Caminiti v Transport Accident Commission
[2014] VCC 291
•20 March 2014
| 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-12-02006
| ANGELO CAMINITI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2014 | |
DATE OF JUDGMENT: | 20 March 2014 | |
CASE MAY BE CITED AS: | Caminiti v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 291 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine and left foot
Legislation Cited: Transport Accident Act 1985
Cases Cited: Richards v Wylie (2000) 1 VR 79
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr J Valiotis | Slater & Gordon |
| For the Defendant | Mr J Ruskin QC with Ms J Frederico | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him in a transport accident in which he was involved on 3 March 2010. In the proceeding the plaintiff relies upon two affidavits sworn by him, dated 2 February 2012 and 18 February 2014, together with an affidavit of Justin McMillan, his employer, affirmed 17 January 2013.
2 The plaintiff gave evidence in the course of the application and was cross-examined. Otherwise the parties rely upon the medical reports tendered by them.
3 In the proceeding the plaintiff asserts that he has suffered a serious long-term impairment, a loss of body function of both his spine and his left foot.
The claim as to the Impairment of the spine
4 There is no need to repeat verbatim the content of the plaintiff’s two affidavits. In each affidavit, the plaintiff reported the presence of ongoing symptoms of:
· neck pain and stiffness, together with headaches; and
· back pain which varied in intensity according to activity, and limited significantly his ability to stand or walk for long periods of time or to engage in activities involving bending and twisting.
5 In my opinion no aspect of the plaintiff’s description of his symptoms in his affidavits was inconsistent with the medical evidence as to those symptoms.
6 In considering the content of the affidavits and the medical evidence contained in the court books before having the opportunity to assess the plaintiff as he gave evidence, I found the content of the affidavits to suggest that the plaintiff was describing accurately the level of his symptoms and the effect of those symptoms upon his life. My impression in this regard was confirmed at the conclusion of the plaintiff’s viva voce evidence.
7 Indeed, there is no issue as to the plaintiff’s credit, the only issue raised by Senior Counsel for the defendant falling away when the relevant transcript reference is analysed.[1]
[1]Whilst an issue arose as to whether the plaintiff has in cross-examination accepted that he had the capacity to lift 18-kilogram boxes, which evidence was inconsistent with his evidence in re-examination in which the plaintiff said that his lifting capacity was such that he could accommodate weights of approximately 6 kilograms, the transcript does not bear out the position taken by the defendant.
8 In his first affidavit, the plaintiff described the effect on his spinal symptoms on his employment being such as to preclude him from engaging in the tasks involved in his trade as a panel beater or the work in which he was engaged at the time of the subject accident as a fitter and turner. He said that although he was able to perform modified duties, “I still struggle with working my usual hours and I am often exhausted after work. I do what I can because I am worried that if I lose this job I will have difficulty finding alternative employment.” The plaintiff described his symptoms as limiting his ability to garden; to assist his partner with housework, and to run and play with his children. He described himself as being stressed, and anxious and frustrated.
9 In his most recent affidavit, the plaintiff:
· Described experiencing back spasms frequently, which involve feeling a sharp knife-like pain in his back;
· Said that his back pain is aggravated by performing any activity which requires repetitive bending or lifting;
· Said that his ability to drive long distances was restricted by his symptoms;
· Described suffering neck pain which radiated into his shoulders, the presence of frequent headaches which would occur “at least two times per week”, and said that he employed Panadeine Forte “when the headaches are really bad”. He described his neck pain as fluctuating with activity, stating that sitting or standing for more than 40 minutes increased the level of his neck pain.
· Said that he needed to employ OxyNorm or Panadeine Forte, commenting, “I would take at least three to four Panadeine Fortes on an average per week, sometimes more, sometimes less. There are weeks when I am able to cope with the pain and I do not take medication at all.”
· Described his sleep being affected by back and neck pain, although I interpret his evidence to be that his sleep is significantly disturbed only two or three times a month by reason of his symptoms.
· Said that if he was to lose his current position, he believed it would be difficult for him to find alternative employment with the flexibility which his current employer provides him.
