Borg v Structural Systems (Construction) Pty Ltd
[2009] VCC 4563
•14 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-07-04180
| FRANK BORG | Plaintiff |
| v | |
| STRUCTURAL SYSTEMS | Defendant |
| (CONSTRUCTIONS) PTY LTD |
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| JUDGE: | Her Honour Judge Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 May 2009 |
| DATE OF JUDGMENT (with oral | 18 May 2009 |
| reasons): | |
| CASE MAY BE CITED AS: | Borg v Structural Systems (Construction) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 563 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – Accident Compensation Act 1985 – s134AB(16)(b) – Permanent serious impairment or loss of a body function – injury to the lumbar spine – pain and suffering and loss of earning capacity
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.Y. Rattray Q.C. | Slater & Gordon |
| with Mr N.B. Chamings | ||
| For the Defendant | Mr B.R. McTaggart | Herbert Geer |
| with Ms R.J. Boyce | ||
| HER HONOUR: |
1 As I indicated earlier I propose to give oral reasons for judgment in this case. This is an application for leave to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of injuries to the lumbar spine sustained by the plaintiff in June and July 2002 during the course of his employment as a labourer for the defendant. While the application was made in respect of both injury to the lumbar spine and psychiatric injury, at the hearing the plaintiff pursued only the application in respect of the injury to the lumbar spine, which he said constituted a serious injury within the definition of serious injury in paragraph 134AB(37)(a) of the Accident Compensation Act 1985.
2 It is alleged by the plaintiff, and not disputed by the defendant, that the injury suffered was single level L4-5 lumbar intervertebral disc derangement with prolapse, described in the radiological reports as a broad-based disc bulge effacing the anterior thecal sac and contacting the under surface of the exiting L4 nerve roots bilaterally without compression.
3 It is not disputed that the injury to the lumbar spine has resulted in permanent impairment of the function of the lumbar spine in the form of ongoing significant restriction of range of movement of the lumbar spine. The weight of the medical evidence is to the effect that as a result of his injury the plaintiff is permanently restricted from undertaking employment involving repetitive lifting of more than ten kilograms, sitting, standing and walking for long periods and repetitive pushing, pulling and bending.
4 Many practitioners agree he cannot return to his pre-injury work at all. Some, including his general practitioner, Mr Schofield, Mr Brownbill and Mr Weaver, say he cannot work at all, given his education, occupational history and restrictions. The vocational assessment report of Katrina Henderson confirms that given his medical restrictions he cannot do his pre-injury work and having regard to his skills there are no alternative occupations within his capability.
5 I have read and considered all of the medical and radiological reports relied on by the parties. I propose to refer briefly to the radiology and to a number of the recent medical reports considering the plaintiff's condition and prognosis as a prelude to dealing with the main issue raised by the defendant, namely the credit of the plaintiff.
6 I note however that from the point of view of the defendant it was conceded that if the plaintiff's evidence is accepted at face value then he has discharged the onus that he bears in relation to pain and suffering and loss of earning capacity. However, the defendant says that the plaintiff's credit is much in issue. It says that the plaintiff is unreliable in that his memory is deliberately selective. The defendant relies on a number of examples. First, that the plaintiff did not recall his conviction for theft around the time that he was convicted in relation to the cultivation of marijuana. Secondly, that his affidavits do not disclose that he had been to his brother's place of employment in Trentham on one or two occasions before October 2008. Thirdly, that in cross-examination on the first day of the hearing he said he did not know Macedon Lodge but agreed on the second day of the hearing that he knew the town of Macedon and that he had been there on a couple of occasions. This was said to be contrasted with his capacity to recall that on 26 August 2003, when he was filmed moving an empty plastic water tank from his utility to the verandah of the home he was having built, he had taken three Mersyndol Forte tablets.
