co not bou suitable publication€¦ · melbourne 8, 11 and l3august 2014 14 november 2014...
TRANSCRIPT
N coAT MELBOU RNECIVIL DIVISION
ZORAN KORUNOSKI
METCASH TRADING LIMITED
OF JUDG ENT
Subject:Catchwords
Legislation Cited:Cases Cited:
Judgment:
APP EARA ES
For the Plaintiff
For the Defendant
COUNry COURT OF VICTORIA250 William Street, Melbourne
HER HONOUR JUDGE MILI-ANE
Melbourne
8, 11 and l3August 2014
14 November 2014
Korunoski v Metcash Trading Limited
Í2}14lvcc 1762
REASONS FOR JUDGMENT
UnrevisedNot Restricted
Suitable for Publication
Case No. Cl-12-01771
Plaintiff
Defendant
Solicitors
Nowicki Carbone
Minter Ellison
V¡ R
V
13448(16Xb) of lhe Accident n Act
airment of sPine - credit
0051 14 VR 622;Engineering PtY Ltd vine* GrouP PtY Ltd 120111
net PtY Ltd 120131 VSCA a6;
td t2dogl vscA 181; Peak
rkCòver AuthoritY v McKenzie
l2014lvscA 67Leave granted to the Plaintiff
Counsel
Mr S. McCredie
Mr D. Seeman
HER HONOUR.
lntroduction
1 The ptaint iff , zoran Korunoski, sought leave under section 134A8(16)(b) of the
Accident compensation Act 1985 (the AcÐ to institute common law
proceedings to recover pain and suffering damages' The plaintiff alleged
injury to his lower back arising out of or in the course of his employment as a
storeman, with the defendant Metcash Trading Limited (trading as IGA
Distribution) from 10 December 2005 and, in particular, on 28 July 2010 (the
injury).
The plaintiff was required to prove compensable Ínjury on or after 20 october
'1999. This was not an issue in this application'
The application was made under paragraph (a) of the definition of "serious
injun/'.1
under paragraph (a) of the definition, the plaintiff was required to prove a
"perrnanent sericus lmpairmenf c,'Jcss of a bcd'¡ functian", on the balance of
pr^obabilities.
,,Permanenf' refe¡'s to irnpairment that was "iikely to last for the foreseeable
future".2
Section 13448(3SXc) of the Act provides that the pain and suffering
consequence of the injury, when judged by comparison lvith other cases in the
range of possibie impairments o¡' loss of a body function, müst be fairiy
describ,ed as being more than "slgnificant'af "marked" and as being at least
"very cot'tsiderabie".
As my cjiscussion oÍ ihe evicjence summariseci beiow Shows, i was satisfied
the plaintiff had met the requirements of the narrative test, and was entitled to
2
J
4
5
o
7
1 Section 13448(37), Su*on SpinnÀ Þty UA & Ors v Podaiak [2005] 14 VR 622 i33l
1JUDGMFNT
leave
Background matters
8
10
11
12
13
I
Theplaintiffis3gyearsofage.Heismarriedwithtwoyoungchildren.
TheplaintiffcompletedYear12ataSecondaryCollege'lnadditiontoperiods
workingasalabourerandaSacasualpickpacker,fromaboutlg9S,the
plaintiff spent some 10 years at west Meats working as a labourer and QA
Officer (quality inspector) and rose to second-in-charge'
ln about 2004, the plaintiff started his own business', originally known as
Naroz Maintenance services and later known as Planet Pergolas (the pergola
business). The business involved construction of pergolas, for which the
plaintiff said he picked-up most of the materials and performed manual work
such as digging holes, erecting þosts, beams, bearers and roof sheets.3
r wiil discuss the pergora business and the praintiffls activities in this business
in more detail shortlY'
Asmentioned,fromaboutl0December2o0stheplaintiffcommenced
workingasafull-timestoremanforthedefendant.Hisdutiesalsoinvolved
operating forklifts and electric pallet jacks' The plaintiff worked approximately
36 hours per week, plus overtime. The plaintiff said his pre-injury employment
duties (manoeuvering boxes and cartons onto pallets and onto staging lanes
as well as manually shrink wrapping pallets) exposed him to heavy and
awkward lifting, twisting and repetitive bending'
on23July20l0,whilstperforminghisemploymentdutieswiththedefendant,
the plaintiff suffered injury described, in opening by his counsel, as.',,an acute
exacerbation of what had been a niggty back before then" '4 ln his first affidavit
the plaintiff described the circumstances in which the injury occurred as
t PCB 1 1b and TranscriPt (TN)18oTN4
2
vcc
JUDGMENT
4/lta
lc
16
follows:5
*16. On or about 2g July 2010, I was performing packing and shink wrapping
wcrk in the factcry. Th;,j,iark;/"as repetitive and invalved a lot af bending and
lifting. I bent down to shrink wrap a patlet a¡td felt my back stiffert up' I was
,n"ót. to complete the rest of my shift'
As my Ciscussion cf the medical evidence shows in due coui'Se' docto¡'s have
diagnosed work-related aggravation injury of a degenerative lumbar spine'
although the treating neurosurgeon, Mr Lo and medico-legal specialists' Mr
Brownbill and occupational physician, Dr Sutcliffe believe the injury probably
arso invorved discar damage. Mr Lo and Dr sutcriffe in parlicurar, have further
indicated that a significant right-sided disc bulge at the L5/S1 level and an
annular tear at the L4ls level probably explain ihe intermittent right thigh pain
r-ePoded bi' the Plaintiff'
in a report ciateci I iune 20i2, chiropractor, Dr Drinkwater, among other
things, reported treating the plaintiff in September 2OOT for a transient episode
of lower back and neck pain unrelated to the plaintiffls employment and two
further attendances, the last on 27 July 2O1A,for treatment of low back pain'o
!n his affidavit material the plaintiff acknowledged attendance on a
chir.opractc!- cn th¡'ee cccasions in the t¡'eatment of back pain between 2CC7
and 2010, which had not resulted in time lost from work or radiological
investigation.T As I understood the defendant's case, having conceded the
causal relationship between the injury and pain and the plaintiff's work (no
cjoubt informeci by speciaiist ciiscussion on both sicies of the impori of the
chiropractor's evidence), the defendant had not required analysis of the extent
of any impairment of the plaintiffs lower back before and after suffering
compensable injury in the course of his employment, as contemplated by the
UPCBSu PCB 4oc4oetPcB11c
VCC
JUDGMENT
decision in Petkovskiv Galtetti.s
Employment Post-injury
17
18
19
The plaintiff s claim form was submitted on 28 July 2010' I was told the claim
was accepted on 10 Augus I 2010 and weekly payments of compensation
were paid. The plaintiff said he remained off work for approximately 3 weeks
and returned to light duties. The light duties performed involved hourly
rotations, operating either a forklift or an electric pallet jack' over some
months the hours worked were gradually increased to pre-injury hours of 36
hours per week.
ln his initial affidavit evidence, the plaintiff had not explained the capacity in
which he worked in the pergola business before the injury. My interpretation
of the affidavit evidence was that, when he swore his first affidavit, the plaintiff
was performing light duties for the defendant and working on weekends in the
pergola business, the latter in a supervisory capacity ("/ work in a supervisory
capacity on weekends building pergolas. My father-in-law, cottsin' and
additionat staff and contractors as necess ary, pertorm any manual fasks as
required"s). However, the seeoncl affidavit, Sworn on 6 August 2013' clearly
stated that, pre-injury, the plaintiff performed the heavy manual tasks involved
in the construction of pergolas ("Prior to the incident with the defendant' over
the weekends t would perform work framing up, sheeting up and putting posfs
in and out of the ground. Now due to my iniuries I am unable to do any heavy
work and t try to hetp my father-in-taw but it is difficutt as I am in too much
pain"lo).
lrrespective of whether the plaintiff was advised that no further light duties
were available and sent home or, as the defendant's counsel told the court'
the job the plaintiff performed no longer existed, the plaintiff was still certified
u ¡rss+1 1 vR 436
tPcgT
'o PCB 11b
4vcc
JUDGMENT
2A
21
22
for and performing only light duties when his employment was terminated by
the defendant on or about 21 October 2011
Under cross-exannination, the plaintiff explained, he had not returned to
per-forming manua! tasks in the pergola buslness by the time he s\¡"ore his first
aftidavit on 25 Novembe r 2011 .11 However, under further cross-examination,
whilst unable to recall when this occurred, the plaintiff acknowledged some
involvement in the manual construction of pergolas, paÉicular'ly after August
2013, when his father-in-law or others were not available to perform this work
(.- - - Like if I can, if I feel comfo¡table, if my back is not in so much pain I will
probabty have a go at it, other than that t witt get one of me colleagues to do
if'").
