Poholke v Goldacres Trading Pty Ltd & Anor [2016] VCC 371

County Court of Victoria|2016-04-11|Before: Mr P

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for injury suffered by the plaintiff in the course of his employment with the first defendant, in particular on 16 May 2013 ("the said date").

2 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of "serious injury" to be found in s134AB(37) of the Act. There, "serious injury" is defined relevantly as meaning:

"(a) permanent serious impairment or loss of a body function;

...

(c) permanent severe mental or permanent severe behavioural disturbance or disorder ... ."

3 The body function relied upon in this application is the lumbar spine. The plaintiff also claimed to have suffered a severe psychiatric impairment pursuant to clause (c).

4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable".

8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

9 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of "severe". Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from "serious" or "severe" betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that "severe" was used in the definition as a stronger word than "serious".

10 Winneke P, in Mobilio,[3] agreed with Brooking JA's reasons and further agreed with him that the word "severe", where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word "serious" where used in that Act.[4]

11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.

16 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. His father, Terrill Poholke, swore an affidavit on 9 September 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

17 The plaintiff is presently aged forty-one, having been born in June 1974. He continues to receive weekly payments of compensation in relation to a neck injury suffered prior to the said date ("the neck injury").

18 The plaintiff was paid weekly payments for a limited period for his back injury, the subject of this application, and also an impairment benefit pursuant to s98C of the Act.[7]

19 Having completed Year 10, the plaintiff entered the workforce and became a trained welder, learning his skills from his father and on the job. Thereafter, he had a number of welding jobs and also worked as a labourer.

20 The plaintiff commenced working for the first defendant a second time on 19 August 2008. He was employed mainly as a steel fabricator and welder. He worked full time, often with overtime. His duties included maintenance work, structural work, welding, steel fabrication, oxy cutting, spray painting and construction.

21 On 10 May 2011, the plaintiff suffered a serious injury to his neck and right shoulder when lifting a heavy trestle whilst working for the first defendant.

22 As a result thereof, the plaintiff was working on modified duties as at the said date.

23 The plaintiff was granted a serious injury certificate to bring common law proceedings for only pain and suffering in relation to the neck injury. He was able to continue work, albeit on restricted duties.

24 On 23 June 2014, the plaintiff received a jury verdict of $290,000 for pain and suffering for the neck injury ("the jury trial").

25 The plaintiff agreed he suffered a very disabling injury to his neck and right shoulder in May 2011.[8]

26 The plaintiff agreed he told nurse, Jennifer Forbes, in July 2012 that he was no longer able to ride a pushbike without aggravating pain and headaches. Walking brought on headaches. His neck pain was almost crippling and he was having a lot of pain.

27 This neck pain continued right through until the time the plaintiff's employment with the first defendant was terminated.[9]

28 The plaintiff gave the following evidence at the jury trial:

• The pain in the back of his head was like a toothache that became pretty bad. He lay in bed at night crying and wished he was dead because he just could not handle it - "Get me out of here, I've had enough."[10]

• It felt like someone had a screwdriver handle and was pushing it right into the back of his head. (This is still the situation).[11]

• He had a migraine about two or three times a week and had to take medication and go to bed. (This situation continues).[12]

• He kept dropping things. He even dropped his child and that meant his arm was in a horrible state.[13]

• The pain in the back of his head became so bad that he was taking two or more Endone, probably mixing them with Panadol if he could obtain relief and then go to bed because of his neck pain.[14]

• He tried not to walk up hills just because the fact of moving his arm hurt too much.[15]

• He really struggled at work, working more slowly and had difficulties but just got it done.[16]

29 Whilst giving evidence in the present application, the plaintiff's whole right arm and the side of his neck was just aching and felt really bad.[17] He had to flex his right arm because it was aching.[18]

30 The plaintiff has not had a full night's sleep since the neck injury. This situation continues. He does not sleep much because of his neck and back pain.[19]

31 The plaintiff agreed that when he saw Dr Capes in September 2012, he complained to him of constant neck pain with radiation into the right shoulder and to a lesser extent, the left. His right arm ached. He got headaches which he rated as 5 out of 10, generally increasing to 8 out of 10 on occasions. He needed Endone to control the headaches and help him sleep. He could not work on cars, ride a pushbike, walk for more than half an hour, carry his son or bathe him, and had great difficulty sleeping and trouble driving.

