Barbuto v Bostik Australia Pty Ltd
[2009] VCC 302
•12 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-02447
| GEOFF BARBUTO | Plaintiff |
| v | |
| BOSTIK AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MORROW |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5th and 6th March 2009 |
| DATE OF JUDGMENT: | 12 March 2009 |
| CASE MAY BE CITED AS: | Barbuto v Bostik Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0302 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – plaintiff suffering from Perthe’s disease to left hip – whether injury prior to 20th October 1999 – aggravation case - R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 – intervening shoulder injury – does plaintiff have to “disentangle” – Shock Records Pty Ltd v Jones [2006] VSCA 180 – admissions by defendant constituted by making weekly payments of compensation and paying for hip surgery - Ansett Australia Ltd v Taylor [2006] VSCA 171.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Kennan SC and | Maurice Blackburn |
| Mr G Wicks | ||
| For the Defendant | Mr R Gillies QC and | Dibbs Abbott Stillman |
| Ms P Cefai | ||
| HIS HONOUR: |
1 This is an application for leave to bring a proceeding for the recovery of damages in respect of injury pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). It is brought by Originating Motion dated the 19th June 2008.
2 In support of the Application, there were affidavits of Geoff Barbuto, the plaintiff, sworn the 19th day of February 2008 and the 23rd day of February 2009, and his wife, Michelle Barbuto, sworn the 26th day of February 2009, and medical reports and other documents as listed in the Index to the Plaintiff’s Court Book (“PCB”).
3 In opposition, the defendant relied on various medical reports and other documents identified in the Index to the Defendants’ Court Book (“DCB”).
4 Notice to attend for cross-examination was given to the plaintiff and Dr Robyn Horsley and oral evidence was given by them.
5 The plaintiff claims, that as a result of an incident which occurred on or about the 2nd day of October 2003, he suffered “serious injury” as that term is relevantly defined. Pursuant to s.134AB(37) of the Act, “serious injury” means – in this case:
“(a) permanent serious impairment or loss of a body function.”
6 The particular permanent impairment or loss of a body function relied on here is to the left hip. The plaintiff has chosen not to proceed in relation to any claim for his right foot injury.
7 For the assessment of “serious injury” in accordance with sub-section (16) and (19) of s.134AB the word “serious” is further defined in s.134AB(38) of the Act.
8 This Application is to be determined on the evidence before the Court, to which I have referred, by applying the statutory definition set out above to that evidence. In interpreting that definition, I have directed myself in accordance with the deliberations of the Court of Appeal in a group of four cases decided by the Court on the 25th February 2005, and reported at Volume 14 VR 622. The first of these cases was Barwon Spinners Pty Ltd v Podolak, and I will, if necessary, refer to them as the “Barwon Spinners & Others” cases.
9 Given that an issue is whether or not this is an “aggravation” case, I have reminded myself of the principles laid down in Petkovski v Galletti [1994] 1 VR 436 (“Petkovski”), as confirmed in R J Gilbertsons Pty Ltd v Skorsis, now reported at (2000) 12 VR 386 (“Skorsis”).
10 In Skorsis’ Case, Chernov JA, said, after considering Petkovski’s Case, at paragraph 40:
“In determining whether an injury which is an aggravation of a pre- existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the incident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
11 The plaintiff seeks leave to proceed at common law in respect of both pain and suffering damages and pecuniary loss.
12 The applicant in this case is a forty-six year old married man who was born on the 28th April 1962. He left school in 1977 and then worked in a succession of unskilled labouring jobs, but did get a forklift drivers licence, and when he commenced with the defendant in 1994, he worked essentially in a factory doing process work but also driving a forklift.
13 Before commencing with the defendant, the plaintiff was required to have a medical check, and a copy of that assessment is to be found at DCB 31. Probably the most relevant finding, as far as this case is concerned, was that no abnormality was detected when the plaintiff’s hips were examined (DCB 235).
14 The work that the plaintiff did for the defendant was heavy and hard and included dragging heavy pallets of chemicals, lifting and carrying buckets of chemicals and carrying weights up and down stairs and climbing in and out of forklifts.
15 In paragraph 7 of the plaintiff’s affidavit of the 19th February 2008 (PCB 10), the plaintiff said that in the early part of 1999 he developed pain on the left side of his low-back and as a result attended a Dr Schon at the Northern Industrial Clinic, which was the clinic that the defendant had arranged for the pre-employment medical to be carried out. By this time the plaintiff, a well- motivated, hardworking man, had risen to the position of team leader with the defendant but his work remained very much “hands-on”.
