Akgul v G a Orton Pty Ltd
[2010] VCC 465
•10 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MILDURA
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04871
| EMIN AKGUL | Plaintiff |
| v | |
| G A ORTON PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 20 April 2010 |
| DATE OF JUDGMENT: | 10 May 2010 |
| CASE MAY BE CITED AS: | Akgul v G A Orton Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0465 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC with | J N Zigouras & Co |
| Mr P Kozicki | ||
| For the Defendant | Mr A Moulds with | Hall & Wilcox |
| Ms S Manova | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 31 July 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) 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;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff swore one affidavit on 11 March 2009. He was cross examined.
7 The plaintiff is a single man aged nearly sixty six, having been born in Turkey on 15 May 1944. He left school at the age of fourteen and his reading, writing and numeracy skills are very poor. He speaks Turkish and English enough to get by.
8 The plaintiff completed an apprenticeship as a chef in Turkey over four years and on arriving in Australia in 1969, worked as a chef for a number of employers in Victorian country towns.
9 The plaintiff has not worked as a chef for many years. In cross examination he initially said he ceased working as a chef because the work was very hard. He later said his drinking was a problem causing him to change career. He agreed he had had a drinking problem all his life.
10 The plaintiff then worked as a boner, and later he worked until the said date as a seasonal citrus fruit picker. He moved to Mildura in 1995 and thereafter worked for a number of different employers in picking jobs. The plaintiff first worked for the defendant in about 2001.
11 Prior to commencing that job the plaintiff had no back problems.
12 From 1977, the plaintiff has had a series of drink driving convictions. He agreed he was convicted of drink driving offences in 1985, 1987, 1990, 1997, 1999, and most recently lost his licence in January 2005. In cross examination, the plaintiff denied he was charged with assault and being drunk and disorderly in 2007.
13 The plaintiff does not intend to reapply for his licence because it is too expensive and he “does not have the guts”. He presently drinks a litre and a half of wine per day. He still gambles but not as much in the last two years or so as it makes him feel very upset.
14 Whilst a casual picker, the plaintiff worked throughout the year according to the seasons, doing a variety of work on and associated with the fruit block in addition to his picking duties. Six months of the season was spent picking and for a further six or seven weeks, he performed other duties on the block.
15 The plaintiff earned $750 net per week. Wage records from the defendant set out that in mid 2004, the plaintiff was earning $756.00 gross per week.
16 On the said date, the plaintiff was picking mandarins using a clipper and was wearing a fruit bag loaded with fruit. He was standing on a ladder and when leaning forward to use the clippers, he lost his balance and fell to the ground, experiencing severe back pain (“the incident”).
17 After the incident, the plaintiff tried to keep working but his back pain and discomfort progressively worsened and he reported the incident to his foreman. For the remainder of the shift, the plaintiff was unable to do much work and he went home and rested.
18 Overnight the plaintiff’s symptoms worsened but he worked the following day in his usual job. However, his symptoms then became quite severe and eventually he ceased work that day, when he was having great difficulty with back movements and he was experiencing leg pain.
19 The plaintiff sought medical treatment from the Mildura Base Hospital where an x-ray was performed on 2 August 2004.
20 The following day, the plaintiff saw Dr Obadua, a local general practitioner, who certified him unfit for work and arranged for physiotherapy with Mr Huckson. Dr Obadua also prescribed medication.
21 Despite rest, medication and physiotherapy, the plaintiff’s symptoms continued, becoming progressively worse. He had difficulty in doing any physical activity, including walking, bending, squatting and lifting weights.
22 In March 2004, Dr Obadua referred the plaintiff to the Neurosurgery Clinic at St Vincent’s Hospital, but he was not offered any specific treatment.
23 Dr Obadua arranged for a lumbar CT scan which was performed on 24 September 2004.
24 Between November 2004 and January 2005, the plaintiff tried to return to work with the defendant under a return to work plan with the assistance of an occupational therapist. During that time, his level of symptoms fluctuated markedly, making it very difficult for him to do even light work.