32 The plaintiff during the jury trial agreed that in summary, every aspect of his life away from work was severely impacted because of his neck and arm condition[20]

33 The plaintiff agreed that when examined by Mr Kossmann in September 2012, he told him of constant headaches and disturbed sleep. He could not hold his baby; he bathed the baby once but was not able to do it. He could not read because of headaches. The plaintiff had separated from his partner because of his pain and grumpiness due to the neck injury.[21]

34 The plaintiff agreed that when examined by Mr Brownbill in September 2013, he told him about the interference with activities because of his neck and right shoulder pain. The plaintiff agreed what was ever available to him in terms of enjoyment away from work - namely, cars, bikes, sleeping, relationships, children, hobbies, trailers - were all lost to him because of the neck injury.[22]

35 The plaintiff returned to light duties, which initially required no more than 10 kilograms lifting. However, when the first defendant undertook factory extensions in 2012, the plaintiff was put in charge and in the course of that work, he frequently performed tasks which were considerably heavier than the modified duties for which he had been cleared.

36 In re-examination, the plaintiff explained in detail to the type of work he was doing in the two years after the neck injury, before the said date.

37 The plaintiff had "not real long" off work, and went back to some alternative work for about a week. He then returned to where he originally worked and was doing small componentry and "sorting some issues out". It then "sort of snowballed" and he was asked to do a shed extension at the first defendant's premises.[23]

38 The plaintiff was in charge of that task, organising workers and also doing a lot of structural welding himself. He organised a concrete cutter. The plaintiff used a forklift to lift out pieces of concrete. He spent two weeks welding up in the knuckle room with another worker.

39 Whilst working on the shed extension, the plaintiff was also required to lift components and parts and had to weld them. He was working 10 hours a day. His hours were reduced to 7.6 per day on the advice of OH&S officer. The shed extension job probably took six months.

40 After the main shed extension, the first defendant had to install a new paint line (early 2013). This line hung off overhead rails at its premises. The line was not big enough to service the whole factory so it had to be extended.[24]

41 The plaintiff was in charge of that job. He had a "chum" and other workers to help him but because production came first, these workers would be taken from him, so the plaintiff was left to do the work himself.

42 Whilst the plaintiff was given a co-worker, that co-worker did not know how to do the welding, so the plaintiff did it. On that project, the plaintiff was working 7.6 hours a day, five days a week. Towards the end of the project, he also worked Saturdays.

43 The plaintiff was also involved in building a really large mezzanine floor.[25] He had to work in and out of a scissor lift, do overhead welding and lift heavy beams. On and off, he obtained assistance when he could.[26] The floor took probably two months to complete.

44 Otherwise, the plaintiff was doing pretty well anything that was required, like maintenance around the factory or factory improvements. He did these tasks during overtime hours.[27]

45 During that two-year period, the plaintiff experienced constant pain in his neck and shoulders. It did not stop him working. However, there was one period when he was working by himself putting up a crane rail. It was pretty heavy work and caused a flare up of his arm, his neck and "everything".[28]

46 The plaintiff's doctor told him that he needed a rest as he had stirred himself up too much. He certified the plaintiff unfit for work for two weeks.

47 On the plaintiff's return to work, the first thing his boss asked him was when he thought he could get the shed extension finished. The plaintiff then went straight back to that task.

48 On the said date, the plaintiff was working on an elevated work platform (a scissor lift), engaged in the extension of the paint line.

49 When checking clearances to remove the paint exhaust fans, the plaintiff was on the device by himself. He brought the lift down as low as he could to ground level and injured himself whilst exiting it. At that time, he felt some sharp pain in his right shoulder and neck and lost his footing on the ladder and fell nearly a metre, heavily to the ground ("the incident"). He slipped in the scissor lift because of the weakness in his right arm.[29]

50 As he hit the concrete floor, the plaintiff immediately felt a severe sharp pain in his lower back and right leg and had trouble straightening up. Initially he thought he could work it off and worked for an hour or so, before reporting the injury.

51 The plaintiff's pain was worse the next day and he required assistance from co-workers. His back only got worse and he advised his supervisor that he was going to Ballarat Base Hospital. By that stage, the plaintiff had a severe limp.

52 At the hospital, the plaintiff was seen by Dr Leung, who told him he had suffered a back spasm from the way he had landed. The plaintiff was given an anti-inflammatory injection and some Panadeine Forte. He was certified unfit for work for the rest of the week. Over the weekend, he was virtually bedridden and in severe pain.

53 On 20 May 2013, the plaintiff attended his general practitioner, Dr Choong, who diagnosed a lumbar strain and referred him for physiotherapy. There was further review on 23 May 2013. The plaintiff was given a certificate of unfitness to work.

54 The plaintiff attended physiotherapist, Karla Hunt, on 22 May 2013. He continued to attend her regularly for neck pain and at other times for lower back and associated leg pain and sometimes for both conditions.

55 On 27 May 2013, the plaintiff was cleared by Dr Choong to work modified duties. He was still then suffering a good deal of lower back pain but persevered for two weeks, hoping it would improve.

56 On 17 June 2013, whilst at work, the plaintiff was getting pains down his right leg as well as constant and quite severe lower back pain. He went back to Dr Choong, who sent him for a CT scan and certified him unfit for work.