16 A report from Dr Schon is to be found at PCB 18. Unfortunately Dr Schon does not detail the dates when he saw the plaintiff but he did order an x-ray which was performed on the 15th March 1999 (DCB 6) so I can assume that he saw the plaintiff in relation to the pain he was having in the hip at some time in early 1999. The x-ray report reveals, as far as the left hip was concerned, that:
“There is slight reduction in joint space with mild lipping consistent with degenerative change. The femoral head is slightly deformed suspicious of previous slip epiphysis.”
17 Dr Schon’s interpretation of this x-ray, as noted in his report, was that it showed:
“Flattening of the left femoral head consistent with past avascular
necrosis from adolescent Perthe’s Disease.”
18 He noted that there was no specific incident in 1999 affecting the left hip but the plaintiff was complaining of pain when ascending and descending stairs, and as a result he was transferred away from the work that he was doing so that he did not have to climb stairs as often as before.
19 Dr Schon said he was not in a position to say whether the sort of work that the plaintiff had been doing for the defendant accelerated the osteoarthritis that the plaintiff had in this joint.
20 The plaintiff then went to see his local general practitioner at the Kilmore Medical Centre, Dr Jain. He provided a report to the defendant dated the 4th August 1999 which is at PCB 20. He noted that he had seen the plaintiff on the 20th May of 1999 and that the plaintiff complained of suffering from left hip pain of six to eight months’ duration. He gave no history of a recent injury to the hip and he brought with him the x-rays that Dr Schon had organised. Dr Jain said that the plaintiff complained of doing twenty-seven months of work involving dragging pallets, lifting and pushing pallets and other heavy work prior to the onset of pain in his hip. Dr Jain prescribed Feldene to the plaintiff, and when he reviewed him on the 4th June of 1999, the plaintiff was complaining of aching in other joints and muscles. He said that the plaintiff told him he was going to make a WorkCover claim and that he had been transferred to a different section in the defendant’s factory. Dr Jain advised the plaintiff to see an orthopaedic specialist and he noted that on his review on the 21st June 1999, the plaintiff was complaining of pain in both shoulders down to his hands and that the Feldene was not helping so he advised the plaintiff to try Panadol and aspirin. Dr Jain told the defendant, in answer to a question as to “the probable development of the injury occurring if that employment had not taken place”, to which he said “unlikely”. He noted that the plaintiff’s incapacity was indefinite and that he may need a left total hip replacement in the future.
21 Apparently the orthopaedic surgeon that the plaintiff saw was Mr Brendan Dooley, and in his affidavit of the 19th February 2008, the plaintiff says, in paragraph 7 (PCB 11), that Mr Dooley, after looking at an x-ray, said that he had mild arthritis or degenerative changes in his left hip and that he would one day require a left hip replacement “but in the meantime there was nothing that needed to be done”.
22 On the 7th June 1999, the plaintiff had made a claim in respect of “osteoarthritis - left hip” and he stated that the injury had developed over time from “1996 to February of 1999” and that he had first become aware of the condition in approximately February 1997. A copy of the plaintiff’s Claim Form is to be found at DCB 79 and 80.
23 The plaintiff’s solicitors wrote to Mr Dooley and he replied in a letter dated 25th June 2007 that he had only seen the plaintiff on one occasion and that his records for 1999 “have been culled, and I am unable to help you further”.
24 In the meantime, on the 1st June 1999, the plaintiff saw Mr Keith Hayes, orthopaedic surgeon, at the request of the defendant, and his report of the 1st July 1999 is at DCB 8. The plaintiff told Mr Hayes that for some eighteen months leading up to his appointment with Dr Schon, that he had had pains in his left hip and was limping on and off every few days and that his condition had become worse after he had seen Dr Schon. Mr Hayes noted that the plaintiff’s complaints were continual aching in the left hip, that he could not sit for long, could not bend his knee and that even if he had taken four Panadols in the morning, they were not helping. Mr Hayes examined the plaintiff’s hip and noted a reduced range of movements and that there was about 1.5 centimetres of shortening in the left femur as compared with the right and marked muscle loss in the left thigh but no nerve deficit. There was weakness, however, with extension of his left leg and there was some “out turning of his leg as he lay supine”. Mr Hayes looked at the x-ray of the 15th March 1999 and noted the slight reduction in the joint space with mild lipping, which he said was consistent with degenerative change, and that the femoral head was slightly deformed. Apparently he arranged a further x-ray, which he says was taken on the 1st July 1999, and he said this showed a reduction in the articular cartilage space throughout the left hip joint, predominantly centrally and medially. He went on to say that there was a slight irregularity of the articular surfaces of the femoral head and the acetabulum. He said the apparent asymmetry of the femoral head is extenuated on the left by the femur being in internal rotation.
