Bekhit v Moorabbin Transit Pty Ltd
[2016] VCC 674
•31 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04500
| WAGEEH BEKHIT | Plaintiff |
| v | |
| MOORABBIN TRANSIT PTY LTD (ACN 006 755 648) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 May 2016 | |
DATE OF JUDGMENT: | 31 May 2016 | |
CASE MAY BE CITED AS: | Bekhit v Moorabbin Transit Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 674 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pre-existing lower back condition before 20 October 1999 – need to identify the lower back condition and its consequences – need to compare the pre-existing lower back condition and its consequences with the subsequent aggravation of the pre-existing lower back condition – claim that the compensable injury occurred between 20 October 1999 and 24 December 2011 – whether the compensable injury occurred in the course of employment – whether the compensable injury occurred in the course of employment and as a result of discrete incidents resulting in discrete injuries – aggregation of injuries – whether the consequences of the impairment of function of the lower back are “serious” in terms of pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985 (Vic), Civil Procedure Act 2010 (Vic), Evidence Act 2008 (Vic)
Cases Cited:Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70; Petkovski v Galletti [1994] 1 VR 436; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Makita (Australia) v Sprowles (2001) 52 NSWLR 705
Judgment: Leave granted for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr D Seeman | Tasiopoulos Lambros & Co |
| For the Defendant | Mr S O’Meara QC with Mr S Dawson | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-three-year-old man who was born in April 1963 in Egypt. He suffered an injury to his lower back which he says occurred in the course of his employment as a bus driver with the defendant.
2 The plaintiff’s application for serious injury is based upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). That is, that he has suffered a serious permanent impairment or loss of the function of his lower back.
3 Mr R McGarvie QC appeared with Mr D Seeman of counsel for the plaintiff. Mr S O’Meara QC appeared with Mr S Dawson for the defendant.
The issues
4 This application raised a multiplicity of issues. Before the commencement of addresses, I directed that the parties provide me with a statement of the issues on which they proposed to address me. By agreement, I was provided with the following:
“1.What is the injury for which leave is sought?
[Is it a back injury suffered in November 2011 as the defendant contends: see 1(a) in the particulars of injury at PCB27; or back injury suffered in the course of employment from 21 October 1999 through to 24 December 2011 as the plaintiff now contends; see Amended Draft Statement of Claim at PCB 22(a).]
2.What caused the injury?
3.Is the plaintiff totally incapacitated for work by reason of the injury?
4.Are the consequences of the injury otherwise ‘serious’?”
5 The first two questions require me to traverse a significant body of evidence to determine:
· The nature and extent of the condition of the plaintiff’s lower back prior to 20 October 1999.
· Whether the plaintiff suffered discrete injuries resulting from discrete incidents between 20 October 1999 and 28 November 2011.
The relevant legal principles
6 The proceeding commenced before another judge of this Court. It is unnecessary for me to say much about the exchanges between the judge and counsel who appeared before him. I will only say that counsel for the plaintiff submitted that the plaintiff’s ultimate injury occurred in the course of employment, and counsel for the defendant submitted that whatever injury the plaintiff ultimately suffered, occurred as a result of discrete injuries, resulting from discrete incidents.
7 The defendant appealed from what it perceived to be a “ruling” made by the judge.[1] The Court of Appeal considered that the perceived “ruling” was neither a “judgement” nor an “order” of this Court, from which an application for leave to appeal could properly be brought. I am not concerned with that. However, I am concerned with observations made by the Court of Appeal which are very relevant to the way in which the plaintiff attempted to conduct his application at that time, and whether it was permissible.
[1]Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70
8 On this issue, the Court of Appeal observed:
“There is clear authority for the two propositions that a plaintiff cannot, in a proceeding for leave under the Accident Compensation Act impermissibly aggregate the effect of different injuries to establish serious injury, and a plaintiff is only entitled to leave for an aggravation of an earlier injury if the aggravation itself satisfies the meaning of ‘serious injury’ (‘the two propositions’).”[2]
[2]Moorabbin Transit Pty Ltd v Bekhit (supra) at paragraph [13] – footnotes omitted
9 Counsel who appeared for the plaintiff in the appeal conceded the validity of both of the two propositions. In this application, it is the first of those propositions that is of immediate importance.
10 In Petkovski v Galletti,[3] Southwell and Teague JJ observed that an injured person may only recover damages for injuries which have resulted from a particular incident.[4]
[3][1994] 1 VR 436
[4]at 443 – 444
11 In Lu v Mediterranean Shoes Pty Ltd,[5] Chernov JA applied that principal:
“No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a ‘serious’ one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend upon whether they all affect the one body function and on whether they arise out of the same relevant incident.”[6]
[5](2000) 1 VR 511
[6]Lu at paragraph [26]
12 The peculiar facts of Lu are instructive in understanding his Honour’s observation. The appellant (the plaintiff) suffered an injury to his right elbow as a result of repetitive work in about July or August 1995. On 4 September 1995, he was struck by a mould weighing about 2 kilograms which fell one or two feet and struck him on the top of his right shoulder. On appeal, the plaintiff submitted that –
“… in combination they produced such an injury in that, together, they caused a serious long term impairment of a body function, namely, his right arm.”[7]
[7]Lu at paragraph [10]
13 To put his Honour’s initial observation into its proper context, he then observed:
“But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents. In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately. This follows from the principle stated by Southwell and Teague, JJ. in Petkovski, to which I have referred and from the operations of the provisions of the Act to which I have also referred.
