Smith v ACN 102 456 011 (formerly PSM Dandenong Pty Ltd) & Anor [2012] VCC 782 (21 June 2012)

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IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

GREGORY LINDSAY SMITH	Plaintiff

v

ACN 102 456 011 PTY LTD (formerly PSM DANDENONG PTY LTD)	First Defendant

and

VICTORIAN WORKCOVER AUTHORITY	Second Defendant

JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2012
DATE OF JUDGMENT:	21 June 2012 (Revised)
CASE MAY BE CITED AS:	Smith v ACN 102 456 011 (formerly PSM Dandenong Pty Ltd) & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 782

SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Prior injury resulting in significant pain and suffering consequences – aggravation of pre-existing injury to lower back – whether the pain and suffering consequences of the aggravation was serious
LEGISLATION: Accident Compensation Act 1985, s.134AB(16)(b)
CASES CITED: Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436
RULING: The plaintiff's Originating Motion is dismissed

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie	Ryan Carlisle Thomas

For the Defendants	Mr S Smith	Lander & Rogers

1 Before the Court is an application brought by Originating Motion filed on 14 December 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr S McCredie of Counsel appeared for the plaintiff and Mr S Smith of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined;
• The plaintiff tendered clinical notes dated 16 October 2001 to 6 June 2008: Exhibit A;
• The plaintiff tendered his Court Book (“PCB”), pages 19-106, and from the defendants Court Book ("DCB") pages 40 and 43-44: Exhibit B;
• The defendants tendered their Court Book pages 7-8; 36-39; 41-42; 45-58; 64-79 and 94-105: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained sub-s. (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

7 The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of his employment on or after 20 October 1999.

(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.

(c) Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.

(d) Sub-s.(38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.

(e) In conformity with Barwon Spinners Pty Ltd and Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

9 The plaintiff was born on 9 June 1960. He is now fifty-two years of age. He is a divorced man with two children who are eighteen and fifteen years. They live with their mother. The plaintiff is in a domestic relationship with Miss Michelle Cahir.
10 The plaintiff left school after completing Year 11. I assume he was probably around sixteen or seventeen years of age. He subsequently worked on the family farm for up to five years. He then worked in the hospitality industry for up to ten years.
11 In 1986, the plaintiff suffered a straining injury to his lower back, and subsequently, a further injury lifting a carton of beer in the course of his employment at the Mentone RSL.

12 The plaintiff obtained employment with the first defendant in October 2005. On 5 March 2007, he was pushing a Harley Davidson motorcycle in the showroom. He estimated that the motorcycle weighed about 305 kilograms. As he was wheeling the motorcycle, his right leg slipped on dust on the floor of the showroom. As the bike fell he tried to hold onto it, to be met with severe stabbing pain in his lower back.
13 The plaintiff continued working. On 7 March 2007, he lifted a box of magazines which he estimated weighed about 25 kilograms. He again hurt his lower back. On this occasion, he was met with pain not only in his lower back, but in his left leg.

14 The plaintiff was seriously troubled by the injury to his lower back. He saw Dr Richards, chiropractor, on 5 October 1992. In his report dated 4 June 2002, Dr Richards recorded that the plaintiff told him of a three-year history of the prolapsed disc which had required hospitalisation and an epidural injection. At the time when the plaintiff saw Dr Richards he had been off work for about four months.
15 Dr Richards obtained a history that on 10 September 1992, the plaintiff suffered injury to his lower back in a lifting incident which caused pain in his left buttock radiating down into his left posterior thigh. It will become clear that it is more likely than not that the plaintiff suffered from pain radiating into his right leg, and that Dr Richards made an error in his report.
16 Dr Richards made a diagnosis that the plaintiff had suffered an L5-S1 intervertebral disc prolapse with L5 nerve root compression bilaterally. He had some x-rays available for his examination which demonstrated some narrowing at the L5-S1 level.
17 Dr Richards provided the plaintiff chiropractic adjustments and soft-tissue manipulation on twenty four occasions from 5 October 1992 to 22 September 1995; on two occasions in 1997; on eight occasions in 2000 and on two occasions in 2002.[2]
18 The plaintiff then saw Dr Hamilton, general practitioner, in 1992. He referred the plaintiff to Professor Rosenfeld, neurosurgeon, who first saw the plaintiff on 24 October 1992. Professor Rosenfeld obtained a history from the plaintiff that he had experienced the onset of right-sided sciatica over a three-month period and that he was seriously troubled by pain. Professor Rosenfeld referred the plaintiff to have a CT scan on 16 October 1992 and then a CT myelogram. The latter demonstrated that there was a large fragment of disc compressing and displacing the dural sac and amputating the right S1 nerve root.
19 Professor Rosenfeld performed a laminectomy and discectomy on the plaintiff on 2 December 1992. He described what he found at surgery as follows:

