Cocking v Cartwright Enterprises Pty Ltd
[2010] VCC 128
•23 March 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-09-02404
| AARON JOSEPH COCKING | Plaintiff |
| v | |
| CARTWRIGHT ENTERPRISES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 26 February, 1 and 2 March 2010 |
| DATE OF JUDGMENT: | 23 March 2010 |
| CASE MAY BE CITED AS: | Cocking v Cartwright Enterprises Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0128 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – application for leave in respect of pain and suffering damages – injury to low back – return to alternative employment – credible witness – whether impairment and consequences sufficient to satisfy statutory test – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Brookes SC with | Brown McComish Solicitors |
| Mr N. Bird | ||
| For the Defendant | Mr P. Scanlon QC with | Lander and Rogers |
| Mr P. Jens | ||
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 hereinafter referred to as “the Act”.
2 Whilst the plaintiff originally sought leave to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages, the application insofar as it related to pecuniary loss damages was abandoned at the outset. Furthermore, at the completion of the evidence the plaintiff abandoned his reliance upon sub-paragraph (c) of the definition of “serious injury” contained in s.134AB(37) of the Act. Accordingly, the end result is that what is to be determined is an application for leave to bring proceedings in respect of pain and suffering damages for consequences resulting from an injury to the low back.
3 I will not set out here the numerous authoritative decisions of the Court of Appeal, or indeed the earlier decisions of the Full Court of the Supreme Court, which are relevant. I have referred to them in many previous cases.
4 The injury to the low back upon which reliance is placed is alleged to have occurred principally on approximately 31 July 2003 when the plaintiff was dragging some meat whilst working as a knife hand at an abattoir where he had been placed by the defendant, which is a labour hire company. The occurrence of an incident of injury at approximately that time was not the subject of any great dispute. The central disputed issues related more to the level of interference with the plaintiff’s enjoyment of life and pre-injury activities, his retained capacities, and the amount of pain suffered by him and its effects. In other words, this was essentially what is often described as a “range case” – that is, an application where the predominant issue is whether the restrictions and consequences affecting the plaintiff are sufficient to satisfy the “very considerable” test in respect of serious injury. There is no argument but that the burden of proof in this regard was on the plaintiff.
5 Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was subject to cross examination. The balance of the evidence was documentary in nature, along with surveillance videos, and this was tendered by consent. This sensible approach saved considerable time and expense. In addition, counsel made well-prepared and detailed submissions.
Factual background
6 The following findings of fact are made solely for the purposes of this application, and are not intended to be in any way determinative of issues such as negligence, quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 7 I found the plaintiff to be an unusual witness, but one whom I am satisfied was doing his best to answer questions truthfully. His style of answering questions was slow, precise to the point of almost being literal, and his answers generally appeared to be given after only considerable mental analysis. That is in no way a criticism of the plaintiff, who seemed to be taking a commendably serious approach to his obligations pursuant to the oath which he had sworn. Further, as was pointed out by Mr Brookes, his vocabulary revealed a man of some considerable intelligence.
8 It may be that the plaintiff’s method of answering questions and the style in which he did it meant that at times he did not do himself justice or that some confusion was created, but I repeat that I am quite convinced that he was endeavouring to answer questions accurately. It is also to be remembered that, as shall be discussed, the plaintiff suffered a mental breakdown of very considerable proportions in 2004 and into 2005. Whether this had any bearing upon his manner of presentation is unclear. It seems to me that he has been accurately described by Dr Michael Connor, his general practitioner, who saw the plaintiff frequently between October 2003 and February 2008. Whilst the following observations of Dr Connor were made in a report which is now in excess of four years old (8 February 2006), they seem to me to be quite appropriate:
“Although he is a big, strongly built young man I believe he is unfitted to working in an abattoirs and that he should get vocationally retrained. He is an intelligent and personable young man who could do much more highly skilled jobs than working in an abattoir.”
9 Indeed, the clinical notes of Dr Connor would reveal some frustration at the plaintiff’s refusal, at that time, to follow advice in relation to retraining. As will become apparent, ultimately the plaintiff ceased his work at the abattoir, and thereafter worked in a hardware store before engaging in his current occupation as a personal carer.
10 In summary, I found the plaintiff to be a very decent and intelligent, if very careful, man. The real issue in this case does not relate to his credit, but to whether the consequences of the impairment which he has suffered are sufficient to satisfy the requirements of the Act.
