Caddell v Bruck Textiles Pty Ltd
[2013] VCC 128
•1 March 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-10-04964
| RICHARD GLEN CADDELL | Plaintiff |
| v | |
| BRUCK TEXTILES PTY LTD (ABN 61 074 170 988) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 February 2013 | |
DATE OF JUDGMENT: | 1 March 2013 | |
CASE MAY BE CITED AS: | Caddell v Bruck Textiles Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 128 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to the low back – whether the consequences of such injury are at least “very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave to the plaintiff, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, to commence a proceeding to recover pain and suffering damages only in respect of injuries suffered by him in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Waugh | Constable Connor & Co Pty Ltd |
| For the Defendant | Mr S Loftus | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Richard Caddell alleges that he suffered injury to his low back in the course of his employment with the defendant in about 2000. He seeks the leave of this Court to issue proceedings to recover damages with respect to pain and suffering and loss of earning capacity in respect of that injury.
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 the injury suffered by him is 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 “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Caddell’s low back.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
6 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 or loss of earning capacity 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.[3]
[3]Section 134AB(38)(c)
7 Leave is not to be granted by the Court on the basis that Mr Caddell has suffered the loss of earning capacity required by s134AB(38)(b) unless he establishes, in addition to the requirements of s134AB)(38)(c), that at the date of the hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss38(e), (f) and (g).
8 Mr Caddell submits that the pain and suffering and loss of earning capacity consequences of his injuries can fairly be described as being more than significant or marked and at least very considerable. The defendant denies this is so.
9 The matters in issue and to be determined in this application are:
(a) What injury has Mr Caddell suffered?
(b) Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being “at least very considerable”?
(c) Has Mr Caddell suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
Background
10 Mr Caddell is currently aged forty-three. He was brought up in Wangaratta in North-East Victoria. He attended school up to and including Year 10. He did not complete that year successfully. He had also failed some subjects in Years 8 and 9. He has no other qualifications save for a hospitality course completed by him when aged seventeen.
11 He commenced employment with the defendant in Wangaratta in 1988, when aged nineteen. For many years he worked in the weaving department, mainly as a warp hanger. This was relatively heavy physical work.
12 Mr Caddell had suffered some low-back problems in about 1997. He had a few days off work but returned to his normal duties. He worked on a full-time basis and received a weave bonus, a shift allowance, and was regularly paid for overtime work.
13 It is not contested that on about 27 October 2000, Mr Caddell suffered an injury to his low back in the course of that employment when engaged in heavy lifting.
14 He attended his local general practitioner in Wangaratta, was referred for physiotherapy, and returned to work on light duties. He experienced some flare ups over the next twelve months.
15 In early November 2001, he suffered a severe exacerbation of his symptoms at home. There was no issue taken by the defendant that this exacerbation constituted a new injury unrelated to his employment. It is accepted that this was an exacerbation of the October 2000 injury.
16 He suffered from low-back pain and left leg pain. He was off work for some weeks. He again returned to light duties in the weave room. He experienced flare ups in the years that followed. From time to time he returned to full duties, but not warp hanging, over that period.
17 He underwent CT and MRI scans and was advised that he had suffered a disc prolapse.
18 In 2007, he was offered a change of employment duties and commenced in the defendant’s laboratory, where he was involved in testing fabric for shrinkage, colour change and the effect of exposure to sunlight. He completed reports relating to these tests. He entered results onto a computer. This was very light work. He remained in the laboratory for nine to ten months, during which time he obtained assistance from others from time to time. He considered that his performance was improving. Save for one instance which he considered unwarranted, no-one from the defendant criticised his performance of his duties. He does not allege that those duties caused problems with his back or that he was otherwise unable to cope with them.
19 After that period, he was asked to return to the weave room to do other duties. He did not want to leave the laboratory but, in the end, he agreed to do so. He performed duties there that involved no repetitive bending, no lifting of items weighing more than 5 kilograms, no prolonged sitting, and was permitted rest breaks as required. He performed those duties for one to two years.
20 In about September 2010, he was offered and accepted a new position involving quality assurance duties in and around the weave room. Mr Caddell described his duties in that position as very light; however, he found the job a boring one. His duties included the inspection of fabrics, some testing, completion of clerical reports, the filing of results and dying of samples. He remained in that position until April 2011, when he chose to resign.