10 In an affidavit dated 17 July 2013, Mr Justin McMillan stated that he was the plaintiff’s employer, that the plaintiff commenced working with him, the business of which Mr McMillan is the managing director, on 6 August 2008 as a heavy fitter-boilermaker. Mr McMillan described the plaintiff as being an excellent employee and as being a team leader in his workmanship. He described the work involved as being “highly physical” and as involving “bending, twisting, squatting, lifting and standing for prolonged periods of time” and involving the plaintiff lifting weights of up to 20 or 30 kilograms. He commented:
“After his accident Angelo returned to work in a part time capacity. He was unable to perform his previous tasks. In particular he had difficulty with lifting goods and equipment.
We retained Angelo in employment because he was an exemplary employee prior to the accident.
After the accident the duties Angelo performed included light painting, delivery of goods, light welding jobs. When he delivered goods, someone would load and unload the truck for him.
Since Angelo commenced working with us he has had steady pay rises each year. He has not had a pay rise since the accident. We have continued to employ him because of his excellent work ethic and attendance. I expect he would have significant difficulty obtaining employment in the open market as a heavy fitter/boilermaker because of his injuries.”
Viva voce evidence
11 In the course of his cross-examination, the plaintiff gave evidence as follows:
· He had obtained a heavy rigid and heavy combination licence in 2011 and had undertaken deliveries for his employer around Melbourne. He had also travelled interstate on one or two occasions to Sydney. In undertaking these deliveries he drove one of two of his employer’s trucks, one vehicle being a semitrailer, the other vehicle being a rigid truck.
·His current duties involved him looking after a collection of twenty or more prestige vehicles owned by his employer, his duties including wiping the vehicles over with a feather duster and washing them with a sponge. The latter activity would be undertaken “once a week, it depends if he wants to take that certain car. If it’s got dust on it, clean it up.” The plaintiff said he did some spray painting of the cylinders, which activity he performed rarely by the use of a spray gun and that he ran errands for his employer which involved driving a van, and that he regularly drove around the Melbourne suburbs to areas such as Clayton and Campbellfield.
·He was asked whether he would move boxes around the workplace.
Q: “You’re moving boxes or articles. They might be 18 kilograms, they might be 10 kilograms, they might be 25 kilograms, that sort of thing?---
A: Well I wouldn’t say that heavy, but I do move stuff around.
Q: And you don’t do that every day between 9 and 5 but you do it as necessary?---
A: If it needs to be done.”
His wage at 30 June 2013 was $96,355.
·He said had driven to Mildura on several occasions to visit family and that he was able to ride his Harley Davidson, which was a road bike.
·Immediately before his injury, he had engaged a gardener to mow his lawns. He had ceased employing the gardener because this was too expensive for him. His nephew now normally cut his grass for him. On occasions he cut the grass, which caused him to feel pain.
·In the last two years he had consulted his general practitioner only on seven occasions by reason of the condition in his spine.
12 In re-examination, the plaintiff said that when he consulted his general practitioner, his general practitioner prescribed OxyNorm, Panadeine Forte and at various times Celebrex for his use, and that he was usually given a number of repeats of Panadeine Forte. He was asked how his current duties differed from those before his motor vehicle accident, and gave the following evidence:
A:“Before my motor accident I used to do heavy welding, painting, pretty much whatever needed to be painted in the factory, grinding, metal fabricating. Yeah, all that sort of stuff.
Q:Which of those can’t you do now?---
A:I don’t do any welding any more, the grinding because the grinding just aggravates my wrist. Like I said, I do some of the painting but we’ve got other painters in there, so it’s only when they’re away and the stuff gets put on the trestle and I'm working at that standing height but that’s very rarely I do even the painting now.
Q:Even with the duties you do, how do you cope with them?---
A:I do my job. I struggle every day; I don’t go sooking about it. I’ve got a family. I need to provide. I struggle. I go home stop. I fall in a heap on the couch, you know, and the next day off we go again.”
13 The plaintiff said that he had no guarantee that his work would continue, that he was worried about losing his job and going back to his trade which he did not think he would be able to cope with.
