Bates v Crosby Tiles Pty Ltd (Trading as Beaumont Tiles)
[2011] VCC 838
•28 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-03256
| STEVEN BATES | Plaintiff |
| v | |
| CROSBY TILES PTY LTD | Defendant |
| (TRADING AS BEAUMONT TILES) |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 June 2011 |
| DATE OF JUDGMENT: | 28 June 2011 |
| CASE MAY BE CITED AS: | Bates v Crosby Tiles Pty Ltd (Trading as Beaumont Tiles) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 838 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages and pecuniary loss damages – plaintiff suffered fall in course of employment – at subsequent back surgery arachnoid cyst compressing spinal cord discovered – evidence of operating and examining neurosurgeons essentially supports causative link – plaintiff left with some spasticity of legs – liability accepted in relation to medical and like expenses including surgery, weekly payments and s.98C – behaviour of Victorian WorkCover Authority and its agents in contesting causation given admissions of liability and the medical material which it possessed – whether burden of proof discharged in relation to pecuniary loss damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell SC | Maurice Blackburn |
| with Mr G. Wicks | ||
| For the Defendant | Mr M. Klemens | Herbert Geer |
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as (“the Act”). The plaintiff seeks leave in relation to both pecuniary loss damages and pain and suffering damages. In bringing his application, the plaintiff relies upon sub-paragraph (a) of the definition of serious injury contained in s.134AB(37) of the Act. The injury upon which the plaintiff relies is unusual in nature, as shall be discussed, but essentially is to the thoracic and lumbar spines with more emphasis being placed upon the thoracic spine. That the plaintiff sustained an incident of injury in compensable circumstances on 10 March 2006 was not disputed, although various aspects of it and its sequelae are the subject of some argument.
2 Mr P. Jewell SC with Mr G. Wicks of counsel appeared on behalf of the plaintiff. Mr M. Klemens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The surgeon who operated upon the plaintiff, namely Mr Michael Pullar, was also required to give evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent.
3 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.
Factual background
4 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 The plaintiff appeared to me to be completely straightforward, honest and frank. He was a reliable witness and I have no reason to doubt the accuracy of his evidence in relation to the manner in which the incident of injury occurred, developments thereafter and the consequences from which he now suffers. I note that Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff on behalf of the defendant, described him as being alert and cooperative without embellishment. Mr Geoffrey Klug, consultant neurosurgeon, also examining for the defendant, noted that the plaintiff was able to give a clear and concise account of his condition and appeared to be a person of sound, average intelligence. Dr Nathan Serry, consultant psychiatrist, who examined the plaintiff at the request of his solicitors, described him as being pleasant and cooperative and a clear and straightforward historian who presented information without embellishment. I agree with all of these observations. I accept the plaintiff’s evidence without qualification.
(ii) The plaintiff’s education, background and training prior to the injury 6 The plaintiff is 44 years of age, having been born on 23 May 1967. Although not married, he has been in the same relationship for a lengthy period. He has no dependent children. By way of education, he completed Year 12. Thereafter he worked as a shop assistant/storeman, a labourer and for approximately ten years delivered fruit. Thereafter he worked as a storeman and a truck driver/storeman before commencing employment with the defendant in October 2005. His employment with the defendant was that of a forklift driver/stock picker, which work, as one might assume, involved him in driving machines such as a forklift and a stock picker, which is a machine with tynes at the front and which moves pallets on which are boxes of stock. He was doing work of this nature when he suffered the relevant injury.
(iii) The injury (a) The state of the plaintiff’s health prior to the injury 7 Apart from the fact that he fell from a fence and fractured his skull when he was aged six years, the plaintiff had been otherwise well. I accept that there was no overt relevant injury or condition existing prior to 10 March 2006.
8 When the plaintiff came to surgery at the hands of Mr Pullar on 17 October 2007, a posteriorally located arachnoid cyst compressing the spinal cord and displacing it anteriorally towards the left side was found, this cyst appearing to be at the T11 level. The existence of this cyst may have pre-dated the incident of injury but its existence was unknown. I accept that it was completely asymptomatic and that prior to the incident of injury the plaintiff suffered no restrictions, either in the course of his employment or socially, as a result of it.
(b)
The injury sustained on 10 March 2006, its treatment and the assessments of it
(1) Injury to the thoracic spine and its sequelae
9 On 10 March 2006 the plaintiff was operating the stock picker and was wearing a safety harness. He was replenishing stock and was manually moving boxes from a pallet resting on the tynes in front of him whilst standing on the pallet platform. He was wearing a type of harness. Whilst so doing, he lost his balance and fell backwards until striking the pallet. I accept that he struck his back. True it is that the history given to Mr Pullar was of the plaintiff falling about one metre and landing awkwardly on his right leg, but, as stated in cross-examination by Mr Pullar, “I perhaps didn’t take a history for the purposes that you might require in terms of sorting out exact source of injury but this was gained in the process of a patient being referred to me with a particular condition”.
10 I might say that Mr Pullar did not seem to be of the view that the distinction between the plaintiff falling in the harness and striking his back as opposed to his leg was of any great moment. Apart from the fact that Mr Pullar stated that he would only have “possibly” noted a history in relation to falling on the back, I would refer to the following question and answer in cross-examination relating to the fall:
“This is obviously – the correlation between the trauma, as described to you, of falling about a metre and landing awkwardly on the right leg and ultimately symptoms associated with the cyst. The correlation I put to you is a tenuous one?---Perhaps I should restate the way I’ve put it in the report, which is that there appears to be a temporal relationship between the injury and the onset of symptoms which would be consistent with something about that injury precipitating the onset of symptoms. Whether or not those symptoms were going to occur over more time I can’t answer but there does seem to be a direct temporal relationship with injury and the onset of symptoms.”