25 In that period the plaintiff worked a total of two hours a day, on two days only undertaking pruning work.
26 The plaintiff deposed that he was also travelling considerable distances from his home to do even light work and that driving caused acute flare-ups of pain and symptoms affecting his back and legs. This evidence is in conflict with his viva voce evidence that he was living at the defendant’s premises whilst working there.
27 In January 2005, the plaintiff’s employment with the defendant was terminated. The following month, his weekly payments were terminated.
28 The plaintiff has not returned to any work since 18 January 2005 and is in receipt of a disability pension. He has been unable to find work and he has not recovered from the effects of his injury sufficiently enough to enable him to do so.
29 In examination in chief, the plaintiff said that he had been good at his job and he liked it. He would work if he was able to. He cannot work because he has no car and no licence. If he had a car and a licence he would not be sitting at home.
30 However, when cross examined the plaintiff then said it was “rubbish” that he did not continue working with the defendant because he lost his licence. He agreed he was working two hours a day when he was picked up for drink driving on 17 January 2005.
31 Around that time the plaintiff was told by Mrs Orton of the defendant company that he had to move out of the defendant’s property where he was living in his caravan. The plaintiff thought that after he was injured, Mrs Orton was keen to get rid of him and she used the excuse that she needed the space where his caravan was located to put equipment to get the plaintiff to leave the property.
32 After that time, the plaintiff moved to the Orange Grove Caravan Park at Irymple, which is about thirty kilometres from the defendant’s premises. Irymple is about ten kilometres from Mildura and the plaintiff agreed that he would need to drive to attend any other work.
33 The plaintiff denied he has not continued working because he cannot drive to jobs. He has lived in the Sunraysia area for eleven years or so and if the defendant did not want him, he could work somewhere else. He had worked with the defendant for three years and before that he had worked in other orchards in three year stints.
34 The plaintiff disagreed he was fit for light work at the time he moved out of the defendant’s property in January 2005. He had only worked four hours in total in pruning duties, although he appeared at one stage to say that he was working two hours a day, Monday to Friday.
35 The plaintiff agreed as at January 2005 he would have had real trouble bending over to pick anything up from the ground and had real trouble lifting anything of weight and that was the reason he could not work longer hours.
36 In re-examination, the plaintiff said he could now do half the picking he did prior to the incident but he could not do more than an hour of ground work. If he was given a job he would do it. He would now be able to do two or three bins whereas, on average, if there were good crops, he would have picked more than six bins before the incident, and his record was thirteen bins.
37 The plaintiff really does not know what type of work he is capable of doing, having only ever done physical work in the past and never worked in an office.
38 The plaintiff was not sure when he saw Professor Hart in March 2006 whether he told him he was now retired and had no intention of returning to work saying- “I don’t say yes; I don’t say no”.
39 The plaintiff deposed that he continues to suffer constant pain in his lower back, the severity of which fluctuates markedly. Many activities cause the pain to be much worse, for example, too much bending, twisting or sitting. From time to time he has leg pain, especially the left leg.
40 The plaintiff has become increasingly depressed because of his pain and inability to work. From time to time he has become very anxious, irritable, angry, highly agitated and aggressive. He is frustrated and bored at not being able to work and would very much like to get back to work but that seems impossible.
41 Since the incident, the plaintiff has tried to remain as active as possible, but he paces himself in many activities so as to not provoke severe symptoms in his back. Quite simple tasks, such as domestic tasks, can also be difficult when they involve frequent bending, flexing or twisting of his back.
42 The plaintiff deposed that he walks regularly and likes to go fishing but he selects fishing spots carefully to avoid having to walk over rough, steep, hilly or uneven ground. In cross-examination, the plaintiff confirmed that he has only gone fishing three or four times since moving to Red Cliffs three years ago. Prior to that time, after the incident, whilst he was living in Mildura near the river, he went fishing five times a week when he wanted to. He now does not go fishing as frequently because it is too far to the river.
