T 232 (1-10)
(j) in his opinion there is a causal relationship between the episode in 2004 and the plaintiff’s continued complaints of spinal pain because “to my knowledge there’s been no other significant back injury or episode from that period of time…”[122]
[122]T201 (22-29)
(k) if the plaintiff had told Dr Webster about another intervening incident in around 2008 or 2009, he would have recorded that in his 13 August 2009 report. He said that he knew of no such other incident and “Marc [is] always forthcoming…he’s been totally honest….”[123] He said that his overriding sense was that the 2004 injury “was the one causing the symptoms”;[124]
[123]T204 (8-29
[124]T222 (9-21)
(l) in Dr Webster’s opinion, the other medical issues from which the plaintiff suffers, such as diabetes and metabolic issues, would not make a lot of difference to his daily life;[125]
[125]T 232 (24-31)
(m) Dr Webster said that the plaintiff’s obesity was related to his psychiatric issues, because it is caused by the effects of the medication he is on.[126] He said that in turn, the plaintiff’s psychiatric illness was exacerbated by particular events of stress or anxiety in the plaintiff’s life.[127] He agreed that it was “no coincidence” that after the incident, the plaintiff’s psychiatric condition deteriorated markedly;[128]
[126]T233 (1-18)
[127]T234 (2-9)
[128]T234 (16-250
(n) Dr Webster said that he had no reason to disbelieve the plaintiff when he says that he has had back pain all these years.[129] He said that it’s possible that the note on 28 November 2008 was actually the plaintiff telling him about the 2004 incident, and that he just misinterpreted that information.[130] He just cannot be sure one way or the other;[131]
[129]T237 (23-29)
[130]T240 (1-8)
[131]T243 (1-2)
(o) when shown Mr Hau’s report, which was produced in response to a referral from Dr Webster shortly after the plaintiff’s November 2008 attendance, he agreed that it seemed to confirm that on 28 November 2008, the plaintiff may have been talking about his back pain being a consequence the 2004 injury.[132] He agreed that if the plaintiff had told him about a separate fall at work, he would have informed Mr Hau about that;[133]
[132]T244 (12-25)
[133]T244 (16-20)
(p) in relation to the entry on 16 June 2009, which referred to a fall “four weeks ago”, Dr Webster said that at that time, the plaintiff was experiencing “acute spasm” secondary to the fall. He said that he prescribed Baclofen for the muscle spasm. He said the muscle spasm was a separate, acute injury. He said that he could see from his records that the acute injury resolved, as the prescribing of Baclofen ceased. He said that the underlying back problem persisted, even though that acute injury had resolved;[134]
[134]T244-246
(q) in Dr Webster’s opinion, the plaintiff’s ability to walk or exercise is significantly affected by his back pain. Similarly, the plaintiff’s ongoing issue with obesity is a cause of the consequences of the 2004 injury, since restriction in movement is a factor in the ongoing back pain.[135] To the extent that the incident caused a flare up in the plaintiff’s psychiatric condition, it played a part in the plaintiff’s obesity, leading to difficulties in managing the plaintiff’s weight loss;
[135]T246 (17-27)
29The plaintiff’s evidence that his back pain emanates from the incident in 2004, is further corroborated by the content of the 2009 Impairment Benefit Claim form,[136] which noted that the injury then being claimed for was “slipping and falling due to butter portions on floor which were on a tray protruding from shelf which I walked into.”
[136]See Ex D1, pges 68 & 69
Reliability of the plaintiff’s evidence:
(a) Did the plaintiff recover from the injuries he sustained in the incident?
(b) Was the plaintiff subsequently injured at another workplace?
30As can be seen from the matters set out above, the objective evidence supports a conclusion:
(a) that the plaintiff’s present back pain is a consequence of the 2004 incident at Highvale; and
(b) that the consequences from which he presently suffers, are primarily attributable to the back injury he sustained in the incident, rather than being the result either of another incident in which he injured his back, or of other physical and mental ailments from which he presently suffers.