20 Professor Rosenfeld last reviewed the plaintiff on 2 April 1992. At that time the plaintiff told him that he had no residual sciatica and was very pleased with the result. Professor Rosenfeld considered that the plaintiff’s prognosis was very good for ongoing freedom from lower back problems.[4]
21 It would appear that it was probably a not long after the plaintiff’s lower back condition deteriorated significantly that he left the hospitality industry and took up employment in the real estate industry. He worked in that industry for about fourteen years. At some stage in the year also leading up to 2005 he worked as a self-employed carpenter, before taking up employment on 3 October 2005 with the first defendant as a motorcycle salesman.
22 The only medical material which permits an understanding of the condition of the plaintiff's lower back injury following the surgery are the reports of Dr Richards. Although the plaintiff saw Dr Richards on two occasions in 2002, there is no other material to which I was referred which suggests that he was suffering from a significant lower back problem in 2002.
23 The plaintiff engaged Holding Redlich, solicitors, to make a compensation claim on his behalf. A claim for compensation for permanent disability was made by the plaintiff dated 12 December 2002.[5] It was a claim for an injury to the lower back. The claim form bears a stamp of Holding Redlich. The claim was supported by an affidavit sworn by the plaintiff on 29 November 2002. The relevant parts of the affidavit are as follows:

24 The affidavit is headed as an Affidavit in Support of an Application pursuant to Section 98 and 98A of the Accident Compensation Act 1985. Section 98 is headed "Compensation for maims". It provided for a lump sum of compensation calculated by the percentage loss of a part of the body affected by an injury. Section 98A is headed "Compensation for pain and suffering". It provided for an additional sum of compensation for pain and suffering which were defined as "actual pain" or "distress or anxiety" suffered by the injured worker.
25 Holding Redlich referred the plaintiff to Mr Rustomjee, surgeon, for the purpose of an assessment of the degree of the impairment of the plaintiff's lower back and right lower limb. He examined the plaintiff on 28 June 2002. He assessed the plaintiff's industrial loss of function in his lower back at 30 per cent, and in his right lower limb at 10 per cent.[7]
26 At the time Mr Rustomjee examined the plaintiff he recorded the following history of the extent to which the plaintiff said he was impaired by the injury to his lower back and right leg pain:

27 The plaintiff admitted the affidavit sworn 29 November 2002 is an affidavit he swore in support of an application for lump sum compensation, and that the contents of it were true and correct at the time of its swearing. Whilst he could not remember being examined by Mr Rustomjee, he did not deny that he was examined by him, nor did he deny that the history recorded by Mr Rustomjee was probably consistent with his physical situation with regard to his lower back and right leg at the time of the examination.

28 In his first affidavit sworn 15 April 2010, the plaintiff swore to the following:

29 There cannot be any doubt that the plaintiff swore the affidavit in the full knowledge that he was representing that despite the dramatic nature of the injury to his lower back and the necessity for invasive surgery, that he returned to a level of functioning which was near normal. It is difficult to imagine how someone with an actively symptomatic lower back injury with intermittent right leg pain could engage in the vigorous activities of social tennis; social basketball; social golf; waterskiing; snow skiing; house maintenance and offshore fishing. The affidavit was sworn for the purpose of providing a stark comparison between the consequences arising from the plaintiff's lower back before he injured it in March 2007, and what consequences arose from it subsequently. Indeed, the plaintiff made that comparison when he swore to the following:

30 However, in his third affidavit sworn 23 April 2012, the plaintiff corrected what he had said in his first affidavit as follows:

31 Mr Smith of Counsel cross-examined the plaintiff that the reason why he made the corrections in his third affidavit was because this application was listed for trial on 8 December 2011. It was not reached, and was re-fixed for 14 June 2012. I infer that the defendant exchanged its Court Book with the plaintiff on the occasion when this application was first listed which exposed the plaintiff to the affidavit he swore on 29 November 2002 and the report of Mr Rustomjee. The plaintiff denied that the corrections in his third affidavit came about because of that event, but he gave no reason for making the corrections except to say that he had made a mistake. I do not accept the plaintiff's evidence. I do not accept that there was a coincidence of exposure to the affidavit and the report of Mr Rustomjee. My reasons for making that finding are fortified by the histories which the plaintiff gave to a large number of examining medical practitioners.
32 The plaintiff was treated by Dr Wilk, musculoskeletal physician. In a report dated 25 May 2010, he recorded the following:

33 The plaintiff saw Mr Klug, neurosurgeon, on a medico-legal basis. In a report dated 7 June 2010, he recorded the following:

34 The plaintiff saw Mr Westh, orthopaedic surgeon, on a medico-legal basis. In a report dated 18 October 2010, he recorded the following:

36 The plaintiff saw Dr Horsley, occupational physician, on a medico-legal basis. In a report dated 19 May 2011, she recorded the following:

37 The plaintiff was treated by Ms McCarthy, physiotherapist. In a report dated 14 July 2011, she recorded the following:

38 The plaintiff was also examined by a number of medical practitioners for the defendant. The plaintiff saw Mr Haig, orthopaedic surgeon, on a medico-legal basis for the defendants. In a report dated 13 February 2009, he recorded the following:

39 The plaintiff saw Dr Littlejohn, rheumatologist, on a medico-legal basis for the defendants. In a report dated 18 August 2009, he recorded the following:

40 The plaintiff saw Mr B Dooley, orthopaedic surgeon, on a medico-legal basis for the defendants. In a report dated 22 December 2009, he recorded the following:

41 The plaintiff saw Mr M Dooley, orthopaedic surgeon, on a medico-legal basis for the defendant. In a report dated 5 October 2011, he recorded the following:

42 What is abundantly clear from the plaintiff's first and third affidavits, and from the histories recorded by these medical practitioners, is that he deliberately and falsely represented that the surgery performed by Professor Rosenfeld resulted in a very good result with the complete ablation of lower back pain and right leg pain. He also deliberately and falsely represented that he returned to vigorous sporting activities following that episode of surgery and was physically capable of tolerating the stresses and strains that those sporting activities would have undoubtedly placed upon his lower back and his right leg. Furthermore, he was able to engage in other non-sporting activities as well, and in particular, working and engaging in social, domestic and recreational pursuits.
43 I think the only logical conclusion I can reach is that the plaintiff made the foregoing representations solely for the purpose of demonstrating that the injury he suffered to his lower back in March 2007 was a dramatic and significant injury which essentially destroyed his capacity to engage in the sporting, social, domestic and recreational pursuits which he had become accustomed to pursuing as part of his day-to-day life.
44 Furthermore, although the plaintiff had difficulty remembering the medical practitioners who examined him, he did not say that the histories recorded by those medical practitioners was wrong. Rather, he persistently used the expression that what the doctors had recorded were their words, as if to say that they had wrongly recorded their histories, but he was not prepared to go that far. He did not explain what he meant by saying that what had been recorded were their words. It was, I think, the plaintiff's attempt to try to maintain his credit against what I consider to be an unassailable body of evidence that he made deliberate and false representations of consequences of the surgery and his return to practically all sporting, social, recreational and domestic activities thereafter which was then lost to him because of what occurred in March 2007.
45 I have little confidence that the opinions of these medical practitioners are reliable because they are based upon histories which are deliberately false. It is very clear to me, on carefully reading all of the medical reports, that each of the medical practitioners who were called upon to give an opinion regarding the nature of the injury which occurred in March 2007 and its consequences took a history from the plaintiff of the presence of pain, incapacity and disablement to be able to then say what the injury in March 2007 resulted in. They all relied upon the histories they recorded for that purpose. Where the histories are false that must inevitably infect the reliability of their opinions.[22]
46 The conclusion I have reached is as follows. The plaintiff probably suffered a level of lower back pain and right leg pain following the surgery performed by Professor Rosenfeld. The frequency and the degree of that suffering is difficult to determine except that by 2002 he swore an affidavit on 29 November 2002 and gave a history to Mr Rustomjee of the serious consequences of the prior injuries and the surgery which, if accepted at face value, certainly point to the plaintiff being quite seriously disabled in 2002.
47 Mr McCredie submitted that I should in some way put the affidavit and the history to Mr Rustomjee in isolation because the best evidence of what the plaintiff was really suffering can be judged by the opinions of Dr Richards. He submitted that the lack of treatment provided by Dr Richards is indicative of the seriousness of the plaintiff's lower back injury and right leg pain in 2002 and up to March 2007. Whilst it is true that Dr Richards’ evidence is that the plaintiff saw him on two occasions in 2002 for treatment,[23] he was subsequently treated in November 2003, in May 2004, and according to Dr Richards, he may have required between three to five visits in November 2003 and May 2004. But even so, the plaintiff obtained very little treatment from Dr Richards and then no treatment until 8 March 2007.
48 The submission does not hold up. If the affidavit sworn on 29 November 2002 and the history recorded by Mr Rustomjee are true, then the plaintiff was suffering from a significant degree of pain and interference with his mobility and capacity to engage in sporting, recreational, social and domestic activities in the absence of any treatment. It means that the affidavit sworn by the plaintiff on 29 November 2002 is false in a material way, as is the history he gave to Mr Rustomjee. Whilst the plaintiff did not disavow himself of what he swore to in that affidavit and the history given to Mr Rustomjee, his evidence was to the effect that things were not as bad for him as he said they were in the affidavit and in the history given to Mr Rustomjee.
49 In the end, the conclusions I have reached are that I accept little of what the plaintiff says of what pain he was suffering in his lower back and right leg from the time he had surgery up until 2007. It was certainly bad enough for him to give away active sporting and recreational activities by 2000, and certainly bad enough him to give away home maintenance work by 2005. It must follow, as a matter of logic, that he gave those activities away because of the pain he was suffering in his lower back and right leg. Thereafter, his level of activity was significantly reduced to fishing and some domestic activities. It is a dramatically different picture from that depicted in his first two affidavits in this proceeding.