Thus, the scheme of the legislation prohibits the relevant aggregation of two consecutive workplace injuries (neither of which is a ‘serious injury’) that have arisen from discrete incidents notwithstanding that they impair the one body function.”[8]
[8]Lu at paragraphs [27] – [28]
14 This reasoning has subsequently been applied in other decisions of the Court of Appeal. It represents the principle of law which I must apply.[9]
[9]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (Trading as Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309
15 Putting it simply, a worker who is on a production line, undertaking repetitive work, who is required to lift items from a conveyor, place the items in a box and then lift the box and place it onto a pallet, is involved in a number of identifiable movements which will place different levels of stress and strain on the spine. It would be artificial to say that because the injury occurred when the box was lifted and then placed on a pallet, that this is a discrete incident causing a discrete injury. It would be artificial to look at this in isolation from the whole of the work tasks which collectively impose the stresses and strains on the spine which caused it to breakdown at a particular time. It would be permissible, I think, to conclude that the work tasks constituted one transaction. Experience has shown that courts have readily determined what is and what is not an injury which arises in the course of employment.
16 I will now turn to the evidence which describes the plaintiff’s work tasks and the discrete incidents resulting in discrete injuries. On this, counsel for the defendant submitted that this evidence demonstrates that what the plaintiff is attempting to do is impermissible and contrary to binding authority.
The 1998 lower back condition
17 In his first affidavit sworn 14 May 2014, the plaintiff described the onset of his lower back injury in the following way:
“11.In 1998 my low back pain commenced. It came on quite quickly and radiated to my buttock. I went to my general practitioner who arranged a CT scan and I was referred to Mr Khan, Orthopaedic surgeon. I had physiotherapy for 2 weeks, took 4 week[s] off from work and then returned to normal duties. I lodged a claim form which was accepted.
12.From that time on I had back pain on and off but nothing that forced me to stop work.”[10]
[10]PCB 3
18 Under cross-examination, the plaintiff said that he slipped on the vinyl floor coverings of a bus. He disagreed that he suffered the onset of “very severe pain”.
19 Aided by a history recorded by Mr Lewis, rheumatologist, it was put to the plaintiff that he did not think he was injured, and for the following ten days had no symptoms until a day when he could not get out of his bus seat because of lower back pain. The plaintiff was unable to remember whether that was what happened. He denied that he was very disabled. It would appear that he suffered lower back pain, and pain radiating into his right leg. He agreed that he saw Dr Massarany, general practitioner; a physiotherapist; Dr Lewis, rheumatologist and Mr Khan, orthopaedic surgeon. The plaintiff was unsure how long he suffered pain, but believed that by about mid 1999, he had no further problem with his lower back or his right leg. He said that Dr Massarany advised him to undertake exercises, and to take care with bending, twisting and lifting.[11]
[11]Transcript 26 – 31
20 Dr Massarany recorded that the plaintiff had suffered “sharp and crippling” pain in his lower back radiating into his buttock and the whole of his right lower limb. The plaintiff rested for two weeks. He was provided with analgesics and anti-inflammatory medication and referred to physiotherapy. He made a recovery, returning to light duties with little pain except for an occasional twinge in his lower back and right buttock. Dr Massarany considered that the plaintiff had suffered an injury to his L4-5 disc.[12]
[12]Plaintiff’s Court Book (“PCB”) 34 – 35
21 The plaintiff saw Mr Khan on 12 August 1998. He recorded that the plaintiff had developed pain in his lower back and right buttock. He viewed a CT scan which demonstrated a disc prolapse at L4-5 with right-sided thecal compression. He referred the plaintiff to physiotherapy. When Mr Khan next saw him, the plaintiff had improved, complaining of a mild ache in his right buttock area.
22 Mr Khan last saw the plaintiff on 23 September 1998. He considered that the plaintiff had developed symptoms of chronic ligamentous strain to his lumbar spine; an insidious small disc lesion at L4-5 and a flare-up of mild degenerative arthritis in the facet joints at L4-5, particularly on the right side of the midline. At that time, Mr Khan considered that the plaintiff was fit to return to full duties as a bus driver.[13]
[13]PCB 30, 31 and 36 – 42
23 The plaintiff saw Dr Lewis in October 1998 when he was in the recovery phase from the injury. Dr Lewis advised the plaintiff to undertake an intensive exercise program, and that he undertake a back management program.[14]
[14]PCB 32 – 33
What occurred in 2004?
24 The plaintiff said that he returned to work without incident until 2004, when he suffered further problem with his lower back.