31In relation to each of these issues, I find that the plaintiff's account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. Furthermore, his evidence is supported by his mother’s affidavit evidence, which was not challenged, and by the evidence given by Dr Webster under cross examination.
32After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that he was a straightforward, reliable and credible witness, in the sense of being an absolutely truthful person. At no time did I gain the impression that he was attempting to mislead the Court, or exaggerate the symptoms of his lumbar spine injury.
33Having carefully considered all of the relevant evidence, including in particular the evidence of the plaintiff, his mother and Dr Webster, I find that at no stage has the plaintiff recovered from the injuries he sustained in the incident.
34Similarly and based upon the same evidence, I find that at no stage has the plaintiff sustained a subsequent, lasting injury to his back at another workplace, or indeed in any other circumstance.
Stoic plaintiff
35I also formed the view that the plaintiff is somewhat stoic in relation to his condition, attempting on numerous occasions to return to work, partly to please his parents and also to alleviate some of his boredom.
36A further example of his stoicism is to be found in the fact that the plaintiff has persisted with a weight loss program which includes walking, despite the fact that he experiences pain when he does this.
Compensable injury
37The details and occurrence of the incident are not in dispute.
38There is an issue as to whether the pain and suffering consequences alleged by the plaintiff have a substantial organic basis, in the sense that they arise as a result of the injuries sustained in the incident, rather than from another cause.
39There is also an issue as to whether any consequences of the injuries suffered in the incident satisfy the narrative test.[137]
[137]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309
Substantial organic basis
40Three of the plaintiff’s four treating doctors gave opinions that the plaintiff’s lumbar spine injury was organic in origin, viz:
(a) in his report dated 7 August 2009, Mr Raphael Hau, orthopaedic surgeon, considered that the plaintiff has “mechanical back pain”, which, as was explained by Dr Webster, is a reference to a soft tissue injury to the muscles and/or ligaments of the plaintiff’s lumbar spine;[138]
[138]Ex P1, pge 22
(b) in his report dated 10 November 2009, Dr Webster, the plaintiff’s GP, stated that a scan confirmed that “this is primarily a soft tissue injury for which physiotherapy and analgesia will be required on a continuing basis”;[139]
[139]Ex P1, pge 58
(c) in his report dated 14 December 2009, Dr Webster stated: “I believe, as does Mr Raphael Hau, an Orthopaedic Surgeon… that Marc has mechanical back pain…”[140]
[140]Ex P1, pge 59
(d) Mr Davie, Consultant Orthopaedic surgeon,[141] saw the plaintiff on 25 August 2004, shortly following the incident. In his report dated 26 August 2012, he considered that the plaintiff had “sustained a low lumbar back strain…consistent with the incident at work on the 22nd of June 2004;”[142]
[141]while Mr Davie was the plaintiff’s treating orthopaedic surgeon following the incident, his reports were included in the Defendant’s Court book
[142]Ex D1, pge 40
(e) in his report dated 5 July 2012, Mr Davie said that his opinion was unchanged: “he has a low back strain which was work related.”[143]
[143]Ex D1, pge 43
41The plaintiff’s fourth treating doctor, Dr Michael Chandler, saw the plaintiff for a complaint of anterior thigh pain, without being given any contextual history. Thus, in his report dated 10 August 2012, he does not express an opinion in relation to the origin of the plaintiff’s back pain.
42The plaintiff’s medico-legal experts were Mr Paul Kierce, Orthopaedic Surgeon, and Dr David Middleton, an Occupational Health and Rehabilitation consultant.
43Mr Kierce noted that the plaintiff suffers from “symptoms and signs consistent with aggravation of lumbar spondylosis in the course of his employment…on 22 June 2004.”[144]
[144]Report dated 15 June 2015, Ex P1, pge 40; Mr Kierce had provided an earlier report in very similar terms on 23 October 2012
44Dr Middleton’s opinion was that the plaintiff suffered an “acute straining of the lumbar spine” in the incident, “aggravating pre-existing asymptomatic lumbar spondylosis, resulting in lumbar instability and discogenic pain down both legs posteriorly, the pain having a neuropathic component.”[145]
[145]Report dated 20 August 2015, Ex P1, pge 54h
45The defendant’s medico-legal experts were Associate Professor Graeme Brazenor, Neurosurgeon and Dr David Fish, Consultant Occupational & Environmental Physician.