(ii) The plaintiff’s background, training and education and activities prior to injury 11 The plaintiff is aged 38 years, having been born on 7 May 1971. He is a single man, not currently living in any relationship, and has no children. In this regard, the plaintiff told Dr Gary Davison, specialist occupational physician examining on behalf of the defendant on 18 April 2005, that, at the time of his nervous breakdown just prior to Christmas 2004, apart from physical limitations and heckling and harassment from the people he worked with, he had also just had a personal relationship breakdown. Although this was not a de facto relationship, he said “it was one of the only relationships I’ve ever had”. Essentially the plaintiff confirmed the accuracy of this. Accordingly it would appear that he is not currently in any de facto relationship and has not been so and that the number of relationships he has been in has been very limited. He did not suggest that the situation had altered since the time of the examination by Dr Davison.
12 The plaintiff was educated to Year 11 level, and attempted, but did not pass, Year 12. He then trained as a mental health nurse, working at the Colanda Centre in Colac for some four years, but did not complete the traineeship. After that he worked at various jobs, including that of a labourer, a cleaner, a dairy farmhand, a sales clerk and in process work. In January 2002, through the defendant, he obtained work as a casual knife hand with CRF Foods at the Colac abattoir. The plaintiff’s father is a meatworker at that establishment.
13 The plaintiff’s mother is a proof reader, and the plaintiff has stated in his affidavit of 10 October 2008, that he always liked the idea of getting a job doing editing or proof reading. In cross examination, he confirmed that it was his intention or desire to do editing or proof reading in the newspaper, television or film industry, and his aim was to work ultimately in that sort of area. In answer to a question as to whether that was his ultimate goal in life when he started at the abattoir, he replied “now and then”. In his affidavit of 10 October 2008 the plaintiff has sworn that he considered the job at the abattoir to be something he would do for a while as the money was reasonably good, but he had always liked the idea of working in editing or proof reading.
14 Prior to the injury, the principal physical activity in which the plaintiff engaged seems to have been going on a run of 10 kilometres four or five days a week. There was considerable cross examination as to the plaintiff’s statement that it took him half an hour to cover the 10 kilometres, and he agreed with the proposition that, being able to run that distance in such a time, would put him in contention for a place in an Olympic final although not in the medals. It should be said that the plaintiff was not running competitively and did not have a coach or trainer. It seems that he ran on comparatively flat roads and timed himself “loosely” by reference to his kitchen clock and allowing some time for cooling off. Certainly this assertion as to the speed at which the plaintiff could run was somewhat surprising, and was a legitimate area for cross examination. On balance, I attach no great weight to it one way or the other. I accept that the plaintiff engaged in 10 kilometre runs several times a week and that this was a source of considerable enjoyment to him.
15 There is also a reference in the plaintiff’s original affidavit to his engaging in regular swimming and visits to the gymnasium. In cross examination, he referred to swimming and general exercising as being part of the regime that kept him “almost military fit”, but there was no expansion of this evidence. Essentially there were only passing references to these activities. The part that they played in his life is difficult to assess, as is the degree to which he participated in them. The plaintiff also participated in a rowing team organised by the abattoir. It competed in the Henley Corporate Cup at the Henley Regatta, and the team won a bronze medal. The team practised on the lake in Colac one night a week for a few months leading up to this regatta, and the plaintiff found it enjoyable.
16 Another activity of the plaintiff which received considerable attention was his plan to renovate the house in which he lives in Ligar Street, Colac. As at the time of the injury, he had demolished part of the bathroom, toilet and kitchen area of the house in that interior walls and the like had been ripped out. The only other work that he had done was that he bought a few materials, started a bit of gardening, and insulated part of the ceiling. He described the renovation of the house as being “a huge job”. He also agreed that he personally would not have been able to attend to such things as wiring and plumbing.
(iii) The injury (a) The plaintiff’s health prior to late July 2003 17 I accept that, prior to the occurrence of the injury in question, the plaintiff was not suffering from any significant low back injury, or from symptoms or restrictions of any magnitude emanating from the low back. He had made occasional visits to a chiropractor, but could not recall whether that was for treatment in respect of his lower back. He also referred to pulling a muscle in his upper back whilst working at an iron foundry in approximately 1996. He believed that the chiropractic treatment was much later than that. Dr Davison took a history of the plaintiff having an upper back problem when working in an ice-cream factory, and, whilst it would appear that the plaintiff at one time did have such a job, he had no recollection of any such injury. Dr Davison also recorded a history of the plaintiff having an occasional alignment performed by an osteopath. Apparently he was told that he had a slipped disc in his upper back. However, I am satisfied that, as at the time of the relevant injury, the plaintiff’s lower back was essentially trouble-free.
18 There have been opinions expressed by Mr Michael Dooley, orthopaedic surgeon examining of behalf of the defendant, and Mr William Huffam, orthopaedic surgeon examining of behalf of the plaintiff, that the injury suffered by the plaintiff has been in the nature of an aggravation of degenerative disc disease or aggravation of intervertebral disc lesions. I accept that, insofar as such conditions existed prior to the injury, they were not productive of symptoms or restrictions. Insofar as the injury is in the nature of an aggravation, in accordance with the authorities it is the aggravated condition which I shall consider.
