Corben v Victorian WorkCover Authority
[2013] VCC 1435
•24 October 2013
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05550
| DAVID CORBEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| VISY PACKAGING PTY LTD | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 24, 25 and 26 September 2013 | |
DATE OF JUDGMENT: | 24 October 2013 | |
CASE MAY BE CITED AS: | Corben v Victorian WorkCover Authority & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1435 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Kelso v Tatiara Meat Company Pty Ltd [2010] VSCA 12; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to injury to the lumbar spine suffered by him on or about 10 March 2010 during the course of his employment with the second defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Slater & Gordon Ltd | |
| For the Defendants | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB (16) (b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the second defendant on or about 12 March 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbar spine.
6 The plaintiff relied upon two affidavits sworn by him on 20 April 2012 and 22 May 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The 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 s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order 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 second defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c)“the consequences” to the plaintiff of his impairments to the low-back in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[4]s134AB(38)(b) and (c)
9 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
[5][2009] VSCA 181
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that 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. … .”[6]
[6]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph at [42]
10In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
11The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[8]
[8]s134AB(38)(j) of the Act
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
14Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
15I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[10] and in Grech v Orica Australia Pty Ltd.[11]
The issue
[10]supra
[11](2006) 14 VR 602
16 Counsel for the defendants informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that the consequences could not be considered “as being more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
Investigations
17 On 4 May 2010, an MRI scan of the plaintiff’s lumbar spine showed L5‑S1 right paracentral disc extrusion extending superiorly behind the L5 vertebral body over a length of 19 millimetres, resulting in moderate right S1 lateral recess narrowing just above the level of the L5 inferior endplate without foraminal compromise.
18 On 19 May 2010, Mr John H A McMahon, neurosurgeon, recommended an L5‑S1 epidural injection, as well as bilateral L5‑S1 facet joint injection.
19 On 10 June 2010, a CT‑guided epidural injection was performed.
20 On 17 June 2010, a CT‑guided bilateral L5‑S1 facet joint injection was performed.
The Plaintiff’s medical reports
Dr Andrew Milliken
21 In August 2010 Dr Milliken, occupational physician, reported that the plaintiff suffered an acute injury to his lumbar spine at work. He was prescribed analgesics, non-steroidal anti-inflammatory medication along with physiotherapy. Conservative management was unsuccessful. The plaintiff was referred to Mr J McMahon, neurosurgeon. The diagnosis was discogenic and facet joint pain with possible contribution of S1 nerve-root compression pain. The imaging studies (CT and MRI) showed L5‑S1 disc degeneration and L5‑S1 facet joint degeneration, along with a small disc protrusion, possibly compressing the S1 nerve root.
22 Mr Milliken said it was too difficult to provide an accurate estimate regarding the prognosis for full recovery as he had not reviewed the plaintiff since June 2010. He was aware that the plaintiff was due to have the facet joint injection at that point in time.
Mr John McMahon
23 In May and July 2010, Mr McMahon, neurosurgeon, saw the plaintiff on referral from Dr Milliken. It was his opinion that the plaintiff’s diagnosis included chronic lumbar back pain and lower limb pain secondary to L5‑S1 spondylosis, including L5‑S1 intervertebral disc degeneration and bilateral L5‑S1 facet-joint degeneration. He said the plaintiff had a central L5‑S1 disc prolapse associated with the intervertebral disc degeneration. He said it was only causing mild nerve-root compression and he did not feel the symptoms were due to nerve-root compression.
24 Mr Mc Mahon reported that the epidural and facet joint injections did not alleviate the plaintiff’s symptoms. The plaintiff was referred for pain management to Dr B Todhunter.
25 Mr McMahon said the plaintiff’s prognosis is variable. In the short term, over the next six months, he thought the plaintiff may have ongoing lumbar pain and buttock pain due to the lumbar spondylosis. In the longer term, he envisaged the plaintiff being involved in a graduated return to restricted work duties. In the long term, he did not think the plaintiff should be lifting weights greater than 20 kilograms on a repetitive basis or that he should be involved in any work that requires bending repetitively below knee height or reaching upwards above head height. He said the long-term prognosis will depend on the plaintiff’s ongoing symptoms and response to pain management. In the longer term, the plaintiff may experience recurrent episodes of pain which require short periods away from work and temporary restrictions on work activities.