57 On 19 June 2013, the plaintiff attended Dr Choong for the results of the CT scan and was advised he had suffered a lumbar disc protrusion. He was given nerve block medication and advised to continue physiotherapy and walking. Further certificates of unfitness for work were provided.

58 On 25 June 2013, the plaintiff saw Dr Choong again, with no improvement, and he was advised to continue with physiotherapy and short walks.

59 On 27 June 2013, the plaintiff attended Mr Wallace, neurosurgeon, who sent him for an MRI scan at St John of God. He had previously treated the plaintiff for the neck injury and advised him to continue with physiotherapy and exercises as prescribed by his doctor.

60 After the incident, the plaintiff was taken off constructing the paint line and put on probably the lightest duties in the factory. He had to stand at a bench, putting plumbing fittings together. Even doing those light duties, he was suffering a lot of low back pain.

61 After his back injury, there was a change in what the plaintiff was able to do. "It was awful." He had a lot of trouble doing the smallest thing. He initially went back on just two hours and everything had changed at work. Working at the bench, he could sit and stand as he wanted but even working two hours a day, he would be off wandering and he had awful left leg and groin pain.[30]

62 The plaintiff attended his doctor and asked him to increase his hours because he was getting pressure from the first defendant. On 2 July 2013, Dr Choong certified the plaintiff fit for modified duties for four hours a day, with no lifting over 5 kilograms and no excessive bending or twisting.

63 Subsequently, return to work arrangements involved the plaintiff increasing the hours worked to full time but continuing with modified duties and a 10 kilogram lifting limit.

64 The plaintiff continued to work, albeit under great difficulty, often taking Endone and other heavy painkillers just to get through the day.

65 The plaintiff was having trouble the whole time. He was still having physiotherapy for his lower back and neck. His physiotherapist advised him the worst thing he could do was to sit at a bench doing the same task. She suggested he do a job that did not involve heavy lifting, being able to walk around a bit and stretch out.

66 The plaintiff spoke to the first defendant's production manager, and advised him of his physiotherapist's instructions. The manager asked the plaintiff what job he thought he could do. The plaintiff suggested going to the boom shed and helping with the plumbing on the boom, as at least he could walk around in that area. The plaintiff was then moved to that job.[31]

67 In that job, booms were fitted to the sprayers to allow the poison to come out. All the hoses and bracketry were fitted up at the same time. As he walked along the boom, the plaintiff dragged along a bench with all the fittings on it. He was required to put little plastic brackets on the boom and bolt them on. He had to put a hose from each poly pipe together and clamp it on. He had to put on all the jets, screwing them on from underneath. He did that job walking along, up and down the machine.[32]

68 This work was light and a bit fiddly. The plaintiff did not have the responsibilities he had before the incident. Every now and again, he had to drive machinery around the factory, but if he had taken any medication he would be told not to drive. He was driving big sprayers, self-propelled sprayers, tractors and forklifts.[33]

69 The plaintiff continued to suffer considerable low back pain in addition to the background pain from his shoulder and neck from the previous injury.

70 Whereas before the low back injury the plaintiff could cope with his duties, albeit with pain, thereafter his pain was often so bad he had to take half-hour toilet breaks to sit down and rest his lower back and ease the shooting pain into his leg. Even though the work was light, the plaintiff now had pain in the lower part of his body in addition to his neck and upper body pain. He had never tried to get out of doing work like this when he just had the neck injury.[34]

71 Prior to the incident, the plaintiff was able to perform modified duties and even a lot of work in excess of the prescribed restrictions. He was even doing overtime until some months before the incident.

72 The plaintiff discussed with one of the office workers who was in charge of spare parts, whether he could work in that area. There was a shop at the first defendant's premises where parts for sprayers could be purchased. The plaintiff was told he was too old and he did not have enough computer skills for that job.[35]

73 Accordingly the plaintiff continued to work in the factory under very considerable difficulty and often in great pain. His employment was terminated on 19 December 2013 and he has not worked since. Prior thereto he was earning about $1,000 a week.

74 The plaintiff was advised his employment was terminated because the first defendant had no work for him.[36] Had his employment not been terminated, the plaintiff agreed he had anticipated he would have just struggled on and been able to keep doing light duties.[37]

75 The plaintiff confirmed Roger Richards gave him a reference. He also obtained a reference from the first defendant's managing director. Save for the main shed extension, the jobs listed by Mr Rogers were undertaken by the plaintiff after his neck injury.[38]

76 The plaintiff loved working and loved building things. When he drove past the first defendant's premises on the morning of the hearing, he looked at the sheds that he had built and it saddened him because he missed doing that work.[39]

77 If the factory next door had offered the plaintiff really light duties, depending on the duties, the plaintiff would have tried to do that work. He agreed it was the first defendant's decision, not the injury to his lumbar spine that caused him to cease work in December 2013.[40]

78 In re-examination, the plaintiff stated that there was no change in the amount of work available at the first defendant's premises after the May 2013 incident. He was not aware of any reason apart from his back injury why his employment was terminated.[41]

79 The plaintiff could not remember seeing Dr Graham in July 2013. The plaintiff was not sure that he told him that he had a mild ache in his low back which would improve if he moved around.

