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

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o

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1 Section 13448(37), Su*on SpinnÀ Þty UA & Ors v Podaiak [2005] 14 VR 622 i33l

1JUDGMFNT

leave

Background matters

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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

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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

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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+

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7VCC

JUDGMENT

31

Credit issues

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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

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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

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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

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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