11 Mr Pullar went on to describe the mechanisms that might be operating in such a circumstance. One was that trauma can bring on symptoms in a situation where previously there has been spinal cord compression without any symptoms. The other is that an increase in intrathoracic pressure can lead to the pushing of spinal fluid into the cyst and the expansion of the cyst. Mr Pullar would not have expected the symptoms consequent upon the cyst to become evident either very close to or at the time of the trauma, and gave evidence that very typically there was a delay. I would also refer to the following question and answer in re-examination:
“The straining of which you speak to increase intrathoracic pressure, was that straining you speak of consistent with what you understand the mechanism of his fall to involve?---That was a mechanism that occurred to me that would be one way of associating the two.”
12 I have moved somewhat from the circumstances of the injury, but that is in order to underline that, given the evidence of the operating surgeon, little hinges upon whether, in the fall, the plaintiff landed on his back or on his right leg. I might say that I accept the plaintiff’s version of events. That is no criticism of Mr Pullar, who was an impressive witness, but his own description of his history taking makes it apparent that recording a completely accurate and detailed history of the circumstances of injury was not something that was paramount in his thinking. I would also note that the history taken by Mr Brownbill on 22 August 2007 was to the effect that the plaintiff fell, still attached to his harness, and struck the mid part of his back on the pallet. The plaintiff’s general practitioner, Dr Dessauer, who treated him from approximately two months after the incident, recorded a history of a fall onto the right side in which the plaintiff hurt his right leg and lower back. I am quite satisfied that it was something along these lines which occurred.
13 Following the incident of injury, the plaintiff was seen on some four occasions by Dr Mohar, who seems to have been the defendant’s preferred doctor in relation to workplace injuries. The plaintiff received a cortisone injection in the right hip and was provided with anti-inflammatory and painkilling medication, in addition to being referred for physiotherapy and certified as being fit only for modified duties. In May 2006 the plaintiff’s condition worsened and he missed some two weeks from work before returning to light duties. Over the following months he developed numbness and weakness in both legs, also noticing an increasing unsteadiness on his feet. He began attending at the Fountain Gate Medical Centre where he first saw Dr Head, who organised a CT scan of the plaintiff’s low back, this being carried out on 9 June 2006. The conclusion of the radiologist was that it was a normal examination. Subsequently, in the absence of Dr Head, the plaintiff’s treatment was taken over by Dr Dessauer. Ultimately, he referred the plaintiff to the Victorian Rehabilitation Centre, where a Dr Lee organised for an MRI scan of the plaintiff’s brain and neck. This was carried out on 18 December 2006 and again the result was essentially normal.
14 The plaintiff’s problems with balance and co-ordination increased, so much so that Dr Lee referred him to Dr Tan, neurologist. An MRI scan of the plaintiff’s thoracic and lumbar spine was carried out on 15 May 2007. On this occasion the result was abnormal, with there being features suggestive of a ventral dural defect at T10/11 together with a focal disc herniation. It also revealed left neural exit foraminal stenosis at L4/5 secondary to facet joint disease. Dr Tan diagnosed a thoracic spinal cord lesion at approximately the T11 level and referred the plaintiff to Mr Pullar. Subsequently, and after the surgery performed by Mr Pullar and his discovery of the cyst, Dr Tan expressed the view that such a cyst can be an acquired lesion resulting from spinal trauma and manifesting itself as a later complication. Given the temporal relationship, Dr Tan was of the view that it was likely that the condition was a consequence of the back injury in question. He had taken a history of the fall of 10 March 2006.
15 Returning to the sequence of medical treatment and the referral to Mr Pullar, he arranged for the plaintiff to undergo a CT myelogram which was carried out on 14 September 2007. Mr Pullar considered that this was highly suggestive of a ventral dural defect rather than a dorsal compressive lesion. Approval was sought for him to carry out a thoracic laminectomy, and the defendant, via its insurer, agreed to fund such surgery. At surgery, a thoracic laminectomy was performed but, contrary to the expectations created by the radiological findings, Mr Pullar in fact found the arachnoid cyst compressing the spinal cord as has previously been described. He excised the arachnoid cyst and the spinal cord then returned to a more normal central position. The prediction of Mr Pullar following the surgery was for a relatively slow and incomplete recovery.
16 Mr Pullar reviewed the plaintiff on 21 February 2008. There had been improvement. A further MRI scan was arranged, this being performed on 1 February 2008. In the opinion of Mr Pullar, whilst this revealed that the thoracic spinal cord had returned to a normal position, there was still signal change within the spinal cord which indicated established damage.
17 Mr Pullar did not review the plaintiff after 21 February 2008. However, later in this judgment I will again refer to the oral evidence of Mr Pullar. I should add that, given the findings of Mr Pullar at operation, the diagnosis in this case is scarcely able to be challenged or be placed in issue.
