Clark v Holdsworth
[2013] VCC 555
•23 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00069
| TIMOTHY CLARK | Plaintiff |
| v | |
| ANTHONY HOLDSWORTH | Defendant |
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JUDGE: | HER HONUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 23 May 2013 | |
DATE OF JUDGMENT: | 23 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Clark v Holdsworth | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 555 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 18; Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Jones v Dunkel (1959) 101 CLR 298; Church v Echuca Regional Health (2008) 20 VR 566; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
Judgment: Leave to the plaintiff to commence common law proceedings in respect of injury suffered in the course of employment with the defendant in May 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Makowski | Robinson Gill |
| For the Defendant | Mr Hooper | Lander and Rogers |
HER HONOUR:
1 In late May 2005, Timothy Clark, the plaintiff, was working as an apprentice carpenter with Anthony Holdsworth, the defendant, at a building site in Taylors Hill. The work involved putting up a timber frame. The system of work was that two people would hold the frame in place as the frame was positioned ready to be fixed. Mr Clark was carrying the frame when his co-worker let go of the frame, leaving Mr Clark to take the full weight of it. The frame twisted and fell towards him, causing him to fall backwards on top of other frames laying on the ground. The falling frame landed on top of him (“the incident”).
2 Mr Clark now seeks leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring common law proceedings in respect of his injuries sustained throughout the course of his employment with the defendant or in respect of the incident to which I have just referred.
3 It is common ground between the parties that the incident occurred, and that Mr Clark was injured as a consequence. The real issue in the case is whether the consequences of the injury qualify as a “serious injury” as defined by the Act.
4 The proceeding commenced before me on 21 May and continued on 22 May. It completed this morning (23 May 2013). Mr Makowski appeared on behalf of the plaintiff. Mr Hooper appeared on behalf of the defendant. Helpfully, each of the parties provided written submissions at the conclusion of the evidence.
5 The legal principles are not in dispute. They are well set out by Mr Hooper in his submissions, Exhibit 5. I adopt his summary of those principles as set out in paragraphs 5 to 9:
“Statutory framework – section 134AB
[5]The County Court must not give leave unless it is satisfied, on the balance of probabilities, that the injury is a ‘serious injury’ within the meaning of the definition of “serious injury” contained in s 134AB(37) of the Act.[1]
[1] See s134AB(19)(a) of the Act.
[6]The plaintiff relies on paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act, which reads:
‘serious injury’ means─
(a)permanent serious impairment or loss of a body function;’
[7]The part of the body said to be impaired for the purposes of paragraph (a) is the thoracolumbar spine.
[8]To succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by him arose out of or in the course of or due to the nature of his employment with the defendant on or after 20 October 1999;[2]
[2] See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [11].
(b)the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
(c)‘the consequences’ to the plaintiff of the injury in relation to “pain and suffering” must be ‘serious’ – that is, ‘when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least very considerable’.[4]
[9]In determining the application, the Court:
(a)must make the assessment of ‘serious injury’ at the time the application is heard;[5]
(b)should observe that the question of whether an ‘injury’ satisfies the narrative test for serious injury is largely a question of impression or value judgment.”[6]
[3] See Barwon Spinners (op cit) at [33].
[4] See s134AB(38)(b) and (c) of the Act.
[5] See s134AB(38)(j) of the Act.
[6] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67].
The Plaintiff’s Case
6 The plaintiff gave sworn evidence. In his evidence-in-chief, two affidavits he made were tendered as Exhibits A (sworn 16 August 2011) and B (sworn 16 May 2013).
7 In his first affidavit the plaintiff set out his personal history. He was born in May 1986 and at the time of the injury was aged nineteen years. He began an apprenticeship with the defendant only the month before the incident. He described the circumstances of the incident as previously set out.
8 The plaintiff swore that ever since the incident he has had pain in his back and has problems associated with his injury. After the incident he saw his general practitioner, Dr Alan McCleary. He also had some physiotherapy, although it is possible it was a chiropractor that he saw instead. He only saw his general practitioner on “a couple of occasions”[7] but otherwise continued with his work. At the request of his general practitioner, he had an x-ray. I note the x-ray report was tendered as Exhibit F but it does not show any fracture of the spine.
[7]paragraph 5
9 The plaintiff was keen to return to work and complete his apprenticeship. He did so despite ongoing pain in his back. He swore he has “never felt right since the incident”[8].
