White v Belandra Trading Pty Ltd

[2010] VCC 234

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-06-04566

LINDSAY DOUGLAS WHITE	Plaintiff
v
BELANDRA TRADING PTY LTD	First Defendant
and
CGU WORKERS COMPENSATION (VIC) LIMITED	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	18 and 19 March 2010
DATE OF JUDGMENT:	9 April 2010
CASE MAY BE CITED AS:	White v Belandra Trading Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 0234

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – Section 134AB – Application for leave in respect of both pecuniary loss damages and pain and suffering damages – Injury to back – Plaintiff a meatworker – Plaintiff also a most unusual person of low intellect who is illiterate, psychotic, drug-dependent and with a considerable criminal record – Whether plaintiff in fact employable regardless of statements made by him and attitude displayed – Whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Brookes SC with	Stringer Clark
Mr N. Bird
For the Defendants	Mr P. Scanlon QC with	Lander & Rogers
Mr P. Jens
HIS HONOUR:

Background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.

2          The plaintiff is seeking leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. He relies solely upon sub- paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act. The injury relied upon is an injury to the low back. It is alleged that the plaintiff suffered the injury during the course of his employment as a meatworker in March 2000. It would appear that he has not engaged in employment thereafter. It should also be said that, whilst there are two named defendants, their interests overlap entirely and I shall refer only to “the defendant”, meaning Belandra Trading Pty Ltd, which employed the plaintiff at the relevant time.

3          I will not set out here the numerous authoritative decisions of the Court of Appeal, or indeed the earlier decisions of the Full Court of the Supreme Court, which are relevant. I have referred to most of them in many previous cases. There was no argument but that the plaintiff bore the burden of proof.

4          Mr D. Brookes SC with Mr N. Bird of counsel appeared on behalf of the plaintiff. Mr P. Scanlon QC with Mr P. Jens of counsel appeared on behalf of the defendant.

5          The plaintiff gave evidence and was cross-examined. Mr Kenneth Brearley, surgeon, who had examined the plaintiff on behalf of his solicitors on two occasions and who had provided two reports and a supplementary letter, also gave evidence and was cross-examined. The balance of the evidence was tendered by consent and was documentary in nature which, in an unusual and challenging case, was a most sensible and cost-effective means of conducting the application.

Some preliminary observations

6          As shall be discussed, the plaintiff is a most unusual character, and that, and the following remarks, are in no way meant to be disparaging of him. He is an illiterate man described by Mr Bill Radley, psychologist and vocational counsellor, as having a level of general intelligence in the below to well-below average range. That became apparent. He also has an extensive criminal record, much of it concerning drug-related offences, and has been in prison at least three times. That criminal record extends back many years prior to the occurrence of the relevant injury. His addiction to amphetamines and other drugs of dependency also pre-dates the injury by a substantial margin. In addition, the plaintiff suffers from a psychosis which requires medication, and has suffered from that psychosis for some years. It would appear that in 2002 he went on to a pension as a result of suffering from this psychosis. Exactly when it first became apparent is not entirely clear. It was opened on the plaintiff’s behalf that such condition was long-standing and had not prevented him working prior to the relevant incident in September 2000.

7          As I observed from the Bench, and in the absence of the plaintiff, the transcript of his evidence might read as being unusual, but the written word does not begin to tell the story. Often in applications such as this, and indeed in other areas of litigation, judges are prone to mention the impression which a particular witness has made in the witness box, and the significance of this. Superior courts have acknowledged the weight which a judge at first instance might attach to the impression made by a plaintiff or another witness in the witness box, and the advantage which this may give such judge. In the numerous serious injury applications which I have heard, I cannot recall one where I have been so firmly of the belief that the plaintiff had actually to be seen before the impact which he might have on others, or the nature of his personality, could be understood.

8          My second general observation is this. As I later observed from the Bench and in the absence of the plaintiff, early in his evidence the thought fleetingly crossed my mind that he may require a litigation guardian. However, when I reflected that he was in the hands of most experienced solicitors and extremely competent counsel, and when I grew accustomed to his style, I became satisfied that such a step was not required. However, that I had such thought, however fleetingly, is some indication of the prima facie impression made by the plaintiff.

9          Thirdly, the cross-examination of this plaintiff by Mr Scanlon was exemplary. Whilst the plaintiff was a most unusual character, psychotic and patently of low intelligence, not the slightest attempt was made by Mr Scanlon to take advantage of these matters. The plaintiff was not asked questions designed to bamboozle or belittle. Questions about his mental health and treatment and about his criminal record, as well as those about family matters, were worded in a fashion that made them easily understood and contained no trace of righteous criticism or condescension. The plaintiff was treated with courtesy. Nevertheless, the points which Mr Scanlon sought to make in the interests of his client were so made firmly and fairly.

10        At the conclusion of the case, Mr Brookes openly complimented Mr Scanlon upon the manner in which the plaintiff had been cross-examined, and it is a compliment which I fully endorse. The impression conveyed was that the plaintiff almost enjoyed his time in the witness box and his exchanges with his cross-examiner. Indeed, it was a cross-examination which highlighted the difference between laughing with someone and laughing at someone. That the plaintiff, perhaps at times intentionally and sometimes unintentionally, made all in the courtroom laugh, or sometimes endeavour to suppress their laughter, is undeniable. Indeed, Mr Scanlon’s final words in his closing address were that the plaintiff had fallen a long way short of discharging the burden of proof and I should not find for him because he made me laugh. I take his point without the slightest offence.

