Wylie v Housing Commission Association Limited and VWA
[2010] VCC 801
•22 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04945
| TROY DAVID WYLIE | Plaintiff |
| v | |
| THE HOUSING COMMISSION ASSOCIATION LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 and 4 June 2010 |
| DATE OF JUDGMENT: | 22 June 2010 |
| CASE MAY BE CITED AS: | Wylie v Housing Commission Association Limited & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0801 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – whether consequences of injury meet statutory threshold – injury to the lumbar spine – application with respect to pain and suffering consequences only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Ryan Carlisle Thomas |
| For the Defendants | Mr M R Titshall QC and | Minter Ellison |
| Ms R J Boyce | ||
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence a proceeding seeking damages for the pain and suffering consequences of an injury sustained by him in the course of his employment with the first defendant on 20 October 2006. The injury relied on by the plaintiff is an injury to the low- back involving a disc bulge at the L5-S1 level. The impairment of body function associated with the injury is the impairment of the lumbar spine.
2 In support of his application, the plaintiff relies upon a number of affidavits, two of which were deposed by the plaintiff. The contents of the plaintiff’s affidavits sworn by the plaintiff may be summarised as follows:
• The plaintiff was born on 2 April 1980. After leaving school, he worked as a trainee manager for Coles for three years; studied performing arts
in drama and dance; undertook factory work and then commenced an
apprenticeship as a carpenter with the first defendant in October 2004.
He described his interests prior to his accident as involving fire twirling,
hiking, bushwalking, four-wheel driving, motorbike riding (on and off
road) and drama and dance. He said that immediately before the
accident, he was playing basketball and beach volleyball competitively
and that he was an enthusiastic rock climber.
•
He said that following his injury, he had suffered from persisting low-back pain and that his treatment, which had consisted of medication and physiotherapy, had been managed by his general practitioner, Dr John Meaney.
•
The plaintiff said that he loved his job as a carpenter, that he was desperate to finish his apprenticeship and that following his injury, he had returned to work in February or March 2007 on modified duties. He described having occasional flare-ups of his back pain throughout 2007,
and that by December 2007:
“The pain in my back at times was becoming almost unbearable. I was losing sleep and at this stage I felt that I could not go on and I ceased work.”
• He said that in 2008, he was accepted into a diploma course in building and construction at the Box Hill TAFE. The plaintiff was commencing the second year of that course at the time at which he swore his first affidavit. • The plaintiff listed the following consequences as being associated with his injury:
(i) he said he had abandoned his trade as a carpenter. In this respect, he deposed to the fact that he had never really settled down until he commenced his apprenticeship and that it was only a short time into his apprenticeship that he felt that he was doing something that really suited him. He said that he was good at his job and he enjoyed his workplace; (ii) he said that he could not play active sport anymore. He described himself as a keen sportsman and said that he had to give up beach volleyball, basketball and rock climbing by reason of his injuries; (iii) he said that he experienced pain every day, that it was mostly at a level of two or three out of ten and that he took medication for his pain every day. 3 In a further affidavit sworn 12 May 2010, the plaintiff deposed to the fact that:
•
There had been no real change in the symptoms associated with his back injury; that he continued to employ Mobic as a pain-controlling agent, approximately three or four times per week, and that he was also using Zoloft.[1]
•
He had successfully completed his Diploma in Building and Construction at the Box Hill TAFE in 2009 and had commenced employment with Liberty Builders as a maintenance officer on 17 March 2010. He said that his work involved him in attending building sites, assessing problems which might have arisen and implementing a solution to those problems. He said that his employer was aware of his injury and that he had been employed on the basis that he would not be asked to perform any heavy physical work. The plaintiff said he was paid $50,000 gross per annum, that he enjoyed his work and that he felt happier in himself now that he was occupied.
•
He continued to suffer from back pain, the level of which fluctuated. He said that the pain was worse if he sat, bent or stood for long periods, that he suffers from flare-ups in his symptoms which cause severe pain and that most nights he had trouble sleeping because of his back pain.