50 The plaintiff first sought treatment from Dr Richards on 8 March 2007. Dr Richards recorded that the plaintiff had acute low-back pain with severe left leg pain. He obtained a history from the plaintiff of the incident. He then made comment on what he could make of the plaintiff's history of lower back and right leg pain between 1992 and March 2007:

51 The difficulty I have with Dr Richards’ opinion is obvious. It was based upon the plaintiff's account, which is entirely inconsistent with what the plaintiff ultimately admitted to, and that is, the loss of all sporting and recreational activities by 2000 and home maintenance work by 2005. The inference I draw is that Dr Richards considered that the plaintiff had suffered a significant injury based largely upon the history which the plaintiff chose to give him.
52 Dr Richards treated the plaintiff with soft tissue manipulation to reduce muscle rigidity on thirty occasions over a five-month period. From the history he took from the plaintiff, and from his examination of him, he was of the opinion that the plaintiff was suffering from an injury to his lower back and left leg pain. The left leg pain was later referred to by other treating medical practitioners as a consequence of the injury which occurred in March 2007. He last treated the plaintiff on 21 April 2008.[25] Dr Richards considered that the plaintiff had suffered a disc prolapse, causing nerve root compression. I do not accept his opinion because it is inconsistent with all of the medical opinions of both the treating and the medico-legal medical practitioners.[26]
53 The plaintiff then saw Dr Selleck, general practitioner. She treated the plaintiff between 13 March and 21 August 2007. Initially, Dr Selleck treated the plaintiff by prescribing him painkilling medication and by referring him to have physiotherapy.
54 Dr Selleck referred the plaintiff to Mr Malham, neurosurgeon. He referred the plaintiff to have an MRI scan which was taken on 7 June 2007. In the opinion of the radiologist, it showed minor degenerative disc and facet joint disease, but no residual or recurrent disc protrusion, central canal stenosis or foraminal stenosis.[27] No medical report was obtained from Mr Malham. Dr Selleck then referred the plaintiff to Dr Vivian, physician. The plaintiff saw him on 4 September 2007. He had a CT scan available for his inspection, which I assume is the CT scan taken on 18 June 2007 on referral by Dr Selleck.[28] Dr Vivian's interpretation of the CT scan was that it showed narrowing at L5-S1 consistent with old degenerative changes and that there were mild bulges at L3-4 and L4-5.
55 Dr Vivian reproduced a letter that he sent to Dr Selleck in his report dated 17 May 2010. He informed Dr Selleck that he was unable to determine the source of the plaintiff’s pain; that he could see no reason why the plaintiff could not bend, twist, touch his toes and do other activities; that he encouraged the plaintiff to be more active; that he should engage in a graduated strengthening program and cognitive behavioural treatment and then work out what he wanted to do and then get back to it (I assume activities including work). Dr Vivian was unable to say very much more because he had not seen the plaintiff for some years at the time when he wrote his report.[29]
56 Dr Selleck appears to have had a falling out with the plaintiff. She advised him to undertake a pain management course and to use painkilling medication. The plaintiff refused to undertake pain management and was reluctant to use painkilling medication. Dr Selleck and the plaintiff had a disagreement which appears to have brought her treatment of him to an end, but he subsequently returned on one occasion on 6 June 2008 for the purpose of obtaining a medical report for an insurance company, and presumably for this proceeding. It is difficult to determine what Dr Selleck's opinion was regarding the injuries suffered by him in March 2007. Firstly, she said that she believed he had suffered from acute episode of mechanical back pain, but secondly, said it was not certain that he had suffered from back pain as a result of what occurred in March 2007.[30] However, Dr Selleck was of the opinion that the plaintiff was capable of undertaking his pre-injury work, that is, work with the first defendant on the basis of a graduated return to work and that he would be able to engage in social, domestic and recreational activities within the restrictions she placed upon him that he not engage in lifting and pushing; pulling in excess of 2 kilograms; sustained or repetitive trunk flexion or rotation or working above shoulder height.[31]
