Bruzzaniti v Dexion Commercial (Australia) Pty Ltd
[2015] VCC 1076
•13 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01694
| JOHN BRUZZANITI | Plaintiff |
| v | |
| DEXION COMMERCIAL (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2015 | |
DATE OF JUDGMENT: | 13 August 2015 | |
CASE MAY BE CITED AS: | Bruzzaniti v Dexion Commercial (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1076 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – back injury – consequences of injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for the pain and suffering consequences of the work-related injury the subject of this application.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Advice Line Injury Lawyers |
| For the Defendant | Mr N Griffin | Minter Ellison |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury to his spine suffered in the course of his employment with the defendant between 20 October 1999 and 4 December 2007.
2 In the proceeding, the plaintiff relies upon two affidavits sworn by him on 14 March 2014 and 3 August 2015 respectively, and an affidavit of his sister sworn on 6 July 2015. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise, each of the parties rely upon medical and like evidence and surveillance evidence which they have tendered.
3 The content of the affidavit evidence is self-explanatory, and no purpose is served by me re-stating that evidence in the course of these reasons other than where to do so is necessary to give context to the reasons. That having been said, it is appropriate that I make the following brief reference to the affidavit evidence.
4 In his first affidavit, the plaintiff deposed to the fact that he left school, having completed Form 4, and was particularly weak in reading and writing. He commenced employment with the defendant in 1985. It follows that at the time of his injury, he had been in the employ of the defendant for over twenty two years. Having sustained his injury in December 2007, the plaintiff returned to light part-time duties in January 2008, initially working two days per week.
5 The plaintiff subsequently returned to full-time employment (there is no issue that the plaintiff achieved a return to full-time duties by November 2009, over which period his working hours were gradually increased), but continued to undertake only light restricted duties. In September 2011, the plaintiff was made redundant. It is the plaintiff’s evidence that whilst the defendant had significantly reduced its workforce in order to facilitate a move of its production to a base in Laverton, the plaintiff was told that the reason for his redundancy was that he was unfit for normal duties.
6 It is appropriate at this time that I comment upon the impression which the plaintiff made on me as a witness. The plaintiff struck me as a simple, truthful man with a tendency towards stoicism, who had great difficulty in expressing himself. In this respect, my comments at Transcript 7, Line 30 to Transcript 8, Line 28 are apposite.
7 Whilst there were some inconsistencies between the statements made by the plaintiff in his first affidavit when compared with his subsequent affidavit as to his capacity for activity, I am satisfied that these inconsistencies most probably related to the combination of the following factors:
· Firstly, the plaintiff’s difficulty in expressing himself in English and making himself understood in that language; and
· Secondly, the fact the plaintiff is largely illiterate and, in those circumstances, faces a considerable disadvantage for a man of modest intelligence and education in being unable to check the content of his affidavits.
The viva voce evidence
8 The plaintiff said that initially, his general practitioner, Dr Miao, prescribed anti-inflammatory medication for him, but this medication made him feel sick. While he said that he thought that he had undergone physiotherapy for only approximately three months, it became clear that his physiotherapy had continued until approximately mid‑2008, at the conclusion of which he had been told to continue to exercise. The plaintiff said that he had eventually resumed full-time light work with the defendant but that he had been unable to undertake the overtime which he had previously worked. He said that his wage in his current employment with Coffex was less than his wage with the defendant. He said that he had stopped consulting his general practitioner because “it was always the same routine, always repeats”.
9 The plaintiff said that he suffered from symptoms of pain which were always present, but which varied in intensity; that he would wake with pain, and that his symptoms would increase in intensity through the course of the day. He said most days he took approximately two Panadol a day in management of his symptoms, but whilst he had some good days and bad days, he always felt pain, but he just kept going,[1] commenting:
“Always sometimes to suffer because every morning I wake in the morning I always – my first thing in my mind is the pain, there was always – I get into here in my head, I can’t get rid of it anymore.”
[1]Transcript 29
10 The plaintiff described his morning symptoms as involving more stiffness and the presence of more soreness in the afternoon. As to the effect upon him of his loss of employment with the defendant, the plaintiff said that he had not been offered continued employment at the defendant’s new premises at Laverton because of his sore back, and commented:
A:“I was there for 25, 26 years. Sorry, I never said I want to move or want to do something else ... .”
Q:Why did you want to go to Laverton?---
A:Where else can I find another job with my point of view, like in skill and skill and this and that. ... Get something ... and you know you ... and you go back and a lot of hassle. They will have turned me around and even agency or something go back and forward. I got no skill, I got nothing. How can I find something different?”
(sic)
11 Notwithstanding being exposed to an extremely comprehensive cross-examination which was conducted by counsel on behalf of the defendant in a patient and fair manner having regard to the plaintiff’s difficulty in processing questions and expressing himself, I am satisfied that no real issues of credit or reliability arise in this case.
