Brennan v Swire Cold Storage Pty Ltd
[2012] VCC 2005
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-06303
| ROBERT JOHN BRENNAN | Plaintiff |
| v | |
| SWIRE COLD STORAGE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 December 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Brennan v Swire Cold Storage Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2005 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower limb – pain and suffering only – injury to lower limb – mental or behavioural disturbance or disorder – consequences of injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622
Judgment: Leave granted to the plaintiff pursuant to s134AB (16)(b) of the Accident Compensation Act 1985 to commence an action claiming damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitor |
| For the Plaintiff | Mr J Valiotis | Ryan Carlisle Thomas |
| For the Defendants | Mr J Harris | Herbert Geer |
HIS HONOUR:
1 Mr Robert Brennan suffered injury to his left lower limb during the course of his employment with the first defendant on or about 17 March 2008. Further, he alleges that he has suffered a mental or behavioural disturbance or disorder as a consequence of physical injury. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of those injuries.
2 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, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function” [or]
(b) …
(c)permanent severe mental or permanent severe behavioural disturbance or disorder
(d)… .”
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622
5 The terms “serious” and “severe” are to be satisfied by reference to the consequences to Mr Brennan of any impairment or loss of a body function or mental or behavioural disturbance or disorder, as the case may be, with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function, or mental or behavioural disturbances or disorders, respectively.[3]
[3]Section 134AB(38)(b)
6 The term “serious” is to be satisfied by reference to the consequences to Mr Brennan of any impairment or loss of function with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.
7 The 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, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
8 A mental or behavioural disturbance or disorder shall not be held to be severe 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 mental or behavioural disturbances or disorder, fairly described as being more than serious to the extent of being severe.[5]
[5]Section 134AB(38)(c)
9 Mr Brennan claims, and the defendants dispute, that:
(a) that the pain and suffering consequences of his physical injuries can fairly be described as being more than significant and at least very considerable;
(b) that the pain and suffering consequences of his non-physical condition can fairly be described as being more than serious to the extent of being severe.
Background and Injury
10 Mr Brennan is aged thirty-six. He completed Year 10 education. He resides with his partner, Holly Anderson. They have two children, born in 2004 and 2006 respectively.
11 Upon leaving school, he worked for a time as a storeman, and then only partially completed an apprenticeship as a motor mechanic. He commenced work with the first defendant in June 1995 as a forklift driver and storeman.
12 In 1998, Mr Brennan injured his left leg and left arm in a motorcycle accident. As a consequence, he still has difficulty kneeling on his left knee. Nevertheless, he was able to return to work and perform normal duties on a full-time basis.
13 In March 2006, he injured his right shoulder in the course of his employment. He underwent an arthroscopy in February 2007. That injury still troubles him with pain and restriction of movement, particularly in cold weather. Nevertheless, he was able to return to work on normal, full-time duties afterwards.
14 He enjoyed doing up cars. He had a 4-wheel drive vehicle which he worked on.
15 On 17 March 2008, his left leg was crushed between the blade of a forklift and pallet truck (“the accident”). It is this injury and its consequences which are the subject of this application.
16 X-rays taken following his admission to hospital revealed fractures of his left tibia and fibula.
17 Mr Ton Tran, orthopaedic surgeon, performed surgery on Mr Brennan’s leg. He subsequently attended a rehabilitation centre for some time.
18 Following surgery, his left leg was immobilised in an above-knee full plaster cast for about ten weeks. Upon the removal of that cast, a plastic splint was subsequently fitted.
19 For some years he had attended the Carrum Downs Medical Centre, where he saw various doctors, but principally, Dr Robert Jordan. Upon his discharge from hospital and rehabilitation, he continued to consult that clinic and, in particular, Dr Jordan from time to time. For a few months after the accident, he was prescribed Panadeine Forte. Later in 2008, he was prescribed anti-inflammatory medication
20 He returned to work in November 2008 on light duties. He was using crutches at that time. He had difficulty climbing stairs to get to the office where he was required to be. The nature of his duties at that time are not clear. In his first affidavit, Mr Brennan says that he spent most of the time reading the paper and would then be sent home.[6] Nevertheless, he conceded that his hours of work following his return to work got up to about 40 hours per week. Generally, he worked 8 hours per day, five days per week. He did not return to his prior duties. He did not operate pallet trucks. He found it difficult to get on and off them. He did not unload containers by hand as he had previously done. He never returned to his previous position as lead hand.