11        Finally, as I observed from the Bench, these words concerning Mr Scanlon’s cross-examination are not meant to be in the nature of a consolation prize. Whatever the outcome of this case, the complimentary words are sincere and richly deserved. I do not believe that I have included observations of this nature in any previous judgment, but this was an unusual case with a most unusual plaintiff. As stated previously, the transcript does not begin to convey the complete picture.

(i) The plaintiff

12        As is evident, the plaintiff impressed me as being very different when compared with other plaintiffs who have appeared before me in similar matters. I agree with Mr Brookes who described the plaintiff as being totally without guile. He was prepared to agree with, or volunteer, virtually anything that occurred to him as he was giving evidence and regardless of whether it advanced his cause or was detrimental to it.

13        In many cases, a concession by a plaintiff that he or she has a capacity for suitable work or pre-injury employment would go a long way towards being decisive of that issue, although I have encountered cases where, in the light of strong medical evidence, I have felt that the plaintiff’s self-assessment may have been unduly optimistic. In the present case, I am of the view that several of the plaintiff’s statements in this regard must be taken with some large grains of salt. This is not because this particular plaintiff is one who has formed a determination to return to the workplace despite medical advice to the contrary. The situation is the opposite. This plaintiff essentially gave evidence that he could work if he wanted to but that, to paraphrase his evidence, he was not going to get out of bed for less than $1,000 per week.

14        In summary, it is my opinion that, to a very considerable extent, some things that were said in evidence by the plaintiff had to be viewed in the context of the nature of the individual and other evidence available.

Factual background

15        The following findings of fact are made solely for the purposes of this application and are in no way meant to be determinative in relation to questions of negligence, quantum of damages, entitlement to statutory benefits and the like.

(ii) The plaintiff’s background, training and education and activities prior to injury

16        The plaintiff is aged 46 years, having been born on 4 June 1963. He is a single man who resides at home with his mother. He also has a sister who has sworn an affidavit in support of his application. At some stage, the plaintiff has had a partner, and has fathered a son who is now approximately 22 years of age. The partner and the son reside in Alice Springs.

17        The plaintiff was educated to either Year 8 or 9 level at Caramut Road Technical School in Warrnambool. He is unable to read and write. In the opinion of Mr Radley, it is probable that he has a learning disorder. As stated, Mr Radley assesses his level of general intelligence as being below to well- below average.

18        After leaving school, the plaintiff worked at the Warrnambool abattoir for two years, skinning sheep. He then worked at the Camperdown abattoir for some four years, Borthwicks abattoir in Portland for two years and then at the Hamilton abattoir for several years. He moved to Melbourne in approximately 1989 and worked at various abattoirs. It would appear that he also carried out some work as a gardener. The situation is somewhat confusing but it would appear that he performed some work for Werribee Job Skills which involved using a shovel, digging holes and planting trees. As shall be discussed, the circumstances surrounding this are somewhat nebulous. He commenced employment with the defendant in approximately 1999, and his duties were the skinning of sheep and calves.

19        It is also apparent that the plaintiff has a long history of substance abuse dating back to when he was approximately 17 years of age. He has numerous prior convictions in relation to drug-related offences dating back to at least 1991. Prior to commencing work with the defendant it would seem that he had been sentenced to a number of terms of imprisonment, the longest being for an effective total term of four months and 21 days.

20        In relation to activities and the like, the plaintiff had participated in motorcycle racing at a speedway, but does not seem to have engaged in this for a lengthy period prior to suffering injury. Otherwise, drugs, work, and possibly family seem to have been the only things in his life, apart from his attracting the attention of the police for such matters as drug offences, exceeding .05, theft, assault and the like.

(iii)	The injury of September 2000
(a)	The state of the plaintiff’s health prior to the injury

21        As is apparent, the plaintiff had a significant drug problem prior to sustaining the injury in question. The exact date of the onset of his psychotic condition is not clear, although it would seem that there was a major incident involving hospitalisation in February and March 2002, which post-dates the incident of injury. However, the history taken by South West Area Mental Health Service at the time of hospitalisation includes the following reference:

“? Drug induced psychosis 7 years ago, but not formal psychiatric assessment or treatment. Symptoms resolved spontaneously. No past psychiatric admissions. Long history of poly-substance abuse since the age of 17.”

22        As a matter of interest, I note that the admitting medical officer also referred to the plaintiff’s low intelligence.

23        Prior to the injury the plaintiff had also suffered from the well-known meatworkers’ illnesses of Q fever, leptospirosis and brucellosis, apparently contracting these when working at the Camperdown meatworks. It is not suggested that these illnesses, which do have the capacity to be quite nasty, have left the plaintiff with any relevant consequences.

24        It was also apparent that the plaintiff had suffered some form of prior back injury whilst in jail. As best as can be ascertained, this seems to have occurred in approximately 1990 when he fell into a wombat hole whilst in Won Wron Prison. He told Mr Kenneth Brearley, surgeon, examining at the request of the plaintiff’s solicitors, that he made a full recovery from this injury. He also told Mr Brearley of a back injury which he suffered when working with Werribee Job Skills when he was using a shovel to dig holes to plant trees. He claims to have missed work for approximately one week, but again recovered completely. It would seem that this occurred when he was using a pick and shovel, working out of the City of Werribee Parks & Gardens Depot. Exactly how he came to be involved in this employment is not entirely clear, and, given that he had always worked in the meat industry, I am unsure as to whether or not this work was in some way connected with a court order.

