Cole v A and M Cole Pty Ltd
[2016] VCC 647
•24 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02684
| ALAN COLE | Plaintiff |
| v | |
| A & M COLE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2016 | |
DATE OF JUDGMENT: | 24 May 2016 | |
CASE MAY BE CITED AS: | Cole v A & M Cole Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 647 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: ACCIDENT COMPENSATION - serious injury – injury to lumbar spine – aggravation of lumbar disc degeneration – s134AB – delivering stationery supplies – surveillance film – playing with grandsons – spinal impairment – modification of activities – consequences – sexual relations – coaching basketball – Leave granted.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr D McWilliams | Hall & Wilcox |
HER HONOUR:
Preliminary
The plaintiff was employed by the defendant and performed subcontracting work for Staples Stationery, delivering stationery supplies. On 10 October 2012, whilst making a delivery to Sunny Queen Eggs in Braeside, the plaintiff was required to take a delivery upstairs. Whilst undertaking this delivery, the plaintiff claimed he suffered injury to his lower back and right hip (‘the injury”).
This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for his pain and suffering.
Ms M Pilipasidis appeared for the plaintiff and Mr D McWilliams appeared for the defendant.
The plaintiff claims he has suffered an injury to his lumbar spine, involving aggravation of lumbar disc degeneration. The body function said to be impaired is the spine.
The plaintiff had also originally relied upon a serious injury to his right hip, but this was abandoned at hearing.
Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider to be most relevant, and those which I have relied upon in coming to the conclusions referred to in this Judgment.[1]
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
For reasons that I will explain below, I am satisfied that the plaintiff suffered an injury to his spine in the course of his employment, that his injury is permanent and that the consequences suffered by him meet the “very considerable” test.
Relevant background
The plaintiff is a 64 year old man. He is married and has two adult children, and six grandchildren, aged between five and fourteen years.
The plaintiff initially qualified as a schoolteacher and worked for the Department of Education from 1970 until 1992. He was then self-employed, running a retail pasta franchise. From 1996 to 1997, he worked as a subcontractor for Corporate Express, and later for Staples Stationery.
In 1998, he returned to work for the Department of Education for one year, and thereafter continued doing subcontracting work for Staples Stationery.
The plaintiff suffered a left knee injury and underwent surgery performed by Mr David Young in the mid-1990s. He said he did not have any further problems with his left knee after that time.[2]
[2]T 10, L 11-16
The plaintiff suffered a Grade three hamstring tear in July 2010, which required surgical repair. He said it took him up to 12 months to recover from this, and he was restricted in some of his sporting activities during that time.[3]
[3]T 22, L 5-26
The plaintiff also suffers cardiovascular disease, for which he requires ongoing medication, including Aspirin.
The plaintiff suffers from ulcers.[4]
[4]T 27, L 9
Until the mid-1990s, the plaintiff had been very active, playing basketball and running each day. Since that time his activity levels had reduced, but he was still involved in coaching basketball and cricket.
The plaintiff also enjoyed kayaking, playing golf, cycling and going for long walks.
He had a close relationship with his grandchildren. He said he would “play rough and tumble all the time”[5] with his older grandsons. He said they would watch AFL matches together, and at half time would go outside to kick a football to each other.[6] On one occasion he broke his ribs playing football with his grandson.[7]
[5]T 49, L 1-5
[6]T 75, L 1-7
[7]T 76, L 8-11
The injury and its consequences
In approximately 2010, the plaintiff established his own company A & M Cole Pty Ltd, the defendant in the proceedings. He continued to do subcontracting work for Staples Stationery. The plaintiff said that upon arriving at its Port Melbourne depot each morning, he was provided with orders which he would then fill, pack into the van and deliver.
On 10 October 2012, the plaintiff was delivering an order to Sunny Queen Eggs. He was required to take the delivery upstairs, and used a trolley to do so. He said that whilst pulling the trolley up the stairs, one of the wheels became jammed and he forcibly pulled the trolley. While doing so, he experienced lower back pain and right upper leg pain.
The plaintiff said he continued to work that day, but his pain increased. He attempted to return to work the following day, but said the pain was so bad he ceased work after two hours.