25 Unlike the other orthopaedic specialists who have examined the plaintiff, Mr Hayes did not say that the plaintiff’s condition was Perthe’s Disease, but it would appear that the condition he described at DCB 11 was in fact that Disease. He said that the plaintiff had suffered from a slipped left femoral epiphysis which he thought was a rather uncommon constitutional disorder and that it usually occurred during the adolescent growth spurt in the age group between fourteen and sixteen and this had been followed by degenerative osteoarthritic changes which he said could go back as far as ten years (from July of 1999). Mr Hayes said he did not regard the plaintiff’s work with the defendant as being a significant contributing factor but that the –
“Work [is] simply bringing the matter to more evident clinical notice, however there must be some caution with his prognosis as although he could benefit at present with a raised left shoe, and indeed he would possibly have done so for some years previously and also NSAISDs and Panadeine type analgesics, he will require a left hip replacement in due course.”
26 He said that the plaintiff should be capable of continuing to work in the meantime but in order to relieve the pain in his hip he should be able to sit and stand and walk at will and he should have a raised shoe and restrictions with weightlifting and bending. He concluded by saying:
“Mr Barbuto has developed a mild to moderate degree of degenerative osteoarthritis in his left hip as a consequence of a previous slipped femoral head and his work with Bostik has only brought the matter to more pronounced clinical evidence and has not been a significant contributing factor.”
27 He also said that he thought that the plaintiff’s left hip disorder would have occurred in about 1978 and that it had no relationship to his work. He advised the WorkCover Authority not to accept any liability “whilst he is quite capable of working according to the details as given in 3 above in the meantime” (DCB 13).
28 As a result of the plaintiff’s claim, the defendant’s investigators took a statement from him on the 29th June 1999, and a copy of that document is at DCB 486. To the investigators, the plaintiff said that he had first noticed hip pain about eighteen months ago, which would mean early in 1998. He said at first the pain was not constant and after a couple of days it would be all right. He said that in the last six to eight months he had been sore everyday and there were times when he could not move even though he had rubbed cream (and stuff) in it and he had seen a physiotherapist. He said the pills had done nothing for his pain and it got to the point where he could not reach his foot. He said the doctor changed his pills and for a couple of days he was okay but “now everything aches, my shoulders are killing me right down to my hands”. He said at the time of the interview he was taking no pills other than Panadol because the painkillers were dangerous when he was driving up and down the highway to work. He said he would just stay home if it got too painful.
29 Needless to say, as a result of receiving this report from Mr Hayes, the defendant rejected the plaintiff’s claim for compensation. It will be appreciated of course that this claim was made during the so-called “black hole” period.
30 The plaintiff said, in paragraph 8 of his affidavit, that in the years leading up to October 2003 he continued to work with the defendant on full duties, he said he had some mild left discomfort from time to time for which he would take Naprosen and that he took it about once a day. He said the work was still heavy and he did 12-hour shifts, six days a week on a regular basis and therefore earned good money. He continued to see his general practitioner from time to time in 2000 and on 7 April 2000, Dr Jain noted “managing not bad at work” (DCB 53-55), and in 2001, when he moved to Wallan, he saw Dr Fang (DCB 504).
31 On the 2nd October 2003, the plaintiff had to unblock a conveyor at work, and to do so he had to climb up on the conveyor and then lever up a jammed pallet. Whilst doing this he rolled on his right foot and fell and injured himself and thereafter was taken to the Northern Hospital where it was found that he had fractured a bone in his right foot (paragraph 10 at PCB 11). The plaintiff says that he was given crutches to use and later in the month, whilst getting about on crutches, the plaintiff said he slipped, did the splits, and injured his left hip. This particular accident with the crutches is in dispute.
32 I note that in a statement to the defendant’s investigators made on the 31st August 2004 (DCB 90), apparently in relation to the plaintiff’s shoulder injury (to which I will refer later) the plaintiff in giving a history of past injuries said, at paragraph 9 thereof (DCB 491):
“I have an arthritic condition in my left hip which was the subject of a WorkCover claim five years or so ago which was disputed and which I have not bothered to pursue. However, I believe the condition is aggravated by my work which amongst other things involves walking up and down stairs regularly (20-30 times per night) and getting in and out of a forklift.”
