Bentara v Toyota Motor Corporation Australia Limited
[2016] VCC 441
•21 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05197
| JAYANTHA BENTARA | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 March 2016 | |
DATE OF JUDGMENT: | 21 April 2016 | |
CASE MAY BE CITED AS: | Bentara v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 441 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering only – injury to the cervical spine – causation – disentangling – credibility of the plaintiff – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Shine Lawyers |
| For the Defendant | Mr D Churilov | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant, Toyota Motor Corporation Australia Limited (“Toyota”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function;
… .”
5 The body function relied upon in this application is the cervical spine.
6 The plaintiff relied upon four affidavits, three sworn by the plaintiff on 5 June 2014, 24 November 2015 and 17 March 2016, and an affidavit of his son, Isuru Indrakeela Bentara, sworn 24 November 2015.
7 The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff and the evidence of the other witness. However, I will refer to the relevant evidence of the plaintiff and his son in my reasoning. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
8 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
9 Secondly, causation was an issue. The neck injury arising in the course of the plaintiff’s employment was in the nature of a soft-tissue injury which has since resolved and the plaintiff suffers from the effects of age-related progressive degeneration.
10 Thirdly, the plaintiff suffers from Carpal Tunnel Syndrome affecting his left hand which results in various non-compensable consequences which must be disentangled.
11 Fourthly, the plaintiff’s credit was in issue.
Credit of the Plaintiff
12 Counsel for the defendant submitted that the plaintiff’s credit was in issue, that is, he was an evasive witness, gave unconvincing evidence on a number of important aspects, was keen to give evidence in a manner to suit his case and gave non-responsive answers when asked simple questions. Counsel also submitted that the plaintiff exaggerated his consequences in his affidavit material when compared to his evidence in Court. Further, as a result of his evidence, it was submitted he demonstrated he was capable of lying to advance his cause. In particular, the plaintiff did not disclose his neck injury to doctors who examined him for the purposes of the licensing renewal process pursuant to the Victorian Taxi Licence Directorate.
13 In considering the credit of the plaintiff, I must consider the evidence as a whole.
14 The plaintiff was born in Sri Lanka and moved to Australia in 2001. Prior to 2001, the plaintiff had visited Australia on numerous occasions, staying for extended periods of between seven months to nineteen months. During these visits, the plaintiff obtained a certificate in automobile mechanics, recognised in Australia, as well as completing a certificate of spoken and written English and a forklift refresher and test. English is his second language. The plaintiff gave his evidence through an interpreter but, on occasions, answered without the assistance of an interpreter. He attended some medical examinations with an interpreter. I accept that, on occasions, the plaintiff did not answer questions directly. On a number of occasions, the plaintiff volunteered information that did not respond to the question asked. This behaviour was exhibited when questioned by both counsel.
15 On occasions, he offered more information than was necessary. I did not find this was a deliberate attempt by the plaintiff to evade answering questions, but was more reflective of a person who was in unfamiliar surroundings, who was not accustomed to answering questions directly, and although he had an interpreter, he answered some questions in English, his second language.
16 The plaintiff was criticised for failing to disclose in his affidavits the treatment he received between late 2006 and 2010 while in Sri Lanka. The plaintiff said he disclosed the information to his solicitor, if it was not included in his affidavit, it was not his fault. He said if his affidavit was in Sinhalese, he would have remembered when he read his affidavit.
17 The plaintiff’s evidence about his treatment in Sri Lanka was that once the defendant ceased making payments to the plaintiff, he travelled to Sri Lanka, where he received herbal treatment to the left side of his neck and back. He attended Mr Senabanda every two weeks and was provided with an herbal paste to be applied daily. A medical certificate confirmed that the plaintiff was treated by Mr Senabanda between December 2006 and March 2007 for slipped discs for nerves connected to his neck. The plaintiff sought treatment at Negombo for approximately three months but could not recall the name of the doctor. He ceased that treatment because it was too far to travel. In 2009-2010, he attended the Bandaranayake Memorial Hospital for massages twice per week. Between December 2015 and February 2016, he received treatment at the Bandaranayake Research Institute (“the Institute”). This was confirmed by a treatment certificate provided by the Institute.