43 Prior to the accident, the plaintiff had no other hobbies besides fishing and gambling and he just stayed at home.
44 The plaintiff initially said that he takes Panadol for his back but does not like taking tablets. He then said that he is prescribed painkillers by Dr Berry Dyson who also prescribes another type of medication.
The plaintiff’s medical evidence
45 Dr Obadua initially reported on 18 October 2004 and most recently on 30 November 2005. There are references in his reports to attendances in 2005 but it appears he last saw the plaintiff in December 2004.
46 Dr Obadua stated that the plaintiff was seen on 3 August 2004 with a history of the incident. As of October 2004, the plaintiff was complaining of continuous aching low back pain, often aggravated by some form of physical activity. There was no pain radiating down the lower limbs, no weakness, and no altered sensation in the lower limbs.
47 Dr Obadua noted that the plaintiff’s lower back pain had actually improved over nine weeks to such an extent he was placed on light duties on 7 October 2004, but on review on 15 October 2004, the plaintiff complained of a relapse, now associated with pain in the anterior aspect of the left thigh, which he had noted a week ago. The plaintiff also admitted to right upper lateral chest wall pain which came on with moderate physical activity. This pain coincided with the commencement of hydrotherapy about a month earlier. At that stage the management plan was physiotherapy, hydrotherapy, a worksite assessment to determine suitable jobs, occupational rehabilitation, repeat CT scan if pain in the left thigh persisted and referral to a neurosurgeon for further assessment.
48 Dr Obadua considered, based on the history and the nature of the injury, physical findings on examination and imaging findings so far, one would expect a return to some form of duties about six weeks from the date of the onset of injury. However, in view of the recent relapse of the plaintiff’s back condition, further evaluation was required by Dr Obadua and the neurosurgeon.
49 Dr Obadua thought the natural history of this type of injury was such that full recovery was expected in about six weeks from the onset.
50 Dr Obadua referred to examinations on 3 August and 28 October 2005 (his notes indicate these attendances were in 2004) when the plaintiff complained of moderate tenderness in the mid lower back and slight restriction of lumbo sacral movement. At that time the plaintiff had been prescribed Panamax, Panadeine Forte, Diazepam, Amitriptyline, Fosamax, Caltrate and Agarol.
51 Dr Obadua referred to a case conference held on 16 December 2004 involving the plaintiff, the employer, the plaintiff’s case manager and the injury manager, where it was unanimously agreed the plaintiff would undergo a vocational assessment to determine alternative duties.
52 Dr Obadua noted that over the period August to December 2004, when he managed the plaintiff’s back problem, the plaintiff failed to make appreciable steady progress. The plaintiff would improve for a while and then deteriorate. Dr Obadua last examined the plaintiff on 23 December 2004 and he ceased working at the practice in July 2005.
53 There were further attendances at Dr Obadua’s clinic from January to October 2005 when the plaintiff saw other doctors.
54 On 24 January 2005 it was noted the plaintiff had lost his licence on 17 January 2005. On 2 February 2005, the plaintiff received counselling for gambling and drinking issues. Centrelink certificates were provided from February to July 2005. In June the plaintiff requested a prescription for Panadeine Forte. As of October 2005, it was noted chest pain was not much now. The last attendance was on 13 October 2005. There was no mention of a back complaint during 2005 save perhaps for the request for Centrelink certificates and the prescription of Panadeine Forte.
55 In March 2004, the plaintiff was referred to the Neurosurgical Clinic at St Vincent’s Hospital by Dr Obadua in March 2004.
56 Mr Peter McNeill, neurosurgeon from that clinic, wrote to Dr Tasson at the Medical Centre in Mildura on 22 March 2005. Mr McNeill noted that since the incident the plaintiff had attempted to return to work on limited hours but found that difficult.