I will discuss my understanding of the evidence of the plaintiff's involvement in
the pergola business when I summarise the film obtained during surveillance
was conducted in August and October 2011 anci September 2012.
ln a seeonci affidavit, sworn on 6 August 20'i3, ihe plaintiff reievantly cieposeci
to the following additional matters:Í3
. as a result of his injury he had not been able to return to his pre-injury
duties or"to alte¡'natrve employment with any simi!ar organisation;
o he couicj not per-form any heavy iitting anci found sitting or standing for
prolonged periods difficult;
. he now worked mainly in a supei-visory capacity in the pergoia business,
with his father-in-lau,, ánd adCitional staff peforming all of the heavy lifting
and most of the digging;
. he now has to bring in nnachinery to dig holes and, whereas in the past he
picked up/colledeã most of the materials for constructing pergolas
iincluding the posts and heavy items) these were now delivered to the
work site;
o jobs now took ionger because the plaintiff had, in his words: "to stretch'them
out due to severe pain and timitation of mavement'.
11 -rxr ¡o¡ ¡r rut'rN 2113 n¡-n ¡ ¡ l-
r\JD I lu
5VCC
JUDGMENT
23
24
It was common ground that after the termination of the plaintiffls employment
by the defendant, the pergola business grew and, it follows' the gross receipts
fromthebusinessWeresubstantiallygreaterthanbeforehand.
ln his third and final affidavit sworn on 6 August 2014' the plaintiff relevantly
stated the following: 1a
o with the passage of time the pergola business had improved' although the
work varied considerably' He perfo
month with each job taking about 2
worsened low back Pain and requir
discuss the further slrveillance film obtained in June 2014 shortly;
o he was earning considerablY less
I am etlerbation:exacerbations is unavoidable" '
25 As I understood the evidence, in this Gase, the plaintiff never denied
performing some of the physical tasks involved in constructing pergolas'15 The
gist of the plaintiffls affidavit and oral evidence, however, was that he could no
longer perform, as he had before, the heavier tasks involved in picking up
materials and constructing pergolas. The defendant, neveftheless' challenged
the claim that the plaintiffs role in the pergola business did not also involve a
substantial physical contribution to the construction of pergolas'
to PcB 11e-ftu TN 39 and 75
6vcc
JUDGMENT
lo The defendant fufther disputed the plaintiff's asseftion that the consequences
of compensable injury met the statutory test, because he was, the defendant
submitted, demonstrably capable of engaging in heavy manual labour as well
as engaging in all of the normal activities of daily living.
The evidence called and tendered
The plaintiff attested to the accuracy of his three affidavits, sworn on 25
November 2011, 6 .August 2013 and 6 August 2014 respectively' He was
cross-examined. On 6 August 2014, his wife, Melissa Korunoski swore a
short affidavit corroborating, among other things, evidence such as the impact
of the injury on their intimate relationship and, more specifically, the evidence
thai, afte¡- cnly some months working ful!-tirne, she had been fo¡'ced to give-i'ip
employment because her mother's illness prevented her from assisting with
childcare. The plaintiffs wife was not required for cross-examination'
The plaintiff and the defendant tendered extracts from their respective court
Books.
29 The material tendered by the plaintiff comprised multiple reports from treating
doctors, health professionals and medico-legal specialists and copies of
radiologieal reports, the latter obtained between 28 July 2010 and 10 June
20i4.16 Additional documents separately tendered by the plaintiff comprised
an agreed sijminaiy of iax returns,iT an agreed summary of surveiilance,is
(the latter, recorded multiple dates betrveen 18 Augus+,2A11 and 27 June
2A14 on which surveillance of the plaintiff was undertaken) and the plaintiff's
tax returns for' 201 1 ,2A12 and 2A13'1e
The materiai tendered by the ciefendani comprised muitipie reports from
medical specialists together with two letters of instruction sent to orthopaedic
3û
tu Plaint¡ffls Court Book (PCB), Exhibit P1tt Exhibit P2tt Exhibit P319-,.,-,^,EXillLllI rz+
27
28
7VCC
JUDGMENT
31
Credit issues
33
34
32
surgeon, Mr Michael Dooley.20 Additional documents tendered by the
defendant comprised four surveillance DVDs with film obtained on 11 August
2011,'18 to 28 Augusl 2011 , 16, 22, 23 and 24 September 2012 and 23, 24
and 26 June 2014,21 copies of extracts from the pergola business website,22
and reports obtained from the plaintiffs doctors, orthopaedic surgeon, Mr
John O'Brien and general practitioner, Dr David Frost'23
I viewed the film and read the materials tendered and, where appropriate'
these have been referenced in this judgment'
There was a sustained attack on the plaintiff's credit, particularly on his
evidence about the extent of his involvement in performing physical tasks in
the pergola business following termination of his employment in October
2011. The attack on credit was, the defendant submitted, relevant to the
assessment of the reliability of the plaintiffs subjective reports of pain and to
an understanding of the extent to which the plaintiffs capacity for physical
manual labour had been restricted by injury'
However, aS my discussion of the evidence and, in pafticular, the extensive
surveillance film viewed at hearing, shows I could not be satisfied the
defendant had established, that the plaintiff had attempted to mislead the
court and doctors particularly about his physical capacity to work manually
without restriction; that there was a pattern of deliberately avoiding answering
difficult questions under cross-examination or of the falsity of the evidence
that members of the plaintiffs family assisted in the pergola business without
payment.
