Cao v Centaur Systems Pty Ltd
[2017] VCC 121
•20 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00485
| Ben Joe CAO | Plaintiff |
| v | |
| Centaur Systems Pty Ltd | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2017 | |
DATE OF JUDGMENT: | 20 February 2017 | |
CASE MAY BE CITED AS: | Cao v Centaur Systems Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 121 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine
Legislation Cited: -
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.A Smith Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr P.B Jens CQ Ms S.C Bailey | Lander & Rogers |
HIS HONOUR:
1 In this application the plaintiff seeks leave to commence a proceeding seeking damages for an injury suffered to his lumbar spine in the course of his employment with the defendant in 2011 when he was 22 years old.
2 The leave sought is limited to pain and suffering damages. The relevant impairment of function relied upon by the plaintiff in the application is that of the lumbar spine.
3 In the application the plaintiff relies upon two affidavits dated 29 September 2015 and 7 February 2017 together with medical and like material contained in the plaintiff’s court book and tendered by the plaintiff. The defendant relies upon the documents which form Exhibits 1 – 3 together with the medical reports tendered in its Court Book.
4 In addition the plaintiff gave viva voce evidence which was largely in the form of cross-examination.
5 The content of the plaintiff’s affidavit evidence and viva voce evidence is a matter of record. No purpose is served by my replicating that material in the course of my reasons. That being said I will refer to it with such specificity as is required to demonstrate my path of reasoning in this instance.
6 In the course of cross-examination the plaintiff’s credit and reliability was tested on a number of topics.
7 As demonstrated by the position taken by Counsel for the defendant in the course of closing submissions, those issues having been tested, largely fell away, Mr Jens conceding that the plaintiff presented as an unusually frank witness upon the critical issue as to why he has not yet applied for employment.
8 Whilst in cross-examination, the plaintiff conceded that he had flirted with drug use as a young man prior to his injury, his evidence as to this issue did not in my opinion in any way undermine his reliability as a witness. Neither in my opinion did the plaintiff’s frank admission that, during periods of depression following his injury he had on occasions been motivated toward the excessive use of alcohol or substance abuse.
9 In closing submissions the defendant persisted in its position that the plaintiff was less than candid in his affidavit evidence by failing to disclose his activity in renovating and selling the residential property located in Tamarisk Road Narre Warren.
10 Given the candid and forthright admissions made by the plaintiff in the course of his cross-examination I am not satisfied that the plaintiff’s failure to disclose his involvement in the development of the Tamarisk Road property should be given any weight in the decision-making process required of me for the following reasons:
· Firstly, I accept the position put on behalf of the plaintiff in closing submissions that given:
i.the focus of this application is solely upon the effect which the injury the subject of the application has had upon the plaintiff both as to the symptoms it generates and his capacity for physical activity; and
ii.the limited level of physical activity undertaken by the plaintiff in the renovation of the property;
the plaintiff’s activity in renovating the property may well have been regarded as being of no probative relevance to the application and for that reason not the subject of the affidavit evidence.
· Secondly, the plaintiff’s capacity to undertake the organisational tasks associated with the renovation of the property was essentially disclosed by reason of the plaintiff’s affidavit evidence that he had completed a Certificate 4 in Construction through the Master Builders Association about which course he readily volunteered in his viva voce evidence, he had done well and expected to gain the qualifications the subject of the course.
11 The plaintiff as he gave evidence impressed me as someone doing his best to give a truthful account of his symptoms and their impact upon his life. His demeanour in that regard, when considered in the context of the steps taken by the plaintiff to rehabilitate himself by undertaking retraining to equip him for the various forms of alternative employment which suited his limited capacity for physical activity, and in that way demonstrate his decision to prioritize his rehabilitation ahead of the outcome of this application; satisfy me as to his honesty and reliability as a witness.
The medical evidence
12 I am satisfied given the passage of time since the plaintiff’s injury that his condition is stabilized and is permanent.
13 There is no issue:
· That the plaintiff suffered a significant disc injury to the L4 S1 disc in the course of his employment;
· That the injury caused the plaintiff to experience symptoms of back pain and radiculopathy such that it was recommended to the plaintiff that he undergo spinal fusion notwithstanding his young age at the time of the injury;
· The plaintiff sought approval from the Accident Compensation Commission to undergo that surgery which was denied;
· The plaintiff has made a reasonable recovery from the injury such that he retains a capacity for suitable employment of the type the subject of the most recent report by David Brownbill, namely work which does not expose the plaintiff to heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
14 I note that in expressing the above opinion Mr Brownbill did so in the context of the history taken by him from the plaintiff (about which he took no issue) that:
· the plaintiff suffered from mid lumbar back pain which was present all the time with fluctuations being worse with bending lifting or prolonged standing or sitting the plaintiff commenting to Mr Brownbill:
“the pain has improved a little but that is because I take care of my back”
and further;
· that the plaintiff experienced symptoms of leg pain extending from the buttocks down the right side of the thigh and sometimes the side of the lower leg which occurred about once a month and lasted up to 2 or three weeks and which was precipitated by bending, lifting or sleeping awkwardly.