18 Following the surgery, the plaintiff was an inpatient at the Victorian Rehabilitation Centre for approximately two and a half weeks and continued as an outpatient, on the basis of two days a week, for the following 18 months. I would refer to the reports of Dr Samantha Kennedy in this regard. The plaintiff was last seen by her on 4 June 2009. When attending the Victorian Rehabilitation Centre, he had received treatment such as physiotherapy, hydrotherapy and the like. He had also been placed on anti-inflammatory and painkilling medication. Initially, he was in a wheelchair, but by mid November 2007 was using a walking stick. He developed subsidiary problems such as sleep disturbance and nightmares and in September 2008 suffered a seizure which was considered to be related to the consumption of Tramadol. Since the prescription of that medication ceased, there have been no further seizures. When last seen by Dr Kennedy, the plaintiff was walking with a single point stick outdoors for about ten minutes or 50 metres duration and was having intermittent spasms in his legs. Dr Kennedy completed a Total and Permanent Disablement Claim Certificate in respect of superannuation.
19 Thereafter, the plaintiff continued to see Dr Dessauer. He had some problems with depression, and was treated with appropriate medication after being referred to a psychologist. He has continued to suffer from spasticity and weakness in both legs and interference with his balance. As is evident from the report of Dr Dessauer of 14 March 2011 and from the oral evidence of the plaintiff, he complains of fatigue which comes on after what many would consider to be a small to moderate amount of effort or physical activity. The plaintiff complains of many ongoing symptoms including pain; stiffness in the legs together with numbness in the feet, the right being worse than the left; disturbance of balance; limitation in the amount of walking which he can perform without the assistance of a stick; pain when sitting or standing for any lengthy period; interference with sexual relations and sleep; depression; and interference with activities of life. He continues to take a considerable number of medications, and this has included medication which is morphine based.
20 The plaintiff has been examined by a number of doctors for medico-legal purposes. His solicitors have arranged for him to be seen by Mr Justin Hunt, orthopaedic surgeon, who saw him on 25 October 2010. Mr Hunt diagnosed a work-related spinal injury in the form of aggravation of a previously asymptomatic arachnoid cyst and pre-existing lumbar spondylosis with residual neurological deficit, including evidence of persistent paraparesis and ongoing mechanical lower back pain symptoms. Mr Hunt expressed the view that the injury was work-related, referring to the fall of 10 March 2006, and commenting that this had precipitated symptoms from a previously asymptomatic arachnoid cyst and produced an aggravation of previously asymptomatic lumbar spondylosis. He considered that the plaintiff was profoundly disabled as a result of ongoing mechanical lower back pain and leg pain symptoms together with residual weakness of the lower limbs. I shall subsequently return to his opinion in relation to capacity for employment, but I note that Mr Hunt is of the view that it is not possible for the plaintiff to return to pre-injury employment or any alternative employment and that he is “profoundly disabled” as a result of his symptoms which are, in turn, employment related.
21 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff on 21 December 2010, reporting on the following day. Dr Thomas expressed the view that the plaintiff, following the development of symptoms and surgery, has been left with permanent nerve damage with weakness in both legs and a degree of spasticity in each. Because of his limited expertise in the area, he deferred to the opinion of the neurosurgeons which he understood to be to the effect that the arachnoid cyst was aggravated by the fall at work. Dr Thomas was also of the view that the plaintiff had developed a lower back problem with continual pain from the lower lumbar spine as a result of the incident. Whilst accepting the opinions of the neurosurgeons that the fall contributed to the plaintiff’s current condition in relation to his spinal cord, there also existed the lower back problem which continued to be a cause of disability. I shall return to the opinion of Dr Thomas in relation to the plaintiff’s capacity for employment.
22 At the request of the defendant, the plaintiff was examined by Dr Andrew Miller on 12 October 2006. As this examination pre-dates the surgery, it is of limited assistance. Essentially, Dr Miller was focussing upon the plaintiff’s capacity for performance of restricted duties at that time, and this is reflected in his further report of 8 December 2006.
23 Mr Peter Battlay, surgeon, examined the plaintiff on 11 May 2009. This appears to have been for the purpose of making an impairment assessment. Suffice to say that Mr Battlay noted that liability had been accepted in relation to the injury, stating that, “This was based on a work-related accident that apparently caused symptoms in the back for the first time and subsequently developing spasticity. Mr Bates has a stabilised permanent impairment because of the accident, the resultant operation and subsequent relative lack of progress”.
24 I turn now to examinations of the plaintiff by neurosurgeons, such examinations being at the request of the defendant.
25 As previously stated, Mr David Brownbill, consultant neurosurgeon, examined the plaintiff at the request of the defendant. There have been two such examinations, these being on 22 August 2007 and 30 July 2008. In his report of 24 August 2007, Mr Brownbill expressed the opinion that he considered that the contributing factors to the plaintiff’s condition were “forces sustained to the spine in the described incident of March 2006, on probability based on a pre existing, asymptomatic, anatomical variant”. At the time of this first examination, the plaintiff’s surgery was being contemplated. Mr Brownbill stated that, “I consider that the requested surgery is a direct result of the injury sustained to his lower back on the 10th March 2006”. Following his review on 30 July 2008, Mr Brownbill reported to the defendant that examination revealed spasticity of both legs. He repeated his earlier remarks that he considered that the plaintiff’s present clinical condition had resulted from the forces sustained in the work incident of 10 March 2006. I shall return to his comments in relation to capacity but would repeat that this was an opinion being given to the defendant, at its request, from a consultant neurosurgeon who, according to material placed in evidence by the defendant, was Senior Neurosurgeon to the Royal Melbourne Hospital from 1975 to 1995 and Consultant Neurosurgeon to that same hospital thereafter, as well as being Consultant Neurosurgeon to the Royal Women’s Hospital for 20 years prior to 1995 and the Founding Director of the National Stroke Foundation.