57 The plaintiff was referred to Dr Wilk, musculoskeletal physician. The plaintiff first saw him on 13 February 2009. Dr Wilk referred the plaintiff to have a further MRI scan which was taken on 2 March 2009. Dr Wilk’s interpretation of the findings on the MRI scan was that it showed general disc degenerative changes at L3-4, L4-5 and L5-S1 with no recurrent disc protrusion. On examination he found the plaintiff's movements to be slow and hesitant, but restricted overall to about half of normal range. Although the MRI scan did not convince Dr Wilk that there was any obvious nerve irritation, he considered that there might have been, so he performed a left-sided L5-S1 transforaminal epidural injection under fluoroscopy on 9 April 2009. The plaintiff experienced only minimal relief of pain.
58 Subsequently, Dr Wilk gave the plaintiff blocks of local anaesthetic on 28 May 2009, and again on 4 June 2009 to block the pain in the lower lumbar facet joints on both sides. He subsequently performed a radiofrequency denervation on 31 July 2009 of the L4-5 and L5-S1 facet joints. The plaintiff reported that the spasm in his left buttock had gone and there was an easing of the numbness in his left leg.
59 The plaintiff returned to see Dr Wilk on 9 April 2010. By that time the plaintiff had attended the Sports Injury Clinic at Frankston where he had undertaken a general strengthening program. His weekly payments had ceased, and he then returned to work in the real estate industry. However, by March 2010 his lower back pain had flared-up and he was having trouble standing up straight and getting in and out of cars. Dr Wilk gave the plaintiff repeat bilateral blocks to the facet joints on 6 May 2010.[32] He subsequently performed a repeat denervation on 16 June 2010 which improved the plaintiff's flexibility and reduced his pain experienced on sitting and standing. On review in July 2010, the plaintiff was able to bend forward and almost reach his toes, and was able to drive for longer periods of time and do some gardening. Dr Wilk said that he planned to undertake a further denervation in April 2011. There is no subsequent report from Dr Wilk. The plaintiff swore a second affidavit on 9 November 2011 in which he referred to the further denervation, but said little about whether it gave him the same relief as the other denervations.[33]
60 The plaintiff was referred to have physiotherapy by Dr Selleck. He was later referred to Ms McCarthy, who first saw him in April 2009. Ms McCarthy practices at the Sports Injury Clinic in Frankston, which I infer is the same clinic referred to by Dr Wilk. Ms McCarthy treated the plaintiff for a period following the first occasion he saw her in April 2009, and then again in 2010 for about twelve months. She recommended six-weekly reviews to see how he was getting on in terms of work and his exercise program.[34] It would appear that the program referred to by Ms McCarthy was a multidisciplinary program.
61 The plaintiff engaged a different general practitioner. He first saw Dr Manton on 12 November 2008. Dr Manton recorded that the plaintiff had severe low-back pain and stiffness when he first saw him. He recounted the treatment which the plaintiff had obtained from Dr Wilk and from Ms McCarthy, and was of the opinion that the plaintiff was not fit for his pre-injury work; was suffering from a fluctuating lower back problem which he needed to avoid aggravating; that he would need physiotherapy treatment indefinitely; and that he had not seen any significant improvement in his condition. He prescribed the plaintiff Tramadol for pain relief, which the plaintiff is taking at its maximum dosage.[35]