80 If Mr Brownbill had recorded on examination in September 2013 that the plaintiff had said that his back did not worry him now because the bosses have had to put him on lighter duties, that was probably because at that stage, he was trying to put everything in a positive spin, trying to look forward. Whilst he had medical certificates, the plaintiff was made to do his full normal work.[42]

81 The plaintiff agreed physiotherapy treatment had helped his back a bit, having had some relief from traction. That was in line with the comment to Mr Brownbill that his back then did not worry him. He agreed he was on lighter duties clearly as a result of his neck and arm pain.[43]

82 As at December 2014, the plaintiff had not had any retraining or vocational rehabilitation. He had held a heavy rigid truck licence and a crane licence since 2012.

83 The plaintiff had made enquiries in relation to work he thought he might be able to do, although probably part time work, such as working as a security guard or parking officer. However, these attempts had been unsuccessful and he was then unable to think of any job he could do without significant pain or the need to take substantial quantities of heavy painkillers.

84 In February 2014, the plaintiff was sent to Recovre, where he attended about twelve times. He was helped to do a résumé. He attended a job club but received no retraining or reskilling. He was still looking in the newspaper regularly but he had not seen any job he thought he could do.

85 The plaintiff prided himself on being a highly skilled hard physical worker. He had very few computer or literacy skills. He did not write well and his spelling was poor. He did not think he had the capacity to do any sedentary occupation.

86 In his first affidavit, sworn in December 2014, the plaintiff deposed that pre incident, he was able to drive from Ararat to Ballarat without a break. Now driving any distance, he had to stop and walk around after half an hour because of his low back and groin pain going into his leg muscles and even his feet.

87 The plaintiff then had difficulty sleeping, and at night, often had quite excruciating pain into his leg as well as arm and right shoulder pain. He had to get up during the night and go for a walk or sleep in the recliner chair to ease the pain.

88 The plaintiff was then living with his parents in Ballarat. Before the incident, he used to spend a lot of time in the shed working on his cars. He loved keeping busy and working with his hands.

89 As a result of his back injury, the plaintiff was now able to do even less than he could do previously and seldom did any work on the cars. Before suffering the injuries, he used to greatly enjoy going drag racing with friends but seldom did so now.

90 However, in cross examination, the plaintiff agreed that before the incident, his ability to work on cars was gone. His enjoyment of all activities on a bike, whether it be pushbike, dirt bike, motorbike, was gone.[44]

91 Whilst in his first affidavit, the plaintiff described his problems conducting his trailer business due to his back injury, he had decided to end the trailer business before the incident as he had lost the passion for it.[45]

92 The plaintiff could not go to the movies because of his neck pain. He had not had sexual relations because of his neck pain.[46]

93 As of late 2014, the plaintiff's son was aged three and had autism. He lived with his mother in Ballarat. The plaintiff saw him most weekends and spent quite a lot of time with him. The plaintiff had difficulty playing with him, kicking a football and doing all the things a dad liked to do. Because of his disability, the plaintiff's son sometimes flipped out if they were in a public place and the plaintiff had no choice but to pick him up to calm him down. When he did so, often the plaintiff experienced severe pain.

94 At that stage, the plaintiff was seeing his general practitioner about once a month and had been advised there was little more that he could do. He also saw Mr Wallace from time to time and he had advised against surgery. The plaintiff had physiotherapy monthly.

95 The plaintiff was then using Norspan patches, taking Panadol, Nurofen Plus and Endone on an 'as needs' basis but seldom as possible as it upset his stomach.

96 The plaintiff commenced a twelve-week pain management course at the PainWise Program at St John of God in Ballarat in late 2012 ("Painwise"). He attended three times a week on occupational therapists, physiotherapists, doctors and psychologists and had hydrotherapy. He believed the purpose of the program was to enable him to better cope with his pain.

97 The plaintiff did the Painwise course to assist with all his conditions. He learned how to cope with the pain. It did not go away but he was more readily able to understand it.[47]

98 The PainWise course gave the plaintiff only limited assistance. It recommended WorkCover provide him with a long-handled shoehorn and a handy bar to assist with picking things up. These were declined.

99 The plaintiff has however been provided with a shower chair which helped him wash his feet; a toilet seat raiser, so he can more easily get on and off; feet for his bed, which raised the bed height to make it easier to get in and out of bed, and a memory foam pillow and back support.

100 As of December 2014, whilst the plaintiff continued to suffer pain in his neck and shoulder, the worst pain was in his lower back and into his left leg. Sometimes it was so bad he wanted to have his leg cut off.