46In his report dated 26 June 2015, Associate Professor Brazenor doubted that the plaintiff had suffered an injury to his low back on 22 June 2004, viz:
“We have no evidence whatsoever of an injury in the incident of 22 June 2004. It is highly suspicious that (it seems) he did not have any form of spinal investigation until four years thereafter, and there is no record in Dr Peter Websters’s notes of any complaints of back pain nor prescription of analgesics during that four year period.”[146]
[146]Ex D1, pge 52
Nevertheless, Associate Professor Brazenor’s opinion was that the plaintiff suffered from “mild deflation of the L5-S1 disc with a mild central disc protrusion and mild chronic degenerative change in the L5-S1 facet joints.”[147]
[147]Ex D1, pge 50
47 Dr Fish provided a report dated 28 January 2010. In that report, Dr Fish considered the plaintiff to be suffering from a musculoskeletal injury to his back, namely, aggravation of lumbar spondylosis.[148]
[148]Ex D1, pge 9
48 On the basis of the opinions set out above, I find that the consequences of the plaintiff’s injury to his lumbar spine have a substantial organic basis.
Is the compensable injury permanent for the purposes of the Act?
49Having considered the relevant evidence,[149] I find that the plaintiff is likely to continue to suffer from symptoms in his lumbar spine for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
[149]see the reports of Dr Webster dated 10 November 2009, 14 December 2009 and 12 February 2015: Ex P1, pges 58, 59 and 68, Mr Keirce dated 15 June 2015: Ex P1, pge 42, and Dr Fish dated 28 January 2010, Ex D1, pge 9
The task of disentanglement – other medical conditions suffered by the plaintiff
50As referred to above, there is no dispute on the evidence that the plaintiff had a very significant psychiatric history together with other physical ailments (such as type 2 diabetes) from which he presently suffers. For that reason, it was submitted by the defendant that most of the consequences upon which the plaintiff relied, could not be attributed to the incident.
51A key task in this case is to identify which consequences from which the plaintiff presently suffers, are attributable to his lumbar spine injury, rather than to his pre-existing psychiatric condition, or to the other medical conditions from which he suffers (whether pre-existing or subsequently occurring).[150] This task is often referred to as “disentangling” or “stripping away”.[151]
[150]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at [24]
[151]Meadows v Lichmore [2013] VSCA 201
52The plaintiff bears the burden of proof in respect of this task.
53I have found that there is a substantial organic basis for the physical consequences of the plaintiff’s injury to his lumbar spine. Similarly, I have found that the only occasion on which the plaintiff injured his lumbar spine with lasting consequences, was in the incident.
54The evidence given by the plaintiff, contained in the material tendered in court and given by his GP, Dr Webster under cross-examination, is sufficiently detailed to allow me to form a view as to which consequences are properly attributable to the injury to the plaintiff’s lumbar spine suffered in the incident and which are more properly attributable to plaintiff’s other medical ailments. Thus, subject to assessing the degree of impairment by reference to the consequences of that injury to the plaintiff, no further disentangling needs to be undertaken
55I set out below the findings about which consequences are properly attributable to the incident.
