Campbell v Lau Nay Nominees Pty Ltd
[2013] VCC 1255
•2 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-12-04425
| Craig Campbell | Plaintiff |
| V | |
| Lau Nay Nominees Pty Ltd | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 & 13 September 2013 | |
DATE OF JUDGMENT: | 2 October 2013 | |
CASE MAY BE CITED AS: | Campbell v Lau Nay Nominees Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1255 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – injury to the lumbar spine – pain and suffering
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley of Counsel | Shine Lawyers |
| For the Defendant | Mr D Seeman of Counsel | Herbert Geer |
HER HONOUR:
1 The 50 year-old plaintiff applies for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the lumbar spine suffered on or about 1 December 2005 during the course of his employment with the defendant as an operations manager. At the time of his injury he was working 50 hours per week and earning $1200 per week gross. The injury occurred when he was pulling a tarpaulin onto a truck and it got caught on part of the truck, causing him to feel severe lower back pain and some left leg pain. The injury relied upon is a disc injury at L5/S1 with compression of the exiting left L5 nerve root. He had treatment and some time off work and returned to work on modified duties and decreased hours, and was taking medication. He kept taking time off work due to his lumbar symptoms in 2006, and by late 2006 stopped working with the defendant due to his back pain and left leg pain. He made a WorkCover claim in respect of this injury, which is the subject of the present application.
2 Almost immediately after leaving his employment with the defendant the plaintiff obtained work, through a friend, as a forklift driver with Dyer Engineering (“Dyer”). On the first day of working there in October 2006, he felt a lot of back pain at the end of the day, and had to take more time off work, returning on modified duties and decreased hours. He made a WorkCover Claim in respect of this bout of pain. Over the next six months he had difficulty attending work regularly due to his back and left leg pain and left Dyer after 6 months.
3 From 1 December 2005, he suffered ongoing symptoms relating to the lumbar spine injury. He cannot work full time due to his lumbar symptoms, but works between two and four days per week as a tip-truck driver. He had treatment in the form of medication and a cortisone injection (in 2007) but now takes medication (2-4 Codalgin Forte) on the days he works. He has constant pain in his lower back which is aggravated by prolonged walking, bending, sitting, twisting or lifting. He is restricted in his domestic and recreational activities. He can no longer water ski and has sold his boat. He can no longer ride a motorbike off-road. He has difficulty interacting with his grandchildren.
4 The defendant agrees that the plaintiff has suffered a permanent impairment of the function of the lumbar spine, but says that there are two injuries at play here. The first occurred on 1 December 2005. There was a subsequent injury on 18 October 2005, at Dyer, which was an aggravation or exacerbation of his pre-existing injury, but was caused by his driving the forklift. The defendant relies on the histories recorded by Mr Gassin, Dr Jayasinghe and Dr Micut to the effect that, in the months prior to October 2006, the plaintiff was coping well, working in his normal duties full-time for the remainder of his time at the defendant, and had not complained to doctors about back pain. The defendant also relies on a number of other matters; the plaintiff’s allegedly mistaken belief that he was being prescribed Panadeine Forte while employed by the defendant when in fact the evidence suggests that it was Dr Goh who prescribed this medication for him for the first time on 24 October 2006, while he was working at Dyer; the plaintiff’s allegedly mistaken belief about his inability to dig in the garden in October 2006 prior to working at Dyer; and the plaintiff’s alleged confusion, as evidenced by the mistake in paragraph 9 of his first affidavit, about whether his difficulties with back pain and leg occurred in October or December 2006.
5 The defendant says that the relevant time at which to assess the seriousness of the plaintiff’s first injury is prior to his commencing employment at Dyer. On this basis, the defendant says that the plaintiff has not met the threshold for serious injury in terms of pain and suffering consequences because he was working full time, his pain was of a niggling nature only, and he was not taking prescription medication.
6 The plaintiff says that on the evidence the injury sustained while working for the defendant is the only relevant injury and the exacerbation of symptoms which occurred when he was employed at Dyer was simply an exacerbation of symptoms in the context of a permanent impairment of the function of the lumbar spine which resulted from the incident on 1 December 2005 while working for the defendant. On this analysis, there is no second injury. Even if a second injury is found, on the evidence, prior to its occurrence the plaintiff had suffered significant pre-existing problems, with radiological confirmation of disc bulges and was working with restrictions that involved no heavy lifting. Leaving aside the effects of the exacerbation which occurred in 2006 the plaintiff would still be left with a permanent impairment with sufficient sequelae in terms of pain and suffering, to meet the relevant threshold.