12 As I commented in the course of the proceeding, the hour or so of video evidence, in my opinion, failed to demonstrate the plaintiff to be engaged in any activity inconsistent with the content of his affidavits.
The medical evidence
13 The plaintiff’s medical management has largely been undertaken by his treating general practitioner, Dr Miao.
14 In his first report dated 29 October 2009, Dr Miao opined that the plaintiff presented with an injury to his back which was likely to cause him ongoing back problems in the future. At the time that he authored that report, Dr Miao noted that the plaintiff had returned to light duties and was, at that time, working four days a week with a weight restriction of 7.5 kilograms.
15 In a report dated 9 February 2012, Dr Miao recorded that the plaintiff had been treated with anti-inflammatory tablets in the form of Naprosyn and pain medication in the form of Panadeine Forte. He described the plaintiff’s condition as fluctuating but being mostly stable, and commented that the plaintiff had been working light duties for many years following his accident until he had been recently retrenched.
16 In his report dated 22 July 2015, Dr Miao commented that the plaintiff reported the presence of ongoing mild to moderate back pain; that he employed Panadol for pain relief from time to time; that on examination, he had mild tenderness over his lower mid back, with limited movement and pain, and commented the plaintiff’s prognosis was uncertain and would most likely fluctuate depending on his activity.
17 In a report dated 13 June 2012, Mr Rodney Simm, a consulting orthopaedic surgeon, commented:
(i) That the plaintiff had suffered a back strain with an unresolved aggravation of underlying spondylosis;
(ii) That the plaintiff’s history was consistent with damage to underlying degenerative structures in his back, with permanent compromise and associated symptoms;
(iii) That the plaintiff required minimal treatment, there being no indication for surgery;
(iv) That the plaintiff presents with a pattern of chronic lower thoracic and left-sided chest wall pain which would persist indefinitely;
(v) That the plaintiff was confined to relatively light domestic, social and recreational pursuits, noting that the plaintiff had resumed some gardening and lawn mowing but was unable to dig or undertake heavy manual activity;
(vi) That the plaintiff was fit for full-time light work but was precluded from working in any occupation that involved prolonged periods of stooping or work which was physically stressful on his lower back.
18 In a further report dated 16 June 2015, Mr Simm obtained a history from the plaintiff that he suffered from almost constant pain across the lower thoracic and mid lumbar region of the back.
19 At that time, Mr Simm opined:
· That the plaintiff had suffered an aggravation of underlying pre-existing degenerative changes in his lower back which had resulted in chronic symptoms;
· That the plaintiff’s condition was much the same as the time at which he had previously reported;
· That whilst the plaintiff was fit for full-time work, he needed to be confined to handling light weights between knee and chest height; that he could cope with his current work which involved handling weights of up to 2 kilograms, essentially at waist height; but that he was permanently incapacitated for pre-injury employment which involved heavy lifting and working in awkward postures.
20 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 25 August 2009, at which time he expressed the opinion that the plaintiff presented with an aggravation of degenerative changes in his lower lumbar spine and that there was no aspect of functional overlay, exaggeration or psychological presentation.
21 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 23 October 2014, at which time he commented that the plaintiff presented in a genuine manner, and opined that whilst the plaintiff had suffered a disc straining injury in 2007, it was likely that the work-related aggravation had resolved. At the same time, Mr Jones opined that the plaintiff would be unfit to resume heavy work requiring unrestricted lifting, noting that at the time at which the plaintiff’s employment had terminated, “he was on some sort of lifting restriction and never regained overtime capacity”.
22 I find the reasoning employed by Mr Jones to be unpersuasive, having regard to the inconsistency between his opinions:
· On the one hand, that any work-related injury had resolved; and
· On the other hand, his recognition that the plaintiff had never, since sustaining his injury, regained his capacity for unrestricted work or the capacity to work overtime.
23 For these reasons, I prefer the analysis and opinion expressed by Mr Simm in this matter to that of Mr Jones.
24 Dr Gary Davidson, a specialist occupational physician, examined the plaintiff on behalf of the defendant on 7 July 2015. Dr Davidson described the plaintiff as presenting as a pleasant and cooperative man, and opined that the plaintiff had the capacity to mow his lawn in a self-paced manner and the use of an electrically powered mower may facilitate this; that given the plaintiff’s demonstrated restricted spinal movements, he should undertake activities in which he could vary his posture regularly and at will; he should avoid frequent or sustained bending, and should avoid manual handling greater than 10 kilograms in force or weight between chest and mid-thigh height. Largely, I find Dr Davidson’s opinion consistent with that of Mr Simm, with the exception that Dr Davidson was more robust in his view as to the weight which the plaintiff might manage in the course of activity.