62 Although I am disinclined to give much weight to the medical opinions of the medical practitioners who have examined the plaintiff on a medico-legal basis because of the deliberate and false histories which the plaintiff gave to them, I propose to summarise their opinions nonetheless for the sake of completeness, and then to determine finally what I can make of them.
63 Mr Klug examined the plaintiff on 25 May 2010 and 25 May 2011. He was of the opinion that the plaintiff suffered an aggravation of pre-existing degenerative changes in his lower back which gave rise to symptoms in his lower back and in his left leg. He recommended that the plaintiff not engage in activity which required bending, twisting and lifting weights on a repetitive basis. He considered that the plaintiff was fit for sedentary work where he could change his posture. He referred to the plaintiff’s sporting activities and was of the opinion that he would not be able to return to such activities again.[36]
64 Mr Klug was provided with the affidavit sworn by the plaintiff on 29 November 2002 before he examined the plaintiff a second time. He became aware that the history which the plaintiff gave him when he first examined him was wrong and that the plaintiff had given away all of his sporting activities by 2000. Mr Klug firstly said that he still believed that the plaintiff had suffered a significant aggravation of a pre-existing back disorder which was responsible for referral pain into the plaintiff's left leg, but later he said:

65 Mr Westh examined the plaintiff on 8 October 2010 and on 4 October 2011. He was of the opinion that the plaintiff suffered a significant aggravation of underlying lumbar disc degenerative changes as a result of the incident. He was of the opinion that the plaintiff had a capacity to undertake suitable work, as he was at that time, as a real estate agent.[38]
66 Dr Horsley was provided with the plaintiff's affidavit sworn 29 November 2002 and the report of Dr Rustomjee. She summarised the affidavit, but only summarised how the plaintiff was injured and the medical treatment he obtained, without referring to the sporting activities the plaintiff ceased engaging in by the time he swore that affidavit. Furthermore, she recorded a history, from which I have quoted in paragraph 36 above, without noting the contradictions in the history she was given when compared with the affidavit. She did not refer to the history recorded by Dr Rustomjee. After examining the plaintiff, she was of the opinion that he sustained an acute aggravation of his pre-existing lower back injury in March 2007, which resulted in an increase in the back pain and left-sided leg pain. She considered that he was capable of work with restrictions similar to those referred to by Mr Klug, and she considered he was working in appropriate work in the real estate in industry, although she thought his capacity to work was about 10 to 15 hours less than what he was doing (40 to 50 hours according to the history she recorded).[39]
67 Mr Haig examined the plaintiff on 11 February 2009. He was of the opinion that what occurred in March 2007 was a significant contributing factor to the occurrence of an injury to the plaintiff's lower back. He considered that he was not fit for his pre-injury work, but was fit for suitable employment with restrictions, again not dissimilar to those referred to by Mr Klug.[40]
68 Dr Littlejohn examined the plaintiff on 18 August 2009. He was of the opinion that the plaintiff had suffered an aggravation of pre-existing degenerative disease in his lower back as a result of what occurred in March 2007, and that he had gone on to develop a Chronic Pain Syndrome. He referred to the presence of non-anatomical features which he elicited during his examination of the plaintiff. It would appear that he considered that the Chronic Pain Syndrome, comprising the aggravation of the plaintiff's lower back and the evidence of psychosocial and psychosomatic problems, meant that the plaintiff was not fit for his pre-injury work and did not have a work capacity.[41] He did not believe that the plaintiff required any injections or infusions or active hands-on physical therapy, but rather a pain management program and appropriate psychotropic medication.
69 Mr B Dooley examined the plaintiff on 22 December 2009. He was of the opinion that the plaintiff had aggravated lumbar disc degenerative disease. He did not consider that the pain in the plaintiff’s left leg was a sign of radiculopathy. His opinion is of limited value because it was directed to an assessment of the plaintiff's permanent impairment. Although he did say that the plaintiff may require further radiofrequency denervation, but it was not something he would recommend.[42]
70 Mr M Dooley examined the plaintiff on 1 September 2011. Mr Dooley was provided with the report of Mr Rustomjee. He made a comparison between the symptoms complained of by the plaintiff when he examined the plaintiff and those recorded by Mr Rustomjee. Although he seemed to accept that the plaintiff aggravated the underlying degenerative disc disease in his lower back, the comparison led him to conclude that the symptoms described by the plaintiff were the same as those he described in 2002. However, he noted that the pain the plaintiff is now experiencing is more constant and more intense than what was described to Mr Rustomjee. He considered that the symptoms described by the plaintiff were typical of degenerative disc disease in the lumbar spine. Mr Dooley considered that with a regular exercise program his symptoms would remain under control, and that he would not expect deterioration in his condition over time.[43]