7 At the hearing the plaintiff and his treating general practitioner, Dr Jayasinghe, gave evidence and were cross-examined. The parties tendered court books. I have considered all of the evidence relied on by the parties.
Plaintiff’s evidence
8 The plaintiff’s evidence may be briefly summarised. He left school after Year 11 and completed a diesel mechanic’s apprenticeship. He worked for a company as a truck driver and operations manager before becoming state manager for Singleton Transport, where he remained for 15 years. He had a minor episode of back pain in 2002 lasting a few days but did not have time off work. He commenced working for the defendant in 2005 as operations manager, doing mainly administrative duties but also assisting in the loading and unloading of trucks.
9 He went off work immediately after the incident on 1 December 2005 but did not see a doctor because he hoped his condition would improve. He had back pain, leg pain and pins and needles into the left leg. He could not depress the clutch when driving. On about 13 December 2005 he saw Dr. Cao Phan and told him that he had pain in the lower back, left buttock and down his left leg. He was referred to a chiropractor. He was off work for about one month then returned to work on modified duties doing office work for limited hours. Dr Jayasinghe managed his return to work. A number of entries in Dr Jayasinghe’s clinical records were put to the plaintiff in cross-examination. He agreed that at times in 2006 his pain improved and he wanted to increase his hours, and did so. He insisted that his left leg pain began on the day of the incident on 1 December 2005. He agreed that his back condition improved in 2006 and that he managed to increase his hours by mid June 2006 to 9 hours per day, and said he was doing stretching exercises. He said that he was not coping as well as Dr Jayasinghe recorded on 26 June 2006 but wanted to work full time. He agreed that he did not see a doctor for some two months after 31 July 2006 when he was working full time doing normal duties but insisted that he was “never ever right” after 1 December 2005 and was unable to do gardening properly or mowing. He struggled at work but just put up with it and did not see doctors because there was nothing to be done. He had flare ups of pain when doing normal hours. During those flare ups he would lie on the floor and do the stretching exercises he had been shown by the physiotherapist. He had physiotherapy and hydrotherapy throughout 2006.[1] He was taking painkillers and anti-inflammatories. During 2006 he had ongoing back pain which caused him to have periods of time off work.
[1]The plaintiff did not initially recall when this treatment began but was prompted by the clinical records of Dr Jayasinghe which refer to the plaintiff as receiving physiotherapy treatment as early as 6 February 2006. See PCB 47
10 He stopped working for the defendant in October 2006 because of his back and leg pain. He said that he was struggling to do the full time hours there because of his back pain and was getting agitated for the last few hours each day because of his back pain. He was taking Panadeine Forte at the time.
11 His friend was a manager at Dyer, knew about his injury and offered him a job there. He felt that driving a forklift would allow him to move around a lot more than his job with the defendant, where he was tied to the phone and his desk. He said that his work at Dyer did not involve heavy lifting. However, after driving the forklift all day on his first day at Dyer he had a lot of back pain and had time off work, returning on modified duties and decreased hours. He said that nothing specific occurred on that day. Dyer asked him to fill in a WorkCover form, which he did. In that form, he stated that he was driving a forklift in the yard loading area when he suffered a “relapse of previous injury”. He said that he wrote this because this is what he thought it was – a recurrence of the same injury as suffered when working for the defendant.
12 The plaintiff was taken to a letter written by Dr Robert Gassin, musculoskeletal physician, on 22 August 2007, to the plaintiff’s doctor, Dr Micut, in which Dr Gassin described a history of “a previous episode of back pain 12 to 18 months ago whilst unloading a truck. This resolved spontaneously”.[2] The plaintiff said in cross-examination that he would not have told Dr Gassin that his episode of pain in December 2005 had resolved spontaneously. He agreed that he had some cortisone injections in his back in 2007. He has had physiotherapy and chiropractic treatment. He has seen Mr Timms, neurosurgeon.