18 Further, the plaintiff reported his treatment in Sri Lanka to orthopaedic surgeons, Mr Ian Jones and Mr Garry Grossbard, and was consistent with what he reported to them, namely, that there was some improvement. Mr Jones said the treatment in Sri Lanka involved massaging his neck and left shoulder girdle with various oils. Some manual traction of the neck was undertaken with slight improvement. Mr Grossbard reported that the plaintiff reported alternative medical treatment which he thought helped a little.[1]
[1]PCB 36
19 I make no adverse finding about the plaintiff’s credit on this aspect. English is his second language. Further, given that I have to assess the plaintiff at the time of hearing the application, the level of treatment the plaintiff was receiving from 2006 to 2010 was of historical relevance only.
20 The evidence was that the plaintiff now worked as a taxi driver and had undergone three medical examinations to obtain his licence. The plaintiff agreed that he did not disclose his neck problems to the doctors who examined him because he needed the job, and once he obtained his licence he did not want to lose it. I accept that this is not fatal to the plaintiff’s credit in respect to his present application before me.
21 The plaintiff made concessions, namely:
· His symptoms have improved since the injury[2]
[2]T30
· He is able to clean and cook on his own[3]
[3]T31
· He saw Dr Navani upon return from Sri Lanka and the neck pain was not serious enough to mention to him[4]
[4]T40
· He acknowledged he worked full time despite the injury[5]
· He acknowledged his pain was managed by Panadol.[6]
[5]T45
[6]T48
22 The plaintiff was consistent in reporting his injuries and treatment to medical witnesses. No medical witness suggested the plaintiff exaggerated his symptoms.
23 On occasions, he contradicted his evidence, for example what he had been told about his Carpal Tunnel Syndrome by his doctors. I accept that he was confused by the questioning and that this did not affect his credit.
24 Accordingly, in considering the credit of the plaintiff, I must consider the evidence as a whole. There was evidence in the plaintiff’s affidavits which was unchallenged. There was no challenge to his son’s affidavit which in part supported the plaintiff’s evidence. Overall, I accept that the plaintiff made appropriate concessions and he was a truthful witness.
Analysis of the evidence
25 The medical witnesses accepted the plaintiff injured himself at work with the defendant in or about October 2005. The injury was variously described as:
·“Cervical disc prolapse C5-6 with Degenerative Cervical Disc and possible Nerve root impingement at C5-6 level.”[7]
[7]Dr Vijay Navani, general practitioner, Plaintiff’s Court Book (“PCB”) 21
·“… aggravation of his cervical spondylosis at C5/6 level, causing referred left upper limb radicular pain. … .”[8]
[8]Mr Greg Malham, neurosurgeon, PCB 18C
·“… this man’s symptoms are coming from soft tissues. He does have significant cervical spondylosis but the pain seems more superficial. …”[9]
[9]Mr Alex Stockman, rheumatologist, PCB 19
·… a strained neck over pre-existing cervical spondylosis … .”[10]
[10]Mr Michael Polke, orthopaedic surgeon, Defendant’s Court Book (“DCB”) 2
·“… a cervical disc injury consistent with the symptoms that he has developed around December 2003. …
·The non-work-related factors are the pre-existing disc degeneration at C5/6 and C6/7 which would produce some restriction of movement in the neck and occasional aches from time-to-time and are due to degenerative change.”[11]
·“… a temporary aggravation of his pre-existing cervical degenerative changes … [from which] he will inevitably complain of neck pain for the rest of his life.
… these pains, … are happening because of the gradual progressing of the underlying degenerative changes causing nerve root pressure in his neck.”[12]
·“… an aggravation of pre-existing degenerative change in the course of his employment at Toyota. I do not believe that his current condition relates significantly to the employment injury.”[13]
·“… multilevel degenerative disc and joint disease affecting the cervical spine. … the x-ray changes in his neck predated his reported injury and reflects some constitutional ageing in the cervical spine.