26 At the request of the defendant, the plaintiff was examined by Mr Daryl Nye, neurosurgeon, on 1 October 2008. Mr Nye expressed the view that the plaintiff had sustained an injury in the work situation which had led to complication of a developmental spinal arachnoid cyst with spinal cord compression, and that surgery had been necessitated with associated neurological deficit. In answer to a question on behalf of the defendant, Mr Nye stated, “The injury was an exacerbation and deterioration of a pre- existing condition with development of spinal cord compression, the work component has not resolved, there is enduring neurological disability”. For the moment, I shall leave to one side Mr Nye’s remarks concerning capacity as at that time.
27 Mr Nye again examined the plaintiff on 27 January 2010. He recorded that there was no change in the plaintiff’s condition. He came to conclusions similar to those previously expressed, noting that there had been some evidence of improvement but significant impairment continued. He also stated, in comparatively blunt terms, “The worker’s condition arose out of and in the course of employment … Employment was a significant contributing factor with deterioration and requirement for surgical treatment, and enduring consequences … The worker’s condition is work-related”.
28 Despite the fact that the defendant had accepted liability in relation to the plaintiff’s injury, surgery and impairment, it appears to have been unhappy with the assessments and reports of the two neurosurgeons by whom it had the plaintiff assessed. Thus, on 18 May 2010 it opted to have the plaintiff assessed by another neurosurgeon, namely Mr Geoffrey Klug.
29 If the defendant had experienced little luck in obtaining a favourable report from the two neurosurgeons previously engaged by it, things only improved marginally for it with Mr Klug. Upon examination, Mr Klug noted that the plaintiff used a walking stick, and also noted some evidence of spasticity in both lower limbs, this being a little more marked on the right side. He also noted that both the right thigh and calf were thinner than the equivalent regions on the other leg. Indeed, he remarked that the plaintiff had been left with a significant ongoing physical disability. He expressed the opinion that there was permanent damage to the spinal cord resulting from compression by the cyst. He diagnosed partial paraplegia resulting from spinal cord damage.
30 In regard to work relationship, Mr Klug observed that Mr Pullar’s reports after the surgery made no mention of the relationship of the plaintiff’s condition to his employment. If that remark is intended to convey the impression that it can be inferred that Mr Pullar does not support such relationship, we know such impression to be erroneous. Mr Pullar’s evidence has made that clear. Indeed, whether such a remark need be made at all by Mr Klug is debatable and arguably may show signs of straying into the area of judicial determination.
31 Despite all of the above, Mr Klug then expressed the following opinion:
“I consider it is probably reasonable to consider that the contribution of his employment was significant in regard to the development of his condition”.
Incidentally, Mr Klug expressed the opinion that the plaintiff had a 30 per cent loss of function of the lower limbs and had 20 per cent loss of function of his back. Whilst these assessments are of no direct relevance to the present application, they are indicative of significant ongoing physical disability as described by Mr Klug. In his report of 26 May 2010, Mr Klug then went on to discuss capacity for employment, an issue to which I shall return.
32 Apparently not content with the views expressed in Mr Klug’s report, the defendant then sought from him some further comments, apparently without forwarding to him any additional material or arranging any further examination. Mr Klug reported again on 7 September 2010. On this occasion, he expressed the view that the spasticity was largely a consequence of the pre- existing cyst but that the traumatic event occurring during employment would be considered a minor component in regard to the current level of spasticity, the pre-existing condition being the main contributor. Apart from the fact that this might be seen as an unexplained shift in position from the view expressed only a few months earlier that the contribution of employment was significant in regard to the development of the plaintiff’s condition, it does not assist the defendant in an application such as this. Even if one accepted that the fall was a minor contributor to the current condition of the plaintiff’s thoracic spine and spinal chord with resultant spasticity, that would not avail the plaintiff. The fall need have done no more than materially contribute to the plaintiff’s entitlement to compensation and to the consequences of the relevant injury.
33 Further, in this supplementary report Mr Klug has expressed the opinion that in all probability the cyst would have slowly enlarged and induced the damage to the plaintiff’s spinal cord and that in the absence of any traumatic episode, at some stage the plaintiff would have required a surgical procedure of the type ultimately undertaken. The necessity for this surgery may have arisen in a period of approximately one or two years. This is also of no assistance to the defendant in a serious injury application. The definition of “injury” contained in s.5 of the Act specifically includes the aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. In addition, the irrelevance of a subsequent supervening event in the context of loss of earning capacity was determined by Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454. As pointed out by Mr Jewell, such matters may be relevant in the context of damages but play no part in the determination of a serious injury application – again, reference is made to the decision in Acir.
34 I have spent some time discussing the reports of Mr Klug because, in relation to causation, they represent the only feather with which the defendant even attempted to fly and such attempt was doomed before it could even be launched because of the wording of the Act and the state of the law. This should have been apparent. I would also point out that, if the views of Mr Klug were considered to be important, one might have expected that they would have been referred back to Mr Brownbill and Mr Nye for their consideration. This did not happen.
