Barkham v Carlton and United Breweries Pty Ltd
[2020] VCC 1807
•3 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-00080
| GRAHAM BARKHAM | Plaintiff |
| v | |
| CARLTON & UNITED BREWERIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2020 | |
DATE OF JUDGMENT: | 3 December 2020 | |
CASE MAY BE CITED AS: | Barkham v Carlton & United Breweries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1807 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury - aggravation to cervical spine - pain and suffering
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013
Cases Cited: Philippiadis v Transport Accident Commission [2016] VSCA 1; Humphries v Poljak [1992] 2 VR 129; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group & Anor [2009] VSCA 181; Dwyer v Calco Timber (No 2) [2008] VSCA 260; Transport Accident Commission v Dennis (1998) 1 VR 702
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Slater and Gordon Lawyers |
| For the Defendant | Mr P Jens QC with Ms B Myers | Minter Ellison |
HER HONOUR:
Introduction
1 Mr Barkham is a 58 year old man who claims he suffered an injury to his cervical spine as a consequence of repeated turning of his neck whilst working as a forklift driver at Carlton & United Breweries Pty Ltd (“CUB”). In February 2017, Mr Barkham ceased work for a period of time and received conservative treatment for his neck injury. He has subsequently returned to his pre-injury duties. However, Mr Barkham claims he has been left with ongoing pain and restriction of movement in his neck.
2 In order for Mr Barkham to be entitled to claim common law damages for his pain and suffering, the impairment to his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury and Rehabilitation Compensation Act 2013.
3 CUB accepted that Mr Barkham had suffered this injury over the course of his employment but disputed that the consequences to him could be fairly described as at least “very considerable”.
4 Only Mr Barkham was called to give evidence and was cross-examined. Also in evidence were medical reports and clinical records. I have read these tendered documents together with the transcript of the proceeding. I shall not refer to all 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 my judgment.
5 I am satisfied that Mr Barkham is a very genuine man who, as a consequence of his work duties, suffered an aggravation of degenerative changes in his cervical spine, from which he suffers some ongoing pain and restriction of movement. However, for the reasons that follow, I am not satisfied that Mr Barkham’s pain and suffering consequences can be described as at least “very considerable” and I therefore dismiss his claim.
Mr Barkham’s life before suffering his neck injury
6 Mr Barkham said he was a poor student and left school at the age of 16 with minimal reading and writing skills. He subsequently worked for a short time as a paper boy and thereafter obtained work as a forklift driver for Alcan. Mr Barkham worked there for approximately 12 years and then, in 1990, commenced full-time employment with CUB as a forklift driver at its premises in Abbotsford. Mr Barkham said this work involved constant turning of his neck and looking up and down aisles to ensure the forklift was driven safely, and collisions were avoided.
7 From approximately 2003, Mr Barkham attended general practitioners at numerous medical clinics close to his home and complained of neck pain with referred symptoms into his left side. Mr Barkham had not been able to independently recall such instances but accepted the accuracy of the clinical records when they were put to him in cross-examination. Mr Barkham described these as “just a sprain … or a muscle spasm”, which he said he got over quickly and was then “better again”.
8 In addition, Mr Barkham accepted that he previously attended a general practitioner for some minor problems with his lower back, as well as some difficulties with sleep. Mr Barkham attributed his sleep difficulties to the shift work that he did, as well as marriage and other family problems.
9 Mr Barkham had previously been married twice but was single at the time he suffered his neck injury the subject of this claim.
10 In his spare time, Mr Barkham said he enjoyed going away on weekends in his caravan. He said he would generally go to places within Victoria, but in approximately 2016, he drove with friends to Kalgoorlie, where he did prospecting. Mr Barkham said he had previously travelled overseas, but generally did not like flying and therefore preferred to travel in Australia, in his caravan.
11 Mr Barkham also said he rode his bike approximately once a week, such as to the local shops, and that it was “not a big ride.”
12 Mr Barkham owned his own home and did the maintenance around the property. He said it was a low maintenance garden with no grass, but gravel instead, upon which he stored his caravan.
Mr Barkham’s neck injury and its consequences to him
13 Mr Barkham said in approximately 2015 he began to experience pain in his neck, left shoulder and left arm, as well as tingling in the fingers of his left hand. Mr Barkham said he initially saw an on-site physiotherapist at CUB’s Abbotsford premises.
14 Over time, Mr Barkham said his neck, left shoulder and arm pain became worse and, in early 2017, he attended general practitioners at the Leakes Road Medical Centre in Truganina.