[2]DCB 43A
13 His back pain and left leg pain continued and he left Dyer after 6 months due to the difficulties associated with his back pain. He did not work for 6 months and then obtained work as a truck driver with DVQ, working 5 days per week. He continued to have problems with back pain and left leg pain and reduced his hours to 3 days per week. The business ran out of work. The plaintiff was out of work for 20 months and in July 2012 returned to DVQ as a tip-truck driver. He first worked there casually, about 2 days per week but up to 5 days per week around Christmas. He got more regular work there from June 2013 and now works around 2 days per week but some times up to four days per week if his back is up to it. If he has to drive up to an hour away from the depot he gets out of the truck and walks around. He has only been able to work 4 days per week on fewer than 5 occasions in the past six months. He suffers from back pain at the end of the day and lies down when he gets home. On the days he works he takes 2-4 Codalgin Forte to help him cope and occasionally takes it on other days. He does not feel he can work more hours because of the back pain. His current treating doctor is Dr Sam Micut.
14 At home, he is restricted in the household chores he can perform. He cannot mow the lawns or do heavier gardening work. He cannot carry heavy shopping. He is despondent about his future and his ability to earn an income. He has two grandchildren, and his wife has two grandchildren from a previous relationship. His back injury affects his ability to play with the children. Prior to suffering his back injury on 1 December 2005 he was a keen water skier and owned a ski boat. He used to go waterskiing with family and friends[3] every Christmas and on long weekends. He last water-skied during Easter of 2005, but has not skied since sustaining his back injury. He has sold his boat. He used to enjoy off-road motorbike riding with his son but has not tried riding since sustaining the injury to his back in December 2005. He stopped hydrotherapy because he could not afford to pay for it. The plaintiff said in cross-examination that he did not know that he had an open claim with the defendant for his medical expenses.
[3]Two of these friends, Colin Horne and Ray Horne, each provided an affidavit in which they confirmed that they would go motor bike riding and water-skiing often with the plaintiff right up until the latter suffered his back injury: PCB 11-14
Lay evidence
15 The plaintiff’s eldest daughter, Jessica Campbell, provided an affidavit sworn on 4 September 2013[4] in which she confirmed that prior to his back injury the plaintiff was a hardworking man who loved socialising with his friends, gardening and being active with fishing, water-skiing, motorbike riding and playing golf. Since his back injury, he has been constantly on pain medications and mainly stays at home. He has difficulty doing chores around the house and as such, she has moved to Melbourne to help him out. He no longer gardens or mows. He cannot carry the two grandchildren who live with them.
[4]PCB 16
Radiology
16 The CT scan on 27 January 2006 was reported[5] as showing “very minimal posterior bulging of the L4/5 and L5/S1 disc annuli….degenerative gas within the L5/S1 disc”.
[5]PCB 20
17 The CT scan on 12 January 2012 was reported[6] as showing “lumbo-sacral disc degenerative change with significant narrowing of the left lumbo-sacral foramen and possibly nerve root compression”.
[6]PCB 18
18 A MRI of the spine on 24 August 2012 was reported [7] as showing, at L5-S1 “chronic loss of disc height with reactive endplate changes. Early facet arthropathy, greater on the left”. The conclusion was “chronic appearing mechanical change at L5-S1 with compression of the exiting left L5 nerve root”.
[7]PCB 19
Medical evidence
19 Dr Malithi Jayasinghe provided a report to the plaintiff’s solicitors dated 16 November 2011[8] in which she stated that she first saw the plaintiff on 25 January 2006 when he presented “a few weeks after the onset of his left lower back pain” which “had at times radiated to the left buttock”. At the hearing she said that the diagnosis of disc prolapse had been confirmed on the CT scan and that from January 2006 her contacts with the plaintiff were around the low back pain caused by the disc bulges at L4/5 and L5/S1.[9] She said that she noted on 30 January 2006 that the plaintiff “initially had pain radiating down the left leg” after the incident at work with the defendant in December 2005, had been seeing a chiropractor “with some improvement” and had been “on Voltaren for the 1st week with not much benefit”.[10] She said that he could take regular analgesics, one of Voltaren, Panadol, or Panadeine, which would provide him with relief. She said that at times when managing the plaintiff’s return to work he was pushing himself too far. She supported his ongoing physiotherapy, stretching and swimming as well as his return to work full time in duties not involving heavy lifting or repetitive bending in order to prevent any relapses.
[8]PCB 28
[9]Transcript 61
[10]PCB 46
20 She said that she was not surprised to see him in early November 2006 with a recurrence of his earlier back pain. She said she was aware of his WorkCover claim with Dyer and provided certificates for them. She said that there was no frank injury while the plaintiff was at Dyer and the presentation in October 2006 was a recurrence of his earlier back symptoms.
