Allen v Colonel West Pty Ltd
[2011] VCC 1460
•16 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03323
| JESS MARK ALLEN | Plaintiff |
| v | |
| COLONEL WEST PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 December 2011 |
| DATE OF JUDGMENT: | 16 December 2011 |
| CASE MAY BE CITED AS: | Allen v Colonel West Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1460 |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Pain and suffering – pain and suffering damages only – causation –
delayed onset of symptoms – range case
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB(16)(b)
CASES CITED – Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33
JUDGMENT – Leave granted in respect of pain and suffering damages.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DJN Purcell | Slater & Gordon Pty Ltd |
| For the Defendant | Ms J M Forbes | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 30 July 2010, by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff alleged that the injury to his lower back occurred on or about 27 March 2003. The body function which the plaintiff says has been lost or impaired is his lower back with referred pain into his right leg.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 5 to 53; • The defendant tendered Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 to 88. 5 At the commencement of the proceedings, Ms Forbes, on behalf of the defendant, stated that the issues in this application were:
•
whether the fall alleged by the plaintiff in 2003 was the cause or was a cause with the prolapsed disc identified in his lower back in 2009;
•
if the Court was satisfied that the fall in 2003 was the cause of the prolapse to the plaintiff’s back identified in 2009, whether the consequences flowing from that are “very considerable” in order to meet the statutory test. In short, did the plaintiff satisfy the “range” test?
6 The matter that I have to consider is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of body function to his lower back. I also have to consider whether the fall in 2003 was the cause of that injury and impairment to the plaintiff.
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 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 the course of his employment on or after 20 October 1999.[1]
(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”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
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 sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
9 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
10 The plaintiff was born on 3 January 1986. He is currently twenty-five years old.[3] He lives with his mother and sister in Altona Meadows. He was educated to Year 9 level and then commenced a course as an apprentice chef.
[3] PCB 5, paragraph 1
11 He did his chef qualifications through the William Angliss Institute. In the course of his apprenticeship years, he had worked at the Park Hyatt Hotel and the Sebel Hotel in Melbourne.
12 The plaintiff gave evidence that he is now the head chef at ‘Is It Café’ in Prahran. The work there is limited to a breakfast and lunch venue. He gave evidence that he works from 7.00 am to 4.00 pm, five days a week. His days off in relation to cooking duties are Monday and Tuesday.
13 The plaintiff’s evidence is that he is able to continue working on a full-time basis in his current role as a chef. Because of his injuries and physical disabilities, he is unable to pursue the career of a chef at a top restaurant and/or hotel.
Did the Plaintiff Injure Himself at W with the Defendant in March 2003?
14 I find that Mr Brownbill, neurosurgeon, has accurately assessed the plaintiff, when he said:
“… he was cooperative but with apparent poor recall of detail or timing.”[4]
[4] PCB 25
15 Mr Brownbill later described the plaintiff as:
“… continuing to have difficulty recalling specific details or time relationships but I regarded this as being genuine without any conscious attempt to mislead but rather representing a constitutional poor recall.”[5]
[5] PCB 30
16 The plaintiff’s inability to accurately recall and properly record the course of his symptoms and treatment have not assisted him in this application.
17 The plaintiff, in his first affidavit dated 18 March 2010, stated that the injury date involving slipping on the floor was 15 October 2003.[6]
[6] PCB 5, paragraph 2
18 At the commencement of his evidence, the plaintiff corrected that to describe the accident date as early March 2003. Setting aside the issue about the date of the accident, the plaintiff is otherwise consistent in his evidence, in that he states that he had severe back pain as a result of the accident and had time off work following it. The plaintiff has given evidence that he has had intermittent pain from mild to severe intensity from that time until the diagnosed prolapse of his L4-L5 disc in February of 2009.
19 The plaintiff’s mother, Honey Allen, confirms that from the time of his injury at KFC, the plaintiff had suffered pain in his back from time to time with varying intensity. Ms Allen stated that she would massage her son’s back with Voltaren Gel. She also gave him some of her painkillers when his pain was significant.[7]
[7] PCB 16, paragraph 4
20 In his evidence, the plaintiff stated that he thought he had filled out a claim form for the March 2003 incident when he fell.[8]
[8] T 8, L26-29
21 Later in his evidence, the following exchange occurred:
Q: “Was that incident reported?--- A: Yes, it was. HIS HONOUR:
[9] T 33, L31 – L1-2
Q: At work?-- A: Yes, it was. It was put into the KFC incident report.”[9]
22 The plaintiff’s belief was that he had reported the accident. He completed paperwork in respect of the claim, related to the accident, which occurred in March of 2003.