[8]paragraph 6
10 The plaintiff also described a number of other incidents where he was injured including an occasion in February, 2006 when he was injured at work. On that occasion, he fell from the roof at a building site. He was admitted to hospital and further x-rays were taken, but no fractures were seen. He had a few days off work but then returned to work on his normal duties. He was also the victim of a number of assaults unrelated to his employment.
11 In January 2008, the plaintiff changed employers. By this stage, he felt he was not coping with the amount of heavy lifting associated with the framing work with the defendant and hoped that his new job would be less physically demanding. Unfortunately, he was injured in October 2008 at work when he stepped off a ladder. He developed a “back spasm with a twinge” down his right leg. The following day he was sweeping at work and he experienced more pain in his back. He attended The Alfred Hospital Emergency Department and a few days later saw an osteopath, Angela Searle. His general practitioner also referred him for an MRI scan. The plaintiff had a couple of weeks off work before he returned doing normal duties. However, he was experiencing ongoing pain. Occasionally he would have osteopathic treatment.
12 The plaintiff completed his apprenticeship in 2009 following which he travelled for approximately six months. Upon his return, he obtained a few sub-contracting jobs, but eventually decided to start his own business. This business involves subcontracting work doing carpentry fitouts. Although the plaintiff does some hands-on work, much of his time is occupied in bookwork, arranging subcontracting labourers, inspections and the like. He spent significant time at the various sites to oversee his workforce.
13 The plaintiff swears that he is able to cope with his current employment since he is his own boss. If he is having “a bad day with my back, then I avoid the heavy work. I also have the ability to sit, stand and even lie down if needed in my current employment”.[9]
[9]paragraph 13
14 On the question of medical treatment and pain alleviating medication, the plaintiff says he sees his general practitioner occasionally and he avoids taking medication although he takes over-the-counter medication such as “Nurofen Plus”. He swears that his biggest problem is the trouble he has bending, twisting, lifting and engaging in activities such as running. Before the incident, the plaintiff was a keen sportsman. He played AFL football at a competitive level for Diamond Creek. He was paid for those endeavours. After the incident, he was unable to continue meaningfully in this pursuit due to his pain and back spasms. The plaintiff was also a keen snow skier and snowboarder. He also enjoyed waterskiing and other physical pursuits. Since the incident he is unable to participate in these hobbies.
15 The plaintiff also swears that because of the pain in his back he has difficulty sleeping. He says “I worry that I am only a young man and that my back will continue to deteriorate. I am fortunate in that I have been able to maintain self-employment but I worry about my long-term employment prospects. I am living with constant back pain and my days are spent managing the pain, through modifying my activity.”[10]
[10]paragraph 20
16 In his second affidavit, the plaintiff confirmed that since making his previous affidavit he has continued to have ongoing fluctuating back pain. Since September 2012, he has regularly attended for chiropractic treatment with Dr Andrew Kam.[11]
[11]Exhibit L
17 The plaintiff confirmed that he still works in the building industry and two years ago commenced a business called Creative Building Concepts. His business does renovations and new builds of semi-commercial and architectural homes. He engages staff, including four carpenters and other subcontractors. He is able to manage the work as his “hands-on” role is limited. However, from time to time he does need to do manual labour. He estimates that in the previous six months about 20 per cent of his time would be spent doing manual labour. If he does so, however, he “pays for it afterwards with an increase in back pain”. Accordingly, wherever possible, he tries to avoid this, although it is an integral part of the job that he loves.
18 The plaintiff further confirmed that he takes over-the-counter pain alleviating medication when necessary although he tries to avoid trying taking it. He finds “the best form of treatment is to simply manage my level of activity. I basically continue to suffer the symptoms, pain and effect of my back injury as set out in my first affidavit.”
19 Since making his first affidavit, the plaintiff married and recently travelled to Thailand on his honeymoon. He found sitting confined in the plane for several hours increased his back pain.
20 In cross-examination, the plaintiff confirmed the extent of his limitations. He also conceded the level of activity that he is able to perform. Each counsel has accurately summarised this evidence:
21 Mr Hooper’s submissions paragraphs 25 to 29:
[25]The plaintiff has established a successful business with several employees/subcontractors who work for him. He hopes to earn more money from his own business, rather than being an employed carpenter. He has not lost a profession formerly open to him. Rather, he has become the supervisor and boss in his own high-end, carpentry business. He told Dr Adlard that ‘he loved his job’ (PCB 39, second dot point).
