Aygur v Qantas Airways Limited
[2016] VCC 1599
•2 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05258
| PAUL AYGUR | Plaintiff |
| v | |
| QANTAS AIRWAYS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2016 | |
DATE OF JUDGMENT: | 2 November 2016 | |
CASE MAY BE CITED AS: | Aygur v Qantas Airways Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1599 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application –lumbar spine – pain and suffering – whether consequences “very considerable” – “range” case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd [2007] 267; ACN 005 565926 Pty Ltd v Snibson [2012] VSCA 31; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment:Leave is refused in respect to pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr S Smith | Sparke Helmore |
HER HONOUR:
Preliminary
1 The plaintiff alleges he suffered injury to his lower back in the course of his employment with the defendant, as a member of its ground crew, moving equipment and baggage at Tullamarine Airport. In particular, the plaintiff relies upon an incident on 25 June 2010 when he was moving a mobile staircase to an aircraft, when it stopped unexpectedly, and the plaintiff suffered lower back pain.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and leave is sought in respect of pain and suffering only.
3 The body function said to be lost or impaired is the functioning of the lumbar spine.
4 Mr C Cvjeticanin of counsel appeared for the plaintiff and Mr S Smith of counsel appeared for the defendant.
5 The plaintiff and his wife were both called to give evidence and were cross-examined. Medical reports, imaging reports and other material were tendered in evidence. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this Judgment.
6 The plaintiff has the burden of proving the impairment of his lumbar spine is both serious and permanent. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1
7 For reasons that I will explain below, I am satisfied the plaintiff suffers a lower back injury which is related to his employment with the defendant, and that his impairment is permanent. However I am not satisfied that the consequences suffered by him meet the “very considerable” test.
Relevant background
8 The plaintiff is 34 years of age and lives with his wife and 11 month old baby.
9 The plaintiff was born in Germany. He migrated to Australia in 1984 and completed his Victorian Certificate of Education in 1999. The plaintiff initially did some study in information technology at TAFE although, for family reasons, he did not complete that course. He later completed an electrical pre-apprenticeship course at Victoria University of Technology.
10 The plaintiff then obtained work with Aerocare, providing ground services at Tullamarine Airport. He worked with Aerocare for approximately two years.
11 The plaintiff then commenced employment with the defendant in about December 2004.
12 Before suffering the injury the subject of this claim, the plaintiff enjoyed activities at home such as washing his car and mowing his lawn.
13 The plaintiff suffered an unrelated injury to his right knee on 8 January 2010. At that time, he consulted Dr Brown, who provided him with certificates for light duties. This involved the plaintiff doing office work for the defendant until mid- June 2010, after which he returned to his normal duties.
The injury and its consequences
14 The plaintiff was employed by the defendant on a permanent part time basis, but usually worked between 35 and 45 hours per week.[2] He said the shift times varied. He was predominantly responsible for moving equipment and baggage around the aircraft. The plaintiff said that over time the system of work became more mechanised, although some aircraft still required the manual handling of baggage. The plaintiff said as part of his employment, he was required to lift baggage which weighed up to 32 kilograms, and that some of the oversized baggage could be even heavier than 32 kilograms.[3]
[2]Plaintiff’s Court Book (“PCB”) 4
[3]PCB 4-5
15 On about 19 September 2008, the plaintiff first suffered lower back pain when he was required to move baggage whilst stooped over for a prolonged period in the bulk hold of an aircraft.
16 At that time, the plaintiff consulted Dr Russell Brown at Melbourne Airport Health. Dr Brown prescribed Voltaren, recommended that the plaintiff undertake physiotherapy and provided him with light duties certificates.[4] The plaintiff said that while the light duties still involved him driving tugs, he was restricted in the lifting, pulling and pushing that he could perform.
[4]PCB 6
17 The plaintiff said that his back pain settled over time, and that by November 2008 he was able to return to normal duties.