57 Mr McNeill thought the plain x-rays had shown a crush fracture at T7, the age of which was indeterminate. A CT scan of the lumbar spine showed facet joint arthropathy but no evidence of spinal canal stenosis or disc prolapse.
58 Mr McNeill was not sure if the thoracic spinal lesion was the result of the incident and noted the plaintiff’s symptoms certainly did not relate to it. He did not think anything needed to be done about the lesion and he considered that the plaintiff’s lumbo spinal pathology would not require surgery. He suggested the plaintiff needed to continue his exercise program for his lumbar spine. Mr McNeill had reservations about the plaintiff’s ability to return to work as a fruit picker at his age.
59 The notes from the Mildura Base Hospital set out that on 2 August 2004 the plaintiff complained about the incident, after which he had a slight backache but that the pain was of increasing severity. On examination, it was noted he walked with a limp. There was no tenderness or swelling and no neurological abnormality and an x-ray was ordered. Toradol was prescribed.
60 The plaintiff was referred to James Huckson, physiotherapist, by Dr Obadua in August 2004. At that time, Mr Huckson thought the plaintiff required another two weeks off work. In a letter to Dr Obadua dated 9 September 2004, Mr Huckson confirmed the plaintiff continued to attend physiotherapy for management of his low back pain. Progress was slow, noting a major factor was travel between Nangiloc and Mildura.
61 Decreased pain was reported on the visit of 9 September 2009. At that stage Mr Huckson thought the plaintiff was not yet fit for work and proposed another two weeks off. He also suggested hydrotherapy to increase strength and mobility. Given the one hundred kilometre drive to visit him, Mr Huckson suggested the plaintiff be strongly encouraged to exercise and walk while at home.
62 The plaintiff was examined on behalf of QBE for medico-legal purposes by Professor Vernon Marshall on 22 October 2004. At that stage the plaintiff was still unable to work and his pain had shown no relief. The plaintiff felt pain in the mid to low back which did not radiate to the legs.
63 On examination, the plaintiff walked stiffly, holding his lumbar and thoracic spine stiffly. There was no deformity of the spine on examination but back movements were restricted globally of the thoracolumbar spine particularly. Neurological examination was normal.
64 Professor Marshall diagnosed a crush fracture at T7 vertebra consistent with the injury, with no evidence of radiculopathy. He thought the plaintiff’s condition was not yet stable and that he was currently not fit for all work but would be suitable for work with restriction of lifting to five kilograms or less and avoidance of frequent bending or stooping.
65 Professor Hart, orthopaedic surgeon, examined the plaintiff on 31 March 2006.
66 The plaintiff then complained of constant, moderate low back pain aggravated by walking, prolonged sitting and bending. The pain did not radiate to his lower limbs. At that stage the plaintiff was no longer receiving physiotherapy and he avoided taking medication.
67 Professor Hart reported that the plaintiff told him that he had not worked since 15 October 2004 and that he was now retired and had no intention of returning to work.
68 On examination, there was tenderness at L4-5 to the right of the midline. There was painful and limited extension, forward flexion and lateral flexion. There was a full range of rotation which was pain free. There were no abnormal neurological signs in the lower limbs.
69 Professor Hart looked at the x-rays and noted he had discussed them with a radiologist. It was his opinion that the x-ray taken on 9 August 2004, within a week of the incident, indicated an old fracture rather than a fresh injury.
70 In Professor Hart’s view, the plaintiff aggravated a pre-existing posterior facet arthritis of the right L4-5 posterior facet joint as a result of the incident. He considered examination findings were very consistent with a posterior facet lesion at L4-5 with pain localised to that area and with asymmetrical loss of motion producing pain in the same area and the fact that the pain was more marked on extension and lateral flexion than it was on forward flexion.
71 Professor Hart considered the plaintiff was suffering from that aggravation and that he had a pre-existing compression fracture of the T7 associated with osteopenia.