21 Dr Sam Micut, the plaintiff’s current treatment medical practitioner, provided two reports to the plaintiff’s solicitors. The first report dated 6 September 2011[11] reviews the consultations of the plaintiff with other doctors at the Hallam Family Practice. Dr Micut records that “he seemed to be ok till December 2006, when he developed back pain again while twisting at work”. The plaintiff at the hearing denied any specific twisting injury. I note that the clinical records of Dr Phan include a note on 5 December 2006 of a “flare up of back pain while twisting at work. Previous back pain in Dec 2005. CT showed minor disc prolapse at L5/S1 and L4/5 but nil nerve compression”.[12] Nothing in my opinion turns on this entry, as the plaintiff has consistently stated that his recurring back symptoms date back to the injury on 1 December 2005.
[11]PCB 21
[12]PCB 58
22 In his second report dated 14 May 2013,[13] Dr Micut notes that the plaintiff continues to suffer from lower back pain radiating to the left leg at times, which fluctuates but never goes away entirely. He noted that the plaintiff had been treated with analgesics and anti-inflammatory medication as well as physiotherapy and hydrotherapy. He notes that the plaintiff is certified unfit to work or study more than 8 hours per week, but noted that when his back pain is a bit better, he has been able to work 2-3 days per week. Dr Micut imposed restrictions including no lifting more than 10kgs and no forceful movements or repetitive bending. He concluded that the plaintiff was permanently unfit for full time work. He noted that mowing, cleaning, carrying shopping would be difficult for him.
[13]PCB 22
23 Mr Craig Timms, neurosurgeon, reported on 22 May 2012,[14] that he saw the plaintiff in April 2012 on referral from Dr Micut, for his low back pain and left leg sciatica since a workplace injury in 2006. Mr Timms noted a history that after the injury the plaintiff’s symptoms “settled down to the point where he was able to keep working, but with persistent controllable symptoms”. He changed his job but driving a forklift full time was “difficult upon his lower back” and he was sacked. He was working part-time as a truck driver but was unable to drive when the symptoms flared up. At the time Mr Timms saw the plaintiff, he had been unable to work for a few months due to the back pain and left sciatica. On examination, Mr Timms found weakness in the left leg and sensory disturbance in the left L4/5 distribution. He noted that the CT scan suggested degeneration in his spine. He concluded that the plaintiff was likely to have “a disc injury with some neural compression in the lumbar spine” which was awaiting confirmation by MRI.
[14]CB 31
24 Mr Timms noted the absence of previous traumatic injury to his spine and concluded that the plaintiff injured his lumbar spine while working as a truck driver in 2005[15].
[15]Mr Timms has mistakenly referred to the workplace injury involving the work as a truck driver as having occurred in 2006, instead of December 2005. It is clear from the substance of his reports that he is referring to the incident which the plaintiff reported occurred in December 2005.
25 After being supplied with the MRI scan, Mr Timms reported on 19 August 2013[16] that the scan revealed “a chronic disc change at the level of L5-S1 with some mild neural compression on the left hand side” and that this is “most likely where his symptoms are coming from”. He noted that when he had last seen the plaintiff his symptoms were improving. He noted that “patients with back pain and sciatica do have limitations on movement and particularly their endurance to sit, stand, and mobilise. If the symptoms persist, there will be a degree of limitation in his normal activities of daily living”.
[16] PCB 35
26 The plaintiff’s treating chiropractor, Andrew Arnold, reported on 16 May 2012[17] that he first treated the plaintiff on 14 December 2005 for low back pain “caused by pulling a tarp off a truck” and last treated him on 16 December 2006. He diagnosed “acute, left sided, moderate to severe lumbar neuralgia with concomitant myospasm”.
[17]PCB 37
27 Mr Kenneth Brearley, surgeon, provided two reports to the plaintiff’s solicitors. The first report dated 10 August 2012[18] notes a history of immediate back pain and left leg pain on 1 December 2005, with a return to modified duties for six months or so, and a return to full duties with ongoing back pain and some odd days off work as well as ongoing physiotherapy. The plaintiff told him he had trouble sitting at his desk for long periods because of back pain. He left that job, worked for Dyer, but his back pain increased and he had to cease that work after six months. He worked as a truck driver with DVQ initially full-time but his back and left leg pain worsened and his hours were reduced. He did not work for 18 months after DVQ ran out of business then resumed working for them 2-3 days per week as a truck driver. He reported “some difficulty with the work but he intends to stay on for as long as possible”.