Having considered the evidence as a whole, I could not be satisfied the
20 Defendants Court Book (DCB), Exhibit Dl
" Exhibit D2tt Exhib¡t D3
" Exhibits D5 and 6
Ivcc
JUDGMENT
plaintiff's evidence involved deliberate untruths or showed a pattern of evasion
or exaggeration, in the Plaintiff:
. being unable to recall whet as
part ãt his gym work 2a or, ory
role, he manuallY installed o]:
wheiher in ihe i á monihs prior to s ust
2013 he occasionaiiy performeci of
pergoias; 25
. indicating he did not know whenthe financial years ending 30 ii¡incorne either earned from the Perfinancial Years or when asked whr
business of some $156,950 in the financial year ending 30 June 2012 was
produced by the plaintiff managing the business, working in a supervisory
capacity witn ãther people doini thê physical work;26
o indicating that family members filmed assisting the plaintiff in his pergoia
businesJdid so without PaYment;27
. being unable to recallwhether back pain had worsened after a fall at home
in August z¡¡a, which the plaintiff agreed,led to x-ray investigation of the
spineãnd prescription of Panadeine Forte;'o
o qualifling his affidavit evidence by acknowledgjng that before. the injury
only a few, noi mgst jobs for the ionstruction cf pergolas required him to
pick up materials;2e
o being unable to explain how much busier the pergola business was'
haviñg told the cour[ it was a iot busier than before;'"
indicating to oi'thopaedic surgeon,unabie to sustain ani- Ph'Ysicalaggravation of back Pain'31
1..4¡' O'Brien on 22 A'pril 2013 that he'"vas
aciivit'y' because this "rapidl'f' ied toa
5Ð Having suffered injury to his spine at a relatively young age, the plaintiff
presenteci as an incjiviciuai who haci irieci io gei on with aii facets of his life'
inclucing per.forming modified ernploynnent duties and, paficularly fcllor'^"ing
ierrnination oi his empioymeni, cieveioping his business as a means oÏ
to TN 14tt TN 1B-23
'u TN 30-47
'' TN 67
"TN4529 ¡xt ctlrTu+to TN 653'1 -, , -^!t\ i o
q
vccJUDGMENT
Supportinghisyoungfamily.lmportantly,theevidenceasawholehadnot
indicated the plaintiff was prone to exaggeration of his physical disability
following the injury
36 My impression of the plaintiff, having heard his evidence and read the medical
evidence, was that he was not a particularly sophisticated individual' whilst' at
times, his answers were vague or lacked precision, the plaintiff' nonetheless'
appeared genuinely responsive (not avoidant) and made many concessions
along the waY
3Totherthanthereturnforthefinancialyearending30Junez}lfinwhich
$3000 was deducted for contractor/subcontractor expenses, the plaintiffls tax
returnstypicallyshowednodeductionsforpaymentofwages.32
33lf,aSWaSsubmitted,theevidencethatmembersoftheplaintifflsfamily
worked in the pergola business without payment seemed implausible' I could
notascertainanyobviousadvantagetotheplaintiffinnotalsodeclaringany
additional expenditure for labour incurred by the pergola business'
39lnthecircumstancesdescribed,ldidnot,asinvitedbythedefendant,draw
anyinferenceadversetotheplaintifffromthefactthatmembersofhisfamily
hadnotgivenevidencetocorroboratetheclaimthattheywerenotpaidto
assist in the Pergola business'33
40 I will elaborate more fully on these and other aspects of the plaintiffls evidence
duringdiscussionofthemedicalevidenceandthefilm.
Theplaintiffsmedicaltreatmentandassessmentofhisconditionbetween23July
2010 and termination of his employment on 21 October 2011
The plaintiff initially sought treatment from his general practitioner' Dr
Entezami on 28 July 2010. This doctor arranged for cT scan of the plaintiffs41
t'Exhibit P4tt TN 141 and 157
vcc10
JUDGMENT
42
43
44
45
lumbar spine in the investigation of low back pain radiating to the left l"g'to
The results of this scan, relevantly indicated severe degeneration and right
paracentral disc protrusion at the L5/S1 level as well as degeneration and
posterior central disc protrusion at the L4l5 level'
Neurosurgeon, Mr Patrick Lo treated the plaintiff over a two-year period from 4
August 2O1O (eight consultations between August 2010 and August 2ti2)'
The plaintiff initially presented with lor'v back pain, radiating dou"n his left !eg'
MRI investigation ordered by the specialist on 12 August 2010 revealed,
firstly, posterior central disc protrusion (5 mm) and associated tear at the L4i5
level, without evidence of nerve root impingement, although the traversing L5
nel.ve rccts appeared eentacted bui not corrlpiessed and, seeondiy, acivanceci
degenerative changes, with broad posterior bulge and posterior right
paraeentral protrusion (6 mm) at the L5/S1 level' 35
The plaintiff was treated conservatively (medication anci physiotherapy) anci,
uncier the cautious supervision of his speciaiist, in August 201A, the plaintiff
returned to modified duties with restrictions on bending, t'¡"isting, !ifting
weights cf more than 10 kilograms and so forth'36
on 2 Septembe r )a1.0 the neurosurgeon wrote to the plaintiffls general
practitioner advising against relaxation of the restrictions on the plaintiffs
duties at a time when the raciiologicai evicience incjicated a quite iarge right
L5/S1 disc p¡clapse ccrnpressing the exiting right S1 nei've ¡'oot. 'un/hile the
neurosurgecn accepted that the plaintiff was neurologically "intact", his
concern had been to rest:'ict activities, which could lead to inci'easeci
weakness of the piaintiff's right foot. He reeommended further ¡-eview of the
piaintiff's progress ancj reassessment of the work restrictions in three months'
34 n¡n 44rvÞ tztu PCB 13-1s?Ê -^- .^ ^-Yl,ó lv-Lu
vcc11 JUDGMENT
46
time.37
ln the interim, the plaintiff was examined on 10 Novembe r 2010 by a specialist
appointed by the insurer, occupational physician, Dr Bowles' Among other
things, on this occasion the plaintiff apparently described his back as: "not too
bad,.38 However, the plaintiff also described a range of symptoms some of
which were brought on by activity ("He said he would get a stabbing sensation
in the backor a sens ation tike there was a weight pushing on the back' Back
complaints tended to come and go, brought on with sitting or standing in one
position for longer. Mr Korunoski sard as long as he was moving and mobile
he was not too bad. He said he was "oK" with bending but was not doing
much in the way of tifting. He indicated now and again getting some
discomfort down the right leg. He said initiatly there was numbness down the
right teg and into the foot though he has had no recent foot complaints' ln
termsofprogress,MrKorunoskisaidhewasimprovini')'
Dr Bowles diagnosed a resolving back strain injury. Notably, at that time'
absent evidence of significant right leg pain and' allowing for the possibility
that the protrusions identified in the radiology may have been present before
23July2olo,DrBowlesindicatedhecouldnotbesatisfiedtheseprotrusions
were clinically significant. This was the context in which' Dr Bowles
concluded the specialist's "attitude to the disc protrusion and ifs posstb/e
course" was alarmist (that is to say the neurosurgeon's concern that the
plaintiff act protectively to avoid potentially more serious damage to the disc'
was excessive).3e
Surveillance was first undertaken in August 2011'40 Thirty-seven minutes of
segmentsoffilmobtainedonlS,23,2S,26and28Augusl20llwasshown
at hearing (the August 2011 fìlm). The plaintiff was observed for some hours
47
48
" PCB20*DCgo
"DCB7oo Exhibit P3
vcc12 JUDGMENT
¿.q
50
51
52
53
on 24 August but not filmed.
The film shown at hearing captured the plaintiff engaging in a va¡'iety of
activities as summarised below.
For instance, on the morninq of 18 Auqust 20',11 the plaintiff aoparently
attended the Autobarn and another store (Jaycar) seeking a globe to fit to his
vehicle. At different times the plaintiff was filmed leaning, bending and
stretching into his parked vehicle, inspecting the vehicle, entering and driving
the vehicle and walking along the street-
Counsel's interpretation of particular aspects of this film accorded with mine'
For instance, when leaning into the vehicle the loading on the plaintiff's back
probabiy was, as submitteci, cjisiributeO through his thighs being pressed
against the yehicle and by the ¡-educed angle of the plaintiff's back. Ho'"vevei',
the plaintiff mostly appeared to move about without restriction or outward
signs of pain, other than when walking. The plaintiff typically walked with a
slow gait and, on one occasion, he appeared to limp as he entered a store'
Under cross-examination the plaintiff rejected the statement that bending into
the vehicle hacj not been: "tao much af a problem".41 The plaintiff told the
Court that, on the contrary, he had been in pain at the tirne but the task he
was performing had to be done. This and other responses given, particularly
during cross-examination, reinforceci the impression that the piaintiff had not
su¡-rendei-ed to his conditicn and, even whei'e this exace¡'bated pain, whei'e
necessary, he performed an activit-v or activities'
However, as I understood his evidence, as a general rule, the plaintiff
modifieci his aetivities to accommodate limitations imposed by his condition
and by the doctors, as when he sought assistance from other family members
to perform the heavier tasks in running the pergoia business.
