Camilleri v Bledisloe Australia Pty Ltd
[2013] VCC 1406
•21 October 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-12-05320
| CHARLES CAMILLERI | Plaintiff |
| v | |
| BLEDISLOE AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15 and 16 October 2013 | |
DATE OF JUDGMENT: | 21 October 2013 | |
CASE MAY BE CITED AS: | Camilleri v Bledisloe Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1406 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230
Judgment: Leave granted to the plaintiff to bring proceedings against the defendant for the recovery of pecuniary loss and pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer with Mr J Goldberg | Slater & Gordon |
| For the Defendant | Mr B McKenzie | Wisewould Mahony |
HIS HONOUR:
1 This is an application for leave to bring proceedings for both pecuniary loss and pain and suffering damages pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”). The injury is to the thoracic and lumbar spine and the impairment of body function is that of the spine.
2 There is only a single discrete issue for determination in this paragraph (a) application. That is, whether the consequences flowing from this compensable injury in terms of impairment of body function are serious with respect to impaired earning capacity and loss of enjoyment of life.[1]
[1]T11 and T17
3 I note the recent repeal of s134AE of the Act and the explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It is not necessary in this application to describe the medical evidence in great detail as it largely speaks for itself.
The Plaintiff’s evidence
4 The plaintiff is aged 68 years. From 1977 to 2010, he worked part-time for the defendant assisting in a funeral director’s business. He worked on call, but an average of 20 hours per week over the years was his usual routine. This had really been a second job for a long time as principally he worked driving taxis as an owner/driver for over thirty years up to 2003-2004.[2] The work at the funeral parlour involved the usual manoeuvring of coffins which were very heavy at times. He earned about $450 net per week in this job.
[2]Plaintiff’s Court Book (“PCB”) 17(c)- 17(d)
5 While he suffered a back injury in 2002, I accept that he had required only minimal treatment for some months at most and that he lost no real time, if any at all, off work. He was able to lead a normal life between late 2002 and 2010 with regard to both work and an active daily routine at home.
6 He is a motivated man who, as well as working more than one job for years, worked on a small farm for decades in his spare time.[3] He intended working in paid employment until at least 70 years of age.[4]
[3]PCB 4, 16-17, 17(b)-(c)
[4]PCB 11
7 After investigations in 2002, he was diagnosed as suffering from osteoporosis which required medical supplements for a number of years.[5] However, this condition did not result in symptoms or impairment of his ability to work and carry out the full measure of his activities outside of work as at August 2010.
[5]PCB 44−45
8 On 18 August 2010, the plaintiff injured his back while handling an over-sized coffin.[6] The plaintiff was off work following the subject accident until March 2011 when he followed a return to work plan involving an average of only six hours per week.[7] It reads very much like something of a “made up” job for a man used to dealing with coffins and funeral services.[8] He only lasted in this return to work job for some six weeks, finishing at the end of April 2011. He has not worked since that time and that is due to incapacity that I accept is a consequence of his spinal injury.
[6]PCB 9−10
[7]PCB 30
[8]T43−44
9 There is some dispute as to the circumstances of his finishing up with the defendant.[9] However, the defendant has accepted liability for 130 weeks of weekly payments after initially terminating them. I am unable to make any final determination about the reasons the return to work plan ceased, but it is beyond dispute that the plaintiff has never returned since 18 August 2010 to the type of physical work he had done over many years for the defendant. Nor is it contested that the defendant has never offered such a return to his normal job of thirty three years.