[The plaintiff’s] employment had the capacity to exacerbate his symptoms during the time of his employment, [but] the effects of this transient aggravation have since ceased.”[14]
·“…cervical spine pain in association with degenerative change at the C5/6 level with intermittent neurological symptoms but no convincing evidence of major radiculopathy.
… the current condition relates to the incident around October 2004.”[15]
·“… persisting cervical dysfunction due to an unresolved soft tissue injury, relevant to the aggravation of cervical disc degeneration injury.”[16]
[11]Mr Brian Davie, orthopaedic surgeon, DCB 10-11
[12]Mr Robert Marshall, surgeon, DCB 13-14
[13]Mr Michael Shannon, orthopaedic surgeon, DCB 24
[14]Mr Ian Jones, orthopaedic surgeon, DCB 31
[15]Mr Garry Grossbard, orthopaedic surgeon, PCB 37
[16]Medical Panel, PCB 51
26 The defendant’s submission was that the neck injury, arising in the course of the plaintiff’s employment, was in the nature of a soft-tissue injury which has since resolved and that currently the plaintiff suffers from the effects of age-related progressive degeneration. This was the view expressed by Mr Jones, orthopaedic surgeon.
27 In October 2015, Mr Jones examined the plaintiff and said that the plaintiff suffers from multilevel degenerative disc and joint disease affecting the cervical spine. Given the date of the x-ray investigations (2 October 2004, 15 November 2004 and 28 February 2005) and in spite of the absence of any previous symptoms, he believed the x-ray changes in the plaintiff’s neck predated his reported injury and reflected some constitutional ageing in the cervical spine. Further, that although the nature of the plaintiff’s employment had the capacity to exacerbate his symptoms during the time of his employment with Toyota, he believed that the effects of his transient aggravation have since ceased. Mr Jones said the plaintiff’s current complaints are consistent with the pathology existing in his lumbar spine, which he believed would have progressed with the passage of time since the time of his claimed injury. Mr Jones remained of that opinion after considering the reports of Mr Alex Stockman, dated 25 May 2005; Mr Arun Sharma, occupational therapist and acupuncturist, dated 30 November 2006 and Mr Garry Grossbard, dated 14 October 2015.
28 In March 2016, Mr Jones was provided with a report from Mr Sushil Sharma, occupational therapist, dated 10 March 2016. Mr Jones said the x-ray reports referred to by Mr Sharma were consistent with constitutional ageing of a number of levels of the cervical spine, which would commonly be seen in a patient of approximately fifty-six years, as the plaintiff would have been at the time. Mr Jones’ opinion in relation to the plaintiff’s neck complaint and the association with his employment remained unchanged.
29 In March 2016, Mr Jones reviewed the report from Mr Arun Sharma. Mr Jones did not change his opinion. I note that the report of March 2016 of Mr Sushil Sharma makes no reference to the work injury. The report of Mr Arun Sharma, whilst dated 2016, states that the plaintiff was last examined in October 2006.
30 In determining the plaintiff’s impairment, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the current medical evidence expressed by Dr Navani, general practitioner, Mr Grossbard, orthopaedic surgeon and Mr Ian Jones, orthopaedic surgeon.
31 Dr Navani reported that the plaintiff had been seen regularly until the end of May 2007. He was not seen for his neck condition for five years. In April 2012, he presented with neck and upper back pain. At that time, Dr Navani diagnosed an aggravation of degenerative cervical spine with likely disc injury at C5-6 with, now, impinging radiculopathy of the left upper limb. In March 2016, Dr Navani reported that the plaintiff presented in October 2015, after a period of absence of over three years. The plaintiff complained of a sore neck with tingling and numbness of three fingers on his left hand. Further x-ray and nerve conduction study of both wrists were requested. Dr Navani diagnosed degenerative cervical spondylosis with cervical disc injury at C5-6, with left upper limb radiculopathy and associated bilateral Carpal Tunnel Syndrome. He reported that the findings on the nerve conduction study were those of bilateral Carpal Tunnel Syndrome, worse on the right. He noted it was less severe than when tested in 2010.