72 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of Hall & Wilcox, Lawyers, on 3 August 2009. At that stage the plaintiff complained of ongoing pain in the centre of his low back but not radiating into his leg unless he walked for more than fifteen minutes, then he would develop pain in the back of his right thigh.
73 On examination, thoracolumbar movements were limited by about a third and there was a slight increase in the normal dorsal kyphosis. Straight leg raising was to sixty degrees and there was no neurological abnormality.
74 Mr Shannon noted that both Mr McNeill and the treating general practitioner believed that the crush fracture identified was not consistent with the area of the plaintiff’s symptoms. Mr Shannon considered it unlikely that the incident had resulted in a fracture but noted he had not seen the x-rays.
75 Mr Shannon concluded the plaintiff was suffering from mechanical back pain associated with apparently some degenerative changes in the facet joints in the lumbar spine. In his view, this could well have been aggravated by the incident.
76 Despite his ongoing complaints and claimed incapacity, Mr Shannon noted the plaintiff had a reasonable range of movement of his back and did not have evidence of radiculopathy. On the other hand, the plaintiff appeared to have few alternate skills and qualifications and was aged sixty five, and it was unlikely he would return to the workforce.
77 Mr Shannon considered the plaintiff had limited capacity in the performance of work involving prolonged or repetitive bending or heavy lifting, but he thought the plaintiff was capable of light bench work. He thought the prognosis for the plaintiff was for the condition to remain unchanged and doubted he would benefit from further treatment. In Mr Shannon’s view, the plaintiff was partially incapacitated for employment for the foreseeable future but had few skills or qualifications and was limited in the performance of work involving significant bending or lifting. He considered the plaintiff theoretically capable of suitable employment but that he was probably unemployable taking into account all of the above factors.
78 Dr Cohen, psychiatrist, examined the plaintiff at QBE’s request on 4 October 2006. He carried out a psychiatric assessment in relation to liability for depression and to assess a degree of permanent psychiatric impairment.
79 On examination, the plaintiff advised Dr Cohen he had been consulting his general practitioner in Mildura regularly for the past two years, seeing him nearly every week.
80 The plaintiff was then fishing in the Murray River occasionally but not lately because of the drought. He walked around town and did his own cooking and shopping. He loved gardening but could not do much. He told Dr Cohen he was drinking a cask of wine a week.
81 In Dr Cohen’s view, the plaintiff was a fairly laidback person who had become entrenched in the sick role and he could not see any prospect of the plaintiff ever working again. He diagnosed the plaintiff as suffering from a chronic pain disorder with both psychological factors and a general medical condition which had arisen as a result of the incident.
Investigations
82 An x-ray of the plaintiff’s lumbar spine was carried out on 2 August 2004. Disc spaces were preserved and there was no evidence of bony trauma. There was some endplate concavity superiorly at L4 and L5 consistent with some spondylitic degenerative change. The sacroiliac joints had a normal appearance and there was no destructive process seen.
83 Dr Obadua arranged a thoracic and lumbar spine x-ray on 9 August 2004. There was a crush fracture involving T7 but no compromise of the spiny bony canal contour identified. The remaining thoracic as well as lumbar vertebral body heights appeared maintained. There was some narrowing of the T6-7 disc space. The remaining thoracic as well as the lumbar disc space widths were preserved. No bone destruction was identified.
84 Dr Obadua arranged a bone density test on 10 September 2004 which showed bone density was average for the plaintiff’s age.
85 A CT scan of the lumbar spine was organised by Dr Obadua on 24 September 2004. At L3-4 and L4-5, the thecal sac, disc and exiting nerve roots had a normal appearance, as was the case at L5-S1. At that level no central disc protrusion or central canal stenosis was identified.
86 Dr Obadua organised a CT scan of the plaintiff’s lumbar spine on 4 November 2004. There was no abnormality at L1-2, L2-3 or L3-4. At L4-5 there were prominent facet joint degenerative changes seen but the thecal sac, disc and existing nerve roots had a normal appearance. There was no abnormality at L5-S1.