On 12 October 2012, the plaintiff attended his general practitioner, Dr Barry Oakes. Mr Oakes reported the attendance as follows:
“…complained of right sided lumbar pain for 2 months which was not settling and appeared to be aggravated by his job. He had right-sided buttock and right ‘hip’ pain, right lateral thigh and lateral foot pain. He was actually limping for the last 2-3 days prior to the consult. There was no left sided lumbar pain. Prolonged sitting aggravated his right sided lumbar and right thigh and leg/foot pain.”[8]
[8]Plaintiff’s Court Book (“PCB”) 17
The plaintiff denied suffering lower back pain prior to 12 October 2012. He recalled having suffered some right buttock pain and in the witness box, he pointed to his right buttock, to indicate the location where he had previously suffered pain.[9]
[9]T 25, L 11-18
Dr Oakes referred the plaintiff for an MRI scan of his lumbar spine. This was performed on 15 October 2012 and reported as follows:
“1. L5/S1 bilateral pars interarticularis defects resulting in mild anterior subluxation of L5 on S1. Broad based disc bulging and L5/S1 subluxation results in mild neural foraminal compromise bilaterally.
2. L4/5 bilateral degenerative facet disease with a 6.5mm intra spinal synovial cyst on the right side as described above mildly indenting the right posterior aspect of the thecal sac and slightly displacing nerve roots anteriorly.
3. Degenerative dis disease at all levels in the lumbar spine as described above with a transitional vertebral body at the lumbosacral junction designated S1 for the purposes of this examination.”[10]
[10]PCB 22-23
The MRI was also performed on the right hip and it showed no evidence of right hip degenerative arthritis.
The plaintiff continued to consult Dr Oakes on a regular basis from 29 October 2012 until 10 July 2014. Throughout this period, the plaintiff was provided with certificates of incapacity in relation to his work.
On occasion, Dr Oakes would note flare-ups of his back pain, often associated with certain activities. On 13 March 2013, he noted the plaintiff had reinjured himself paddling a Hobie Kayak. He also noted that the plaintiff had experienced increased back pain after swimming and trying to do hydro-running for 50-70 metres.
On 28 March 2013, he noted the plaintiff had lifted a fridge and demonstrated some basketball manoeuvres a week previously. These activities resulted in right hip pain, but examination of the lumbar spine revealed very little abnormality.
In relation to his lower back injury, the plaintiff was treated by Dr Barry Oakes and later by Dr McKenzie, who took over Dr Oakes’ practice when he became ill. He only saw Dr McKenzie on a few occasions, last seeing him in late 2014.[11]
[11]T 26, L 6-10
Dr Oakes was of the opinion that the plaintiff could not return to his pre-injury occupation as a delivery driver, and that he would not be able to do repetitive lifting again. He did not recommend any specific medical care, apart from the need to lose weight.[12]
[12]PCB 20
The plaintiff now attends the Croydon Family Practice for other medical conditions, including obtaining prescriptions for his heart condition. He has not consulted the doctors there in relation to his lower back injury.
The plaintiff said that he does not take medication, because it upsets his stomach ulcers.[13]
[13]T 27, L 9-14
Medical evidence
The plaintiff’s solicitors arranged for him to be examined by neurosurgeon, Professor Richard Bittar, on 22 January 2016. He took a history of the plaintiff’s work duties and the event which occurred on 10 October 2012. Professor Bittar noted the plaintiff had “not had any lower back injuries in the past, and denies experiencing any symptoms suggestive of a pre-existing symptomatic lumbar spine condition”.[14]
[14]PCB 27
Mr McWilliams submitted this history was incorrect, given the history contained in the report of Dr Oakes. However, the plaintiff expressly denied any lower back pain prior to 10 October 2012, explaining that the pain had been in his right buttock,[15] and I accept that evidence.
[15]T 69, L 28-31 and T 70, L 1-3
Professor Bittar diagnosed the plaintiff as suffering aggravation of spondylosis/spondylolisthesis. He noted there was no evidence of radiculopathy. He considered the “workplace activities on 10 October 2012 have significantly aggravated his pre-existing asymptomatic condition and rendered him significantly symptomatic and disabled”.[16]
[16]PCB 27
Professor Bittar considered the plaintiff’s approach to the management of his symptoms through careful activity modification to be reasonable. He said if his condition deteriorated then spinal surgery was a possibility, but for now he recommended review by a pain specialist.
The defendant arranged for the plaintiff to be examined by three specialists: general surgeon, Mr Peter Battlay; occupational physician, Dr David Barton; and orthopaedic surgeon, Mr Rodney Simm.
Mr Battlay examined the plaintiff in December 2013. He diagnosed the plaintiff as suffering degenerative changes in his back, which he considered to be age-related.[17] He said that any work related aggravation had been temporary and had ceased by December 2013. He was of the opinion that the plaintiff should avoid repeated bending and manual handling in excess of 5 to 10kg.
[17]Defendant’s Court Book (“DCB”) 5
Dr Barton examined the plaintiff in January 2015. He considered the plaintiff was suffering an unresolved soft tissue injury, in the setting of some pre-existing degenerative changes.[18] He related the back injury to the incident of 10 October 2012, and felt his condition had not fully resolved. He considered that he was able to undertake suitable light duties.