32 Dr Navani reported the plaintiff’s treatment was conservative and made no mention of medication. He said the plaintiff will have to manage his condition with an ongoing exercise program and a core strengthening program. He did not specifically address whether the plaintiff’s current presentation was work related. However, Dr Navani had accepted the plaintiffs injuries were work related, as had the specialists who examined the plaintiff on his referral. I accept that if he now considered the plaintiff’s current condition was no longer work related, he would have said so.
33 In October 2015, Mr Grossbard, orthopaedic surgeon, examined the plaintiff and said he was suffering with cervical spine pain associated with degenerative change at the C5-6 level with intermittent neurological symptoms but no convincing evidence of major radiculopathy. He considered the plaintiff’s employment with Toyota was a contributing factor to the onset of symptoms. He believed the degenerative change predated the onset of symptoms. He accepted that the current condition related to the incident around 2004. Accordingly, I accept that Mr Grossbard’s opinion is that the plaintiff’s current condition is work related.
34 I note that in February 2013, Mr Shannon, orthopaedic surgeon, expressed a similar view to that of Mr Jones. In August 2013, the Medical Panel specifically disagreed with the opinion of Mr Shannon, the independent medical examiner. The Medical Panel accepted that the plaintiff had a 5 per cent whole person impairment resulting from the accepted aggravation of cervical disc degeneration injury in accordance with s91 of the Act. In those circumstances, I accept that the majority of the medical evidence is that the plaintiff’s condition is work related. Accordingly, I accept that the plaintiff’s condition is work related.
Bilateral Carpal Tunnel Syndrome
35 The evidence was that in November 2010, Dr Freilich, neurologist, conducted a nerve conduction study report which confirmed bilateral Carpal Tunnel Syndrome. In November 2015, a further nerve conduction study confirmed bilateral Carpal Tunnel Syndrome, worse on the right.
36 Counsel for the defendant submitted that the plaintiff has not brought evidence disentangling the plaintiff’s symptoms of the bilateral Carpal Tunnel Syndrome and has been proven on the nerve conduction studies in 2010 and 2015, affecting both hands.
37 The only evidence is that of Mr Shannon, who said the plaintiff has numbness in his left hand attributable to Carpal Tunnel Syndrome, which would be unrelated to his neck condition.
38 The evidence is that since 2005, the plaintiff consistently reported to medical witnesses, pain in the left side of his neck, left shoulder down the left upper limb to the middle and ring fingers of the left hand. The Medical Panel was aware that the plaintiff had been diagnosed with a left Carpal Tunnel Syndrome and noted that the plaintiff reported he received no specific treatment and none was planned for the condition. However, Mr Grossbard and Mr Jones make no mention of the condition in their reports. Dr Navani reported that the 2015 study was less severe than when tested in 2010. In his report of 2016, Dr Navani diagnosed degenerative cervical spondylosis with cervical disc injury at C5-C6 with left upper limb radiculopathy and associated bilateral Carpal Tunnel Syndrome. Mr Grossbard had a detailed history of the plaintiff’s complaints and said the plaintiff is suffering with cervical spine pain in association with degenerative change at the C5-6 level, with intermittent neurological symptoms, but no convincing evidence of major radiculopathy. He said his current condition was related to the incident at work around 2004.