23 The plaintiff has always stated that he went to a doctor after the injury that occurred to him when fell over at KFC. The plaintiff gave evidence that:
[10] T22, L27 – T23, L1
Q: “When you saw Dr Grokop for the first time on 31 March 2003, according to his records, that was the first time you’d seen him for any reason at all was it?--- A: That’s correct.”[10]
24 Dr Grokop’s medical records were tendered as part of the plaintiff’s case. In the entry for the date of 31 March 2003, Dr Grokop has taken a history that the plaintiff slipped at work carrying a tray on Thursday 27 March 2003:
“Sore lower back immediately with radiation to back of both thighs.”[11]
[11] PCB 46
25 The history taken by Dr Grokop is a contemporaneous note of a medical practitioner who was treating the complaints that he now says are the subject of this serious injury application. I accept that these notes from Dr Grokop are the best written record of the plaintiff’s initial complaint and subsequent treatment.
26 Dr Grokop prepared WorkCover Certificates of Capacity covering the period from 31 March 2003 until 19 May 2003.[12] The plaintiff was certified as unfit for all work from 31 March until 4 April 2003. From 5 April 2003 to 18 April 2003, he was certified fit for modified duties.
[12] PCB 48-52
27 Dr Grokop was also the doctor who saw the plaintiff after the alleged injury on 15 October 2003. On that occasion, he certified the plaintiff as being on restricted duties.[13] It is interesting to note that the DCB also contains that Certificate of Incapacity.[14] The defendant did not have any Certificates of Incapacity for the March 2003 incident in its documentation.
[13] PCB 47
[14] DCB 4
28 The Employee Period Pay Report, tendered on behalf of the defendant, discloses for the period ending 31 March 2003 and 14 April 2003, that the plaintiff was paid WorkCover payments at that time.[15] These WorkCover payments are clearly made in respect of the injury which occurred on 27 March 2003. It is difficult to accept that the defendant would have made worker’s compensation payments if it never received the Certificates of Incapacity and a Claim Form filled out by the plaintiff in respect of that injury.
[15] DCB 9
29 The plaintiff did receive WorkCover payments for the period ending 20 October 2003 as disclosed in the Employee Period Pay Report.[16] This is consistent with the Claim Form filled out by the plaintiff for the incident of 15 October 2003 and dated 20 October 2003.[17] In that Claim Form the plaintiff has set out that he had had previous pain and disability from the same injury. He describes it as “three months ago”.[18] Whilst the plaintiff is incorrect about saying his previous injury was “three months prior”, it is clear that he is referring to the incident in March of 2003, and I accept that is the case.
[16] DCB 13
[17] DCB 1-3
[18] PCB 2
30 The plaintiff attended Dr Peter Adrianakis on 5 March 2009.[19] In that consultation the plaintiff gave a history to Dr Adrianakis that he had slipped on the floor and fallen over when he was seventeen years old working at KFC. He was seen by a doctor at that time at St Albans. He attended Dr Adrianakis after the incident at the toilet in February 2009. It was shortly after the plaintiff attended the Western General Hospital by ambulance and was seen by Dr Kavar, neurosurgeon. I shall return to this part of the history in the medical evidence section later on in these reasons. The relevance of the history to Dr Adrianakis is that the plaintiff has consistently given the same version of the commencement of his back pains to the medical practitioners.