¿1 *.. --rN bb
VCCIJ JUDGMENT
54 on the afternoon of 23 August 2011 the plaintiff was filmed over some hours
working along with his father-in-law and brother-in-law at a worksite in
Footscray. The plaintiff told the Court that he was supervising the job and the
cement sheets seen in the film would have been earlier placed on top of his
vehicle by the supplier's forklift driver. The plaintiff agreed this was an
occasion on which he had picked up materials, notwithstanding his earlier
affidavit evidence that following the injury he had to have materials delivered
to the work site.a2
The plaintiff agreed he provided some assistance in unloading materials and,
on one occasion, carried on his shoulder a .55 milligram piece of Colorbond
flashing used for capping. Nevertheless, apart from carrying smaller items'
the heaviest being a circular saw (maybe 3 to 4 kilograms'3¡, it was apparent
from the film that the repetitive lifting and the carrying of heavier materials was
left to the other men working with the plaintiff at the site.a
From my observation of film taken at intervals over Some hours' the plaintiff
took many breaks and 'smokos' and, at times, he moved in a protective
fashion, as when he was seen entering the driver's seat of his vehicle or
walking slowlY.
I had not observed the plaintiff to squat in the film obtained in August 2011'
However, when asked, the plaintiff agreed the film had shown him squatting,
but rejected the suggestion that he had no problem with this activity' He told
the Court that both his ability to squat and rise from a squatting position was
limited and, he avoided repeated squatting. The plaintiff, nonetheless'
indicated that, at times, he squatted of necessity' I will say more about this
activity in my discussion of later film, shortly'
The film obtained on other days in August 2011 was unremarkable, save for
55
56
57
58
o' PcB 11b and TN 58otTN 113* TN s7-58
vcc14 JUDGMENT
the segment obtained on 26 August 2011 in which, among other things, the
plaintiff was seen lea',ring his vehicle and slowly walking (possibly limping)
across the road
tôJA Notab!;ø, in Jul-v, 2014 neurosurgeon, Mr Brown-bil!, was asked Lry the plaintiff's
solicitors to comment on the Augusl2}ll film, having also apparently read
the surveillance report. Mr Brownbill agreed with the reporl that the ptaintiff
had been seen on one occasion to alight f¡"cm a vehicle in a slow rnanner but
other activities had been conducted in an unreqtricted manner with no sign of
pain or restriction. He indicated this was consistent with the history given and
the clinical findings made during his examination of the plaintiff on 14 May
2014.45
60 Orthopaedic surgeon, Mr Francis examined the plaintiff on 31 A-ugust 2011' aI
the request of the insurer, shortly after the August 201'l film= ! could see no
obvious inconsistency between the activities depicted in the August 2011 film
and the history reported and clinical findings reeorded by Mr Francis on that
occaslon
61 Mr Francis took a detailed history, which included the plaintiff's claim that prior
to 28 July 2010 he had ncteC increasing !o'"^¡ back pain.a6 Based on thls
history, the results of the radiology and his ciínical examination, lvlr Francis
diagnosed work-related exacerbation of constitutional multiler,'el degenerative
disc disease of the lumbosacral spine, which had, he said, since ¡-esolved'
The latter was a surprising conclusion given the plaintiff continued to repoil
symptoms and the surgeon's recommendation that the plaintiff abide by the
work restrictions imposed by not attempting to return to his pre-injury duties,
untii eleared by his treating doctors.
62 This is not to deny, however, that the plaintiff's physicai condition improved
ou ece sai-;.- LJUB 1.J-19
vcc15 JUDGMENT
63
over a per¡od of time. As Mr Lo's many reports showed'a7 with physiotherapy
and occupational therapy, the plaintiffls capacity for work improved' although'
in the treating neurosurgeon's opinion, this was never to the extent that the
ptaintiff was capable of returning to pre-injury duties or to the extent that
restrictions on bending, twisting and lifting and on prolonged sitting were no
longer necessary. Notably, specialist opinion obtained in 2013 and 2014 has
also indicated that, as a result of the injury to his low back, the plaintiff is
permanently restricted to performing light work'
onl4October2lll,shortlybeforeterminationoftheplaintifflsemployment'
Mr Lo concluded the plaintiffs recovery had plateaued and ongoing complaint
of back and leg pain, the right greater than the left, called for further
investigation.
FurthersurveillancefilmwastakenonT,g,lland12october20ll'
segments of film (just over eight minutes in total) were shown at hearing' on
several occasions the plaintiff was seen walking slowly' He was also shown
bending into his vehicle and, on one occasion, carrying a box of brackets
purchased at Bunnings. To my mind, none of the film shown indicated activity
inconsistent with the plaintiffls claimed level of physical incapacity at the time'
This film and the August 2011 film did, however, establish that before and
after the injury the plaintiff picked up materials for his pergola business'
although,astheplaintiffsaid,suppliers,suchasBlueScopeSteel,probably
also delivered materials'aB
lwastroubledbythedefendant,sinsistencethattheplaintiffhadattemptedto
mislead the court when he deposed that before the injury he picked up or
collected most of the materials but now had "fo get it delivered''as
64
65
66
ot PcB 2o-26 and DcB 2-3
" TN o2-60 fullot PcB 11b and TN 64
vcc16
JUDGMENT
67
68
The piaintiff readily accepted this evidence could have been more preclse'
Nevertheless, I was satisfied from the plaintiff's affidavit evidence as a whole
and his earlier responses to cross-examination' that he had already conceded
performing physical/manual tasks in the pergola business after the injury
(particularly after August 2013 and when others were not available to perform
this work), however, the plaintiff said he modified his activities and avoided the
heavier tasks because the latter caused pain"
ln evaluating the consequences of the injury, one of the questions for
determination was whether and the extent to which, materials were delivered
post-injury as a consequence of ongoing impairment of the plaintiffls spine'
Having accepted the evidence that the plaintiff probably has a light work back'
ihaveaisoacceptecJasiiKeiythathisphysicaldisabilityhadcontributedtoan
ine¡.ease in deliveries ef the heavier mate¡'ials i'equii'ed ln the opei'ation of his
construction business.
Medicar treatment and assessment by the treating neurosurgeon, general practitioner
and psychologist post termination of employment
69 Repeat lV4Rl on 26 Octobe r 2a11 apparently confirmed ongoing disc bulge at
the L4l5 and the LSiSi levels although, as noted b5," l'4r Lo in a repoi-t to the
Accident Compensation Conciliation Se¡'vice (the ACCS) dated 21 November
2011, the resuits of this Scan indicateci a markeci improvement in the
pathology revealed at the L4l5 level'50
-^ n*ong other things, in this report, îvl¡- Lo reiterated his opinion that, theiV ¡1lll
plaintiffs ernpioymeni ciuties with ihe cieíenciant hacj cai-¡sed injury'ro ihe L4¡'5
and L5/S1 discs, with er¡ldence of right-sided exiting nerue compression and
symptoms suggestive of radiculopathy'
7j From time to time, other medico-legal specialists have also received reporls of
sc Ptjts 1 /-19 and 25
vcc17 JUDGMENT
72
73
74
75
intermittent pain radiating into the right thigh/leg (as, for instance' orthopaedic
surgeon, Mr o,Brien on 1 August 201251 and occupational physician, Dr
Sutcliffe on 5 June 2OM5\. As mentioned earlier, in his report dated 25 June
2O14,Mr Lo opined that the right-sided disc bulge at the L5/S1 level and the
annular tear at the L4l5 level accounted for the symptoms of L5
radiculopathy'u.ltwasnot,however,theplaintiffscasethathesufferedfrom
any neurological deficit.sa Rather, it was submitted, intermittent right leg pain
was a factor, but not a major factor, to be taken into account' in assessing the
plaintiffls pain and suffering complaint'
ln short, having found the plaintiff to be a creditworthy witness and' with due
allowance for the treating surgeon's familiarity with his patient's condition' I
have accepted a likely causative relationship between the right leg pain as
reported and the injury.