39 Given the medical evidence of Mr Grossbard, Dr Navani and the Medical Panel, I accept that the plaintiff’s current complaints are work related. Accordingly, there is no need for the plaintiff to disentangle in accordance with the decision of Peak Engineering & Anor v McKenzie.[17]
[17][2014] VSCA 67
40 I shall now consider the evidence as to the consequences to the plaintiff of the work injury.
Pain
41 The plaintiff’s evidence was that he suffers pain. Unless the pain is constant, I must assess the intensity of the pain the plaintiff experiences, and the frequency and duration of the pain episodes.[18] There was very little evidencing that the neck pain which the plaintiff was experiencing was of any real severity. The plaintiff said the movement in his neck is restricted and he gets pain in his neck if he keeps it in one position for too long. For example when he took a taxi exam, he had to look at a screen for a long period of time and at the end of the exam he suffered “a lot of pain”. The pain is brought on by “a lot of neck movement”. The pain lasts for two to three hours at a time. He described the neck pain as “a dull ache” which increases until he rests his neck. He avoids moving his neck as much as he can.
[18]Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 at 4 paragraph [10]
42 The plaintiff said when at work, he limits his neck movements by using the side and rear mirrors. His neck is quite painful at the end of a shift.
43 The plaintiff reported intermittent neck pain which can occur either during the day or at night to Mr Jones and Mr Grossbard. The plaintiff reported to Mr Jones that his neck pain symptoms are often precipitated by sleeping in an awkward position. Movements of his neck are restricted and painful. Mr Jones said the plaintiff described limitations in terms of neck movement with “varying degrees” of neck pain.[19] The plaintiff complained to Mr Grossbard of pain on the left side of his neck, which occurs two to three times a day, lasting for about half-an-hour at a time.[20] The pain is worse if he has been working or doing anything active. The pain radiates into the interscapular area and over the trapezius muscle on the left side. He reported heat and water improved the pain.[21] Mr Grossbard said “the plaintiff is coping with his level of pain and has found employment which does not significantly exacerbate his symptoms”.[22]
[19]DCB 31
[20]PCB 36
[21]PCB 36
[22]PCB 37
44 The plaintiff’s evidence as to pain was supported by his son. He said his father does not like to talk about his neck pain, but he knows when his father’s neck is troubling him because he rubs and massages his neck and applies creams. He will grimace while he is flexing his hand.
45 The plaintiff has reported neck pain since 2004. All doctors accepted the plaintiff suffered pain. I accept the pain the plaintiff suffers is intermittent. I accept that the experience of pain for the plaintiff is a consequence, and one that I can take into account. However, I do not consider the level of pain is of any real severity.
The left hand
46 The plaintiff’s evidence was that he suffered numbness in his left hand, usually at night which affected his sleep. He reported to Mr Grossbard that it mainly affects his middle and ring fingers and tends to go after he changes position in bed. It takes about 10 to 15 minutes to settle down. Mr Jones reported: “On occasions he describes some numbness affecting the third and fourth fingers of his left hand only. These symptoms are sporadic.”[23]
[23]DCB 29
47 The plaintiff reported to Mr Grossbard he suffers swelling in his hand, and weakness in the left hand if he works during the day.[24]
[24]PCB 36
48 The plaintiff told the Court that the more he uses the left hand, the more pain he suffers in his neck. As a result, when he drives his taxi he now drives mostly with his right hand.
49 I accept that the plaintiff suffers numbness which affects him for short periods. He suffers swelling and weakness in his left hand, and as a result, when driving his taxi, he mostly uses his right hand. I accept that this is a consequence that I can take into account. I assess this at the low end of the range. This is because there was no evidence as to its frequency.
Treatment
50 The plaintiff’s evidence was that he visited his family in Sri Lanka from mid-December 2015 to late-February 2016. While in Sri Lanka, he underwent regular treatment at the Bandaranayake Memorial Hospital of traditional Sri Lankan treatments and remedies, consisting of an oil massage on his neck and left upper shoulder and back area. He also drank Ayurvedic, a traditional remedy for aches and pain. He found the treatments helpful.
51 In Australia, he attends physiotherapy every two weeks and continues to see his general practitioner.
52 Since November 2015, the plaintiff takes medication of Celaxib and Crysanal daily. Previously, he was taking Panadol, two to four per week, for pain relief. When his pain is particularly bad, he uses Voltaren Gel and Deep Heat creams on his neck approximately twice a week.