•
He had given up most of his sports but that since hurting his back he had undertaken rock climbing on a couple of occasions at an indoor rock climbing centre and had played the occasional round of golf.
•
Before he was injured he had been looking forward to his career as a carpenter but this had been lost to him. He said that his present job was essentially a supervisory position in the building industry and that he missed working with his tools.
[1] an anti-depressant
4 The plaintiff’s father, Mr David Wylie, filed an affidavit in which he deposed that before his accident his son was a fit young man who was a keen sportsman; playing basketball approximately two nights a week; engaging both in indoor and outdoor rock climbing and playing golf on a weekly basis. He said that the plaintiff’s injury had forced him to stop playing competitive basketball and effectively to cease rock climbing. He described having observed the plaintiff’s injury causing him difficulty if he sat for more than twenty or thirty minutes, when he stood for extended periods and when driving for long periods. He said that his son’s symptoms prevented him from engaging in strenuous physical activity and affected his sleeping pattern, with the result that he would regularly wake twice per night in pain and discomfort. He said that his son dealt with this by getting up and stretching or walking around to give his back a rest, or sleeping in different positions. He deposed to being aware that there were nights when his son had been unable to get back to sleep by reason of back pain. He described his son’s life as seeming to be in abeyance since his injury, but that his outlook had improved when he commenced his new TAFE course.
5 In an affidavit sworn 2 July 2009, Christopher Toan deposed to the fact that he had known the plaintiff since primary school and that he had always observed him to be a fit and active person who engaged in the sports of competitive basketball and rock climbing. He said that he and the plaintiff had been regular rock climbing partners, that they would go on rock climbing trips a few times each year, and that they would also train indoors from time to time. He said that since his injury, the plaintiff had been far less able to rock climb, that he had been limited to less serious climbs, but that even these had been difficult for him. He said that he had noticed the plaintiff experiencing difficulty in sitting in one position for long periods of time and that on long car trips the plaintiff was required frequently to stop and stretch or go on a short walk before continuing.
6 Nelson Da Silva, in an affidavit sworn 19 May 2010, deposed to the fact that he had known the plaintiff for fourteen years; that the plaintiff was a very good basketballer and that both he and the plaintiff had played in a basketball team which competed at an intermediate level. He said that after his injury, the plaintiff had stopped playing basketball with the team but instead that he would come down to watch the team play and provide some moral support.
The Plaintiff’s Viva Voce Evidence
7 The plaintiff gave evidence in the application in the course of which he said:
• He was presently employed by Liberty Builders as a maintenance officer and his job involved fielding telephone calls for builders’ warranty issues and investigating claimed imperfections. His work also involved organising trade persons to rectify works. He said that he was working pursuant to a certificate which restricted his lifting to items below 20 kilograms and that this restricted the duties he could perform on site. He agreed that he had the possibility of obtaining work as a site manager which involved organising trades, organising materials and managing the building process. He said that this was a more highly paid position which would be available to him “if the right set of circumstances came to a head”. • But for his injury, he had the intention of becoming a self-employed sub- contracting carpenter and that once he had accumulated sufficient start up capital, he had intended to buy houses, fix them up and sell for a profit. He said that being self-employed would have given him the opportunity to work when he wanted and as long and as hard as he wanted. 8 In cross-examination, the plaintiff said that:
•
Whilst doing his TAFE course at the Box Hill Institute of TAFE, he would travel to and from the TAFE, which involved a round trip of approximately 80 kilometres which he would undertake three days a week. He accepted that between October 2006 and the present time he used his car for recreational and social outings, which included travelling to Dadswells Bridge where he, with a group of friends, would camp. He said that before his accident, he had undertaken rock climbing at Wilson’s Promontory, Dadswells Bridge and Mount Arapiles, but that he now limited his activities at Easter to socialising and visiting wineries. He gave evidence that he effectively stopped dancing in 2001 when he suffered an injury to his groin.