19 The plaintiff also agreed that he had a past history of depression for eight years or longer prior to the relevant injury. As reliance upon sub-paragraph (c) of the definition was abandoned at the conclusion of evidence, the relevance of this may well have been lessened save for any argument about disentanglement or factors generally influencing the plaintiff’s enjoyment of life.
(b) The injury of July 2003 20 The plaintiff’s duties included knife work on the shoulders of lambs, and he was required to work quickly. He alleges that his work involved a lot of bending and reaching to drag piles of meat away from the saw man. It was whilst doing this on a date he believes to be 31 July 2003 that he suffered pain in his low back as if something had shifted therein. He tried to work the following day, which was a Friday, with increasing pain. He rested over the weekend before returning to work on the following Monday, when he developed stronger pain. It was then that he lodged a WorkCover claim in respect of the injury.
21 On 5 August 2003 he attended Dr Buckley at Otway Medical Clinic where Dr Connor is also based. He gave a history of one week of low back pain brought on by his posture at work and leaning over the table working with meat. He had seen an osteopath, as Dr Buckley recorded on 13 August 2003. On that occasion Dr Buckley noted pain in the plaintiff’s lower back with no radiation.
22 The plaintiff attended Dr Buckley again on 27 August 2003 when he was still in discomfort in relation to his back and had apparently been attending both an osteopath and a physiotherapist. There was pain in the lower back especially on the right side but with no radiation, weakness or numbness. It is apparent from the history taken by Dr Buckley that the plaintiff had not worked between 11 and 13 August and had been on modified duties thereafter. The diagnosis of Dr Buckley was one of a back strain, and indeed when the plaintiff attended again on 18 September 2003, it seems largely to have been in respect of queasiness and light headedness (quite possibly due to medication, Dr Buckley having previously prescribed Naprosyn). The plaintiff’s back was described as “settling”.
23 Thereafter the plaintiff commenced being seen by Dr Connor at the same clinic. He also diagnosed a back strain, noting that the plaintiff had taken one week off work without pay and that there was pain in the right sacroiliac joint and right buttock but no referral down the legs. He organised an x-ray of the lumbosacral spine, prescribed Naprosyn, and referred the plaintiff for remedial massage. He also issued a certificate that the plaintiff was fit for modified duties only until 7 November 2003, with a maximum six hours work per day.
24 Dr Connor obtained the x-rays, which were reported as showing L4/5 and L5/S1 disc narrowing, although he also made the remark that the films looked completely normal to him. By the time Dr Connor saw the plaintiff on 7 November 2003, the plaintiff was working six hours per day and gave a history that hydrotherapy and massage had made a significant improvement to him with better mobility, although there was still pain which was manageable. The certificate then issued increased the plaintiff’s hours to 40 per week, although modified duties continued.
25 On 23 December 2003 Dr Connor noted that the plaintiff suffered a flare-up of his usual low back pain after running a short distance (not at work) on 17 December 2003, and pain associated with this continued through until 21 January 2004, the plaintiff having then missed some days from work. On 30 December 2003 the plaintiff underwent a CT scan of his lumbosacral spine, which showed a small central disc bulge at the L4/5 level extending to the anterior surface of the thecal sac but not displacing it and not extending into the neural foraminae. The treatment in relation to the plaintiff’s depression and some remedial massage also took place. On 4 February 2004 an MRI was carried out, and this showed disc desiccation at L4/5 with mild loss of disc space and a small posterolateral disc protrusion to the right abutting the right L5 nerve root without displacement of the nerve root. The L5/S1 disc was normal.
26 On 25 February 2004 Dr Connor recorded that the plaintiff felt the best that he had in months for the last couple of weeks, and on 26 March 2004 he was again the best he had been in months, and was coping with four hours a day of normal duties, the balance apparently being on modified duties. He needed to stretch, and there were aches at times, mainly by the end of the working day. Dr Connor also noted as follows “? Back to full duties next month if he survives working on his own house ok over Easter!”.
27 On 13 April 2004 another doctor noted that the plaintiff had “gone back” in relation to his pain and stiffness, and was requesting an orthopaedic opinion. Later a referral to Mr Myron Rogers was apparently written.
28 There is no doubt but that the plaintiff was seen by Mr Rogers, who is a neurosurgeon, and that Mr Rogers has provided either one or two reports which have been seen by the plaintiff. No material from Mr Rogers was put in evidence, and this was the subject of some discussion and comment. I am asked by the defendant to draw the appropriate inference in accordance with O’Donnell v Reichard [1975] VR 916.