[26]The fact he has resumed normal duties as an employed carpenter for several years post-injury, and now continues to work in his own business tends against a conclusion that his injury qualifies as a serious injury.
[28]The plaintiff was able to:
· Return to normal duties immediately after the May 2005 incident;
· Return to normal duties after a few days off following the February 2006 fall;
· Continue to play AFL football during 2005 – he played about 8 games in the season, a few games were after May 2005 (T40, L20-23);
· Play AFL football in 2006 – physical contact with another player in July 2006 led him to attend hospital for a right shoulder injury (T41-42);
· Continue working normal duties as a carpenter during 2006, 2007, 2008 and 2009;
· Travel for 6 months and travel to Canada in 2009 (PCB10, [12]);
[29]He is now able to:
· Do work on the tools, which is part of the job that he loves (PCB10, [12], PCB14 [4]);
· Do heavy work, but he tries to avoid it (PCB10, [13]);
· Run a company which specialises in high-end, carpentry fit out work;
· Work for 40 to 50 hours per week, or even more (PCB39, T53-54, and T56);
· He does bookwork and quotes ‘after hours’;
· He sometimes has to work on weekends;
· He struggles to find time to go swimming given how busy he is;
· Drive to work sites, including the Mornington Peninsula being a 1 hour drive one-way (T55, L16-20);
· Maintain an active social life – he goes to pubs, hotels and nightclubs with friends (Ts 51-52);
· Attend an AC/DC concert at Rod Laver Arena in 2010 (T45);
· Attend AFL games with his wife or friends;
· Go out for dinner with his wife or friends;
· Attend and enjoy the Spring Carnival of horse racing in 2012 – horse racing being something he enjoys (T52);
· Socialise with work colleagues (T48, L6);
· Sometimes walk his dog (T51, L9-10);
· Have a hit of tennis with his mother (T49-50);
· Go on holiday to Thailand in 2013, including the island Koh Samui (T51, L19-21).
22 Mr Makowski’s submissions, paragraph 10:
“[10]Turning to the consequences to the plaintiff, it is submitted that on the evidence that the following ought be found to be very considerable consequences to the plaintiff (not necessarily in order of significance):
· The experience of constant pain since being injured in May 2005, some 8 years ago;
· The impact of the injury on football (including A grade paid football);
· The impact on dirt bike riding;
· The impact on water-ski, wake board and snow ski;
· The plaintiff’s sleep is interrupted;
· The plaintiff’s ability to exert himself at work (physically speaking) as fully as he would like;
· The plaintiff must continually attend a chiropractor on about a weekly basis;
· The requirement to take pain medication on a regular basis;
· Problems with lifting, bending, sitting, and the need to modify activity due to the injury;
· The fact that the plaintiff is relatively young and will have to endure his injury/pain for an increased period of time.”
Other evidence tendered by the Plaintiff
23 A number of exhibits were tendered on behalf of the plaintiff. I have already referred to exhibits A and B. In addition the following exhibits were tendered:
C
Affidavit of Julie Clark sworn 14 May 2013
D
Affidavit of Ben Strongman sworn 14 May 2013
E
Affidavit of David Smith sworn 16 May 2013
F
Radiology report full spine dated 14 June 2005
G
X-ray lumbosacral spine dated 3 February 2006
H
X-ray pelvis and right hip dated 3 February 2006
J
MRI thoracic lumbar spine dated 13 October 2008
K
Report from St. Helena Radiology, Postural Series dated 12 September 2012
L
Report of Dr Andrew Kam dated 28 September 2012
M
Report of Dr Mark Navin dated 1 October 2012
N
Report of Dr David Elder dated 12 May 2011
O
Report of Dr D. McDonald dated 10 December 2010
P
Report of Professor Ian Brand dated 24 January 2011
Q
Report of Mr Kevin King dated 6 June 2012
R
Notice of impairment benefit liability dated 6 June 2011
S
Plaintiff’s written submissions
T
Copy of Defendant’s Index to Court Book
24 Significantly, the evidence as contained in Exhibits C, D and E was not challenged. In those Exhibits, the plaintiff’s evidence regarding his pain and physical limitations is confirmed.