101 As a result of not being able to work and the constant pain, the plaintiff had become very depressed. He had lost his self esteem and felt terrible about not working. He had some very dark days and occasionally had suicidal thoughts about which he had spoken to his general practitioner. Dr Choong had sought permission from the insurer for counselling. That had not happened at that stage.

102 Prior to the incident, the plaintiff had some depression in late 2010. He was then feeling down in the dumps because of a relationship breakup. He believed he was prescribed some antidepressants but did not think he took them. However, the depression settled down after a while and was not nearly as severe or indeed as protracted as his present condition. What really got him down was the prospect of not being able to work in the future.

103 In his affidavit sworn on 9 September 2015, the plaintiff confirmed he continues to suffer from the consequences referred in his earlier affidavit.

104 The plaintiff continues to be disabled for work. He had always prided himself on being a very hard worker and had a very strong work ethic, having been the "go to" person whilst working for the first defendant even after the neck injury.

105 Until the incident, the plaintiff was able to work, albeit under some restriction. He enjoyed the work and feeling of worth that came with working and being able to support himself financially. He enjoyed the companionship of his workmates. He now feels like a failure and he is very upset about the example he is setting for his son.

106 The plaintiff does not know of any light job in his local area for which he has the necessary skills and he thinks he could cope with.[48] He looks in the paper, on the website and just talks to local people about potential jobs.[49]

107 The plaintiff does not think he could work as a parking inspector. He is okay going for a walk but he has to stop and start and that would be a problem.[50]

108 The plaintiff does not have real computer skills. His spelling is poor, as was indicated in a document he completed when examined by Mr Barclay Reid and also in a handwritten note to his ex-partner that was tendered.[51]

109 The plaintiff sees his four-year old son every weekend, staying with him at his mother's house. It is basically the plaintiff's time with him. The plaintiff's son is epileptic as well as autistic.[52] He always wants to play on the floor. When the plaintiff does so, he suffers a lot of pain in his lower back and legs.[53]

110 When the plaintiff was in a shop two months ago, his son got away from him and the plaintiff then had to chase him. Doing so made the plaintiff cry because it just hurt so much to run after him. Also, it made the plaintiff think he could not even look after his own child properly.[54]

111 The plaintiff continues to have lower back pain which sometimes feels as if he has been stabbed with a screwdriver. He also has pain into his legs, mainly the left, with associated shooting pain into his feet, varying from moderate to severe.

112 The plaintiff continues to suffer pain in his neck and shoulder but the lower back pain and pain into his left leg is particularly severe and some days so bad he wants to have his leg cut off.

113 The plaintiff feels very upset and depressed as a result of the constant pain and also about his future, particularly not being able to work.

114 On 16 June 2015, the plaintiff started counselling with Dr English, psychologist.

115 After the plaintiff attended Dr Carroll, psychiatrist, for the defendants, in early July 2015, he recommended the plaintiff's general practitioner commence him on anti-depressants. Dr Choong has since commenced the plaintiff on Valdoxan.

116 The plaintiff does not feel much better and he still feels depressed and down in the dumps. He cannot imagine that that will improve much while the pain continues and he cannot work.

117 The plaintiff presently takes Endone every couple of days, only when the pain becomes unbearable, as it gives him reflux and he is concerned about dependency. He takes Jurnista daily; Panadol twice a day but that gives him reflux and stomach pains, as does Nurofen, which he takes daily. He takes Panadol Osteo twice a day and Valdoxan daily. He was prescribed Norspan patches but had extreme vomiting, sweating and dizziness and discontinued them after six weeks.

118 On the morning of the hearing, the plaintiff had only taken two Nurofen Plus when he got up and two when he got to Ballarat because he was coming to Court to give evidence.[55]

119 The plaintiff feels his concentration is impaired. He has little or no libido. He has occasional suicidal thoughts but would never harm himself because of what it would do to his son and his parents who have been great caring for him.

120 The plaintiff continues to have a lot of trouble sleeping as a result of his neck and back pain. He often gets up during the night and goes for a long walk and as a result, is often very tired during the day and needs to sleep.

121 The plaintiff recently bought a Ford Ranger four-wheel drive automatic, which is easier for him to get in and out of as it is higher off the ground. He finds driving long distances very uncomfortable and needs to take a break and have a walk every half hour or so.

122 The plaintiff continues to live with his parents who have been very supportive since he has been injured. He does not know what he would do without their help and support.

123 The plaintiff now seldom has a drink. He used to enjoy having a drink with a large circle of friends whom he spent a lot of time with but he now seldom sees.

124 The plaintiff used to go drag racing with these friends but has not been over for a year. He does not feel like going because of the pain of travel and also once he gets to the track he cannot work on the cars and do what he and the others used to enjoy. It makes him feels useless and reinforces what he has lost.