25        It was put to the plaintiff that he had undergone an x-ray, and that, in a subsequent history, he had made some reference to having a “squashed vertebra”. Reference was made to the report of Dr Kavanagh, general practitioner, of 17 October 2000 in which there is reference to the following:

“He said he had previously injured his back when he ‘squashed’

vertebrae about six (6) years ago.”

26        Cross-examination of the plaintiff about this was not particularly fruitful, including the response “…how would I know if I had a squashed vertebra?”. It should be added that, in the opinion of Mr Brearley, the plaintiff may well have had some degenerative disc disease present for many years. However, whether this was symptomatic to any significant degree is another matter.

27        In his report of March 2002, Dr Kavanagh also refers to the plaintiff making a claim in respect of low back pain on 21 March 2000, and being off work for some four days. There is not a great deal of additional information concerning this. It is referred to in the affidavit of the plaintiff of 24 August 2006. It seems apparent that the plaintiff continued performing the heavy duties of a meatworker thereafter. Overall, it adds to the impression of some pre-existing degenerative disease of the lumbar spine and some prior symptoms which were not of sufficient gravity to prevent the plaintiff from performing the duties of a slaughterman, and there is no evidence of any substantial interference with his employment or lifestyle.

28        The bottom line is that there is inadequate evidence to establish to my satisfaction that the plaintiff had a low back problem of any magnitude prior to the relevant incident of injury. It may be that he had suffered some back pain previously. The fact remains that he returned to employment and worked, essentially as a meatworker, until the relevant injury was sustained.

29        I am prepared to accept that, prior to the occurrence of that injury, the plaintiff suffered from various conditions. I do not accept that the plaintiff had a back injury of any magnitude prior to suffering the relevant injury. He had prior back complaints. However, he was able to work in a physically demanding industry prior to the incident in question. Insofar as there were pre-existing back complaints, I am not of the view that they contributed to the impairment or its consequences which resulted from that injury, in a sense that I accept that he was essentially symptom-free prior to its occurrence. Insofar as there was aggravation of a pre-existing condition of disc disease, I accept that the symptoms and restrictions from which the plaintiff has suffered basically flow from the incident of injury. Prior to that he was able to engage in physically demanding work. After it, as shall be discussed, he has had problems. In accordance with the authorities, if the injury is in the nature of an aggravation, it is the aggravated condition and the consequences thereof which I shall consider. In the present case, they seem to me to represent essentially the entirety of the impairment and consequences of which the plaintiff complains.

(b) The injury

30        The injury occurred in September 2000. At the time, the plaintiff was forequartering calves, slipped on fat on the floor, and suffered a jerking and jarring injury to his back. The occurrence of such an incident of injury was not the subject of any major challenge. Indeed, liability for a brief period of statutory benefits seems to have been accepted, and that this acceptance was made in error was not asserted. In addition, liability in relation to impairment benefits seems to have been accepted. I am prepared to accept that the alleged incident of injury occurred.

31        On 11 September 2000, the plaintiff attended Dr Kavanagh at Bladin Street Medical Centre, Laverton. He gave a history of forequartering a calf on 5 September 2000 and jarring his back. He complained of low back pain. He also gave a history of attending Werribee Mercy Hospital on 6 September 2000, and of having obtained an injection in his right hip and lower back, as well as being prescribed Brufen and Panadeine Forte, which he did not use.

32        Dr Kavanagh organised an x-ray of the plaintiff’s lumbosacral spine on 12 September 2000, which revealed no abnormality. On 13 September 2000, the plaintiff, being no better, was referred to a physiotherapist, Mr Morrow. The plaintiff attended on Mr Morrow on two more occasions, and on 25 September 2000 it was recommended that the plaintiff return to work on light duties, which do not seem to have been available. On 26 September 2000, improvement being slow, the plaintiff was advised to use Voltaren and Panadeine Forte. He did not use them. On 6 October 2000, he was referred to Mr Michael Khan, orthopaedic surgeon, for an opinion. It is apparent that he did not keep the appointment which had been arranged. I might add that, given the nature of the plaintiff and the problems which he has had, such a failure comes as no great surprise.

33        On examination by Dr Kavanagh on 13 October 2000, the plaintiff still had back pain along with some physical signs of restriction. Dr Kavanagh has recorded that, on 31 October 2000, the plaintiff said that he was well enough to return to normal duties. However, he attended again on 11 January 2001, saying that his back was “not right”. When he reported on 5 March 2002, Dr Kavanagh was of the view that the plaintiff had suffered a low back strain, and had a good prognosis. However, it seems implicit in his report that, at that stage, he had not seen the plaintiff since 11 January 2001. A CT scan report of 24 December 2003 addressed to Dr Kavanagh showed, at L5/S1, some broad-based posterior disc bulging contacting the thecal sac but not causing any canal stenosis. The conclusion of the radiologist was that there was minor disc bulging at L5/S1 but no evidence of a canal stenosis.