•
Following his accident, he performed light duties with the first defendant between October and mid-December 2006, at which time he was away from work for approximately ten weeks by reason of his back pain. He said he thereafter returned to modified duties which he undertook initially on a part-time basis, and then from about Easter 2007, a full-time basis. He said that through this period he undertook his apprenticeship duties in accordance with the certificates for modified work provided by his general practitioner.
•
He qualified for his apprenticeship as the result of being given a special consideration for the fact that he had not completed the physical aspect of his work. He said that in 2007, he had been accepted into a TAFE diploma course in building and construction and that his qualification as a carpenter enhanced his opportunity for employment generally and promotion more particularly when combined with the diploma he now possesses having successfully completed his course.
•
He commenced with his present employer, Liberty Constructions, on 17 March 2010. He said that at the present time he was working as a leading hand, which involved organising trades and the supply of products and ensuring that work was done to schedule. He said that it had been made clear to him that he was employed for a specific purpose and that he was not to assist other tradesmen. He agreed that the possibility of promotion existed for him and that the likelihood of promotion was not affected by his injury.
•
He had practised fire twirling since 2003 and that the last time he had engaged in fire twirling was Easter 2010; that whereas before his injury he enjoyed bushwalking and four-wheel driving, he had abandoned those activities as they aggravated his symptoms; that he had sold his motorcycle because riding a motorcycle caused him back pain, but that notwithstanding this problem he occasionally rode a motorcycle owned by his fiancée’s uncle which was a Harley-Davidson, because he enjoyed riding motorcycles. He said he had commenced playing beach volleyball in early 2006 and that he played five or six games after his accident but ceased playing at that time on the advice of his physiotherapist. He said that he had played basketball after his accident but that he had injured his knee severely in September 2007.[2]
•
He had been “filling in as the leading hand” “for approximately six weeks”,[3] that he was carrying out this work at a site in Avondale Heights which involved a 45-minute drive from his present residence. He described the trip by car from his home to his office as involving half-an- hour in a good run. At the site in Avondale Heights , the plaintiff said that he had occasionally undertaken activities involving collecting rubbish and doing very simple work such as; removing hinges from a door; using a hand saw to cut a piece of moulding and using a nail gun to fix a piece of skirting board. He said that he had a tool belt which contained a number of items, including a tape measure, a chisel, a square and a hammer, but that he had never worn his tool belt at the site.
•
He played golf on a monthly basis at best; that his back injury restricted his golf and that but for the accident he would be playing fortnightly if not weekly. He said that he had no trouble walking 6 to 10 kilometres and that he was capable of driving wherever he wanted to, including long distances into the country. He said that before the accident, he would go camping four or five times a year and that this had been reduced to perhaps two times a year because of his back.
•
Although he had been generally certified as being unfit for work during his TAFE course, the change in his certification in 2010 to one as being fit for restricted duties, came about because of the change in the field of work available to him, and not his condition.[4]
•
His incapacity to continue working as an apprentice carpenter occurred as the result of a gradual build up through 2007, and that during 2008, although he was not working, his back was still exposed to stress by reason of the prolonged sitting involved in his TAFE course.
[2] The plaintiff’s evidence as to the reason for his ceasing to play basketball was confusing - see in
[3] T 53
[4] T77
9 In re-examination, the plaintiff said that:
•
Driving for more than half-an-hour aggravated his symptoms and that he often needed to stop and stretch his back out for 10 to 15 minutes.
•
But for his injury, he would still be heavily involved in rock climbing, basketball and beach volleyball, and that since the accident, he had only been able to play 18 holes of golf on two or three occasions.
•
He maintained his back by undertaking a weekly Pilates exercise class which he had participated in from the time shortly after his injury. He said that he employed an exercise regime which involved every morning undertaking approximately 20 minutes of exercises, and every evening undertaking approximately 30 minutes of exercise for the purpose of preparing himself for sleep.