The Defendant’s case
25 No Viva voce evidence was called by the defendant. A number of exhibits were tendered:
1 Worker’s Injury Claim Form dated 10 October 2008 2 Report of Dr Angela Searle dated 9 June 2010 3 Report of Dr Alan McCleary dated 29 January 2011 4 (For Identification only ) Report of Dr Stephen Adlard (Number 18. in Plaintiff’s Court Book) 5 Defendant Written submissions
Defendant’s submissions
26 The defendant conceded that the plaintiff suffered injury on a date in May 2005 to his lower back.
27 The defendant also accepts that the plaintiff had some consequences due to the 2005 injury, namely soft tissue injury or strain/sprain in the back. In addition, the defendant accepts that ever since the injury, the plaintiff has experienced back pain, although to a limited degree. However, the defendant maintains the extent of those consequences which continue to the present time are not “very considerable” as required by s134AB.
28 The plaintiff cannot rely upon the incident in October 2008 when he experienced severe back pain, rendering him incapable of moving and requiring hospitalisation. That incident did not occur in the course of employment with the defendant. The plaintiff was working for Dallas Building, a different employer. However, the defendant concedes that this incident may evidence the significance of the injury the subject of this claim.
Diagnosis
29 The defendant questions the diagnosis of the plaintiff’s injury. Mr Hooper submits that there is no clear diagnosis identified: according to Dr McCleary – “soft tissue bruising to his neck and spine” (PCB 13); according to Dr Navin – “acute strain/sprain of the cervico thoracic spine” and “acute strain/sprain of the lumbo-sacral spine” (PCB 35).
30 Mr King’s suggestion that “there must have been widespread trauma to cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels” is illogical given that Mr King himself refers on that same page to recent x-rays of all levels of the spine as showing “no significant abnormality” (PCB 77). It appears Mr King viewed the original x-rays himself, as the x-ray report (at PCB 29) is not as detailed as Mr King’s observations.
31 No medical expert has opined that any pathology shown on the radiological reports tendered by the plaintiff was aggravated by work with the defendant.
32 To the extent Mr King even offers some meaningful diagnosis, his opinion should be rejected in preference to Dr McCleary (who saw the plaintiff in June 2005) and Dr Navin (who saw him in July 2005). Their opinions demonstrate a type of injury of very low-grade severity.
The Plaintiff’s experience of pain
33 According to Haden Engineering Pty Ltd v McKinnon(‘McKinnon’) (2010) 31 VR 1 at 4-5, in assessing pain it is not enough to simply say that the plaintiff has constant pain. One must look at the intensity or severity of that pain. An objective way of assessing pain is to look at what the plaintiff does about pain.
34 In this case, the plaintiff does not take prescription pain medication.
35 He does not even take daily, over-the-counter painkillers. He takes either Panadol or Nurofen “maybe once or twice a week” (PCB 14, [5]). That does not tend to indicate a “very considerable” degree or pain and suffering consequences.
36 It is also relevant to look at what the plaintiff says about the pain, both in evidence and to doctors. He has described his “pain” as:
· “muscular” pain (DCB 10, second paragraph, third sentence, and T36, L30 to T37, L5);
· “slight back ache and a feeling of tightening up” (DCB 11, third paragraph, second sentence)
· “muscle ache” in his back (T33, L28-30);
· “an uncomfortable feeling”;
· “my whole back just seizes, like, it just feels seized” (T35, L22-25).
37 The defendant suggests that the plaintiff’s backache should properly be considered mild, and at the low end of the scale.
38 Regarding whether the plaintiff should be considered a stoic person, Mr Hooper referred to Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at 116:
“[81]The respondent accepted the force of Nettle JA’s observation that a stoical plaintiff, who does not simply resign himself to his injury, should not be disadvantaged, but argued that, conversely, for a plaintiff to demonstrate the strength of character to be stoical should not give rise to a presumption that the pain and suffering consequences of the plaintiff’s impairment are ‘very considerable’. It would be wrong, it was submitted, to treat the stoic as inherently self-deprecatory about the intensity of pain experienced. In a case of stoicism, the question must always be: ‘What is the plaintiff stoical about?’ It remains necessary to establish that the plaintiff is stoical about pain and suffering that is more than ‘marked’ or ‘significant’.
…
[83]… It remains to be determined, as the respondent correctly submitted, what it is that the appellant is stoical about.”
(emphasis added)
39 Mr Hooper submitted that the plaintiff may well be stoical about his pain, but that does not mean his pain is anything more than mild in degree.
