Coulter v FMP Group (Australia) Pty Ltd
[2014] VCC 2265
•15 October 2014
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05102
| SHAYNE DAVID COULTER | Plaintiff |
| v | |
| FMP GROUP (AUSTRALIA) PTY LTD (ACN 004 332 496) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 15 and 16 October 2013 | |
DATE OF JUDGMENT: | 15 October 2014 | |
CASE MAY BE CITED AS: | Coulter v FMP Group (Australia) Pty Ltd & Anor | |
| MEDIUM NEUTRAL CITATION: [First revision 2 February 2015] | [2014] VCC 2265 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application on the basis of s134AB(37)(a) and (c) – Aggravation of pre-existing back injury – whether aggravation or new injury resulted in serious injury consequences
Legislation Cited: Accident CompensationAct 1985, s134AB(16)(b)
Judgment: The plaintiff is granted leave to commence a proceeding for damages for pain and suffering and loss of earnings on the basis that he suffered a serious injury during the course of his employment with the first defendant on 17 October 2006 within s134AB(37)(a) of the Act.
The application in relation to serious injury within s134AB(37)(c) of the Act is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull with | Saines Lucas |
| For the Defendants | Mr P Jens with Mr S Smith | Herbert Geer |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 18 October 2012.[1]
[1]Plaintiff’s Court Book (“PCB”) 1
2 In the Originating Motion, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendants. The plaintiff’s case is that on 17 October 2006, he suffered an injury arising out of, or in the course of, or due to the nature of his employment with the first defendant.
3 The plaintiff claims that the injury he sustained has resulted in permanent serious impairment or loss of a body function to his lower back or lumbar spine area within s134AB(37)(a) of the Act. The plaintiff also claims he suffered a permanent severe mental or permanent severe behavioural disturbance or disorder within s134AB(37)(c) of the Act.
4 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering and loss of earnings.
5 There is a statutory framework in the Act that proscribes what the plaintiff must prove.
6 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not serious unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
7 To make out a “serious injury” within the meaning of s134AB(37)(c), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”. Again, the determination of whether a psychiatric injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant permanent severe mental or permanent severe behavioural disturbance or disorder. A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of the application unless the pain and suffering consequences or, the loss of earning capacity consequence is, when judged with comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe within s134AB(38)(d).
8 Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering or behavioural disturbance or disorder and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.
9 Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
10 Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in s5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) et cetera, et cetera”.
11 Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.
12 Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
13 Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
14 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered on 17 October 2006 during the course of his employment and, what consequences (if any) were suffered and, continue to be suffered by him.
15 The plaintiff filed and served two affidavits in support of his application. Those affidavits were sworn on 31 May 2012 and 30 September 2013 respectively.[2] The plaintiff also relied upon an affidavit of his father, Neil Coulter, sworn 1October 2013.[3]
[2]PCB 12-19 and 19a-19f inclusive
[3]PCB 19g-19i inclusive
16 In addition, the plaintiff was called for cross-examination and was cross-examined by the defendants’ counsel, Mr Smith, and re-examined by his counsel, Mr Seccull. The cross-examination was limited and the plaintiff’s credit was not challenged. Mr Neil Coulter was not cross-examined.
17 In addition, the plaintiff filed a Court Book containing his affidavits and a number of medical reports and radiological images. I admitted into evidence as exhibit A, the Plaintiff’s Court Book (“PCB”), pages 1 to 42 (inclusive) and pages 51 to 106 (inclusive) and pages 164 to 201 (inclusive). I also admitted into evidence as exhibit 1, on behalf of the defendants, pages 6 to 45 (inclusive) and pages 89 to 138 (inclusive) from the Defendants’ Court Book (“DCB”).
The Injury to the low back
18 The plaintiff is now forty-one years of age. He was born in September 1973. So far as his claim asserts a serious injury within s134AB(37)(a) of the Act is concerned, the plaintiff leads evidence that he suffered an aggravation of a pre-existing lower back injury whilst employed by the first defendant on or about 17 October 2006.[4] It is not in issue between the parties that there was an incident in October 2006.
