IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-21-04689

CRAIG ROBERT MACLEAN	Plaintiff	
		
v		
		
UPSTREAM CONSTRUCTION PTY LTD
(ABN 40 154 123 430)	Defendant	

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JUDGE:	HIS HONOUR JUDGE CARMODY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	5 June 2023	
DATE OF SENTENCE:	19 June 2023	
CASE MAY BE CITED AS:	Maclean v Upstream Construction Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2023] VCC 979		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – fracture to C7 vertebra – plaintiff return to full-time employment – whether pain and suffering consequences are “serious” under the Act 
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:	Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment:	Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of the physical injury to his neck in an accident on 11 April 2017 in the course of his employment with Upstream Construction Pty Ltd.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr M K Clarke with
Mr L Howe	Littles Lawyers	
			
For the Defendant	Mr B R McKenzie	Russell Kennedy Lawyers	

HIS HONOUR:

1	In this application, brought by an Amended Originating Motion dated 25 November 2021, the plaintiff seeks leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages suffered by him arising out of his employment with the defendant, Upstream Construction Pty Ltd (formerly Nationwide Concrete Pumping (Vic) Pty Ltd), the employer company.  The employer changed its name to Upstream Construction Pty Ltd subsequent to the plaintiff ceasing to work for them.  The plaintiff alleges he was injured in the course of his employment on 11 April 2017.  
2	At the commencement of the proceeding, Mr Clarke, on behalf of the plaintiff, stated that the plaintiff seeks leave to bring proceedings to recover damages for pain and suffering only, as a result of the injury to his neck at work.  The plaintiff abandoned any application for serious injury pursuant to psychological or psychiatric injury arising from his injury.  The plaintiff did not seek leave to recover damages for loss of earning capacity as a result of the injury to his neck.
3	The following evidence was heard during the hearing:
•	The plaintiff gave evidence and was cross-examined.
•	The plaintiff tendered the following exhibits:
•	Exhibit “A” – Plaintiff’s Court Book (“PCB”), pages 12 to 35 inclusive and pages 83 to 84 inclusive.
•	The defendant tendered the following exhibits:
•	Exhibit 1 – Plaintiff’s Court Book, pages 95 to 121 inclusive.
•	Exhibit 2 – Defendant’s Amended Court Book (“DCB”), pages 40 to 46 inclusive and pages 129 to 147 inclusive.
4	Mr McKenzie, on behalf of the defendant, stated that the issue in this case was whether the plaintiff can satisfy the statutory test for serious injury in respect of the physical injury to his neck.
The statutory scheme
5	The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of body function.
6	The relevant considerations which apply to such an application are as follows:
(a)	The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment with the defendant on or after 1 July 2014;
(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)	The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d)	Sub-section (2)(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 a range of possible impairments or losses of a body function, may be fairly described as being “more than significant” or “marked”, and as being “at least very considerable”;
(e)	Sub-section (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(f)	In conformity with Barwon Spinners, 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 ss(2)(c).  I have applied the principles set forth therein in reaching my conclusions in this application.
7	I am required 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, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
The Plaintiff’s background
8	The plaintiff was born in August 1986 and is now thirty-six years of age.  The plaintiff has lived and worked in Australia for the whole of his life.
9	The plaintiff has lived in a domestic relationship with his partner since April 2019.  He is the father of a young boy aged two-and-a-half years.
10	The plaintiff was educated to Year 10 level at Western Point Secondary College.  Upon leaving school, the plaintiff commenced an apprenticeship as a small engines motor mechanic and then worked in tiling.  Subsequently, the plaintiff has worked predominately in concreting.  
11	The plaintiff worked as a hose man for Specialised Concreting Pumping between the years of 2014 and 2016.  In 2016, Nationwide Concrete Pumping (Vic) Pty Ltd (“Nationwide”) brought out the business of Specialised Concrete Pumping.  The plaintiff continued to work in the same role as a hose man for the defendant until he was injured in April 2017.  The plaintiff returned to work after his injury in September 2017, but was unable to continue working for that employer due to the travel involved in maintaining his employment.