18 On 2 October 2009, the plaintiff consulted Dr Moussa at St Luke’s Medical Centre in relation to back pain. The plaintiff stated that he could not actually recall this attendance, but accepted the record of it. The plaintiff does not believe he took any time off work and believes his ability to do duties around the house was not affected.[5]
[5]PCB 7
19 On 3 May 2010, whilst on light duties for his unrelated right knee injury, the plaintiff consulted Dr Moussa in relation to lower back pain shooting into his left leg.[6] The plaintiff could not remember this attendance either, but accepted the record of it.
[6]PCB 7
20 Dr Moussa arranged for an x‑ray to be taken of the plaintiff’s lumbar spine on 3 May 2010. It demonstrated disc space narrowing at L4-5 and queried whether the plaintiff was suffering a disc prolapse. Accordingly, Dr Moussa arranged for a CT scan to be performed on 21 May 2010. It was reported as demonstrating mild acquired lumbar canal stenosis at L4-5 and L5-S1 due to diffuse circumferential disc bulges and a small posterio-central/left para-central L5-S1 disc protrusion, which contacts the traversing S1 nerve roots.[7]
[7]PCB 50
21 The plaintiff recalled that at this time he was using Voltaren medication, which he felt settled his back pain.[8]
[8]PCB 8
22 In mid-June 2010, following recovery from his right knee injury, the plaintiff returned to his normal duties.
23 On or about 25 June 2010, the plaintiff suffered an injury to his lower back whilst pushing aircraft stairs with a fellow worker. The plaintiff said that one of the stabilisers on the stairs was faulty and that, when it came down into a locked position, the stairs stopped abruptly. The plaintiff said he felt sharp pain in his lower back, worse than any pain he had previously experienced.[9]
[9]PCB 8
24 The plaintiff saw Dr Brown the following day, who prescribed Voltaren and Panadeine Forte, and advised the plaintiff to go on light duties. Within one week, Dr Brown advised the plaintiff to cease taking Panadeine Forte as his symptoms had improved.[10]
[10]Transcript (“T”) 24, Line(s) (“L”) 11-14
25 At that time, the plaintiff submitted a WorkCover claim which was accepted.[11]
[11]PCB 9
26 Following this incident, the plaintiff worked light duties in the office and never returned to normal duties with the defendant.[12]
[12]PCB 9
27 The plaintiff continued to consult Dr Brown, until 27 August 2010, at which time Dr Brown moved interstate.[13] At that time, Dr Brown noted that he was hopeful the plaintiff would achieve a return to full duties in the next month.[14]
[13]PCB 18
[14]PCB 18
28 From 9 June 2010, the plaintiff also consulted osteopath, Dr Mark Cooke. Dr Cooke provided him with certificates of capacity and the plaintiff remained on light duties.[15]
[15]PCB 9
29 Dr Cooke provided osteopathic treatment to the plaintiff on a regular basis until September 2011. However, since that time, the plaintiff has only attended Dr Cooke on five occasions, that being 10 May 2013, 12 April 2014, 7 August 2014, 29 August 2016 and 17 September 2016.[16]
[16]Exhibit 3, Clinical records of Mark Cooke
30 In a letter dated 11 September 2011, Dr Cooke wrote that the intensity of the plaintiff’s initial symptoms had reduced.[17] He stated that he was continuing to provide ongoing treatment, which provided the plaintiff some pain relief, although it did not seem to be long-lasting. Dr Cooke did not consider the plaintiff’s daily living would significantly deteriorate if the treatment stopped.
[17]PCB 48a
31 In approximately June 2011, the plaintiff consulted general practitioner, Dr Kirit Parikh, who then provided the plaintiff with certificates of capacity. In a report dated 12 September 2014, Dr Parikh diagnosed the plaintiff as suffering lumbosacral strain with disc pathology and nerve impingement syndrome and a soft tissue injury of his left hip. Dr Parikh recommended the plaintiff should avoid the resumption of his pre-injury work involving physical labour.[18]
[18]PCB 46
32 The plaintiff attended Dr Parikh until approximately 2013.[19] During that same period the plaintiff would sometimes consult Dr Moussa, who has been the plaintiff’s only general practitioner since 2013.