rn Novemb er 2011 Mr Lo considered the praintiff unfit to return to his pre-injury
work and, whilst capable of working, the specialist predicted the restrictions on
the plaintiffs capacity and duties would continue' The restrictions imposed
includednobendingortwistingoftheplaintiffslowerback'noliftingofheavy
weights, pushing or pulling of heavy items, no prolonged sitting or standing
and regular rest Periods'
Accordingly,at36yearsofageandwithanemploymentbackgroundmainly
involving heavy manual work, the plaintiff was deemed fit for only light manual
work. At the time, Mr Lo considered therapies (physiotherapy and
hydrotherapy)wouldaidongoingimprovement,aswouldparticipationina
functional restoration Program'
Mr Lo examined the plaintiff twice in 2012, on 7 February 2012 and' for the
u'PCB 4547u'PcB 5Bput PCB 3oa*TNs
vcc18 JUDGMENT
7^
tt PcB 27-30tt PCB 3940b and Exhibit D6t7 PCB 4obtt txhrbrt D5
last time, in August 2012j5 The plaintitf's condition was, Mr Lo repoded'
stabilised. ln his opinion, the prognosis for complete resolution of pain was
poor; improvement by more than 3% over the next 12 months was unlikely;
there was ongoing risk the plaintiff's back would deteriorate; the plaintiff was
incapacitated for ore-injury emoloyment as a picker/forklift driver; and the
restrictions already outlined were permanent'
It appears that general practitioner, Dr Frost, took over the plaintiff's care after
Dr Entezami left the clinic. He submitted multiple medical reports written
between 16 November 2011 and 25 July 2014.56 Among other things, these
reports tell us that, initiaily, the plaintiff was treated with analgesics and
physiotherapy and later by a chiropractor. Afer being discharged from the
neurosurgeon's care in August 2012, the plaintiff continued to attend the
general pr^actitioner. This docioi' viewed the i'esti'ictions imposed on ihe
plaintiff's work as a permanent aspect of the management of an underlying
degenerative condition ("fhe nature of ltis iniuries was degenerative ie over a
lcnE period of time working. There was na acute injury' The patieitt wiii be
limited by his back eonditicn ongaing"s7)'
It is convenient to discuss the reports of orthopaedic surgeoR, fuÎi' O'Brien,
before I summarise the content of further film obtained in september 2o12'
On 1 August 2012, Mr O'Brien examined the plaintiff for the first time at the
request of nis solicitors.s* Among other things, Mr O'Brien's report indicated
the following rnatters:
I the plaintift gave a history of the onset of significant lower back pain
radiatinq to the vicinity of the right thigh as a result of bending and lifting in
the course of his employment on 28 July 2A1A;
. Mr O'Brien observed physical signs of painful restriction of lumbar
movement but not of nerve root compression or raciicuiopathy;
19 JUDGÌ,IIENT
78
79
80
81
. Mr O'Brien concluded the plaintiff was suffering from chronic non-specific
back pain, tik;V-J; ¡o work-related aggravaiion of pre-existing lumbar
spondYlosis;
¡ allowing for the plaintiffls description.of persistent disability Mr O'Brien
concluded tne pfå¡ntiff was not capable oi unrestricted employment and'
therefore, not capable of returning to his pre-injury occupation. ln short,
the plaintiff was only fit for light duties'
The plaintiff was cross-examined at length about the description of the extent
of his disability, reported by Mr O'Brien as follows:se
"Mr Korunoski sfafed that he rs capab
Iiving. He did state in fact for the last
busrness which is very part'time, con
time emPloYment."
The plaintiff was unable to recall telling Mr O',Brien he had not returned to any
full-time employment.60 The plaintiff did, however, deny he had sought to give
Mr O',Brien the impression he was then unable to perform the physical jobs
involved in the construction of pergolas'61
The plaintiff also accepted he may have later indicated to Mr O'Brien during
re-examination on22April 2013 that he was: "unable to sustain any physical
activityas fhis rapidlyresulfs in aggravated of back pain (sic)" '62 The plaintiff'
however, again denied that, in doing so, he had intended the doctor to believe
he was severely injured and the injury had "had a greater effecf'than was the
case on his physical capacity.63 During re-examination the plaintiff confirmed
the history as recorded by Mr O'Brien was correct.6a
As we know from Mr o,Brien's later report, he again diagnosed chronic non-
specific lower back pain, although on this occasion, Mr O',Brien was less
ut Exhibit D5, 46uo TN 38u'TN 7sut PcB 5iut TN 76* TN 1 19-120
vcc20 JUDGMENT
t1./
83
84
85
86
certain about the nature of the underlying pathology ("on the clinicalbasis, 1
thinkif rs impossibte to be exactly precise as fo the underlying symptamatic
pathatogy causing this pain generation"âs)'
Mr O'B¡-¡en w-'as, nonetheless, confident that the plaintiff was permanently
physically unfit for any manual employment'
As mentioned, further surveillance was conducted during September 2012
and the plaintiff was sighted on 16, 19,22,23 and 24 september 2012,
although filmed on only four of these dates. some one hour and nine minutes
of film taken on 16 and 22,23 and 24 September 2012 was shown at hearing
(the September 2012 film).
on the morning of 16 September both the plaintiff and a woman were seen
ioading items into a vehicle. On one occasion the piaintiff bent cai'efuliv as he
lifted what appeared to be a tub. Later the same day the plaintiff and his wife
and their two children were filmed in a car park- Over a 10 to 15 minute
period the ptaintiff was observed ín the vieinity of the vehicie mosiiy engaged
..,vlth his daughter. During the period of this su¡',¡eillance the plaintiff vai-ioi;slv
stood around, smoked, moved items in the vehicle, bent to retrieve an item
f¡-cm the grcund (to my* mind the iattei-"uvas not ân eas'y o¡'fluid movement),
squatted alongside a pram as he shifted items to the boot of the vehicle'
carried, folded and placed a pusher/pram into the vehicle, walked around
(slowly) and carried a small child before returning him to the vehicle'
Under cross-examination, the plaintiff agreecÍ he haci not asked his wife, who
was preseni at the time, to iiit ihe pram into the back of the vehicie'66
The segments of film obtained on 22 September 20',l2 were taken between
approximately 7:30 am and 2 pm. This film mainly depicted the plaintiff at a
construction site working along with three other men. The plaintiff identified
uu PcB 52tu TN 66
vcc21 JUDGMENT
these men as members of his family, who "(a) Iot of times" helped him with
jobs and did so for free.67 A fourth male, probably the owner of the premises'
came and went during the period of filming'
87 whilst at the construction site the plaintiff was seen
o lifting, moving, climbing and working from an A frame ladder on various
occasions;
carrying a, Colorbond beam, theindicate but said it had been one oby BlueScope Steel.68 However, duri
Court the heaviest item carried by hi
had been a 2 T. to 3 metres long
comparison was lighter than a carton
ór"¡¡tn had earlier-told the Court that, when working as a storeman, he
had repetitively picked and lifted cartons of coca-cola weighing in the
order of 12 kg. The latter was an activity, the plaintiff said he could no
longerperformand,hadhebeenrequiredtogPso'hewouldnothaveUee¡ able to continue with the pergola business;''
kneeling on one knee on multiple occasions between approximateìy 9:53
am and 1:45 pm. whilst it was repeatedly put to the plaintiff that he had
Uã"n squatting, tiom my observation of the fitm tne plaintiff knelt and stood
on a number of occas¡óns throughout the course of the film and may have
squ during this time' ln one
app g for some minutes' Du
told g for this Period would
lower back pain, whereas kneeling "suppresses or
found this exPlanation Plausible;
walking, bending, positioning, climbi
on a bèam between ladders, standi
other on the fence, measuring item
cordless drill, using a saw to cut ma
The other males were also working,to allow the plaintiff to measure and
about why hä had not asked the other males present to squat (kneel) or
measure or undertake the more dangerous activities involved in working
i;;-; rrã0"ì.7' tn short, the plaint¡tr toto the court he undertook these
tasks because if problems neeäeO to be sorted out, as they had been that
day, or .""rur"rents needed to be taken, as the boss and supervisor he
;;; responsible if something went wrong.tt However, during re-
a
a
a
u7 TN 67uu TN 67-68tn TN 113to TN 1'12tt TN 1 15-1 1ot'TN 69-71tt TN 69
vcc22 JUDGMENT
88
89
90
91
examination the plaintiff estii'nated that in the period over which
surveillance had been carried out he had supervised the work some 30 to
40% of the time, compared with standing around or smoking some 60 to
7A% oi the time.Ta
A short sequence of film obtained on 23 September 2012 relevantly showed
the plaintiff entering the driver's seat of his vehicle in a cautious, slow fashion.