12	In November 2017, the plaintiff resigned from the defendant and commenced work as a hose man with Next Generation Concrete Pumping.  The plaintiff continues to work with Next Generation Concrete Pumping, but has been promoted to the role of concrete pump operator.  The new role involved some further qualifications being obtained by the plaintiff.
13	In his evidence, the plaintiff stated that he works up to sixty hours per week in the role as concrete pump operator. He described the work as being like operating controls similar to a videogame console.  The plaintiff stated that his income had gone from approximately $89,000 per year, when he finished work with the defendant employer, to last year earning $173,000 in his current role.
Injury with the Defendant
14	The plaintiff had been working as a hose man on a concrete pump since 2014.  He was an experienced operator.
15	The plaintiff describes the circumstances of his injury in the following terms:
“On 11 April 2017, in the course of my employment with the Defendant at a site in St Kilda, I was holding a concrete hose in front of me at around waist height, when the pressure in the hose blocked and released, causing the hose to flick out from my hands, hit me in the head and knock my hard hat off. The impact caused me to fall backwards, hitting my head and elbow on the ground when I landed.
 Following the incident, I believe I temporarily lost consciousness.  When I regained consciousness, I was in pain, particularly around my neck, and I was bleeding from my head.  An ambulance was called and around an hour later, I was taken to [T]he Alfred Hospital, where I stayed for four (4) days.”
16	The defendant accepts that the injury occurred to the plaintiff as stated by him.  
Medical treatment
17	After the plaintiff was injured at the place of work in St Kilda, there was some delay before he was taken by ambulance to The Alfred hospital.  The plaintiff remained in The Alfred hospital for four days.  Upon release, he was placed in a neck brace, which was to remain for six weeks.
18	At The Alfred hospital, an MRI scan of the plaintiff’s cervical spine was performed at approximately 7.00pm on the day of injury.  The following findings were noted:
“Normal bone alignment. Left C7 superior articular process fracture. Oedema in the C6-7 facet joint.  Mild narrowing [of] the left neural foramen and possibly subtle oedema around the left C7 nerve root which appears intact.
 Annular tear posterior disc margin CS-7, no protrusion.
 Small disc protrusion C4-5 non neural compressive.
 Normal cord.
 Partial tear ligamentum flavum centrally C7-T1 (series 5 image 9).  No other ligamentous injury.”
19	In a report from The Alfred hospital dated 12 September 2017, the following was noted:
“… [The plaintiff] is a gentleman who sustained a left C7 facet fracture on 11 April 2017, whilst he was at work as a cement worker.  This has (sic) managed conservatively with a collar.  The collar was removed in mid-June.
Since then he has had ongoing cervical and paracervical stiffness with mild tenderness around the neck with the description of numbness and paraesthesia in the left-hand.
… He has ongoing left lateral three-finger numbness which radiates to the dorsal side of the palm.  There is no weakness.”
20	The medical report finishes with advice to the plaintiff that he is to obtain an occupation with less physical work in order to give him the best chance of recovery from his facet-joint fracture.
21	The plaintiff has also undergone intermittent physiotherapy treatment for his neck and stiffness in his neck.
Medical Opinions 
The Plaintiff’s doctors
22	The plaintiff has been treated by his general practitioner, Dr Tehsin Huda, at the Broad Oak Medical, Dental and Specialist Centre practice.  In a report dated 9 October 2020, Dr Huda stated that the plaintiff had a fracture to his C7 vertebra which eventually healed.  Dr Huda noted that the plaintiff had lost feeling in his left fingers, which gradually came back, but not 100 per cent, and that the plaintiff said he is used to it now.  Dr Huda noted that the plaintiff tried not to take medication and that he had been referred to a pain specialist.  Dr Huda had prescribed Celebrex, 100 milligram for the plaintiff’s chronic pain.
23	In a later report dated 9 May 2022, Dr Huda stated he had referred the plaintiff to neurosurgeon, Dr Ales Aliashkevich.  Dr Aliashkevich had recommended a multidisciplinary pain management course.