[19] DCB 25
31 The plaintiff was challenged by Ms Forbes, on behalf of the defendant, on the basis that he had failed to tell any of the medical practitioners about his prior back pains and complaints and attendances on doctors before 27 March 2003. In particular, the plaintiff attended on Dr Clare Roczniok on 23 April 2002. On that occasion, the plaintiff was prescribed Naprosyn tablets. The history of the complaint in his back was that he was kneed in the back whilst playing football. He also made a complaint that the pain may have started when he picked something up from a previous workplace. The plaintiff, in his evidence, denied any memory of this attendance on Dr Roczniok, but did not deny that it had in fact occurred.[20]
[20] DCB 23
32 The plaintiff also attended Dr Marc Cain on 5 March 2003, approximately three weeks prior to the injury giving rise to this application. On that occasion, the plaintiff made a complaint to Dr Cain about a cough-related issue firstly, and secondly, a recurrence of what was described as inflammatory lower back pain. On that occasion, the plaintiff was prescribed Naprosyn tablets again. It was also noted that x-rays were requested. There is no report or evidence to say whether that x-ray was actually performed on the plaintiff at that time. The plaintiff gave evidence that he had no memory of attending on Dr Cain, but did not dispute that if the notes at the medical practice indicated he had been there, then he had been examined Dr Cain.
33 I accept that the plaintiff has been to see his general practitioners in 2002 and on 5 March 2003 in respect of back complaints. I am unable to assess the constancy and level of pain that the plaintiff incurred prior to his injury at KFC when he slipped over on the wet and slippery floor.
34 I accept that the plaintiff is a very bad historian and poor recorder of timing and facts. I find he is genuine and accurate in his impression that the severity of his pain and radiculopathy down into his legs commenced from the incident which occurred on 27 March 2003. Dr Grokop’s notations substantiate that complaint and that history.
35 In conclusion, I find that the plaintiff was injured on 27 March 2003 when he slipped over at the defendant’s premises and landed on his buttocks. The written documentation from Dr Grokop, including the Certificates of Incapacity and the defendant’s documents of payments for WorkCover at that time, substantiate that this injury was recorded. I also accept that the plaintiff is genuine in his evidence about the impact of the injuries to him following the accident at KFC. He has not exaggerated or sought to make his difficulties and symptoms more pronounced in his evidence. If anything, he has underplayed and understated his symptoms. I accept that he has had medication and assistance from his mother in the period between 2003 until his diagnosed prolapse in February of 2009.
Medical Treatment of the Plaintiff
36 The plaintiff has had very little medical treatment between 27 March 2003 and the time when he appeared in an ambulance on 7 February 2009. The medical treatment was given to him by Dr Grokop. I have detailed the treatment and certification of his incapacity during the course of 2003. I accept that the plaintiff has tried to get on with his life and work his way through the pain. That is his evidence. At the same time, he has been assisted in that by having access to some of his mother’s painkilling medication. I also accept that his mother applied Voltaren Gel and massaged his back as part of the treatment to alleviate his symptoms.
37 The treatment for the plaintiff’s back condition, as it now is, commenced in earnest on 7 February 2009.
38 The plaintiff gave evidence that on 7 February 2009, whilst he was leaning forward, he experienced significant back pain and fell from the toilet and could not get up. He was removed from the family home by ambulance and taken to the Western General Hospital. He underwent an MRI scan and was diagnosed with a disc prolapse.[21]
[21] PCB 6 paragraph 4
39 In the medical report of Professor Ian Brand dated 23 May 2009, the following history was given in respect of his injury in February 2009:
“He gave a history of severe low back pain radiating posteriorly down his left leg. He said he had a fall onto his sacral region seven years previously. He had started to develop pain of a similar nature since then but not as severe. It had initially resolved after a day but had recurred intermittently.
…
On 7/2/09 he had an x-ray of the lumbosacral spine which was reported
– No fracture seen.On 9/2/09 he had an MRI of the lumbar spine which in summary was reported – No canal or foraminal stenosis. A right paracentral disc protrusion is causing severe subarticular recess stenosis at the L4-5 level likely compromising the traversing right L5 nerve root.”[22]