29 I am prepared to draw that inference, but the weight to be attached to it is perhaps arguable given that Mr Rogers referred the plaintiff on to Dr Terrence Lim, consultant in rehabilitation and pain medicine, and a report from that doctor is before the court. I shall return to Dr Lim shortly.
30 A note of Dr Connor’s dated 21 April 2004 refers to the plaintiff having suffered an unexplained flare-up of right buttock and groin pain since 5 April 2004, and his spending some time in bed over the Easter holidays. Subsequent notes of Dr Connor refer to the plaintiff seeing Mr Rogers on 14 May 2004, and a note of 26 May 2004 contains the note that Mr Rogers had referred the plaintiff to Dr Lim. At this stage the plaintiff seems to have been improving, and was performing modified duties pursuant to a return to work plan. By 29 June 2004 the plaintiff had been working eight hours a day for a fortnight, but felt this had aggravated his back pain and that he was waking up sore.
31 Thereafter, and I shall not go through each of the many notes of consultation, the plaintiff seems to have improved. By 27 August 2004 he was working eight hours per day being half normal duties and half light duties. By 23 September 2004 he was working four hours straight on knives, and wanted to increase this to six hours, and had mowed his lawn for the first time in a year with only minor aggravation, which settled. It was noted on 26 October 2004 that he was coping with six hours per day presumably using the knives, and had low grade backache and pinching in the right groin area at times. The plaintiff was swimming three times a week. By the end of 2004, the plaintiff had suffered a flare-up of his back condition after lengthy car trips, but each time the condition settled with time off and he was coping.
32 However, it was about this time that a quite severe psychiatric condition caused major problems. Thereafter Dr Connor’s notes deal largely with that, although there is a note on 26 April 2005 that the plaintiff’s back had flared “a bit” with long drives while on holiday. A note of 6 July 2005 recorded chronic low backache, worse in certain positions, although the reason for the visit is shown as “anxiety/depression”. By 1 September 2005, the plaintiff was feeling more confident and wanted to try a return to the abattoir on a part-time basis in the boning room on afternoon shift, although his back was still aching daily. In November 2005, Dr Connor recorded that the plaintiff’s back was stiff and sore because he had been doing things that he should not be doing, although the entry of 25 November 2005 refers to the plaintiff’s back being much better. Further, he had sustained an injury to the right shoulder and wrist as a result of performing knife work, and this added to Dr Connor’s belief that the plaintiff should leave the abattoir. By 22 December 2005, the right shoulder and wrist had settled with massage and exercise. Dr Connor recorded back pain, but the note is that the back was stable at present. An entry of 24 January 2006 refers to the plaintiff coping well with work duties, and requesting an increase to six hours a day on the same duties but with rest breaks. A person from CRS was then employed by the insurer of the defendant to arrange re-training for the plaintiff, but Dr Connor recorded that the plaintiff declined this and was determined to return to full duties at the abattoirs. By 21 February 2006 the plaintiff was coping well with six hours per day, and was keen to increase to eight hours per day but with five minute breaks which he felt that he needed, and he also considered swimming and massage both still necessary.
33 Dr Connor’s entry of 21 March 2006 refers to the plaintiff having backache more on the first ten days of increased hours, but coping well for the last fortnight or more. The plaintiff was keen to add an extra duty at which he had been expert, this being the boning up of legs, as he was confident that this would not aggravate his back. He was feeling mentally stronger, although still needing Efexor. The last entry of relevance is of 18 April 2006, which indicated that the plaintiff had run out of Efexor and was now shaking, nauseated, and photophobic (Efexor could be described as an anti- depressant). Dr Connor’s other note is that the plaintiff was otherwise coping well with work eight hours per day, including boning legs, and was keen to increase to full duties in two one hour periods per day.
34 That entry marks the last relevant extract from the Otway Medical Clinic that was placed before me. I have set out these entries because they convey some impression of the mix of mental and physical injury suffered by the plaintiff, the level of incapacity suffered by him, and also the single mindedness of character which he seemed to possess in relation to continuing work at the abattoirs and despite advice that he would be better off working elsewhere. Whilst there were no further relevant clinical notes, Dr Connor did report on 10 November 2008, and that report covers treatment and histories between February 2007 and 7 February 2008, this being the last occasion upon which Dr Connor saw the plaintiff on a professional basis prior to writing his report. A handwritten note at the conclusion of the report of 10 November 2008 refers to the fact that Dr Connor had seen the plaintiff working in a local hardware store on a part-time basis, this being funded by the rehabilitation provider. Dr Connor noted that the plaintiff loved the job and was coping well, but some employees were about to be laid off due to the economic situation. It is apparent from Dr Connor’s report that a repeat CT scan was organised on 26 June 2007. Dr Connor referred to it as showing mild “degeneralised” posterior disc bulges at both the L4/5 and L5/S1 levels with minor impingement on the thecal sac at both levels. There was no compression of nerve roots or spinal canal stenosis seen. Dr Connor remarked that this compared with the previous CT scan of 30 December 2003 which only showed a minor disc bulge at L4/5. I also observe that Dr Connor’s report notes a severe relapse of psychiatric symptoms in February 2007 when the plaintiff briefly ran out of medication. Dr Connor also remarked that the plaintiff was on Efexor because of the severe reactive depression with anxiety and panic attacks that he developed as a result of his work injury. Of course, reliance upon any psychiatric or psychological injury was abandoned by the plaintiff.