125 The plaintiff often goes out into the shed with his father. However, he no longer does the heavier tasks he previously undertook. He helps with a few lighter tasks such painting tail shaft loops which he manufactures and sells on the internet.

126 The plaintiff's father, Terrill, swore an affidavit on 9 September 2015.

127 Mr Poholke confirmed the plaintiff was not good at school and has difficulties with reading and writing. However, he was very good with all things mechanical and terrific with working out engineering solutions. He taught the plaintiff to weld and the plaintiff became very competent in that field.

128 The plaintiff had a passion which he shared of restoring cars. They had probably restored about eighteen vehicles over the years, the pride of which was a Holden Monaro.

129 That car was not far from being finished when the plaintiff suffered the injuries. It only required new brake lines and a few other relatively minor jobs, however because of the plaintiff's injuries, it remained unfinished.

130 The plaintiff worked hard and when he arrived home, spent long hours working on the vehicles in the shed. He loved working with his hands and being involved with cars. He was particularly interested in drag racing and attended meetings with his mates.

131 The plaintiff's neck injury restricted what he could do, but he continued to tinker until the incident. From then on, he has been able to do very little. He paints car parts on the bench without the need to bend but he is limited as to how long he can do so. The parts, shaft loops for dragsters and racing cars, are quite small items that sell for about $120. The plaintiff sells them online for him. There is little profit after the deduction of expenses.

132 The plaintiff was very proud of his work for the first defendant and told him of his responsibilities including the new paint line after the neck injury. Even though he suffered pain from the neck, the plaintiff was very keen to work and did the very best job he could and even worked overtime.

133 After the incident, the plaintiff was keen to return to work, although obviously in a lot of pain. He observed the plaintiff pushing himself far too hard and he did too much.

134 The plaintiff lived in the hope of coming good and continued to work as much as he could until his employment was terminated.

135 The plaintiff loved working with his hands and working hard. He was big and strong and loved working for the first defendant. He was hampered in the trailer work before his back injury but from then on, the plaintiff advised he was unable to continue that business and the plaintiff got him to do a lot of work to finish the last trailer.

136 After his employment was terminated and then realising he was unlikely to find suitable employment and being in constant pain, the plaintiff has become very withdrawn and depressed. He used to be outgoing and had a lot of friends and often went to car races with them and loved to drink.

137 Now the plaintiff seldom drinks and is withdrawn from his friends. He has not been to the car races for a very long time. The plaintiff tells him he just feels useless.

138 The plaintiff treats his son, Conor, like an angel. He is a great dad. However, the plaintiff has trouble playing with him and doing father-son things. The plaintiff tells him that he feels that he is letting his son down. He feels like he is a bad example as he is not working. That situation really upsets the plaintiff.

139 It is obvious the plaintiff is depressed, he is moody and becomes very short with his family, unlike previously. When suffering from neck pain only, the plaintiff was in obvious discomfort but he was not depressed and moody and he felt good being able to work. It is just obvious looking at the plaintiff that he is in constant pain from the way he walks and his difficulty making himself comfortable when sitting.

140 The plaintiff has a lot of trouble sleeping. He usually goes to bed well after him. The plaintiff is mostly awake later in the night with the light on or sitting by the heater playing with his mobile. Most nights the plaintiff takes himself off for a walk, often for more than half an hour. The plaintiff told him the police used to pull him up and ask what he was doing. Now they leave him alone.

141 During the day, the plaintiff often goes off and has a nap, goes for a walk down the street or drives just to get out of the house. He bought a new four-wheel drive which he says is much easier on his back.

142 The plaintiff is now a very different person to the one he knew before his injuries, particularly after the plaintiff became disabled for work. It is heartbreaking to see how the plaintiff has declined and the lack of hope he has for the future. The only thing that seems to keep the plaintiff going is his love for his son.

143 The plaintiff was first seen by Mr Wallace, neurosurgeon, on 28 July 2011 in relation to his neck and right shoulder injury.

144 On review on 16 July 2012, the plaintiff had ongoing pain and discomfort. He tended to improve with time after rising. He had had a recent unpleasant experience at work. His physiotherapist had recommended that he try acupuncture and gentle neck chiropractic manipulation. Mr Wallace felt these measures were not inappropriate and were worth trying.

145 On review on 6 November 2012, the plaintiff reported that he had had a bout of very severe arm pain radiating into all fingers after washing his car, and had to seek medical help. That pain had settled back to its usual level.

146 The plaintiff was going back to work in three days' time, now that things had settled. He did not feel he was being very sympathetically treated at the workplace.

147 On the last review pre incident on 22 January 2013, the plaintiff was noted to be coping fairly well.

148 Dr Shea from St John of God thanked Dr Choong on 3 July 2014 for referring the plaintiff. She noted the plaintiff experienced pain from both his neck and lower back but mainly from his neck. He rated that pain as an 8 and he could experience pain radiating down his right leg.