[22] PCB 18
40 The plaintiff was discharged from hospital on 10 February 2009.
41 On 12 May 2009, the plaintiff was reviewed at the Neurosurgical Outpatient Department by Mr Kavar, neurosurgeon. The plaintiff was not encouraged to pursue an operative approach. The imaging at the hospital confirmed that he had a right-sided L4-5 posteriolateral disc bulge and at the distal theca, a very minor L5-S1 bulge.[23]
[23] PCB 18
42 The plaintiff, upon release from hospital, attended on his general practitioner, Dr Adrianakis. A report from Dr Adrianakis from the Furlong Medical Centre set out the treatment then given to the plaintiff. Dr Adrianakis took a history that on 5 March 2009, the plaintiff reported having lower back pains which dated back some six years. The plaintiff gave a history of the flare-up to his lower back whilst sitting on the toilet on 26 February 2009. The plaintiff had the date of the flare-up wrong, even at such an approximate time. The plaintiff described the pain as severe and radiating down both lower limbs, especially the right lower limb. Dr Adrianakis noted that the scans reported disc bulges at L4-5 and L5-S1, with L5 nerve root impingement.[24]
[24] PCB 20
43 Dr Adrianakis prescribe Naprosyn, Tramal and Oxynorm in order to assist the plaintiff in his symptoms. It was Dr Adrianakis’s opinion that the plaintiff had injured his lower back in the fall on the slippery floor at KFC in 2003 and that this injury had settled until it was aggravated in February of 2009.[25]
[25] PCB 21
44 Dr Caroline Lloyd is the plaintiff’s current general practitioner. Dr Lloyd operates her practice at the Carnegie Central Medical Clinic. Dr Lloyd has prescribed Panadeine Forte and Voltaren to the plaintiff to treat his pain. She noted he had difficulty walking, numbness and tingling. She accepts the diagnosis of a prolapse of two discs at L4 and L5.[26]
[26] PCB 16(a)
The Medical Opinions
45 I have previously referred to the opinions of Dr Adrianakis, Dr Lloyd and Professor Brand. I will not repeat them in this part of the reasons.
Mr David Brownbill
46 The plaintiff was examined by Mr David Brownbill, neurosurgeon, on 7 July 2010 and 26 October 2011.
47 In his first report dated 9 July 2010, Mr Brownbill made the following statements:
“He said he had a fall onto his sacral region seven years previously. He had started to develop pain of a similar nature, since then but not as severe. It had initially resolved after a day but had recurred intermittently.
…
Radiological investigations are reported as showing an L4-5 disc bulge to the right with minor L5-S1 bulge.
…
On that information provided by Mr Allen and noting the later MRI scan demonstration of intervertebral disc derangement, I consider he suffered damage to the lumbar intervertebral disc in the incident of 2003, which acted as the basis for later disc prolapse when he was straining on the toilet.
…
If signs of radiculopathy (nerve root compression) develop, consideration of surgical intervention would be indicated.”[27]
[27] PCB 26
48 Mr Brownbill went on to state that, in his opinion –
“… falls onto the buttocks are notorious for damage that may occur to structures about the spine, including lumbar intervertebral discs, as a result of axial forces sustained.”
…
“I expect that pain will continue in a fluctuating manner indefinitely. His prognosis is uncertain. Should he develop any signs of radiculopathy, then consideration to decompressive spinal surgery would be indicated.”[28]
[28] PCB 27
49 Mr Brownbill went on to say that the appropriate treatment for the moment is the use of analgesics for periods when the pain is worse.[29]
[29] PCB 27
50 In his later report dated 27 October 2011, Mr Brownbill took a history from the plaintiff that the pain was going down his right leg most of the time with fluctuations. The treatment at that stage was that the plaintiff was taking Naprosyn and Panadeine Forte since a recent flare-up. Mr Brownbill found:
“On examination, he walked and turned well and was able to walk on his heels and on his toes. Active thoraco lumbar spinal movements were two thirds of full in flexion and full in the other directions.”[30]
[30] PCB 30
51 Mr Brownbill anticipates that the pain will continue in a fluctuating manner indefinitely. He gave the following opinion:
“… I consider on the information provided that this man in the fall of the 15th October 2003 [27 March 2003] sustained intervertebral disc damage to the lower lumbar spine with resulting ongoing fluctuating low back pain and which acted as the basis for a later disc prolapse. I anticipate that some pain will continue in a fluctuating manner indefinitely as a result.
…
As I have outlined above, the degenerative changes of the lumbar spine that occur with the natural ageing process may occur earlier and at an increased rate than would have been anticipated in the absence of the described fall.
…
The use of analgesics and anti inflammatory medication particularly during periods of pain exacerbation would be appropriate.”[31]
[31] PCB 32
52 It is to be noted that the date Mr Brownbill was originally working on (that is 15 October 2003) was incorrect. He was advised of the appropriate date, and later reported that he confirmed his opinion as follows:
“I consider he suffered damage to the lumbar intervertebral disc in the incident of 2003 which acted as a basis for later disc prolapse when he was straining on the toilet.”[32]
[32] PCB 34(a)
Mr David Wallace
53 The plaintiff was examined by Mr David Wallace, neurosurgeon, on 14 November 2011. Mr Wallace took the history of the original work accident as occurring in October 2003. The date in this report is clearly wrong. The history in relation to the actual incident is the same that the plaintiff has given to each of the doctors.