[19]PCB 9
33 In June 2011, the defendant arranged for the plaintiff to be examined by occupational physician, Dr Michael Bloom. As he noted the plaintiff’s complaint of left hip pain, he arranged for an ultrasound to be taken of the plaintiff left hip on 6 June 2011.[20] This was reported as demonstrating no abnormality and, in particular, no evidence of bursitis.[21]
[20]PCB 9
[21]PCB 53
34 On 11 August 2011, Dr Moussa arranged for an MRI scan to be taken of the plaintiff’s lumbar spine. This MRI scan was reported as normal, with no significant disc bulge and no neural compression.[22]
[22]PCB 55
35 The plaintiff accepted that his condition was stable by 2011.[23]
[23]T53, L2-3
36 In early 2013, the defendant terminated the plaintiff’s employment. At that time, the defendant paid for him to undertake a Certificate IV in Training and Assessment.[24]
[24]PCB 9
37 In about June 2013, following completion of this course, the plaintiff gained full-time employment with New Age Caravans as a health and safety manager. He remains employed in this role and is responsible for the health and safety of approximately 110 employees. The plaintiff now earns $28,000 more per annum than he did with the defendant, and said that his hours are more family friendly than the shift work he did with the defendant. The plaintiff said he enjoys his current job.[25]
[25]T14, L26-31, T15, L1
38 In cross-examination, the plaintiff said that his lower back injury has caused him to take time off from his current employment. He said that whilst on occasions he would obtain a medical certificate for this, at other times he would take leave without a certificate. The plaintiff said he usually uses all 10 days, of his statutory entitlement to personal leave per year. He said that he has taken some days due to his lower back pain, and other days due to cold or flu type symptoms or to care for his wife. He said that in the year covering June 2015 to June 2016, he took additional personal leave, following the birth of his baby in November 2015, who was born premature and had remained in hospital for approximately five months.
39 The plaintiff said that he has lower back pain all of the time and that it flares up a few times a week. He said that a flare-up can last for a few hours and when he suffers a flare-up he will take Panadol Osteo. The plaintiff also said that hot showers can assist him in relieving his pain. The plaintiff said that if the pain is “extremely strong”,[26] he takes Panadeine Forte. He also said that when he has a very bad flare up of pain, he will see Dr Cooke.[27]
[26]PCB 13
[27]PCB 13
40 The plaintiff said that as a consequence of his lower back pain, he no longer washes his car or mows his lawn, and he now pays for these jobs to be done by someone else.[28]
[28]PCB 13-14
41 The plaintiff said that he is limited in his ability to do household tasks such as vacuuming, mopping, sweeping and hanging out the washing.[29] The plaintiff claimed that his lower back pain:
“Stops me from falling asleep. Sometimes the pain in my lower back wakes me up. I have to go and take a pain killer. I often feel tired and under slept as a result.”[30]
[29]PCB 13
[30]PCB 14
42 The plaintiff also claims that his lower back pain interferes in intimacy with his wife.[31]
[31]PCB 14
Medical evidence
43 The plaintiff’s solicitors arranged for the plaintiff to be examined by neurosurgeon, Professor Richard Bittar on 6 May 2016. Professor Bittar obtained a history from the plaintiff, including initially experiencing lower back pain in September 2008, together with the incident of 25 June 2010. Professor Bittar then obtained the following history:
“He has experienced persistent lower back pain radiating into his left leg over the past three years. His treatment has comprised occasional osteopathic treatment as well as analgesic medications. He currently takes analgesic medications (Panadol Osteo and Panadeine), three to four times per week and has osteopathic treatment every three to six months. He is not having any other treatment at this time.”[32]
[32]PCB 58
44 The plaintiff was cross-examined in relation to this history. He conceded that at the time of his examination with Professor Bittar, he had only attended his osteopath three times in a little under five years. He acknowledged that his statement to Professor Bittar regarding the regularity of such treatment was a significant overstatement. [33]