35 The plaintiff only seems to have seen Dr Lim on one occasion, namely 9 June 2004. Dr Lim reported that the plaintiff was suffering from chronic back pain which was persistent and disabling, the plaintiff at that time working half time in alternate duties. Dr Lim stated the causes of such pain to be myofascial pain syndrome, poor posture, and the development of “central sensitisation” or central nervous system pain pathway sensitisation. He sought funding approval for the plaintiff to attend a chronic pain rehabilitation program during which he would live in supported accommodation and with a follow-up program. This funding was ultimately not forthcoming.
36 The plaintiff’s ongoing treatment has consisted in him seeing his general practitioner on an irregular basis together with treatment from an osteopath, along with hydrotherapy and exercise. Acupuncture and massage ceased approximately 18 months ago when funding for this was terminated. The plaintiff also attended a pain management course organised by the insurers of the defendant, and found this to be of considerable assistance. He takes Panadol or Nurofen Plus, together with Panadeine Forte, this being taken three or four days a week. The plaintiff was seen for a time by a Ms June Sherry at the Colac School of Health who provided pain management, although whether this is the pain management course organised by the insurer is not entirely clear. In any event, it has now ceased. The plaintiff continues treatment from an osteopath, having had some seven or eight treatments in approximately the last 14 months. He continues with hydrotherapy, doing certain exercises in a pool.
37 The plaintiff has been seen by Mr William Huffam, orthopaedic surgeon, at the request of his solicitors. Mr Huffam diagnosed the aggravation of intervertebral disc lesions in the lower two levels of the lumbar spine with persistent low back pain and limitation of movement, and commented that the plaintiff’s condition had been complicated by severe mental depression. He felt that the plaintiff had persistent disability and impairment following his injury, that he was not fit to perform his pre-injury employment, but had a capacity for performing lighter alternate duties. He also felt that the plaintiff’s condition was relatively stable and was unlikely to change significantly in the foreseeable future unless he sustained further injury.
38 The defendant organised for the plaintiff to be seen by Dr Gary Davison, specialist occupational physician. In his more recent report, which is now almost five years old, he diagnosed chronic lower back pain probably due to intervertebral discopathy at the L4/5 level, and also referred to the plaintiff being treated, at that time, with high doses of anti-depressant medication. He felt that the plaintiff had a capacity to undertake suitable duties, but not pre- injury duties. He also remarked that there was no evidence of significant lower back impairment, and recorded that the plaintiff had estimated that he could sit for one to two hours, stand and walk for an hour or so comfortably, and, surprisingly, perform one-off lifts of up to 40 or 50 kilograms, but not repeatedly. In an earlier report of 7 June 2004, the plaintiff had said that he could lift up to 15 kilograms.
39 The defendant also organised for the plaintiff to be seen by Mr Michael Dooley, orthopaedic surgeon, who examined him on 4 November 2009. Mr Dooley diagnosed aggravation of degenerative disc disease of the low lumbar spine, and also recorded the events related to depression and “a significant nervous breakdown”. Mr Dooley expressed the view that, from an orthopaedic point of view, the plaintiff’s symptoms were stable and the appropriate treatment was that which the plaintiff was in fact undertaking, namely regular exercise and sensible modification of his activities. He did not believe that the plaintiff required formal ongoing conservative measures or operative intervention. He believed that the plaintiff would have difficulty carrying out regular heavy physical work, but had the capacity to work in a wide range of light physical or clerical duties. Finally, he believed that the plaintiff would continue to note some intermittent low back pain and groin pain, but, if he could maintain his general exercise program and sensibly modify his activities, his symptoms would remain under control.
40 I accept that the plaintiff suffered an injury as alleged, and that such injury was in the nature of aggravation of pre-existing degenerative changes. The opinions of the examining experts seem virtually as one in this regard. As the injury is in the nature of aggravation, it is the aggravated condition which I shall consider. Mr Huffam expressed the view that the plaintiff’s condition is stable and unlikely to change significantly in the foreseeable future, and Mr Dooley has referred to the plaintiff’s symptoms remaining under control with maintenance of exercise of modification of activities. Accordingly, I am persuaded that the consequences of injury and the pain and restrictions resulting are permanent within the meaning of the Act in that they will persist for the foreseeable future.
