Broom v Tag Personnel Pty Ltd and Victorian WorkCover Authority
[2012] VCC 1288
•21 September 2012
| 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-11-05243
| MARC BROOM | Plaintiff |
| v | |
| TAG PERSONNEL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SHELTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 September 2012 | |
DATE OF JUDGMENT: | 21 September 2012 | |
CASE MAY BE CITED AS: | Broom v TAG Personnel Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1288 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – are the pain and suffering consequences of the injury “more than significant or marked and at least very considerable”?
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242
JUDGMENT – Leave refused to the plaintiff to issue proceedings for the recovery of damages with respect to pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay | Slater & Gordon Ltd Lawyers |
| For the Defendants | Ms S Gold | Lander & Rogers |
HIS HONOUR:
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a back injury suffered by the plaintiff in the course of his employment with the first defendant on 28 July 2008 (“the injury”). On that day, the plaintiff was struck by a reel of conduit, which he estimated weighed at least 200 kilograms. He fell heavily approximately 6 foot to the ground from a tray on the rear of a truck (“the accident”).
2 Section 134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.
3 Section 134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon by the plaintiff for the purpose of paragraph (a) is his lower back.
5 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to pain and suffering only.
6 Section 134AB(38)(j) of the Act requires me to assess whether, at the present time, the plaintiff has a serious injury.
The Issues
7 It is not in issue that the accident occurred and that the plaintiff injured his back in the accident. What is in issue is whether the pain and suffering consequence of the injury is, “when judged by comparison with other cases in the range of possible impairments … of a body function … fairly described as being more than significant or marked, and as being at least very considerable” (s134AB(38)(c) of the Act).
The Plaintiff’s Evidence
8 At the date of the accident, the plaintiff was aged eighteen. He is now aged twenty-two. In 2007, he completed his Victorian Certificate of Education at Keilor College. At the time of the accident, he was in good health.
9 When he left school, he wanted to be an electrician like his father. He states that he put in over a hundred applications for an electrical apprenticeship after leaving school. While awaiting the outcome of these applications, he did labouring work through a labour hiring agency. On the first day working for the first defendant, which was such an agency, the accident occurred. He attended Emergency at the Northern Hospital. He subsequently consulted general practitioners and also undertook physiotherapy and chiropractic treatment. He also undertook treatment from an osteopath in December 2009, which is still continuing, and consulted Dr Steven Jensen, a specialist in musculoskeletal pain medicine.
10 The plaintiff commenced an electrical apprenticeship in February 2009. He has been in constant full-time employment as an apprentice electrician since then and completes his apprenticeship in March 2013. He states that he is on his feet all day and that his employment involves reaching, squatting and, on occasions, lifting weights up to 20 kilograms. He has two junior apprentices working with him and they now do most of the heavy lifting necessary. He has already used ten days’ sick leave this year on account of his back and takes from his annual leave if he is required to have further time off work on account of his back.
11 The plaintiff states that he has almost constant pain in his back. It varies in intensity and flares up on occasions. In an affidavit sworn 2 June 2011, he states:
“… On bad days, the pain in my back radiates into my hips and spreads into aching in the back of my left thigh. I also have a constant uncomfortable sensation of tightness in the back of my left calf.
My back pain is worst at the end of the day. The pain leaves me feeling exhausted at night but it also makes it very difficult for me to get comfortable and get to sleep at night. I usually wake several times each night due to the pain and will often need to get up and walk around for a while to stretch my back before I can get back to sleep. … I will now regularly use hot packs or have hot radox baths before bed to help ease the pain in my back. I find my back is stiff in the mornings and it takes me a good while to get going for the day.
…
I find that my back pain will really flare up if I sleep in another bed or a swag as I often used to and this often puts me off travelling or visiting family and friends. I also find that driving extended distances causes me increased pain. I start to feel uncomfortable after about half an hour of driving and usually within an hour I have to stop and take a break due to the pain before I can continue driving. By the time I arrive at my destination I am often sore and irritable and often take some time to recover. This takes a lot of the enjoyment out of the trip or visit and I find now that I am rarely motivated to go now as a result.
In the times I have been hunting, since my injury, I have found that I cannot relax and enjoy it because I am constantly watching my footfalls on the uneven ground to avoid jarring my back. I end up hanging back from the group and generally feel out of the activity and self-conscious. This makes me frustrated that I cannot do the things I want to be doing because of my back and I do not get the enjoyment from the activity anyway and so I tend not to go often. I also find that these trips now really take it out of me because of the back pain. I am exhausted and irritable by the time I get home.
I find that the cold significantly aggravates the pain in my back. This includes cold weather on site at work. But this also limits my ability to undertake water based leisure activities. I now avoid going out on the boat with my grandfather for this reason and also generally avoid water activities like swimming. … .”
