Brandi v State of Victoria
[2013] VCC 72
•18 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03885
| ROY BRANDI | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 February 2013 | |
DATE OF JUDGMENT: | 18 February 2013 | |
CASE MAY BE CITED AS: | Brandi v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 72 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring a proceeding for pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Clark, Toop & Taylor |
| For the Defendant | Mr S J A Jurica | Lander & Rogers |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” contained in ss(37) of s134AB of the Accident Compensation Act 1985 (“the Act”); that is, “permanent serious impairment or loss of a body function”. The body function relied upon by the plaintiff is the function of the lumbar spine.
2 The plaintiff seeks leave to commence proceedings for the recovery of damages for pain and suffering.
3 It is conceded by the defendant that the plaintiff suffered a compensable injury on 31 December 2005, arising out of or in the course of his employment, to his lumbar spine. The plaintiff argued that the impairment of the function of the lumbar spine is a permanent impairment that has led to a number of consequences in relation to pain and suffering and loss of enjoyment of life that satisfy the test of seriousness. “Permanent”" means “likely to last for the foreseeable future”. [1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
4 This application really concerns a single issue, namely whether or not the consequences suffered by the plaintiff can be considered “serious” in accordance with the principles in Humphries v Poljak[2] and adopted in other cases subsequently. Sensible concessions, in my view, were made on the evidence.[3] These concessions included concessions as to the credit of the plaintiff.
[2][1992] 2 VR 129
[3]Transcript (“T”) 102, L21-31, T114, L3-10 and T119, L22-29
5 I find the injury is probably best described as pre-existing degenerative changes in the lumbar spine being rendered symptomatic. A number of references in relation to the description of the injury I will give in passing. Dr Ralphine Wall[4] describes multi-level disc disease causing low-back pain and, further,[5] she described lumbar spine pain with radiation to both legs. Dr Daniel Lewis[6] described multi-level disc degeneration and Mr David De La Harpe[7] described “…causing pre-existing degenerative change to become symptomatic”. Mr Michael Johnson[8] described disc degeneration. Mr Kevin King[9] described degeneration being rendered symptomatic. Dr Helen Sutcliffe[10] described discogenic persisting pain.
[4]Plaintiff’s Court Book (“PCB”) 32
[5]PCB 52
[6]PCB 55
[7]PCB 64
[8]PCB 74
[9]PCB 70
[10]PCB 84(v)
6 For the defendant, Mr Brendan Dooley, in 2007, described chronic low-back pain secondary to aggravation of lumbosacral disc degenerative changes.[11] The last MRI scan taken dated 24 January 2013[12] refers to disc degeneration with probable nerve root contact.
[11]PCB 84(b)
[12]PCB 87(a) and (b)
7 At the outset of the application, counsel for the defendant indicated that this was what is referred to as a “range case”. It was conceded that the plaintiff had suffered, in the course of his employment, an injury to the lumbar spine in compensable circumstances. By “range”, I understand counsel to mean that when this case is judged by comparison with other cases in the range of possible impairments or losses of the lumbar spine, it could not be fairly described as “at least very considerable”. In other words, the impairment that is conceded the plaintiff has suffered with respect to his lumbar spine does not meet the test of seriousness was the defendant’s argument.
8 Section 134AB(38)(c) specifically provides, “When judged by comparison with other cases in the range of possible impairments or losses of a body function or disfigurements as the case may be, fairly described as being more than significant or marked and as being as least very considerable”. That is the test I must consider.
9 The only witness required for cross-examination was the plaintiff. The evidence consists of three affidavits sworn by the plaintiff on 20 April 2011, 13 June 2012 and 18 January 2013, together with an affidavit from his daughter sworn 21 June 2012. The plaintiff tendered a number of medical reports from the Court Book and I will list as follows the material that was tendered. The plaintiff tendered reports found at pages 25 to 29, 32 to 33, 34(a), 64 to 72(c), 74 to 84(e) and radiology from pages 85 to 87(b) and pages 127 to 128. These comprise Exhibit A. Later I gave leave to add a further report from the general practitioner, Dr R Wall, dated 14 February 2013, Exhibit B.