7 The defendant says that the video surveillance material shown in court, totalling some 26 minutes or so[1] out of a total of 18 attempts of surveillance over 60 hours over a number of years, shows that he is capable of doing more than he says he can and more than he told his GP, Dr Choon, in 2003 that he was doing. It says that the recent surveillance showing the plaintiff at the petrol station early in the morning and going to Trentham for the day is inconsistent with what the plaintiff told Dr Wyatt in 2008, namely that he gets up at about nine o'clock and does not do much. It says that the plaintiff should have called evidence from his brother about the role that the plaintiff was playing when visiting his brother at work both before and after October 2008.
[1] The dates and times of footage shown in court are as follows: 20/08/2003 and 26/08/2003 – 26mins 30secs; 06/06/2008 – 3mins55secs; 18/06/2009 – 07secs; 23/07/2008 – 2mins44secs.
8 The plaintiff is 49 years old. He left school at 15 after struggling academically. He has extreme limited reading and writing skills with the reading age of a six year old child. He describes himself as basically illiterate. He is of Maltese background and has had difficulty improving his English. He has hearing problems and wears bilateral hearing aids. He has only ever worked in labouring jobs. He is allergic to certain chemicals which produce a skin condition in his hands. Since leaving school he has worked as a labourer for various employers. He has no computer skills.
9 Prior to his injury his interests were fishing, horse riding and shooting. As a result of his injury, although medical and surgical opinion around 2002 and 2003 was to the effect that he should consider surgery, he declined because of fear about the outcome. In late 2003 he was certified fit for light duties but was told none were available. He has not worked since. He has sold his boat and no longer rides or shoots. He used to enjoy gardening and home maintenance but cannot do these activities much any more.
10 He has been advised to stay active and has tried to do so. He has constant low back pain which is worse on some days and which radiates into his left buttock. Symptoms are worse with repetitive lifting, bending or twisting and these will require extra medication. Sometimes he takes medication before activities that may cause aggravation. His symptoms are worse in the morning and the cold and at times he suffers shooting pains down the legs, particularly with the left leg, and pins and needles in the left foot.
11 He has a stiff back. He sees his general practitioner and takes Panadeine Forte, but tries to avoid it because of its side effects. He has problems sleeping and is awoken by back or leg pain. The injury also affects his erectile function and his back pain interferes with his sexual activity. He has also had urinary problems.
12 He had also been an owner builder who had built a house prior to his injury. At the time of his injury, he was engaged in building a home for himself and his wife to live in. As a result of his injury much of the work on that home had to be done by others and it was sold in 2005. He tried to return to work in 2002 but his symptoms persisted and he ceased work at the end of that year. Although he was certified fit for light duties sometime in 2003 none were able to be found for him. His marriage broke up after his injury. His elder son committed suicide in 2008 in October and the plaintiff was devastated. In order to get out of the house and distract himself he started to go to work with his brother Raymond who works as a welder for Jack's Earthmoving in Trentham a few times per week where he sits in the office, talks to Raymond, sometimes hands him tools and sweeps the floor.
13 He said he has tried a bit of welding and drove a forklift briefly, but could not do either task for long as his back pain was exacerbated. He said that these activities were unpaid, voluntary and self-paced and this was confirmed by Mr Griffith, the brother's employer, in his affidavit and at the hearing. As at March 2009 the plaintiff continued to take Panadeine Forte for pain relief and to see his GP, Dr Sze Tho. He has continued to look for heavy labouring work in spite of his incapacity because that is the only occupation he knows.
14 I turn to the radiology and the medical material. A CT scan in September 2002 showed a left sided prolapse at L4-5 encroaching on the left L5 nerve root and indenting it at the left anterior aspect of the thecal sac at that level. An MRI of the lumbar spine in January 2004 confirmed at L4-5 a small broad- based disc protrusion and associated annular tear mildly indenting the thecal sac and non-neural compressive. A CT scan of the lumbar spine in August 2007 reported at L4-5 a mild to moderate broad based disc bulge effacing the anterior thecal sac, with the disc contacting the under surface of the exiting L4 nerve roots bilaterally without compression and no central canal stenosis.