33 The plaintiff said that following this accident the pain in his left hip became much stronger and he began taking large doses of painkillers just so that he could go to work. The clinical notes from Dr Fang (DCB 503) indicate that the plaintiff attended on him following the injury to his right foot, and in an entry dated the 13th October 2003, Dr Fang noted that the plaintiff could not use crutches because of “arthritis hip”. Dr Fang’s clinical notes indicate that the plaintiff saw him on the 20th January 2004 with a painful left hip and left knee for three weeks “worse with weight-bearing and walking”. On the 5th March 2004, the plaintiff was again seeing Dr Fang in relation to hip pain, and on the 14th May of 2004, Dr Fang noted that the plaintiff’s pain was worse in the morning after work (the plaintiff had been doing nightshift) and whilst driving home and sleeping. By the 11th February 2005, Dr Fang was noting that the plaintiff’s hip was still sore and he had an “antalgic gait” (DCB 500). On the 21st September 2005, Dr Fang was prescribing Zoloft and Panadeine Forte in relation to the complaints of pain in the hip and knee. And on the 27th January 2006, Dr Fang notes:
“Sore hip, sore shin, worse with hip movement not worse with foot.”
(DCB 498 and 499).
34 The plaintiff said he was having trouble walking and he went back to the clinic where he saw Dr Dzartov, and reports from him are to be found in the PCB beginning at PCB 25. Apparently the plaintiff had stopped seeing Dr Jain on the 7th April 2000. Dr Dzartov said in his report of the 3rd July 2006 that the plaintiff’s medical condition had gradually deteriorated and he was being managed with anti-inflammatory medication on a regular basis and that an x- ray of the hip in January 2006 showed severe osteoarthritis.
35 On the 13th December 2007, the plaintiff was examined by Dr Elder, a specialist in occupational medicine, on behalf of the defendant, and on that occasion the plaintiff told Dr Elder that following the foot fracture he was on crutches and that he “suffered a fall during which he did the splits and this is how he believes he injured his left hip”.
36 In more recent times the plaintiff’s solicitors had him examined by Mr Peter Wilde, orthopaedic surgeon, on the 17th February of this year. The history taken by Mr Wilde included the following:
“[That following the fracture to the foot, the plaintiff was] given crutches and backslab was placed on his foot. He was subsequently placed in a walking boot. During this period of time whilst using the crutches he slipped on concrete and did the splits in Broadfield. He wrenched his left hip which became exquisitely painful. Unfortunately, despite Voltaren and Panadeine Forte, he failed to make a recovery from this fall whilst using crutches.”
37 Mr Wilde examined the various radiological investigations done on the plaintiff since the 15th March 1999 (PCB 57d) including the last x-ray done on the 10th January 2006. Mr Wilde was of the view that the plaintiff’s fall –
“Significantly promoted the degenerative disease of the left hip. This
culminated in a hip replacement in 2006 which has been successful.”
38 This was a similar view to that expressed Mr Marshall, to which I shall refer later.
39 The plaintiff’s case is that the injury he sustained to his right foot on the 2nd October 2003 led directly to an aggravation of his underlying hip disease to the point where it amounted to a “serious” injury. Although the plaintiff did not mention in his affidavits that the fall that he had, whilst on crutches, following the foot injury led to him doing the “splits”, he did say, in paragraph 10 of his first affidavit (PCB 11), that because of the injury to his right foot he had to put more weight onto his left leg and hip, and about two weeks after the fall he slipped whilst using the crutches and developed more pain in his left hip. In a history given to Mr Marshall on the 14th June 2006 (PCB 59), the plaintiff said that following the injury to his foot he had to take the weight on his right leg which caused him a great deal of extra stress on the left leg and the already painful left hip became much more painful.
40 In May 2006, the plaintiff said that he had to give up work because of the pain in his left hip, and on the 30th May of that year he made a claim for compensation in respect of the left hip. A copy of such claim is at DCB 92-94. In the claim he said that his injury, which had started in 1999, had got worse and that that was caused by “all was up and down stairs, on and off forklifts and moving heavy weights”. After the plaintiff ceased work, his claim for weekly payments was accepted and he remained on weekly payments for the next two years. Also in that year the plaintiff’s doctors decided that he had to have a left hip replacement and the defendant accepted the claim in respect of that surgery on the 14th July 2006 (PCB 39). On the 31st August 2006, the plaintiff had a left hip replacement done by Mr Bernard Lynch, orthopaedic surgeon.