34        What happened to the plaintiff thereafter is far from clear, and again the nature of plaintiff, his drug problems, his psychosis and his intellectual limitations must all be taken into account. As earlier stated, in early 2002 he was admitted to hospital because of his psychosis. At some stage thereafter, the plaintiff made a claim for impairment benefits. A letter of 23 July 2003 from the defendant’s insurer would indicate that liability was accepted in this regard. It would appear that the plaintiff at some stage commenced seeing Dr Peter Oliver at Jamieson Street Medical Clinic. Dr Oliver has recorded that, on 15 November 2005, the plaintiff presented in relation to a longstanding back problem. (Whether this was the first occasion on which the plaintiff consulted Dr Oliver about any medical problems is not entirely clear). Apparently, Dr Oliver sought notes from the previous treating doctor, but these were never received. On 17 March 2006, the plaintiff presented stating that he had continuing back pain which was now radiating to his legs. Dr Oliver arranged an x-ray and a CT scan in order to assess the problem. The scan was performed on 22 March 2006. In the opinion of Dr Oliver, the radiology showed an L5/S1 disc protrusion with no nerve root impingement. Indeed, in the attached report of the CT scan, the radiologist concluded that there had been revealed an L5/S1 anterior and posterior disc protrusion with no nerve root impingement.

35        In a comparatively up-to-date report of 15 September 2009, Dr Oliver referred to seeing the plaintiff on 30 March 2007, on which occasion the plaintiff was complaining of recurrent back pain and Dr Oliver suggested physiotherapy treatment, expressing some doubt as to whether this was ever undertaken. On 15 May 2009, the plaintiff presented requesting analgesia for back pain, and this was prescribed. On 16 July 2009, the plaintiff again mentioned back pain amongst other issues, declined further radiological evaluation, and requested further analgesia which was prescribed. On that occasion, Dr Oliver diagnosed ongoing low back pain with the plaintiff’s clinical condition being stable, and was unable to comment on the issue of employability because (as I read it) of other issues which had to be solved prior to an assessment of the plaintiff’s work ability insofar as his back was concerned. That completes the records of the treatment of the plaintiff.

36        The plaintiff has also been examined for medico-legal purposes. He has been examined on two occasions by Mr Robin Williams, consultant orthopaedic surgeon, these examinations being on 24 January 2007 and 13 August 2009. In addition to providing reports after each of these examinations, Mr Williams has also sent to the solicitors for the defendant a brief letter of 21 June 2007 in which he comments upon the CT examination of the lumbar spine performed on 22 March 2006. In his report of 25 January 2007, Mr Williams diagnosed a musculo-ligamentous strain of the lumbar region of the back, a condition which he regarded as having been resolved, but thought that the plaintiff had developed a type of chronic pain syndrome. He did not believe that the incident of 5 September 2000 produced any lasting pathological change, but felt that the plaintiff, who had a capacity for suitable light work, had remained unemployed as a consequence of chronic pain in the lower back. He believed that the plaintiff’s condition had stabilised and was unlikely to change in the foreseeable future. In his brief letter of 21 June 2007, Mr Williams stated that he had read the radiologist’s report of the CT examination of the lumbar spine of 22 March 2006. He regarded the changes seen at L5/S1 as being constitutional in nature and not a consequence of injury, and this finding did not alter the opinion that he had previously expressed. In his report of 13 August 2009, Mr Williams again found during physical examination that the plaintiff performed approximately a third of the range of movement in the lumbar area which Mr Williams expected would be normal for him. His conclusion was that the plaintiff continued to complain of pain in the lower back, as described earlier. The condition was stable, and was unlikely to change in the foreseeable future. Mr Williams also observed that the plaintiff remained unemployed, but he believed that he had a physical capacity which would enable him to perform suitable light work.

37        The defendant also arranged for the plaintiff to be seen by Mr Peter Scott, senior consultant surgeon, who saw him on 2 December 2009. Mr Scott had available to him information in relation to the results of radiological investigations. He noted that, since 2000, the plaintiff had complained of chronic low back pain for which he had received minimal or no treatment. Mr Scott also noted the CT scan of 22 March 2006 which confirmed the presence of an L5/S1 disc protrusion without evidence of neural compromise. He recorded a complaint of chronic low back pain present at all times, worsening if the plaintiff sat or stood for more than half an hour, or performed any bending, lifting or straining. The plaintiff stated that he was able to cope with the activities of daily living.

38        Mr Scott found the plaintiff to be pleasant and communicative. His diagnosis was of a work-related chronic low back strain and initiation of intervertebral disc lesion of the lumbosacral spine with intermittent lumbosacral nerve root irritation, but without any marked features of lower limb radiculopathy. He related the condition to the particular incident of injury on 5 September, noting that the plaintiff had made a good recovery from any previous back problems. He believed that employment appeared to be a significant contributing factor to the plaintiff’s present symptoms, whilst referring to other factors such as obesity, drug dependence and gaol terms which may have delayed recovery. However, he believed that the plaintiff’s condition had reasonably stabilised. Having referred to the fact that the plaintiff appeared to be receiving some form of pension for a drug psychosis, Mr Scott commented as follows:

“If one is considering organic disability alone (chronic low back pain and degenerative disc disease at L5/S1), I believe he would be perfectly fit for a wide range of light duties that do not require prolonged standing, prolonged sitting, repetitive bending, heavy lifting and he would be unfit to return to his job as a slaughterman.”

39        Mr Scott concluded by stating that he suspected that, if the plaintiff became more enthusiastically involved in a weight reduction program or an exercise regime, his back condition would improve enabling him to take up some light work, if such a position were available to him.