This film and the even shorter sequence of film obtained on 24 September
2A12, in which the plaintiff was depicted smoking and walking around outside
a property, did not depict the plaintiff performing any activity contrary to his
to TN 1 14-11stu TN 120
ciaimed limitations
ln summary, the plaintiff's evidence was that, notwithstanding the activities
filnied in September 2012, eonsistent with his affidavit evidence, his role on
gie ,"vorksite haei been mainiy supei-viso ry (V'íeíi, in ihe five haurs i was ihere i
wasn't - I dicin't really do a lot of activity to fulfil, that video, ! wa-sn't: I wasn't
physicaiiy doing a iot of worK'7s¡ and had not invoived the sort of sustaineci
physical activity (heavy repetitive lifting and bending) required in his pre-injury
employment as a sto¡-eman-
My impression, having seen the film, was that the other males performed most
of the physical tasks. lmportantly, I could not be satisfied that these segments
of film, particutarly the film taken on 22 September contradicted the plaintiff's
claim (or the medical assessment) that he was only fit for light work and no
longei- capable of undertaking the soft of sustained physicai activity peiformed
pre-injury.
Having regard to the evidence summarised thus far, including the surveillance
mate¡.ial already discussed, I could not be satisfied that Mr O'Brien had been
misled in any material way by information conveyed to him by the plaintiff or,
that the matters recorded by the doctor were inconsistent with the evidence as
it related to the plaintiffs description of his physical capacity and work
VCC
aa JUDGMENT
92
93
94
95
activities, particularly in the period after his employment had been terminated'
It appears that in April/May 2013 the plaintiff presented to the general
practitioner for treatment of depressive symptoms secondary to his injury' He
was referred to a psychologist, Ms Lazarevic. ln his second affidavit' the
plaintiff deposed that attendance on the psychologist for five or six sessions
for some months in 2013 had helped him cope with feelings of futility and
frustration in not having found employment'
under cross-examination, the plaintiff said he had sought supervisory
positions as a quality assurance officer. This was employment in which he had
experience, the work was more supervisory and not heavy and the plaintiff
estimated it paid, on average, $50,000-$60,000 per annum' The plaintiff'
however, rejected the suggestion that, had he been successful in obtaining a
qualÍty assurance job, he would have continued the pergola business on
weekends. Rather, during re-examination the ptaintiff explained he preferred
the security of employment to running the business.z6
The former, the plaintiff said, offered steady and regular weekly income and
benefits such as holidays and sick pay, whereas running the business was
frustrating ("|'ve got to chase work half the time or a lot of the times I quote
and t don't get the iob and it realty frustrates me' I don't know when I'm going
to get paid next, I don't know how the bitts are going to get paid so it's more of
a consrsfe ncy working for someone else, you have no worries' you iust go to
work do what you have to do and come back home"77\'
The plaint¡ff d¡d not also seek leave to pursue common law damages for
economicloss.Theoralanddocumentaryevidencedemonstratedsubstantial
growth in the pergola business since the termination of his employment'
although the profit received by the plaintiff (some 922,018 net for the financial
tu TN 78-80 and 118tt TN 118
vcc24 JUDGMENT
96
97
year ending 30 June 2012 and $17,A18 for the year ending 30 June 2013)
was much less than the income the plaintiff said he could expect to receive as
a quality assu!-ance offìcer. In short, the thrust of the plaintiffls evidence rvas
that he would have taken less physically demanding, paid, regular
employment as a quality assr-lrance officer were this an option' I found this
evidence plausible given the circumstances described by the plaintiff' and
summarised above, as well as his wife's unchallenged evidence that in late
2013 her mother's illness had forced her to give up her paid employment to
care for their children.
ln her repoft dated 29 July 2013. the psychologist noted the presence of an
Adjustment Disorder with Mixed Anxiety and Depressed Mood secondary to
the plaintiff's physical difficulties as well as the additional stress caused by
ioss of his empioyment and fir-¡anciai strains.tt When Ms Lazarevic wrote her
report, the plaintiff was still attending for cognitive behavioural therapy, albeit
this had been a problem because workcover had declined to fund this
treatment
when asked, in 2014, Mr Lo remained firmly of the view that a work-related
lumbar proiapse esndition with nerve eomp!"ession, not "-ci'rnple lower back
pain,, was generating the plaintiff's symptoms and had incapacitated him for
his pre-injury work as a picker/packer.Te Notably, as mentioned, the opinions
of two other specialists, Mr Brownbill and Dr Sutcliffe, whose reports are
diseussed beiow, suppor-ted the viev"' that the injui-y had aiso involved cjiscai
injury. lt also appeared irom the materiais summariseci by Mr Brownbill and Dr
Sutciifte in the¡r repofls, that in September 2Ai1, another speciaiist'
orthopaedic surgeon, Mr Shannon, had not ruled out the possibility that the
injury had resulted in a disc protrusion'o'
tu PCB 56tn PcB 3oao' PCB 58c and 5Bs
VCC25 JUDGMENT
The other medical oPinions
98
99
parn;
orthopaedic surgeon, Mr Michael Dooley, examined the plaintiff once on 16
May 2013 at the request of the defendant's solicitors'a1 Relevantly' Mr Dooley
was never asked to comment on the film obtained in 2011 and 2012'
Mr Dooley obtained a detailed history and, having conducted a clinical
examination and, among other materials, read the results of radiological
reports,MrDooleyrelevantlyindicatedthefollowingmatters:
o the plaintiff described'. "ongoing intermittent low back pain' He notes short
tasting acute eiaierøat¡onls ofþáin that can involve spas/n of his back' He
said there is a background "rnirg low back p.ain. There is no sciatica
pain,,. I navã """"-pt"d "r "ó"ür"te
the submission of the plaintiffs
counsel that the report made to inis specialist was consistent with the
óÉìntiff. evidence that he was never free of pain;
o the plaintiff described'. "difficulty with h9aul household chores and with
chores and home maintenanrá drti"t that require him to adopt a mildly
forward flexed position, e'g' doing the dishes etc";
. ev¡dently the plaintiff also described his work in the pergola business as:
,,administrative onlf'. I was iñvited by his counsel to evaluate this
statement in the context of the piaintitrs-psychological state in the months
preceding M; ó""|;fs exami.rtü. T'he- plaint¡tf naO also advised Mr
Dooley that, in the three lnonn' preceding the assessment, he had
generally felt unwell and depressed. As we kñow from the repotts of both
ín" g"nêral practitior er and the psychologist'
treatñrent for depression secondary to the inju
these circumstant"t, I could not be satisfied th
the statement had not reflected the nature of
plaintiff engaged. ln any."u",,t, l was not left with the impression that Mr
Dooley had b-een misled ¡n aÑ rãt"ri"t way about the plaintiffls capacity
for work;
o in Mr Dooley's opinion, aggravation of underlying degenerative disease
could result in ongoing intermittànt back pain and occasional lower limb
a unlike Mr Lo, Mr Dooley was not persuaded the plaintiff had suffered disc
protapse. ln Mr OJei, ggi1lo1, the work-related incident described by
the ptaintiff on zé- i,jrv 2olo l"d aggravated. established' underlying
ã"g"n"trtive disc diseaðe at the lumbosacral level;
based on the history given, Mr Dooley concluded the injury materially or
substantialty contr'rbúteî to the plaintiffls incapacity for work;
ut DCB 23-27c
vcc
o
26 JUDGMENT
O
O
whilst the plaintiff was fit for light duties, aecording to Mr Dooiey he was
not fit to carry out rejutar heavi physical work or work that involved a lot of
bending, lifting and ñruisting. ln short, Mr Dooley and the treating surgeon,
Mr Lo were of one mind i-n their belief that ihe piaintiff was permanentiy
unfit for heavY PhYsical work;
Mr Dooley endorsed the plaintiff's regular exercise regime and accepted
that ongoing use oî s¡mpie analgesicJand anti-iäfiammatory medieation in
the t¡'ea-tm.it of the piaintiff's lowei back condition was reasonabie'
100
101
102
Notably, having in July 2014 read Dr Drinkwater's report, Mr Dooley was not
persuaded by evidence of earlier attendances in the treatment of lower pain to
change his earlier reported diagnosis and prognosis'82
I have already referred to Mr Brownbill's examination of the plaintiff on 14 May
2014 at the request of his solicitors' Occupational physician' Dr Sutcliffe was
ancther specialist r"vho had been asked b)'the piaintiff's solicitcis to e><amine
him on 5 June 2014
The salient features of Mr Brownbill's report and later correspondence are
summarised as follows:83
o clinical examination revealed restriction of thoraco lumbar spinal
movements'wlthoutobjectiveneuro!ogica!abnorma!itiesorsignsofradicuioPathY;
. based on the radiological evidencspine ciegeneraiive changes anci t
2.O10, Mr Brownbill concludedaggravation of Pre-existtng essl
Cäienerative changes, which remained symptomatic;
¡ âs a resuit of the aggravation lnjury the plaintiff was no longer capable of
pã,tor*ing his fult-tirie u n¡-estrici-i n.'-nu"l oi' pi'e-injui-v empioyment and'
such restrictions as applied to his employment also applied in social'
domestic and recreational settings;
c restrictions on the plaintiff's activities were permanent with pain likely to
continue in a fiuctuating manner;
. having been asked to comment on Dr Drinkwater's report, Mr Brownbil!