•
Lying in bed caused him pain which woke him up and that he performed his exercise regime at night for the purpose of preparing himself for being “inactive for the period I’m in bed”.[5]
[5] T 85
The Medical Evidence
10 In a report dated 13 August 2008, Dr John Meaney described the plaintiff as presenting to his practice on 30 October 2006 with left lumbar back pain. He said that he had referred the plaintiff for a CT scan which was undertaken on 14 November 2006 and that the report of the radiologist was that the plaintiff was suffering from a minor broad based disc bulge at the L5-S1 level without evidence of central canal narrowing, nerve root compression or other findings of note. Dr Meaney described the plaintiff as presenting with an exacerbation of his low-back pain in May 2007 and a further exacerbation associated with undertaking some concreting work on 1 June 2007. He commented:
“This pattern of recurrent intermittent exacerbations continued through 2007, requiring ongoing anti-inflammatory medication and physiotherapy and [an] occasional course of Prednisolone. His depression persisted despite Lovan and this was changed to Zoloft in September.”
11 Dr Meaney said that in late December 2007, the plaintiff suffered a further exacerbation of his low-back pain. He described the plaintiff as:
“… quite determined and courageous in his efforts to maintain his role as an apprentice carpenter but at this point he felt he could not go on. His back pain was unavoidably aggravated by routine day-to-day onsite activities. Fortunately he was accepted for a TAFE course in building which would lead to various future options in the trade with avoidance of further stress on the back.”
12 In a further report dated 21 May 2010, Dr Meaney reported:
•
That the plaintiff’s low-back pain was repetitively aggravated by his work as an apprentice carpenter.
• That the plaintiff developed a reactive depression. •
That the plaintiff’s lumbosacral disc injury had made it impractical and inadvisable for him to continue working in carpentry and that he did not have the capacity to continue in his pre-injury duties – this incapacity being permanent.
•
That the plaintiff’s disc injury restricted him in his future activities and that he was required to avoid excessive bending, lifting, carrying or remaining in a flexed posture for extended periods.
• That the plaintiff’s disc lesion was permanent commenting: “His degree of discomfort is somewhat conjectural. Currently he is coping very well with his new career. Sitting for long periods – for example, in travelling for long periods by car – is potentially problematic.”
The Viva Voce Evidence of Dr John Meaney
13 Dr Meaney gave viva voce evidence in the course of the proceeding as follows:
•
That the plaintiff had been his patient for two or three years prior to the accident. He said that at the present time he was prescribing Mobic, an anti-inflammatory, and Zoloft, an anti-depressant, for the plaintiff’s use, his intention being that the plaintiff, hopefully in the near future, would cease using Zoloft but that he would probably require Mobic from time to time. He said that the plaintiff’s depression had improved since he had forged a new career for himself but that the normal activities of day-to- day life were likely to cause him pain every now and then which would be managed by the use of Mobic.
•
That the plaintiff’s depression was largely due to the frustration of his back problems and the interference of his back condition with his work and his sporting and leisure activities. He said that the plaintiff’s depression lowered his mood and resulted in both lack of energy and interference with sleep but that with the plaintiff’s new job, he was in a much better frame of mind and that he was seeing improvement in his emotional state.
•
It was common for people to have facet joint problems which did not show up on a CT scan, and opined that, in his opinion, the radiology of the plaintiff’s lumbar spine which indicated the presence of a disc bulge, was linked to his symptoms. He described the disc as containing layers of fibrous material and that the presence of a genuine disc bulge indicated that some of those layers had been torn. He accepted that the plaintiff’s subjective complaint of pain was a key factor in his diagnosis and that it was not his position as a general practitioner to question his patient as to the extent of the pain which he reported. He said, in this regard, that in late December 2007, the plaintiff presented complaining of:
“… another exacerbation of back pain causing insomnia. He feels he can’t go on. Constant repetitive back pain aggravated by routine day-to-day onsite activities.”
•
Prior to this, he said that he had seen the plaintiff twice in August 2006 for his back, once in September 2006, once in October 2006 and twice in November 2006, and twice in December 2006.
•
He had certified the plaintiff as unfit for work during 2008 and 2009 because he considered him unfit for any work that was available at his job site and he considered it would be better if the plaintiff did not re- aggravate his back pain whilst undertaking carpentry work. He said that in certifying the plaintiff as being totally incapacitated for work the relevant incapacity related to an incapacity for work as a carpenter and not an incapacity for any form of work; and that when he had certified the plaintiff as being either incapacitated or fit for modified duties, he had relied on the history given to him by the plaintiff.