15 I turn briefly to the most recent medical reports concerning the plaintiff's condition and prognosis. His current treating practitioner, Dr Sze Tho, reported in September 2008 that the plaintiff has a disc prolapse at L4-5 affecting the left L5 nerve root and is permanently incapable of doing activities involving lifting, pulling, bending, twisting or stooping and cannot sit, stand or walk for lengthy periods. He concluded that the plaintiff is unlikely to find suitable employment given his age and lack of qualifications for light work and confirmed that he takes regular analgesia for chronic low back pain and will permanently be restricted in relation to his social, domestic and recreational activities to a large extent.
16 Mr Schofield reached similar conclusions in his medico-legal report of September 2008. He found the plaintiff to be a pleasant and honest man who was moderately obese with significant restriction in spinal movements, and some weakness and aversion of the left foot. He agreed that the plaintiff had suffered a disc prolapse in June 2002 which was work related, that he could not do repetitive walking, standing for long periods or repetitive bending, lifting, pushing, pulling and using the stairs or ladders. He also found that these restrictions would be permanent, and that the plaintiff was permanently incapacitated for his pre-injury duties and for any other employment. He noted that the plaintiff cannot enjoy fishing, shooting, riding or gardening and suggested that perhaps surgery may be the only option if conservative treatment failed to assist him.
17 Mr David Brownbill, neurosurgeon, reported in September 2007 the plaintiff's complaint of lower back pain every day, worse in the mornings and when standing, sitting and using the stairs with left leg pain occurring after physical activity. He found the plaintiff on examination to be cooperative without embellishment. He noted that active lumbar movements were of full inflexion, two-thirds of full extension and lateral flexion full in lateral rotation. He diagnosed damage to the L4-5 disc in the incident of June 2002 which was the basis of the disc prolapse which occurred in July of that year. He said that the ongoing pain suffered by the plaintiff would continue indefinitely, that he could not return to his former work and given his education and experience would have trouble getting any work. In any event he noted that he would have moderate to marked restriction in sitting, standing, walking for long periods and with repetitive lifting, pushing, pulling, climbing stairs or ladders, and similarly he would have the same restrictions in relation to any of those activities that he pursued in his social, domestic or recreational activities.
18 Mr Ian Jones reported in August 2007 that when he examined the plaintiff he found half the range of normal flexion with limited straight leg raising. He also diagnosed initial disc injury in June 2002 with a disc rupture in July 2002 in the context of employment. He felt that the injury to the disc would permanently affect the plaintiff's walking and standing capacity to levels reported by the plaintiff, that is driving 30 minutes, walking 30 minutes, standing 15 minutes and sitting for 30 minutes, as well as repetitive bending, lifting, pushing and pulling.
19 He felt that the plaintiff could only do light work four hours per day and that his domestic activities apart from light housework would be restricted to a moderate degree and this would continue permanently. He also concluded that the plaintiff would suffer permanent stiffness and lumbar pain with referred pain in the left leg.
20 Finally, Mr Hugh Weaver reported in May 2009 the plaintiff’s complaint of lower back pain every day which is worse in the mornings and the cold weather, and that his left leg gets sore with some activities. On examination he noted that the plaintiff's lumbar spine movements were restricted and painful. He noted that all the radiology confirmed that there was a disc bulge at L4-5 with some bilateral L5 nerve root compression and he accepted that the plaintiff has clinical and radiological evidence of disc degeneration and prolapse. He noted that at some stage much earlier perhaps he would have been able to have been rehabilitated, but concluded that by now not only was plaintiff used to the fact that he was going to remain off work but was not physically capable of returning to his pre-injury duties or doing any work that involved frequent bending, twisting or lifting more than 10 kilograms.
21 I consider that the weight of the expert evidence and that of the vocational assessment report of Katrina Henderson is that having regard to the restrictions flowing from the plaintiff’s lumbar spine injury and given his occupational history, educational level and problems with literacy and hearing, there are no jobs available in the market for which he has skills or could be retrained for.
22 A number of doctors have viewed the video surveillance material relied on by the defendant and shown at the hearing, in particular the video surveillance material taken on 26 August 2003 which comprises the plaintiff moving a water tank off his utility and onto the verandah of the house. This component of the video surveillance material ran for approximately 16 minutes and was shown to Dr Choon in court during the hearing.