15 On 24 February 2017, Mr Barkham was referred for an MRI scan of his cervical spine. It was reported as demonstrating degeneration at C4-C5 with mild spinal canal narrowing, disc degeneration at C5-C6 with mild canal narrowing and moderate right neuroforaminal narrowing with the exiting right C6 nerve root, and degeneration at C6-C7 with mild canal narrowing and severe bilateral neuroforaminal canal narrowing with both exiting C7 nerve roots contacting the disc.
16 Mr Barkham said he ceased work for a number of months, during which time he underwent regular physiotherapy at Symmetry Physiotherapy in Hoppers Crossing. He was treated there by physiotherapist, Sarah Clapham. In a report dated 31 May 2017, Ms Clapham stated that Mr Barkham had shown good compliance with physiotherapy, exercises and complete rest from work, but that he nonetheless continued to report ongoing severe facial, neck and left arm pain. At that time, therefore, Ms Clapham urged Mr Barkham’s general practitioner to consider referring him for a neurosurgical opinion.
17 In July 2017, Mr Barkham was referred to neurosurgeon, Mr Patrick Lo, in respect of his ongoing neck and left arm pain. In a report dated 7 July 2017, Mr Lo noted that Mr Barkham complained of increasing neck pain to a point where he could not bend or twist his neck without pain. Mr Lo noted the pain was largely in his left side and occasionally travelled down Mr Barkham’s hands. At that time, Mr Lo was of the opinion that Mr Barkham did not have the capacity for any work. Mr Lo did not recommend surgery, and instead recommended that Mr Barkham attend a multidisciplinary pain management program.
18 In a report dated 16 December 2017, Ms Clapham stated she had continued to treat Mr Barkham through until 17 August 2017, at which time he was referred to a specialist pain management program. Ms Clapham considered that Mr Barkham had made significant gains in his functional capacity and pain control and his condition had stabilised as a result of the pain management program as well as by him avoiding aggravating activities. However, Ms Clapham noted that, in the future, Mr Barkham’s pain may recur and he could suffer fluctuations over time. Ms Clapham recommended Mr Barkham avoid activities which involved repeated neck movements and sustained neck postures.
19 In late 2017, Mr Barkham attended a pain management program at Advanced Health Care over an eight-week period. Mr Barkham said this program involved a combination of physiotherapy, counselling and instruction in pain management.
20 After completing this program, Mr Barkham returned to work at CUB. He said he initially worked on modified duties and reduced hours but, over time, he gradually increased to his previous forklift driving duties on a full-time basis. Mr Barkham said the forklift driving was then made easier as CUB had installed a reversing camera on the forklift, such that he did not have to turn his neck as much as he previously did.
21 In August 2018, Mr Barkham’s general practitioner, Dr Sumera Yasmin, cleared Mr Barkham to perform overtime duties, provided he was given a break every two hours. However, Mr Barkham said despite this clearance, CUB have not provided him with any overtime, although he said other workers regularly did this. Mr Barkham said he is frustrated by this as he would like to work overtime.
22 Mr Barkham said for a period of time he was taking strong painkilling medication, including Endep, but felt that upset his stomach. He subsequently took Panadol Osteo approximately three to four times a week. Mr Barkham said in more recent times he has tried Ibuprofen, which he said he takes two to three days a week.
23 Mr Barkham said for a period of time he also attended for hydrotherapy three days a week. However, this stopped when pools were closed during COVID-19 restrictions. Mr Barkham said during that period he suffered some increased neck pain and stiffness.
24 Mr Barkham said his physiotherapist previously gave him neck exercises to do and he does these at home every second day. He also said he applies heat packs to his neck a few times a week as that helps to ease the aching and pain in his neck.
25 Mr Barkham said at rest he sometimes has no pain or a low ache in his neck. He said his “big problem” is turning his head to the left or holding his head upright in a fixed position for too long. He said if he turns his head too much or quickly, he gets sharp neck pain. Mr Barkham said he tries to avoid moving his neck too much.
26 Mr Barkham said because of his neck pain he tries to sleep on his back or right side. He said if he sleeps on his left side or rolls onto it, he suffers increased neck pain.
27 Mr Barkham said since suffering this neck injury, he no longer goes for bike rides.
28 Mr Barkham said he met his current wife in approximately 2017 at a local retail store. He said they began dating and were subsequently married in 2019. He now lives with his wife and her two adult sons.
29 Mr Barkham said that for their honeymoon, he and his wife took a 12-week trip and drove his four-wheel drive and caravan to Western Australia and Central Australia. He said this involved driving from Melbourne to Kalgoorlie, Broome, Darwin, Uluru, Cooper Pedy and then home. Mr Barkham said because of his neck pain he was restricted to driving no more than four hours a day and generally avoided driving on gravel roads. Mr Barkham described it as a “good holiday” but their decisions on how far to drive and where to go were influenced by his neck pain. Mr Barkham said when he suffered increased neck pain during this trip, he took Panadol Osteo and used a heat pack.