was not persuaded to alter his earlier- opinion, althotrgh on this oecasion'
Mr Brownbill added that the activities on 28 July 2010 had also likely
caused intervertebral disc derangement'
u'DCB z7D-GUt PCB s8a-k
vCc
naLI JUDGMENT
103 Dr Sutcliffe's report was submitted some two months after the examination on
5 June 2014j4 Mr Dooley's report was amongst the materials available to her
but not Mr Brownbill's report. There were factual errors in Dr Sutcliffe's report
which, when later acknowledged by her, had not, the specialist said' altered
the earrier reported opinion.Bs The sarient features of Dr sutcliffe's lengthy
report and later correspondence (having by then also read the plaintiffs
affidavit sworn on 6 August 2014), are summarised as follows:
o the plaintiff was working part-time (intermittently.and performing about two
jobs per month) but not every day in the pergola business;
o his current duties involved some bending and lifting and some hands-on
work, mainly light weight work with some use of hand tools and power
tools;
o the plaintiff described pain as: "constant pain present in the low back and
pain also in the right ieg taterally to the t1n9e. He had pins and needles
and sens ory chaãge ¡i tne posterior thigh to the heel. The pain was
present at an inteisity of 7 on a visual analogue sca/e of 0-10 in the back
and at an inte¡nsity oi I in the right teg. He described stabbing and sharp
pain";
o activities such as prolonged walking, standing and sitting and bending
apparently increàsed painl whilst hañging up clothes and washing dishes
caused discomfort and movement of tne boat meant that the plaintiff no
longer fished from a boat;
o the plaintiff had increased the height of benches from which he worked to
avoid bending;
. in keeping with both the film and evidence given by him-in the. course of
the hearing, in June 2014 the plaintiff indicated to Dr Sutcliffe that
kneeling : " was Possib/e";
. the plaintiff could perform self-care tasks and some domestic activities but
his social and leisure activities were reduced;
o clinical examination had revealed restrictions in the range of movement of
the lumbosacral spine but normal contour and no abnormal neurological
signs in the lower limbs;
. in Dr Sutcliffe's opinion as a result of the rapid picking and packing duties
with rotation,-benbing and lifting performed with the defendant, the plaintiff
suffered the onsei of aggrãvation of degenerative change in the
lumbosacral spine and disõ-derangement at the L4l5 and L5/S1 levels
to PcB 58M-xtu TN 5BY-z
vcc28 JUDGMENT
a
resulting in radicular Pain;
the prognosis was poor with an increased likelihood of increased pain over
the long-term;
the plaintiff was, Dr Sutclif¡,e reporteC, unfit for his pre-injury'duties ("w|"'eïê
p"ràiúing bending, tifting and twisting was performed during his working'da.y'^¡
anã *"nuai handling enrpio;vr¡ent now o¡- in the íoreseeabie fuiure.
ln her words, the plaintiff \.,as unlikely to return !a'. "anything near fu!!-time
work now or into the foreseeable future taking into account his age,
education, pasf work experience and hrs skil/s";
the self-employment currently undertaken remained suitable because it
allowed the plaintiff to obtain assistance from other workers for heavy
lifting tasks, to avoid excessive bending and to vary his posture and make
adjustments to his working environment at will;
the injury had also adversely impacted on the plaintiff's capacity for
activitiãs of daiiy iiving in his 'iornestic, sociai atrcj tecreationai
environments.
a
a
104 There was further surveillance carried out between 23 and 27 June 2014 on
four dates, although film was only taken on Monday 23, Tuesday 24 and
Thursday 26 June 2014. This film constituted about one hour of viewing. By
agreement some parts were fast fon¡rarded.
105 On 23 June the plaintiff was seen mainl.v working at a site !n Roxburgh Pa-rk-
and at another site in Dallas on the later dates. The Roxburgh Park job had
aooarentiy commenced on Saturcjay 21 June 2t14
106 On Mond ay 23 June the plaintiff was seen working with other men and
per*rorming a ¡ange of activities (some i'epetitively) inclirding ciirrrbing up and
down ladders, fixing gutters from a ladder, assisting another man working
from a laCder, using a theodolite (level) to check le'rels, carrying and
pcsitioning flashing while standlng CIn a ladder, giving vei'bal dii'ections to
another rrìarì, repositioning iadders, straddling the top of a lacider; removing
f¡-om and assisting in i-epacking eqi;ipmerrt in the back of a vehicie, iixing
roofing panels and measuring.
Under cross-examination, among other things, the plaintiff generally agreed
vcc
107
ZJ JUDGI'IENT
108
109
Compensable lniury
110
with the following propositions that:86
o when constructing a pergola he needed to stand still on a ladder to obtain
precise measurements ("fo a degree");
oâtonepoint,whilststandingonaladderheldapipeinonehandandalevel in another and leant to his righl;
.SomejobssuchasinstallingadownpipetypicallyrequiredtwomentocomPlete.
on Tuesd ay,24 June the plaintiff started another job at Dallas which he said
ran until 26 June 2014. The short segments of film shown for 24 and 26 June
2ll4confirm that the plaintiff had been at a work site on these days'
My assessment of the film obtained in June 2014 was that it showed that the
plaintiffwasphysicallyengagedinconstructingpergolas,attimes,on
successive dates. The film did not, however, reveal a pattern of involvement
in heavy physical tasks and, did not also reveal a pattern of work inconsistent
with the limitations claimed by the plaintiff in both his affìdavit and oral
evidence.