35 In summary, I accept without reservation the evidence of the operating neurosurgeon, Mr Pullar, with which the views of his fellow neurosurgeons, Mr Brownbill and Mr Nye, coincide, again pointing out that they were examining on behalf of the defendant. The orthopaedic surgeon, Mr Hunt, has arrived at a similar conclusion. The treating neurologist, Dr Tan, has stated that, given the temporal relationship between Mr Bates’ symptoms and the occurrence of the injury, it is likely that his condition is a consequence of that injury. Mr Tan has also commented that a spinal arachnoid cyst can be an acquired lesion resulting from spinal trauma and manifest as a late complication of the injury. It is clear from the balance of his report that the spinal trauma to which he is referring is the incident of 10 March 2006. The injury suffered by the plaintiff to his thoracic spine is damage to the spinal cord with resultant spasticity in both legs, this resulting from the compression of the chord by a spinal arachnoid cyst which was subsequently surgically excised. It cannot be said with certainty that such cyst existed prior to the traumatic event in question, although this would seem probable. What is clear is that such traumatic event led to the exacerbation and deterioration of the condition, if it was pre-existing, with resultant development of spinal cord compression and damage. That the accident at work on 10 March 2006 contributed to the plaintiff’s condition is a unanimous expert opinion and I accept the opinion expressed in simple terms by Mr Brownbill in his report of 1 August 2008 to the defendant, namely, “I consider that his present clinical condition has resulted from the work incident of 10th March 2006”.
36 Insofar as the injury sustained was in the nature of an aggravation, in accordance with the authorities it is the aggravated injury which I shall consider. Given that the plaintiff was completely free of relevant symptoms prior to the traumatic incident, the end result is that the consequences to be considered are, in essence, those which result from such incident of trauma.
37 I am satisfied that such consequences are permanent within the meaning of the Act. In his report of 1 August 2008, Mr Brownbill expressed the opinion that the plaintiff’s condition had stabilised and that if any further improvement occurred it would not be substantial. He also expressed the opinion that probably the plaintiff will not be able to return to employment in the future unless such employment did not involve heavy physical activity, repeated bending or forced spinal mobility. Whilst this is in essence an observation concerning capacity, it also embraces permanence.
38 In his report of 22 December 2008, Mr Nye stated that he considered the requirement for employment restrictions, having regard to the identified neurological findings with associated disability, would be likely to prove permanent. In his report of 27 January 2010 he stated that the plaintiff’s condition had stabilised.
39 Mr Battlay, examining on behalf of the defendant, was prepared to make assessments of permanent impairment, and also expressed the view that the plaintiff’s condition had stabilised.
40 Mr Klug, in his report of 26 May 2010, referred to permanent damage to the spinal cord, felt that the prospects of further improvement were negligible, and made percentage assessments of loss of function. Whilst, as stated, he modified some of his opinions without again seeing the plaintiff in his report of 7 September 2010, his attitude towards the permanence of restriction and impairment does not seem to have altered.
41 Mr Pullar expressed the view that the plaintiff’s prognosis is that he would make an incomplete recovery from his partial paraparesis, leaving him with significant ongoing lower limb dysfunction, whilst Mr Hunt stated as follows:
“Mr Bates’ total incapacity for work, in my view, should be assessed as permanent, as he has not recovered from the work- related injury which occurred on 10 March 2006. His incapacity will persist into the foreseeable future as it is unlikely that he will achieve any substantial recovery from his ongoing mechanical lower back and leg pain symptoms and lower limb weakness and ataxia.”
42 I am quite satisfied that the consequences of the plaintiff’s injury will persist for the foreseeable future and are thus permanent within the meaning of the Act.
43 Pursuant to s.134AB(38)(h), psychological or psychiatric consequences of a physical injury are only to be taken into account for the purposes of paragraph (c) of the definition, and are thus not to be taken into account in the present case. They shall not be so taken into account. However, I am not of the view that they are of any great consequence. Mr Nye referred to the suspicion of “a mild functional component” and a suspicion that the plaintiff suffered “an element of depression”. The report of Dr Dessauer of 14 March 2011 indicates that the plaintiff became depressed and in June 2009 was referred to a psychologist. The treatment provided by the psychologist was not found by the plaintiff to be useful. Anti-depressant medication has been prescribed for him by Dr Dessauer.
44 Dr Nathan Serry, consultant psychiatrist, examined the plaintiff at the request of his solicitors. His examination took place on 3 May 2011. To Dr Serry the plaintiff appeared somewhat depressed, anxious, apprehensive and frustrated about his physical condition, but there was no abnormality of thought stream or form, although there was some preoccupation with the sequelae of the injury which he had suffered. There were no psychotic features. Dr Serry noted that the medication taken by the plaintiff was a low dose of an anti- depressant. He also concluded that, on purely psychiatric grounds, the plaintiff could potentially work in suitable employment, but at reduced hours.
45 I should add three comments. Firstly, it would hardly be surprising if the plaintiff exhibited some signs of depression or concentration upon his injury and its sequelae, given what he has been through. Secondly, the plaintiff’s presentation in the witness box was far from florid. He appeared normal, with none of the indications of functional overlay that are seen from time to time. Thirdly, in the succinctly presented arguments on behalf of the defendant, there was little reference to psychological or psychiatric features of the plaintiff’s presentation, and it was not suggested that these loom large or are of any consequence or substance. Of course, in accordance with the Act, I shall not take into account those that do exist.
