Bozik v Capital Special Vehicles Pty Ltd
[2013] VCC 1710
•14 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Unrestricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06344
| JOHN BOZIK | Plaintiff |
| v | |
| CAPITAL SPECIAL VEHICLES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October and 1 November 2013 | |
DATE OF JUDGMENT: | 14 November 2013 | |
CASE MAY BE CITED AS: | Bozik v Capital Special Vehicles Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1710 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – whether the consequences of the plaintiff’s back injury were more than significant or marked and at least very considerable.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave to the plaintiff to commence a proceeding for pain and suffering damages in respect of injuries sustained by him in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | Zaparas Lawyers |
| For the Defendant | Mr P Montgomery | Wisewould Mahoney |
HIS HONOUR:
1 Mr John Bozik alleges that he suffered injury to his low back in the course of his employment with the defendant in 2006.
2 He seeks the leave of this Court to issue a proceeding to claim damages for pain and suffering resulting from that injury.
3 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave he must establish, on the balance of probabilities, that he has suffered a “serious injury” as that term is defined in s134AB(37) of the Act.
4 The term “serious injury” is defined, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.[1]
[1]Section 134AB(37)
5 The body function the subject of this application is that of Mr Bozik’s lower spine.
6 To be considered “permanent”, it is sufficient that Mr Bozik establishes that his impairment is likely to continue for the foreseeable future.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] and [19].
7 An impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(c)
8 The defendant denies that Mr Bozik’s injury is a serious injury.
Background
9 Mr Bozik is currently aged sixty-nine. He was born in Yugoslavia, where he underwent seven years of schooling. On leaving school, he performed a variety of physical labouring jobs, including welding.
10 He migrated to Australia in 1971 when aged twenty-seven. Here, he undertook a variety of jobs but worked mainly as a welder. He has been in employment for most if not all of his post-school life.
11 He commenced work for the defendant in 2000, performing welding and other assembly work. He alleges, and I accept, that the work involved was relatively heavy.
12 In about 2000, Mr Bozik experienced occasional right leg pain which he attributed to standing on concrete. In January 2003, he attended upon his general practitioner, Dr Dhillon, complaining of one week’s back pain after trying to push a load onto a truck. He was prescribed anti-inflammatory and analgesic medication at that time. He next attended upon Dr Dhillon some three-and-a-half years later.
13 In June 2006, Mr Bozik complained of a sudden onset of right calf and thigh pain. He was not suffering back pain initially. He was referred for a CT scan of his lumbosacral spine. The pain continued and extended down to the ankle and foot.
14 The CT scan concluded that there was a significant abnormality at the L4-5 level with a combination of disc bulge and posterior element hypertrophy, resulting in moderate to severe canal stenosis and narrowing of both exit foraminae with potential impingement of nerve roots.[4]
[4]Plaintiff’s Court Book (“PCB”) 38
15 Shortly thereafter, he was referred to a neurosurgeon, Mr Chris Xenos, who he saw in August 2006. An MRI scan showed similar results to the CT scan.[5]
[5]PCB 39
16 He ceased work with the defendant in mid-2006. In 2007, he found light work at a chicken farm where he worked an average of two to four hours per day, two to three days per week. He was effectively a casual employee who was called upon when there was work to do. He worked on average about 10 hours per week. He was able to work at his own pace and coped, despite ongoing discomfort. The work at the chicken farm continued until late 2009 when ownership of the farm changed hands. Occasionally, the new operator requested advice concerning machinery at the farm but Mr Bozik did not perform physical work there after that time.
17 Mr Xenos has advised him that surgery is unlikely to assist him. He has been treated conservatively with analgesic medication.
18 He lives on a small hobby farm near Garfield consisting of 7 acres. It requires little physical work to maintain it.
Diagnosis of injury
19 Reports were tendered from the doctors who had treated him in the past, Dr Dhillon and Dr Caldwell (both general practitioners), and Mr Xenos. In addition, medico-legal reports of Associate Professor Boling (neurosurgeon), Mr Flanc (general surgeon), and Mr Brownbill (neurosurgeon) were tendered for Mr Bozik. The defendant tendered reports from Mr Simm, Mr Kudelka, Mr Kierce, Mr Carey (all orthopaedic surgeons), and from Dr Elder (a specialist in occupational and environmental medicine) .
20 Mr Bozik’s injury is relatively non-contentious. There is a large body of opinion that he has suffered, as a consequence of his employment with the defendant, a disc prolapse at the L4-5 level impinging on the L5 nerve root.[6]
[6]See Dr Dhillon, at PCB 32a; Dr Caldwell at PCB 32c; Mr Xenos at PCB 37b, 37c; Professor Boling at PCB 42; Mr Flanc at PCB 56e; Mr Brownbill at PCB 61, 63b; Mr Kudelka at DCB 3, 5, 9; Dr Elder at DCB 24.