12 The plaintiff stated that he has worked overtime occasionally on a Saturday. He would like to work more overtime but cannot, on account of his back.
13 He has days when he is completely bed bound. On bad days, he comes home from work and lies on the floor until he goes to bed.
14 He stated that on good days, he could travel in a car for three hours without a problem but that on a bad day his back would be sore after ten minutes.
15 He stated that his back pain limited his intimate relationship with his fiancée.
16 A few times each week, his back pain causes him to toss and turn in bed, necessitating his getting up and going for a walk, which normally frees up his back.
17 He is not presently seeing any doctors in respect of his back, and it would appear he has not done so for some time.
18 The plaintiff stated that he generally avoided taking medication since this aggravated a gastritis condition from which he suffered. When his back pain flares up, he takes Panadol or Nurofen. He takes this non-prescription medication a couple of times per week on average. He stated that he can normally cope without pain relief. He obtained more relief from massage by an osteopath than from medication. He stated that he normally managed his back pain with “activity, stretching, hot packs and baths”.
19 He stated that he had attempted water skiing on a few occasions since the accident but this caused his back condition to flare up.
20 Up until six months ago, he was attending a boxing gymnasium approximately once a month, doing bag punching, skipping and jogging, although the jogging tended to aggravate his back pain. He occasionally went running for pleasure, although after about 2 kilometres he felt “pretty exhausted”. He goes rabbit hunting, normally on his own, every three or four weeks. This would entail walking around in the country for about an hour. About once a year, he goes wild pig shooting near the Queensland-New South Wales border. It is a ten-hour drive to the hunting ground.
21 In March 2012, he enrolled for ‘Tough Mudder’, a gruelling physical endurance test conducted at Phillip Island, and paid $150.00 registration fee. He was to take part with his friends but in training for the event, injured his back and realised that it would be beyond his physical capacity.
22 The plaintiff stated that his back pain did not cause any restrictions with his social life.
Medical and Like Evidence
23 Refreshingly, there is general agreement as to the present condition of the plaintiff’s back and his prognosis.
24 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of his general practitioner on 16 December 2008. In a report of 22 December 2008 to the plaintiff’s general practitioner, he stated that plain x-rays of the spine were normal and that the plaintiff had sustained soft-tissue injuries to the spine.
25 Dr Steven Jensen, musculoskeletal pain medicine specialist, saw the plaintiff on two occasions, the last occasion being on 9 November 2010. In a report of 11 November 2010 to the plaintiff’s solicitors, he reported:
“… Given his night pain and the significant stiffness after incapacity, I elected to trial a course of oral cortisone tablets to see if there was a reversible inflammatory component to his pain.
At follow-up on 9th November 2010 he told me this medication had not made any difference to his pain or level of stiffness but had only upset his gastrointestinal tract.
We discussed further possible treatment interventions including various injection interventions.
However, after some discussion we agreed that given he is coping with the majority of his lifestyle activities including his work activities despite his ongoing pain he would merely continue with his exercise programme in an attempt to maintain a reasonable level of activity.
He was advised to attend again if he wished to pursue any of these injection techniques.
…
… I believe the diagnosis here is residual mechanical thoracolumbar spine dysfunction with some suggestion of a residual radiculopathy probably at the L2 level causing the persistent left anterior thigh paraesthesia and the residual wasting through his left lower limb.
…
… After this length of time it is highly unlikely that his symptoms will resolve to any significant degree.
However, if he manages to maintain some reasonable level of physical fitness then it is also highly unlikely that the situation will deteriorate.
… .”
26 The plaintiff confirmed that he had decided not to proceed with injections, as he was coping adequately without. He stated that his pain presently was constant but that if it worsened, then he would consider the course of injections suggested by Dr Jensen.
27 On 4 February 2011, Dr David Fish, consultant occupational and environmental physician, examined the plaintiff for the defendants’ insurer. In a report of that date, he states:
“Mr Broom presents with a persistent soft tissue injury following a traumatic incident at work. In my opinion, there is no definitive structural injury to the thoracic or lumbar spines. I do not consider the sensory loss over the left lateral thigh represents a radicular sensory loss.
He is best diagnosed in my opinion as having a persistent soft tissue injury of the thoracolumbar spine following the injury.”
28 Mr Paul D’Urso, neurosurgeon, examined the plaintiff at the request of his solicitors. In a report dated 28 March 2012, he states:
“He appears to have sustained soft tissue injury to the left side of his body and particularly in the lumbar region. There appears to be pre-existing degenerative thoracic disc disease prior to the accident. …
He appears to have partial incapacity of a permanent nature which prevents him from performing more arduous physical activities. …
His condition is presently stabilised.”