[6]Plaintiff’s Court Book (“PCB”) 21
21 Mr Brennan ceased work with the first defendant in March 2009, at which time he accepted a redundancy package. He said that his work involved much time in the cool room, and his leg symptoms were worse in the cold conditions. He conceded that his old shoulder and arm injuries also troubled him in cold conditions.
22 Mr Brennan obtained work delivering chickens for about four weeks. In July 2009, he commenced work with Alto Manufacturing Pty Ltd as a nightshift storeman. He is still employed by that company. His duties mainly involve the driving of a forklift. He works about 40 hours per week. He has been there about three-and-a-half years. He has not taken time off.
23 From about September 2008, Mr Brennan has complained to Dr Jordan of symptoms of depression and anxiety. In December 2008, Dr Jordan referred him to a psychiatrist, Dr Vinay Kumar. Dr Kumar has seen Mr Brennan on numerous occasions since that time. He prescribed anti-depressant medication for Mr Brennan, and that continues to be the case.
Diagnosis of Injury
24 Evidence concerning Mr Brennan’s physical injury was relatively non-contentious. X-rays showed a transverse non-displaced fracture of the lower tibia, 8 centimetres above the ankle, and a transverse fracture of the fibula. Union of these fractures was slow but eventually occurred. He has been left with a slight posterior angulation or bowing of the tibia.
25 He has impaired sensation over the medial aspect of his leg and foot consistent with the distribution of the long saphenous nerve apparently damaged in the accident. He also has sensory impairment of the left sural nerve and thigh muscle wasting which is considered to be related to the earlier motorcycle accident and related treatment.
26 In relation to Mr Brennan’s non-physical injury, his treating psychiatrist, Dr Kumar, considers that he meets the criteria for a Major Depressive Disorder and Chronic Pain.[7]
[7]PCB 59
27 Mr Brennan has also been examined on a medico-legal basis by psychiatrists, Dr David Weissman, Dr Timothy Entwisle, Professor George Mendelson and Dr John Douglas.
28 Dr Weissman, who examined Mr Brennan recently, considers he suffers from a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity, associated with mild, residual traumatisation features.[8] In December 2008, Dr Timothy Entwisle expressed similar views,[9] as did Professor Mendelson in November 2009.[10]
[8]PCB 106
[9]DCB 11, 12
[10]DCB 18
29 In December 2009, Dr Douglas’ diagnosis was of Major Depressive Disorder.[11]
[11]DCB 42
Consequences of Injuries
Mental or Behavioural Disturbance or Disorder
30 In the plaintiff’s affidavit sworn on 28 June 2011, Mr Brennan deposed that he saw a psychiatrist, who was treating him for anxiety and depression as a result of his accident. He made no reference to any consequences of that condition. Likewise, in his supplementary affidavit sworn on 10 August 2012, there was no reference to any such consequences. Counsel for Mr Brennan relied upon reports of psychiatrists which had been tendered. Counsel submitted that I should have regard to the prescription of anti-depressant medication by Dr Kumar from the time of his first consultation in December 2008. He pointed out that Lexapro had initially been prescribed in 20‑milligram strength and that this had been increased as high as 70 milligrams. He was then commenced on 60 milligrams of Cymbalta in June 2010. This had increased to 120 milligrams, before being slowly decreased, and later ceased, because Mr Brennan had felt it was no longer beneficial. He was then commenced on 50 milligrams of Pristiq, which had been increased to a dose of 150 milligrams in May 2012, and then to 200 milligrams more recently.
31 Dr Kumar reported that when he saw him in May 2012, Mr Brennan’s mood was a little low, as were his energy levels. He noted he had been sleeping to excess, had a good appetite, had been interacting with his children but was not motivated to partake in household chores. He noted that cognition had improved and that self-esteem was good. Dr Kumar believed that Mr Brennan had the capacity to perform his pre-injury duties on a full-time basis. He considered that psychological or psychiatric consequences did not cause him to be precluded or restricted in relation to social, domestic or recreational activities for the foreseeable future. Notwithstanding, he thought that Mr Brennan would require at least one year of psychotropic medication. He considered that his prognosis in the short and long-term was good.
32 In September 2012, Dr Weissman took a history from Mr Brennan that:
(a) He felt sad and frustrated;
(b) He had what were described as “bad turns” when he felt particularly depressed, was in bed crying and when nothing would settle him down;
(c) Whilst his confidence was “not real high”, his self esteem was “probably okay”;
(d) He had some post-traumatic symptoms, such that if he saw someone else drive a forklift it reminded him of his accident and he “freezes up” and experiences hypervigilance and hyperarousal;
(e) Bad days when he felt really depressed, tearful and inconsolable occurred once every month or two months;
(f) Earlier in 2012, he had had a “bad day” when he had suicidal thoughts but he had not experienced any further suicidal thoughts since.