10 The defendant tendered material as follows. From the plaintiff's Court Book, medical reports 29(a) to 31, page 34, and clinical notes at pages 35 to 46 from the plaintiff's Court Book. From the defendant's Court Book, documents at pages 15 to 20, 26(a) to 26(g), 37, 38(a) to 38(z), 42 to 47 and 53. In addition, an affidavit was tendered in relation to the late service of Dr Wall's report of 14 February 2013, and that affidavit by Mr John Cavanaugh dated 14 February 2013 became an exhibit.
The Plaintiff’s evidence
11 The vast majority of the evidence given by the plaintiff on affidavit, and from the witness box, was non-controversial in this case. However, it is necessary for me to summarise some of the material from the affidavit.
12 The plaintiff was born in 1966 and is aged forty-six years. He is a career policeman who has been in the police force since September 1995 and holds the rank of a Leading Senior Constable. He is generally a man of good health who maintained a high level of fitness and activity until suffering the low-back injury on 31 December 2005. There is reference to some minor back injuries prior to that, but I have not found on the evidence that these had any impact on either his capacity for work or his lifestyle prior to the subject injuries.
13 The injury on 31 December 2005 was essentially suffered following a sustained period of heavy lifting. The problem was compounded by the lack of assistance, as well as time constraints with respect to the tasks required of him. The plaintiff commenced to feel symptoms, namely pain in his lower back, towards the end of his shift on that day, but, in particular, over the ensuing days as symptoms became more and more severe in terms of pain. He first sought medical treatment on 2 January 2006. Conservative treatment followed, and is set out in the affidavits in detail, but the thrust of his affidavit material is that he has been in constant pain since 31 December 2005 and it is probably best summed up in this quotation:
“I have been troubled ever since the subject injuries by lower back pain which is variable in its severity and intensity but is always present.”[13]
[13]PCB 16
14 Subsequent affidavit references are as follows:
“I continue with constant pain in my lower back often referred into my buttocks and thighs.[14]
I attempt to manage the constant pain in my lower back through daily exercise and by limiting the physical activity that I engage in.[15]
But constant pain in my lower back is generally increased with prolonged or sustained sitting or standing and prolonged or sustained bending or twisting.”[16]
[14]PCB 19
[15]PCB 20
[16]PCB 20
15 In his final affidavit,[17] the plaintiff describes that “the pain in my back and legs has increased and I’m having more and more difficulties both at work and at home”. That is a reference to an increase of symptoms since his earlier affidavits, and I find that the plaintiff has suffered an increase in symptoms as time has gone on.
[17]PCB 22(a)
16 In an affidavit by his daughter, Virginia Brandi, she also describes[18] having observed her father appearing to be in pain, and has noted how he walks differently. He is generally in more pain in the morning and when he returns from work. She has observed from his slow movements and facial expressions signs consistent with him being in pain.
[18]PCB 23
17 The plaintiff was cross-examined about pain at some length and there were a number of transcript references relevant to the presence of constant pain. A large number of references were made to constant but variable in severity by the plaintiff in the course of his viva voce evidence. He referred also on a number occasions to the deterioration in terms of his back condition, and he describes deterioration in the following terms:
“I would say that my chronic pain – my acute pain is happening on a more frequent basis. For example, I’m in an acute episode as we speak now which I have taken medication for this morning. My lower back is in spasm now. The symptoms I have got now are as if someone has kicked me in the groin, and I feel slightly nauseous. Earlier in my injury it was a lot more infrequent. Now it’s happening more closer together. It’s like something’s touching the nerve in my back.” [19]
[19]T92
18 When asked about the intensity of pain, he described “the pain is worse” and said further, “it is worsening”. He graphically described his pain in these terms:
“Earlier on it had varied in how much it hurt. Now it hurts a hell of a lot.”[20]
[20]T93
19 The plaintiff’s evidence was consistent, in my opinion, in describing a picture of constant pain since being injured on 31 December 2005, and while it varied in severity, it was always present and has been up to the present time. I find as a fact that the plaintiff has suffered, and is continuing to suffer, constant pain over the last period of more than seven years since he was injured at the end of December 2005, and also that his condition is deteriorating in terms of the level of pain and disability that he is suffering at present.
20 I also find that the injury is permanent, in the sense of the foreseeable future. I accept as a fact that he is a well-motivated man who has endeavoured to follow the medical advice that has been given to him to assist in managing this constant pain, and he has diligently applied himself to following such medical advice.