Dr Ali Kian Mehr, rehabilitation physician
24	Dr Mehr saw the plaintiff for pain management and rehabilitation.  Dr Mehr noted the plaintiff was working sixty hours a week as a concrete pump operator at the time he saw the plaintiff.  Dr Mehr took a history from the plaintiff, stating that the pain in the cervical region is constant pain, especially on the left side.  The plaintiff told Dr Mehr that it averaged around 5/10, but fluctuated between 4/10 and 7/10, and it is aggravated by sudden movement.  Dr Mehr took a history that the plaintiff also suffered from headaches, which were bilateral and mostly in the occipital region, which Dr Mehr noted was like cervicogenic headaches.
25	In Dr Mehr’s opinion, the pain is facetogenic pain.  He suggested that a SPECT/CT scan be taken.  Dr Mehr was contemplating medial branch blocks, following a radiofrequency neurotomy, if the medial branch block was normal.
26	The plaintiff, in his evidence, stated that he has not undertaken the SPECT/CT scan.  He stated that his mother had become very sick and subsequently died in January 2023.  The plaintiff stated he has not got around to undertaking the test, but expressed a view that he wished to participate in that course of rehabilitation.
Dr Alex Aliashkevich, neurosurgeon
27	Dr Aliashkevich has seen the plaintiff on two occasions for medico-legal reporting in this case.  He has prepared reports dated 19 July 2019 and 31 January 2022.  Dr Aliashkevich set out his opinion as follows:
“… [The plaintiff] is suffering from the consequences of his work-related injury on about 11/04/2017 with left C7 superior articular process fracture, C6/7 annular tear, C7/T1 ligamentum flavum tear, C4/5 discopathy and aggravated cervical spondylosis.  He also had features of protracted postconcussional syndrome due to mild closed brain injury.  He also had features of depressed mood, which would be the domain of a psychiatrist.”
28	Dr Aliashkevich noted that the plaintiff was working some sixty hours per week with minor modifications.  He stated that the plaintiff had no incapacity for his current work role.
29	In a supplementary report dated 1 April 2022, Dr Aliashkevich stated as follows:
“… [The plaintiff] could continue working 60 hours per week with only minor modifications at his last assessment.  Although I am not a qualified occupational specialist, I had an impression that he might be restricted in his capacity to progress from his role into the job with more physical tasks or mental responsibilities.  I didn’t think that the injury in April 2017 would make him retire early or require him to find alternate employment in the future.”
30	Dr Aliashkevich did not recommend any surgery or other surgical intervention in respect to the plaintiff.
Dr Richard Sullivan, pain specialist
31	Dr Sullivan also examined the plaintiff for the purposes of medico-legal reporting.  Dr Sullivan prepared a report dated 31 May 2022.  Dr Sullivan noted that the plaintiff had an ongoing sleep disturbance, especially if he lies on his left side, resulting in aggravation of his left-sided arm pain.
32	Dr Sullivan’s opinion was as follows:
“His fracture has healed but he has developed a posttraumatic chronic pain condition (international classification for disease volume 11, code MG 30.20).  … [The plaintiff] remains in a position where he can continue his employment as a concrete pump supervisor on a full-time basis despite pain aggravation through the course of his working day.
…
… [The plaintiff’s] condition can be considered completely stable and his chronic pain condition is likely to continue into the foreseeable future.  He has functional limitations affecting especially his capacity to engage in recreational pursuits (bass guitar playing and further impacting his capacity to engage in a range of exercise pursuits).”
33	In Dr Sullivan’s opinion, there is no indication that the plaintiff would undergo any surgical intervention or procedural pain intervention for his chronic pain condition.  Dr Sullivan’s opinion was that the plaintiff would be able to maintain his current employment indefinitely, but would not be able to return to more arduous labouring-type work.  Finally, Dr Sullivan noted the plaintiff would be unlikely to return to his role as a bass guitar player into the foreseeable future.
The Defendant’s doctors 
34	The defendant relied upon the medical opinions and reporting of Mr Martin Jackson, neuropsychologist; Dr Nicolas Ingram, psychiatrist, and Mr Armin Drnda, neurosurgeon.
Mr Martin Jackson, neuropsychologist
35	The plaintiff was seen by Mr Jackson, neuropsychologist, for medico-legal purposes.  Mr Jackson prepared a report dated 29 July 2022.  Mr Jackson took a history from the plaintiff which was consistent with the plaintiff’s evidence, both in his affidavit and his viva voce evidence in the proceeding.  In particular, Mr Jackson noted that the plaintiff complained of having a bad memory.