[33]T47, L19-21
45 The plaintiff was also cross-examined as to why he did not advise Professor Bittar that he took Panadeine Forte if his pain was extremely strong. The plaintiff said he did not mention it as he only takes that medication occasionally.[34]
[34]T43, L21-25
46 Professor Bittar obtained a history from the plaintiff that his pain was constant and he described it as having a minimum severity of 2 out of 10, an average severity of 3 to 4 out of 10 and a maximum severity of 8 out of 10.[35]
[35]PCB 58
47 Professor Bittar reviewed the MRI scan taken on 11 August 2011, and noted that, in his opinion, it did not demonstrate any abnormalities.[36] Professor Bittar concluded that the plaintiff suffers an aggravation of lumbar spondylosis which incapacitates him from his pre-injury duties.[37]
[36]PCB 59
[37]PCB 60
48 In July 2011, the plaintiff’s solicitor arranged for the plaintiff to be examined by Associate Professor Goldwasser, in relation to his right knee injury. Its relevance to this application is that Associate Professor Goldwasser noted the plaintiff’s lower back complaint and recorded that the plaintiff had taken anti-inflammatory medication for two to three months after June 2010, but that, as at July 2011, was not currently taking medication.[38]
[38]PCB 32
49 The plaintiff was cross-examined regarding this aspect of Associate Professor Goldwasser’s report. The evidence was as follows:
“Q: Dr Goldwasser records that you told him - this is in the paragraph at the top of the page: "Currently, he is not taking medications or having physiotherapy. For the first two or three months after June 2010, he had anti- inflammatory medication and physiotherapy." Is that correct?-
A:If that's what the records state, yes.
Q: The position was for two or three months after June 2010, you had anti-inflammatories and physio; correct?-
A:Yes.
Q:But after that, no medication?
A:I wouldn't say no medication.
Q:You are recorded as telling Mr Goldwasser that currently you are not taking medication; is that accurate?
A:No.
Q:It wasn't?
A:Sorry, I'd just like to clarify. Medication, is that - what's the scope of medication? Are we considering Panadeine as medication, Panadol as medication?
Q:What he records is that you told him that you took anti- inflammatory medication for two or three months after June 9 2010?
A:Yes, yes.
Q:So it extends at least to anti-flammatory medication?
A:Yes.
Q: He is saying that, "Currently, as at July 2011," you are not taking medication?
A:I can't define what - like I said, over the counter or are we - I can't define that.”[39]
[39]T40, L25-31, T41, L1-14
50 The defendant arranged for the plaintiff to be examined by surgeon, Mr Kendall Francis, in July 2010. In his report dated 15 July 2010, Mr Francis noted that after the incident on 24 June 2010, the plaintiff had been prescribed Voltaren and Panadeine Forte but that at the time of his examination in July 2010, the plaintiff was taking “just a few Panadeine when necessary”. At that time, Mr Francis considered that the plaintiff’s progress had been so good as to expect him to be fit to return to pre-injury duties and hours within two to four weeks.[40]
[40]Defendant’s Court Book (“DCB”) 9
51 The defendant arranged for the plaintiff to be examined by occupational physician, Dr Michael Bloom, in September 2011. In his report dated 21 September 2011, Dr Bloom stated that the plaintiff reported that:
“Essentially his low back pain has resolved but he continued to experience discomfort on the lateral aspect of his left thigh from the hip downwards.”[41]
[41]DCB 18
52 When this history was put to the plaintiff in cross-examination, he denied reporting that his low back pain had resolved.[42]
[42]T50, L16-20
53 Dr Bloom noted that the plaintiff had estimated his discomfort to be 1 to 2 out of 10, to which the plaintiff agreed.[43]
[43]T51, L1-2
54 Dr Bloom concluded that the plaintiff had suffered a soft tissue strain to his lower back in the incident of 25 June 2010, but that the lower back injury had since resolved.[44]
[44]PCB 20