[4]PCB 14 [9]
19 The defendants say this incident may have resulted in some aggravation of a pre-exiting low back injury from which the plaintiff had been suffering adverse consequences from at least 1996. It argues the evidence shows that following the incident in October 2006, the plaintiff continued at work doing his usual duties up to six-and-a-half-hours a day, for a considerable period, through until 2008. The defendants argue the evidence shows the 17 October 2006 incident did not produce consequences that amount to a “serious injury” within the meaning of the Act. Rather, the defendants argue, the consequences for the plaintiff amounted to a continuation of what he had been putting up with since he first injured himself in 1996.
20 The plaintiff’s case is that the injury in the incident on 17 October 2006 resulted in consequences for the plaintiff by way of aggravation of a pre-existing injury of the low back that were so great as to amount to a serious injury. The plaintiff argues the evidence shows there were new consequences from the October 2006 injury that were not present after the 1996 injury and leading up to the 2006 injury. The plaintiff’s case is the most serious of the consequences that flowed from what happened to him in 2006 is that he can no longer work despite brave attempts to continue to do so.
21 In his first affidavit, the plaintiff deposed that he first suffered an injury to his “mid” back at work with Effem Foods in June 1996. He said in consequence, he had a short time off work and sought medical treatment and returned to work on light duties. He said the pain persisted and he ceased that employment in about 1999. He was then out of work for a short time until he obtained work in what he described as a “light job” at the Ballarat fish hatchery where he worked for a few months. He was then again unemployed but obtained work driving a front-end loader for a year in about 2001 and 2002. He was then out of work again until he obtained a job as a machine operator with the first defendant in 2003.[5]
[5]PCB 13 [5-7]
22 In his affidavit sworn 31 May 2012, the plaintiff deposed that prior to commencing work with the first defendant in December 2003, he had intermittent back pain “on and off”. He went on to say that despite the intermittent back pain, he was able to perform heavy work at the first defendant’s workplace for “a few years with little or no difficulty”[6] before suffering the further back injury on 17 October 2006. The plaintiff then went on to describe the way in which he injured himself on 17 October 2006 whilst clearing a basket of brake pads from a conveyor belt. None of this evidence is in contention. Indeed, the defendants do not challenge the credibility of the plaintiff. The plaintiff said, inter alia:
“When I hurt myself, I was lifting the basket containing the brake pads which was very heavy, and I went to turn around and I felt something ‘pop’ in my back. I felt sharp pain in my back, I froze and I could not move. I dropped everything. I then bent over and sat on the ground.”[7]
[6]PCB 14 [9]
[7]PCB 14 [11]
23 The plaintiff went on to say he was taken to the St John of God Hospital in Ballarat the following day. He said when he hurt himself “I felt numbness in the first two toes on the right foot. I had never suffered that sensation before.”[8] It is not in issue between the parties that the plaintiff suffered an injury to his lower back in or about 1996 and an injury to his lower back in or about October 2006.
[8]PCB 15 [12]
24 In particular, the plaintiff relies upon the evidence contained in a medical report of Dr McDonald dated 1 February 2008. After reciting a history of the plaintiff’s back problems since 1996, Dr McDonald gave attention to what injury the plaintiff had suffered in the incident on 17 October 2006. In his report, he said this, inter alia:
“On 23 October 2006 Mr Coulter presented with acute lumbar back pain radiating to the right leg. This was a new symptoms (sic) and he said it had been present since an incident in the workplace on 17 October 2006 when he was attempting to lift and move a heavy basket of brake pads. Mr Coulter estimated the weight of the basket to be about 25kg. He was treated with analgesia, physiotherapy and returned to work on modified duties. Since that time Mr Coulter has continued to have lumbar back pain radiating to the right leg. He has been unable to return to his pre-injury duties, has required frequent rest breaks, rotation of duties and the use of analgesic medication during and after work. The chronic back pain and lack of progress has resulted in recurrent episodes of depression fro (sic) Mr Coulter with periods of suicidal ideation and excessive use of alcohol. Mr Coulter has been able to modify his alcohol use but to suffered (sic) depressed mood.”[9]
[9]PCB 20
25 Dr McDonald referred the plaintiff to Dr Bruce Kinloch, a pain specialist, in August 2007, who felt there was no suitable duties available at the first defendant and that the plaintiff would continue to suffer chronic back pain unless he was retrained for more suitable employment.[10] I accept and act upon that opinion.