40 Further, the plaintiff has had extremely little medical treatment or intervention considering that he says he has lived with constant back pain for eight years. He saw his general practitioner, Dr McCleary, on only three occasions (see PCB 12-13: 10 June 2005, 16 June 2005 and November 2005). He has not otherwise needed care from a general practitioner in relation to his condition. There has been no need for the plaintiff to be referred to an orthopaedic surgeon or neurosurgeon.
41 For several years he went without treatment. He did not even have cause to lodge a WorkCover claim for the May 2005 incident until after the subsequent incident, more than three years later, in October 2008.
42 The plaintiff only saw an osteopath, Ms Searle, after the unrelated incident occurring in October 2008. He now sees a chiropractor, Dr Kam, when his work schedule allows (T19, L20-30). Dr Kam provides chiropractic adjustments and gentle stretching techniques (PCB 32). He has advised “home exercises and stretches”. This is noted by Dr Kam to be conservative treatment. Dr Kam also noted that the plaintiff’s “prognosis is fair to good, considering his age, willingness to rehabilitate, and previous level of fitness and health” (PCB 33). In any event, the plaintiff only commenced seeing Dr Kam as recently as September 2012.
Relevance of return to work
43 In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA said the following:
“[45]… counsel for the respondents relied upon the following observation of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd:
‘If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’
…
[47]So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered … .”
44 The plaintiff has established a successful business with several employees/subcontractors who work for him. He hopes to earn more money from his own business, rather than being an employed carpenter. He has not lost a profession formerly open to him. Rather, he has become the supervisor and boss in his own high-end, carpentry business. He told Dr Adlard that “he loved his job” (PCB 39, second dot point).
45 The fact he has resumed normal duties as an employed carpenter for several years post-injury, and now continues to work in his own business tends against a conclusion that his injury qualifies as a “serious injury”.
46 The above evidence with respect to his pain, and the below evidence with respect to his retained abilities, do not justify a conclusion to the contrary.
Assessing what is retained by the Plaintiff
47 I have already referred to the defendant’s analysis of the evidence on this question.
48 Mr Hooper noted that after Dr Kam’s notes were inspected by the plaintiff and his counsel, his counsel then led oral evidence (with leave) as to the dirt bike riding weekend in November 2012. Despite this being an activity of some significance to the plaintiff (considering he owned and still owns a dirt bike) nothing was said of this dirt bike riding trip in his most recent affidavit. He was content to remain silent on the point until Dr Kam’s notes became available to be used in Court.
49 The plaintiff swore that he used to be a keen snow skier and snow boarder (PCB 11, [16]). There was nothing in his affidavit in 2011, or in 2013, about his ski trip in 2010 (T46). He “fixed up” part of paragraph [16] of his first affidavit by removing reference to “hoping to spend time on the snow” in Canada but said nothing about having in fact spent time on the snow in Australia in 2010. When he went to the snow in 2010 he completed a ski run. He did not “try” to ski, he did ski.
50 Similarly, although he was prepared to admit in his first affidavit that he had tried to water ski (PCB 11, [16]) he omitted reference to going wakeboarding in 2010 (T44).
Conclusion
51 In Sabo v George Weston Foods [2009] VSCA 242, Neave and Mandie JJA recognised the importance attaching to the word “very” as a limiting factor in granting leave to sue:
“[73]In considering whether Mr Sabo’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis [1998] 1 VR 702 at 703:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’
[74]Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of ‘very considerable’ magnitude … .”
52 The defendant submits that for all of the above reasons the plaintiff should not be granted leave as he does not satisfy the “narrative test” for pain and suffering.
The Plaintiffs submissions
53 Mr Makowski noted the defendant’s concession that the plaintiff suffered compensable injury in May 2005, arising out of or in the course of his employment, to the spine (no causation issue, see T6).
54 It is also conceded by the defendant that there are some consequences from the compensable injury which affect the plaintiff.
55 Thus, the sole issue is whether or not those consequences satisfy the relevant threshold, namely, whether or not the consequences to the plaintiff, when judged by comparison with other cases in the range of possible impairments or losses of a body function or disfigurements as the case may be, fairly described as being more than significant or marked and as being at least very considerable.
The evidence
Plaintiff is a credible witness
56 From the outset, it is submitted that the plaintiff ought be found to be a frank and credible witness. It is submitted that if the plaintiff’s evidence is accepted, then he ought succeed in his application for leave.