[18]DCB 12
Mr Simm examined the plaintiff in February 2016. He was aware of Dr Oakes report of right-sided lumbar pain two months prior to the work injury.[19] Mr Simm diagnosed the plaintiff as suffering symptomatic long-standing advanced multilevel lumbar disc degeneration. He accepted the acute injury on 10 October 2012 caused an aggravation of this pre-existing degenerative condition. He further commented that the plaintiff’s fluctuating clinical course was consistent with the underlying pathology.
[19]DCB 20
Mr Simm commented that a substantial component of his condition was age-related, but accepted that in circumstances where there had been no period of sustained recovery since the work injury, the employment remains a materially contributing factor.[20]
[20]DCB 22
Mr Simm did not recommend any treatment and considered it appropriate for the plaintiff to self-regulate his activities according to his pain level.[21]
[21]DCB 22
Credibility
As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“…the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[22]
[22](2010) 31 VR 1 at [12]
I accepted the plaintiff as a witness of truth and consider him a stoic individual.
The defendant showed surveillance film taken of the plaintiff on 12 August 2015. It showed him watching the netball games of two of his granddaughters. It also showed him playing with his two grandsons. He initially kicks them a football to mark. After four small kicks, he proceeds to throw them the ball. This activity continues for five minutes. He is then seen attending a school fete with his grandchildren.
The defendant then showed surveillance film taken of the plaintiff on 16 April 2016. The plaintiff watched his granddaughters netball games, and later went to a cafe with his wife and a walk.
Save for the period where he is seen kicking the football to his grandsons, all of the activities on film are consistent with his evidence in court.
Before being shown the film, the plaintiff denied being able to kick a football. Afterwards, he explained that he adored his grandchildren and would do anything he could to please them. He said the ball he kicked was a small, soft football. He said it was not the kind of kicking that he would have done previously with his grandsons, when he would attend the MCG and kick a football 30 to 50 metres. These were only short passes and did not require much exertion.
I accept the plaintiff’s description of the kicking action he employed. After four kicks he changed over to throwing the ball. In picking up the ball he appeared restricted. I accept the plaintiff is motivated to do fun activities with his grandchildren, and I am satisfied that at times he may do activities which he should avoid because of his injury and which aggravate his pain. I do not consider that this video surveillance impacts upon the plaintiff’s credibility, nor the reliability of his evidence.
Permanent
In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[23] I am satisfied that the plaintiff’s injuries and the consequences which flow are permanent. Aside from Professor Bittar raising the possibility of surgery and recommending the plaintiff see a pain specialist, no other doctor recommends further medical treatment. The plaintiff has suffered his lower back pain for over three and a half years, and I consider there is no likelihood of improvement in his condition.
[23]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
Having accepted that his injury is permanent, I must now consider whether the consequences of the plaintiff’s spinal impairment are at least “very considerable”.
Pain and suffering consequences
In Haden Engineering Pty Ltd v McKinnon, Maxwell P said:
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element [24]as ‘the disabling effect’ of the pain.)
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, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
As to (d) the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such plaintiff is, to an unusual degree, prepared to endure pain in order to maintain the desired level of function. 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. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[24](2010) 31 VR 1, at [9]-[13]
Given my findings that the plaintiff was a reliable and honest witness, I accept his complaints of constant pain. He describes it as similar to a constant dull toothache. He said the intensity of his pain varies from day today, depending on his activities.[25]
[25]PCB 16B
I accept the plaintiff not does not take medication due to his stomach ulcers. He does not seek medical treatment, as besides the need to lose weight, he was told nothing could be done for him. He has since lost the weight he had gained, although he conceded it remained an issue for him.[26]
[26]T 14, L 16-20
The plaintiff explained that Dr Oakes told him to “get on with his life”[27] and I am satisfied that is what he has tried to do. However, this involves him modifying his activities and avoiding some entirely.
[27]T 27, L 15-19
I accept that as a consequence of his lower back injury, the plaintiff suffers the following consequences:
(a) He no longer plays golf. He had previously enjoyed this activity. When younger he had played at least weekly. In more recent years, and prior to suffering his lower back injury, he had played up to 10 times a year with his sons-in-law.[28] He said after his injury, he and his wife had moved to a property, which included one year’s free membership at the local golf course. He had attempted to play there, but only made it through a few holes.[29] He no longer plays at all and this is something he had hoped to enjoy in his retirement.