Pain and suffering consequences of the incident
Medical evidence – treating doctors
56In his various reports, Dr Webster concludes that as a result of his back pain, the plaintiff’s ability to “find and participate in” his “normal type of work”, is very limited and will be for the ongoing future. Dr Webster also noted that the plaintiff’s other medical conditions (primarily the schizophrenia), mean that he is “only suitable for this type of work.”[152] Dr Webster also considered that by reason of his back injury, the plaintiff will require “physiotherapy and analgesia…on a continuing basis.”[153] In his report dated 10 October 2014, Dr Webster noted that the plaintiff was “having trouble sleeping due to the ongoing pain from his back.”[154]
[152]see for eg. report dated 10 November 2009, Ex P1, pge 58
[153]Ex P1, pge 58
[154]Ex P1, pge 67
57Mr Hau noted the following matters in his report dated 7 August 2009:
“[the plaintiff] presented on 26 February 2009 with midline pain in the lower lumbar region which occasionally radiates proximally to his lower thoracic spine. He reported experiencing night pain while lying supine but this is relieved by lying on his side. He also reported occasional bilateral posterior thigh pain, paraesthesia and numbness. These symptoms would occur after standing for thirty minutes….He was taking Diclofenac and Piroxicam. His walking distance was one kilometre. He was swimming twice a week in order to lose weight…
[the plaintiff] has mechanical back pain…He is to avoid lifting heavy weights and to continue taking anti-inflammatory tablets. It is difficult to predict if and when the pain will subside.”[155]
[155]Ex P1, pge 23
58In his report dated 5 July 2012, Mr Davie detailed the following matters:
“Over the last eight years he has continued to complain of back pain mainly on walking or standing for long periods and the back pain passes into the buttocks so far as the knees. He also described occasional tingling in the fingers and some neck pain….He describes the back pain as being improved with rest, and lying on the side is better than lying flat.
He lives with his mother and father. He does a little bit of cooking and tidying up but no gardening or lawn mowing. He goes shopping with his mother and he does follow Melbourne at the Melbourne Cricket Ground, at times. He reads the paper but can only walk for about twenty minutes when he is stopped by worsening back pain….”[156]
[156]Ex D1, pges 41-42
The plaintiff’s medico-legal evidence
59In his most recent report dated 15 June 2015, Mr Kierce stated[157]:
[157]see generally report at Ex P1, pges 35-43
“[the plaintiff] suffers with central low back pain, pain at the base of his neck, pain and pins and needles on the backs of his thighs as far as his knees. He also has occasional pins and needles in all the digits in both hands…He says his low back pain is worse at night and often wakes him around 2am, so that he has to get up and walk about.
He says if he does go out for any social occasions he often has to leave early because of his back pain. His back condition is aggravated by bending, walking for 5 to 30 minutes, sitting and standing for 30-45 minutes. Coughing and sneezing aggravate his back pain on occasions. He avoids lifting altogether. Overall he feels he is getting worse and that is why he resumed physiotherapy…
He is walking 2.0 kilometres a day but has to have frequent rests.
He lives with his parents who are very helpful. He would not be able to do any mowing or anything he says. He is not involved in any housework. His mother does the shopping. He is able to travel on public transport. He is able to use stairs as long as he hangs onto a handrail.
He has no impairment of daily living activities. He says in particular with showering and dressing it takes him about twice as long as a normal person….
The physical injury sustained on the 2nd (sic) of June 2004 is likely to preclude and restrict [the plaintiff] in relation to employment or activities involving:
(i) Prolonged sitting, standing or walking. He does not drive but bending is also difficult for him.
(ii) Repetitive bending.
(iii) Lifting.
All of these activities being limited to a significant extent…
In my opinion he is not currently suited for any employment having regard to:
(i) The nature of the incapacity from his physical injury and
(ii) His age, education, skill [and] work experience….”
60Dr Middleton noted:[158]
[158]see generally report at Ex P1, pges 54a-54k
“the main pain is across the lumbosacral spine, which is tender to touch. This pain extends down the back of both legs to the knees equally. The low back pain is described as sharp in nature and the leg pain is more of a numb pain with pins and needles. This pain also extends up the spine, now to the base of the skull, resulting in headaches from a constant aching pain in the spine and aching type of headache around the occipital region that comes and goes infrequently.
The arms are mainly “okay”; rarely, he experiences some pins and needles in the tips of his fingers.
[the plaintiff] states sleep continues to be disturbed by his low back pain and occasional “mind games”, indicating that he must sleep on his side to get rest.
…he can’t do alot of things he was capable of prior to the injury. Examples of this are that he can’t work, will tend to leave friends’ places early and no longer goes to the movies as he can’t sit for the length of the movie.