57 It is submitted that the plaintiff ought be characterized as a stoic young man who has done his best to manage. It is submitted that the plaintiff’s situation is best reflected at T57, which demonstrates the difficulty the plaintiff has had in coming to terms with his consequences. In response to a question asked from the bench, the plaintiff responded:
“I’ve always just wanted to – just couldn't come to the terms with the fact that I have had to give up so much and I just keep wanting to do it, and it's just – you know, get to desperation and depressed and, you know, you just want to do things that your friends and stuff are all talking about doing, you know. It’s very hard.”
58 It is submitted that the plaintiff made appropriate concessions during cross-examination.
59 It is submitted that no doctor in this case considers that the plaintiff was anything but genuine.
The consequences meet the statutory test
60 Turning to the consequences to the plaintiff, it is submitted that on the evidence that the following ought be found to be very considerable consequences to the plaintiff (not necessarily in order of significance):
· The experience of constant pain since being injured in May 2005, some eight years ago;
· The impact of the injury on football (including A Grade paid football) first the plaintiff compensated for his injury, but then eliminated football altogether;
· The impact on dirt bike riding;
· The impact on water-ski, wake board and snow ski;
· The plaintiff’s sleep is interrupted, a fact not challenged by the defendant;
· The plaintiff’s ability to exert himself at work (physically speaking) as fully as he would like (see particularly T35, L8-9);
· The plaintiff must continually attend a chiropractor on about a weekly basis albeit only since September 2012. Before that however he saw the osteopath and consulted his general practitioner but “could never get a straight answer” to explain his ongoing pain;
· The requirement to take pain medication on a regular basis, a fact not challenged by the defendant;
· Problems with lifting, bending, sitting, and the need to modify activity due to the injury, facts unchallenged by the defendant;
· The fact that the plaintiff is relatively young and will have to endure his injury/pain for an increased period of time.
Lay witness evidence
61 There are three lay witness affidavits whose evidence was not challenged by the defendant.
62 This sworn evidence corroborates some of what the plaintiff said as to the consequences/effects of his injury.
63 For example, Mrs Clark swears that she saw the plaintiff in pain after football, and otherwise supports the plaintiff’s allegations of consequences. The mother also describes the plaintiff as a stoic young man. (PCB 17).
64 Mr Strongman confirms that the plaintiff was getting paid for high level football and reduced and then ceased football, and has observed the plaintiff moving differently because of his back injury (PCB 19).
65 Mr Smith formerly worked with the plaintiff for the defendant and observed the plaintiff uncomfortable doing heavy work (PCB 21). Mr Smith confirms that he started to work full time for the plaintiff together with other apprentices and sub-contractors. Mr Smith swears that there are tasks which the plaintiff finds difficult to do, and has more of a client based/supervisory role. Mr Smith also swears that he has observed the plaintiff stretching out his back as he seems uncomfortable.
Medical evidence
66 The medical evidence of the only orthopaedic surgeon in this case is that of Mr King (PCB 73). It is submitted that his report is detailed and thorough. It is unchallenged and uncontradicted and ought be accepted.
67 Mr King opines that the plaintiff has a moderately severe impairment of thoracolumbar function.
68 The defendant’s own doctor, Dr Elder, also considers that the plaintiff suffered the original injury in May 2005, and that there is permanent impairment. It should be noted Dr Elder had before him the report of Dr McCleary dated 29 January 2011 (PCB 68).
69 Dr Kam (treating chiropractor) opines that the plaintiff appears to suffer from constant episodes of chronic mechanical spinal pain. Mr Kam also opines that the plaintiff’s capacity to perform the simplest of daily activities has diminished, and refers to other impacts of the injury upon the plaintiff (motorbike, football) (PCB 33).
Reference to relevant case law
Question of serious injury:
70 It is trite that each case is to be determined according to the particular facts of the case.
71 However, it is first submitted that the case of McKinnon is of assistance to the Court, where the Court stated:
“As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, [emphasis added] the Court will need also to assess the frequency and duration of the pain episodes.”
72 McKinnon also held that 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.
73 In addition, at paragraph 40, Maxwell P in McKinnon noted that:
“The injury suffered by the stoical plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.”
74 Stoicism was also referred to in the case of Sutton v Laminex Group Pty Ltd [2011] VSCA 52, which confirms that the whole of the evidence in a case must 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.