33 Dr Weissman took a history that his Pristiq medication had recently been increased to 200 milligrams daily. This indicated to Dr Weissman that his depression was “not insignificant”.
34 Dr Weissman considered that Mr Brennan’s Chronic Adjustment Disorder with Depressed and Anxious Mood was of “mild to moderate intensity or severity, associated with mild, residual traumatisation features”. When providing his prognosis, he described Mr Brennan as having mild to moderate work-related psychiatric, psychological, emotional and behavioural symptoms, signs, features and disturbance. He opined that since the injury, there had been a moderate decline and deterioration in his quality of life, level of function and functional impairment (predominantly physically-based), level of enjoyment and of pleasure, along with a mild to moderate degree of psychological and emotional pain and suffering. Dr Weissman considered that on psychiatric grounds alone, there was no psychiatric incapacity for work per se. He expressed no view as to the permanency of the condition or otherwise.
35 Dr Entwisle has not seen Mr Brennan since December 2008. He considered that Mr Brennan would be able to return to work on a graduated basis with appropriate support and treatment and this has turned out to be the case. He expressed no view about the permanence of his condition.
36 Professor Mendelson has not examined Mr Brennan since November 2009. At that time, he considered that Mr Brennan required ongoing treatment under the care of a consultant psychiatrist in relation to his Adjustment Disorder with Depressed Mood. He thought there was no indication that the residual depressive symptoms, which he described as “mild”, were causing any loss of work capacity. He expressed no view as to whether the condition was permanent or otherwise.
37 Dr Douglas has not seen Mr Brennan since December 2009. At that time, he took a history that Mr Brennan had been less sociable since his accident and that in mid 2009, he had taken his son to a football match, but when they got there he felt he could not go in because of the crowd. On the day of the examination, Mr Brennan caught public transport to the city and this was apparently somewhat difficult for him. Dr Douglas opined that there may have been continuing improvement in his condition. Mr Brennan gave evidence that he had attended the 2012 AFL Grand Final with his son. I am aware that this was an occasion involving the attendance of a very large crowd. Mr Brennan’s ability to attend such an occasion indicates some real improvement in his condition over the last three years.
38 Whilst I acknowledge that Mr Brennan continues to be prescribed anti-depressant medication, I note that he has been able to remain in full-time employment and participate in a wide range of family activities.
39 It is likely that Mr Brennan does suffer from a degree of depression on account of his ongoing pain and discomfort. However, I am not satisfied that he has established that any mental or behavioural disorder from which he suffers can properly be described as “more than serious to the extent of being severe”. Nor am I satisfied that that condition is a permanent one. In particular, I take into account the absence in Mr Brennan’s affidavits of any reference to symptoms of depression or anxiety.
Consequences of physical injury
40 Having regard to the affidavit and oral evidence given by Mr Brennan and the medical reports tendered, I find that the consequences of Mr Brennan’s physical injury to his left lower limb are as follows:
(a) He suffers from ongoing pain which increases as he works. His pain is exacerbated by cold conditions. His employment with the first defendant required him to work in a cool room for a large portion of the time. This exacerbated his pain. He takes Nurofen tablets in respect of that pain during his working shift;
(b) He is limited in the distances he can walk. He states that on a good day he can walk about 500 metres. Likewise, he is limited in the amount of time that he can stand. He is a passionate AFL football supporter and prior to his injury, he attended most of his team’s weekly games during the football season. On occasions he even travelled interstate for that purpose. He enjoyed taking his children to matches. As a result of his limitations in walking and standing, he rarely attends. He did go to the most recent Grand Final and on one occasion during the most recent season he attended at the Etihad Stadium on an occasion when his son was playing in the AusKick competition at half-time in the main game. Following that occasion, he spent most of the next day on the couch as a consequence of an increased pain as a result of standing in queues and negotiating stairs at the ground;
(c) He is limited in the amount of activities that he can do with his children. For instance, prior to his injury he was capable of running around and having a kick of football with his children. This is no longer possible. One or more of his children participate in AusKick activities. Regularly parents are invited to participate in a parent and children social game. He is not able to participate;
(d) He is limited in driving a manual vehicle as a consequence of the use of his left leg to operate the clutch. He formerly owned an XR6 Falcon sedan which he described as his “pride and joy”. He had spent much time and money on the vehicle. Because it was a manual vehicle however, it was painful to use the clutch pedal with his left foot. He now drives an automatic vehicle. Prior to his present employment, he worked as a delivery driver for a few weeks in a manual vehicle. He found that this caused additional pain in his left lower leg, and he ceased that employment;