(2) Injury to the lumbar spine
46 By far the majority of the attention in this case was directed towards the injury to the thoracic spine and the resulting spasticity suffered by the plaintiff. However, it was made clear from the start that the plaintiff also relied upon injury to the lumbar spine. This was diagnosed by Mr Hunt as being aggravation of previously asymptomatic lumbar spondylosis. Mr Hunt regarded the plaintiff’s work injury as making a significant contribution to his mechanical lower back symptoms. Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who examined the plaintiff at the request of his solicitors on 21 December 2010, also attributed the plaintiff’s lower back pain problem to the fall. Whilst he considered the spinal cord problem as being the dominant cause of the plaintiff’s disability, he also remarked that the lower back problem remains present and continues to be a cause of disability. Given the conclusion at which I shall arrive, the injury to the lumbar spine requires little further attention. Suffice to say that I have no reason to doubt the opinions of Mr Hunt and Dr Clayton Thomas, but the mechanical injury to the lumbar spine has been largely overshadowed by the injury to the thoracic spine and its sequelae.
(iv) The plaintiff’s employment, retraining and other developments since the occurrence of injury 47 After the incident of injury, as previously stated, the plaintiff’s condition progressively worsened. He sought the medical treatment described above. He ceased work in approximately May 2007. Since then, he has done a basic computer course. He enrolled in a course apparently entitled ‘Introduction to Illustrations and Design’, but this course was cancelled. He had some contact with a rehabilitation provider called Crosslinks, but nothing came of this. That provider of occupational rehabilitation services did so in conjunction with the insurer of the defendant. It would appear to be Crosslinks that organised the courses referred to above. I note its report of 24 August 2009 which states that at times the plaintiff found it difficult to sit all day, but was very cooperative and “sticks with it”.
Ruling 48
Whilst the plaintiff has relied upon two injuries to the spine, in giving this ruling I shall be concentrating almost entirely upon the injury to the thoracic spine, the subsequent surgery, and the spasticity that has resulted from the injury. As should be apparent from the above discussion of the injury, I am quite satisfied that it and its consequences arose out of or in the course of the plaintiff’s employment with the defendant, and in particular in the incident of injury upon which reliance is placed. Accordingly, the following ruling relates to the injury to the thoracic spine and the resultant spasticity:
(i) Pecuniary loss damages 49
In my opinion the plaintiff has discharged the burden of proof in relation to leave to bring proceedings for pecuniary loss damages. I have arrived at this conclusion for the following reasons, which are not listed in order of importance of significance:
(a)
Dr Clayton Thomas is an expert consultant in rehabilitation and pain medicine. In this regard, I am bearing in mind the observations of the Court of Appeal in Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121. It is the opinion of Dr Thomas that the plaintiff could perform light sedentary process-type work with a limit of 5 kilograms lifting between waist and chest height in an appropriately set up ergonomic workstation, where he had flexibility to alter his posture when required. Even when so
(b)
Ms Margaret Leitch, who is a Bachelor of Applied Science in Occupational Therapy and who holds a Graduate Diploma in Rehabilitation Studies, on 9 December 2010 reported to the plaintiff’s solicitors that there is no recognised occupation in the open labour market for which the plaintiff is likely to qualify and which represents suitable employment. The opinion is also expressed that this situation will continue for the foreseeable future. I might say that Ms Leitch has provided a detailed report and a considerable amount of documentation was forwarded to her for her consideration. I accept her report and conclusions in relation to suitable employment and the plaintiff’s capacity to engage in same.
(c)
The plaintiff has sworn that, even if he could find some work, he does not believe he could perform it for more than a few hours a day. He has twice applied for a part-time telemarketing position of about 15 hours per week. Neither application was successful, and he believes he would have struggled with it in any event. As indicated, I regard him as a witness of truth, and his credit was not seriously challenged. In cross- examination he indicated that he did not believe that he could work in areas such as retail, sales or customer service. While saying it would depend on circumstances, he did not believe that he could work on a part-time basis as a shop assistant, sales assistant or the like. Given his credibility as a witness, I see no reason why his evidence in this regard should not be accepted.
(d)
In his report to the defendant of 1 August 2008, Mr Brownbill did not believe that the plaintiff had a capacity for employment at that stage, believed he would not be able to return to his previous employment, placed restrictions upon the sort of activities in which he could engage, and concluded that “There are no other interventions or initiatives that would enable a durable return to work”. In his supplementary report of 18 November 2008, Mr Brownbill stated that “I consider that if there has not been significant further improvement by mid 2009, then his condition would be stabilised and I would not anticipate that he will be able to return to work”.
The conclusion of Mr Nye in his report of 27 January 2010 was as follows:
“Finally I would comment that any future employment situation would have to be light with respect to physical demands, and any work situation should not demand prolonged unrelieved periods of either standing or sitting, and a lifting limit of 5 kg would be appropriate and such should not be conducted from below waist level”.
Mr Klug expressed the view, in his report of 26 May 2010, that he felt that employment as a sales person was the least satisfactory of the various employments suggested in relation to the plaintiff, but he believed that the plaintiff could cope with duties working as a receptionist or could be involved with product assembly within certain restrictions.
(e) The opinion of Mr Hunt in relation to employment capacity and as expressed in his report of 25 October 2010 was comparatively straight- forward and was as follows: “On assessment of Mr Bates, it is clear that he is profoundly disabled as a result of ongoing mechanical lower back and leg pain symptoms and a residual weakness in his lower limbs. He has difficulty with activities of daily living. It is likely that he will continue to have ongoing symptoms into the future and his ability to work would therefore not be possible. It is not possible for him to return to his pre-injury employment, nor would it be possible for him to return to any alternative employment with the pain and loss of function which he currently experiences”.