40        The plaintiff’s original solicitors caused him to be examined by Mr Michael Khan, orthopaedic surgeon, to whom the plaintiff had originally been referred by Dr Kavanagh, a referral which he did not follow up at the time. Thus, Mr Khan saw the plaintiff for medico-legal purposes on 13 August 2002, reporting on 13 October of that year. Mr Khan diagnosed a jarring injury to the back occurring in the relevant incident, following which the plaintiff had developed persistent pain in the lower part of the back and right buttock area. Mr Khan referred to the plaintiff as an uneducated man with no other skills who had not been able to find alternative duties, and whose employer had not been able to accommodate him with suitable lighter duties. Mr Khan diagnosed a musculo- skeletal and ligamentous strain to the lower part of the lumbar spine. He considered the injury sustained to have stabilised, leaving the plaintiff with a partial permanent impairment of function as an after effect. In relation to the plaintiff’s capacity for work, Mr Khan observed as follows:

“He is unable to perform heavy strenuous work requiring excessive bending, twisting and turning of his spine, keeping his back bent for long periods, or lifting unduly heavy weights.”

41        At the request of his present solicitors, the plaintiff has been examined twice by Mr Kenneth Brearley, surgeon. As with Mr Williams, Mr Brearley has reported on two occasions, but has also written a brief supplementary letter in which he comments upon CT scan results. In his report of 16 July 2007, Mr Brearley stated that, without the benefit of a relevant radiological report (Mr Brearley wrongly believed that an MRI had been conducted), it was difficult to make a firm diagnosis, but felt that the probability was that there was a significant injury to a lower intervertebral disc. He was of the view that probably there had been intradisc rupture of the L4/5 and L5/S1 discs, feeling that some degenerative disc disease would have been present for many years. However, Mr Brearley felt that the relevant incident had been of a much more serious nature than earlier incidents and “ … was the cause of his present, quite serious incapacity”. Mr Brearley expressed the view that the plaintiff was quite unfit for any manual labour as a result of his back injury and, whilst aware of the plaintiff’s psychosis, felt that if it were not for the back injury he would be continuing to work in the meatworks or doing similar labouring work elsewhere. He also expressed the view that the plaintiff had no work capacity at the moment and needed ongoing conservative medical treatment. He was of the view that there was no likelihood of the plaintiff improving and that his condition was stabilised. Mr Brearley’s concluding remarks were as follows:

“Certainly he will never be able to do any manual labour in the future and he has no experience whatever in other types of employment.

He has a serious disability as a result of the back injury sustained on 5 September 2000.”

42        In his brief letter of 31 July 2007, Mr Brearley referred to the results of the CT scan of 22 March 2006. He expressed the view that this confirmed the fact that the plaintiff had suffered intradisc damage at the L5/S1 level. He stated:

“There has been intradisc rupture of this disc and this would be the organic basis for his ongoing lower back pain and his resultant impairment and disability.”

43        Mr Brearley otherwise confirmed the remarks made by him in his earlier report.

44        Mr Brearley again reported on 27 July 2009. He noted that the plaintiff was in receipt of a Disability Support Pension and had stated that he had no intention of returning to work – a view which the plaintiff also expressed in the witness box. On this occasion, Mr Brearley expressed the opinion that, on 5 September 2000, the plaintiff suffered a disc injury with intradisc rupture and some resulting disc protrusion at the L5/S1 level, and also suffered aggravation of pre-existing degenerative changes in the facet joints at the L5/S1 level. This he described as being a significant physical injury with resultant permanent impairment. Mr Brearley described the plaintiff as being incapable of carrying out work as a slaughterman and meat labourer, and not fit for any other manual labour because of the relevant incident of injury. He viewed this inability to work as permanent.

45        Mr Brearley also gave oral evidence and was cross-examined. He agreed that, from an orthopaedic point of view, the plaintiff was capable of performing light duties. He regarded the CT scan of 22 March 2006 as indicating a significant posterior protrusion and stated that there does not have to be an obvious impingement of a nerve root being squashed in the canal before pain is caused. He accepted that, physically, the plaintiff could perform duties such as that of a gate keeper recording details of vehicles entering premises, but also believed that the plaintiff had no current work capacity “according to the Act” and that nobody would take him on “for sure”.

46        As earlier indicated, the plaintiff has also been seen and assessed by Mr Bill Radley, psychologist and vocational counsellor. His lengthy report, which includes a summary of the above medical opinions, does not purport to be a medical assessment itself. As earlier stated, it does refer to the plaintiff’s level of intelligence, but is basically a report which focuses upon the plaintiff’s prospects of returning to the workforce, undergoing retraining and the like. I shall return to a discussion of this report in my ruling.