The medical evidence relied upon by the Plaintiff
14 There is no issue that the plaintiff suffered soft-tissue type injuries to the cervical and lumbar areas of his spine. Largely the medical evidence tendered by the parties indicates that the plaintiff’s condition is stabilised, there being some risk that his condition will deteriorate; that this condition precludes him from strenuous physical activity and from working in any occupation which involves other than light forms of work.
15 In July 2011, the plaintiff’s treating physiotherapist, Dale Turner, described the plaintiff as presenting to him with symptoms of headaches, neck and back pain which prevented him sitting for longer than ten minutes or standing for longer than five minutes. He diagnosed the plaintiff as presenting with:
“… cervical spine and whiplash, lumbar disc irritation, fracture of the left wrist and fracture of the left intermediate cuneiform of the foot.”
16 As at July 2011, Mr Turner described the plaintiff as having responded to various treatment techniques, commenting that he had:
“… only improved marginally over the time I had seen him. He did have a reduction in his headache frequency and intensity, had increased range of movement of the cervical and lumbar spine and had increased his sitting and standing tolerance. … unfortunately physiotherapy did not have a positive effect on Angelo’s wrist or foot pain and I now advise him to rest where possible. Angelo was both too busy and a little too reluctant to participate in his home exercise program due to being tired or time restrictions.”
17 In a report dated 15 September 2011, Suresh Takyar, another physiotherapist who commenced treating the plaintiff in September 2011, commented that his condition was stable, that it might flare up from time to time, that he had a sitting tolerance of 30 minutes, a walking tolerance of 30 minutes or 200 to 300 metres by distance. Ms Takyar commented:
“Mr Caminiti is unfit for most of his pre-injury duties which required a lot more than his present functional capacity. He is capable of light duties work only where he does not lift more than 4 kilograms on an intermittent basis, works at his own pace and observes rest breaks as required. He cannot squat on the floor and can perform light duties in standing position only.”
18 The plaintiff has been assessed by a number of consultants for the purpose of this application. In June 2011, Mr David Brownbill described the plaintiff as presenting without embellishment, and opined that he had suffered soft-tissue damage to the structures about his neck and lower back.
19 The plaintiff was assessed by Mr Russell Miller, orthopaedic surgeon, on 3 August 2011. He opined that the plaintiff had suffered an injury to his cervical spine and lumbar spine involving a musculoligamentous strain and a probable aggravation of pre-existing degenerative disease in his spine. He commented that the plaintiff had returned to modified work duties which he coped with and that he believed that this was likely to continue. In a series of further reports, Mr Miller maintained the opinion previously expressed by him as to the impact of the plaintiff’s injury to his spine upon his capacity for employment.
20 As at 4 March 2014, Mr Miller opined that the plaintiff’s prognosis with respect to his cervical and lumbar spinal injury was only fair and that the prognosis for his left foot was good, there being no evidence of arthritic disease or other significant injury.
21 In his report of 9 December 2013, Mr Miller had commented specifically upon the plaintiff’s capacity for work in the following terms:
“He has returned to modified forms of his work. These modifications include no repetitive bending, no repetitive lifting and no kneeling and squatting. These are likely to be permanent and regarded as being work[2] related.”
[2]Clearly, Mr Miller is here referring to the transport accident.
22 Whilst in a number of his reports Mr Miller had commented that the plaintiff had developed some features of a Chronic Pain Syndrome which would complicate his assessment and management, given that Mr Miller is the only medical practitioner to express such an opinion and that the two psychiatrists who have examined the plaintiff have not expressed an opinion that the plaintiff’s emotional injury is in any way responsible for sponsoring physical symptoms, I do not find Mr Miller’s opinion upon this issue to be persuasive.
23 Dr David Andrews, the plaintiff’s treating general practitioner, in a report dated December 2011, described the progression of the plaintiff’s spinal injury in the following terms:
“Progression to full recovery for Mr Caminiti has not been good. He continues to have severe pain with some symptoms of sciatica.”
24 Although these comments were made by Dr Andrews in a report dated December 2011, they should be seen in context of the comment made by Dr Andrews in his report that he had last seen the plaintiff on 29 July 2011.