•
On 14 March 2010, Dr Meaney certified the plaintiff as fit for modified duties, with the proviso that he avoid:
(i) working in a stooped posture; (ii) lifting greater than 20 kilograms; (iii) excessive bending or carrying; and that this certificate coincided with the plaintiff obtaining employment
with Liberty Builders as a maintenance officer.•
Since the plaintiff had commenced his new job in March 2010, he had seen the plaintiff often because he was still getting back pain, mainly from the travel involved.
14 In re-examination, Dr Meaney said that the main problem with the plaintiff’s back condition was that it limited what he could do and restricted his activities. He said:
“He knows if he does these things he’ll be in trouble, he’ll aggravate his back and then be in pain and be unable to do his – lead his full life until he settles down again.”
15 He said that the plaintiff’s depression contributed to his condition. The physical effects of the plaintiff’s injury would be to impose a substantial limit on his ability to do things, and that:
“He still wouldn’t be able to bend, lift, carry, work in a stooped position or
work as a carpenter.”
16 In a report dated 18 April 2010, Dr Robert Gassin, a musculoskeletal physician, states that he examined the plaintiff on two occasions: 14 December 2007 and 7 February 2008. He recounted a history that the plaintiff had suffered persisting back pain following an incident in which he had injured his back in October 2006, and observed:
“To his credit, Mr Wylie had remained at work, on light duties, as an apprentice carpenter. He stated some work duties, including decking and digging, aggravated his pain. The pain was improved when he was off work.”
17 Dr Gassin opined:
“At the time of consulting me, I considered that Mr Wylie was likely to remain unfit for his pre-injury duties, for the foreseeable future, on account of his physical symptoms.
To the best of my knowledge, Mr Wylie was working full-time on light duties at the time of consulting me and was coping with the duties. I therefore considered that he was fit to perform these duties. Given that Mr Wylie had last consulted me fourteen months after the injury, I considered that his condition had stabilised and that his incapacity was permanent.”
18 Mr Roger Westh, an orthopaedic surgeon, in a report dated 15 July 2009, expressed the opinion that the plaintiff presented with chronic mechanical back strain and could be considered to have a significant permanent impairment to his lumbar spine which was likely to last for the foreseeable future. He opined that the plaintiff would continue to experience mainly activity-related pain, that he would have difficulty sitting and standing for long periods, that he would be unable to return to his employment as a carpenter and would be permanently restricted to light work. He was of the opinion that the plaintiff would be able to work in a supervisory capacity and that his physical impairment had reduced his capacity to engage in social, recreational and domestic activities.
19 Associate Professor Julian Fella, an orthopaedic surgeon, provided a report dated 10 May 2010 in which he described the plaintiff presenting to him for the management of a right knee injury which had been occasioned whilst playing basketball. He said that he performed surgery upon the plaintiff at the Epworth Hospital on 16 April 2009, which involved an anterior cruciate ligament reconstruction, and that on the basis of a twelve-month follow-up from that surgery, he did not see any limitation on the basis of the plaintiff’s knee injury which would preclude him from any kind of manual duties or otherwise, or that would occasion any physical restriction to the plaintiff’s social, domestic and recreational activities in the foreseeable future.
20 In a report dated 10 September 2009, Dr Robyn Horsley opined that the plaintiff had suffered a discal disruption which had rendered him permanently unfit for his previous role as a carpenter, but that the plaintiff was fit for work as a site supervisor or project manager.
21 In two reports dated 29 January 2009 and 23 December 2009 respectively, Dr Phillip Mutton, a consultant occupational physician, observed:
“Mr Wylie continues to suffer from chronic low-back pain. He presents with mild disability but predominantly complaint of pain (sic). There is some mild restriction in thoracolumbar range of movement but no significant neurological abnormality in the lower limbs.”