21 Mr Simm thought that the underlying degenerative pathology in Mr Bozik’s low back was constitutional and not caused by his work. However, he considered that the nature of Mr Bozik’s work had the potential to initiate and aggravate symptoms from the degenerative pathology. He accepted that there were physical signs suggestive of right L5 radiculopathy. He concluded that the heavy nature of his work with the defendant was a significant contributing factor to the aggravation of a pre-existing degenerative condition in the lumbar spine in the sense that it became symptomatic and may have resulted in the disc prolapse at the L4-5 level.[7]
[7]Defendant’s Court Book (“DCB”) 31
22 On balance, I accept that, whilst there may have been a degree of pre-existing degeneration of Mr Bozik’s lumbar spine, as a consequence of the heavy work performed by him in the course of his employment with the defendant he suffered an aggravation of symptoms arising from those degenerative changes which had previously been asymptomatic, and, in addition, I think it likely that he suffered a disc prolapse at the L4-5 level with resultant impingement on the right L5 nerve root.
Consequence of injury
23 On the basis of the affidavit and oral evidence of Mr Bozik and the medical reports tendered in evidence, I am satisfied that the consequences to him of his lumbar spine injury are as follows:
(a)He has suffered from persisting low-back pain for the past seven years and continues to suffer from it. It is likely that such pain will continue indefinitely;
(b)In addition to low back pain, he suffers from intermittent sciatica in his right leg;
(c)He is limited in the physical work that he is able to perform on his hobby farm. He does not and should not perform tasks involving regular lifting, bending and the like. The injury required him to cease work with the defendant well before retirement age, and although he was able to obtain some casual part-time work with a chicken farm, his ability to perform work in anything like the capacity he was previously able to perform has been lost;
(d)Prior to his injury, he regularly played and enjoyed golf. He has been unable to return to this game as a consequence of his low back problems;
(e)His ability to sit or stand for periods of more than 20 or 30 minutes is restricted by reason of his pain symptoms;
(f)His sleep is regularly interrupted by low-back pain;
(g)Simple tasks, such as getting dressed and putting on his socks are difficult for him. He achieves this but with difficulty;
(h)His social life is restricted. He no longer enjoys going out to restaurants as it requires sitting for relatively lengthy periods. He is forced to get up from the table and stretch to avoid or to limit pain;
(i)He requires intermittent analgesia;
(j)He is unable to drive a motor vehicle but for short distances.
24 I accept Mr Bozik as a genuine and truthful witness. There was no attack upon his credit in cross-examination.
25 Counsel for the defendant submitted that the consequences of Mr Bozik’s injury did not meet the threshold test of being at least very considerable. He stressed that Mr Bozik had had minimal active treatment for his injury, minimal medication and that he had not demonstrated that his general lifestyle had been interfered with to any great extent.
26 I accept that Mr Bozik’s treatment has been minimal. He has not undergone surgery or been advised to. The advice given to him by his treating neurosurgeon was that surgery would be unlikely to assist with regard to his back pain. He has been advised by Mr Xenos that in the event that his sciatic leg pain worsens, surgery might be reconsidered. In those circumstances, I do not consider that much can be made of the fact that he has not received more active treatment. I accept that he has not undergone lengthy periods of physiotherapy or hydrotherapy. However, the evidence before me does not disclose that he was advised to have such treatment to assist him. I do not consider that he can be criticised for not undergoing such treatment when it has not been recommended for him by those treating him.
27 I find that Mr Bozik’s general lifestyle has been affected considerably. He is now very restricted in what he can do on his hobby farm. His tasks seem to be restricted to riding a ride-on mower for about 15 minutes at a time. He gets his son to do the heavier tasks. His inability to freely dress himself each day is notable.
28 Likewise, his inability to play golf is of relevance.
29 Mr Bozik is currently aged sixty-nine. Whilst he was likely to have retired from active full-time employment by this time, that does not mean that he would not have sought and been able to perform other forms of casual employment on an ongoing basis. Many retirees continue to work following the age of sixty-five or sixty-seven, often on a casual basis. Many retirees undertake driving trips around Australia. Recreational pursuits were likely to form an important part of Mr Bozik’s life in his post-employment years. In short, many persons of Mr Bozik’s age look forward to leading an active and enjoyable retirement for many years. Whilst there was no expert evidence as to Mr Bozik’s life expectancy, counsel for both parties conceded that it was likely that he would have a life expectancy of at least fifteen to twenty years. I consider it likely that he would have continued for a large portion of that period to maintain active enjoyment of his hobby farm, golf and other recreational activities and that these would have been an important part of his retirement years. I consider that these have, effectively, been permanently lost.
30 I accept that Mr Bozik has not taken large quantities of medication in recent years. I accept that the type and quantity of medication may be one factor to be looked at in determining the consequences of an injury; however, I do not consider that it is a conclusive factor, one way or the other. Mr Bozik has managed to maintain a relatively minor consumption of medication but is still required to regularly turn to analgesics.
31 I accept that Mr Bozik’s spine is permanently weakened as a consequence of his injury and that he is permanently vulnerable to further exacerbations in his condition.
32 Taking all the evidence into account, I am satisfied that the pain and suffering consequences of his injury are, when judged by comparison with other cases in the range of possible impairments of body function, fairly described as being “more than significant or marked” and as being “at least very considerable”.
Conclusion
33 For the reasons expressed above, I am satisfied that Mr Bozik has suffered a serious injury to his lumbar spine in the sense that that term is defined in s134AB of the Act.
34 Accordingly, there will be leave, pursuant to s134AB(16)(b) of the Act for Mr Bozik to commence a proceeding claiming pain and suffering damages in respect of injuries sustained by him in the course of his employment with the defendant.
35 I shall hear the parties in respect of legal costs or for other consequential orders sought.
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