30 Since their marriage, Mr Barkham and his wife have also purchased a holiday house in Avoca, which is approximately 1 hour and 40 minutes from his home. He said, subject to the shifts he works at CUB, they generally go there on weekends. Mr Barkham said they enjoy getting away from the city and enjoy the quiet life in the country and have friends who live nearby. Mr Barkham said as they were not able to travel to their property in Avoca during the COVID-19 restrictions, when they returned to the property recently, he was required to do whipper-snipping around the home. Mr Barkham said he did this for three to four hours a day over three days. He said he would do it for a couple of hours and have a rest before doing more later on.
31 Mr Barkham also said he sold his previous home in Truganina at the time he moved in with his wife. He said before its sale he arranged for it to be painted by professional painters. Mr Barkham said he arranged this, as the job to paint the house was too big for him to do on his own. He did not attribute the need to hire such painters to his neck injury.
32 In a report dated 7 July 2020, Dr Yasmin stated that Mr Barkham continued to experience pain on the left side of his neck whilst driving and sleeping on his left side. Dr Yasmin also noted that certain neck movements and, in particular, lateral neck movements, cause a dull pain, and that Mr Barkham is “not able to manage certain daily living.” (sic) However, in this report, Dr Yasmin did not state which activities of daily living were interfered with. Dr Yasmin recommended Mr Barkham’s neck condition be treated with hydrotherapy, physiotherapy and exercises, together with Panadol Osteo and Ibuprofen.
Medico-legal evidence
33 Mr Barkham’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr Roger Westh, in April 2020. In Mr Westh’s report dated 21 April 2020, he noted Mr Barkham’s complaints of left-sided neck pain and the treatment he had received for it. On examination, Mr Westh noted that Mr Barkham was tender on the left side of his neck and had a restricted range of movement in his cervical spine with marked restriction of rotation and lateral flexion to the left. It was also noted that he had restricted extension and there was a loss of lordosis in the cervical spine.
34 Mr Westh was of the opinion that Mr Barkham had suffered a soft tissue injury to his cervical spine with aggravation of significant degenerative changes in his cervical spine which had resulted in cervical and referred left upper limb pain. Mr Westh recommended that Mr Barkham avoid activities which involve pushing, pulling or lifting, repetitive and prolonged use of the cervical spine as well as overhead activities and bending. Mr Westh considered that Mr Barkham was able to perform his pre‑injury duties but that he should have a rest every two hours and not do overtime.
35 In July 2018, Mr Barkham was examined by orthopaedic surgeon, Associate Professor Miron Goldwasser, for the purpose of determining his level of permanent impairment in his neck. In a report dated 4 July 2018, Associate Professor Goldwasser also noted Mr Barkham’s symptoms and treatment he had received for his neck injury. At the time of the examination, it was noted that Mr Barkham had returned to work on modified duties. Associate Professor Goldwasser also noted that, at that time, Mr Barkham told him his household activities were manageable but that he did them at a slower pace with occasional breaks. It was also noted that, at that time, Mr Barkham did very little bicycle riding, which was an activity he had previously enjoyed.
36 Associate Professor Goldwasser was of the opinion that Mr Barkham had suffered a soft tissue injury to his neck as a consequence of his work activities.
37 In March 2019, Mr Barkham was examined by general orthopaedics and trauma doctor, Dr Graeme Doig, to determine his degree of permanent impairment in his left shoulder and arm. Dr Doig diagnosed Mr Barkham as suffering an aggravation of a pre‑existing cervical spine with a strain to his left trapezius muscle. Dr Doig stated there was no direct injury to Mr Barkham’s left shoulder or left arm.
Pain and suffering consequences to Mr Barkham from his spinal impairment
38 To succeed in his case, Mr Barkham must satisfy me, on the balance of probabilities, that the impairment to his spine is permanent and serious. The test 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] When considering if Mr Barkham’s spinal impairment is “serious”, the consequences must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[2]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [25]
[2]Humphries v Poljak [1992] 2 VR 129 at [140]
39 In Sabo v George Weston Foods,[3] the Court of Appeal observed that in considering whether or not an impairment is at least “very considerable”, weight must be given to the adverb “very”.[4]
[3][2009] VSCA 242
[4]Ibid at [73]
40 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[5] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, regard should be had as to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain. In undertaking this assessment, the plaintiff’s credibility is an important factor.
[5][2010] VSCA 69 at [9]–[12]
41 I accept that Mr Barkham was a creditworthy witness. He answered the questions asked of him in a simple, straightforward and co-operative manner. Mr Barkham did not seek to overstate the pain and restrictions his neck pain causes him and readily spoke of the activities he is still able to do. I have no hesitation in accepting his evidence in its entirety.