54 Mr Wallace noted that the MRI scan of 9 December 2009 showed a loss of signal and height of the L4-5 disc with posterior protrusion and a loss of signal at L5-S1 level with posterior protrusions.
55 Mr Wallace gave his opinion as follows:
“This man suffered a back injury in his fall in Kentucky Fried Chicken in 2003, which was almost certainly at L4/5 disc injury. Thereafter he has had recurring back problems, as outlined in the history above. These have been aggravations of his original back injury. Currently he is prone to back and leg pain and I believe he has been rendered permanently more prone to such symptoms than an uninjured person.”[33]
[33] PCB 36
56 Mr Wallace, later in his report, modifies that opinion to this extent:
“I believe the fall at work in October 2003 [March 2003] either caused his original disc prolapse or predisposed him to a subsequent disc prolapse by dint of causing an annular tear of the annulus fibrosis of the L4/5 disc which subsequently gave way.
…
It may well be that with the passage of time he will need surgical intervention for his back.
I think his condition is more likely to deteriorate in the future than improve. As a consequence of this, I think he will be more prone to requiring time off work and early retirement than an average individual.
It is also likely to have a greater impact on his normal activities of daily living and his pursuit of leisure activities and routine household activities.”[34]
[34] PCB 36
57 Mr Wallace goes on to suggest that the plaintiff will have to be careful about the manner in which he goes about his work as a cook. He accepts the plaintiff will have to take analgesics and anti-inflammatory drugs to ameliorate the symptoms that he suffers in his back and legs.[35]
Mr Clive Jones
[35] PCB 36
58 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, on behalf of the defendant on 30 July 2009. The purpose of Mr Jones seeing the plaintiff on this occasion was not directly related to this proceeding. On examination, Mr Jones found as follows:
“He was able to demonstrate approximately 50 degrees of spinal flexion. He was unable to demonstrate a normal slump test. Leg raising on the right side is reduced to 60 degrees with positive tension signs.”[36]
[36] DCB 20
59 Mr Jones, in the opinion section of his report, noted that the plaintiff had an initial back injury in October 2003. On the accepted history, this should be March 2003. Mr Jones accepted the plaintiff’s history that there was no use of medication between 2003 and 2009 when the prolapse was diagnosed by MRI scan. He said that as a result of that, he thought there had been substantial recovery from the first injury and was relatively symptom-free up until February of this year, 2009.[37]
[37] DCB 20
60 Mr Jones noted that the disc injury was severe and could take some two years before the condition could be regarded as stable.[38] The plaintiff has not been re-examined by Mr Jones.
Mr Michael Dooley
[38] DCB 21
61 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, on behalf of the defendant on 22 September 2011. Mr Dooley is the only medical practitioner that had the full set of documented history going back to March of
62 Mr Dooley gave his opinion as follows:
“Mr Allen describes a fall onto his buttocks during the course of his work in March of 2003. I believe that in this episode he sustained a soft tissue injury to the lumbar spine. At aged seventeen, this would most likely have involved some musculoligamentous damage. Mr Allen reports that following this episode he noted ongoing intermittent low back pain.
…
Mr Allen described the onset of acute low back pain and lower limb pain after getting off a toilet in February of 2009. His recollection is that his right leg pain was more significant at this time.”[39]
[39] DCB 33
63 Mr Dooley notes that the Western General Hospital notes indicate that the left lower limb was more painful in February of 2009.
64 Mr Dooley then opines:
“Disc prolapses occur in degenerating discs. The natural history of a lumbar disc prolapse in the large majority of patients is improvement with time. Mr Allen made a gradual improvement following this episode. The majority of patients following a lumbar disc prolapse will note some ongoing intermittent low back pain and occasional lower limb pain.