(e) He is limited in the range of employment that he could cope with. He would not be able to perform duties which required him to be on his feet for any extended period. His current employment involves him driving a forklift most of the time. Although he was required to alight from his forklift regularly through the day, there is very little walking involved. At present he copes with his employment and I find that this is likely to continue in the future. However, in the event that he was to lose his current job for any reason, he would find it more difficult then to find other work because the range of jobs that he could perform would be substantially reduced as a consequence of his injury. His capacity to work is impaired;
(f) He is unable to perform gardening work at his home as a consequence of his pain;
(g) His sleeping is impaired. He wakes, particularly if his leg becomes cold. On occasions he has requested sleeping tablets be prescribed by his general practitioner;
(h) He enjoyed his previous employment with the first defendant. He was lead hand. He was never able to return to his full duties after the accident and never resumed his position as lead hand again. I accept that he would prefer to be working at his old job with the first defendant if he could. Apart from the wages being better than in his current position, he would also be able to work a normal dayshift. He currently works the nightshift because he receives an additional loading of his hourly rate to make up for the lower wage;
(i) His weekly income net of taxation is $250 to $300 less than it was whilst employed by the first defendant. This has caused some stress with his partner who has been working extra shifts to make up for his reduced income;
(j) He has difficulty walking on uneven surfaces. Previously he and his partner enjoyed going camping and on 4-wheel drive trips. This is now more difficult.
41 In cross-examination, Mr Brennan was shown film taken of him on 7 November 2011. Counsel for the defendants submitted that the film (of about 12 minutes) showed Mr Brennan walking relatively freely to pick up his child from school. This involved a return walk of about 300 metres. I did not regard the DVD film as being of any great assistance to either party in the proceeding. Mr Brennan appeared able to walk in bare feet over the limited period depicted. Counsel for Mr Brennan submitted that the film showed him limping at times. I agree, although the limp is not severe. In any event, I do not consider that the film in any way detracts from the evidence of Mr Brennan or indicates that he is capable of doing more than he indicated in his evidence.
42 Counsel for the defendants tendered a number of medical reports dating back to the late 1990s and early 2000s. These reports have been prepared in relation to the earlier motorcycle accident in which Mr Brennan had been involved in 1998. Counsel did not take me to any of these reports in his final address, but indicated that a reading of them showed that in the period between 1999 and 2003, he had physical problems which affected him. I observe that he told Professor Kilpatrick in October 2003 that he could no longer play football. I consider that this is a reference to his previous playing of competitive football rather than social football that he might enjoy with his young children. It was not part of Mr Brennan’s claim in the present case, that but for his workplace injury, he would have been able to play competitive, regular football. His claim was that he could no longer enjoy kick-to-kick social football with his children at home or at AusKick. I accept that he cannot.
43 Counsel for the defendants drew my attention to a history provided by Mr Brennan to Dr John Honey in April 2003 that he was unable to kneel on his left knee and that his knee gave way whilst he was walking. He further drew my attention to the history given at that time that his social life was restricted; that he did not go out much any more and that he did not feel confident about his arm. I accept that Mr Brennan may have had some problems with his left knee and arm as recently as 2003. However, those problems did not prevent him from working full time and performing unrestricted, heavy duties, often involving him being on his feet. He had not been required to take time off work for many years prior to the relevant workplace accident.
44 I accept that it may have taken Mr Brennan some time to fully recover from the 1998 injury and build up his confidence. I consider that he had largely recovered from his earlier injuries and, before the accident, was able to lead an essentially unrestricted work and recreational life.
45 I was impressed by Mr Brennan as a witness. I considered he presented his evidence in an honest and understated manner.
46 Taking all the evidence into account, I am satisfied that the consequences of Mr Brennan’s leg injury are more than “significant” or “marked” and are at least “very considerable” for him. I note his age of thirty-six indicates that he probably has a life expectancy of approximately fifty years or more. I consider that he is likely to suffer ongoing pain.
Conclusion
47 For the reasons expressed above, I am satisfied that Mr Brennan has suffered a “serious injury” as that term is defined in the Act.
48 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by Mr Brennan in the course of his employment with the first defendant on or about 17 March 2008.
49 I shall hear the parties in respect of costs.
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