[the plaintiff] takes Panadol Osteo 2 tablets at night as required, as well as Panadeine Forte, 2 tablets three times a day, to manage his pain….[159]
[159]Ex P1, pge 54b
[the plaintiff] states when walking, he needs to take regular breaks…
[he] keeps his own room tidy, uses the washing machine and does a little bit of cooking. Otherwise the activities of daily living are done by his parents who do everything else”….
I felt [he] was entirely straightforward, totally honest and exhibited no functional behaviour….[160]
[160]Ex P1, pge 54c
[he] should avoid prolonged sitting, standing, walking, driving or stooping, repetitive bending and/or twisting. Lifting needs to be restricted to a maximum effective weight of 5kg on an occasional basis and 3 kg on an intermittent basis where activities need to be limited to between mid-thigh and shoulder height…[161]
[161]Ex P1, pge 54h
…it is my opinion that he no longer has the safe physical capacity to perform his pre-injury duties and is now limited to what is best described as sedentary, non-manual duties.. Any duties performed by [the plaintiff] need to be performed in a self-paced manner with provision for work breaks as required…
[the plaintiff’s] work experience and skills lie in the realm of unskilled manually dependent work which [he] is no longer able reliably to undertake.
It is my opinion that his injury has rendered him unfit for all employment and my observations are that he is not capable of being retrained.”[162]
[162]Ex P1, pge 54i
The Defendant’s medico-legal evidence
61Dr Fish for the defendant set out the following matters in his report dated 28 January 2010:[163]
[163]Ex D1, pge 8
“Mr Walker complains of continuing low back pain, which radiates into the posterior thighs of both legs. He has occasional pins and needles and numbness in the posterior thighs and legs but no other sensory disturbance.
He says that occasionally the pain radiates up the back to the mid back and is aggravated by walking. He said that 20 minutes of walking will casue the back pain to become worse. He has no trouble sitting although he suffers sleep disturbance at night occasionally due to back pain and will need to get up and sit down….”
62Associate Professor Brazenor considered that the plaintiff would experience very mild low back discomfort “if he is so unwise as to indulge in repeated bending at the waist or heavy lifting…”[164]
[164]Ex D1, pge 52
Conclusions as to pain and suffering arising from the incident
Pain
63I accept that the plaintiff has constant pain in the middle of his lower back, which he finds very painful.
64I accept the plaintiff’s evidence that some days are better than others and that the intensity of his pain varies from one day to the next so that while one day he might be coping well, the next day he might be bedridden. I find that there are some days when the plaintiff is unable to do anything, due to the pain in his back.
65I accept that the plaintiff’s back pain has been present, even when in the past the plaintiff was seeing his doctors about his psychiatric illness. I find that he started to pay more attention to the pain in his back once his mental health improved.
66I accept the plaintiff’s evidence that his back pain is made worse by bending and lifting.
67I accept that on and off since the incident, the plaintiff has had headaches in the back of his neck that are referred from his back. I accept that they have become worse recently.
68I accept that the plaintiff sometimes gets migraines, for which he needs to lie down, and I find that there has not been another event since the 2004 incident which can be said to have brought on this symptom.
69I accept the plaintiff’s evidence that approximately twelve months after the incident, he developed some numbness and pins and needles in both legs, going from his buttocks down to his knees. I find that he continues to experience these symptoms, mainly at night time. I find that these symptoms arose as a result of the injury which the plaintiff suffered in the incident.
Interrupted sleep
70I find that the plaintiff has trouble sleeping because of his back and leg problems. I find that it takes him a long time to get to sleep which makes him tired during the day.
71I find that recently, the plaintiff has been waking up in the early hours of the morning due to pain and numbness in his legs, which is referred from his back.
Effect on social life and activities of daily living
72I accept that the plaintiff relies on his family to perform the domestic chores at home. I accept the plaintiff’s evidence that he does as much as he can, but that he is both slower than before, and limited in what he can do. I find that since the incident, the plaintiff’s parents do chores that he used to help with, such as cleaning up, sweeping, doing the dishes and taking the rubbish out.