71 The first question I must resolve is what I make of the plaintiff's credit. I do not accept that the affidavit sworn by the plaintiff on 29 November 2002 and the history recorded by Mr Rustomjee are other than representative of the pain and suffering consequences suffered by the plaintiff due to the previous injuries he suffered to his lower back and the surgery performed by Professor Rosenfeld.
72 By the plaintiff's own admission, the major sporting and recreational pursuits he had engaged in both before the occurrence of the previous injury and subsequent to the surgery ceased by about 2000. The only logical conclusion regarding why he ceased engaging in those activities is because he was unable to due to the nature of his previous lower back injury which had overtaken him and had reduced his capacity to function very significantly. For the same reasons, he ceased undertaking home maintenance work in 2005.
73 The plaintiff had gone from being very active physically to being far less active. He changed his occupation from the hospitality industry to the real estate industry, and then to sales with the first defendant. The changes in his occupation also demonstrate that he pursued occupations which he was physically capable of undertaking. By the time he obtained employment with the first defendant on 3 October 2005, it is very clear that he was no longer capable of pursuing employment which was other than light work.
74 I do not accept the plaintiff's evidence that I should treat the affidavit he swore on 29 November 2002 and the history he gave to Mr Rustomjee in isolation as if to say that between 2002 and 2007 he recovered to some extent, demonstrating that what he swore in that affidavit and what was recorded in that history were no longer the case.
75 If I then look at the affidavits sworn by the plaintiff in this proceeding and the reports of his treating medical practitioners, there is a discernible difference between how he was functioning before March 2007 and subsequently.
76 I accept the plaintiff's evidence that he experienced more pain in his lower back and began experiencing pain in his left leg. It is difficult to determine whether the pain in his left leg was sciatic or referred pain. The medical opinions seem to demonstrate that there was no further disc damage according to the radiological studies, but there might have been.
77 I accept that the plaintiff then had treatment from Dr Richards; from Dr Selleck and Dr Manton; from a physiotherapist (unidentified); and from Ms McCarthy, and then principally from Dr Wilk. The most significant treatment has been the prescription of painkilling medication (Tramadol) and the treatment provided by Dr Wilk. His principal treatment has been denervations which have had the desired effect of reducing the pain and restriction of movement experience by the plaintiff, although the good effect eventually has worn off, requiring further denervation.
78 In his third affidavit, the plaintiff described significant pain in his lower back, mid back and upper back between his shoulders at times when the good effect of the denervations had worn off. He described the loss of sensation in the whole of his left leg, and the grabbing sciatic-type pain in his left buttock. The pain in his left leg results in an interference with his mobility and a limp. He rested over the recent Christmas break. He did not go to Lake Glenmaggie or Phillip Island as he intended to, where he would have stayed in a caravan. He did go fishing in a boat.
79 In the same affidavit he referred to treatment provided to him by Dr Manton and by Ms McCarthy, and also a remedial masseur. The treatment from Dr Manton is limited to the prescription of medication. Ms McCarthy provides physiotherapy treatment once a week to once a fortnight. The plaintiff has an agreed allowance of fourteen sessions of remedial massage paid for by WorkCover.[44]
80 The plaintiff is able to pursue his occupation as a senior salesman in the real estate industry. He is employed by Ray White real estate agent. He works 40 to 50 hours per week. He is not suffering any loss of earnings. Apart from a short period of returning to work with the first defendant, the plaintiff was absent from work until about February 2010.
81 Ms Cahir swore an affidavit on 12 January 2011. She has known the plaintiff for ten years and has been in a domestic relationship with him over the last seven or eight years. She described the plaintiff's capacity to ride a motorcycle, and referred to one event where he rode for some eight days to Coffs Harbour before March 2007. Since suffering the injury she has observed that he has difficulty getting in and out of a car, and has observed facial expressions and rigid movements which she believes demonstrate the pain which the plaintiff experiences. She has observed him to have difficulty sleeping, and that he resorts to spending most nights on the couch because he finds it more comfortable. Her sexual relationship with the plaintiff has diminished to the point where it is a rare occurrence because of what she believes to be pain experienced by the plaintiff, and also the stress he experiences about his work and his financial position.[45]
82 I am not in much doubt that the plaintiff suffered a major injury to his lower back previously. It required major surgery, performed by Professor Rosenfeld. The aggregate effect of the previous lower back injury and the surgery reduced the plaintiff's capacity to function markedly by 2002, and more so by 2005, to the point where his capacity for work was reduced to light work. He had practically given away all of the sporting and recreational activities which he had previously enjoyed.
83 Mr Smith of Counsel cross-examined the plaintiff regarding the way he was affected by the aggravation of his lower back injury when compared to what it was like when he swore an affidavit on 29 November 2002 and when he was examined by Mr Rustomjee. Mr Smith of Counsel read the history recorded by Mr Rustomjee to the plaintiff. The plaintiff was then asked whether it was the identical picture of pain and restriction of movement as he described following what occurred in March 2007. The plaintiff said that what followed March 2007 was totally different.[46] However, the plaintiff agreed that when a comparison was made between what he said in 2002 and the pain and suffering consequences following March 2007 was similar in the following respects – constant pain; pain varying between mild to quite severe; problems with sitting for more than half an hour; problems with driving for more than half an hour; problems with standing for more than half an hour; problems with walking for more than half an hour and that if he did any heavy work he would do it in bits and pieces or by instalments.[47]
84 Although Mr McCredie conducted an extensive re-examination of the plaintiff by exposing him to histories which were put to the plaintiff as being false, I am not convinced that the answers given by the plaintiff explained why he swore an affidavit maintaining, in essence, that he made a complete recovery from his previous injury and the surgery and was engaged in very vigorous sporting and recreational activities and had no impediment to engaging in a wide range of other social and domestic activities up until March 2007.