23 In cross-examination Dr Choon agreed that throughout 2003 the plaintiff had been seeing him for his lumbar spine problems and complaining of pain and restriction of movement, inability to do housework and the like. Dr Choon agreed that the plaintiff's activity on the video was inconsistent with the manner in which the plaintiff had been presenting to him over the previous year and suggested in fact that he had a far greater capacity than the plaintiff was contending.
24 In re-examination, however, Dr Choon said that in May 2003 the plaintiff told him he had good and bad days and in October 2003 told him he could do activities around the house for two hours, after which he would feel increased back pain. Dr Choon said the activity being filmed was not repetitive. He did not know the weight of the tank being moved, nor whether the plaintiff had taken any medications on that day, but he agreed that if he had done so that medication would relieve some of his pain.
25 Dr Wyatt, a medico-legal examiner on behalf of the defendant, who saw the plaintiff in June 2003 and August 2008 reported in September 2003 that the labouring activity seen on the video surveillance material suggested that the plaintiff had a capacity for pre-injury duties and that "he is not being straightforward in his presentation”. However, no basis for that conclusion was offered, nor did she describe in any detail what kind of activity led to that conclusion.
26 Dr Cohen, psychiatrist, proffered an opinion well outside his expertise in 2008 when he reported that having himself recently undergone surgery for a prolapsed L4-5 disc he considered himself "very well qualified to provide expert opinion in similar cases”. He concluded from seeing the video that the plaintiff moved the tank without any apparent pain or restriction of movement. He concluded that if the plaintiff had genuine lumbar spine or root pressure causing sciatic pain he would certainly not be capable of doing what he was doing in the video. His conclusion is completely at odds with the analysis of a qualified expert, Mr Schofield, whose opinion I prefer. I attach no weight to Dr Cohen's report on the question of the plaintiff's credit.
27 Dr Wahr, another medico-legal psychiatrist, wrote in September 2003 that, looking at the video from a psychiatric view point, there was no reason that the plaintiff could not return to his pre-injury duties. However, he also noted that, “speaking as a general practitioner”, he felt that the plaintiff could carry out such duties. It is not clear what Dr Wahr was concluding. If it is that from his observations of the video he felt the plaintiff was physically able to resume his pre-injury duties this is clearly at odds with all the recent orthopaedic and medical evidence, which I prefer.
28 Mr Schofield provided a further report in September 2008 commenting on the video surveillance material, in particular the plaintiff moving the water tank. He noted that he did not know whether the plaintiff was taking medication or whether it was one of his good or bad days. However, he noted that while moving the water tank the plaintiff walked slowly, and that most of his movements were done with a straight back, including moving up and down the stairs and in and out of the utility and while sliding the tank out of the utility. He also noted that when moving the water tank he spent a lot of time securing the ropes and sliding it carefully, pulling, twisting and pushing it.
29 He noted that he did see him lean into the tray of the utility and although this would be half the normal range of flexion only, there was no extension of the spine by the plaintiff. He also noted that when lifting the plaintiff used his knees and back together to prevent significant flexion. He concluded that the video only showed a brief period, in the afternoon, of physical work with the tank, which was not heavy but which was awkward. He felt that the task being undertaken was not repetitive. He did not know what medication the plaintiff took before he undertook the activity or what he took afterwards, or whether he was in pain on that day. In those circumstances he concluded that the opinion he expressed earlier about the plaintiff's condition and prognosis was unchanged by his observation of the video surveillance material.
30 Similarly Mr Brownbill reported in October 2007 that he had reviewed the tape of the plaintiff moving the water tank. He noted that the plaintiff's movements were often awkward but appeared to be performed without restriction and that he moved the tank by pushing it, pulling it and that he climbed off and on the verandah in an awkward fashion but with apparent ease. He concluded that although the degree of physical activity on the video was a little greater than he would have anticipated after seeing the plaintiff in September 2007 he still felt his earlier diagnosis and opinion concerning the plaintiff's work restrictions should apply. He also noted that the video is four years old and of little relevance to the plaintiff's current clinical condition.