26 In December 2010 in a letter to the defendant’s insurer, Mr McMahon said the plaintiff was unlikely to recover completely. He expected there would be some long-term restrictions. The plaintiff would require ongoing treatment such as analgesics and anti-inflammatory medication and would benefit from physiotherapy treatment. He said surgery would depend upon his response to pain management. He thought it unlikely that he would return to all previous work activities.
Dr Brett Todhunter
27 Dr Todhunter, specialist in anaesthesia and pain medicine, confirmed that in February 2011, he proceeded to undertake a diagnostic block at the L5‑S1 level on the right side. On 29 March 2011, Dr Todhunter confirmed that he proceeded to undertake a second lot of diagnostic blocks on the right side at L5‑S1 level, at the L4 medial branch, and L5 dorsal ramus.
Dr Andrew Miller
28 In April 2011, Dr Miller, occupational health consultant, examined the plaintiff at the request of the defendants’ insurer. Dr Miller said the plaintiff informed him that he had not experienced any difficulty whatsoever with his back prior to this particular incident. Dr Miller said the plaintiff was currently capable of working; however, he should incorporate restrictions in his work program of:
· avoiding lifting in excess of 10 kilograms
· avoiding forceful pushing or pulling activities
· avoiding repeated extreme movements of his back
· avoiding prolonged static postures such as sitting or standing in the same position for more than one hour at a time.
29 Dr Miller read a copy of a surveillance report, and said if it related to activity subsequent to the plaintiff sustaining the claimed injury then it revealed that he was functioning without any obvious difficulty, as he was observed performing a number of relatively physically demanding activities without any obvious restriction. As a consequence of the surveillance material provided, he thought that the plaintiff had a genuine capacity for work that was more physically demanding. He could not conclude that the plaintiff had fully recovered from the claimed injury.
30 Dr Miller accepted that the plaintiff sustained an aggravation of degenerative changes at the L5‑S1 level, that the injury was work related, and that he probably aggravated an existing degenerative condition of the lower spine. In view of the surveillance material, he thought the plaintiff was capable of working full time. He thought the plaintiff could gradually resume his pre-injury duties over the next three to six months.
Dr David S Elder
31 In September 2011, Dr Elder, consultant in occupational medicine, examined the plaintiff at the request of the defendants’ insurer. He said the plaintiff had mechanical back pain without clinical evidence of radiculopathy. He performed an impairment assessment. He said the impairment was stabilised within the meaning of the guide.
Dr Clayton Thomas
32 In May 2013, Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of the plaintiff’s solicitor.
33 Dr Thomas said that the plaintiff’s most significant pain was in the right lower lumbar spine but that he had pain radiating down the right leg to a variable degree. It was Dr Thomas’s view that the plaintiff suffered an aggravation to the L5‑S1 disc level, with right sciatica, but no evidence of radiculopathy. His condition has stabilised and his main problem was his inability to perform work which is not back-friendly.
34 Dr Thomas said the plaintiff would have difficulty working in a factory environment in which there was any component of bending, lifting or twisting below waist height or above chest height, a 5‑kilogram frequent lift between waist and chest height and an occasional lift of 5 kilograms below waist and above chest height. Standing and sitting would be limited to 45 minutes and he needs to change his posture frequently. Dr Thomas said the plaintiff’s incapacity to his lumbar spine will continue for the foreseeable future. He accepted the plaintiff could work full time in his current position which he described as “appropriately back friendly”. He said the plaintiff will have persistent pain and disability going forward.
The Defendants’ medical evidence
Mr Ian Jones
35 In September 2012 and August 2013, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitor.
36 Mr Jones reviewed the CT scan of 29 March 2010 and said there were five lumbar vertebrae, and at the junction of L5 and S1, there was evidence of a disc protrusion of moderate size. There was no clear evidence of any neural compression. CT scan investigations dated 10 and 17 June 2010 confirmed facet joint injections at L5‑S1. An MRI scan of May 2010 was viewed and showed changes consistent with the right L5‑S1 disc protrusion appearing to compress the right S1 nerve root. The protrusion was associated with degenerative changes within the disc itself.
37 The plaintiff reported that he had undergone radiofrequency denervation in October 2011, which helped his back pain and again, in February 2013. The plaintiff reported as a consequence of the February 2013 denervation his requirement for analgesics was reduced for a 3 month period. The pain increased and he resumed his former dose of Tramadol 150mg twice daily.