25 In his first affidavit, the plaintiff described the onset of the lower back injury as follows:
“13.On 27 August 2004 I was driving a bus which had a seat that could not be adjusted. The seat was too high and on an angle. I started at 7am and after 1 hour the pain was building in my low back. I rung in on the two way radio to tell them and they said to keep going until they could get another bus. I drove for 4 and-a-half hours in that position which forced me to extend my leg. I then drove back to the depot. I was taken directly to the doctor by my employer after another driver took over. I was referred for physiotherapy and had two injections into my back.
14.I had a short time off work and then returned to full time duties. My pain would continue, come and go, and the defendant would continue to pay for physiotherapy as needed. I would take time off using my sick leave and annual leave as needed.”[15]
[15]PCB 3
26 Under cross-examination, the plaintiff said that the seat in the bus he was driving was too high for his legs to reach the pedals, and it was on something of an angle. He was unable to adjust the seat because it was faulty. He was treated by Dr Mitchell, general practitioner. He was referred to physiotherapy and prescribed painkilling medication. He was then referred to Mr Moran, orthopaedic surgeon, who gave him two injections into his lower back. By early 2005, the plaintiff was back at work.[16] In apparent contrast to what he swore in his first affidavit, he said the following:
[16]Transcript 32-34
Q:“But by early 2005, you are back at work and you were fine, weren’t you?---
A:2005 I back to work, yes.
Q:And your back was fine by the time you got back to work?---
A:Yes. In that time, yes.”[17]
[17]Transcript 34, L12 – 15
27 Under re-examination, the plaintiff was shown a summary of attendances on Dr Mitchell, Dr Nan, general practitioner and Mr Thomas, physiotherapist, commencing on 28 August 2004 and ceasing on 17 February 2011. The purpose of the summary of attendances was to demonstrate that I should accept what the plaintiff said in his first affidavit rather than what he said in cross-examination, being that he had, in effect, recovered from the problem which occurred in 2004. The schedule demonstrates the following:
· Fourteen attendances in 2004 between 28 August and 20 November for medical and physiotherapy treatment.
· Nine attendances in 2005 between 31 January and 28 April for medical and physiotherapy treatment.
· Seven attendances in 2006 between 18 April and 28 June for medical and physiotherapy treatment.
· One attendance on 8 March 2007 for medical treatment.
· Eight attendances in 2008 between 20 June and 18 July for medical and physiotherapy treatment.
· Three attendances in 2009 between 19 August and 11 November for medical treatment.
· One attendance in 2010 for medical treatment.
· Five attendances in 2011 for physiotherapy treatment
28 The plaintiff first saw Dr Mitchell on 28 April 2004. He recorded a history that the plaintiff had experienced an episode of lower back pain in 2003[18] which responded to physiotherapy. On 28 April 2004, he recorded that the plaintiff presented with lower back pain, and stiffness associated with right thigh discomfort, which had come on or after driving a bus, and that he had problems adjusting his driver seat that day. He prescribed the plaintiff medication and referred him to physiotherapy. He also referred him to have a CT scan which he said showed multilevel disc narrowing with a suggestion of lateral recess compromise of the right L5 nerve root. He then referred the plaintiff to Mr Moran.
[18]His reference to 2003 should be read as “2004”
29 Mr Moran recorded a history that it was a seat that could not be adjusted appropriately which caused the plaintiff’s lower back pain. He considered that a CT scan taken on 11 September 2004[19] showed evidence of L5-S1 disc degeneration with a central to right-sided prolapse complicating longstanding marginal osteophytes on that side.[20] He considered that the plaintiff’s employment as a bus driver, requiring him to sit on a rigid seating which was not adjustable, contributed significantly to an aggravation of underlying age-related degenerative changes in his lower back.[21]
[19]PCB 101
[20]PCB 44
[21]PCB 100 (a) – 100 (b)
30 Dr Mitchell saw the plaintiff subsequently:
· In November 2004, with right sciatica.
· On 31 January 2005, stating that his lower back was improving, which permitted him to return to modified duties. He also noted that the plaintiff had ongoing physiotherapy and hydrotherapy, and returned to full-time driving duties in March 2005, although he continued to experience mild symptoms of lower back pain at times.
· On 28 April 2005, he reported feeling depressed and anxious because of his lower back condition.
· On 14 June 2006, he reported developing sharp right lower back pain while driving. His condition improved and he resumed normal duties on 3 July 2006.
· On 20 June 2008, he reported developing lower back pain after performing stretching exercises. He was prescribed medication and was referred to physiotherapy. He was also off work for a few days.
31 The plaintiff subsequently saw Dr Mitchell for some unrelated medical conditions. He then did not see him again after 20 January 2011.[22]
[22]PCB 100
32 In his first affidavit, the plaintiff said that he had a short time off work before returning to his full-time duties. Under cross-examination, he said that he returned to work by early 2005.[23] It may have been about March 2005.[24] It would appear that the plaintiff continued to experience pain which he said would “come and go”. He resorted to some medical treatment, and intermittent physiotherapy treatment which I have summarised above. He added that he was absent from his employment because of lower back pain, and when he was absent, he used his sick leave and annual leave “as needed”.
[23]Transcript 34
[24]Transcript 41
What occurred between 2004 and 2011?