55 The defendant arranged for the plaintiff to be examined by occupational physician, Dr Dominic Yong, in December 2011. In his report dated 7 December 2011, Dr Yong noted that the severity of the plaintiff’s pain had reduced from 7 out of 10 to 3 out of 10.[45] Dr Yong further noted that the plaintiff was not taking any medication at that time, and the plaintiff accepted this history.[46] Dr Yong was of the opinion that the plaintiff had the capacity to participate in a graduated return to work program, and anticipated that he would be able to return to pre-injury employment within three to four months.[47]
[45]DCB 12
[46]DCB 12 and T50, L8-9
[47]PCB 15
56 The defendant also arranged for the plaintiff to be examined by neurosurgeon, Associate Professor Graeme Brazenor, in September 2015 and July 2016. At the time of the initial examination, Associate Professor Brazenor did not have access to the MRI scan of 10 August 2011, and was of the opinion that the plaintiff had suffered a soft tissue injury, which was now “largely recovered.”[48] Associate Professor Brazenor noted that the plaintiff suffered some mild discomfort when performing bending and lifting duties and for that reason recommended that the plaintiff not do his own landscape gardening, home renovations or his pre-injury duties of baggage handling.[49]
[48]DCB 46
[49]PCB 47-48
57 In his subsequent report dated 8 July 2016, Associate Professor Brazenor examined the MRI scan of 10 August 2011. He was of the opinion that there was
“… a mild central disc prominence at L4-5 which I cannot even call a protrusion. There was the mild (in fact, tiny) central disc protrusion at L4-S1 and I suspect there may have been some healing in the 15 months since the CT scan”.[50]
[50]DCB 53
58 This finding by Associate Professor Brazenor differs from that of the radiologist who reported the scan, and that of Professor Bittar, both of whom considered the MRI scan demonstrated no abnormality. However, in circumstances where Associate Professor Bittar diagnosed a relatively mild pathological change, I consider little turns on this differing medical opinion.
59 Associate Professor Bittar confirms that, as a consequence of the lower back injury, the plaintiff should be permanently prohibited from doing activities at home or at work which involve repeated bending or lifting of objects to or from levels less than 600 millimetres above floor or ground.[51]
[51]DCB 53
Plaintiff’s credibility
60 I have reservations regarding the reliability of the plaintiff’s evidence. At different times in his cross-examination, he appeared evasive, equivocal or uncooperative.
61 This was demonstrated in the following aspects of his evidence:
62 The plaintiff did not state in either of his affidavits that he had missed days off work at his current employment due to lower back pain. However, in cross-examination, he stated that he had missed days off work, and that sometimes he would obtain medical certificates from his doctor, while other times he would not.
63 The records show that the plaintiff was provided with medical certificates in relation to his back pain on no more than three occasions. On one of those occasions, that being 14 April 2014, the reference is to upper back and neck pain. Mr Smith put to the plaintiff that his neck pain was unrelated to his lower back pain and the plaintiff answered “not completely.”[52] Mr Smith then asked him the following question:
“So you accept that this condition that you're describing 14 April 2014 is not to do with this work injury; it's a separate condition of upper back and neck pain?
Answer: I can't answer that.”[53]
[52]T21, L3-5
[53]T21, L15-18
64 I consider this to demonstrate the equivocal nature with which the plaintiff answered questions in relation to his lower back injury and its consequences. I also note that none of the doctors relate any upper back or neck pain to his lower back injury.
65 I consider the plaintiff gave unconvincing evidence regarding the frequency in which he takes Panadeine Forte and the way in which he obtained it. The plaintiff admitted that his first script for Panadeine Forte was in June 2010, and that Dr Brown had told him to cease taking it one week later as his symptoms had improved.[54] The plaintiff did not get another prescription for Panadeine Forte until June 2016.
Q:”How much Panadeine Forte do you now say that you have taken over the six years?---I can't answer that.
Q: Can I suggest to you it's nothing like a regular attendance 19 need otherwise you'd get a script yourself from the 20 doctor?---Sorry, what's regular? What would we say is regular?