21 In cross-examination, he admitted that he had, at some time in 2010 or 2011, been offered another position in the defendant’s laboratory in a different area to where he had previously worked. He said that he was concerned about being able to cope with the proposed duties. They involved different tests from those he had previously performed. He said he was worried about working with acids and other chemicals, although he conceded that he had worked with acids when previously employed in the laboratory. The position would have involved working with a different group of laboratory staff who, it appeared, he did not like. The proposed position would have required some additional training. He did not allege that such training would have been beyond him. He did not accept the position.
22 I make the following findings concerning Mr Caddell’s resignation:
(a) He did not resign because of any difficulty he was experiencing in performing his then current duties.
(b) Prior to resigning, he had entered into a relationship with a partner, Philip Mortemore, who was keen to travel to Northern Australia looking for work. Mr Caddell’s evidence was that he had been placed under some pressure by Mr Mortemore to resign and travel north with him.
(c) I do not accept Mr Caddell’s evidence that he resigned because of concerns he had as to his employment future with the defendant.
(e) Rather, I accept his evidence that, had it not been for the development of his relationship with Mr Mortemore, and Mr Mortemore’s pressure upon him to leave Wangaratta and travel north, he would likely have remained in his job with the defendant, working either in the quality assurance role or in the laboratory.
23 In late April 2011, Mr Caddell drove with Mr Mortemore to Cairns in Far North Queensland, a distance in excess of 3,000 kilometres. They shared the driving evenly. They drove about 12 hours per day and took about five days to complete the trip. In Cairns, they spent about a week holidaying and three weeks looking unsuccessfully for work. The evidence did not disclose what type of work he was seeking.
24 After about four weeks in Cairns, Mr Caddell had some falling out with his partner. He drove back to Wangaratta alone. After a short period there, it seems reconciliation was achieved and he drove back to Cairns, again alone.
25 Soon after, Mr Caddell and Mr Mortemore drove from Cairns to Darwin, a distance in excess of 2,300 kilometres. There, he remained for four months. He worked in several different jobs:
(a) He worked at a recycling centre directing people where they should deposit their rubbish. He worked in this position for eight to nine weeks generally working 10 hours per day, usually two to four days per week. In one week he worked 50 hours. The duties were apparently light. He did not complain that they were too difficult for him. He worked when work was offered to him.
(b) He worked as a ticket scanner at the Darwin racecourse. This involved him being on his feet most of the day. He worked one or two days per week on days when race meetings were held over the five-week period of the racing carnival.
(c) He worked as a waiter (food and drinks) at various functions, including some at Parliament House in Darwin.
26 After about four months in Darwin, Mr Caddell and his partner had a further falling out and he drove home to Wangaratta alone, a distance of about 6,000 kilometres.
27 On return to Wangaratta, Mr Caddell obtained work with a company named Merriwa Industries, packing dog food. He worked there for three to four months up to May 2012. He stated that the work caused problems with his low back. At the time, he stated that he worked because he needed the money. Whilst working there, his grandfather died and left him between $80,000 and $100,000. He agreed that one of the reasons he resigned from Merriwa was that he no longer needed the money.
28 He has not worked since resigning from Merriwa Industries.
29 In mid 2012, he formed a new relationship and moved to live in Port Macquarie in New South Wales. His evidence was that he had been looking for employment there but had not found anything suitable.
Diagnosis of Injury
30 It is not contested that Mr Caddell suffered a prolapse of the lumbosacral disc in the course of his employment in 2000. The prolapse impinges on the left nerve root at that level, contributing to low-back and left leg pain.
31 Surprisingly, over the intervening period, his treatment has been minimal. He attended on his general practitioner. He had physiotherapy for a short period until the WorkCover claims agent determined that such treatment was unnecessary and ceased funding it. He brought no appeal in relation to that decision.
32 In February 2002, his general practitioner requested a CT scan.[4] In March 2003, he was referred to Mr Warren Seager, an orthopaedic surgeon, and underwent an MRI scan at that time.[5] No evidence was led from Mr Seager.
[4]PCB 87
[5]PCB 88
33 Reports from Mr Leitl, Mr Brendan Dooley and Mr Michael Dooley (orthopaedic surgeons, each of whom examined Mr Caddell on a medico-legal basis), confirm the diagnosis and acknowledge that he has objective evidence of left-sided radiculopathy.