Findings
25 Taking an overview of the evidence, I am satisfied that the plaintiff has established that the work-related incident caused him to suffer an aggravation of pre-existing asymptomatic degenerative changes in his thoracic and lumbar spine, the effect of which has been to:
· Cause him ongoing symptoms of the type and degree described in his affidavits;
· Render him unfit for the unrestricted duties he had performed in the course of his employment with the defendant for in excess of twenty years; and
· Limit him to both employment and recreational activities involving the handling of very modest weights, together with an ability to regularly alter his posture.
and that his condition is now stabilised and is likely to be permanent.
26 I am satisfied that the plaintiff lost his employment with the defendant primarily by reason of the loss of his capacity for unrestricted work and that both this loss of capacity for work, and his loss of employment with the defendant specifically, represent for him very significant losses.
27 I am further satisfied that the plaintiff’s history of employment with the defendant, both before the subject injury and after it, attests to:
· The importance of that employment to him;
· His resilience in tolerating his symptoms;
· His credit generally as someone who has sought to minimise the impact of his injury upon his life;
and not to the level of his symptomology.
28 My impression of the plaintiff’s evidence was that his employment was extremely important to him and I accept his evidence that at the time at which he was retrenched, the plaintiff was concerned that he would not find alternative employment, having regard to his restricted capacity for physical work and his limited education.
29 Whilst the plaintiff, in one line of his affidavit evidence, deposed to the fact that he worried about his working future, my impression of the plaintiff as he gave his evidence was that this was a very real factor for him, and that:
· He was determined to maintain his present job notwithstanding that he did not enjoy the work;
· He regarded holding a job as being essential to the financial survival of him and his wife;
· The insecurity which arose by reason of his reduced industrial capacity was a very significant factor for him.
30 In his first affidavit, the plaintiff deposed to the fact that his intimate relationship with his wife had been adversely affected by reason of the condition of his spine.
31 Whilst it was put in cross-examination that issues of this type had pre-dated the plaintiff’s injury, the plaintiff denied that position, and I accept his evidence, given that the challenge to the plaintiff upon this issue was based upon a single presentation by the plaintiff to his general practitioner in 2003.
32 It is clear that the plaintiff has not required any form of invasive treatment and that he manages his condition in a very sensible manner by taking care with the activities he undertakes and employing Panadol, which, taking an overview of the evidence, he employs a dose rate of some twelve or so tablets each week.
33 I am satisfied that I should accept the plaintiff’s evidence as to his level of symptoms and the effect which those symptoms have upon him. I found the plaintiff to be a credible witness and the affidavit evidence of his sister tends to support that of the plaintiff.
34 Whilst the plaintiff retains a capacity for full-time restricted employment, there is no controversy in the medical evidence that activities other than those involved in light work are beyond him. That evidence attests to the presence of a considerable loss in the plaintiff’s capacity for activity when compared with his pre-injury capacity.
35 I accept the plaintiff’s evidence that at the end of the working day, the plaintiff’s symptoms are exacerbated by his work, and I am satisfied that the evidence establishes that the plaintiff’s life now largely revolves around the plaintiff pacing himself in his domestic duties and recreational activities so as to allow him to maintain his capacity to undertake his work.
36 In undertaking the process required of me in an application of this type, I am required to take into account the impact upon the plaintiff of the work-related impairment of function of his spine (in the context of the range of impairments which arise by reason of work-related injury), for the purposes of determining whether or not, for the plaintiff, the effect of his injury has been such to occasion an impairment in the function of his spine which is appropriately described as being “more than significant or marked” and as being “at least very considerable”.
37 I am satisfied that in this instance, whilst the plaintiff retains an ability to engage in full-time employment and to engage, at a very restricted level, in some of the activities of daily life in which he engaged prior to suffering his injury, when account is taken of:
· The importance to the plaintiff of the security of his work and the effect of the accident in reducing that security and confining the plaintiff at a relatively young age to a restricted range of work;
· The fact that the plaintiff is now confined to work which he describes as being boring, but to which he will probably be limited for the balance of his working life by reason of the combination of his physical restrictions and limited education;
· The effect which his pain has upon him, both in restricting his level of daily activity and affecting his personal relationship with his wife, and impacting upon his ability to sleep;
· The plaintiff’s loss of ability to undertake unrestricted gardening, which he described as an activity which he really enjoyed prior to his injury;
· The plaintiff’s need to employ modest but very regular non-prescription analgesia to control his symptoms;
that these restrictions, in the life of a simple man with simple and modest ambitions and pastimes, appropriately meet the statutory definition of “serious injury” as employed by the Act.
38 For these reasons, I am satisfied that the plaintiff is entitled to the leave which he seeks, namely to commence a proceeding claiming damages for the pain and suffering consequences of the work-related injury the subject of this application.
39 I will hear the parties as to the precise form of the order to be made in this instance and also upon the issue of costs.
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