149 The plaintiff underwent a series of assessments on 3 July 2014 and 7 July with the multidisciplinary PainWise team. It recommended he commence a ten-week program from 4 August 2014.

150 The team psychologist reported that the plaintiff suffered persistent pain following his neck and back injuries and that he had symptoms of severe depression and stress.

151 The team occupational therapist noted the plaintiff reported ongoing pins and needles in his right arm, pain in his neck, groin and right leg. The plaintiff stated that this ongoing persistent pain was having a significant impact on his ability to participate in his activities of daily living and his overall quality of life.

152 The plaintiff reported to the team physiotherapist that he had pain in the back of his neck, radiating into the right arm, with associated pins and needles and he dropped things. He also reported pain in the middle and right side of the lumbar spine with radiation into the groin bilaterally, and the posterior right leg, down to the foot.

153 At the end of the PainWise course, the team physiotherapist reported that the plaintiff advised that overall, he was coping much better as he now had an understanding of why his pain increased and also understood the significance of his activity levels on his pain.

154 Dr Choong referred the plaintiff to Dr English, psychologist, on 19 September 2014. He thanked him for seeing the plaintiff, who injured his neck and back at work in May 2011 and had been incapacitated since. He noted that lately, the plaintiff had been depressed and angry due to loss of capacity and chronic pain.

155 In his most detailed report of March 2015, Dr Choong noted the plaintiff's neck and back injuries. He reported the plaintiff continued to suffer pain daily. He had a constant pain in his right arm and right side of the neck, made worse by movement and coughing or sneezing. He also experienced pain in his lower back and both legs. He was unable to sit for too long and had difficulty bending and lifting heavy objects.

156 Dr Choong thought the plaintiff would require pain management and may be benefit from some form of surgery. He was planning to refer the plaintiff for a second neurosurgical opinion.

157 Dr Choong then thought the plaintiff had no current work capacity of any kind in view of his chronic pain and restriction of activity. He did not see that situation changing in the foreseeable future.

158 Dr Choong most recently reported in January 2016. He confirmed the plaintiff's condition remained stable and unchanged. The plaintiff continued to experience pain on a daily basis and the movement in his neck, right arm and lower back was still restricted. Mentally, he was still very depressed and continues to take an antidepressant, 25 milligrams daily, and also pain medication.

159 Dr Choong thought the plaintiff had no capacity for work currently and did not see his condition improving any time soon. He expected that incapacity would continue indefinitely.

160 The plaintiff re-attended Mr Wallace on 27 June 2013, the main reason for the attendance being the injury to his back five weeks earlier. The plaintiff reported that his back pain was then much less than it had been.

161 On examination, there was some impairment of straight leg raising and there was a slight weakness when weight bearing on the toes of the right foot. The right ankle jerk was less brisk than the left and there was some sensory dulling in the right S1 distribution. Mr Wallace expected a right L5-S1 disc protrusion clinically and noted the CT scan apparently confirmed this.

162 Mr Wallace requested an MRI scan, which showed an undoubted L5-S1 disc injury. He noted, however, the plaintiff had had a trial of pelvic traction by his physiotherapist which at the time was very painful, then he felt magically better and he had lost his sciatica symptoms since.

163 Mr Wallace noted the plaintiff was delighted at the way things had turned out and he reassured him he did not appear to be sitting on a time bomb and that his disc protrusion was extremely small and he was going to continue working in his brace and looking after his back.

164 On examination on 2 January 2014, the plaintiff described left thumb numbness and extreme pain in both shoulders and his neck two weeks earlier, which he described as an agonising pain.

165 The plaintiff reported his job had been terminated. There was a discussion at this examination about left arm symptoms. The plaintiff then had stiff neck movement in all directions. Mr Wallace did not examine the plaintiff's lumbar spine on that occasion.

166 Mr Wallace noted the results of the cervical MRI scan carried out that day and thought it was wise to get an updated xray to further document the left foraminal stenosis of C5-6. Mr Wallace thought there was no indication for anything other than conservative treatment and the plaintiff was encouraged to use his cervical collar to avoid any activities which aggravated his pain and to continue with his medication.

167 On examination on 4 March 2014, the numbness in the plaintiff's left arm remained. There were pins and needles in the right hand. The plaintiff had been having sharp pains in his groins and left buttock and there was constant lumbar spine pain.

168 Mr Wallace noted that CGU had had a change of heart and now wanted the plaintiff to return to work rather than having him retrained. The plaintiff found it hard to look over his head, which he thought would be a major hazard in crane driving. The plaintiff considered he would have difficulty driving a delivery truck or working in a hardware store, as he found handling heavy materials difficult.