Q:It's not of sufficient regularity for you needing to get a script from your doctor; correct?---I can't answer that because I'm not sure what your reference to "regular" is, sorry. It's over six years, so I can't answer that.”[55]
[54]T24, L11-14
[55]T28, L17-26
66 I consider this an example of the plaintiff’s uncooperative nature in giving evidence.
67 I also consider the plaintiff’s evidence regarding the history given to Associate Professor Goldwasser, and the medication he took at that time, as an example of him being evasive.
68 Individually, none of these examples would be likely to give me reservations regarding the plaintiff’s candour. However when considered collectively, I am not satisfied the plaintiff was entirely forthcoming in relation to his true level of pain and disability arising from the accident.
Permanent
69 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent.
70 I am satisfied that the plaintiff’s injury and the consequences which flow from it are permanent. The plaintiff admitted that his condition has been stable since 2011, and no treatment which has been recommended will result in a complete resolution of his pain.
Pain and suffering consequences
71 I must now consider whether the consequences to the plaintiff meet the test of “very considerable.”
72 In Haden Engineering Pty Ltd v McKinnon,[56] Maxwell P said at paragraphs 9–12:
[56](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiffs pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
73 In relation to the plaintiff’s “experience of pain”, for the reasons stated above, I am not satisfied that the plaintiff’s pain is as frequent or as intense as he claims.
74 I accept that by 2011, when his condition had stabilised, the plaintiff was not taking any medication, as noted by Dr Bloom, Associate Professor Goldwasser, and Dr Yong.
75 The plaintiff stated in his most recent affidavit that he has a flare-up of pain a few times a week, and that when he does he takes Panadol Osteo, “or if the pain is extremely strong I take Panadeine Forte.”[57]
[57]PCB 13
76 The plaintiff’s medical records demonstrate, however, that he has only ever been given two scripts for Panadeine Forte, the first in June 2010 and the second in June 2016. When the plaintiff was cross-examined on this, he stated that he would use the Panadeine Forte of other family members, specifically that of his wife and father.[58]
[58]T24, L24
77 The plaintiff’s wife, Ms Vikiaris was called and cross-examined in relation to this. She stated that she has suffered a shoulder injury since childhood, for which she receives scripts for Panadeine Forte once to twice per year. Ms Vikiaris was unsure whether there were 20 or 40 tablets in a box. She said she last received a prescription for Panadeine Forte in early 2015.[59] Ms Vikiaris estimated that she took most of the medication herself, but said that some of it was used by her husband.[60] She could not say how much the plaintiff had taken.[61]
[59]T68, L25
[60]T68, L28
[61]T69, L29-31
78 The plaintiff said that he has no difficulty taking Panadeine Forte,[62] so this is not a situation where the plaintiff avoids taking such medication because it causes him constipation or drowsiness.
[62]T24, L5
79 It is unclear to me how often the plaintiff actually takes Panadeine Forte. He makes no mention in his affidavit that he uses the medication of family members. I note that in 2011 he told multiple doctors he was no longer taking medication. He did not tell Dr Bittar that he takes Panadeine Forte, but told Associate Professor Brazenor he takes it once to twice per month. While I accept the evidence of the plaintiff’s wife, that he uses her Panadeine Forte from time to time, I consider it likely that this only occurs on a rare basis.
80 I also note that the plaintiff was prescribed Tramol in December 2015, and that he has recently finished that packet of medication.[63] This again demonstrates a modest ingestion of pain medication.
[63]T61, L26
81 As has been recognised by the Court of Appeal in previous cases, “…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[64] This is not the situation in this case. I am not satisfied that the plaintiff requires frequent medication. I consider he takes the medication occasionally, and that the medication he does take is at the lower end of the scale of pain-relieving medication.
[64]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
82 I also note that the plaintiff has received minimal osteopathic treatment since 2011. I consider that he significantly overstated the regularity of such treatment to Professor Bittar and, for that reason, I give limited weight to Professor Bittar’s opinion.
83 I accept the plaintiff’s explanation that any relief from osteopathic treatment is short term. However, this does not explain why he would not seek out such treatment when he alleged his pain was so bad that he could not attend work. I was not convinced by the plaintiff’s evidence that on such occasions he would try to see his osteopath but, as he could not get an appointment, he would not attend.