31 I have regard to the dicta of Ashley J in Church v. Echuca Regional Health (2008) VSCA 153 where His Honour noted the requirements when assessing video surveillance material to consider: the plaintiff's evidence concerning that day; what was shown on the video; what doctors who have seen the video have said; how much other surveillance there was; and the consistency between the activities shown and what the plaintiff told doctors.
32 I note firstly that overall I found the plaintiff to be a straightforward witness and I accept his evidence concerning the circumstances of his injury and the restrictions flowing from that injury. This evidence is consistent with the radiology and the clinical findings of the treating and medico-legal examiners, particularly the recent ones. I note the plaintiff's evidence that he told Dr Choon in 2003, as well as most medical legal practitioners, that he had good and bad days; that he could do some activities for some time, but then the pain was exacerbated.
33 I note his evidence that he took three Mersyndol Forte tablets on the day he was filmed moving the water tank and that the activities shown lasted only a few minutes. I note that the video was now nearly six years old and represents a brief snapshot of what he could do for a few minutes at that time having taken medication. I note that it represents only a few minutes of 60 hours of attempted surveillance on 18 occasions over a number of years. I do not consider that it says anything determinative about his current work capacity.
34 I note the conclusions of Mr Brownbill and Mr Schofield that he performed most of the activities with a straight back without doing repetitive activity and without any lumbar extension. I note also that having observed those activities Mr Schofield and Mr Brownbill did not change their opinions and Dr Choon's final position was consistent with their opinions. I consider that Dr Wyatt did not explain how she reached her conclusion in relation to the video surveillance and its implications for the plaintiff's work capacity and I attach little weight to her opinion. I reject the opinion of Dr Cohen for reasons stated, and attach little weight to the poorly expressed conclusion of Dr Wahr, as I prefer the opinions of experts in orthopaedic matters as to whether the observed activities are consistent with his injury and the clinical and radiological findings.
35 I do not consider that the failure to tell some doctors that he had been visiting his brother's workplace or what he had been doing there undermines his credit. I accept the plaintiff's evidence and that of his brother's employer, Mr Griffiths, that he is not a paid employee at the brother's workplace and does very limited activities including, as Mr Griffiths said, holding a tape measure for his brother and making coffee, sitting around and occasionally or at least one occasion driving a forklift.
36 On the evidence the activities performed are self-paced. They do not in my opinion affect the medical opinions concerning the work restrictions flowing from the injury, which is established clinically and radiologically. I do not consider that the remaining few minutes of the surveillance material shown in court, that of the plaintiff in 2008, leads me to form conclusions adverse to him on the question of his work capacity. They do not show him performing heavy activities or any kind of repetitive activity. His evidence and that of Mr Griffiths as to the activities he performs when at his brother's workplace are uncontradicted and I accept it.
37 Having regard to the defendant's concession at the commencement of his address to the effect that if the plaintiff's credit were accepted he should be granted the leave sought I do not consider it is necessary to further canvass the medical and other material. Having indicated why I am satisfied as to the matters raised by the defendant as to the plaintiff's credit and having considered the evidence as to his injury and the impairment flowing from it, I consider that the plaintiff's work capacity has been effectively extinguished and that the loss of earning capacity consequences of his permanent impairment of a lumbar spine are at least very considerable when compared with other cases in the range of possible impairments or losses of a body function and that he satisfies the statutory requirements in relation to loss of earning capacity.
38 In relation to pain and suffering I accept the plaintiff's evidence concerning the restrictions and pain flowing from his impairment and note the almost universal conclusion reached by the medical opinions that he will permanently suffer pain and restrictions of movement and will permanently be affected in all domestic and recreational activities and should not sit, stand or walk for long periods, nor bend or twist repeatedly. I note Mr Schofield's recent opinion that the plaintiff’s condition is such as to warrant surgery. I therefore consider that the pain and suffering consequences of his lumbar spine impairment are at least very considerable when compared with other cases in the range of possible impairments or losses of body function in the lumbar spine.
39 For these reasons, leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of the injury to the lumbar spine sustained in 2002 during the course of his employment with the defendant.
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