38 Mr Jones said the plaintiff has evidence of lumbosacral disc disruption manifesting as back pain and stiffness and referred pain into his right buttock and posterior thigh. He said the plaintiff denied any previous history of back injury or complaints. He said the plaintiff suffers effects of a lumbosacral disc disruption currently manifesting as back pain with restrictions of spinal movement to approximately half that of the normal level and some residual sciatic symptoms in the form of posterior right thigh and buttock pain. He said the plaintiff’s back condition would preclude him from engaging in work requiring him to repeatedly bend or lift. A weight lift limit of 5 kilograms would be appropriate. Prolonged sitting beyond one-and-a-half hours and static standing are inappropriate for the plaintiff as a consequence of his lumbosacral disc injury.
Surveillance
39 I was informed that the plaintiff was subject to surveillance between 19 December and 21 December 2010. I was informed that the film was 80 minutes’ long and the first 30 minutes was poor. I was only shown the film of 19 December 2010, which for the most part was poor. It was difficult to see exactly what the plaintiff was doing because he was working behind a relatively high garden bed. My observation was that the plaintiff was moving at a relatively slow pace. The film showed the plaintiff installing a shade cloth awning at the front of his house. The plaintiff agreed he carried trestles pieces and lifted a ladder which he agreed would weigh approximately 5 kilograms. He agreed that he was bending, twisting, crouching and squatting. He was seen on the ladder putting the shade cloth into position with both arms outstretched. He agreed that he nailed the shade cloth into position. He was later shown wheeling a motorbike out of the garage. He was seen assisting others in pushing, for a short distance, a panel van into the garage. He agreed the film showed him moving in an unrestricted manner and at times lifting, bending, twisting and, at times, squatting.
40 I accept that the film was taken three years ago and the plaintiff was not doing all that much on the film. The activity demonstrated was not strenuous; it was activity he was performing at his own pace in his own time.
41 I accept that the film did show the plaintiff engaged in moderately light activities. The film did not show him performing any activity that was inconsistent with his evidence. Accordingly, I accept the film did not assist the defendant’s case.
Credit
42 The plaintiff’s credit was not really in issue. The plaintiff answered all questions put to him in a direct and frank manner. He made concessions. I accept the plaintiff was a witness of truth.
Analysis of the evidence
43 It was not in issue that the plaintiff suffered a compensable injury.
44 All doctors accepted that the plaintiff suffered a lumbosacral disc disruption at L5-S1 which was manifesting as back pain and stiffness and referred pain into his right, back and posterior thigh.
45 Dr Miller and Dr Clayton Thomas said the plaintiff suffered an aggravation of degenerative changes at the L5-S1 disc level. Mr McMahon and Mr Jones reported that the plaintiff had not suffered back pain or injury prior to the work injury.
46 In cross-examination and re-examination, the plaintiff agreed that he had a long standing problem with his right leg, a benign bone tumour. He agreed that in 2001, 2002 and 2006, he was complaining to his general practitioner of pain in his right leg. He underwent x-rays. The plaintiff said he was provided with exercises which alleviated the pain, but he suffers a little pain on change of weather a couple of times a year.
47 He could not remember complaining to his general practitioner of low back pain in 2000, but said it was possible. In May 2005, he complained of persistent pain, which he described as like an ache or bruising feeling, in the site of a lumbar puncture administered for an unrelated condition. Later in 2005 he reported further back pain at the same site which was not thought to be related to the lumbar puncture. He agreed in 2009 he reported neck pain to his general practitioner as a result of work he was doing, which involved heavy and repetitive lifting of plates. The plaintiff’s evidence was that, despite these complaints of pain, he performed his manual work and worked full time for the second defendant. I accept that the plaintiff was performing heavy manual work with the second defendant at the time of the injury. I accept that apart from the complaints of pain in 2000, 2001, 2002, 2005 and 2009, the plaintiff’s back and right leg were relatively symptom free and he could manage his heavy manual work.
48 Following the injury, the plaintiff consulted Dr A Milliken, and because of the back and right leg pain, was referred to a neurosurgeon, Mr McMahon. He underwent an epidural injection and CT-guided bilateral L5-S1 facet joint injection.
49 On 14 February 2011, the plaintiff had a diagnostic block at L5-S1 level on the right side and on 29 March 2011, a second diagnostic block was performed on the L5-S1 at the L4 medial branch and L5 dorsal ramus. The plaintiff’s evidence was that in October 2012 and February 2013, he underwent a denervation procedure.
50 The plaintiff’s evidence was that he has been taking medication of Tramadol, 150 milligrams twice per day, and Nexium since June 2010. The plaintiff’s evidence was that in February 2013, he had a further denervation procedure and had hoped that as a result of that procedure, he would be able to reduce the Tramadol he was taking to 100 milligrams twice per day. However, because of the pain, his general practitioner increased his level of Tramadol to 150 milligrams twice per day, which is what he is currently taking.