42 Mr Barkham did not claim that his pain is constant, nor that it was severe or particularly disabling. Instead, he described it as a low level pain, made worse by sustained or sudden movement of his neck. I accept that Mr Barkham has modified his activities at work and home so as to minimise aggravating his neck pain. I also accept that, despite such modifications in his activities, Mr Barkham still frequently experiences a low level of neck and left arm pain.
43 I consider Mr Barkham’s limited use of pain killers or anti-inflammatory medication two to three times a week, a fair indication that his pain affects him from time to time, but is not bad enough to require the taking of such medication on a daily basis.
44 I note that Mr Barkham has received minimal medical treatment for his neck pain. Mr Barkham saw Mr Lo in 2017, but no surgery was recommended. Mr Barkham then underwent a pain management program, which assisted him such that he subsequently returned to his pre-injury duties. Mr Barkham has not undergone regular physiotherapy for some time but does exercises at home every second day. For a period of time he underwent regular hydrotherapy, but this stopped due to COVID-19 restrictions. Mr Barkham did not say whether he will resume such treatment now that swimming pools have re-opened.
45 I accept that Mr Barkham’s sleep is interfered with at times when he rolls onto his left side. However, it is unclear how many times a week this occurs. I am not satisfied that this occurs with such regularity that Mr Barkham is frequently tired during waking hours. Mr Barkham referred to the nightshift affecting his ability to drive to his holiday home but made no complaint of tiredness from broken sleep related to his neck injury.
46 Mr Barkham is still working in his pre-injury duties as a forklift driver, on a full-time basis. Mr Barkham said he would like to do overtime, but CUB do not offer it to him. I accept that this missed opportunity to earn extra income from overtime is a disappointment to Mr Barkham. However, more importantly, I consider it is an indication that, after working a full week, Mr Barkham’s pain is modest enough for him to feel able to do extra work.
47 In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[6] Chernov JA stated that it is ordinarily very difficult for a plaintiff to establish a serious injury where the plaintiff has returned to alternate employment.[7]
[6][2006] VSCA 292
[7]Ibid at [24]
48 This decision was subsequently considered by the Court of Appeal in Stijepic v One Force Group & Anor.[8] In that case, Ashley JA and Beach AJA stated:
“…it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.”[9]
[8][2009] VSCA 181
[9]Ibid at [47]
49 In addition, they took Chernov JA’s statement in Sumbul to mean 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.”[10]
[10]Ibid
50 In this case, I consider there is an absence of other relevant evidence to support such a finding that Mr Barkham’s consequences are serious.
51 Mr Barkham accepted that he is able to do domestic tasks but does so at a slower pace. Gardening was not a feature of his life before, and therefore any restriction in his ability to do this now is of limited significance.
52 Mr Barkham is no longer able to ride his bicycle, but given he previously rode his bike approximately once per week for short journeys, I consider this is only a modest consequence to him.
53 Mr Barkham has met and married his wife since suffering his neck injury. On their honeymoon they travelled around Australia in a caravan. I accept that this trip was restricted to some degree due to Mr Barkham’s limited driving ability but, at four hours a day, they were still able to travel significant distances and enjoy their time away. I note that save for the driving restriction, Mr Barkham did not complain of any restrictions in travel activities whilst exploring outback Western Australia or Central Australia.
54 Mr Barkham also now has a holiday house where he spends most of his weekends. Mr Barkham did not claim his ability to enjoy his time there was compromised by his neck injury. I accept that there is likely some restriction on the activities he can do around this country home, although such restrictions are presumably modest, given that Mr Barkham was recently able to whipper snip around the property for an extended period over several days.
Conclusion
55 In considering Mr Barkham’s application, it is appropriate for me to compare what he has lost, with what he has retained.[11] Having considered all the matters referred to above, I consider that, overall, he has lost a modest amount, but retained much. As the Court of Appeal acknowledged in Transport Accident Commission v Dennis:[12]
“…many disturbances are considerable, in the sense that they are important or substantial without being very considerable.”[13]
[11]Dwyer v Calco Timber (No 2) [2008] VSCA 260 at [27]
[12](1998) 1 VR 702
[13]Ibid at 703
56 I accept that the consequences to Mr Barkham from his neck injury could be described as considerable, significant or marked. However, in considering all of the evidence, when judged by comparison with other cases in the range of possible impairments or losses, and notwithstanding my sympathy for his predicament, I am not satisfied Mr Barkham’s pain and suffering consequences can be fairly described as at least very considerable or more than significant or marked. In such circumstances, his application is dismissed.
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