Mr Hunt went on to state that the plaintiff had a permanent and total incapacity for work, further observing that “It is unlikely that he will be able to return to his pre-injury employment or any other alternative employment in the future…”.
(f)
Mr Pullar, the operating surgeon, expressed the view that it was “very unlikely” that the plaintiff would be able to return to his previous work, but otherwise deferred to the opinion of the attending rehabilitation physician, Dr Samantha Kennedy. In her report of 6 October 2010, Dr Kennedy, who had not seen the plaintiff since 4 June 2009, pointed out that he was unable to return to light duties with the defendant, that a proposed course as a veterinary nurse was not feasible, given the lifting and standing involved, and that she had completed a Total and Permanent Disablement Claim Certificate in relation to the plaintiff’s superannuation.
(g)
In his reports of 7 December 2008 and 14 March 2011, Dr Dessauer, the treating general practitioner, has referred to such factors as the plaintiff being unlikely to regain full use of his legs; that he walks with a stick and fatigues quickly; that he requires daily pain medication and will do so for the foreseeable future; that he requires transport to all his appointments; that he has done some computer courses, but is unable to work in any position that requires lower body strength or coordination; that he is unable to mow his lawn; and that any work options are limited by his injury and a limited skill set.
(h)
The issue of the plaintiff’s loss of earning capacity did not receive a great deal of attention as part of the defendant’s case. I would refer to page 38 of the transcript, where, in Mr Klemens’ closing address, it received only what could be described as fleeting attention, almost as an after-thought. That is no criticism of Mr Klemens, who presented the defendant’s case in a concise and helpful way.
50 In summary, and bearing in mind what has been set out above, I am of the view that realistically the plaintiff’s capacity to earn income has been destroyed. I prefer and accept the views of Dr Clayton Thomas, Ms Margaret Leitch and Mr Hunt. Their opinions coincide with the impression which I formed of the plaintiff. As stated, I regard the plaintiff as a truthful witness. I would refer to his affidavits of 16 December 2009 and 19 May 2011. I accept his description of the symptoms, restrictions and consequences of which he complains and it has to be borne in mind that the only jobs in which he engaged prior to injury were physically demanding. In his affidavit of 16 December 2009, he swore that he did not believe that there was any work for which he was currently suited, and has described his symptoms at some length. In his subsequent affidavit he has referred to his ongoing problems, the fact that he has been unable to return to any work, and the fact that he believes he is incapacitated for all work. He believes that he would struggle with even part-time work in occupations such as telemarketing because of the sustained sitting involved. I might say that the conclusion at which I have arrived seems to me to sit comfortably with the opinion expressed by Mr Brownbill on behalf of the defendant and, viewing the situation realistically, to be not particularly remote from the view of Mr Nye. In short, the conclusion at which I have arrived is that the plaintiff’s capacity to earn income has been destroyed, and this will remain the situation for the foreseeable future.
51 I would also point out that, in arriving at this conclusion, I have concentrated only upon the injury to the thoracic spine and its consequences, including spasticity of the legs. Of course, the injury to the lumbar spine, and as described by Mr Hunt, produces its own set of symptoms and restrictions.
(ii) Pain and suffering damages 52 The plaintiff, having satisfied me in relation to the destruction of his earning capacity, and therefore being entitled to leave to bring proceedings for pecuniary loss damages, it is then unnecessary for me to consider pain and suffering damages and whether the burden of proof has been discharged in that regard. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to subsequent decisions. I might add that I would have no hesitation in finding that the burden of proof in relation to pain and suffering damages had been discharged in this application, and indeed, in essence, the contrary was not suggested on behalf of the defendant. Leave is also granted in that regard.
53 As I understand it, once the appropriate leave has been granted all injuries occurring in or resulting from the relevant incident of injury can form part of the ultimate case brought by the plaintiff. Accordingly, it is unnecessary for me to give separate consideration to the mechanical injury to the lumbar spine which the plaintiff also suffered and which has been commented upon by Mr Hunt and Dr Clayton Thomas.
Some further observations
54 The following observations are not reasons for the decision at which I have arrived. The reasons for my findings in favour of the plaintiff in relation to injury, causation of same and the burden of proof being discharged in relation to the consequences thereof have already been set out above. However, given what appear to be somewhat unusual aspects of the processing and defence of this application, I feel constrained to make the following remarks.
55 This Court deals with a large number of serious injury applications involving s.134AB of the Act. The majority of those involve the Victorian WorkCover Authority and its agents. The Victorian WorkCover Authority purports to be a Model Litigant and to act in accordance with relevant Guidelines. Doubtless it frequently does this. However, in the present case I am of the view that
56 The VWA elected to contest, persistently and vigorously, on the issue of causation a case which was ostensibly “open and shut”. It was so “open and shut” that the VWA had previously:─
(a) accepted liability in respect of payment of medical and like expenses; (b) accepted liability in respect of the required surgery for the compression of the plaintiff’s spinal cord; (c) accepted liability in respect of weekly payments for total incapacity; (d) accepted liability in respect of permanent impairment of the plaintiff.
It should also be noted that the plaintiff has been left on weekly payments of compensation. He continues to receive them.
57 I would refer to the observations of Ashley JA in the Court of Appeal decision of Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171, which observations are well-known to those practising in this area. To employ the terminology of Ashley JA, admissions such as those listed above 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. There was not the slightest attempt by the defendant to explain its conduct in making the various admissions of liability in the present case. Nevertheless, despite the above acceptances of liability and the overwhelming, effectively unanimous, weight of expert medical evidence in favour of the plaintiff, causation was
“On our reading of the material, Your Honour, there does not seem to be any dispute about causation in relation to the aggravation of the arachnoid cyst and the area of dispute we foresee is whether or not there is some sort of work he might be able to do.”