51 The plaintiff received physiotherapy treatment until it was terminated by the defendants’ insurer. He currently performs exercises daily which his physiotherapist taught him. There have been occasions when he has sought physiotherapy treatment for short periods, to cope with the pain. The plaintiff has paid for those treatments
52 Counsel for the defendants was critical of the medical material relied upon by the plaintiff. First, he submitted that it was a significant omission that the plaintiff did not rely on a medical report from his general practitioner, Dr Francis, who had been treating him for many years. The evidence was that on two occasions the plaintiff’s solicitor had sought a report from Dr Francis. No report was forthcoming. However, the general practitioner’s clinical records were before the Court. The records were detailed and confirmed that the plaintiff was consulting Dr Francis about the pain in his back. Dr Francis was prescribing medication which was recorded in his notes. The records were consistent with the plaintiff’s evidence to the Court about the medication and levels.
53 Further, Dr Francis could have assisted the Court in relation to the complaints of pain in the right leg and lower back made in the early 2000s by the plaintiff. I accept Dr Francis could have assisted the Court. However, I accept the plaintiff’s evidence of what he was told by the doctor in relation to his reported back and leg pain. Furthermore, the evidence is that the plaintiff continued to work full time in heavy manual work with the second defendant.
54 Secondly, there was no medical report from Mr Todhunter. The plaintiff relied upon operation reports of Mr Todhunter dated 15 February 2011 and 29 March 2011. The defendants’ counsel’s submission was that such a report would have assisted the Court in assessing outcomes and whether the plaintiff had the capacity to perform certain levels of activity. While that may be so, the plaintiff relied upon a report from Dr Thomas, who was a rehabilitation and pain management specialist, who addressed such issues.
55 Thirdly, counsel for the defendants submitted that Mr McMahon’s report was limited because it was three years old and had not been updated. I accept the report is three years old and for that reason is of limited relevance. However, I note that Mr McMahon’s prognosis, about the future, is consistent with the plaintiff’s current complaints to doctors and what he told the Court.
56 In considering the medical evidence, I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Jones and Dr Thomas, who both examined the plaintiff in 2013.
57 Both Mr Jones and Dr Thomas accepted the plaintiff had evidence of lumbosacral disc disruption, manifesting as back pain and stiffness, and referred pain into his right buttock and posterior thigh. Both obtained a history of his treatment, including medication and levels of pain. Both conducted examinations with similar results.
58 Mr Jones reported the plaintiff suffered restrictions of spinal movement to approximately half that of the normal level and some residual sciatic symptoms in the form of posterior right thigh and buttock pain. Dr Thomas said back movements, lateral bending and rotation were limited to 60 per cent of normal. He agreed the plaintiff had right sciatica.
59 Mr Jones said the plaintiff’s back condition would preclude him from engaging in work requiring him to repeat bending or lifting. He imposed a weight lift limit of 5 kilograms. He said prolonged sitting beyond one-and-a-half hours and static standing are inappropriate as a consequence of his lumbosacral disc injury. Dr Thomas imposed similar restrictions, although he limited sitting and standing to 45 minutes. Dr Thomas said the plaintiff could work full time with his current employer in a back friendly position. If he were to return to work as a manual worker without complying with the restrictions imposed, his ability to perform work would be limited to 15 hours per week. Both witnesses accepted the plaintiff would suffer pain unabated into the future.
60 I accept the medical evidence is that the plaintiff cannot return to pre-injury duties because of his back injury. He is restricted in physical activities which require repeated bending, lifting or twisting below waist height or above chest height which affect his work, leisure activities and home life. He is also restricted in sitting and standing. The plaintiff has endured these restrictions since 2010. There was no suggestion by the medical evidence that those restrictions would cease. In fact, Dr Thomas said the plaintiff’s incapacity in his lumbar spine will continue for the foreseeable future.
61 The issue was whether the consequences satisfy the statutory test.
62 The plaintiff said he continues to suffer ongoing back pain, which varies from discomfort to severe and depends upon his level of activity. Long periods of sitting and standing in one place aggravate his pain. He reported the pain he suffers to the doctors he saw. He told Mr Jones he continues to experience varying degrees of back pain; the pain level is constant, but gradually deteriorates as the day progresses. He said the pain level in his right buttock and right thigh varies in intensity. He made similar complaints to Dr Thomas and reported that activities tend to flare up his pain quite easily. For example he had recently painted his bedroom which resulted in him being unable to use his back for three days.