25 A patient health summary printed December 2013 records the plaintiff’s attendances at the Epping Health Care Centre. Between 15 November 2011 and 15 October 2013, the plaintiff attended the Centre on some seven occasions. Essentially, the treatment administered at these attendances involved providing the plaintiff with repeat prescriptions for Panadeine Forte, 500 milligrams, 60 tablets by five repeats, and OxyNorm, 5-milligram capsules, 20 tablets, no repeats. These prescriptions were administered to the plaintiff on 15 July 2011, 15 November 2011, 6 July 2012, 1 July 2013 and 15 October 2013. The medical notes as to the plaintiff’s attendances at the surgery confirm the plaintiff’s ongoing cervical and neck symptoms.
26 On 9 October 2012, the plaintiff presented with severe headaches, neck pain with associated migraines and low-back pain. On 6 July 2012, the plaintiff presented with neck pain and headaches and sinus headache. On 23 March 2012, the plaintiff presented with neck pain and headaches. On 1 July 2013, the plaintiff presented with lumbar back pain. The examination notes contain the following entry. “Muscle spasm + +, para lumbar muscles, unable to move at all in any direction, scared.” On 15 October 2013, the plaintiff presented with backache.
27 In a report dated 21 January 2013, Mr S Schofield, orthopaedic surgeon, obtained a history from the plaintiff that he continued to suffer from stiffness and pain in the neck; that he was unable to look up or look to the right or left with ease; that he had pain which radiated to both shoulder blades but not into the arms, except occasional right upper arm pain to the elbow but not below; that he suffered from low-back pain centrally with radiation into both buttocks, but not the knees, and that these symptoms were present every day with aggravation sitting or standing for more than 20 minutes or walking for more than 150 metres.
28 Whilst before opining as to the plaintiff’s position, Mr Schofield sought further investigation by way of an MRI scan. In a report dated 9 December 2013, Mr Schofield opined that the plaintiff had suffered an aggravation of degenerative changes affecting both his cervical and lumbar spines; that the impact associated with the motor vehicle accident caused the aggravation, commenting:
“There is no reason for your client to be considered for surgery in either area at the present time but it must also be mentioned that aggravation of degenerative change may eventually lead to greater risk of prolapse occurring with physical stresses and this would need to be taken into account in assessing permanent disability.
His current clinical signs demonstrate that your client is not fit to resume pre-injury duties but may be able to perform duties of a lighter stress’.
The medical evidence relied upon by the Defendant
29 Mr Michael Fogarty, an orthopaedic surgeon, examined the plaintiff on 3 December 2012, at which time he expressed the opinion that it was likely that the plaintiff had suffered an exacerbation of early degenerative disc disease in his lower neck and spine, as the result of the accident; that his condition had stabilised, and that his treatment and medication received had been entirely appropriate.
30 Dr Brendan Hayman, psychiatrist, examined the plaintiff on 9 August 2012. He obtained a history from the plaintiff that he was more irritable and argued more often with his wife and children; that he whilst he did not feel depressed, he felt angry and frustrated.
31 Mr Hayman opined that the plaintiff presented with an Adjustment Disorder with Depression and Anxious Mood with some features of traumatisation, and opined that the plaintiff presented with a 12 per cent whole person impairment, one third of which arose by reason of the “non-secondary psychiatric impairment” and two thirds of which arose by reason of “secondary psychiatric impairment”.
Conclusions
32 My impression of the plaintiff as he gave evidence was that he was an honest and accurate historian who, prior to the subject accident, possessed considerable physical capacity which he applied to meet the demands of his work and his recreational pursuits.[3] The evidence by the plaintiff’s employer speaks strongly in support of the plaintiff on this issue, as does his return to employment and the level of his post-accident earnings notwithstanding the restricted nature of his duties which could not, in my opinion, be described as involving an activity which might be available in the true labour marketplace. Indeed, my assessment of the plaintiff was that he presented as a stoic witness who was inclined to push himself in order to maintain his employment and income and in this regard I accept his evidence at T53-L25 as providing a succinct summary of the toll which even his restricted duties take upon him namely:
“I do my job. I struggle every day; I don’t go sooking about it. I’ve got a family. I need to provide. I struggle. I go home stop. I fall in a heap on the couch, you know, and the next day off we go again.”