[10]PCB 20-21
26 In his report in February 2008, Dr McDonald concluded that the plaintiff then continued to suffer the same symptoms as resulted from his work injury in October 2006, and that these symptoms differed both in location and quality to his previous symptoms.[11]
[11]PCB 21
27 The defendants do not dispute that the plaintiff injured his lower back in 1996 or that he may have aggravated that injury in the incident in October 2006. The issue in this case is the extent (if any) by which the plaintiff aggravated a pre-existing injury to his lower back in October 2006.
28 The defendants argue the plaintiff bears the onus of establishing with a reasonable degree of precision what was the plaintiff’s state of health prior to the incident on 17 October 2006 and also to identify what additional pain and suffering consequences arise from the October 2006 incident. There is no dispute between the parties that the plaintiff bears the onus of demonstrating on the evidence that additional pain and suffering consequences arising from the October 2006 incident are themselves a “serious injury” within the provisions of the Act.
29 In summary, the plaintiff’s case is that the 17 October 2006 incident has had the consequence that the plaintiff no longer can work as a result of what happened to him. He argues that in 1996, he had but a short time off work and returned, and he continued to work more or less full time for a period of ten years before suffering another injury to his low back in October 2006 and, as a consequence of that, he has been unable to return to work. The plaintiff argues the report of Dr McDonald of 8 February 2008 is telling, because it shows that soon after the incident on 17 October 2006, the plaintiff was complaining to his general practitioner of new symptoms, namely pain radiating into his right leg. The plaintiff argues that when this is looked at with all of the other evidence, including that he had been able to work after the 1996 injury and now he cannot following the 2006 injury, it shows he has suffered a serious injury in 2006 within the meaning of the Act. I accept that submission.
30 The defendants contend that the evidence does not show with any accuracy what injury the plaintiff suffered in 1996 and it is therefore impossible to identify what is the injury arising from the incident on 17 October 2006.
31 The plaintiff was thoroughly cross-examined by counsel for the defendants about his relevant medical history, particularly after 1996. I observed the plaintiff closely whilst he was giving his evidence. He gave his evidence in a direct and forthright way, answering all questions put to him and often conceding factual aspects against his interest. I accept the plaintiff as a witness of truth. As I have earlier indicated, the defendants do not contend otherwise. I accept the plaintiff’s evidence that the 2006 injury produced symptoms and pain that the plaintiff had not previously experienced including back pain that is so bad that he is now prevented from working. I accept his evidence that the 2006 incident produced acute low back pain and some right-sided pain and numbness radiating into the right leg and foot not previously experienced by him from which he continues to suffer.
32 It is necessary to look at the evidence that relates to the medical history of treatment of the plaintiff and his complaints to various medical practitioners in order to understand how the defendants put their case. The defendants, through their counsel, spent much time traversing this history in the cross-examination of the plaintiff.