169 Mr Wallace noted more recent left brachial neuralgia from the plaintiff's cervical disc injury at C5-6.

170 Mr Wallace then thought the plaintiff required ongoing treatment with intermittent use of a cervical collar and he would be best to avoid in future any employment involving excessive bending or twisting of his neck or handling of heavy weights. He noted the plaintiff's injury had also placed him in a situation where, if he had any continuing or worsening symptoms in one or both arms, surgery might need to be considered.

171 The plaintiff was subsequently seen on 25 July and 19 August 2014, 7 January 2015 and most recently on 26 August 2015.

172 On review on 25 July 2014, the plaintiff drew Mr Wallace's attention to the incident and told him that of late, his back pain had worsened if he sat for too long. He had stiffness in his back and legs and had to move about and could not engage in prolonged movement. He was seriously thinking about doing bus driving as a career.

173 On examination, there were some sensory abnormalities and straight leg raising was to 80 degrees, uncomfortable bilaterally.

174 Mr Wallace noted the August 2014 MRI scan showed an annular tear and bulge of L5-S1 centrally.

175 The plaintiff was advised to wear a back brace when doing heavy physical work and always be mindful of his back.

176 On review on 7 January 2015, the plaintiff found he could not go on with the plan to do crane driving because he could not look up. There had also been a flare up of lower back problems with back and left pain in the groin, which at times could be agonising and severe. He had difficulty sleeping with his back complaint.

177 The plaintiff had tried medication with only transient benefit. He had tried a lumbar and neck brace. The Norspan patches made him nauseous. His condition fluctuated and some days, his neck was worse and other days, his back and leg pain was worse.

178 There had been some benefit from the PainWise course. Overall, Mr Wallace thought the situation was stable and did not feel there was any need for a change in the plaintiff's management.

179 On the most recent review on 26 August 2015, the plaintiff's condition had not changed. His neurological findings were not significantly different.

180 Mr Wallace noted the plaintiff's alternative options other than heavy physical work because of his education and background were extremely limited. He considered currently, the plaintiff was incapable of doing heavy physical work and did not seem to have any useful alternative forms of employment. He believed the plaintiff's incapacity for work was directly related to his work injuries, both his neck and back. He regarded the plaintiff's back injury as quite significant and likely to produce enduring problems, severely limiting the plaintiff's ability to gain suitable employment.

181 The plaintiff was referred to Dr English, psychologist, whom he attended on 23 July, 6 and 27 August 2015.

182 The plaintiff indicated the reason for the visit was to find relief from his chronic pain and move on with his life as much as possible. The plaintiff told Dr English about his neck and back injuries. Given that he no longer worked, suffered from ongoing pain and lived with his parents, the plaintiff had lost the sense of who he was, was less tolerant and often very emotional.

183 Based on the assessment information obtained over the course of the three sessions, Dr English considered the plaintiff's symptoms were consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the plaintiff's chronic pain interfered with his everyday life. He suffered from significant effective distress, perceived he had a low level of control over his life and had a low activity level.

184 Based on his assessment, Dr English thought the plaintiff's current work capacity was that he would continue to face significant challenges in returning to work without treatment for his chronic pain and associated Depressed Mood and Anxiety.

185 The plaintiff attended consultant psychiatrist, Dr Kalra, on 23 November 2015 on referral from Dr Choong.

186 The plaintiff gave a history of the neck injury and subsequently reinjuring himself in the incident with an injury to his lower back and right leg. He described current difficulties in the form of pain in the right leg with numbness and aches including the groin region.

187 On examination, the plaintiff presented as a casually dressed young man sitting with his legs outstretched, reportedly to counteract back pain. He appeared to be in discomfort. He was agitated and dysphoric. He was tearful at times.

188 Dr Kalra noted the plaintiff was despondent about his current predicament with feelings of helplessness and scepticism about the future, in addition to WorkCover process-related stress. His cognitions were grossly intact.

189 Dr Kalra diagnosed an Adjustment Disorder with Depressed Mood, contributed and complicated with a Chronic Pain Syndrome. He noted the plaintiff reported being relatively better on the antidepressant medication in the last three months. He suggested continuing this medication and that the plaintiff would benefit from continuing to see psychologist, Brian English.

190 Taking into account the fact the plaintiff's psychiatric symptomatology secondary to physical injury and its impact on the plaintiff's day-to-day life, Dr Kalra thought the plaintiff's psychiatric prognosis was dependent upon the course and outcome of his physical injuries.

191 Dr Kalra considered the plaintiff's incapacity was predominantly directly a result of physical injuries. From a purely psychiatric perspective, he thought the plaintiff may have some work capacity. Commenting on his work capacity due to physical health issues was beyond the scope of Dr Kalra's expertise.

192 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff on behalf of the defendants in September 2014 for the purposes of an AMA assessment. Accordingly, he did not comment on the plaintiff's work capacity.

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