[3]In this regard I formed the opinion that the plaintiff in his work life prided himself upon his ability to perform heavy physical work – see the affidavit of Mr McMillan as to the activities which the plaintiff undertook in the course of his employment and his comment that the plaintiff was a team leader in his workmanship. See also the plaintiff’s evidence as to his level of education and his pre-accident interests.
33 Although the plaintiff’s need for treatment from his general practitioner has been sporadic in nature over the last two years, I am satisfied that this arises most probably in association with the plaintiff’s tendency towards stoicism and by reason of the fact that there is little in the form of treatment which his general practitioner can offer the plaintiff other than to ensure that he has access to the medication which he needs in the form of Panadeine Forte and OxyNorm.
34 It is clear that the plaintiff has retained a capacity to work some 60 hours a week in relatively light employment and that he retains a capacity to earn income in the vicinity of $100,000 per year before tax.
35 A simplistic analysis of the effect of the plaintiff’s injury upon his life and lifestyle, based solely upon the plaintiff’s capacity to work and earn income, would suggest that it is inappropriate to describe the plaintiff’s impairment of function of his spine as being “serious” within the definition of that term as employed by the provision of the Transport Accident Act 1986.
36 I am of the opinion however that when the process of comparing the capacities lost by the plaintiff by reason of his impairment of spinal function with those he has retained and account is taken of the fact that the plaintiff:
· Notwithstanding the years taken to acquire the skills required to
(i) gain the trade qualification of panel beater; and
(ii) obtain full-time employment as a fitter and turner;
is now, not only precluded from working in those capacities on a permanent basis, but is also precluded from undertaking heavy work of the type involved in his pre-accident employment in which he was described by his employer as an excellent employee and a team leader in his workmanship;
· Has suffered an alteration in his capacity for activity such that a man described by his employer as being able to undertake work involving bending, twisting, squatting, lifting and standing for prolonged periods of time and handling weights of up to 20 or 30 kilograms, now has a tolerance for weights in the vicinity of 6 kilograms, which tolerance would be challenged very regularly in daily life;
· Has suffered a loss of his capacity to earn income in his current employment[4] and has to permanently live with the worry that should he lose his job, he may have difficulty finding alternative employment by reason of his restricted capacity for activity;
[4]See the statement by Mr McMillan that the plaintiff, since returning to work, has not received a pay rise in contrast to the position which pertained previously in which he received an annual pay increase.
· At the age of forty-one, the plaintiff has significant limitations in his ability to stand or sit for long periods of time or walk for long distances without exacerbating his symptoms, which restrictions are permanent;
· Must manage his symptoms with a regime of prescription-strength Panadeine Forte and OxyNorm which, although not employed daily, are ingested at the rate of three or four Panadeine Forte tablets on average per week and OxyNorm when his symptoms are more severe;
· Is precluded from engaging in his hobby of riding his dirt motorcycle and is restricted in his ability to ride his Harley Davidson motorbike for long distances, his condition being exacerbated by activities around the house as non descript as mowing the lawn;
· Has developed a Chronic Adjustment Disorder with Anxious and Depressed Mood, which has affected his personal relationships such that he is less social and more argumentative with his wife;[5]
it is appropriate to characterise those losses[6] as giving rise to an impairment which is appropriately described as being more than significant or marked and as being at least very considerable.
[5]See the report of Dr Nathan Serry dated 11 October 2001. In taking this evidence into account I do so only as far as the Court of Appeal decision in Richards v Wylie (2000) 1 VR 79 allows.
[6]I am satisfied that the plaintiff’s spinal injury contributes materially to each of the consequences referred to above.
The claim as to the Impairment of the foot
37 Having made the above finding, it follows that the plaintiff is entitled to the leave sought in this application and that it is not necessary that I analyse in depth the significance of the impairment of function present in the plaintiff’s left foot.
38 It is appropriate however that I make known my opinion that even when assessing the position put on behalf of the plaintiff at its highest as to the level of impairment associated with that condition, I am not satisfied that it is appropriate to describe the impairment arising from this injury as being more than significant or marked. I will provide detailed reasons justifying my position in this regard upon the parties satisfying me that it is necessary to do so.
39 I will hear the parties as to the order which should be made in this application and also as to costs.
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