22 Dr Mutton noted:
• That the plaintiff’s complaints were pain-related and that in the absence of significant physical findings and no supportive evidence on the MRI, it was difficult to determine the true level of the plaintiff’s pain and discomfort. • That the plaintiff was fit at that time for full-time restricted employment in which a weight limitation of 10 kilograms and the avoidance of pushing, pulling and twisting motions were applied as restrictions to the nature of his work. • That there were significant psychological elements relevant to the plaintiff’s presentation and that a review by a psychiatrist would be appropriate. 23 In his second report, Dr Mutton opined:
•
That it was unlikely that the plaintiff could return to full employment as a carpenter and that given the history of his back injury, he should try to avoid repetitive lifting above 10 kilograms with only occasional lifts of 15 to 20 kilograms. He said that within these restrictions, the plaintiff may be able to work as a carpenter, but repetitive low-back bending may well result in increasing symptoms.
•
That an occupation of a site supervisor or project manager would involve less physically-demanding work and that these occupations were within the plaintiff’s capacity, as were the occupations of carpentry supervisor and estimator.
24 In a report dated 24 September 2009, Mr Michael Dooley, orthopaedic surgeon, opined that the plaintiff had suffered a musculoligamentous injury which may have involved some aggravation of early underlying degenerative disc disease of the lumbar spine. He observed that the plaintiff had developed depression and this may be magnifying his perception of pain and that the ongoing limitations in the plaintiff’s everyday work and leisure activities were greater than he would have expected to see from the injury and the degree of underlying degenerative disc disease which was present. He expressed the opinion that, on balance, he would have expected the effect of the plaintiff’s work-related injury to have ceased by the time of his examination and that the plaintiff’s depression was contributing to his ongoing symptoms.
25 A Vocational Assessment dated 9 October 2009 was undertaken by Ms Mirium Taouk, a psychologist rehabilitation consultant. The following facts set out in that Assessment are relied upon by the plaintiff, namely:
(i)
The gross weekly earnings for a building property/services manager commence at $897.00 per week and peak, at the age of thirty-five, to $1,388.00 per week.
(ii)
Having completed an apprenticeship, a carpenter can command a rate of pay at an hourly rate starting at $30.00 an hour and, once experienced, at a rate of $45.00 an hour.
Findings as to the Reliability of the Plaintiff’s Evidence as to the Level of his
Symptoms26 It is correctly submitted on behalf of the defendants that the plaintiff’s case is heavily based upon his subjective complaint of pain. It is trite to say that the perception and tolerance of pain varies from individual to individual. I accept the defendants’ submission that, in the present circumstances by reason of the subject nature of the plaintiff’s symptoms that it is appropriate that I:
“should apply close scrutiny before accepting the plaintiff’s description of
the level of pain from which he suffers”.
27 I am of the opinion that the approach which I should take with respect to this issue is to examine any facts which may corroborate the evidence given by the plaintiff as to the extent of his symptoms, and on the basis of that analysis determine the reliability of the plaintiff’s evidence in this regard. In undertaking this task I take into account the following matters:
(i)
Whilst Dr Meaney clearly expressed the view that the plaintiff’s low-back pain adversely affected his ability to sleep and to maintain his position as an apprentice carpenter, the plaintiff’s attendances upon Dr Meaney, in both their number and in documentation by Dr Meaney within his medical records of the presence of the plaintiff’s symptoms, are only mildly supportive of that case;
(ii)
The plaintiff gave evidence, which was not the subject of challenge, that at no time following his accident did he regain the capacity to perform other than restricted work in the course of his apprenticeship as a carpenter. The preponderance of the medical evidence in the case supports this position. The fact that the plaintiff at no time after the accident returned to unrestricted duties supports the plaintiff’s evidence as to the ongoing nature of his symptoms;
(iii)
The plaintiff’s decision to give up his apprenticeship and to undergo retraining is supportive of the position that the plaintiff was suffering from an incapacity secondary to pain sufficient to motivate that change;
(iv)
The plaintiff has developed a depressive condition of such significance that he has required the prescription of anti-depressants in the form of Lovan and Zoloft for a period in excess of two-and-a-half years. The evidence is unchallenged that the plaintiff’s depression is secondary to his symptoms and the incapacity associated with those symptoms. This is further evidence in support of the extent of the plaintiff’s pain and incapacity associated with his injury;
(v)
The evidence given by the plaintiff as to the effect of his injury is corroborated in the affidavits of Mr David Wylie, Mr Christopher Toan and Mr Nelson Da Silva. Whilst I am not satisfied that the plaintiff has established that he gave up basketball by reason of the symptoms caused by his injury, the evidence does satisfy me that the plaintiff has given up most forms of strenuous physical activity, such as beach volleyball and strenuous bushwalking following his injury. This evidence is also supportive of the extent of the plaintiff’s symptoms;
(vi)
The fact that the plaintiff lost no opportunity to rehabilitate himself speaks generally to his credit is relevant in an indirect way as to whether I should accept his evidence.