Consequences of Injury
34 An assessment of consequences of injury to an individual invariably involves an assessment of that person’s credit. In this matter, counsel for the defendant submits that Mr Caddell was not a witness of truth in a number of instances, or at least that he was not a reliable witness. I accept that submission in a number of respects.
35 In his affidavit sworn on 16 July 2010, Mr Caddell swore:
“The injury and my pain make it difficult for me to have sexual intimacy and it puts me off going to the movies or taking long car trips or engaging in any activity that involves prolonged sitting, or standing or the like.”
36 In his affidavit sworn on 29 June 2012, Mr Caddell swore that he had resigned from his employment in April 2011 and that he and his partner had travelled north. He swore:
“We went to Cairns for six weeks but could not find work. Then we went to Darwin for four months.”
37 Later in his affidavit he stated:
“I moved back to Wangaratta in October 2011.”
38 In his most recent affidavit sworn on 20 December 2012, he said he had moved to Port Macquarie.
39 He did not disclose that he had driven by car to and from each of the locations referred to above.
40 At the commencement of the hearing of his application, Mr Caddell was given the opportunity of updating his affidavit material and of making any corrections that he considered should be made to them. He made none concerning any of the above matters.
41 In cross-examination, the extent of his long distance driving emerged.
42 Further, in cross-examination, it emerged that he had also driven in each year from 2000 to 2010 inclusive, from Wangaratta to the Gold Coast in Queensland and back. He usually made these trips in the company of a partner or friend. He had also driven, on at least one occasion, from Wangaratta to Coffs Harbour in New South Wales.
43 When asked whether he had driven interstate in 2012, he initially replied that he had not. He later conceded that he drove his car from Wangaratta to Port Macquarie on his own six or seven months ago, a journey of 1,100 kilometres. He drove there in the course of one day.
44 The statements set out above from his affidavits create the clearest impression that Mr Caddell has difficulty in travelling in a motor vehicle for any substantial period of time because of the prolonged sitting involved and that he avoided doing so. He made no attempt to correct any such misconception in either of his affidavits sworn in June 2012 or in December 2012.
45 This is not a situation where a claimant inadvertently omits to refer to a relevant matter. The issue of driving long distances is specifically raised in his earlier affidavit. At that time, Mr Caddell made no mention of regular annual drives to and from the Gold Coast for the previous ten years. More importantly, in the two affidavits sworn in 2012, he made no mention of the extensive travel undertaken by him by car in 2011 and in 2012.
46 I am unable to conclude that this was an accidental omission or an omission based upon some misunderstanding of the issues involved in this proceeding. I am of the view that Mr Caddell deliberately set out to mislead the defendant and the Court as to the extent of travel by car undertaken by him between 2000 and 2012. It is correct that in his affidavits, Mr Caddell did not state that he was unable to travel long distances in a car or that he had not done so. However, the clear impression created by the words set out above from his first affidavit are that he would be reluctant to undertake any long journey because of the prolonged sitting involved. Even if he was reluctant to do so, his obligation to tell not only the truth but the whole truth would, in my view, have involved him disclosing the extensive car travel undertaken by him over those relevant years.
47 Mr Caddell denied that he had played any sport since his injury in 2000. He swore that he had previously played regular tennis and golf but, since his injury, had not engaged in those activities. Further, when specifically asked, he denied playing any other sport.
48 In cross-examination, it was put to him that he played beach volleyball on at least one occasion in May 2011 in Ballina, a town on the northern New South Wales coast. He denied this. Mr Caddell was taken to an entry from his Facebook page indicating that on 23 May 2011, he had played beach volleyball in Ballina with other people whilst his partner, Philip Mortemore, had played the role of cheer leader. He maintained his denial, and said that some other person must have used his Facebook account by using his password or his mobile phone and made that entry. I considered this to be an inherently unlikely explanation. He did, however, concede that he had played beach volleyball on one occasion in Cairns at about that time. He agreed that he may have made the entry and mistakenly referred to Ballina instead of Cairns. I consider that is what probably occurred. I note that all the evidence would indicate that on 23 May 2011, Mr Caddell was not in the Ballina area but in Cairns.
49 I do not consider that his evidence concerning the Ballina beach volley ball was demonstrative of dishonesty on Mr Caddell’s part. Although he did initially deny ever having played beach volleyball anywhere since his injury, the evidence discloses that he played only on the one occasion in sharp contrast to his evidence concerning tennis and golf which involved cessation of sports that he had played with regularity before injury. Mr Caddell asserted that he had merely forgotten about that solitary game in Cairns, and I accept him in respect of that.