29 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitors on 23 July 2012 and provided a report dated 25 July 2012. It states:
“X-rays of the thoracic and lumbar spine in August 2008 show no abnormality.
A CT scan in August 2009 shows minimal diffuse bulging of the lumbosacral disc.
An MRI scan of the thoracic and lumbar spine is a rather limited examination but shows some minor loss of signal in the thoracic region and minimal loss of signal in the lumbosacral disc, but no significant disc bulge.
…
Essentially however, his ongoing problems are of mechanical back pain and stiffness as a sequel of extensive soft tissue injuries to the back.
… He has some genuine restriction of back movement and of straight leg raising. He has changed employment and is currently completing an electrical apprenticeship. He seems to be coping with this reasonably well, but his back will be vulnerable to injury with heavy lifting. … There were no inconsistencies. … He states that he has difficulty with prolonged sitting or standing and heavy physical work. …
He is seeing an osteopath once a month. The treatment is not unreasonable but does not appear to be providing any sustained improvement. His condition is stabilised. …
The prognosis is that his back will be vulnerable to further injury.
30 Mr Paul Langley, osteopath, first saw the plaintiff on 2 December 2009 and has seen him regularly since. In a report of 27 August 2012, he states:
“I believe Mr Broom’s main problem to be a lower left costo-vertebral joint injury, though the MRI performed on the 29th of June 2010 does not give a clear indication of this. Clinically, all of his symptoms are in keeping with this diagnosis.
The prognosis is guarded, and given that four years have passed since the injury occurred and the continuing nature of this condition, I would expect it to persist into the future. Heavy impact injuries to this area of the body very often do have a long lasting effect. In my experience it seems that if the body has not fully recovered fully during a time such as the four years in Mr Broom’s case, then it is most likely that the problems associated with the initial injury will persist in the longer term.
Osteopathic treatment does seem to alleviate his condition and provide pain relief. However, this is short term and does not provide a long term effect. I believe Mr Broom should continue to receive osteopathic treatment while it provides him with pain relief and reduction in his symptoms. While providing only temporary improvement it does help increase and maintain his flexibility and function.”
31 As appears, the preponderance of medical evidence is that the plaintiff has suffered a soft-tissue injury to his back, and the application proceeded before me on that basis.
Discussion and Conclusions
32 There was no attack on the plaintiff’s credibility as a witness. He struck me as a stoic individual who was endeavouring to overcome the consequences of the injury and lead a normal life.
33 As to stoicism, I note the comment in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph 3 by Nettle JA:
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
34 I also note the comment of Tate JA in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph 81:
“… In a case of stoicism, the question must always be: ‘What is the plaintiff stoical about?’ It remains necessary to establish that the plaintiff is stoical about pain and suffering that is more than ‘marked’ or ‘significant’.”
35 In Sutton, Tate JA, with whom Ashley JA and Hargrave AJA agreed, at paragraphs 46-50, followed the President’s comments in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 upon the “pain and suffering consequence” of an injury. In particular, she quoted with approval the President’s comment at paragraph 15 of Haden:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”
36 The following comment by Ashley JA in paragraph 27 of Dwyer is relevant:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
37 The plaintiff is working full time in his chosen career and his duties have not been modified in any way.
38 The plaintiff’s youth is a relevant factor. I note the comment by the Court in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph 43 by Beach AJA:
“… The appellant is a young man with low back pathology which has at least been aggravated by the compensable injury. He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
39 Ms Gold, who appeared for the defendants, submitted that while the pain and suffering consequence of the injury for the plaintiff might even be “fairly described as being more than significant or marked” and even perhaps as being “considerable”, it was not “very considerable” – see Sabo v George Weston Foods [2009] VSCA 242 at paragraph 73. She relied upon the plaintiff’s being able to follow his chosen career of being an electrician, which involved considerable physical activity, and his ability to work six days a week on occasions. She further relied upon his ability to enjoy recreational pursuits and the fact that the occasional use of osteopathic treatment and non-prescription medication was sufficient to manage his pain. She noted his lack of regular medical attention and the fact that there were no restrictions on his social life.
40 Mr Hangay, who appeared for the plaintiff, relied upon the plaintiff’s credibility as a witness and his stoic nature, for which, he submitted, he should not be penalised. He referred to the fact that he was in constant pain, his need to take sick leave regularly and his youth. He further relied upon the fact that the plaintiff, as a twenty-two year old, was restricted in the outdoor activities he could pursue, such as ‘Tough Mudder’ and waterskiing.
41 Taking all of the above matters into account, the plaintiff has not satisfied me that the consequences of his injury are “more than significant or marked” and “at least very considerable”.
42 Thus, I refuse leave to the plaintiff to issue proceedings for the recovery of damages with respect to pain and suffering.
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