33 Under cross-examination, the plaintiff said that he saw Dr Mitchell and Mr Thomas following what occurred in 2004. A series of entries in the medical records of Dr Mitchell were put to the plaintiff relevant to treatment he sought for lower back pain. The following was put to him:
· On 14 June 2006, he attended Dr Mitchell, who noted that the plaintiff’s lower back was “a bit stiff”, and when he sat back, presumably on the seat in the bus, he was met with “sharp” right sided lower back pain. Dr Mitchell noted on that occasion, that the plaintiff had been “generally” symptom-free for the previous twelve months.[25]
· On 15 June 2006, he telephoned Dr Mitchell and informed him that he had experienced “sharp” lower back pain when he went to the toilet. His clinical note reads that the plaintiff was experiencing spasm and had been “severely limited” since the event of the sharp pain.[26]
[25]PCB 121 and Transcript 41 – 42
[26]PCB 121 and Transcript 41 – 42
34 The plaintiff was unable to recall any of the above. While under cross-examination, he said that what was being put to him “happened to me too many times”.[27]
[27]PCB 121 and Transcript 42
35 I have read the balance of the clinical notes of Dr Mitchell around June 2006. The plaintiff saw Dr Mitchell on 19 and 26 June 2006 and 3 July 2006. He improved reasonably rapidly, to the point where, by 3 July 2006, he was given a “full clearance” by Dr Mitchell, which I take to mean that the plaintiff had no incapacity for his employment as a bus driver.[28]
[28]PCB 121 – 122
36 Under cross-examination, the plaintiff was asked about seeing Dr Mitchell on 20 June 2008. He said that he liked to “stretch myself” when he had a few minutes, presumably during the time he was occupied bus driving. On that occasion, when he was stretching, he suffered lower back pain. He saw Dr Mitchell on that one occasion, and then had some physiotherapy.[29]
[29]PCB 122 and Transcript 42 – 43
37 Under cross-examination, the plaintiff said that there were occasions subsequent to 2008 that he suffered lower back pain for which he obtained treatment:
· On 11 November 2009, he saw Dr Nan, general practitioner, who recorded that the plaintiff was suffering lower back pain aggravated by the nature of his work.[30] He referred the plaintiff to have a CT scan.[31] The radiologist commented on the CT scan that there were multiple level disc bulges which were worse within the central aspect of L5-S1 and the paracentral aspect of L2-3 level. He did not comment on L4-5 specifically, but the CT scan demonstrated, among other things, a moderate posterior circumferentially disc bulge with mild “compromisation” of the spinal canal.[32]
· In 2010, due to further lower back pain. The cross-examination took up part of the opening of counsel for the plaintiff, who referred to an incident/injury register entry made by the plaintiff on 23 August 2010 for lower back pain experienced by the plaintiff on 14 July 2010, in which the plaintiff reported suffering a sore back whilst driving bus.[33]
[30]Transcript 43
[31]PCB 124(b)
[32]PCB 103
[33]Transcript 6 and 43; PCB 131
38 The plaintiff did not appear to have a specific recollection of each of those occasions, but he did accept that he was working full time on unrestricted duties through 2008 to 2011.
39 In his first affidavit, the plaintiff described what occurred on 28 November 2011 as follows:
“15.On 28 October 2011 I was driving a bus along Clayton Road. I was constantly twisting as usual and sitting for prolonged periods. I bent over to pick up coins as a passenger was not careful when giving me change. As I bent over I developed severe and immediate pain in my low back and right leg to my heel. I requested a replacement immediately. I was told to drive slowly until I could be replaced. I had difficulty pressing the brakes and called the defendant again to tell them this. I was told I had no choice but to drive until I go[t] to Southland Shopping Centre. I drove for 3-4 hours in excruciating pain … .”[34]
[34]PCB 3
40 Under cross-examination, the plaintiff described what occurred in more detail:
Q:You were in your seat, so you bent right down to the ground, is that right?---
A:No, not really, I can’t bend, it’s too tight to bend, that’s why I [am] sitting. It’s too tight in the bus driver seat. The room around the seat is too tight.
Q:How did you bend down then?--
A:I try to stand half, like half the knee and try to bend it to get the coin.
Q:Did you get the coin?---
A:I did get the coin.
Q:As you are getting the coin, is that when you felt the pain?---
A:When I start to stretch myself, when I get back to normal position.”[35]
[35]Transcript 47, L1 – 11
41 The plaintiff returned to work on light duties on 12 December 2011. He worked for two weeks in extreme pain. It would appear that he stopped working altogether at the end of December 2011.
The Plaintiff’s claim
42 Following the Court of Appeal’s judgment, the plaintiff filed a Draft Amended Statement of Claim[36] which characterises the tasks he was required to perform as arising in the course of employment, as opposed to discrete incidents resulting in discrete injuries to his lower back in 2004 and 2011.
[36]PCB 22(a) – 22(d)
43 Paragraph 4 is pleaded as follows:
“4.Throughout the course of the Plaintiff’s employment from 21 October 1999 through to 24 December 2011 the Plaintiff was required to drive buses which included the use of ergonomically unsound or faulty seats and required awkward and repetitive movements (‘the work’).