(vii)
Although both Dr Mutton and Mr Dooley raised issues as to the ongoing effect of the plaintiff’s work-related injury, no medical practitioner has called into question directly the plaintiff’s reliability as an historian.
(viii)
Finally, I found the plaintiff to present generally as an impressive witness who made appropriate concessions in the course of his evidence. He took no issue generally with his ability to walk substantial distances.[6] Whilst he described an extensive exercise regime which he undertakes on a daily basis, he did not suggest that that regime was necessary to maintain his current employment.[7] He readily volunteered evidence as to activities he undertook, such as indoor rock climbing. The examples which I have specifically referred to are typical of the approach adopted by the plaintiff in the course of his evidence and attest to the view that I have formed of the plaintiff as being a reliable witness.
[6] T 60
[7] T 86
28 In the circumstances, I am satisfied that I should accept the plaintiff’s evidence as to the degree of his pain and the effect which his pain has had upon not only his ability to continue in his trade as a carpenter, but also upon his sporting and recreational activities and his lifestyle.
Findings as to the Consequences of the Plaintiff’s Injury
29 In deciding the issue which arises in this case namely; whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable; I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[8] and one in which I am required to take into account –
[8] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[9]
[9] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
30 There is a general consensus within the medical evidence that the plaintiff has been rendered permanently unfit for heavy physical work or from engaging in unrestricted work as a carpenter. I accept that evidence. Whilst Mr Dooley expressed the opinion that:
“On balance I would have expected the effects of the work injury to have
ceased by now”,
this opinion, as expressed by Mr Dooley, is at odds with the general tenor of
the medical evidence in the case, and I do not accept it.31 Whilst I accept that the plaintiff’s depression has played a part in augmenting the perception by the plaintiff of his symptoms, I am satisfied that the primary incapacity with which the plaintiff presents emanates from the organic condition which is present in his back. I make this finding taking into account:
(i) the evidence of Dr Meaney which I accept, that the plaintiff’s organic injury when considered independently, would impose substantial limitations upon the plaintiff’s ability to bend, lift, carry and work in a stooped position, and that it would preclude him from working as a carpenter;[10] (ii) that in expressing their opinions, Mr Westh, Dr Horsley and Dr Mutton have not opined that the plaintiff’s depression has impacted significantly upon his capacity to engage in employment or other activity. [10] T 118
32 It was submitted on behalf of the defendants that the fact that the plaintiff retains a capacity to work on a full time basis and that his retained ability to drive; to socialize; to holiday with his friends and to undertake activities such as riding the Harley Davidson motorcycle about which he gave evidence; all attest to the fact that whilst the plaintiff has suffered a number of adverse consequences by reason of his injury, those consequences do not satisfy the threshold imposed by the Act.
33 As to the plaintiff’s inability to pursue his trade, it is submitted on behalf of the defendant that the fact that:
(i) at a relatively mature age the plaintiff chose to enter into an apprenticeship as a carpenter; (ii) the plaintiff’s qualifications as a carpenter enhanced his promotional opportunities given the diploma which he now holds; (iii) the plaintiff continues to work in the construction injury; should be seen as ameliorating the loss to the plaintiff constituted by the effective loss of his trade. Whilst I accept this submission I do not consider the consequential ameliorating effect to be of any great moment.