41 I should add that no current comment on the plaintiff’s prognosis from any medical practitioner treating him was placed before me, a report from Dr Connor dated 10 November 2008 indicating that he had not seen the plaintiff since 7 February of that year and expressing concern lest the plaintiff had ceased taking his anti-depressant medication.
(iv) Developments since the injury 42 As is evident from the above, the plaintiff returned to employment with the defendant pursuant to return to work plans, this being interrupted by the significant nervous breakdown which he suffered. Difficulties were encountered by him in 2007 as a result of his allegedly not being given sufficient breaks or not being allowed to perform his light duties. Dr Connor has reported that, by mid 2007, the plaintiff was only averaging two to three days per week at work because of his muscles tensing up, although he was doing regular stretches, and it was then that the repeat CT scan was organised. He was dismissed from his employment on 23 July 2007, he believing that this was because of his back injury and because physically he could not do all the aspects of his work. The accuracy of the history taken by Dr Connor was not expanded upon nor cross examined about at any great length, but it must be recalled that the plaintiff had abandoned his claim for economic loss. Accordingly, it is no great surprise that the circumstances surrounding his termination of employment received less attention than might otherwise have been the case.
43 Following termination of his employment, the plaintiff commenced a course in proof reading which he did not complete because he found it too demanding. He also applied for various jobs, and completed a basic computer course and an introductory course to motel room service booking. He received vocational assistance from CRS, and was then placed for three months working in the Mitre 10 hardware store in Colac. There he served customers, stacked shelves, operated the register and the like, and was able to cope with these duties whilst avoiding prolonged squatting or repetitive lifting.
44 Subsequently, he obtained his present position as a personal carer for a quadriplegic, working some 31 hours per week. This involves the physical turning of the patient, which is done approximately every three hours and with the assistance of slide sheets. The plaintiff claims that otherwise the physical demands are not great. The plaintiff conceded that he may have the capacity to perform, say, an extra hour a day so as to bring him up to something approaching full-time employment in this position.
45 The plaintiff has not proceeded with the renovation of his house, which is now in a state of some disrepair. In addition, the lawn and garden at the front of the house appear, in the photographs tendered, to be overgrown. These matters were the subject of quite lengthy cross examination. The end result insofar as the garden is concerned was that the plaintiff stated that he could mow the lawn and mow the dandelion weeds which are growing in it, but has not done so. He also thought that he might be able to perform edging with a shovel although it would not seem that he has done this. He conceded a capacity to perform some work in the bathroom area of his house, perhaps with the assistance of a friend. He can and does drive a car.
Ruling 46
In my opinion, the plaintiff has failed to discharge the burden of proof in this matter. That is so despite the fact that he struck me as a decent, honest witness who, in a very careful way, did his best to answer questions accurately. It is also despite a powerful closing address on the plaintiff’s behalf by Mr Brookes. However, almost inevitably, and as argued by Mr Scanlon, there are going to be some cases where the consequences of impairment suffered by a plaintiff simply fall short of satisfying the required test after the necessary comparison with other cases in the range of possible impairments or losses of a body function is made. I agree that it is at the date of hearing, and not at some earlier time, that I must make the required assessment. I have done that in this case.
47
I have come to the conclusion that the plaintiff has not discharged the burden of proof for the following reasons, which are not listed in order of importance:
(a)
The nature of the injury suffered by the plaintiff is, as I have found, the aggravation of pre-existing degenerative changes. It is not suggested that there has been some frank prolapse or interference with nerve roots. Obviously injuries of this kind can and do produce symptoms of varying intensity in individual cases, but there is nothing before me to suggest that the plaintiff is, for example, likely to require surgical intervention. Thus, the injury itself could be described as being at the more moderate end of the scale of back injuries.
(b)
The plaintiff’s treatment at the hands of any specialist has been minimal. It is apparent that he was referred to Mr Rogers, but no material from that surgeon is before me. In any event, what material is available would suggest that the plaintiff only saw Mr Rogers on one occasion, and was referred on by him to Dr Lim. It would appear that he only saw Dr Lim once, that being on 9 June 2004. Dr Lim seems only to have assessed the plaintiff and then applied for approval of funding for the plaintiff’s attendance at a chronic pain rehabilitation program, which funding was not approved. As far as I can ascertain, the plaintiff has thus had no treating specialist for a period approaching six years and minimal specialist treatment when such did occur in 2004. I should add that the records of the Otway Medical Clinic contain a reference to the writing of the letter of referral to Mr Richard Page on 13 April 2004. The context in which this note appears would suggest that Mr Page is an orthopaedic surgeon, but the letter of referral to Mr Rogers was sent on the following day. I draw no inference at all concerning any failure on the part of the plaintiff to provide material from Mr Page, as it appears highly likely that he was sent to Mr Rogers instead. In any event, there is no suggestion that he received treatment from Mr Page.