50 Similarly, in his evidence, Mr Caddell initially could not remember the last time he had been ten-pin bowling, an activity he had engaged in before his injury. He did not deny that he had engaged in that activity after injury, but could not remember doing so. A further entry on his Facebook page was shown to him and tendered. It indicated that he had engaged in ten-pin bowling on 11 September. The page does not make specific reference to a particular year. However, I am able to infer that it was 2011 by reference under the same entry to Philip Mortemore who, on the evidence, was only Mr Caddell’s partner during that year.
51 Whilst the playing of beach volleyball and ten-pin bowling (albeit on one occasion only in relation to each) may be relevant generally to the pain and suffering consequences of Mr Caddell’s injury, I do not conclude that he was dishonest in his evidence relating to these two activities.
52 DVD film depicting Mr Caddell on two dates in January 2009 was shown to him in cross-examination and tendered. The film showed him for a relatively short period of time carrying various containers of goods which he agreed he had done in the course of moving from a previous residence back to his parents’ home at that time. The film showed Mr Caddell carrying what I consider to be relatively light items on perhaps a dozen occasions. On one occasion, he appeared to carry a plastic box which did appear to be somewhat heavier than other items, although its weight is unknown. Similarly, he squatted to lift a small bag of soil of unknown weight at one point. At all times during the second occasion on which film was taken of him, Mr Caddell was wearing a clearly evident back brace.
53 I do not consider that the film depicted Mr Caddell performing any particularly strenuous or heavy activities or showed him performing actions which he had otherwise denied being able to do. Accordingly, I consider that the film is of little assistance in determining the issues in this matter. I accept that Mr Caddell was depicted in the film walking short distances and moving relatively freely, showing no obvious signs of being in pain or discomfort.
54 Taking all of the evidence into account, I accept that the pain and suffering consequences for Mr Caddell of his injury are:
(a)He experiences low-back pain and leg pain regularly. Pain is a subjective concept. People have differing pain thresholds. However, taking into account his extensive car travel between 2000 and 2012, I do not accept that his level of pain on sitting for prolonged periods is as high as he asserts. However, I do not doubt that he suffers regularly from pain and that he experiences flare ups from time to time. I take into account that:
·He was referred for specialist opinion from Mr Seager in 2003 but has not consulted any specialist in the nine years since. No evidence was led from Mr Seager.
·He has not consulted his general practitioner in relation to his back since 2009. Nor has he had physiotherapy treatment in that time. However, he had been told that there was no treatment that was likely to assist him.
·He has not been prescribed medication for his back for many years. He stated that he had ceased Panadeine Forte because it had caused him stomach problems, but made no enquiries of his general practitioner as to alternative medication.
(b)Although I am not satisfied he has no work capacity, his capacity for employment is substantially reduced. He could not undertake work involving regular lifting, bending, twisting and the like. He has, on any view, a light work back. This reduces the range of employment opportunities open to him. It also means that in the event that he was to lose a job for any reason in the future, he would find it much more difficult to find work in the reduced field of employment open to him. Further, he may be required to seek work in an area that does not appeal to him as much as his pre-injury job. He may not get the same enjoyment or satisfaction from employment.
(c)He is unable to perform the full duties involved in working in the defendant’s weave room, and in particular, the warp hanging duties. I note that he had performed these duties for many years before 2000 and apparently enjoyed that work.
(d)He is unable to play tennis and golf, sports that he regularly played before injury. I accept that he is unlikely to partake in active sporting activities in the future. I acknowledge that he appears to have played a social game of beach volley ball in 2011 and also played ten-pin bowling on at least one occasion. I do not consider that these isolated occasions indicate an ability to play these types of sports regularly or are a reliable indication of the level of his pain.
(e)He is unable to do much gardening.
(f)He has difficulty performing sex due to pain. He did not indicate that he was unable to engage in any sexual activity.
55 Whilst there are some matters set out above that might indicate that the consequences of Mr Caddell’s injury are not particularly significant, I have reached the conclusion, after considering all of the evidence, that the consequences of the injury for him, when judged by comparison with other cases in the range of possible impairments or losses, are fairly described as being more than “significant” or “marked” and as being “at least very considerable”.