The defendant’s evidence
87 There were a number of Return to Work Plans, commencing in October 2004, setting out medical restrictions of working up to two hours a day with no lifting greater than five kilograms.
88 The Access Employment Interim Update Report dated 31 January 2005, set out that on 24 January 2005 and the following day, the plaintiff failed to attend for work.
89 It was noted on 27 January 2005, the plaintiff was reportedly assisted to move his caravan from his employer’s property to Irymple. The employer had approached the plaintiff regarding signing the newest Return to Work Plan. The plaintiff had reportedly refused to sign it and reported he could not work as he now had no means of transport to his workplace. The plaintiff had not worked since 18 January 2005.
Video surveillance
90 There was very brief film of the plaintiff getting into his car outside the defendant’s premises on 19 January 2005. There was also about fifteen minutes of video footage taken on 2 February 2005 at the Orange Grove Caravan Park in Irymple. During that time the plaintiff was shown picking up things from the ground on a number of occasions, raking and also sweeping. In cross examination, he agreed he was shown doing some light gardening work.
Findings
91 I accept that the plaintiff suffered a compensable injury in the incident, namely some mechanical back pain associated with some degenerative change in the facet joints of the lumbar spine as described by Mr Shannon and Professor Hart.
92 There is some suggestion by Professor Marshall that the crush fracture at T7 is related to the incident but this view gets no support from Mr McNeill who thought the age of the fracture was indeterminate, was not sure if it resulted from the fall and considered the plaintiff’s symptoms certainly did not relate to it. Dr Obadua thought the fracture did not correlate with the level of pain complained of by the plaintiff.
93 Further, Mr Shannon thought it was unlikely the incident resulted in a fracture but noted he had not seen the x-rays. Professor Hart thought it was a longstanding injury and related to the plaintiff’s osteopenia.
94 The impairment to the lumbar spine 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, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
95 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
96 In addition to being “serious” the impairment must be permanent, in that it is likely to last into the foreseeable future.
97 Whilst I accept that the plaintiff has experienced some back pain and discomfort since the incident, the level thereof is not such that he has required medical treatment to any significant extent, save for the year or so after the incident.
98 The plaintiff was initially under the care of Dr Obadua until December 2004 who has reported as to his treatment of the plaintiff to that date, which included a referral to Mr McNeill in March 2004.
99 There are notes of attendances with other doctors at Dr Obadua’s clinic throughout 2005. Therein, there is no direct reference to any ongoing complaints of ongoing back pain save for a prescription of Panadeine Forte and the provision of Centrelink certificates. That is the last evidence available from any treating doctor.
100 The first mention that the plaintiff is currently under the care of a general practitioner was the plaintiff’s viva voce evidence that he is being prescribed painkillers by Dr Dyson-Berry. However, there is no evidence from that doctor.
101 There was no explanation given as to why evidence from Dr Dyson Berry or evidence from any other treating doctor after 2004 was not before the Court. In such circumstances I am entitled to infer that the opinion of Dr Dyson Berry and the opinions of other treaters, if in fact treatment was given, would not have assisted the plaintiff’s case.
102 The plaintiff’s pre-incident hobbies or activities were essentially drinking, gambling and fishing.
103 The plaintiff has not experienced difficulty fishing because of his back condition since the incident despite his affidavit evidence to this effect. Prior to moving to Red Cliffs, whilst living in Mildura, the plaintiff was able to go fishing five days a week in the Murray River. It is only because of the distance from Red Cliffs to the river and the fact the plaintiff does not have a licence that he no longer goes fishing, not because of his back pain.
104 There is no evidence of any significant interference with other activities as a result of the plaintiff’s back condition. I accept that the video showed the plaintiff capable of performing light tasks over a short period of time. His level of activity was consistent with an ability to perform some light bench work as Mr Shannon suggested was suitable.