41 Following the hip replacement surgery on the 31st August 2006, the plaintiff has conceded some improvement as far as pain and suffering in relation to his left hip is concerned. At paragraph 12 of his affidavit of the 19th February 2008 (PCB 12), the plaintiff said that he continued to attend his general practitioner for check-ups and medication and he also said he had had physiotherapy for his hip. He was using Panadol and Panadeine Forte as required for pain-relief. The plaintiff said that he continued to experience difficulties when standing up or sitting down and that the pain in his hip kept him awake at nights and interfered with this ability to perform jobs around the house, such as gardening. He said that he could not drive very far because it was painful to sit for long periods. I do note, however, that the plaintiff had had a pre-existing injury to his coccyx which to this day makes it difficult for him to sit in the one spot for very long. The plaintiff said that he struggled to walk for long distances, that he had put on weight, and in his most recent affidavit of the 23rd February 2009 (PCB 14), the plaintiff said that he still has constant pain in his left hip and occasionally in his left low-back but such pain fluctuates in severity. He confirmed that the problems that he had had as listed in his previous affidavit were continuing (paragraph 4, PCB 15). The plaintiff said that despite his problems, he was keen to return to some sort of work, and in mid January of this year he got a part-time job in an automatic carwash at Wallan, where he now lives. He said he works 5 hours a day on Saturdays and Sundays and he sets out in detail the duties he has to perform at the carwash in paragraphs 6 through to 9 of this affidavit. The plaintiff says in paragraph 10 of his affidavit, despite the light nature of the work he does at the carwash, he has had to resume anti-inflammatory medication because of the difficulties he experiences. He says that at the end of the work day, he has pain in his left hip, his low-back and his right foot throbs and he takes Panadeine Forte to control that pain. He says he believes that he could not work any more than the 10 hours per week that he now does. He says that he continues to see his general practitioner on a regular basis and he says that the injury has had a big effect on his personal life, both emotionally and sexually.
42 In paragraph 14 of his first affidavit (PCB 13), the plaintiff refers to the fact that he suffered a compensable injury to his left shoulder which was accepted by the defendant because it arose at work whilst the plaintiff was required to lift heavy buckets of chemicals. He said that (as at the 19th February 2008) he was still having pain and restriction with the movements of his left shoulder and that he was awaiting surgery. This surgery was carried out by Mr Owen, orthopaedic surgeon, who reported to the defendant on the 15th April 2008 (PCB 41) that he had seen the plaintiff on the 12th November 2007 at the request of Dr Dzartov and he said that the plaintiff told him that he had first noticed problems with his left shoulder after lifting heavy buckets and doing overhead work. He said that was about two to four years prior to the 12th November 2007 and the plaintiff took regular pain medication for this. Mr Owen said that after examining the plaintiff and looking at x-rays and an ultrasound, he decided to operate on the plaintiff on the 7th March 2008 and he found there were signs of impingement and hence he performed a standard decompression operation. Mr Owen said that the long-term outlook for the plaintiff should be good following the shoulder surgery and the plaintiff should be able to return to his normal duties as a labourer.
43 A number of issues fall to be considered in this case, including the following:
•
Whether the plaintiff’s left hip condition, i.e., Perthe’s Disease, has simply followed its normal course and that the plaintiff’s employment with the defendant up to 20th October 1999 and after had nothing to do by way of aggravation or acceleration of the plaintiff’s condition?
•
If the plaintiff’s employment up to the 20th October 1999 caused injury to the plaintiff’s hip then was such injury “complete” as at the 20th October 1999?
•
Assuming that the work that the plaintiff did for the defendant following the 20th October 1999 aggravated the plaintiff’s condition, did it do so to the point where such aggravation could now be described as “serious”?
•
Has the plaintiff been able to disentangle the occurrence of a shoulder injury from that of his left hip injury to the point where the consequences of the hip injury can be said to be “serious”?
•
Given that the defendant accepted the responsibility for making weekly payments of compensation and also for the hip replacement surgery, do these concessions constitute an admission on the defendant’s behalf as to the validity of the plaintiff’s claim?
The First Three Issues – Perthe’s Disease – Aggravation – “Serious”
44 The test in relation to the question of “aggravation” is as set out in Skorsis’ Case to which I have already referred at paragraph 10 above. I note that in that case Winneke P said, at paragraph 2:
“… It is, of course, true that where a plaintiff is contending that the injury constituted by an aggravation of a pre-existing condition is itself a ‘serious injury’, in the sense of a serious long-term impairment of a body function, it is for the plaintiff to prove that the aggravation meets that description. In determining whether the plaintiff has discharged the onus the court must make a comparison of the plaintiff's condition before the supervention of the defendant's negligent conduct, with his condition thereafter and make an assessment of the additional impairment. …”
45 His Honour went on to say, in paragraph 5 of his judgment, that where (the defendant) “was contending that the aggravation was not a ‘serious injury’, [the defendant] bore the evidential burden of showing what the probable course of the pre-existing condition would be” and His Honour referred to the decisions of Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
46 The plaintiff’s general practitioners at the Kilmore Medical Centre (Doctors Jain and Dzartov) were of the view that the work that the plaintiff was doing for the defendant, at least up to the 20th May 1999, aggravated the plaintiff’s underlying Perthe’s Disease, and in general I refer to their reports which are to be found at PCB 20 through to 35. The defendant’s doctor (Dr Schon) was not prepared to say whether or not the work that the plaintiff did at the time accelerated his condition. However, the defendant’s orthopaedic surgeon, Mr Keith Hayes, was not so reticent. As I have already noted, he did not regard the plaintiff’s work as a significant contributing factor but only as something that “brought the manner to more pronounced clinical evidence”. He thought that if the plaintiff’s duties were modified so he was able to sit and stand and walk at will and wear a raised shoe and was restricted in relation to weightlifting and bending, he should be able to continue working up until the time he required a left hip replacement.