84 I note that at no stage did Dr Brown, Dr Moussa or Dr Parikh refer the plaintiff for specialist advice.
85 The plaintiff claimed that his lower back pain interfers with his sleep. However, the only mention of sleep problems in the plaintiff’s medical records is an attendance on Dr Moussa on 9 July 2014. In his attendance note, Dr Moussa made no mention of the plaintiff’s back pain. Instead, he referred the plaintiff for blood tests,[65] and recommended the plaintiff return if the problem persisted.[66]
[65]T55, L4-6
[66]Exhibit 1
86 The plaintiff was cross-examined as to why, when complaining about feeling tired, he did not tell the doctor that he his back pain kept him awake. The plaintiff offered no explanation. He was also asked why he did not return to Dr Moussa for review of these sleeping problems. He said, “at times there are reasons.”[67] When asked what those reasons were he said it was because there is a “timeliness of visits to the doctor.”[68] However, it is apparent from the records that the plaintiff attended the same medical clinic on 10 subsequent occasions, and that no further mention is made of him having sleeping difficulties.
[67]T56, L17-19
[68]T56, L20-22
87 The plaintiff’s wife stated in her affidavit that her husband “tosses and turns at night. He complains about back pain. He never seems to get a good night’s sleep. “ Although this statement in part corroborates the plaintiff’s complaints as to sleeping problems, I am not satisfied, when considering all the evidence in relation to this consequence, that the plaintiff’s lower back condition interferes with his sleep on a regular basis.
88 I will next consider the plaintiff’s “disabling effects of pain”. In doing so, it is appropriate for me to consider the plaintiff’s successful return to alternative full-time employment as an occupational health and safety manager. The plaintiff acknowledged that he enjoys this work, he is paid a much greater income, and the hours are more family friendly than his pre-injury job.
89 In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[69] Chernov JA said that it is ordinarily very difficult for a plaintiff to establish a serious injury where the plaintiff has returned to alternate employment.
[69][2006] VSCA 292
90 In Stijepic v One Force Group & Anor,[70] Ashley JA and Beach AJA stated:
“It is plain that Sumbul is no authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.”[71]
[70][2009]VSCA 108
[71][2009] VSCA 108 at [47]
91 They took Chernov JA to be saying that a worker successfully returning to alternate duties,
“will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious.”[72]
[72][2009] VSCA 108 at [47]
92 I am not satisfied here that there is “other relevant evidence” to dissuade me against a finding that the plaintiff does not suffer very considerable consequences.
93 I consider the plaintiff exaggerated the amount of medication he takes, the time he takes off work and the regularity in which he has obtained osteopathic treatment. As these are key factors for me to consider in assessing the plaintiff’s experience of pain, I conclude that the plaintiff’s pain is less frequent and less severe than the plaintiff complains of.
94 I accept that the plaintiff suffers the following consequences:
· he is no longer able to wash his car;
· he is no longer able to mow his lawn;
· he is restricted in the household activities he can do;
· he should avoid repetitive bending, and lifting objects lower than 600 millimetres off the ground;
· he suffers some interference with his sleep, but for the reasons detailed above, I do not accept it is with the regularity that he claims;
· some interference in his sexual relations with his wife, but given my concerns with his credibility, I do not accept this is with the regularity that he claims.
95 I consider that at best, these consequences could be collectively described as modest.
Conclusions
96 In considering this application, I have taken into account that at 34 years of age, the plaintiff is relatively young. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:
“…when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period to which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”[73]
[73][2009] VSCA 181 at [43]
97 However, given my conclusions that the consequences to the plaintiff are modest, even taking account of their likely longevity, I am not satisfied, when judged by comparison with other cases in the range of possible impairments or losses, that the consequences for the plaintiff are very considerable.
98 The plaintiff’s application for leave to commence a claim for common law damages for pain and suffering fails. I shall make consequent orders.
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