21 I note what the Court of Appeal said in Haden Engineering Pty Ltd v McKinnon:[21]
“As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.”
[21](2010) 31 VR 10 at paragraph 10
22 In this case, the plaintiff has, in my opinion, suffered and is suffering constant pain.
23 I find that the plaintiff’s pain can certainly be described as “very considerable” as it is constant and continuing and, indeed, is worsening. It interferes both with his occupation and with a good deal of his lifestyle interests outside of his work, but I will say more about that later.
24 The defendant argued that an absence of/or paucity of treatment in recent times was a factor that militated against the Court finding that the level of pain was serious. I do not accept that argument. The plaintiff’s treatment has basically been to stay fit, bike ride as much as he can and generally to watch his weight, and be as active as the injuries permit. I find that the plaintiff has followed this advice and, with the assistance of medication on an ‘as required basis’, he has, through his own motivation, been able to stay in employment and keep a certain level of activity up, in particular, the bike riding that was specifically recommended to him.
25 I do not accept the defendant’s argument that the level of activities outside of work militates against any finding that the pain he suffers is constant, continuing at present and worsening. Accordingly, it is a major consequence for this forty-six-year-old man that he is suffering constant pain about which he can do little in terms of treatment except follow the medical advice that I have already described and limit his activities as advised to him and follow the activities and exercises advised to him.
26 It is, in my opinion, a very considerable consequence of the impairment of the low back for any plaintiff to be living a daily life of constant pain, worse at certain times of the day and made worse by certain activities, but nevertheless always there.
27 He suffers, for example, from an interference with his sleep. He describes that briefly in his affidavit material[22] where he deposes:
“I find that the pain often wakes me at night time, particularly if I’m turning over in bed.”
[22]PCB 16
28 He indicated also in evidence before me that he loses about two hours of sleep per night. He indicated that he is still often exhausted during the day as a result of lack of sleep and he described some of his problems in these terms:
“A:I just noticed that when I turn I wake up and it is difficult for me to get back to sleep. To time I probably lose say two hours, I don’t - - -”[23]
Q: Compared with how you were before you hurt your back?---
A:Yeah, that would be – I was a very good sleeper, uninterrupted and I’d sleep through anything.”[24]
[23]T46
[24]T47
29 In my opinion, such an interference with sleep is a very considerable consequence for the plaintiff. Loss of the capacity to enjoy a good night’s sleep is, in my opinion, a very considerable loss now for the plaintiff. The ability to enjoy life and work when one’s sleep is limited by two hours per day, and what sleep he does have is interrupted, satisfies me, and I find is a consequence that is “very considerable”.
30 I should also make this general comment about the plaintiff. I find as a fact that he was a very stoical man. The fact that he has had the motivation and the good sense to continue working full time and continue working in a sensibly reduced role, and to enjoy a number of physical activities, does not hide the fact that he suffers constant and continuing pain which still impacts on his life. I find as a fact that for a policeman, the lower back injury, and the impairment of the function of his lower back, has severely curtailed his prospects in his chosen vocation.
31 He indicated when he joined the force that he wished to become a homicide detective later in his career and, essentially, it is fair to say that he has had to carefully manage the work he can do in the police force, as well as hitting something of a dead-end in terms of future promotional prospects. I find as a fact that his work as a policeman has been severely limited by his lower back injury and that any future prospects he has have probably meant that he will be limited to non-operational duties which hampers his future prospects very considerably.
32 He has demonstrated very good sense, coupled with an ongoing motivation, to keep working as a policeman. For example, he describes how he joined the Bicycle Patrol Unit, which was a job consistent with medical advice he was given about staying fit and bike riding.[25] He described how it was on medical advice that he joined the Bicycle Patrol Unit after his doctor had said to him, “Well, you’re going to have to change your role”. When he applied to that Unit, he said words to the effect, “I am not coping with the duties at the moment”. He goes on to say that he was accepted into that Unit; however, he described it as “not a permanent position, it’s only temporary”.[26]
[25]T81
[26]T82
33 So after a period of some four to five years in the Bicycle Patrol Unit, which is a job he could essentially cope with, he was told that position had virtually come to an end. He says that he was threatened with being placed on the redeployment list and “they told me you must leave”.[27] I find as a fact that his next career move was again dictated by the limitations of his impaired lower back function when he went on and joined the Prosecution Section of the police force.