Particulars
The work included:
a) sitting in ergonomically unsound or defective bus seats for extended periods;
b) frequent twisting, including to receive and hand money and tickets to customers;
c) Picking up fallen coins;
d) Bending to utilise the ramp for disabled customers;
e) Lifting prams and shopping trolleys.”[37]
[37]PCB 22(b)
44 In written submissions, which I directed the parties to provide, counsel for the plaintiff submitted that each of the following tasks are capable of being characterised as arising in the course of employment:
“1.The plaintiff work[ed] on average 44 base hours per week and overtime (PCB 2 para 7).
2.The plaintiff’s duties involved frequent twisting, picking up coins, assisting disabled people (PCB 2 para 8).
3.Being seated for extended periods of time (PCB 2 para 9).
4.Lifting heavy prams and pushers and shopping baskets (PCB 2 para 10).
5.After 1999, the plaintiff had no back pain until 2004 (T 31). After 2004 the plaintiff suffered frequent back pain that varied in severity depending on the activities that he was doing giving rise to a need for physiotherapy (PCB 7, para 8) which he had on a regular basis between 2004 and 2011 (T. 41).
6.The sitting on a faulty chair in August 2004 was not an isolated incident. The plaintiff frequently drove with faulty seats, probably 2-3 times per week. The plaintiff complained about faulty seats and was occasionally given a different bus (PCB 10 (e)). Likewise the particular incident in November 2011 was not an isolated incident (PCB 7 para 10). Coins could need to be picked up ‘two, three times a day’ (T22 1.10). These were incidents which caused the plaintiff back pain (PCB 7 para 10).
7.The plaintiff attended to various general practitioners and physiotherapy between 2004 and 2011 for treatment to his back (see aide memoire & PCB 10(d)-e).[38]
8.On 11 November 2009 the plaintiff specifically complained to his general practitioner that he had back pain as a result of the nature of his work being repetitive and sitting on faulty seats (PCB 10(e) para 3b & PCB 124(b)).
9.The plaintiff had days off from work due to back pain between 2004 and 2011 (PCB 10(b) para 5). He had many days off due to back pain when he was not given a certificate (PCB 10(e) para 4). He was off work ‘too many times – several times in that time between 2004 and till 2011’ (T. 42).
10.The plaintiff filled out many fault forms mostly due to faulty seats (PCB 10(f)).”[39]
[38]The aide memoir referred to as the same document referred to in paragraph 28 above
[39]Counsel for the defendant made a reply to the submission in which they maintained the position which they put to me in their final address
45 Additionally, the plaintiff relied upon the affidavits of Chris Kesidis, sworn 4 January 2016,[40] Madeleine Bekhit, [41] and Amgad Hanna, sworn 26 April 2016.[42]
[40]PCB 10(z) – 10(aa)
[41]PCB 10(w) – 10(y)
[42]PCB 10(ab) – 10(aq)
46 Despite the draft pleadings and the written submissions, what I am concerned with is the evidence on which the plaintiff’s application is based, not the way in which his legal advisors have attempted to interpret the facts to structure a common law claim. The evidence of what work the plaintiff actually did which was the cause of his injury is contained in his first affidavit:
“7.My base hours at the defendant was 4 days per week, from 10-12 hours per day. On average I worked 44 base hours per week. I also worked overtime which was either and (sic) additional 1 or 2 days per week. My overtime days were also 10-12 hours.
8.My duties required me to engage in frequent twisting. This was because I had to twist to get money from passengers and to hand money back to them. I also had to twist to give them a ticket and frequently had to twist to get the timetable from the ground. The seat did not rotate. Often coins would fall and passengers were reckless when giving money. I would then need to bend to pick up the coins. When disabled people entered the buses I would then need to bend to get the ramp to fold it out.
9.The role also required me to be seated for many hours at a time, often up to 4 hours and 50 minutes before having a break. I also had to sweep the buses at the end of the day.
10.My role also required me to lift prams and pushers. The prams would have young children in them. I would need to bend to reach the front of the pram and walk backwards onto or off the bus to assist. The shopping baskets were heavy and I believe that many people would over fill their baskets knowing that the buses drivers, including myself, would assist. I had to assist passengers, it was part of my role, and it was the common subject of complaint if drivers didn’t assist.”[43]
[43]PCB 2
47 The dominant tasks which the plaintiff says contributed to his lower back injury were sitting for long periods and twisting while seated. That resonates in what I have referred to in his first affidavit, and in the histories recorded by his treating medical practitioners and a number of medico-legal medical practitioners.
48 I was referred to the affidavit of Mr Bryan Gwynne Tudor, sworn 28 April 2016. In this affidavit, Mr Tudor, essentially, provided an answer to the plaintiff’s affidavits relevant to the work which the plaintiff undertook, and the difficulties which the plaintiff says he had undertaking that work.[44] To the extent that his evidence conflicts with the plaintiff, I prefer the evidence of the plaintiff, because it was tested under cross-examination.