63 I accept the plaintiff’s evidence in relation to his description of the pain that he experiences as a result of his back injury and the pain that he suffers into his leg and thigh. The plaintiff was consistent in reporting to the medical witnesses the pain he suffered. I accept the plaintiff’s evidence that the pain he suffers is constant, though varying in intensity, given the fact that the plaintiff has been taking prescription medication of considerable strength over three years and has been consulting his general practitioner. I accept that the experience of pain the plaintiff suffers is a consequence I can take into account.
64 The plaintiff’s evidence as to treatment was that he consulted his general practitioner regularly. He had undergone a number of medical procedures in the form of epidural injections, diagnostic blocks on a number of occasions and denervations, the most recent being in February 2013. He has had physiotherapy and, from time to time, he performs daily home exercises, stretches and walks to alleviate the pain. He purchased a walking machine for that purpose. He is self managing his back condition. He told the Court that he wears a brace, uses heat bags and uses Dencorub.
65 He takes medication of Tramadol, 150 milligrams twice per day, and Nexium. He had hoped that after the recent denervation he would be able to reduce the Tramadol to 100 milligrams twice per day. However, after six weeks the pain was so significant that his general practitioner suggested he return to the previous level, where it has remained.
66 The plaintiff said since the denervation in February 2013, generally the pain has improved during the day. He wakes up feeling pretty good until he gets up. He is stiff and sore. He walks to relieve the pain. He says the pain varies but normally starts to get bad in the afternoons. He uses a heat pack and tries to keep busy so that he does not think about the pain. None of the medical witnesses suggested that his treatment was inappropriate. I accept that the level of treatment the plaintiff has under gone is significant and is a consequence I can take into account. The level of treatment is consistent with the level of pain the plaintiff reports.
67 The plaintiff’s evidence was that after his injury he returned to work on light duties and reduced hours. He did not return to full hours in an unrestricted capacity. The most he could do was seven hours daily on light duties. He told the Court and some of the medical witnesses that he was warned by his employer that unless his back condition improved, he would lose his job. He commenced to look for alternate work.
68 He told the Court that he has always been a fitter and turner, a manual worker. He had worked on seventy or eight-year-old machinery and there were no manuals to assist. He enjoyed the mental challenge of working out how the machinery should be repaired. He is saddened by the loss of his trade. He used to work nightshifts of 12 hours, three nights per week, and an additional 12-hour shift once per month, which gave him the opportunity to engage in other activities.
69 The medical evidence is that the plaintiff cannot return to his pre-injury employment. Both Mr Jones and Dr Thomas imposed restrictions. While the plaintiff has retained a capacity to engage in full-time employment, he cannot return to his pre-injury work duties. His work activities have been affected by his back injury. I accept that this is a consequence that I can take into account.
70 Currently, he is employed as a union organiser for the Australian Metal Workers Union, which he enjoys. He works in the north-east region. He is required to travel around the region, and to Melbourne, on occasions. He has modified the driver’s seat of his car so that his legs are straight in the car. After driving for an hour to an hour-and-a-half, he has a break of 15 minutes. He avoids driving to and from Melbourne in one day because of the pain in his back.
71 He told the Court he has to ensure he arrives early at meetings to walk around and relieve the pressure on his back. He often stands up during meetings to relieve the stress on his back.
72 I accept that the plaintiff is engaged in full-time work but with restrictions.
73 I accept that the plaintiff cannot return to his previous work because of his back injury which for a man who has performed his trade for many years is significant. I can also take into account the fact that he is now working in a job, which he enjoys, but his work activities are restricted by his low-back injury. For a man aged 45, this is significant; given the medical evidence that it is unlikely the pain will improve. I accept the effect of his back injury on his work is a consequence which I can take into account.
74 The plaintiff said the pain impairs his enjoyment of his social, recreational and domestic activities. He said he no longer rides his motorbike, for safety reasons, because he does not have the strength in his legs and back. Prior to his injury, he used to ride his trailbike with his son a couple of times per week for a couple of hours, weather permitting. He enjoyed spending time with his son and his mates. He also rode a bike daily. He told the Court that he sold his boat a couple of years ago because he was not using it; the boat was a heavy old fibreglass boat, which was too heavy for him to manage even with the assistance of his son. He agreed that he did not own the boat for very long.