85 I am very disquieted by the evidence given by the plaintiff in his earlier affidavits and by the histories he gave to a large number of medical practitioners regarding the level of his recovery and the level to which he was engaging in sporting, recreational, social and domestic activities up until March 2007. What I do accept is that it is probable that the plaintiff was in a parlous state with respect to his lower back by 2002 and that the problems he was having, described in his affidavit sworn 29 November 2002 and the history recorded by Mr Rustomjee, persisted up until March 2007. Whilst I accept he did suffer an aggravation of his lower back in March 2007, I do not accept that the consequences in terms of pain and suffering were significantly different from what he was already suffering.
86 In relation to the medical practitioners who examined the plaintiff who were unaware of the affidavit sworn by the plaintiff on 29 November 2002 and the history given to Mr Rustomjee, I think their opinions were so infected by the false history given by the plaintiff of his capacity to engage in a high level of sporting, recreational, social and domestic activities, it resulted in their opinions being unreliable. I cannot see how I can filter out that false history and in some way make some sense of their opinions.
87 In relation to Mr Klug and Dr Horsley, they were both provided with the affidavit sworn by the plaintiff on 29 November 2002, and Dr Horsley was provided with the report of Mr Rustomjee, but for some reason Mr Klug was not. Mr Klug was still prepared to conclude that the plaintiff had suffered an aggravation, but he seems to have had difficulty attributing how much of the pain and disablement which the plaintiff reported to him was caused by the previous injury and the aggravation which occurred in March 2007. The fact that he referred to the aggravation as being significant is one thing, but the difficulty I have is determining what consequences flow from the aggravation even if it was significant. I am not much helped in that regard by Mr Klug’s opinion.
88 Similarly, I am not much helped by the opinion of Dr Horsley. Firstly, Dr Horsley summarised the content of the affidavit sworn by the plaintiff on 29 November 2002, but short of the plaintiff's reference to the sporting and recreational activities which he had ceased engaging in. It is unclear to me why Dr Horsley did not recognise a very significant contradiction between the history given to her by the plaintiff initially and what she must have read in that affidavit. She did not refer to the report of Mr Rustomjee at all. Her opinion otherwise was that the plaintiff had sustained an acute aggravation which had produced an increased level of lower back pain and left-sided leg pain. Based upon the history given by the plaintiff of his difficulties with his work, she proposed that restrictions be placed upon his mobility and posture and that perhaps he should be working less hours.
89 The additional difficulty I have with the plaintiff's evidence in connection with the opinions of Mr Klug and Dr Horsley is that they were not aware that the plaintiff's tolerances which were elicited by Mr Smith of Counsel during cross-examination were very similar, if not the same, between the pain and suffering consequences he was suffering in 2002 and following what occurred in March 2007.
90 Mr M Dooley accepted that the plaintiff suffered an aggravation of his lower back by what occurred in March 2007. He was not provided with the affidavit sworn by the plaintiff on 29 November 2002, but he was provided with the opinion of Mr Rustomjee, which appears to have impressed on him that the pain and suffering consequences experienced by the plaintiff in 2002 and after March 2007 were more consistent with typical distant generative disease in the lumbar spine.
91 In accordance with the principle enunciated in Petkovski v Galletti,[48] it is for the plaintiff to establish what injury was caused by what occurred in March 2007, and to undertake an analysis of the extent of the impairment of the function of his lower back before and after what occurred in March 2007 in order to establish that what occurred in March 2007 meets the statutory test.
92 I am satisfied that the plaintiff suffered increased pain and the onset of left leg pain which resulted in him requiring the medical treatment which I have summarised. I am also satisfied that he was unable to work for a period of time, but is now working full-time without any loss of earnings. I am satisfied that he has required treatment for the increased pain, but that increased pain has occurred through an aggravation of a significant underlying pathological condition.
93 I have dealt with the medical evidence in great detail. It is obvious from my reasoning why I am not persuaded by some of the medical evidence, but it seems to me that I am driven to the opinions of Mr Klug, Dr Horsley and Mr M Dooley, because they were at least, in some measure, aware of the real position of the plaintiff prior to what occurred in March 2007. Mr Klug was equivocal, and in particular, regarding the lessening of the plaintiff's capacity to work; Dr Horsley thought the plaintiff could work, but should do lesser hours and with restrictions, and Mr Dooley, whilst accepting that there was an aggravation, seemed to be drawn to the conclusion that what was recorded by Dr Rustomjee as the plaintiff's pain and suffering consequences were not much different from what he considered the plaintiff was suffering from when he examined him, and it was likely that the plaintiff's pain and suffering consequences were related to typical degenerative disc disease in the lumbar spine.
94 In the end, I am not satisfied that the injury constituted by the aggravation of the plaintiff's lower back meets the statutory test. The pain and suffering consequences seemed to me to be limited to a period of time off work and the necessity for medical treatment, whereas the pain and suffering consequences which preceded what occurred in March 2007 were major. I have reached this conclusion by make a comparison which I am called upon to make by the principle enunciated in Petkovski v Galletti.[49]

95 For the reasons set out above, the plaintiff's Originating Motion must be dismissed.
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[13] PCB 71. Mr Klug was provided with the plaintiff's affidavit sworn 29 November 2002, and he referred to it in a second report.

[22] Mr Klug and Dr Horsley were provided with the plaintiff's affidavit sworn 29 November 2002. I will refer to the treatment of that affidavit later in these reasons. Mr M Dooley was provided with the report of Mr Rustomjee.

County Court of Victoria

Smith v ACN 102 456 011 (formerly PSM Dandenong Pty Ltd) & Anor [2012] VCC 782 (21 June 2012)