[9]PCB 10, T 44, Defendant’s Court Book (“DCB”) 2
10 Some attack was made on the plaintiff’s credit in this case and I note the Defendant’s Court Book index refers to video surveillance material. There was none shown to the Court. I infer it would not have helped the defendant’s case. I found the plaintiff was a very vague and poor historian. There is also reference to this in the medical material.[10] He nevertheless corrected errors as other material came to his attention and jogged his memory. Examples are the circumstances of the 2002 injury,[11] as well as evidence in relation to when he sold his taxi licence.[12]
[10]PCB 21
[11]PCB 14 and 17(a)
[12]PCB 17(c)−17(d)
11 I accept his evidence that prior to 18 August 2010, there was no impediment to his performing what was at times quite heavy work. An employee of some twenty one years’ standing with the defendant confirms this.[13] That workmate also corroborates the plaintiff’s account of the accident and the intense pain he was in thereafter.[14]
[13]PCB 18−19
[14]PCB 19
12 Uncontested evidence from the plaintiff’s wife confirms a before and after picture of a very active working man.[15] She refers to his earlier injury in 2002 and it was clearly short-lived in terms of symptoms.[16] He intended working on with no retirement plans when he was hurt in 2010 handling the coffin. I accept this evidence from the plaintiff’s wife.
[15]PCB 19(a)−19(f)
[16]PCB 19(d)
13 While the plaintiff was at times an unsatisfactory historian, the essential facts of the case are confirmed by his wife and his workmate with respect to the circumstances of the accident and a number of the consequences.
14 I accept this man would have worked on until 70 years of age and as a result of the accident he has permanently lost his capacity for suitable employment. He has really only had experience working in the funeral parlour position, taxi driving and in bar work over his adult life.
The Plaintiff’s medical evidence
15 The first treater was an osteopath, Mr H Williams, who first saw the plaintiff two days later, on 20 August 2010. He treated him for some six months or so and he ordered an x-ray on 11 October 2010. This illustrated the osteoporosis and stress fractures at T7 and T11. The T11 fracture was probably referable to the 2002 incident when one takes into account all the medical evidence in this case.[17]
[17]PCB 41
16 The osteopath’s opinion is now rather dated as he has not seen the plaintiff since March 2011. At that time, Mr Williams was hoping the plaintiff could perform some modified part-time or casual work. His opinion is of limited assistance in evaluating the plaintiff’s capacity now in October 2013.[18]
[18]PCB 37
17 The general practitioner evidence started with a Dr F Eqbal, who took over from a Dr Athari, another local doctor in the Werribee area. Dr Eqbal took a history and recorded how the plaintiff was happy to go ahead with the return to work plan in early 2011, but also noted that his patient will never be able to return to his pre-injury employment.[19] Dr Eqbal’s last word was on 2 October 2013 in a very brief letter that indicated the plaintiff’s condition had not changed, and he continued to see him on a monthly basis for his back pain and WorkCover certificates.[20] There is only one WorkCover certificate tendered in this case and it restricts the plaintiff to alternative duties, in the opinion of Dr Eqbal, with restrictions that include not lifting over 5 kilograms, no repetitive bending and twisting, no standing one hour and no pre‑injury duties.[21] I enquired of the parties as to whether the ongoing certification was along those lines from 2010 up to the present time and I was advised that this was the case, but there are now additional restrictions by Dr Eqbal on the plaintiff’s capacity to drive any more than 15 minutes or so.[22]
[19]PCB 27
[20]PCB 25
[21]PCB 28
[22]T90
18 A report from a physiotherapist, Mr D Salerno, describes the commencement of treatment with him on 8 April 2011 at the referral of Mr Williams. He records how the lifting of the heavy coffin on 18 August 2010 initiated the plaintiff’s symptoms.[23] Physiotherapy treatment was ceased, although clearly Mr Salerno thought there was an ongoing need for it and refers to some dispute with the insurer about an ongoing appropriate treatment plan.[24] The physiotherapist thought the plaintiff could return to some light duties and work limited hours, but with a lifting limit of 10 kilograms and there should be avoidance of sitting or standing for extended periods of time. He also thought he should rest as required and he ought to be working within a 20-minute drive of home.[25] He considered it would be inadvisable to carry the type of weights that he carried in his previous job with the defendant.
[23]PCB 39
[24]PCB 40
[25]PCB 40
19 When one looks at the limitations that he puts on this unskilled man, it effectively puts him out of the workforce in terms of capacity for any suitable employment, taking into account his age, experience, the injury and the restrictions that the physiotherapist puts on activity. I accept that those limitations would mean he could not drive a taxi with the sitting involved and lifting of luggage et cetera and could not perform hotel bar work with the standing and physical activity involved in that job. Obviously he could not be handling coffins in and out of vehicles and around funeral parlours as he had done for over thirty three years with the defendant.