47 Dr Robin Horsley, an occupational health physician, examined the plaintiff on the 12th February this year and provided a report of the same date and also gave evidence before me. She looked at the situation back as far as 1999 and said that prior to 2003, the plaintiff’s left hip condition was –
“Only mildly degenerative. It was grossly degenerative by 2006. The fracture of the metatarsal resulted in altered gait biomechanics. In addition he was moved to the polyurethane line which involved repetitive stair climbing and very heavy manual handling of up to 4 tonnes per day. This clearly was also a contributory factor.”
48 As can be seen from Dr Horsley’s report of the 12th February 2009 (PCB 55), she was of the view that the fracture of the right foot in 2003 resulted in an alteration of the “biomechanics of his gait”. She said that the work that the plaintiff had done prior to that, as well as the fall, resulted in an aggravation and advancement of the degenerative process occurring in the left hip: (see also PCB 56). It will be seen that Dr Horsley did not receive a history from the plaintiff that included a fall with the splits.
49 The plaintiff’s treating surgeon, Mr Lynch, provided a report dated the 9th June 2007 (PCB 39) which reveals that he first saw the plaintiff on the 8th August of 2006 when the plaintiff was complaining of pain in the left buttock since 1999. He said that the plain x-rays revealed (Perthe’s Disease). The plaintiff told Mr Lynch that he had suffered an injury to his right ankle at work and that as a result he had compensated for the right ankle which resulted in an aggravation of pain in the left leg. Mr Lynch undertook a left total hip joint replacement on the 31st August 2006 and he said that when he reviewed the plaintiff on the 13th October 2006 he thought the plaintiff had had an excellent result with significant pain relief. He was of the view that:
“To the best of my knowledge Mr Barbuto has not suffered an injury to
that left hip and the workplace has not caused any left hip osteoarthritis.”
50 He went on to say:
“It is possible, however, that the injury to Mr Barbuto’s right ankle has forced him to compensate more with his left leg, thus aggravating the symptoms of his osteoarthritic left hip.”
51 The defendant turned to Professor Hart for an opinion in respect of the cause of the deterioration in the plaintiff’s left hip and his report of the 28th January 2009 is at DCB 26. Professor Hart never saw the plaintiff but reviewed various documentation that was supplied to him by the defendant and which he refers to in the body of his report. Professor Hart came to the view, when asked specifically about the relationship of the right foot injury to the development of osteoarthritis in the plaintiff’s hip, that given, as he thought, that the plaintiff only used crutches for a relatively short period:
“This may have resulted in temporary aggravation of the left hip pain, it certainly would not have had a significant effect on the progression of his osteoarthritis.”
52 He said he thought that the foot injury had not had a significant effect on the evolution of the plaintiff’s osteoarthritic problems in the left hip.
53 The only other surgeon who looked critically at the question as to whether or not the plaintiff’s work prior to the 20th October 1999, aggravated his Perthe’s Disease was Mr Robert Marshall, surgeon, who examined the plaintiff on behalf of the defendant on the 14th June 2006. After taking a full history and considering the opinion of Mr Hayes, Mr Marshall said (DCB 60):
“Mr Barbuto has certainly been suffering from a slipped epiphysis in the past with partial destruction of the femoral head and flattening and distortion of the femoral head. This of course is indeed a constitutional condition, as stated by Mr Hayes, and predisposes to the development of arthritis. However, the situation in the joint seven years ago was merely one of minor osteoarthritis and the situation has dramatically deteriorated over the last few years. The changes are now those of ‘gross arthritis’. I therefore believe the extra stress put on Mr Barbuto’s already diseased hip as a result of breaking his other foot at work have certainly played a very significant part in contributing to the development of this arthritis. It follows from this that there is indeed a most significant work-related component in the recent development of Mr Barbuto’s severe hip arthritis. The work component has not resolved.”
54 In a subsequent report dated the 18th July 2006 (DCB 57f), Mr Marshall made it abundantly clear that he thought that the “dramatic exacerbation of the underlying hip arthritis” was due to the accident where the plaintiff injured his right foot and then had to take all the weight on his left leg after that injury. He went on to say that this –
“Caused a dramatic acceleration in the arthritic changes in the joint.”