[44]Defendant’s Court Book (“DCB”) 259a-259c
The medical evidence – causation
49 When the plaintiff saw Mr Moran in relation to what happened in 2004, Mr Moran considered that it was the rigid seating which was not adjustable which was a significant contributing factor to an aggravation of the underlying age-related degenerative changes in the plaintiff’s lower back.[45]
[45]PCB 100(b)
50 When the plaintiff saw Mr Xenos in relation to what occurred in 2011, he obtained a history of what occurred in 1998 and 2004. On the basis of this history, Mr Xenos described what occurred in 1998 and 2004 as constituting a “flare up”.[46]
[46]PCB 57
51 Mr Xenos was asked for his opinion about the cause of the plaintiff’s lower back injury. Relevantly, he said:
“With regards to his employment from 2004 to 2011, I would be of the opinion that the patient’s employment and in particular working as a bus driver in the seated position, has been a significant contributing factor to the development and/or aggravation of his lumbar spine injury … .
Finally with regards to his employment, even if this gentleman was prone to having underlying primary lumbar spondylosis of a degenerative nature, his employment with prolonged sitting, be it in a normal or dysfunctional chair with the seat, could also contribute to aggravation of his spinal injury.
That being the case, it is likely that the patient’s lumbar spondylosis and specific right L4-5 disc prolapse in part does relate and can be attributed to his employment as a bus driver, and the prolonged sitting required.”[47]
[47]PCB 100(f) – 100(g)
52 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 11 September 2012, 4 April 2013 and 19 June 2014. He was not given a detailed history of what actually occurred in 2004 and 2011. The opinions he provided appear to me to be limited to the nature and extent of the plaintiff’s injury and the extent to which it causes him pain and disablement.[48]
[48]PCB 76 – 84
53 Mr Brownbill, neurosurgeon, examined the plaintiff on 20 March 2013 and 13 May 2015. He recorded a history that the plaintiff was exposed to frequent back twisting and prolonged sitting. He specifically referred to the plaintiff having an abnormal feeling in his lower back when picking up coins off the floor of his bus.[49] On the information he had been provided, he considered that the plaintiff’s employment was a significant contributing factor to the aggravation of pre-existing lumbar spine degenerative changes.[50]
[49]PCB 86
[50]PCB 89
54 Dr Awad, neurosurgeon, examined the plaintiff on 9 October 2015. He recorded a history of what occurred in 2004 and 2011. He considered, firstly, that because of the nature of the plaintiff’s repetitive and demanding workplace activities, his employment was most likely a significant contributing factor to the aggravation of lumbar spondylosis, and secondly, that the plaintiff’s “injuries” were related to his employment from October 1999 through to 28 November 2011.
55 I should add at this point that counsel for the defendant attacked the opinion of Dr Awad on the basis that it failed to comply with the requirements of s79 of the Evidence Act 2008 and the well-known and very helpful thesis of Heydon J in Makita (Australia) Pty Ltd v Sprowles.[51] I do not agree. It is a well-accepted practice that medico-legal experts obtain a history, conduct an examination, take into account relevant radiology and other tests, and then express an opinion in serious injury applications without the necessity to resort to an opinion in strict compliance with Order 44 of the County Court Civil Procedure Rules 2008. To now require strict application of s79, an Order 44 would be to turn these applications on their head and undo the hard work of Judges of this Court to apply the provisions of the Civil Procedure Act 2010 and their intended purpose.
[51](2001) NSWLR 705 at paragraph [85]
56 That is not to say that there are no circumstances where the submission made by counsel for the defendant should be applied, and even perhaps strictly. However, I have examined the premise upon which Dr Awad proceeded and his process of analysis and reasoning, and I have come to the conclusion that there is no merit in the submission. His report and the opinion expressed in it seems to me to have none of the defects submitted by counsel for the defendant.
57 The defendant included a number of medical reports in its Court Book, but it was really the opinion expressed by Mr Jones, orthopaedic surgeon, on which counsel for the defendant concentrated. I propose to do the same, and I should add that most of the reports in the Defendant’s Court Book were either stale or did not condescend adequately or at all to the question of causation.
58 Mr Jones examined the plaintiff on 12 July 2012. He dealt with each of what occurred in 1998, 2004 and 2011. He considered that what occurred in 1998 was a “straining injury” to a disc which was already abnormal. He considered that what occurred in 2004 was a temporary aggravation of the same disc abnormality, and a flare-up of the 1998 injury. He considered that what occurred in 2004 had resolved and no longer contributed to the plaintiff’s ultimate injury which occurred in 2011. He considered that what occurred in 2011 was a prolapse of a degenerative disc, which he described as “a new and significant event”. He did not consider that what occurred between 2004 and 2011 suggested that the general nature of the work undertaken by the plaintiff was a significant contributing factor to his current situation.[52]
In the course of employment versus discrete incidents
[52]DCB 138 – 140 and 140a – 140b
59 Attempting to formulate a universal thesis which demonstrates the distinction between an injury arising in the course of employment, as opposed to a discrete incident resulting in a discrete injury, has its difficulties. I think I have said enough about that in paragraph 15 above.