34 The evidence given by the plaintiff as to the direction which he wished his working life to take upon completing his apprenticeship, together with the security and pleasure he derived from his work as a carpenter, was not the subject of direct challenge. I regard these losses as being very significant particularly when the plaintiff’s decision to pursue his apprenticeship was an informed one which was made after he had gained the experience of working in other industries.
35 I accept the evidence that the plaintiff was an active sportsman. I am satisfied that the injury to the plaintiff’s lumbar spine now prevents him from engaging in strenuous physical activity and in sports such as basketball and volleyball completely; that the plaintiff’s retained ability to engage in rock climbing is now confined to activities undertaken at the most conservative level of that sport; and that his ability to play golf or to ride a motorcycle is significantly restricted. Whilst against these losses it is appropriate to balance the plaintiff’s retained capacity to engage in some of these activities on a restricted basis, I am satisfied that prior to his accident, the plaintiff’s sporting activities formed an important aspect of his life and that the losses to which I have referred are losses of considerable significance to him.
36 I am satisfied that the plaintiff’s condition is largely stabilised. The fact that his symptoms have persisted for in excess of three-and-a-half years without significant change leads me to accept the opinions expressed by Dr Gassin and Mr Westh in this regard. I am satisfied that the plaintiff, at a relatively young age, will be exposed to symptoms which are likely to require him to exercise on a daily basis in order to attempt to control his symptoms and their impact upon his lifestyle; but that nonetheless it is likely that his symptoms will have a long-term adverse effect upon his ability to sleep and to tolerate standing or sitting in one position for long periods of time. I am further satisfied that even during the periods when his symptoms are controlled at their most benign level the plaintiff is likely to suffer exacerbations of his symptoms in association with movement and activity which will require him to resort to medication in the form of Mobic or the like in order to deal with those exacerbations.
37 I am satisfied that the plaintiff faces a real possibility that his earning capacity has been diminished by reason of his injury.[11]Additionally, notwithstanding the fact that having retrained and now presenting as a qualified carpenter who holds a Diploma in Building and Construction, the plaintiff is well-placed to secure promotion, I am satisfied that the plaintiff’s requirement to work under a certificate of the type issued by Dr Meaney,[12] would necessarily place the plaintiff at some disadvantage when seeking employment within the building and construction industry. I make this finding as a matter of common sense notwithstanding the plaintiff’s acceptance in cross examination that the possibility of promotion existed for him and that the likelihood of promotion was not affected by his injury. I consider that both of these matters are relevant considerations when undertaking the exercise of balancing the losses associated with the plaintiff’s injury against what has been retained.
[11] In making this finding, I rely upon the evidence contained in the report of Ms Taouk and upon the information contained therein as to the differential in the earning capacity of a carpenter and that of a building services manager. Whilst I accept that the plaintiff has very real prospects of promotion, whether those prospects are realized is as speculative as attempting to forecast at the plaintiff’s prospects of succeeding in his intended career as a sub-contracting carpenter ( in respect of which there is no reason to suggest his potential for success was any less than). For these reasons, I am satisfied that the present earning differential between the two occupations is an appropriate basis for the foundation of this finding.
[12] which placed restrictions upon the plaintiff’s ability to lift, bend, carry or work with a stooped posture.
38 I am satisfied that the combined effect of the matters which I have listed, when considered in the context of the capacities retained by the plaintiff and when judged in comparison with other cases in the range of possible impairments are such that it is appropriate to describe the plaintiff’s impairment associated with his injury as being “more than significant or marked” and as being “at least very considerable”, such as to satisfy the test of “serious injury” as laid down by the provisions of the Act.
39 In the circumstances, I am of the opinion that the plaintiff is entitled to the leave sought.
40 I will hear the parties as to the precise form of the orders which should be made and upon the issue of costs.
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particular T 52. I am not satisfied that the primary reason for the plaintiff’s ceasing to play basketball
lay in the condition in his back and not that in his knee.
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