56 I am particularly influenced by the medical evidence which is largely non-contentious. He has a prolapse impinging on the L5 nerve root. There is clear evidence of radiculopathy in the form of wasting of right leg musculature. No doctor has doubted that he could be experiencing substantial pain. Nor is there doubt concerning his inability to perform his pre-injury duties.
57 Whilst I have concerns over his veracity concerning his failure to fully describe his many long car journeys, I note that in most of these he shared the driving with friends and made regular stops en route.
58 I note he is a relatively young with many years ahead of him. No doctor has suggested that he is likely to improve to any significant degree.
59 Counsel for Mr Caddell described him as a stoic person who had done his utmost to get on with his life. Subject to one reservation I have, referred to below, I accept that submission.
60 With regard to the loss of earning capacity consequences of the injury, I am not satisfied that Mr Caddell has discharged the onus upon him of proving that he has suffered the required 40 per cent loss of earning capacity when assessed in accordance with s134AB(38) of the Act.
61 Since his injury in 2000, Mr Caddell has worked in a number of capacities both full time and part time. Over that period, I consider that he has had a capacity for suitable employment as that term is defined in s5 of the Act.
62 I find that Mr Caddell has and has had a capacity to work as a laboratory assistant such as he did for the defendant in 2010. He coped with those duties then. There was no suggestion in the evidence that the quality of his work was sub-standard in any way. He did not wish to leave the laboratory job when the defendant proposed that he return to the weave room.
63 I consider that Mr Caddell had and would still have a capacity to perform duties as a quality assurance officer such as he performed with the defendant in 2010-2011. I accept that he found the position somewhat boring. It was faintly suggested the quality assurance position may not have been a real job. I reject that submission, and accept the evidence of the defendant that it was a genuinely required position which still exists today and has, in fact, been expanded.
64 I further accept that a significant part of his reason for resigning from his full-time employment with the defendant in April 2011 was the pressure that had been placed on him by his then partner to resign and travel north with him.
65 I accept that during his travel in northern Australia he sought and obtained a variety of jobs with which he was able to cope. The type of jobs obtained were of a type that might be associated with a working holiday rather than with a person seeking a permanent career position.
66 On his return to the Wangaratta region in 2012, Mr Caddell coped with what appear to have been manual duties while working for Merriwa Industries. I accept that he did experience some difficulties with his low back during that period but not such that caused him to leave the job. He gave no evidence that he had, during that period of employment, been seeking any other positions. He did not re-apply to the defendant for positions that he had previously demonstrated a capacity to perform. He resigned from Merriwa after receiving an inheritance from his grandfather. He was no longer under the same financial pressure to work.
67 I have noted the opinions of Ms Horsley and Ms Leitch. However, neither of them has referred to Mr Caddell’s apparent capacity to perform the laboratory and quality assurance duties which he had demonstrated in recent years. Indeed, counsel for Mr Caddell conceded that if he had remained in the Wangaratta region, he may well have been in a full-time job.
68 Counsel submitted that Mr Caddell was not required to permanently remain in Wangaratta and I accept that is so. He has elected to live with a new partner, at least for the time being, in Port Macquarie. He has lived there for six or seven or seven months only. In that time, although he has made some attempts to find work, it is difficult to be satisfied that his search has been a determined one. He has registered with Centrelink and looked at some employment advertisements. He does not appear to have directly approached any hotels or catering businesses to establish whether there are opportunities for food or drink waiting jobs of the type he performed in Darwin. There was no evidence of the population of Port Macquarie, or of the range of businesses in existence there. He did say that there were no factories there.
69 In any event, Mr Caddell gave no evidence that he was committed to remaining in Port Macquarie for any particular period. He had no connections there apart from his current partner with whom he has been for only six or seven months. Mr Caddell carries the onus of proving that he has suffered the required loss of earning capacity and that it is a permanent loss. I am not satisfied that he has discharged that onus.
Conclusion
70 For the reasons expressed above, I am satisfied that that Mr Caddell has suffered a “serious injury” as defined in the Act with regard to pain and suffering consequences. I am not satisfied that he has established the necessary loss of earning capacity required under s134AB(38) of the Act.
71 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Caddell to commence a proceeding to recover pain and suffering damages in respect of injuries suffered by him in the course of his employment with the defendant.
72 I shall hear the parties in respect of orders sought as to costs.
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