60 I accept the plaintiff’s evidence that his dominant work task was sitting for long periods of time. He was cross-examined at some length about how long he sat while driving a bus on particular bus routes, but even if he drove for varying periods of time on different bus routes, he was nonetheless sitting for significant periods of time each day.
61 I accept the plaintiff’s evidence that while seated, he was involved in frequent episodes of twisting. It must be remembered that he was sitting on a seat that did not rotate, so he would have engaged in a rotational movement of his spine with his buttocks and legs mostly in a fixed position.
62 In his first affidavit, the plaintiff also referred to lifting prams and pushers, assisting passengers, lifting shopping baskets, operating a ramp and sweeping the bus. However, in his Amended Draft Statement of Claim, and in his counsel’s written submissions, none of this was said to have resulted in a discrete incident causing an injury to his lower back. There is simply no evidence that this contributed in any way to the ultimate injury to the plaintiff’s lower back.
63 There seems to be almost complete harmony in the opinions of Mr Moran, Mr Xenos, Mr Brownbill, Dr Awad and Mr Jones. That is, that at the time when they examined the plaintiff, with the assistance of radiological studies, the plaintiff had obvious and identifiable degenerative changes in his lower back.
64 Mr Moran was acutely aware of that, because he recorded the plaintiff’s past history of lower back pain in 1998. He subsequently referred to evidence of L5-S1 disc degeneration. Otherwise, I refer to my longer summary of Mr Moran’s opinion set out above. Likewise, that is consistent with the analysis of Mr Xenos, Mr Brownbill, Dr Awad and Mr Jones.
65 From the summary I have given of their opinions, I think it is reasonably plain that each implicated the plaintiff sitting for long periods of time with episodes of twisting as the dominant cause of the plaintiff’s injury. I am more influenced by the opinion of Mr Xenos who, whether he was specifically asked or not, put what occurred in 2004 and 2011 into their proper perspective in the development of the plaintiff’s lower back injury, that is, that they constituted flare ups. I infer that by using the description “flare ups” that Mr Xenos was using, as distinct from a discrete incident resulting in a discrete injury.
66 For the sake of completeness, I do not accept Mr Jones’ opinion that the general nature of the plaintiff’s work was not a significant contributing factor to the development of his lower back injury.
67 By 20 October 1999, the plaintiff had developed a lower back condition diagnosed by Mr Khan, which I have summarised in paragraph 21 above. Mr Xenos was aware of the CT scan which assisted Mr Khan in making a diagnosis. He was also aware of the MRI scan taken on 30 January 2012.[53] A comparison between what was shown on the CT scan and the MRI scan is that the disc injury diagnosed by Mr Khan was a small disc lesion at L4-5 and a flare-up of mild degenerative arthritis in the facet joints at L4-5, particularly on the right side of the midline. Also, the disc injury diagnosed by Mr Xenos was “a rather large focal” right L4-5 disc prolapse with the suggestion of a sequestrated fragment causing significant L5 nerve root compression. This is precisely what Mr Xenos found upon operation.[54]
[53]DCB 188 – 189
[54]PCB 100(d)
68 The plaintiff was able to tolerate his initial lower back condition when he returned to work in 1998 until the flare-up of 2004. He then suffered a grumbling back problem until 2011 when the degenerate L4-5 disc progressed because of the plaintiff’s sitting and twisting to a full prolapse.
Consequences
69 On the basis of the findings that I have made thus far, I am satisfied that the plaintiff suffered a significant aggravation of the pre-existing degenerative changes in his lower back between 20 October 1999 and December 2011. I am satisfied that the nature and extent of the aggravation alone has caused the pain and suffering consequences and loss of earning capacity consequences which I will summarise below. I am satisfied that each of those consequences are at least very considerable in meeting the relevant statutory test of seriousness.
Pain and suffering
70 There was no issue regarding the plaintiff’s creditworthiness and reliability. In any event, even if there was a hint of those two factors being an issue, I find that the plaintiff was not only creditworthy and reliable, but was also a refreshingly candid witness.
71 I accept all of the consequences which the plaintiff says have flowed from the impairment of function of his lower back.[55] In summary, they are:
[55]PCB 4 – 5 and 8 – 10
· Constant pain.
· Limitation on sitting of about 15 to 20 minutes before the pain becomes severe and at times intolerable.
· A shooting pain into the right leg.
· Limitation on standing to about 30 minutes, with standing in one position causing an increase in pain.
· Limitation on undertaking domestic tasks, such as gardening, helping his wife with cooking and cleaning, and avoidance of vacuuming and sweeping.
· Limitation on shopping trips which see him struggle with shopping items that are moderately heavy.
· Limitation on driving to about 30 minutes.
· Limitation on his ability to pay billiards which he played each day when working and on weekends.
· An inability to play social games of table tennis.
· Waking in pain most nights of the week. On particularly bad nights, waking three or four times during those nights.
· Intimacy with his wife is less frequent and difficult.
· Sale of his house in about 2014 because he is unable to afford to maintain it due to being off work.