[18]PCB 38
28 Mr Brearly noted the symptoms of constant pain or numbness in the lower back, left buttock and down the whole left leg to the foot. The buttock pain is constant while the leg pain is intermittent and occurs about once per week. The pain is worsened by bending, stooping, attempted lifting, and standing or walking for long periods. He was having hydrotherapy twice per week and taking four Panadeine Forte tablets per day. He had previously been on Oxycontin. He noted the plaintiff had trouble with vacuuming, sweeping, mopping, could not mow the lawn or garden, and could not water-ski or ride a motorbike.
29 Mr Brearley noted that the plaintiff had not yet had an MRI but felt that the plaintiff was suffering “mechanical low back pain secondary to intradisc injury to the L4/5 and L5/S1 intervertebral discs”.[19] He concluded that the plaintiff’s employment with the defendant was a significant contributing factor to his back injury. He concluded that the plaintiff was permanently limited to part-time work 3 days per week where no lifting or heavy manual labour was required.
[19]PCB 41
30 In his second report dated 24 July 2013,[20] Mr Brearley noted the MRI findings of 24 August 2012 and repeated the diagnosis made in his first report. He noted that the plaintiff was working 16 hours per week driving a tip truck and coping quite well with this job although he was taking analgesics when working. He repeated the conclusions reached in his first report.
[20]PCB 43
31 Dr James Rowe provided three reports in 2006 and 2007 to Dyer’s insurers. In the first report dated 7 December 2006,[21] Dr Rowe noted the history of a back injury 12 months earlier while working for the defendant, that the plaintiff had eventually returned to normal duties but had then left that job and that in early October while working for Dyer “driving a forklift…and loading trucks” he “developed further back pain similar to that which he had had previously”. Dr Rowe noted the CT scan taken at the time of the injury with the defendant showing disc bulges, and concluded that there was a further injury at Dyer Engineering, noting that he had a disc bulge, some weakness in the back and “minimal signs of radiculopathy in the left leg such as the wasting of the calf”. Dr Rowe concluded[22]:
I am not sure how you handle this, but it would seem that it was an aggravation of a previous back claim against his previous employer.
[21]DCB 8
[22]See DCB 10
32 On 3 April 2007 Dr Rowe reported[23] that there had been an improvement in his condition in that he had less pain, was taking an occasional Panadeine Forte, was working 35 hours per week, had a better range of movement of the back, and his left calf wasting had recovered, although his left straight leg raising was still slightly restricted. He felt that the employment at Dyer remained a material contributing factor but that he should be fit to resume his normal duties within 3 months and would not be left with any permanent impairment.
[23]See DCB 12
33 On 11 July 2007 Dr Rowe reported[24] that the plaintiff should not drive a solid tyre forklift with poor seating over a rough surface and should not return to work involving constant jarring or extremely heavy lifting.
[24]See DCB 17
34 On 23 January 2012 Associate Professor Anthony Buzzard, surgeon, reported[25] a history from the plaintiff of no low back trouble prior to December 2005 when he experienced a sudden onset of low back pain and left leg pain. He noted that the plaintiff was taking two to four Panadeine Forte per day. He took a history that the plaintiff’s back worsened while working for the defendant, that he then left that job and commenced working at Dyers where he was unable to do the duties required of him. Mr Buzzard found no evidence of radiculopathy. He noted the disc pathology reported in the CT scan of 2012 but could not see any evidence of nerve root involvement. He felt that the plaintiff had a “light work back”. He concluded that, on the history given, particularly of no problems prior to December 2005, there was no place for any apportionment and his clinical presentation is consistent with his suffering a low back injury as a result of the workplace incident on 1 December 2005.
[25]See DCB 22
35 On 19 July 2013, Mr Buzzard provided a second report in which he noted that the plaintiff continued to suffer lower back pain, which he felt was worsening, as well as left leg pain. He was taking Panadeine Forte whenever he worked. Mr Buzzard repeated his opinion that the history of back pain radiating down the left leg suggested a disc prolapse but said this was “not supported by clinical or indeed radiological abnormalities”. However he repeated that the plaintiff had a light work back and should not do work involving much lifting, bending or stooping.
Legal principles
36 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[26] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[27]
[26]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[27]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
37 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[28] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[29] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and, finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[30]
[28]Fleming v Hutchinson (1991) 66 ALJR 211.
[29]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[30]Ibid [80].