73I find that the plaintiff cannot go to the movies because he cannot sit for long enough. I accept that while he might go shopping with his parents, because he cannot walk for long periods he usually waits and meets them at the front.
74I accept the plaintiff’s evidence that he is a keen Melbourne Football Club supporter, but does not go to the football as much anymore, because of his back problems.
75I accept that the plaintiff has been advised by doctors to walk as much as he can to try and help his back. I find that when the plaintiff walks, his back becomes painful, which limits how much walking he can do.
76I find that because of the pain in his back, the plaintiff tends to leave friends’ places early, if he goes out to socialise.
Work restrictions
77The plaintiff can read and write at a basic level, but I find that given his other medical conditions, primarily the schizophrenia, he is really only suited to do physical work.
78I find that despite the plaintiff’s psychiatric condition, he is able to and would benefit from doing work. I find that the plaintiff’s present psychiatric condition would not of itself prevent him from doing physical work.
79I accept that the injury sustained in the incident is likely to significantly limit and restrict the plaintiff in relation to work involving prolonged sitting, standing or walking, repetitive bending, lifting or twisting. I accept that he also ought to avoid lifting weights above 5kg.
80I accept that the plaintiff would love to do kitchen hand or similar work, but cannot cope because of his back injury. I find that the plaintiff's capacity to work has been taken away by reason of injuries he sustained in the incident. I find that this is a very considerable consequence for this particular plaintiff.
81I accept that after the accident, the plaintiff worked at his uncle’s bakery and I accept that his duties included scrubbing floors, mopping floors, cleaning up and taking the rubbish out. However, I find that the plaintiff would suffer back pain every day that he worked and that he was only able to endure the pain because he was working one four hour shift, one day a week. I find that the plaintiff would sleep for days following the shifts and that his parents told him to resign because he was in too much pain.
Medication and treatment
82I accept that initially after the incident, the plaintiff was taking just Panadol, but then moved onto take Panadol Osteo two to three times per day. I accept that the plaintiff later started taking Panadeine Forte, and now takes this medication six times per day. I find that when the plaintiff was taking only Panadol, he was putting up with the pain.
Do the consequences satisfy the narrative test?
83In Haden Engineering Pty Ltd v McKinnon,[165] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[166] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the narrative test is one of impression or value judgment.[167]
[165](2010) 31 VR 1
[166]ibid at [9]
[167]Woolworths Ltd v Warfe [203] VSCA 22 at [129]
84The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[168] In Haden, Maxwell P also observed that the cases recognise that some plaintiffs may be more “stoical” than others. His Honour said that the stoical plaintiff is not to be viewed as any less serious, merely because he/she manages to remain more active than might be expected given the level of pain.[169]
[168]Haden Engineering Pty Ltd v McKinnon at [12]
[169]ibid at [13]
85I have already made observations about the plaintiff's demeanour and presentation in Court. I have found that the plaintiff was a truthful witness. I have also concluded that the plaintiff is somewhat stoic in his approach to managing the consequences of his injuries.
86The plaintiff’s relatively young age and therefore, the likely period for which he will experience the consequences of his injury, are relevant to my task of judging the pain and suffering consequences to this plaintiff, by comparison with other cases.[170]
[170]ibid at [17]
87An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that he suffered during the incident. The plaintiff endures permanent, daily pain, requiring frequent medication, which of itself, raises a real prospect of a “very considerable” consequence.[171] This has adversely affected his enjoyment of social activities and has impacted on his ability to perform the usual activities of daily living. Most significantly for this particular plaintiff, the pain has caused significant restriction in his ability to work.
[171]Kelso v Tatiara Meat Co Pty Ltd (supra) at [199] per Dodds-Streeton JA
88The fact that the plaintiff was able to return to some limited employment in his uncle’s bakery does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account, when assessing all of the evidence.[172]
[172]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47]
89Taking into account all of the evidence, I am satisfied that the consequences of the plaintiff’s spinal injury are “serious”, and satisfy the narrative test.
Conclusion
90Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of injury to his spine, suffered on or about 22 June 2004.
91I will hear the parties on the issue of costs.
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