· Presently using a number of types of painkilling medication: Lyrica three or four times a week; Targin once a night, and Panadol Osteo four to six times each day. The plaintiff ceased using Lyrica every night about three or four months ago. He also ceased using Mobic because of concerns over it causing kidney problems.
· Targin is accompanied by dizzy spells and fainting.
72 The plaintiff has had significant and extensive medical treatment since he underwent surgery. I accept his evidence that he suffers from a level of pain which demands treatment with a large raft of painkilling medication.
73 The plaintiff last worked in late December 2011. I accept that he is effectively totally incapacitated for work as a bus driver, and for any alternative or suitable employment. I will set out my reasons for reaching that conclusion in more detail below.
74 What the plaintiff has lost can be described as being “at least very considerable”. He is in constant pain which interferes with his mobility, ability to sleep peacefully, and ability to engage in all of the activities of a social, domestic and intimate nature which were the fabric of his life. His resort to such a large raft of medication is of itself a demonstration of the degree of his pain and the lengths he needs to go to try to control it. Additionally, he has lost a part of his life which was no doubt central and important to his existence, that being, his capacity to engage in worthwhile work which gave him financial independence. He has retained very little of his former capacity to engage in social, domestic, recreational and vocational activities.
75 I have no difficulty at all in concluding that the pain and suffering consequences of the impairment of the function of the plaintiff’s lower back are “at least very considerable” after making a comparison with like impairments, as I am required to do.
Loss of earning capacity
76 I also have no difficulty at all in concluding that the plaintiff is totally incapacitated for work as a bus driver, and for any other alternative and suitable employment.
77 The plaintiff is now fifty-three years of age. English is his second language. His competence with the English language is basic, but he can speak and understand English reasonably well. The basic nature of his competence is that his pronunciation is sometimes difficult to pick up, and grammatically, his sentence construction and responses to questions has a basic element to it. One only needs to read the transcript for that to be demonstrated very clearly.
78 The plaintiff was occupied in the work of bus driving from July 1995 to November 2011, and for a short time thereafter to late December 2011. He has no other transferable skills.
79 Counsel for the defendant cross-examined the plaintiff on the basis, for example, that he had a residual capacity for work as a radio operator at a base operated by the defendant, or by similar bus companies. I was referred to the affidavit of Ms Cheryle Ann Colbran, sworn 19 October 2015. Ms Colbran, essentially, describes the tasks involved in the job of radio dispatcher in the context of a vocational assessment she was provided with, which was undertaken in assessing the plaintiff’s capacity for work.[56] I was also referred to the affidavit of Mr Milenko Pelemis, sworn 16 October 2015, in which he, essentially, considered that the plaintiff’s facility with the English language was sufficient to work as an operations supervisor and/or a customer service person, which are jobs referred to in the vocational assessment.
[56]DCB 242 – 244, on the vocational assessment at DCB 246 – 257
80 Counsel for the defendant submitted that the plaintiff has made no effort of any kind to return to suitable employment, or to re-train or re-educate himself in some form of suitable employment. He submitted that if I am satisfied that the plaintiff has some residual capacity for work which he can exploit, then his application relevant to loss of earning capacity must fail.
81 I do not accept that a man who is in intractable pain, who requires such a large raft of medication to treat and control the pain, who has a very limited capacity to sit, stand and walk, and who suffers serious adverse consequences of the use of some medication can conceivably obtain employment and retain it. All of the limitations on the plaintiff’s mobility would militate against him doing a job, for example, as a radio operator which would no doubt require him to occupy a position for a set period of time and would also probably require him to sit for lengthy periods of time. The plaintiff may have some difficulties communicating through a radio system, but I do not consider they would be great. In any event, whether the plaintiff can or cannot is relatively immaterial because other factors militate towards him being unable to return to alternative or suitable employment.
82 In the end, whether I accept that the plaintiff has a residual capacity for work or whether he is otherwise totally incapacitated, depends upon two factors. Firstly, whether I believe the plaintiff, and I do, and secondly, whether there is medical support for the proposition that he is so seriously disabled. I think the second issue has been put to bed by an opinion expressed by Mr Xenos, which I unreservedly accept:
“… the patient’s prognosis is somewhat guarded, but it will involve persisting mechanical and muscular back pain, infrequent right leg pain, and the fact that he hasn’t returned to his employment so many years down the track despite a prolonged attempt at rehabilitation, I think it is likely that the current state of affairs has stabilised and will continue to be indefinite, and for that reason, he will never return to his pre-injury employment, and because of inability to sit, stand and bend for too long, I think it is most unlikely he will return to any future employment. Apart from the continuation of the use of heat, massage, acupuncture, physiotherapy, hydrotherapy and pilates, or conservative medical therapies to manage chronic pain rather than to cure it, there are no plans for any investigations or surgery on my part.”[57]
[57]PCB 100(g)
83 I consider that opinion to not only be compelling, but to be a very well-considered assessment by the operating surgeon of the plaintiff’s post-surgical state, in terms of a retained capacity for alternative or suitable employment, and the need for continuing medical treatment.
Conclusion
84 In conclusion, I order that the plaintiff be given leave to bring a proceeding at common law to recover damages for both pain and suffering, and loss of earning capacity.
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