(c)
The plaintiff’s ongoing treatment consists of irregular visits to his general practitioner, and there is nothing in the material provided from the Otway Medical Clinic to indicate that there has been any visit since 7 February 2008. It may be that there has been, but the records with which I have been provided cease in 2006 and the report from Dr Connor of 10 November 2008 refers to the fact that the plaintiff had not been seen since 7 February of that year. As he continues to take Panadeine Forte which, on my understanding, is a prescription drug, it can be assumed that the plaintiff has been seeing his general practitioner from time to time, and the plaintiff has stated in his affidavit of 13 February 2010 that he saw his general practitioner in mid November 2009 for pain relief, but could not recall what it was that had caused the flare- up. The impression created is that such visits are not frequent. Mr Brookes has argued that, as the defendant tendered Dr Connor’s clinical notes only up to April 2006 although it is apparent that there were later relevant attendances, I should infer that such notes would not have assisted the defendant’s case. The weight to be attached to such failure seems to me to be quite limited. The plaintiff had put in evidence the report of Dr Connor which covered the period to 10 November 2008. Further, if additional notes exist, Dr Connor was the plaintiff’s treating doctor and the plaintiff’s witness. The plaintiff also had access to and possessed the ability to tender any such material that had not previously been tendered if it did exist. Any weight to be attached to such inference is clearly not of sufficient magnitude to overcome my findings or alter the outcome of the case.
(d)
The plaintiff has stated in the same affidavit that he has received some treatment from an osteopath and attends hydroptherapy. His visits for osteopathic treatment would seem to number about seven or eight in the last 14 months, and it is about that length of time since he has had a massage. As earlier discussed, he takes Panadeine Forte and some Panadol or Nurofen and has modified his activities. Thus, his regime of treatment is basically some exercise, some restriction or modification of his activities and some painkilling medication.
(e)
His prognosis would essentially seem to involve more of the same. In this regard, I accept the opinion of Mr Dooley, to which I have referred earlier. He is of the view that regular exercise and sensible modification of activity is the appropriate treatment, that the plaintiff will continue to note some intermittent low back pain and groin pain, and that if he can maintain his general exercise program and sensibly modify his activity, his symptoms will remain under control. Mr Dooley’s opinion is, in reality, not greatly different from that of Mr Huffam.
(f)
Sometimes in cases involving injuries of this type a consequence is the removal of the injured person from the workforce altogether or from an area of employment which basically represented the person’s path in life and outside of which he or she would struggle. Sometimes this is the situation because of the person’s, education, training or intelligence. The plaintiff does not fall into this category. His desire, as he said, both then and now was to go into the area of proof reading and editing. As noted by Dr Connor, he is intelligent and presentable. Whilst he was determined to continue as a meatworker, at least in the short term, and his father has been so employed, the impression nonetheless conveyed was that working in the abattoirs was not his lifetime plan. As he swore in his affidavit of 10 October 2008, he considered the job at the abattoir to be something which he would do for a while as the money was reasonably good, and he had always liked the idea of getting a job, perhaps doing editing or proof reading. Clearly the injury has not deprived him of what he saw as his vocation. His plans seem always to have involved work of a different type.
(g)
Furthermore, whilst he found the proof readers course too demanding, for reasons which are not entirely clear, he has found other work which seems, at least on a physical basis, to be quite appropriate for him. The physical demands of his job as a carer seem to be within his capacity. He is working 31 hours per week, and conceded that he could at least try an extra hour per day were it available. If he did this, he would be approaching a position of being in full-time employment.
(h)
Thus, the plaintiff has retained the capacity to engage in something very close to full-time employment. In this regard, I would refer to the observations of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 and the interpretation of these in Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, which remarks were effectively repeated in Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260. Thus, whilst not being determinative, the plaintiff’s employment capacity is a factor to bear in mind in relation to whether pain and suffering consequences meet the “very considerable” test.
(i)
Frequently in applications of this nature, plaintiffs complain of an inability to take part in family activities, particularly playing with their children and engaging in sporting activities with them and the like. The plaintiff being a single man with no children, such a loss cannot be claimed by him. Whether he will have a family, and if so what effect his injury will have upon him in that regard, are matters of speculation.