20 There is a Medical Panel Opinion which is only marginally relevant to this case in view of the single issue that I need to determine. It was delivered on 5 October 2011 and describes the persistent dysfunction of the spine and an incapacity for work still materially contributed to by that injury.[26] It does not assist in relation to what residual capacity the plaintiff has for suitable employment as defined by the Act.[27]
[26]PCB 46-47
[27]Section 5 of the Act
21 The only medico-legal opinion provided on behalf of the plaintiff is from Mr John O’Brien, orthopaedic surgeon, on 19 March 2013. He describes the spinal problem as a chronic thoracolumbar back pain that was well established by March 2013.[28] He thought the prognosis was poor and that the constant pain will continue. Mr O’Brien’s opinion is clear:
“I in fact would consider this patient now is totally and permanently incapacitated. The patient now is definitely restricted in his general, social, domestic and recreational activities and this will be a permanent situation.”[29]
[28]PCB 23
[29]PCB 23
22 I accept this opinion and find that the plaintiff is totally and permanently incapacitated for any employment as a result of the injury that he sustained that impaired the function of his spine on 18 August 2010.
The Defendant’s medical evidence
23 The occupational health physician, Dr B Gilbert, reported in March 2011 that, while the plaintiff was no longer capable of his old job, he had a capacity for suitable duties. However, when the restrictions he puts on those duties are examined carefully, they are extremely significant:
“The specific restrictions are that he is not to perform any prolonged standing for more than one hour at a time, nor is he to perform any repetitive bending or stooping or particularly lifting below waist height or above mid-chest height.
He is not to lift in excess of 5 kg. Taking into account his underlying condition and the related disability and physical restrictions as above, the worker is restricted in his ability to travel from where he lives to his place of employment where he would require breaks whilst driving every 15 to 20 minutes.”[30]
[30]DCB 9−10
24 Looking realistically at these restrictions and the plaintiff’s age, it is difficult to think of any suitable employment that the plaintiff could seriously present himself for and hold down when one looks at his working history over the last four decades or so. While Dr Gilbert speaks about some suitable duties, including funeral preparation, he still puts restrictions on a number of those activities.[31] The driving restriction in itself is an enormous restriction for a man who lives in the rural area of Little River. Funerals, family viewings at homes or chapels are not all held locally.
[31]DCB 11−12
25 Looking at Dr Gilbert’s report overall, I do not accept his opinion that the plaintiff has a retained capacity for suitable employment is sound. These restrictions must be looked at in the context of the realities of the employment market place for a 68 year old man.
26 The defendant retained Mr M Shannon, general surgeon, who examined the plaintiff in February 2012 and also provided a further short report in September 2012 after some attachments were sent to him. Mr Shannon’s report is directed towards an AMA impairment, which he assesses at 20 per cent.[32] Apart from the permanency implicit in such an impairment exercise, he really adds nothing to the question of consequences. His short letter in September really just identifies that the compression fracture at the seventh thoracic level was probably relevant for the subject injury.[33]
[32]DCB 21-25
[33]DCB 26-27
27 Mr M Dooley, orthopaedic surgeon, examined the plaintiff in September 2012 and again in August 2013, and in between provided a further short report in relation to some enclosed documentation that he was sent by the defendant’s solicitors. In his first report, Mr Dooley states that the plaintiff would not be able to engage in employment that regularly required heavy physical activity or a lot of bending and lifting.[34] In the last report he indicated that:
“From an orthopaedic point of view, I would expect him to be able to carry out light physical activities and clerical activities.
Mr Camilleri would not be able to engage in regular heavy physical work or work that involved a lot of bending, lifting and twisting.”[35]
[34]DCB 31
[35]DCB 36
28 It should be noted that the plaintiff has had no history of clerical work nor has he any qualifications in that regard. Again, looking at it realistically, for a man without qualifications, light physical activities where there is no bending, lifting or twisting are hard to imagine in the context of unskilled employment. I do not accept that the residual capacity Mr Dooley speaks of can realistically be translated into a capacity for work in the marketplace given the plaintiff’s years and experience.