38 The “pain and suffering consequence” of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[31]
[31]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
39 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[32]
[32]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
40 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[33]
[33]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
41 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[34] Each case has to be determined in the light of its own facts.[35]
[34]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[35]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
42 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[36] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[37]
[36]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[37]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
Findings and reasons
43 I found the plaintiff to be an understated, straightforward and stoic witness who has shown himself to be highly motivated to continue working notwithstanding his injury. I accept his account of the circumstances and the sequelae of the injury sustained on 1 December 2005 which is largely unchallenged, and which has remained consistent over many years and many consultations with doctors. The change in his level of activities is corroborated by his friends and by his daughter. I consider that the plaintiff was very stoic and pushed himself, notwithstanding his persisting symptoms, to return to work full time with the defendant, but had difficulty managing the work due to his symptoms. I accept his evidence that his back was never the same after the injury sustained on 1 December 2005.
44 I consider that the weight of the evidence is to the effect that the incident at work on 1 December 2005 is a material contributing cause of his current permanent lumbar spine impairment. Prior to that incident, he did not have any back problems, was working full time in his normal duties without restriction, taking no medication, and able to engage without restriction in his social, domestic and recreational activities including housework, gardening, waterskiing, motorbike riding and socialising. After the incident, his condition permanently altered. By January 2006, well before he went to work at Dyer, there was radiological evidence of disc bulges in the L4/5 and L5/S1 disc annuli. Mr Timms, a neurosurgeon, was satisfied in May 2012 that the plaintiff had a disc injury with some neural compression in the lumbar spine, and was fortified in this view after the MRI scan. He concluded in August 2013 that the plaintiff had suffered “back pain and left leg sciatica from a disc injury at the level of L5-S1”. Mr Buzzard gave no reason for concluding that there was no radiological support for a diagnosis of sciatica due to a disc prolapse. In the light of Mr Timms’ expertise, I prefer his opinion to that of Mr Buzzard in this regard. There was general consensus in the medical reports that the incident of 1 December 2005 materially contributed to the plaintiff’s permanent lumbar spine impairment.
45 I note that even Dr Rowe and Mr Buzzard concluded that the plaintiff’s current low back injury results from the incident in December 2005. Dr Rowe expressly concluded that what occurred at Dyer in October 2006 was a recurrence of the symptoms experienced earlier. Mr Buzzard did not specifically refer to any complaints of back pain in October 2006. Dr Gassin’s note in his letter of a spontaneous resolution of the plaintiff’s symptoms after the 1 December 2005 is at odds with the plaintiff’s sworn evidence, which I accept, concerning the ongoing nature of his back and leg symptoms after 1 December 2005, and with the histories given to other doctors. I attach little weight to Dr Gassin’s letter in this regard.
46 I consider on the evidence before me that the incident of a worsening of back symptoms after one day driving a forklift at Dyer is most appropriately viewed as a flare-up of a lumbar spine problem which arose after the incident of 1 December 2005. I accept the plaintiff’s evidence that there was no frank injury in October 2006 while driving the forklift at Dyer. This was also the tenor of Dr Jayasinghe’s evidence at the hearing. On all the evidence before me, I consider that by late September 2006, immediately prior to commencing employment with Dyer, the plaintiff had significant lumbar spine impairment arising from the injury sustained on 1 December 2005. He had been suffering persistent low back pain and left leg pain requiring medication and treatment with physiotherapy and hydrotherapy throughout 2006 he had suffered restrictions in his ability to work and had been permanently precluded from engaging in heavy lifting. He was having physiotherapy and doing swimming to prevent further injury to his vulnerable back. He was battling to work full hours and ultimately left his job with the defendant because of the persistent symptoms he was suffering.
47 I consider that, leaving aside any aggravation or exacerbation produced by one day’s work at Dyer, the injury sustained on 1 December 2005 is a material contributing cause of his current permanent impairment of the function of the lumbar spine.
48 As a result of his lumbar spine impairment, the plaintiff suffers persistent low back pain and left leg pain requiring medication, which prevents him from working full-time and restricts him significantly in his domestic and recreational activities. He takes medication in order to be able to work. He is limited in his capacity to interact with his young grandchildren. His limitations are such that his daughter has moved back to Melbourne to live with him and to assist him at home.
49 I consider that the pain and suffering consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the function of the lumbar spine.
Conclusion
50 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the lumbar spine sustained on 1 December 2005 during the course of his employment with the defendant. I reserve the question of costs.
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