58 One could well understand how those advising the plaintiff had formed that view. Nothing by way of disagreement with or comment upon Mr Jewell’s proposition came from the other end of the Bar table. Indeed, when asked if he wished to make any comment about the issues (and there was no obligation upon him so to do), Mr Klemens declined the opportunity. Certainly there was no suggestion that Mr Jewell’s assumption was erroneous. Of course, as we know, the matter proceeded very much on the basis of the circumstances surrounding the injury and causation. Indeed, Mr Pullar, the treating surgeon, was required to attend court for the purposes of cross- examination by the defendant. In a detailed cross-examination he was not asked one question concerning capacity, prognosis or the like. Attention was directed entirely to the circumstances of injury and causation.
59 In his closing address, Mr Klemens quoted the observation of Mr Klug that “I do, however, believe that the fall is to some extent contributing to his current condition but that such is a minor component”. Mr Klemens went on to say that, “Now that’s the strongest that the defendant can put this matter in relation to the medical evidence …” I would refer to page 38 of the transcript. Having said that, Mr Klemens indicated that his submissions were at an end before remembering, or being reminded, that capacity had not been mentioned. As an apparent afterthought, there followed some very brief observations on the question of capacity. In his closing address Mr Jewell referred to what had been said by Mr Klug as being the highest point for the defendant, and pointed out that this was of no effect because apportionment of causation is an irrelevant issue for the purposes of serious injury applications. He referred to various authorities which advanced the proposition that there can be concurrent causes for the same set of consequences. As Mr Jewell put it, the causation question was dead. There would seem to be a strong argument that it was already in that condition before this case commenced.
60 I have gone at some length into the issue of the manner in which the causation issue was litigated by the defendant because I have been attempting to underline, if this is necessary, the virtually complete absence of support which the VWA had when litigating the issue to a conclusion, also bearing in mind the admissions already made by it. I shall return briefly to this aspect of the case after discussing another aspect of its processing and presentation also capable of causing concern and creating an unfortunate appearance.
61 What appears to have been done by the VWA in the present case bears the appearance of what is sometimes described as “doctor shopping” or, in this case, “neurosurgeon shopping”. It is not the role of a Model Litigant to continue to expend public monies pursuing medical reports from additional experts in the face of opinions adverse to it from experts already consulted in the hope that, sooner or later, someone will say something which gives it some comfort. That is particularly so in a case where liability has already been accepted and we have a comparatively young plaintiff who has undergone major surgery and been left with some spasticity. However, what occurred in the present case is that the VWA arranged an examination by and an opinion from Mr David Brownbill. His views gave it no comfort. It arranged examinations by and opinions from Mr Nye. It got a similar result. Having obtained no joy from either of those specialists, the VWA then chose to have the plaintiff examined again – not by either Mr Brownbill or Mr Nye but by another neurosurgeon, Mr Klug. I repeat that this is in a circumstance where liability has been admitted and in a case where there is absolutely no attack upon the credit of the plaintiff. Continuing, the report of Mr Klug of 26 May 2010, when the provisions of the Act and the existing law are considered, also gave the VWA no comfort. Accordingly, without any further material being provided and without the plaintiff being further examined, Mr Klug was pressed to provide another opinion. Whilst on its face this represented some modified view, again the defendant, the VWA and its agents were left with no feather with which to fly, as I have previously described it. Nevertheless, and principally on the issue of causation, the plaintiff, with his very significant spinal injury and resultant spasticity, for all of which liability had been admitted, was forced into Court and the matter proceeded accordingly.
62 In addition, Mr Pullar, doubtless a busy neurosurgeon, was required by the defendant to attend Court for the purposes of cross-examination. This request was made against the background set out above. Doubtless, it was not an inexpensive exercise, even if a fruitless one. Furthermore, as previously stated, Mr Pullar was brought to court at the public expense to answer questions only on an issue concerning which the VWA had basically no support from its own experts who implicated the relevant and uncontested incident of injury and the consequences that followed, and in a situation where there had been a number of admissions of liability with no attempt to retract them or offer any explanation in regard to them. I would again point out that the plaintiff remains on weekly payments of compensation.
63 If the “neurosurgeon shopping” reflected a “win at all costs” approach, that would be disappointing. It may be that there is some other explanation for what occurred, but it has an unfortunate appearance. It would be equally disappointing if, in the face of all that has been set out above, the VWA decided to contest the issue of causation and explore the circumstances of injury as some form of “testing the water” for future common law proceedings. I do not say with any certainty that this is what occurred, but the appearance of what took place could be interpreted in this way. I should add that I am in no way suggesting that Mr Klemens was doing anything other than conducting the defence in accordance with his instructions. I attach no blame to him. As I have earlier observed, Mr Klemens presented the case, rightly or wrongly put by the defendant, in a concise and helpful way.
64 In summary, in my view, the appearance of the manner of processing and presentation of this particular case by the VWA raises concerns. That is particularly so when its role as a Model Litigant is borne in mind. If it be the fact that it has failed to live up to the required standards, then that is a disappointment which I trust shall not be repeated.
Conclusion
65 The plaintiff is successful. Leave is given to him to issue proceedings in respect of both pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
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