29 The defendant has argued that the plaintiff’s credit is such that I should not accept him as a reliable witness. Aspects of his evidence, when comparing the affidavit material and his viva voce evidence, include some tension between what he said initially about pre-existing back problems in affidavits and what he has said to doctors about it when the final full picture with respect to the 2002 incident emerged. Furthermore, the circumstances of when he sold the taxi licence and ceased being a taxi driver and also what he has said to various doctors in relation to the ingestion of medication, were matters that have been highlighted as impacting on his credibility.
30 I agree with the submission that aspects of the plaintiff’s evidence were unsatisfactory and he was clearly a poor historian with an inadequate memory. However, he corrected what were clear errors in some of the earlier material when further documentation was brought to his attention.[36] Essentially, the issues in this case are driven by the medical opinions and the inadequacies in the plaintiff’s evidence do not impact on credit such that they would lead me to reach a conclusion that he is dishonest or unreliable when he speaks about his back symptoms and physical limitations, supported as they are by medical opinion on both sides.
[36]PCB 14−15, 17(c)−17(d)
31 There is corroboration of a number of aspects of his evidence by his wife and fellow workmate and they were not challenged by the requirement to attend for cross examination.
32 Looking at this case overall, the medical evidence leads to the conclusion that, for a 68-year-old man, the plaintiff has no realistic capacity for suitable employment. At the time he was injured, he had a demonstrated capacity to work 20 hours a week, engaged as he was in some duties that were quite heavy and would certainly have involved driving all sorts of distances attending to funerals. He can no longer carry out such tasks on account of his impaired spinal function.
33 It is one thing to look at a return to work plan for limited duties that is addressed to the employer who has had this man on its books for some thirty three years, and then to consider an argument that he is suitable for employment in the open commercial world.[37]
[37]Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, paragraph 11
34 Criticism has been levelled at his lack of attempts to find other work since finishing with the defendant other than enquiring at the local hotel and the general store at Little River.[38] I do not accept that the criticism is valid. The driving restriction is relevant to him only asking local employers. More importantly, there is no realistic suitable employment he could present himself for. Given his work history and impairment I do not accept the plaintiff lacks motivation for work.
[38]T90-91
35 When s5 of the Act is examined and one takes into account the plaintiff’s incapacity and his pre-injury employment history over many decades or so, together with his age and where he lives, I find that this man has no capacity for suitable employment.
36 Accordingly, for the reasons mentioned, I grant leave to bring proceedings for the recovery of pecuniary loss damages. It follows, in accordance with practice, that I grant leave for the recovery of pain and suffering damages.
37 It is not necessary to go on and deal with pain and suffering consequences in any detail. However, in view of the uncontested evidence about the extent of the work the plaintiff describes that he did in his spare time on his acreage at Little River and the limitations on that, I accept that the consequences in terms of loss of enjoyment of life in that regard are at least very considerable. He has worked a farm for now over thirty years and he was very active in terms of physical work in that regard.[39]
[39]PCB 11−12, 16−17, 17(b)−17(c) and 19(b)−19(d)
38 While he still does some very limited things around the farm, compared to the fencing, tractor driving and work with stock that he used to be capable of, he is very considerably impaired now in relation to the property he lives on. The driving limitation that I have already referred to in itself is a very considerable consequence when one bears in mind where this man lives and the necessity in modern life to depend on the capacity to drive. The inability to visit his daughter in Portland is not contested and that sort of limitation in itself is very considerable when the plaintiff and his family live in rural Victoria a great distance apart.[40] The constancy of his pain is another aspect that is a very considerable consequence for a man who was clearly extremely fit and active before the subject incident.[41]
[40]PCB 19(e)
[41]PCB 11−12, 17(b), and 19(d)−19(e)
39 I will hear the parties as to costs.
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