105 Mr Shannon, the only examiner of recent times, found in August 2009 that despite his ongoing complaints and claimed incapacity, the plaintiff had a reasonable range of movement of his back and he did not have evidence of radiculopathy. The plaintiff has consistently told other examiners he had no leg pain although he deposed that from time to time he did have leg pain.
106 The plaintiff has obviously had a drinking problem his whole life. It was a factor which led him to him changing career from working as a chef to boning and then moving to the Sunraysia area where he worked as a fruit picker for fifteen years or so until the incident.
107 That drinking problem resulted in the plaintiff losing his drivers licence for extended periods from as early as 1977, with court appearances for half a dozen subsequent drink driving offences. The plaintiff has not driven since he last lost his licence in January 2005 and he does not intend to reapply it.
108 When he last lost his licence, the plaintiff was involved in a Return to Work Program doing pruning work. Unfortunately, as well as losing his licence, the defendant at that time requested the plaintiff move his caravan from her premises where he had been living whilst working there.
109 The plaintiff then moved to Irymple some ten kilometres from Mildura. He admitted in cross examination that he would need to drive to obtain work from that location.
110 The vocational report relied upon by the defendant set out that the plaintiff refused to sign a return to work plan in January 2005 after he had been removed from the defendant’s property reporting that he could not work because he had no means of transportation to the workplace.
111 The plaintiff’s evidence as to the role played by his inability to drive in regard to continuing work is confusing. Initially in examination in chief he said if he had a licence he would be working but then said it was ridiculous to suggest this would be the case.
112 Since January 2005, the plaintiff has not attempted to return to work. In cross examination he neither confirmed nor denied the history recorded by Professor Hart in March 2006 that the plaintiff had retired and had no intention of returning to employment.
113 Taking into account the limited evidence available, I am not satisfied that the consequences of the plaintiff’s back injury are “serious”.
114 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 115 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 116 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
117 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
118 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
119 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and
(g) therein. “It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
120 I am therefore required to determine a “without injury” earnings figure.
121 Counsel for the plaintiff submitted this was a case where the plaintiff had suffered a total loss of earning capacity. Whilst this was disputed by counsel for the defendant, no figures were put in this regard.
122 Based on the limited evidence of the plaintiff’s earnings pre incident and no evidence of his likely earnings thereafter, doing the best I can, the figure which most fairly reflects the without injury earnings is $750 gross per week.
123 The plaintiff’s present income from personal exertion is nil.
124 In my view, the plaintiff effectively gave up work after the incident at a time when he lost his licence and also his accommodation on the worksite which would have enabled him to continue working with the defendant.
125 The plaintiff has not worked nor tried to obtain work since 2005. There is no evidence from any treating doctor supporting a present incapacity for work on a total or any restricted basis.
126 The medical support for the plaintiff’s claim in this regard is solely on a medico legal basis from Mr Shannon who thought the plaintiff was partially incapacitated for employment but had few skill or qualifications and was limited in the performance of work requiring significant bending or lifting. Other medico legal opinions in this regard are too outdated to be of any assistance.
127 In the absence of other evidence corroborating his claimed level of incapacity, I have difficulty accepting the plaintiff’s evidence that he can pick only half the number of bins he did prior to the incident. His evidence at times was confusing and contradictory particularly in relation to the relevance of losing his licence in terms of his employment capacity. Further, the plaintiff did not deny having told Professor Hart that he had retired as of 2006. The refusal to sign the Return to Work Plan set out in the Vocational Report was not explained.
128 In these circumstances, I do not accept that the plaintiff has a loss of earning capacity of forty per cent as a consequence of his back injury. He has not discharged the onus set out in Barwon Spinners Pty Ltd.
129 Accordingly, the plaintiff’s application seeking leave to being proceedings for damages for pain and suffering and loss of earning capacity is dismissed.
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