…
As outlined above, I believe that in March of 2003, Mr Allen sustained a soft tissue injury to the lumbar spine in the fall on his buttocks. At this time, I do not believe that an injury occurred to the lumbar discs or that any aggravation of any disc problems etc occurred.”[40]
[40] DCB 33
65 Finally, Mr Dooley noted as follows:
“Based on all of the information available, the episode of February 2009 resulted in Mr Allen sustaining a disc prolapse on the right at the L4/5 level. As outlined above, disc prolapses occur in degenerating lumbar discs. Degeneration of these discs is naturally occurring. It is well recognised that patients in their early twenties can develop naturally occurring degenerative disc disease. It is most likely that the disc prolapse at the L4/5 level occurred as a result of Mr Allen straining as he got off the toilet. It occurred on the background of the degenerative disc disease. As far as I can tell, based on all of the information available, there is no relationship between the episode of 2009 and the episode of March 2003.”[41]
[41] DCB 34
66 Mr Dooley then went on to say, in the final part of his report:
“In the episode of March 2003, Mr Allen sustained a soft tissue injury to the lumbar spine that in my view involved musculoligamentous damage to the area.”[42]
[42] DCB 34
67 Mr Dooley’s opinion is that the major injury of a disc prolapse occurred as a result of a minor straining incident in February of 2009.
68 The opinions of Mr Brownbill, Mr Wallace and Mr Jones are preferred, as each of them acknowledges the severity and seriousness of the initial injury in March 2003. In short, the three medical practitioners accept that, as a result of the initial injury in March 2003, the plaintiff’s lower back is compromised and made vulnerable to further injury. This is what occurred to the plaintiff in February of 2009.
69 On a balance of probabilities, I accept that the injury sustained by the plaintiff at KFC in March of 2003, is a cause of the prolapsed disc at L4-5 level which was diagnosed in 2009. The plaintiff’s ongoing symptoms to the current time are a result of the KFC incident. The medical opinions accept that he is going to suffer intermittent and severe pain to his lower back, radiating sometimes into his legs. Mr Wallace and Mr Brownbill flagged the possibility of surgery to his lower back in the future.
Consequences for the Plaintiff
70 I have read the affidavits of the plaintiff dated 18 March 2010 and 28 November 2010. I have also read and considered the evidence set out in the affidavit of his mother, Honey Allen, in an affidavit dated 28 November 2010. I accept, on the evidence, that the plaintiff has suffered an injury to his back with consequential symptoms which continue to the current time. He has pain and restriction of movement in his lower back. He has pain and numbness on an intermittent basis into his right lower leg.
71 I have had the advantage of seeing the plaintiff give evidence and be cross- examined. I have formed the view that the plaintiff gave his evidence in a straightforward manner. I also formed the view that he was a very poor historian, both in the terms of dates and accurately assessing his symptoms. I did not think that was as a result of him attempting to embellish or exaggerate his case in any way. I accept the plaintiff as a witness of truth. The plaintiff impressed me as a person who adapted well to his ongoing symptoms. He has continued his work and continues to assist his mother at home.
72 I find the consequences that I am satisfied the plaintiff has suffered as a result of his injury to his lower back are as follows:
Pain
73 I accept that the plaintiff properly describes his symptoms in relation to pain as constant low back pain, varying in intensity and at times severe, especially when involved in activity. I accept that the plaintiff experiences right leg pain with pins and needles on occasions.[43]
Medication
[43] PCB 7, paragraph 6
74 The plaintiff gave evidence that he tried to avoid medication and did not want his body to become reliant on it.[44] The plaintiff, over a period of time, has taken Panadeine Forte, which was supplied by his mother and Dr Adrianakis.[45] In March of 2009, the plaintiff was prescribed Tramadol and Celebrex.[46]
[44] PCB 8
[45] T 15, L11-15
[46] DCB 26
75 The plaintiff is currently being prescribed Panadeine Forte and Voltaren by his general practitioner, Dr Caroline Lloyd.[47]
[47] PCB 16(a)
76 I consider that the necessity for the plaintiff to take medication and an anti- inflammatory medication is a very considerable consequence for him. It is not a situation where he constantly takes this medication, but it is clear from the medical evidence that he will be required to do so in order to deal with his fluctuating symptoms.
Sleep
77 The plaintiff gave evidence that his sleep is disturbed by leg pain.[48] The interruption to the plaintiff’s sleep, whilst not being a constant in his life, obviously ebbs and flows with his symptomology. I find that it is a significant consequence for him that, as a result of the injury in 2003, he now has a disturbed sleep pattern.