[28]T 52, L 3-5
[29]T 51, L 9-17
(b) He no longer goes kayaking. He tried this on three occasions after suffering his injury, but he finds the handling of the kayak too difficult.[30]
[30]T 12, L 31 and T 13, L1-11
(c) He now rides a bike infrequently as it increases his lower back pain.[31]
[31]PCB 16B
(d) He no longer goes for long walks with his wife.[32]
[32]T15, 9-19
(e) His sexual relations with his wife have been compromised, both in regularity and positions. This was only referred to in his supplementary affidavit.[33]
He was cross-examined on his failure to include this in his first affidavit, as well as not telling Dr Oakes or any of the medico-legal specialists. The plaintiff explained he found this a very personal matter and not something he felt comfortable talking about. I accept his explanation as to why did not raise it earlier. I also accept this is a genuine consequence of his lower back injury.
(f) He cannot run. Until his mid-40’s, this was an activity he enjoyed on a daily basis. Since then he had only run occasionally, and his last fun run was in about 2003.[34] He was not running at the time he suffered his lower back injury. However, he said running was important to him and although he was not running regularly at the time he suffered his injury, it was something he would like to have the option of returning to.[35]
Further, the plaintiff cannot play basketball. He last played with a team in the 1990’s.[36] He has coached basketball from time to time over the years,[37] and he used to enjoy having a casual play with his grandchildren, in a three-on-three or one-on-one.[38]
The plaintiff was cross-examined on the statement in his affidavit that he can longer do activities he used to enjoy such as running and playing basketball.[39]
His affidavit did make it clear that he was not doing either activity on a regular basis at the time he suffered his lower back injury. However, it was clear from the plaintiff’s evidence, that he now feels shut out from both activities, and I accept his affidavit was intended to be read in that context.
(g) His sleep is interfered with, a couple of times a week. He has never been a great sleeper and usually only gets four to five hours a night.
There was no complaint of this to any of the doctors, and Dr Oakes had a note on 28 March 2013 that he was “sleeping ok”.[40] The plaintiff said that reference would have been made in the context of the four to five hours sleep he was used to getting each night.
Although I accept he suffers some sleep interference due to his lower back pain, I consider this a modest consequence.
[33]PCB 16D
[34]T 15, L 22-23
[35]T68, L1-11
[36]T18, L22-24
[37]T68, L19-20
[38]T68, L1-11
[39]PCB 16B
[40]DCB 26
The plaintiff is currently coaching his grandson’s under 14 basketball team. It is his second season coaching. He said he fulfils this role in a sedentary way, and compared it to being like the team manager.[41] As the boys are older and quite skilled, he does not need to be as hands-on. He said because of his lower back injury he is not able to run and it is hard to demonstrate manoeuvres with the team. When he tried to do even a passive defensive drill, he suffered an exacerbation of lower back pain for the following 24 hours.[42]
[41]T 19, L29-31 and T 20, L 1
[42]T21, L2-13
I am mindful that in assessing this application I must consider what the plaintiff has lost, as well as what he has retained.[43] This is an activity he can still do. However, I am satisfied that if not for his lower back injury he would be an active basketball coach. His injury compromises his ability to engage in this activity to the extent that he otherwise would. I accept that this is frustrating for him and compromises his ability to enjoy this activity with his grandsons.
[43]Dwyer v Calco Timber (No 2) [2008] VSCA 260 at [27]
In April 2015, the plaintiff commenced full-time work with Small Business Victoria, driving one of its promotional buses to centres in metropolitan Melbourne and regional Victoria. He said his job involves driving and talking. He sets up a table, and puts out brochures. He can sit and stand as he needs.[44]
[44]T73, L1-2
The plaintiff estimates half of his time is spent in regional Victoria. When he has to drive to a regional town, he then stays in a local hotel. He said that when driving, his employer requires its employees to stop every two hours. Sometimes he has to pull over before that, depending on how he is feeling.[45]
[45]T 32, L 30-31 and T 33, L1-2
In his current employment, he earns a similar income to what he earned pre-injury.
Mr McWilliams referred to his capacity to obtain this light work, on a similar wage, as a positive consequence of his injury. I agree with this. However, as the Court of Appeal stated in Stijepic v One Force Group & Anor[46] a return to alternative work is not determinative against a worker on the issue of pain and suffering consequences.[47] Further, as detailed above, this is not a case where there are no other consequences.
[46][2009]VSCA 108
[47]Ibid at [47]
Conclusion
When looking at this case, in comparison to other cases in the range of possible impairments, I am mindful that I must consider the broad spectrum of cases which this court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor[48]:
“this includes cases which do not end up in litigation-because, it may be supposed, the consequences are glaringly apparent one way or the other.”[49]
[48][2009] VSCA 181
[49]Ibid at [42]
After considering the evidence as a whole, I am satisfied that the consequences to the plaintiff are more than significant and marked, and at least very considerable. I therefore grant leave to the plaintiff to commence proceedings for pain and suffering.
I shall make the consequent orders.
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