(j)
The plaintiff has sworn in his affidavit of 3 February 2010 that previously he had no problems with healthy and fairly uncomplicated physical relationships, but is now not capable of such relationships. However, as the plaintiff agreed in cross examination, the relationship he had which broke up, and was not a de facto relationship, was one of the only relationships in which he had ever been engaged. The cause of the breakup of that relationship is not entirely clear. In any event, what the plaintiff has lost or retained in relation to this aspect of his life is somewhat difficult to ascertain, but certainly the impact appears to be less than that seen in a number of other applications that come before the Court.
(k)
I accept that the plaintiff has lost, or had substantial interference with, his ability to engage in ten kilometre runs. Whatever time he may have taken to complete such runs, I accept that he engaged in them several times a week and that they were something which he enjoyed. This enjoyment would seem to be lost to him. However, it should also be pointed out that he did not engage in such activity on a competitive basis, or as part of a team or club. Nevertheless, it has been lost to him. His only attempt at running since the injury seems to have resulted in a flare-up of back pain.
(l)
Basically, the only other sporting activity mentioned has been the plaintiff’s participation in rowing. Whilst this was an activity which covered some months in preparation for the corporate regatta, it would seem to have been a “one off” participation. There was no suggestion that the plaintiff has engaged in such a sport before or since. Whether he could or should engage in it would appear to be very doubtful, but the loss of capacity so to do would seem to be of limited impact. There has been reference to his attending a gymnasium prior to the injury, and also engaging in swimming regularly. I accept that the injury would cause some interference to these activities, although the plaintiff does participate in hydrotherapy. Again, the plaintiff’s participation in these activities has not been expanded upon in any great length and it is difficult to say that any loss or restriction in relation to them has had a major impact.
(m)
There is then the issue of the house renovations. I accept that the plaintiff had big plans in this regard and that it was a project in which he was very interested and which meant quite a lot to him. I also accept that he had intended to play an active role of some magnitude in the renovations, and that impairment resulting from the injury has placed considerable restrictions upon him in relation to the heavier physical work which he might have expected to do. As stated by Mr Dooley, he has had to modify his activities. However, I also accept that he could perform some of the lighter aspects of the renovation work, particularly with some assistance. There are other aspects of the renovations which he was never going to perform in any event, these being such things as the plumbing and wiring. Concerning the upkeep of the property generally, he has acknowledged that he could mow the lawns and thus keep the dandelions under control, and suspected that he might be able to perform the edging with a shovel. The plaintiff has also stated that he can sweep the floor of his house, do the vacuuming although it gives him trouble, put out the rubbish and do his own shopping. That there has been interference with the plaintiff’s ability to renovate and maintain his house is something which I accept, but some capacity in this regard has also been retained.
(n)
In relation to capacities that have been retained, the plaintiff admitted freely that he could walk for 45 minutes to an hour before starting to feel any trouble. He has retained the capacity to perform the various household duties referred to above. He agreed that in 2005 he told Dr Davison that he could sit for one to two hours, stand or walk for an hour or so comfortably, lift up to 40-50 kilograms on a one off basis but not repeatedly, and that there was no specific restriction on his driving. Of course, he has also retained the capacity to engage in employment on something approaching a full-time basis.
(o)
Finally, there is the question of the actual pain suffered by the plaintiff. I accept that he does suffer from pain following some activities, and that it is often at a level of three or four out of ten with some flare-ups, as stated by him in his affidavit of 13 February 2010. To Mr Dooley, he described intermittent low back pain and groin pain. Again, whilst this level of pain is doubtless the cause of some ongoing distress to the plaintiff, it must also be measured against that experienced by others whose applications come before the Court. To employ the wording used in Stijepic, I am not satisfied that the plaintiff suffers a continuous level of substantial pain, as is sometimes seen in other applications, although he does have some regular pain with flare-ups from time to time.
(p)
It is also to be remembered that the plaintiff has suffered from very substantial mental problems including a nervous breakdown of some magnitude. It is clear that this interfered with his enjoyment of life and the performance of activities, although, whilst he still takes anti-depressant medication, he would appear to be much improved in this regard. In any event, it is the physical consequences of an injury which I have been considering.
48
In summary, when I consider the consequences of the impairment resulting from the injury which the plaintiff has suffered, and taking into account what has been lost and what has been retained, I am of the opinion that, when the required comparison is made, this injury falls short of reaching the required level to satisfy the “very considerable” test. That is so despite the fact that the injury is a real one and that there are some ongoing consequences of impairment. It is so despite the fact that the plaintiff impressed me as a decent and honest person. The plaintiff may feel that the outcome is unfair and, if this is so, he would not be the first person to make such a complaint about the operation of the provisions. However, the requirements of the legislation must be satisfied.
Conclusion
49 The plaintiff has failed to discharge the burden of proof. His application for leave to bring proceedings is dismissed. I shall hear the parties as to any ancillary orders that are required.
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