53 In October 2015, the plaintiff reported to Mr Jones that over the last four years, he has relied on Panadol for pain relief and he estimated he would take approximately two tablets on two occasions per week. Otherwise, he uses Voltaren Gel, which is rubbed into his neck area. He reported no other treatment. This is consistent with what he reported to Mr Grossbard.
54 The plaintiff reported to Mr Grossbard that he does not see his general practitioner very often. This was confirmed by his general practitioner, who reported in April 2012 that he had not seen the plaintiff for his neck condition for five years. In 2015, he reported that he had not seen the plaintiff for three years. However, the medical evidence is that his treatment should remain conservative.
55 In February 2016, Ms Samantha Teo confirmed that the plaintiff had attended three sessions of physiotherapy to manage his cervical spondylosis and arm radiculopathy conditions.
56 Since the plaintiff’s return from Sri Lanka, he gave evidence that he received massage therapy four or five times.[25]
[25]Transcript (“T”) 71
57 All medical witnesses accepted that his treatment should be conservative. No doctor suggested his treatment was inappropriate. I accept the level of treatment the plaintiff has is appropriate and is at the low end of the scale. This is a consequence I can take into account.
Activities around the house
58 The plaintiff’s evidence is that he is limited by his neck injury in his social, domestic and recreational activities. He finds it difficult to do much cooking, since this involves keeping his neck bent while looking downwards, which brings on the pain. He does some cleaning, but relies on his son and daughter to clean. Bending down to do activities like vacuuming, sweeping and mopping under furniture causes too much neck pain. He is limited in what he can lift and carry so his son and daughter assist him with shopping, carrying all the heavy items. On occasion, he carries shopping in his right hand. However, I note that the plaintiff is right-hand dominant.
59 The plaintiff’s evidence was supported by his son. His son said that his father was pretty limited in what he can do around the house. His father does some cooking, but his sister mostly takes care of the cooking and he assists with cleaning and jobs around the house. He shops with his father and carries the heavy items.
60 The plaintiff said that because of his neck pain, he has grown old before his time. He feels bad that his children have to take care of him, like an old man.
61 I accept that the plaintiff is limited in activities he can perform around the house and is dependent upon the assistance of his children. I accept that this is a consequence which I can take into account.
Sleeping
62 The plaintiff reported to medical witnesses that at times he had difficulty sleeping because of the pain. The plaintiff’s evidence was that, on occasions when he has a longer sleep, he wakes up with numbness in his left hand. He recently brought a new pillow to assist with his sleep. The pillow is higher and helps keep his neck straight. It is too early to tell if this will improve his sleep quality. I accept that this is a consequence which I can take into account.
Work
63 The plaintiff’s evidence is that he has been a taxi driver since 2011. Currently, he drives his taxi at night, working long hours, approximately 50 hours per week. He is restricted in moving his neck when driving his taxi and he is reliant on side and rear-vision mirrors to avoid moving his neck. At the end of a shift, his neck will be quite painful. He drives with his right hand where possible, but there are times when he cannot avoid using his left. He drives an automatic vehicle. On occasions, as part of his job, he has to lift passengers’ luggage into the boot of the vehicle. He reported that he tries to avoid this for fear of aggravating his neck.
64 Mr Grossbard accepted that the plaintiff could continue his alternative employment as a taxi driver but could not return to heavier activity. I accept the plaintiff is currently working as a taxi driver, he is limited in how he performs that work, he is reliant on mirrors to avoid neck movements and he tries to avoid lifting passenger’s luggage. Based on Mr Grossbard’s evidence, I accept that the plaintiff does not have the capacity to undertaken more physical work and is now limited to lighter work. I accept that this is a consequence which I can take into account, which I consider is in the middle of the range.