47        I am satisfied that, in approximately March 2000, the plaintiff suffered an injury to the lower back whilst in the course of his employment. I am satisfied that such injury was in the nature of the initiation of an intervertebral disc lesion, as described by Mr Scott, or an intra disc rupture, as diagnosed by Mr Brearley. Mr Khan’s opinion that the plaintiff suffered a musculo-skeletal and ligamentous strain to the lower part of the lumbar spine is one made without the benefit of the CT scan, but his conclusions as to the plaintiff’s impairment and restrictions do not vary greatly from that of Mr Scott. I prefer the views of Messrs Khan, Scott and Brearley to the opinion of Mr Williams. Given that Mr Williams expressed the view that the plaintiff had a capacity for suitable light work and was remaining unemployed as a consequence of chronic pain, and given the nature of the plaintiff and the work which he performed, I find it difficult to accept that the incident did not produce any lasting pathological change, assuming that that means that the input of the work injury was temporary or transient. Overall, I prefer the opinions of the other specialists to whom I have referred, whilst noting that, even in the opinion of Mr Williams, it is suitable light work for which the plaintiff has a capacity. In summary, I accept that the injury suffered by the plaintiff was that which was demonstrated by the subsequent CT scan and was discal in nature. I might add that, even if it were more in the nature of a soft tissue injury or strain, its impact upon the plaintiff’s capacity for his pre-injury employment would be much the same.

48        I am also of the view that the plaintiff’s impairment and its consequences are permanent within the meaning of the Act. If Mr Williams’ opinion is to be read as being to the contrary, I do not accept it. Mr Scott, also examining on behalf of the defendant, has expressed the view that the plaintiff’s condition has reasonably stabilised and that he will continue to complain of chronic low back pain over an indefinite period in the future. Mr Khan stated the opinion that the plaintiff, following the injury, has been left with a partial permanent impairment of function as an after effect, and was prepared to assess him pursuant to the AMA Guides to the Evaluation of Permanent Impairment, a pre-requisite for such assessment being permanency. In his most recent report, Mr Brearley described the plaintiff’s physical impairment as being permanent with no likelihood of change in the foreseeable future. Mr Brearley was not substantially challenged on, and did not resile from, the issue of permanency during his cross-examination, even if he made some concession as to physical capacity for suitable light work. In the circumstances, I accept that the impairment and its consequences are permanent within the meaning of the Act in that they will persist for the foreseeable future. Insofar as the injury is in the nature of an aggravation, as previously stated it is the aggravated condition which I take into account.

(c) Development since the injury

49        Following the injury, the plaintiff seems to have been absent from work for a period which is difficult to determine but appears to have been for about three weeks, although compensation may only have been paid for part of that time. He claims that Dr Kavanagh then sent him back on light duties for approximately a week, following which he returned to that doctor claiming to be unfit. He was given another certificate, presumably in relation to fitness for light duties, and claims that he was then sacked upon his return. A claim form completed by the plaintiff on 11 September 2000 would indicate that he was injured on 5 September, reported it on 6 September and ceased work on that day. It would also indicate that he had not returned to work as at 11 September. The employer’s claim form, dated 15 September 2000, also refers to the plaintiff ceasing work as at 6 September, and it would appear that he had not returned to work as at the date of completion of that form. The situation is further complicated by the fact that, apart from any difficulties with the plaintiff as an historian, all records of the defendant were apparently destroyed in a fire on 20 June 2001 – see the affidavit of Mr Darrel Cody (who at the relevant time was the afternoon shift supervisor for the defendant) of 18 January 2007.

50        The report of Dr Kavanagh of 17 October 2000 would indicate a recommended return to work on light duties on 25 September 2000. However, such duties were apparently not available. In Dr Kavanagh’s report of 5 March 2002, there is reference to the plaintiff feeling well enough to return to normal duties on 31 October 2000. The report of Mr Khan of 13 October 2002 refers to the plaintiff not having worked since the injury, being given a light duties certificate to return to work on 25 September 2000, but finding that such duties were not available to him.

51        Thus, the situation is a little confusing, but the balance of the available material would seem to indicate that the plaintiff did not return to work with the defendant after the incident and was sacked in or about October 2000. The plaintiff has not worked since, and it would appear that effectively he did not work following the incident of injury. Save for one exception, he has not looked for work. That one exception is that, shortly after moving to Warrnambool but on a date which is unclear, the plaintiff went to the Warrnambool abattoir and applied for a job there, although he said that he did not see why he should have to get a job because he was in pain most of the time. In any event, he was not successful in obtaining some sort of work at the Warrnambool abattoir. That has been his only attempt to seek employment. He makes no secret of the fact that he is not looking for work.

52        The plaintiff has been in prison again since ceasing work. It would seem that he served approximately one year and eight months’ imprisonment commencing in approximately August 2007 and through to March 2009. The offences for which the plaintiff was gaoled on this occasion range from dealing with property suspected to be the proceeds of crime, through to resisting police, to trafficking in cannabis and amphetamines, and driving whilst his authorisation so to do was suspended. Furthermore, as best as I can ascertain, the convictions for these offences resulted in the breach of earlier suspended sentences, although what occurred in this regard is far from clear.

53        The plaintiff seems to spend most of his day in bed, normally arising at 4pm (if his evidence is accurate). This is so that his mother can watch her shows on television during the day, and he then watches television during the night. However, he has also stated that there are times when he has no back pain and times when the back pain is considerably worse, and he then goes to bed and lies down – this might be for anything up to four or five hours, this happening a couple of days a week. The treatment which he has had since the injury has been discussed, but aspects of it remain unclear. During cross- examination he volunteered that “I end up going and seeing a heap of surgeons at the Footscray General Hospital”, saying that he went there at least half a dozen times and would not agree to cortisone injections – “I wasn’t going to have them sticking needles in me spine and it’s only a temporary fix, it doesn’t fix the problem, so I refused that”. In answer to a question of mine, he said that it could have been in the Emergency Department, and that he did not really know what sort of doctors they were. This remains something of a mystery.