15 The symptoms so described by the plaintiff to Mr Brownbill are consistent with those described by the plaintiff in his affidavit evidence and in his viva voce evidence, which I accept.
16 Mr Brownbill took no issue with the plaintiff’s reliability as a historian. For that matter neither did any of the medical practitioners who have assessed the plaintiff in this instance.
17 I find the evidence by Mr Brownbill (upon which the defendant relied in closing submissions) to be persuasive both in its analysis of the plaintiff’s presentation and its statement as to the plaintiff’s level of capacity for activity.
18 In my view that evidence is consistent with the body of expert evidence in the case a large portion of which, by reason of its date, provides insight as to the severity of the plaintiff’s initial injury but not as to the ongoing and permanent nature of the plaintiff’s current incapacity.
19 Further, I am satisfied that the opinion expressed by Mr Brownbill is largely consistent with that the medical evidence tendered by the defendant.
Findings
20 In assessing the consequences to the plaintiff at this time of the injury the subject of this application, I am satisfied that the initial injury was one the nature of which was likely to cause ongoing and permanent symptoms given the level of disruption occasioned to the lumbar spine of a very young man.
21 Whilst it is clear with the passage of time that the plaintiffs symptoms have to some extent diminished, it is significant in my opinion, when assessing the plaintiff’s evidence as to his continuing level of symptoms that in 2016 the plaintiff was motivated to travel to Sydney to seek an opinion from someone located by the plaintiff via his own research, who he considered to be an eminent surgeon well placed to authoritatively opine upon the issue as to whether the plaintiff’s ongoing disability and symptoms could be ameliorated by fusion surgery.
22 Whilst I take account of the fact that the plaintiff manages his symptoms with only occasional recourse to medication and that in certain circumstances management of that type may attest to the modest nature of incapacity or pain, given:
· my finding that the plaintiff presented as a reliable witness generally; and
· the course of action taken by the plaintiff to seek advice from a Sydney surgeon as to the issue of surgery at this time which I consider to be unusual and extremely unlikely to have occurred in the absence of the presence of symptoms which impacted very significantly upon the plaintiff’s life and lifestyle;
I am satisfied that I should accept the plaintiffs evidence that he suffers from continuing symptoms of significant pain, which can be and are aggravated on a recurring basis such as to become, for short periods of time, incapacitating.
23 There can be no issue in this instance that the plaintiff has recovered from his initial injury to a level where a wide range of appropriately modified employment activity is available to him. I am satisfied that the plaintiff is likely to apply for work within his physical capabilities which if he obtains will provide him with stimulation and income of the type available to him having not been injured. I am equally satisfied that the plaintiff retains the ability to, with caution, engage in the range of social and physical activity as described by him both in his affidavit and in the course of his viva voce evidence in this instance.
24 The Plaintiff is currently 27 years old. He was, prior to his injury, a fit young man capable of strenuous physical activity in the working environment and interested in physical fitness and exercise which he pursued at the significant levels described by him in his affidavits. These capacities have now been permanently lost to him.
25 The plaintiff’s evidence as to the impact of his symptoms upon his ability to sleep as set out in his affidavits are not in dispute. In turn I find that impact to be likely given my findings as to his level of symptomology. That alone is a consequence of significance for a young man.
26 The fact that the plaintiff:
· is required to employ a regular regime of participation in hydrotherapy, exercise and stretching programs which he describes as being a feature of his life for most days;
· has an inability to walk on uneven ground or for significant periods of time without aggravating his symptoms;
· presents with a condition which is potentially aggravated by simple tasks such as those described in his affidavit, which aggravation can significantly impair him;
· is required to employ significsnt levels of medication on a regular albeit spasmodic basis;
· has an inability to engage in the broad range of recreational pursuits and interests which formed part of his life as attested to in his affidavits;
· is permanently confined in the range employment opportunities available to him such that his employment will be determined by his symptoms and not his own choice;
when considered in the context of the plaintiffs young age in my opinion gives rise in this instance to a condition which is appropriately described as involving an impairment which can fairly be described as being more than significant or marked and very considerable when judged by comparison with other cases within the range of possible impairments.
27 For these reasons I am satisfied that the plaintiff is entitled to the leave sought in this instance.
28 I will hear the parties as to the form of the orders which should be made and also as costs.
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