65 Counsel for the plaintiff, in opening statements, submitted that there is a pain and suffering consequence for the plaintiff in his inability to work as a motor mechanic. The evidence is that the plaintiff qualified and worked as a motor mechanic in Sri Lanka and Saudi Arabia. When he came to Australia, he updated his qualifications, completing examinations and qualifying as a motor mechanic. He worked as a motor mechanic in Australia for approximately three years.
66 In Ellis Management Services Pty Ltd v Taylor,[26] the Court of Appeal said that the inability of a worker to engage in employment which he enjoyed is a matter that can be taken into account in assessing pain and suffering consequences and loss of enjoyment of life. However, in this case, the plaintiff did not give evidence about the fact that he enjoyed the work as a motor mechanic and his frustration of not being able to return to that work. Further, the plaintiff did not express those views to any of the medical witnesses.
[26][2013] VSCA 326 paragraph [35]
Stoicism
67 Counsel for the plaintiff submitted that the plaintiff’s return to work after his work injury should lead me to the conclusion that the plaintiff is a stoic. I accept that the plaintiff has returned to work and is working long hours, which is to his credit. However, in other cases where I have found the plaintiff to be stoical, there is normally other indicators, which have led me to that conclusion. For example comments by medical witnesses, in particular as to the ability of a plaintiff to cope with pain and work, and the plaintiff’s presentation in court. These are matters which are not present in this case.
Retained capacity
68 In assessing the consequences “the significance of what has been lost, … may be informed, to an extent, by what is retained”.[27]
[27]See Dwyer v Calco Timbers Ply Ltd (No 2) [2008] VSCA 260 at paragraph [27]; see also Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
69 Counsel for the defendant submitted that considering what the plaintiff lost must be balanced by the capacities the plaintiff has retained.
70 The evidence is that the plaintiff can perform household tasks in a self-paced manner.[28] He is able to carry things in either hand but when using his left hand he can only carry objects weighing 2 to 3 kilograms.[29] He is independent in his personal care and activities of daily living.
[28]T55, L28
[29]T55, L14
71 The plaintiff retains the capacity to work. The plaintiff’s evidence was that he worked as a process worker making locks for cabinets but found the work increased his neck pain. He undertook a taxi driving course and he has driven taxis since 2011. I accept there are some limitations upon the way in which the plaintiff performs his work. He agreed that in relation to work, he does his best not to provoke his neck pain. However, there are no medical restrictions imposed upon his work as a taxi driver. I accept the plaintiff is able to perform his work, and is engaged in more than full-time hours. To the plaintiff’s credit, he has maintained his ability to work by retraining and performing a job from which he gains satisfaction.
Conclusion
72 What was in issue was the consequences of the plaintiff’s injuries and whether they meet the test of seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable” when compared with other cases in the range.
73 In Stijepic v One Force Group Aust Pty Ltd & Anor,[30] Ashley JA and Beach AJA said:
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other.”[31]
[30](supra) at paragraph [21]
[31](ibid) at paragraph [42]
74 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[32]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”[33]
[32][1998] 1 VR 702
[33](ibid) at 2
75 Section 134AB was intended to restrict the availability of common law damages to workers whose injuries were of a “very considerable” magnitude.
76 I am satisfied that the plaintiff now requires assistance with the heavier tasks of vacuuming and mopping and is reliant upon his son and daughter in performing household tasks.
77 I am satisfied that the plaintiff can no longer perform his pre-injury manual work without restriction. To his credit, the plaintiff continues to work as a taxi driver, working approximately 50 hours per week. Accordingly, he has retained the ability to work.
78 The plaintiff is receiving minimal treatment and does not require significant analgesic medication in comparison to other cases which I am required to consider.
79 Although the plaintiff’s neck injury has had an effect on his life, he is able to undertake full-time work.
80 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities and in light of the evidence as a whole, that the consequences to the plaintiff satisfies the test. I accept the plaintiff suffered an injury to his neck in 2004. I accept that the injury has had consequences to him which are considerable, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
81 Accordingly, I dismiss the application.
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