As is apparent from my discussion of both treating and specialist evidence' for
the reasons already given, I have preferred the opinion of the treating doctor'
that the work-related injury involved aggravation of underlying degenerative
disease and discal injury. Putting to one side Mr Francis' earlier opinion' the
medical consensus further indicated that the injury, howsoever characterised'
and impairment was probably permanent in the sense that it was likely to last
for the foreseeable future
Pain and Suffering Consequences
111 lnextturntoconsidertheconsequencesalleged.
tu TN BB
vcc30 JUDGMENT
112 Evaluation of the pain and suffering consequence required consideration of
the plaintiff's experience of pain and the disabling effect of pain on his
physical capabilities (including his capacity for work) and enjo5iment of life'87
Evidence of the intensity anc Írequency cf pain (in ihis case given by the
plaintiff and recorded by the doctors). the treatment received or recommended
and any objective evidence as to the disabling effect of pain was important to
any proper evaluation of the plaintiffs experience of pain- The evaluation of
the disabling effect of pain called for consideration of the extent to which pain
continued to limit this plaintiff's aetivities and interfered with his enjoyment of
a4-t
life
114 ¡t is weii understooci that in the assessment of the paln and si-ittering
consequence, the significance cf what was lost may be informed by what the
plaintiff has retained. The plaintiff's comparatively young age was also
relevant to my assessment of the pain and suffering consequence'
115 in this case, dociors have not queried the genuineness oithe symptoms ancl
iimitaiions ¡eporied by the piaintiff and, whiie his condiiion has stai¡iiised, iris
treating surgeon has raised the possibility ihat this might worsen' This
provides a vei-y good i-eason foi the piainiiff to contini¡e as he apparerrtiy iras,
to nrodify physical activities such as tifting particularly in his working and
domestic environments.
ii6 ln his affidavit and o¡-al evidence the plainiiff desc¡'ibed a i'ange of pain and
suffering and ioss of enjoyment of iife consequences which, in August 2013,
he deposed"may be" worserring' These included'
. continuous lower back pain, at times extreme'8u R"ight leg pain that in
Augustzaßthepiaintif,fdepcsed!^',âS,,-.litÏlebettef'.,""
Group PtYu, Haden Engineering pty Ltd v McKinnon t20l0lVSCA 69 t9l-1171 and applied in S-uffon v Laminex
Ltd lZO1l l VSCA SZ and more recently in Abuirow v Network Personnel Pty Ltd [2013] VSCA 46
uu TN 21tn PCB 11b
VCC31 JUDGIVÏENT
a having ceased other therapies, the need for regular gym exerclse
(sometimes tnreel'¡rnet p"t *:"[ oã:11t-",n^t1nry3tk helped motivate him
ànd strengthened muscles in the back and body--);
ongoing use of the anti-inflammatorythe" strõng pain killing medication, P
Whitst in- his second affidavit the
in that the plaintiff was unable to perform.heavy
theplaintiffarguednarrowedhisopportunitiestoploYment;e3
d ifficu lty with p rolon ged stand i n g/sitti n g ;ea
pain in performing daily grooming tasks where these involve bending;e5
low back pain caused by climbing up and down ladders;eo
pain caused by domestic activities such as standing to wash dishes'
bending to weed iñ" é"iO"n andtperating.a.lawn mower' The plaintiff
could, however, pårfoir most taskå around the home, as well as some
cooking;e7
d entering and exiting a vehicle' The
a loss of enjoYment of fishing, an
summer. Aócording to the plaintiff'
on land exacerbated Pain (the Plai
and pain interfered with his concen
a
o
o
a
a
a
a
* lN l3-t+ and 117nt TN 13-14nt TN 1 17-118tt TN 18-21 and 109* PCB 1tutu PcB gtu TN 24-25nt PCB 9 and 1 1f and TN 76 and 108tu PcB 10 and 11fand TN 108
vcc32 JUDGMENT
a
O
this activity but not its frequency;ee
restrictions on how the plaintiff engaged with his young children because
the plaintiff could no longer lift the ,y-o:lg"tchild could increase paiñ. The pl in active
piãV w¡tfr the children. For instanc avoided
games such as football, engaging carnival
ãC"= whiist on hoiidaY;1oo
a loss of intimacYsexual activities.lc
with his wife because pain interfered with particular
117 As to his experience of pain, the plaintiff impressed me as an individual' who
vras more likely to understate, not embellish his experience of pain' I was
satisfied that his account of the level and frequeney of pain summarised
above.vïas accu¡-ate. ln shoi't, the piainiiff was affiicied by coi^rtinuous iow baek
pain,attimesextremepain,withSomeintermittentr.ightlegpaininthe
treatment of which he took anti-inflammatory medication daily and strong pain
killing medication for severe pain' The impression I had was that' more often
than not, worktng exacerbated the plaintiff's pain levels and, when this
happened,evenwiththeuseofstrongpainkillingmedication,Panadeine
Forte, pain did not ease for some hours'
1.18 The disabling effect of pain and the extent to which it interfered with the
piaintiff's activities and enjoymeni of iife, was aiso summariseci above anci' as
mentioned, the matters repoded by the plaintiff where known to the doctors'
were not queried.
1]s As to the significance of the plaintiff's loss of work capacity, the plaintiff has a
retained light work capacity. I was, however, taken to the discussion of the
basis upon whieh a ioss c)f sarning capacity was capable of illustrating a pain
and suffering consequence by the couft of Appeal in Peak Engineering Ptv
Ltd't r"4 cto ri e n Vlc rkC ave r,4 uth a rity & l'4 c K'e nzi e'1 02
tn PCB 10 and f if and TN 108 and 11'1too PCB 'i0 and 1 '1f and TN '108 and 1 10-1 1 1
tot PcB 11fto'¡zo141vscA 67 [33] et seq
VCC33 JUDGMENT
120
Conclusions
121
122
123
At the comparatively young age of 39 years, the plaintiff was probably
permanently incapacitated for heavy work and the pool of paid employment to
which he has access has been significantly narrowed. I have accepted that
the plaintiff probably has, as claimed, remained in the pergola business as a
last resort, his preference being to obtain secure full-time employment that
also better accommodates the restrictions imposed by his lower back
condition. When looked at solely from a pain and suffering perspective, in this
case, as a consequence of the narrowing of the plaintiff's range of paid
employment oPtions:
. the plaintiff has established that of necessity, he has continued to engage
in manual out¡es, *r''i"n probably regularly exacerbate his pain levels, such
that he requires additional strong painkilling medication; and
the plaintiff has established a significant level of personal distress due to
ñis ina6ility to a¿equàtely suppoft nit family, the latter caused by ongoing
back pain and incaPacitY.
a
ln summary, I was satisfied that the plaintiff had suffered compensable injury,
namely work-related aggravation injury of a degenerative lumbar spine with
iikely discal damage and I was satisfied that the impairment consequences of
the injury were as described above'
ln assessing whether the pain and suffering consequence of the compensable
low back injury met the "Very considerable" test, I was required to consider
globally all of the pain and suffering experienced by the plaintiff to which this
injury materially contributed.l03
The evidence relating to the impact of impairment of the plaintiffls low back
injury on his day-to-day activities and enjoyment of life has been summarised'
I have also summarised the evidence which suggests that the plaintiffls
approach to likely continuous pain has been to get on with his life and to
tot Suffon op. cit. at [114]
vcc34 JUDGMENT
continue working notwithstanding frequent exacerbation of pain caused by this
activity
The test is whether the plaintifi has established the pain and suffering
L:Õnsequenee of the iow back Injury, when judgea by comparison '¡"ith othe¡'
cases in the range of possible impairments or losses of a body function may
be fairly described as being more than signiflcant or marked and as being at
least very considerable. As the Court of Appeal has explained in the past,
applying this test involved a value judgment in which matters of fact and
degree and of impression all play a role.1oa
Section 13448(38)(c) requires the Court to consider where, on its facts, the
Oresent case sits when compareci with other cases in the range of possible
impairments or losses of body function.
I have found the plaintiff to be a well-motivated young man and a credible
witness. My summary of the pain and suffering and loss of enjoyment of life
consequence (in which the significance of what the piaintiff has lost was
info¡.med to some extent by what he had i'etained) was in my view consisteni
with a finding that the consequence in respect to the injury was at least very
conside¡"abie. ln these ci¡"cumstances, the piainiiff has met the i-equii-enients of
the narrative test.
127 I propose to make an order granting leave
1oa Sti¡epic v Ane Force Group Pty Ltd [2009] VSCA 181' l41l
124
125
126
VCC35 JUDGMENT