[27]T82
34 The plaintiff has continued to the present time working in the Prosecution Section. It was pointed out at some length and, indeed, an exhibit was tendered, indicating he had not taken all that many days off over the last few years from that job. However, I do not accept the defendant’s argument that the absence of days off taken from his job as a prosecutor reflects anything other than the fact he has been determined to keep his job, has stayed fit as best he can, and is indicative of a man who put up with his constant pain and endured it.
35 I do not accept the defendant’s argument that the fact of his being able to continue at work as a prosecutor, and with only a few days off here and there, as well as doing some overtime, should lead me to find that his work has not been affected by this injury.
36 There is further evidence in relation to the seriousness of the consequences of this injury on his career. He describes, and I accept, that he may have to be compulsorily retired should he take time off by way of extended sick leave. Thus, there is a real disincentive for him to take extended sick leave, and the fact that has not done so does not indicate a lack of symptoms in my opinion. It rather indicates a man who is doing his best to hang onto the career that his wishes to pursue, albeit in a role that is essentially non-operational and different from the role he would wish to carry out, namely as a homicide detective ultimately.
37 I consider it highly relevant that in a document by way of a Victoria Police medical officer reporting on 30 September 2010, which states as follows:
“He should not perform duties which involve regular or day-to-day performance of the following components of operation or general police duties:
driving –
·sitting for lengthy periods in a police vehicle;
·use of force and defensive –
·wearing OSTT [Operational Safety and Tactics Training] equipment for lengthy periods.” [28]
[28]PCB 127
38 This is a report in which the doctor also describes that the plaintiff has “a stable, but permanent medical condition”. This is the opinion of the Victoria Police medical expert.
39 There are many other aspects of the plaintiff’s enjoyment of life outside his work that, in my opinion, could be described as very serious consequences flowing from his low-back injury. He described in his affidavit material the interference with his enjoyment of his children’s activities, as well as his own sporting activities. For example, he deposes to being:[29]
“ … very actively engaged in sporting activities with both of my kids. It would not have been unusual, before my work injuries, for me to engage in going to tennis, soccer or football with my kids up to three times per week. I was very keen on encouraging them to adopt a healthy attitude towards exercise. I have had significant difficulty engaging in this type of activity with my kids since the onset of my work injuries. I am generally restricted in my ability to play kick-to-kick in the park with Jack and, although we have a family membership at Princes Hill Tennis Club, I am generally restricted in my ability to play tennis with Virginia or Jack.”
[29]PCB 21
40 Virginia is the plaintiff’s nineteen-year-old daughter and Jack is his fourteen-year-old son. The plaintiff described in oral evidence how he has had to curtail his son’s soccer club activities on account of the limitations the plaintiff had from his back injury with respect to driving Jack to the club, as well as practising with him, such as kick-to-kick sessions. I find that such interferences, with a man who is and has always been very keen on sport and physical activities, is a serious consequence. The loss to him over the years, when his children would have been growing into teenagers, is, in my view, very considerable.
41 The plaintiff describes in his affidavit[30] about how he avoids driving for prolonged distances because of the pain and difficulty his lower back injury causes him. He also spoke about the difficulties he had while driving the divisional van; how it would “have a very bad effect on my back”.[31] He described that living in Carlton he did not have to drive very much in order to get to work. He described driving difficulties in these terms:
“If I do drive, if I take my son somewhere, it does cause me a lot of pain being seated in the car driving.”[32]
[30]PCB 22
[31]T53
[32]T54
42 When cross-examined about how far he could drive, the plaintiff said:
“A short distance will have less effect than a long distance. If I travel a long distance I need to get out and stretch my back.”
43 When pressed further, he said:
“It doesn’t keep into a cyclical time thing, like I say – if I drive for 30 minutes on the 30 minute mark, bang, it will happen. It’s not like that. It is an injury that reacts differently every time.”[33]
[33]T54
44 And a little further:
“It might start after five minutes, it might start after 20 minutes.”
45 Further, when describing sitting:
“Q:What about sitting, do you get increased pain when you sit for too long?---
A: “My back stiffens up. Yeah, it does stiffen up.”[34]
[34]T54
46 The limitation on a man with teenage children, who is limited in terms of his capacity to drive them and himself around, which is consistent with what was described by the police medical officer, is a very considerable handicap in my opinion.