54        To Mr Scanlon he stated that he had taken very few Panadeine Forte tablets over the last ten years. To Mr Scott in December 2009 he stated that, for the past two years, he had been taking Panadeine Forte at the rate of two tablets a day. To Mr Brearley in July 2009 he stated that he was taking Panadeine Forte at the rate of two per day. It is interesting to note that the report of his current treating general practitioner, Dr Oliver, refers to the plaintiff attending on 15 May 2009 requesting analgesia, which was prescribed, and requesting further analgesia, which was again prescribed, on 16 July 2009. The plaintiff’s history is, to put it mildly, all over the place, and perhaps this is no surprise given his problems. I am inclined to think that the history given to both Mr Scott and Mr Brearley was, at that time, accurate, given that Dr Oliver was prescribing analgesia from May 2009. I have come to the conclusion that he probably was taking some Panadeine Forte despite the fact that he agreed in cross-examination that, having been prescribed pain killers by Dr Oliver, he did not take them. Following that, he said he would have been taking them sometimes, but he was not quite sure. He also said that Panadeine Forte made him feel sick and drowsy. It may be that, currently, it is only rarely that he takes some medication. I note that he also thought that the medication which he was taking for his psychosis was Brufen, which seems highly unlikely. In any event, it seems that his current treatment for back pain is minimal, and essentially he performs very few activities. I accept that he does have back pain of fluctuating severity, and that there are times each week when the pain is of sufficient magnitude to cause him to lie down. However, it must be said that he would seem to spend a great deal of his time at rest, whether it be in bed or in front of the television. The plaintiff did say that, when sitting in front of the television, he sits in a position so that his back is straight. He also comes to Melbourne approximately once a month for his amphetamines, although he has only recently had his licence returned to him. It would seem that either he drives or gets someone to drive him.

Ruling
(a) Pecuniary loss damages
55	Despite the fact that the plaintiff has only on one occasion looked for work since 2000 and that he made statements such as that he would not get out of bed for under $1,000 a week, and that he agreed that he might have the capacity to do a number of jobs if he was paid the right money, I am of the view that the burden of proof has been discharged in relation to pecuniary loss and damages. His statements about the $1,000 per week and the like were described by Mr Brookes as bravado on the part of the plaintiff. Whether it be bravado or a feature of his inherent personality, or whether his presentation is affected by his drug problems or his psychosis, in my view he is unemployable and incapable of being retrained for any suitable employment. The type of manual labour which he was performing as a meatworker is - when his age, experience, skills and education are considered in accordance with s.5 of the Act - the only work which he could do. That capacity has been removed by reason of his back injury. When one considers his obviously low intelligence, his illiteracy, his longstanding drug addiction and his lengthy criminal record (and leaving to one side his psychosis), manual labour, and in an environment where some of these factors are not particularly important to an employer, seems to me to be the only possible area of employment for this plaintiff. His injury has destroyed what was realistically the only capacity that he had.
56	Essentially the plaintiff had been a meatworker all his working life (save for prison activities and possibly the work done for Job Skills in Werribee) and seems to have been good at his work. Mr Cody said of him the following:

“Lindsay was employed for his experience. This is not a job for the inexperienced. Training is not required for him … Lindsay was one of the better fore quarter (sic) men but he was already experienced as he had at least 15 to 20 years experience doing the job. Lindsay was competent and a good operator.”

57        Bearing all of this in mind, it seems to me that there is one thing concerning which the majority of the specialist medical examiners are in agreement. The plaintiff is not capable of returning to his pre-injury work of a slaughterman or meatworker. I would refer to the following observations:

Mr Scott (defendant):	“ … he would be unfit to return to his job as a slaughterman.”
Mr Khan (plaintiff):	“He is unable to perform heavy strenuous work requiring excessive bending, twisting and turning of his spine, keeping his back bent for long periods, or lifting unduly heavy weight.” I would regard this as indicating unfitness to engage in the type of manual labour involved in the plaintiff’s pre- injury occupation, particularly bearing in mind the description of that work given by Mr Cody and by a knowledge based on evidence given in this and other cases concerning abattoirs work.
Mr Brearley (plaintiff):	“He is not capable of carrying out his pre-injury work as a slaughterman and meat labourer nor is he fit for any other manual labour because of the back injury he suffered on 5 September 2000.”

58        Mr Williams, examining on behalf of the defendant, has not specifically addressed the question of whether the plaintiff is capable of his pre-injury work, although one could readily draw the inference that Mr Williams is of the view that the plaintiff is not so capable, based upon the following remarks:

“He has remained unemployed as a consequence of chronic pain

he has experienced in the lower part of his back.”

“I believe he has the capacity for suitable light work.”

“He remains unemployed, however I believe he has a physical

capacity which would enable him to perform suitable light work.”

59        In relation to that capacity for suitable light work, Mr Scott has stated that the plaintiff “… would be perfectly fit for a wide range of light duties that do not require prolonged standing, prolonged sitting, repetitive bending, heavy lifting …”.

60        Thus, it seems to me clear that the conclusion to be drawn, almost overwhelmingly, from the reports of specialist examiners, and particularly recent ones, is that the plaintiff is unfit by reason of his back injury for his pre- injury occupation. It also seems to me that he is unfit for work as a manual labourer. That is specifically stated by Mr Brearley, and, when the restrictions applicable in the opinion of Mr Scott are taken into account, I would be surprised if that were not also the view of that specialist.