75 Age is also relevant, in that a plaintiff who is young and who faces impairment consequences for a longer period of time than somebody who will only put up with consequences for a shorter period might be judged to suffer more serious consequences (see Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181).
76 Finally, reference is made to Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199], (per Dodds-Streeton JA), where her Honour observed that, generally speaking, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, rail a real prospect of a very considerable consequence”.
Surveillance footage
77 It is submitted that despite the defendant listing surveillance footage in its court book index, it did not show any footage and it is submitted that an adverse inference ought be made in accordance with Jones v Dunkel (1959) 101 CLR 298. That is, that the footage would not have assisted the defendant’s case.
78 On this aspect, reference is also made to Church v Echuca Regional Health (2008) 20 VR 566, at [98].
Conclusion
79 On the balance of probabilities, the plaintiff ought succeed in his application for leave on the basis that he has suffered a serious injury to his spine.
Findings of fact
80 I have had the opportunity of reading all of the exhibits and reviewing the transcript. I have taken account of all of the submissions made by counsel.
81 As mentioned earlier, the plaintiff bears the onus of proof. The standard of proof is the balance of probabilities.
82 The defendant concedes, and I am satisfied, that the plaintiff suffered injury to his thoraco-lumbar spine in late May 2005 in the course of his employment with the defendant in the circumstances as he described. Even though the defendant claims there is no “clear diagnosis”, the defendant admits injury with consequential pain and restrictions. I am further satisfied that the plaintiff’s resulting impairment is permanent in the sense that it is likely to last for the foreseeable future. I am satisfied that as a consequence of his injury the plaintiff’s back pain is ever present although to various degrees. The pain has persisted for some 8 years and I am satisfied that it is unlikely to resolve.
83 Although the fact of injury and some of its consequences are not disputed, the real question is whether those facts enable me to find on the balance of probabilities that the consequences of that injury to the plaintiff in relation to pain and suffering can be regarded as serious when judged by comparison with other cases in the range of possible impairments. Can those consequences fairly be described as being more than significant or marked and as being at least very considerable?
84 The defendant does not suggest that the plaintiff lied to any medical practitioner or in his evidence before me. His credit was not challenged. Moreover, there is no suggestion that he feigned injury or that he is physically capable of doing the things he says he cannot. The inference referred to in Jones v Dunkel is available to be drawn, but I do not need to draw it to find in the plaintiff’s favour. Further, there is no suggestion that any of the plaintiff’s witnesses lied on his behalf in their affidavits (Exhibits C, D and E). I am satisfied that the plaintiff was an honest, credible and accurate witness who did not exaggerate the level of his pain or the extent that his injuries have interfered with all aspects of his life. If anything, he has tried to ignore them and get on with his life. The objective facts are not seriously in dispute: the plaintiff’s work has been adversely affected - he can no longer work as a full-time manual labourer. It is common ground that the plaintiff will always be required to modify his working and domestic activities to ameliorate his pain associated with his injury. Essentially, he is forced into self employment, conducting his own business. Although the plaintiff has been fortunate to make a success of his business, I do not see this forced consequence as a windfall or an advantage as suggested by Mr Hooper. Rather, an important potential employment avenue has been closed off to the plaintiff – he will never work as an employee hands on carpenter. He will always have to bear the risks associated with running his own business. Before the incident, the plaintiff was a physically active young man who loved sports. He still loves sports but can no longer actively engage in them. His participation is more passive. Before the incident the plaintiff could get a decent night’s sleep, uninterrupted by pain. Since his injury, his sleep is affected. Before the incident the plaintiff did not experience daily pain. Ever since the incident he has suffered pain to various degrees. It is true that the plaintiff does not take analgesic medication on a daily basis, however he does suffer pain every day. He manages that pain as best he can by avoiding physical labour wherever possible and by resting at will. He will need to maintain an exercise regime aimed at developing his core strength.
85 I have taken account of what the plaintiff has lost as well as what he has retained as a result of the injury. The plaintiff does not need to prove he is totally physically disabled before he can succeed. Nor can he succeed if his injuries fall short of the statutory test.
86 Mr Hooper correctly notes that at the end of the day the question of whether an injury satisfies the narrative test for “serious injury” is largely a question of impression or value judgment. Doing the best I can to balance all of the factors to which the parties have referred, I have come to the conclusion that the plaintiff should be granted leave to commence common law proceedings in respect of his injury suffered in the course of employment with the defendant in May 2005.
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