55 In my view, notwithstanding the opinions of the general practitioners, the opinions of these senior surgeons is more compelling and I have come to the view that the work that the plaintiff did for the defendant up to the 20th October 1999 made no significant contribution to the course of the plaintiff’s underlying Perthe’s Disease as at that time. In doing so, I accept, from the statement made by the plaintiff on the 29th June 1999 in support of his then claim for Compensation (to which I have already referred) that the plaintiff nevertheless had significant problems in relation to his left hip at that time.
56 It will be seen then that a majority of the surgical opinion is that the right foot fracture and the plaintiff’s use of crutches whilst recovering from the fracture of his foot was more probably the cause of the significant deterioration in the plaintiff’s hip condition from 2003 onwards. Dr Horsley would have it that the work that the plaintiff was doing was also a significant contributing factor, but by and large it seems to me that it does not matter whether in fact it was the work that the plaintiff was doing or whether the deterioration was mainly due to the damage caused when the plaintiff used crutches or a combination of both – either way it seems that the plaintiff has satisfied me that his condition deteriorated markedly from 1999 to the end of 2003.
57 Mr Gillies attacks the plaintiff’s version, as given to Mr Wilde and Mr Elder, and accuses the plaintiff of recent invention. It seems to me that the only part of the plaintiff’s version of events that could possibly fit this description is that of “doing the splits”. The plaintiff struck me as an honest and reliable witness who was prepared to make the necessary concessions in cross-examination, and I accept that whatever the position, he did do damage to his hip whilst on crutches, as noted by Mr Marshall. I might add that the medical opinions of Mr Marshall, Mr Lynch and Dr Horsley do not depend on there being a fall involving the “splits”. The question then is, did this aggravation to the plaintiff’s underlying condition mean that the plaintiff had suffered “a serious” injury?
58 Mr Gillies submits that on any view of the evidence, the plaintiff was going to come to a total hip replacement due to his Perthe’s Disease and that he would, as a consequence, be unable to continue to earn the sort of money that he was earning with the defendant up until the time he went off work. This is quite true, but what the defendant caused, in my view, in this case, was an acceleration of the progression of the Perthe’s Disease and hence the need for the hip replacement was brought forward. Although there is nothing in the medical evidence to say, with any precision, when the plaintiff would have come to a total hip replacement. (Without injury), I note that when giving evidence before me, Dr Horsley said, when being cross-examined by Mr Gillies on this topic (T63):
“Q: It’s really a fine tuning adjustment, isn’t it? We’re really talking
about surgery perhaps in 2008 instead of 2006?---A: See, I think I just have to disagree, sir. I’ve got a number of plant operators who have got significant degenerative change in their hip and we have kept them on duties within restrictions like this for 10, 15 years so that they can get through till retirement and then have their hip replacement.”
59 At the time of the foot injury on the 2nd October 2003, the plaintiff was forty- one years of age. He worked on until May of 2006 when he was forty-four years of age and the hip replacement was done on the 31st August 2006 when the plaintiff was still forty-four years of age.
60 In order for me to find that the plaintiff has suffered a “serious” loss of earning capacity (s.134AB(38)(c) of the Act) it is necessary for the plaintiff to prove, under sub-section (e)(i), that as at the date of the hearing he has suffered a loss of earning capacity of 40 per cent or more. Sub-section (f) requires me to look at the earning capacity of the plaintiff now compared with what the plaintiff was capable of earning during a period three years before and three years after injury “as most fairly reflects the worker’s earning capacity had the injury not occurred”.
61 I believe it is appropriate in this exercise to fix the date of injury as October 2003 as the plaintiff contends, not only because he says his hip became much worse following the foot fracture but also because this seems to be confirmed by his attendances on Dr Fang as noted above in paragraph 33.
62 The plaintiff now works in a carwash some 10 hours a week at $17.60 per hour. Dr Horsley says that the plaintiff is capable of doubling his hours to 20 a week which would provide him with an income of $352.00 per week. I accept Dr Horsley’s evidence about this and for the purposes of this exercise I will assume the plaintiff has the capacity to earn some $18,000 per annum as a driveway assistant at a carwash.
63 The plaintiff’s earnings over the years from 2000 to 2007 are listed at PCB 58. In the six-year period from 2001 to 2006, the plaintiff averaged $86,500 per annum. This figure most fairly reflects his earning capacity had the injury not occurred. I believe 40 per cent of that figure is $34,600. On the face of it then the plaintiff has been able to show that he has suffered a loss of earning capacity of at least 40 per cent and it is not in dispute that this loss is permanent. What is in dispute is the role that the plaintiff’s underlying condition of Perthe’s Disease plays in this question.