61        That takes me to the question of whether there is suitable light work for which this particular plaintiff has any capacity. In the absence of retraining, it seems to me that there is no such suitable work for this illiterate, untrained, psychotic, drug dependent man of low intelligence and with a criminal record. That takes me to the report of Mr Radley.

62        Mr Radley, who, as I have stated, is a psychologist and engages in vocational assessment and counselling, provided a very detailed report to the plaintiff’s solicitors, this report being dated 17 October 2009 and following upon a vocational assessment interview on 8 October 2009. Mr Radley was not required for cross-examination and no report of a similar nature, either disagreeing with or agreeing with that of Mr Radley, was placed in evidence on behalf of the defendant.

63        Mr Radley has made the following remarks:

“He has a level of general intelligence in the below to well below
average range and with his poor literacy skills, does not have the

academic ability to undertake any type of occupational retraining.”

“With his existing qualifications, skills and experience and injury

physical limitations (sic), my assessment is that Mr White:

• has no current capacity to return to his pre-injury employment or to any similar employment. He has no current capacity for work.

• has no current capacity to return to any type of alternative employment.

• has no current capacity to undertake any type of occupational retraining.

• has no capacity for any type of employment in the future. He is now unemployable.”

“He spoke slowly, tended to drawl and displayed poor articulation and a limited range of vocabulary. He seemed to have limited interpersonal and social communication skills. His general appearance, speech, vocabulary and interpersonal skills would suggest that he is not suited to general public contact work.

I found him quite cooperative, candid and open and he seemed to provide a reasonably honest and reliable account of himself and his injury without embellishment.”

“His educational and employment history and my professional assessment of his use with vocabulary, general knowledge and his ability to think and reason suggests that he has a level of general intelligence in below to well below average range. A level of intelligence in the below to well below average range suggest that he does not have the ability to undertake any type of formal occupational retraining.”

“Mr White has no capacity to return to his pre-injury or similar

occupation now or in the foreseeable future.”

“Mr White has no capacity to return to any type of alternative employment for which he currently has the necessary skills, training and/or experience. He has no current work capacity.”

“Mr White has no capacity for any type of occupational retraining.”

“Mr White is likely to have no work capacity for any alternative

employment in the future. He is effectively unemployable.”

64        Mr Radley also took a history of the type of duties which the plaintiff had performed when working for the defendant prior to injury. He was supplied with all necessary medical reports. He took a detailed occupational history which would indicate that, save for the brief work as a labourer with Werribee Job Skills, the plaintiff had been employed as a meatworks labourer for something in the order of 20 years.

65        I accept Mr Radley’s essentially unchallenged evidence. Apart from the fact that he was not required for cross-examination, or that no contrary vocational or intelligence assessment was put in evidence, Mr Radley’s report seems to me to make sense and to be correct. I accept that the plaintiff has no work capacity, is effectively unemployable, is likely to have no work capacity in the future, and has no capacity for any type of occupational retraining.

66        In summary, in my opinion, the relevant incident of injury has rendered this plaintiff unemployable. Without that injury, he had a very limited range of options in the workplace. That very limited range has been eliminated by reason of the injury. Bearing in mind all the facts which apply in this particular case, I accept the opinion of Mr Radley that the plaintiff has no capacity for occupational retraining, no capacity for work, and is now effectively unemployable. I accept that this will be the situation for the foreseeable future.

67        If that be so, the plaintiff’s earning capacity in suitable employment is zero. Accordingly, he has discharged the burden placed upon him by reason of s.134AB(38)(e) and (f). Given my finding that the plaintiff has no capacity to be retrained or rehabilitated into the workforce, I am also of the view that the burden pursuant to s.134AB(38)(g) has been discharged.

68        If it were necessary, I also find that the plaintiff has satisfied the “very considerable” test in relation to pecuniary loss damages. He has already lost ten years of income. Loss of income will persist for the foreseeable future. Accordingly, the “very considerable” test has been satisfied in relation to pecuniary loss.

(b) Pain and suffering

69        Given that I have found that the plaintiff has discharged the burden in relation to pecuniary loss damages as set out above, it is then probably unnecessary for me to make any detailed ruling in relation to pain and suffering damages – see the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170. Accordingly, the plaintiff is entitled to leave to bring proceedings for the recovery of damages in relation to his pain and suffering.

70        I might add that, whilst the case is a very peculiar one, the plaintiff would have satisfied me in this regard in any event. There seemed to have been very few things in his life, as I have previously stated. The one thing at which he was clearly good and competent, and which he enjoyed, was his work as a slaughterman. Apart from his drugs and, perhaps, his family, there was little else to his pre-injury existence, and this has been demonstrated by his lifestyle since the occurrence of the injury. His calling in life of some 20 years, interrupted by short gaol terms, was overwhelmingly that of a meatworker. That has been permanently removed from him. This loss of capacity to engage in a chosen occupation seems to me to represent to this plaintiff a far greater loss than it might to someone of greater and wider interests, abilities and intellect and to whom a much greater range of options and interests would be available.

71        My conclusion is that the plaintiff has also discharged the burden of proof in relation to pain and suffering damages.

Conclusion

72        The plaintiff is successful. He has discharged the burden of proof in both respects. Leave is given to him to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.

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