36	Mr Jackson’s opinion was that the plaintiff’s forgetfulness was due to an anxiety disorder.  I note that the plaintiff was not seeking damages for any psychological or psychiatric-related injury as a result of this proceeding, and it is not part of this application.
Dr Nicholas Ingram, psychiatrist
37	Dr Ingram is a psychiatrist and saw the plaintiff for medico-legal purposes.  He prepared a report dated 27 April 2023.  Dr Ingram’s opinion was that the plaintiff suffered from a Chronic Adjustment Disorder with Depressed Mood arising from the accident in April 2017, but had also related to the plaintiff’s mother’s death, which occurred in January 2023.  
Mr Armin Drnda, neurosurgeon
38	The plaintiff was examined by Mr Drnda, on behalf of the defendant, for the purposes of this application.  Mr Drnda prepared a report dated 27 September 2021.  I note that Mr Drnda performed his examination of the plaintiff by way of Zoom.  
39	Mr Drnda was aware that the plaintiff worked full time as a concrete pump operator and heavy rigid truck driver.  His opinion was as follows:
“… [The plaintiff] sustained a fracture of the left C7 superior articulate process, which does not represent any aggravation, acceleration, exacerbation or deterioration of any pre-existing condition but is a de novo injury.  There could be some degree of aggravation of the presumed pre-existing degenerative changes at the top of the cervical spine (C2/3 and C3/4).
 The work-related acquired injury still materially contributes to … [the plaintiff’s] current condition.”
40	There is a conformity of opinion among the medical practitioners that the plaintiff suffered a fractured C7 vertebra as a result of the work accident.  Each of the doctors have taken a consistent history from the plaintiff that he continues to suffer headaches and pain in his neck.  The doctors also accept that the plaintiff has tingling or numbness in his dominant left-hand thumb and two fingers.  From a medical practitioner point of view, there is no indication of any further surgery to take place for the plaintiff. 
Credit of the Plaintiff 
41	In this proceeding, there was no attack by the defendant on the plaintiff’s credibility.  The plaintiff presents as a stoical plaintiff.  The plaintiff cared for his mother between the time of his father’s death and his mother’s passing in January 2023.  I accept the plaintiff’s statement that he works with pain and difficulty so that he can provide for his family.  I find that the plaintiff’s stoicism cannot hide the fact that the pain he suffers is a major component in his life.  The fact that the plaintiff is prepared to put up with his pain and get on with his work is not a factor which disqualifies him from meeting the statutory definition of “serious injury” as a result of his stoicism.  
Consequences of the neck injury to the Plaintiff
Work
42	Appropriately, the defendant submitted that the plaintiff has retained a considerable level of capacity, despite the injury to his neck.  In particular, the defendant relies on the fact that the plaintiff works some sixty hours per week.  The plaintiff stated that he loved his job. 
43	 The plaintiff agreed that his income for the tax year ending 2022 was in the order of $173,000.  The plaintiff stated he would do regular overtime and would do any overtime offered to him.  It is clear that the plaintiff has retained the capacity to engage in full-time employment, albeit in a less physical role than as a hose man in the concreting industry.  The plaintiff has undertaken further qualifications in order to advance his career within the concreting industry.  
44	I accept the plaintiff has an accommodating employer to manage the difficulties the plaintiff may have in carrying out his work full time.  
Sleep
45	The plaintiff, in his evidence, stated that his sleep is interrupted due to the pain from his neck.  In his second affidavit, sworn 31 May 2023, the plaintiff set out his complaint in the following terms:
“My sleep continues to be affected by my neck injury.  I now struggle to get to sleep as I am often in pain, and it is difficult for me to find a comfortable position on the pillow because of the neck pain I experience.  I often wake up throughout the night in pain and it takes me a while to get to sleep.”
46	The plaintiff’s partner, Caitlin Sheehan, in her affidavit sworn 31 May 2023, confirmed that the plaintiff had difficulty with his sleep.  She stated as follows:
“It is very difficult to share a bed with … [the plaintiff] as he tosses and turns throughout the night.  This has impacted upon my sleep as he will often wake me up in the middle of the night.  With Jett still being young, it is already difficult for me to sleep and … [the plaintiff] only makes this more difficult.”