64 Once again, I turn to the defendant’s surgeon, Mr Marshall, who thought that following the fracture of the plaintiff’s right foot there had been a “dramatic exacerbation of the underlying hip arthritis”, and doing the best I can with the evidence, it seems to me that the hip replacement was brought forward by at least ten years. In so saying, I rely on the evidence that Dr Horsley gave and to which I have referred above. Taking the most favourable view of her evidence, as far as the defendant is concerned, I believe it is appropriate to say that without injury the plaintiff could have worked on for ten years from 2003 before the natural progression of his Perthe’s Disease would have required him to have a hip replacement. The plaintiff was a relatively young man at the time he fractured his foot and was only forty-four when the hip replacement was done on the 31st August 2006. It seems to me that in all the circumstances, the plaintiff has made out his case as far as “serious pecuniary loss is concerned”.
The Shoulder Injury
65 On a factual basis it seems to me that the plaintiff’s shoulder injury had really nothing to do with the plaintiff ceasing work in May 2006 or any continuing disability. As I have noted in paragraph 42 above, the plaintiff made a claim in respect of the left shoulder injury which was accepted by the defendant but the full consequences of that injury did not become apparent until well after the plaintiff had stopped work, and in any event the surgery carried out by Mr Owen on the 7th March 2008 achieved a good result and Mr Owen’s opinion, as I have already noted, was that as far as the shoulder was concerned, the plaintiff could return to his normal duties as a labourer. In any event, it seems to me that the plaintiff is only required to show that the hip condition which he complains of is, by itself, “serious” despite other medical conditions that he may suffer from. In Shock Records Pty Ltd v Jones [2006] VSCA 180, Bell AJA said, in paragraph 69 of his judgment, that the Court had to be satisfied that the (complained of) injury of itself caused a loss of earning capacity of the requisite degree and in so doing the Court had to exclude the contribution of other medical conditions. His Honour went on to say:
“… Mr Jones suffered from three medical conditions of which only the back condition was injury-related. Her Honour had to be satisfied this condition caused a loss of earning capacity of 40%um or more. … .”
66 In my view, the plaintiff has proved that the hip condition alone was capable and did cause a loss of earning capacity to him of 40 per cent or more.
Admissions by the Defendant
67 It is not in dispute that the defendant accepted responsibility for making weekly payments of compensation when the plaintiff ceased work and also accepted the responsibility for the payment of the hip replacement surgery that the plaintiff had in August 2006. Mr Kennan, Senior Counsel for the plaintiff, submits that these payments by the defendant constitute an admission by the defendant as to its liability in this matter. He relies on the decision of Ansett Australia Ltd & Anor. v Taylor [2006] VSCA 171, an in particular in the decision of Ashley JA. In that case the WorkCover Authority had accepted a claim made under s.98C of the Act and the question was whether that established conclusively that the worker had sustained a compensable injury after the 20th October 1999. At paragraph 3 of the judgment, Ashley JA said that:
“…The acceptance of liability under s.104B(2) has evidentiary effect only, as an admission by the Authority that such an injury was sustained. Such an admission should ordinarily be regarded as very significant, however, having regard to the serious consequences for the Authority flowing from the acceptance of a claim.”
68 In paragraph 40 of his judgment, His Honour went on to say:
“…I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”
69 Here the defendant has not really explained its conduct in relation to the acceptance of the claim in respect of weekly payments and for the surgery. In fact it had extensive information in the way of statements made by the plaintiff to its investigators and the opinions of a number of surgeons, in particular Mr Hayes and Mr Marshall, before making its decision. In the circumstances, I find the defendant’s conduct in this case, in making these payments, to be a very significant admission on its part.
70 In conclusion then, the plaintiff has made out his case for being given leave to proceed at common law in respect of pecuniary loss.
71 S.134AB(17) provides that if a worker has been able to prove that he suffered a serious injury in respect of pain and suffering but not in relation to pecuniary loss, he will only be entitled to proceed for pain and suffering damages. But if on the other hand the worker is able to prove that he suffered a “serious” injury in respect of pecuniary loss damages, he will nevertheless be entitled to bring proceedings at common law in respect of pain and suffering damages as well. In general I refer to the Second Reading Speech of the 23rd May 2000 by the Honourable MM Gould (page 6) where the Honourable Member said, in relation to this part of the legislation:
“If, however, the worker satisfies the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.”
72 In the circumstances, I do not believe it is necessary for me to rule on the question as to whether the consequences of the plaintiff’s injury in respect of pain and suffering are “serious” or not.
73 The plaintiff will be given leave to proceed at common law in respect of pecuniary loss.
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