75 The plaintiff said that prior to his back injury, he would fish. He preferred saltwater fishing, which he did two to three times per year. He no longer feels safe fishing in saltwater. He cannot manage a boat and on occasions he fishes on the edge of the boat ramp on the Hume Weir but does not derive the same enjoyment as he gained from saltwater fishing.
76 He told the Court that he was a handyman around the house. He is now restricted in what he can do. He avoids heavy tasks. Even the moderate tasks take him longer to complete because he works so slowly so as not to put strain on his lower back. He said recently he sanded down a chest of drawers which took three months. Prior to his back injury, he would have performed the task in one or two sessions. He reported to Dr Thomas the difficulties he encountered when painting his bedroom. He required the assistance of his wife to cut around the ceiling and skirtings.
77 The plaintiff said he enjoyed gardening and growing vegetables prior to his injury. Since the injury he has not been able to mow the lawns. His son performs this task, although he hopes to be able to do so in the future. He agreed he has continued to perform light gardening tasks. He avoids the heavier work, for example pushing heavy wheelbarrows and turning over the soil for a vegetable garden. After the injury, his son assisted with the heavy work in the garden but he is now working full time and not interested in helping. His wife is working and does not have the time. Physically he cannot maintain the vegetable garden on his own.
78 The plaintiff said his dog had a litter of pups which have been sold. The plaintiff’s evidence was that he sat with the dog during this process. He did not describe having to perform any activity inconsistent with the restrictions imposed by the medical witnesses.
79 I accept the plaintiff’s evidence that his recreational and domestic activities are affected by the restrictions imposed upon him by the pain he suffers. I accept that these are matters I can take into account.
80 Generally the plaintiff said he participates in activities whether in pain or not and deals with the pain later. There have been occasions where his back pain has interfered with social occasions. He had organised a combined party for his daughters’ birthdays. On the night he was suffering severe pain and could not enjoy the evening. He said recently he could not attend a friend’s fortieth birthday because of the pain.
81 Counsel for the defendants referred to the plaintiff’s Facebook page which showed pictures of the plaintiff on his wedding day looking happy and squatting on the ground, and the plaintiff on a Penny Farthing bicycle which was taken on his honeymoon in New Zealand. The plaintiff said he was able to travel to New Zealand, that he underwent a denervation before his holiday and obtained extra medication to assist him while in New Zealand. I accept that the plaintiff is socially engaged, but there are restrictions imposed upon the activities that he engages in. On occasion, the pain affects his enjoyment of social activities. The plaintiff can travel, but with assistance of derivations and extra medication. These are consequences which I can take into account.
82 In his second affidavit, the plaintiff said the injury to his back has greatly affected his relationship with his wife. The plaintiff reported to Dr Thomas they engage in intimate relations less often because it is painful for him. I accept that this is a consequence I can take into account.
83 It was my view that the plaintiff presented as stoical. He was not given to exaggeration and he gave his evidence in a most uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his daily employment, domestic and social activities. I base my impression on the way he presented in the witnessbox. I accept that the injury suffered by a stoical plaintiff is not to be viewed as any less serious merely because he manages to remain more active than might have been expected given the level of pain.
84 The plaintiff is now 45. He has spent his working life as a fitter and turner. The medical experts agreed that his work capacity is affected by his inability to twist, bend and lift heavy weights. To his credit, he has obtained alternate employment, which he is performing, but with restrictions. I accept that his working and home life have been affected by his back pain and restricted movement. His life is affected by pain, for which he takes strong medication on a daily basis. I refer to the observations by Dodds-Streeton JA (with whom Buchanan, Ashley and Kellam JJA agreed):
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[12]
[12]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199] and [2010] VSCA 12 at [73]
85 The plaintiff’s ability to undertake home maintenance and engage in his garden, recreational and social activities is restricted. I accept that the fact that the plaintiff is able to work full time in alternate work does not preclude him from showing that the pain and suffering consequences of his impairment are “serious”. I accept that the plaintiff was able to travel to New Zealand. However, the plaintiff’s evidence was that he underwent a denervation before the trip and took a supply of medication to cope with the pain. I must consider the evidence as a whole.
86 Taking all the evidence into account, I am satisfied that it is fair to describe the pain and suffering consequence of the plaintiff’s back injury as being “more than significant” or “marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[13] No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
[13]Stijepic v One Force Group Aust Pty Ltd (supra) at [44]
87 I am satisfied that the low-back injury is permanent, given the evidence from all medical witnesses.
88 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the back is successful.
- - -
0
7
0