47	In the course of his evidence, the plaintiff was cross-examined about the impact of the pain on his life.  In respect of sleep, and the problem he had with that, he stated as follows:
“It’s just uncomfortable, I wake up five, six times a night, and just struggle to get comfortable, I’ve got about five pillows that I try and set myself up on the right-hand side, I can’t sleep on the left shoulder, it’s just very uncomfortable.”
48	I accept the plaintiff’s evidence that the interruption to his sleep is due to the injuries he suffered at his place of employment in April 2017.  I find that the consequence of interrupted sleep and discomfort during sleep is a very considerable consequence for the plaintiff.
Pain 
49	The plaintiff complains of pain in his neck and headaches as a result of that pain.  He describes his headaches, in his evidence, as follows:
“… Sometimes they flare up quite bad, sometimes they’re almost migraine, but they’re not - it’s not a migraine, but they can get pretty uncomfortable.”
50	The plaintiff went on, in his evidence, to describe the pain, or, what he described as tingling in his left thumb, index finger and “pinkie”.  He explained the pain in his left hand as follows:
“It’s like the funny bone, the last - that’s the best way I’ve explained it, for three months it felt like I hit my funny bone on my arm, and then it’s the last stage of that where it’s really tingly, sort of numb.”
51	He went on to describe that it affected his thumb, his index finger and his middle finger.
Medication
52	The plaintiff gave evidence that he did not like taking medication.  In the medical reports, in particular, his general practitioner referred to the plaintiff’s reluctance to take medication.  In his evidence before the Court, the plaintiff said, if the pain was bad enough, he would take two Panadol or two Nurofen, and take that dosage a couple of times in the day.  When questioned about how many tablets he would take, the plaintiff responded:
“Probably four to six, maybe sometimes even four - just to get rid of the headache.”
53	I accept the plaintiff’s evidence that he is someone who avoids taking medication if possible.  The need for him to take even over-the-counter pain-relief medication such as Panadol or Nurofen, in a regular manner, to the extent of four to six tablets a day, is a very considerable consequence for him.  The plaintiff’s reluctance to take prescription pain-relief medication is a further example of his stoicism.  
Ongoing treatment 
54	The plaintiff has not undergone medical treatment in the last couple of years.  He was referred to Dr Mehr for pain management.  I accept the plaintiff’s evidence that he has not had the time to organise himself to continue with the recommended scans ordered by Dr Mehr.  The plaintiff’s evidence was that he intended to take up that course of action to have the scans and any subsequent pain relief or pain management course.
Recreational
55	I accept the plaintiff has retained his capacity to travel, for example to Bali or the Gold Coast, as stated in his evidence.  I accept the plaintiff has, on one occasion, ridden a motorbike.  I also accept that the plaintiff stopped running on a regular basis due to an injury to his ankle prior to the injury that is the subject of this application.  Nevertheless, the plaintiff has given evidence he has attempted to run on a treadmill and because of the pain in his neck, he could not continue to do that, and has not returned to running.  
56	I accept the plaintiff was once a professional musician, and had previously played in three punk bands as a guitarist.  I accept the evidence given by him, that due to the pain from the injury, the plaintiff kept dropping the pick whilst playing live and effectively was “sacked” from the band.  I notes as Dr Drnda recorded in his report, the main reason for the plaintiff not playing his guitar was due to focussing on his family. It was accepted by the plaintiff in cross-examination to be the case.
57	Overall, the plaintiff has retained most of the activities of daily living, including cooking, cleaning and doing the housework around the family home.
58	The plaintiff is only thirty-six years old.  The pain levels and sleep disruption, and the need to take medication for the foreseeable future of potentially fifty years, is a factor the Court has to take into account in assessing the seriousness of the injury to the plaintiff.  
Conclusion
59	Based on the finding of the consequences to the plaintiff in respect of pain, sleep and medication, and in combination, those consequences are “more than significant or marked” and “at least very considerable”. I find that these consequences are likely to last for the foreseeable future.
60	I grant leave to the plaintiff to commence proceedings to recover damages for pain and suffering arising from the injury to his neck on 11 April 2017 in the course of his employment with the defendant.  
61	I will hear the parties on costs.
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