47 The plaintiff described further difficulties driving and how they impact on his capacity to assist his son who was playing soccer, and he described it in these terms:
“A:Last year I didn’t enrol him in the club, because I had to drive him to soccer training, to wait around in the car, and then to drive him to the different venues every – I think it was on Sundays – it was a huge burden, so I didn’t – I didn’t enrol him in the club, which he wanted to play.
Q:How did you feel about that?---
A:Bad. Very bad.”[35]
[35]T95
48 For a parent, it goes without saying that with active children, chauffeuring them around, as they pursue their various activities, particularly sport, is a very important part of one’s duties. To suffer the loss of the capacity to do that, to the extent of having to cease one’s son’s involvement at playing at a soccer club, is a very considerable loss to anyone, let alone a very active and sporting-minded man such as the plaintiff.
49 Accordingly, I find on the evidence that the inability to sit for long periods, and in particular, how that affects driving because of the pain that the plaintiff suffers, is a consequence that I would describe as “serious”.
50 Essentially, three arguments were advanced to me by the defendant why the Court should find that the injury and impairment do not result in serious consequences. The first argument was with respect to the plaintiff's capacity to work. I have already dealt with that in a number of passages quoted thus far. An examination of his work duties and positions reflects really a sensible accommodation of a serious injury, plus the motivation to continue working.
51 I do not accept the defendant’s submission that the positions the plaintiff has held, and presently holds in prosecutions, indicate that the injury is not serious. He has and continues to work in such a role acting on medical advice. The lack of time off and the overtime work he has done is due to his motivation to keep his job, and do not reflect anything other than determination to put up with the pain that he suffers.
52 A number of doctors speak about the accommodation of duties and I will refer briefly to Dr Wall, the general practitioner,[36] in relation to placing him on permanent bike patrol duties; Mr Kevin King,[37] who said it was unwise for him to return to normal police duties and he thought the transfer to the Bike Squad was “very appropriate”;[38] Dr Helen Sutcliffe[39] speaks of his job in non-operational work as a prosecutor as he having “found an appropriate way through his work-related injury”.[40] I have already quoted Dr Eaton, the police medical officer, in relation to his duties.
[36]PCB 53
[37]PCB 71
[38]PCB 75
[39]PCB 84(v)
[40]PCB 128
53 The second argument advanced by the defendant was really in relation to the lack of treatment or the paucity of treatment. I find that there is no treatment reasonably available to the plaintiff other than to be as active as he can, watch his weight, keep fit and a number of doctors refer to the appropriateness of such treatment. His treating physiotherapist, Dinah Locke,[41] speaks about his symptoms as being difficult to treat and unresponsive to various techniques. She says, "He has worked hard with his core stability exercises”. [42]
[41]PCB 54
[42]PCB 58
54 Another treating practitioner, Mr David De La Harpe,[43] thought the bike riding contributes to his rehabilitation. Mr De La Harpe makes no other treatment suggestions. Mr Michael Johnson,[44] another treater, advised that he continue with his regular exercise. Mr Dooley, the only doctor for the defendant,[45] thought that swimming and gym, that is an exercise regime to strengthen his back, was the treatment that was advisable.
[43]PCB 65
[44]PCB 75
[45]PCB 84(b)
55 I find that the plaintiff has acted reasonably in keeping up a rigorous physical routine of exercises, bike riding, jogging with some medication, and this has allowed him to keep working in a non-operational role in spite of constant pain. I also find that there is reasonably no other treatment open to him, other than to follow the advice which he has done diligently.
56 The third argument of the defendant was essentially that the level of his activities outside of his work, that is the jogging, long bike rides, including the Great Victorian Bike Rides and exercises all indicate that the lumbar spine injury is not serious. I do not accept that argument. I find that these activities are required because of the very considerable limitations the injury imposes on him, and he must maintain such mobility and strength in order to keep working.
57 Accordingly, I do not accept the arguments of the defendant that the plaintiff's injury is not serious. The evidence produced in the defendant's tender of documents included absence records, overtime records, correspondence from Police Force members and clinical notes, do not assist me. They reinforce the finding I make that the plaintiff is a highly motivated man in terms of staying at work and following the medical advice I have already described as to how best to accommodate a constantly painful lumbar spine.
58 I grant leave to the plaintiff to commence proceedings for the recovery of damages for pain and suffering.
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