Mobility
[48] PCB 7 paragraph 6
78 The plaintiff suffers from stiffness in the back and Mr Brownbill has assessed his lumbar spinal movements as being two-thirds of full in flexion.[49] The plaintiff is also going to suffer premature degenerative changes to his lumbar spine as a result of this accident and that is a very considerable consequence for him.[50]
[49] PCB 30
[50] PCB 32
79 The plaintiff is a young man of twenty-five years. As a result of the accident which occurred when he was seventeen, he now faces a long-term risk of ongoing stiffness and degenerative changes to his back. He has the consequences of pain and loss of enjoyment of life. I find that in a young person such as the plaintiff, this is a very considerable consequence resulting from this accident.
Activities of Daily Living
80 The plaintiff has managed to adapt, in the main, to his limitations as a result of the accident. In relation to the activities at home, the following evidence was given:
Q: “You still help your mum out from time to time?--- A: Yeah, absolutely. Q: She’s still limited because of her own injury?--- A: Yeah. Q: so you’ll go – are you still living with her?--- A: Yes, I am. Q: So you’ll help out around the house?--- A: Yeah.”[51] [51] T32, L29-31 – T33, L1-2
81 Later in the evidence, the plaintiff stated as follows:
[52] T36, L4-9
Q: “In respect of living at home, who does work such as vacuuming,
gardening, those sorts of heavier domestic activities?---A: We have a cleaner that comes once a week and she does all the heavy duty stuff. My role’s more doing dishes, folding clothes, getting my sister ready for school.”[52]
82 It is clear from this evidence that the plaintiff has adjusted as best he can in order be of assistance to his mother. At the age of twenty-five, he is not fully able to assist her, but I do not find that this level of limitation is of great significance.
Sport
83 The plaintiff’s evidence was clear that he had ceased playing football prior to the injury. The reason for giving up football was so that he could advance his work situation. The time involved in being a chef was not compatible with the training and playing commitments required for football. The plaintiff gave the following evidence:
Q: “Have you participated in kick to kick, social football since you’ve
hurt your back?---A: No. Q: Why not?--- A: It’s purely because I get a fair bit of pain in the back when I kick a
football. That extension of the leg.Q: So have you tried it?--- A: I have, yeah. Q: Are you in setting from time to time with mates or family where
people get the footy out for a kick?---A: Yeah, absolutely, yeah. Q: Are you able to join in?--- A: No. Q: Is that something you’d like to be able to do?--- A: Yes, it is.”[53] [53] T 34, L18-27
84 It is clear that the plaintiff is not intending to partake of competitive football at this stage. However, he is a young man and, from his evidence, which I accept, he is unable to involve himself in a casual kick-to-kick of the football when he wants to.
85 The plaintiff played cricket and continued to play cricket after he commenced work as a chef. The level of cricket played was fairly casual and minor competition cricket. His evidence was that he gave up cricket as a combination of both his commitments at work and the pain he suffered as a result of the injury.[54] In his evidence, he stated that he was unable to now partake of cricket games in a picnic setting because of the injuries.
[54] T 31, L26-29
86 The plaintiff further stated that his ability to walk any great distances was limited by his injuries. He said he was limited to half-an-hour to an hour of walking.[55]
[55] T 35, L21-24
87 I find that these limitations to his sporting activities are a very considerable consequence of the injury to the plaintiff.
Work
88 The plaintiff gave evidence that as a result of his injuries, he had to give up the proven opportunity of him working as a chef in top hotels in Melbourne. At the time of his prolapse, he was working at the Sebel Hotel in Melbourne. As a result of the injury, he has had to curtail the career aspects of his work as a chef. He is to be commended in adapting to a lesser role that he can now physically cope with.
89 I find that the opportunity of pursuing the more rigorous task of being a top hotel or restaurant chef being denied to the plaintiff as a result of the injury is a very considerable consequence for him.
Conclusion
90 After consideration of all of the evidence, and taking into account all the consequences suffered by the plaintiff as a result of his lower back injury and referred pain to his leg, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
91 The plaintiff has satisfied the statutory test for serious injury for pain and suffering.
92 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages arising out of a low back injury suffered by him in the course of his employment with the defendant on or about 27 March 2003.
- - -
0
1
0