33 The plaintiff acknowledged that he had suffered from chronic low back pain since 1996.[12] That is confirmed in the report of Dr Prentice, a neurologist, whom the plaintiff saw for medico-legal purposes on behalf of the defendants in December 2004.[13] It is also confirmed by a note in the records of the plaintiff’s then general practitioner.[14]
[12]Transcript (“T”) 31, L14-15, and T35, L19-20
[13]DCB 106
[14]DCB 93
34 In January 1999, the plaintiff had an x-ray of the lumbar spine that revealed early degenerative change and slight loss of disc height at the L5-S1 level. [15]
[15]DCB 117
35 In August 2002, the plaintiff’s then general practitioner noted that he had discussed with the plaintiff changing his work. He noted “Query retraining; change re type of work appropriate”.[16]
[16]DCB 96
36 In evidence, the plaintiff agreed that in the early part of the 2000s, his back problem was stopping him from doing heavier manual jobs. He said:
“I had trouble with my back for years. I just can’t pinpoint exactly what happened, when it happened, what part of me (sic) back it was. I can’t distinguish exact times when I had lower back problem, you know. It just got worse over time.”[17]
[17]T30, L14-20
37 There was an MRI scan performed at the request of Mr Mitchell on 10 December 2002. It showed, inter alia:
“There is degenerative disc disease at the L5-S1 level which is associated with a left sided shallow disc protrusion which is touching and displacing the left S1 nerve root as it lies in the sub-articular recess.”[18]
[18]PCB 78
38 The plaintiff’s then general practitioner noted in May of 2003, after consulting with the plaintiff, “Back pain for two/three weeks. Prescription of Tramal. Can’t sleep with back pain.”[19] This was acknowledged by the plaintiff in evidence.[20]
[19]DCB 95
[20]T36-37
39 In another consultation in April 2003, the plaintiff’s then general practitioner noted, inter alia, “Back locks and spasm” and the plaintiff agreed the consultation had taken place and that his back was locking.[21] The doctor then prescribed Voltaren and Panadeine.
[21]DCB 95. Acknowledge by the plaintiff at T36-37
40 A report of the remedial massage therapist, Ms Forbes, who was treating the plaintiff once or twice a week in October 2003, reports that the plaintiff was having terrible pain, described as “constant low back pain referring into his legs from time to time, predominantly the left.[22] In evidence, the plaintiff accepted that he did in fact have problems in both legs, albeit the left was worse than right.[23]
[22]DCB 134
[23]T40, L13 to T41, L4
41 Dr McDonald has been the plaintiff’s general practitioner since 2004. On 21 September 2004, Dr McDonald noted the plaintiff had “Left two jobs due to back pain”.[24] The doctor also recorded that the plaintiff had been on Tramal for the past two years, taking two to four per day.[25] He also recorded “Walks daily, swims twice weekly”. The plaintiff agreed in his evidence that he was doing this exercise to assist with his back injury.[26]
[24]DCB 93
[25]DCB 93
[26]T39
42 Dr Prentice also noted the plaintiff had been forced to change jobs because of back pain, in his report dated 9 December 2004:[27]
“He initially injured his back working in ’96 and managed until 2000. He was doing heavy work for a cable company at the time and also gave up using marijuana which may have masked the pain to some degree before that. He has since had work driving forklifts and doing cleaning and manufacturing which has all been reasonably physical.”
[27]DCB 106
43 In evidence, the plaintiff agreed that what the doctors had recorded was in fact the position.[28]
[28]T29-30
44 In evidence, the plaintiff was asked about what he had told Dr McDonald in September 2004 and the consequences of the 1996 injury had affected him. Dr McDonald had noted, inter alia, “Decreased libido and sexual response, loss of interest in activities and poor sleep with back pain”.[29] The plaintiff was asked about this and said, inter alia:
[29]DCB 93
Q:“Did that continue to be a problem from 2004 onwards to the present time?---
A:Yes.
Q:So that in the two or so years before this lifting incident at work in 2006 you’ve been having problems with libido and sexual response?---
A:Yes.
Q:So, the complaint that you make in your affidavit about problems with libido and sexual activity, they were occurring before the injury?---
A:Yes.[30]
[30]T41
Q:Loss of interest in activities, was that a problem that you were having in September 2004?---
A:If I told the doc that, yeah.
Q:Was that your activities like motorbike riding and things of that nature?---
A:Everything probably.
Q:So, when we say ‘everything’ are we talking about, say, bike riding, motor bike riding, dirt bike riding?---
A:Yep.
Q:And that continued to be a problem from September 2004 onwards?---
A:Yeah, it would have been.
Q:So, at the time of the lifting incident with FMP or at least the two years before, then you had a problem with losing interest in your dirt bike riding and other recreational activities?---
A:Yeah.[31]
[31]T42
45 In his report of 9 December 2004, Dr Prentice, a neurologist, noted, inter alia:
“He describes his pain as being constant, nagging and restricted to the lower thoracic and lumbar spine areas. It tends to increase when he is sitting. His left leg sometimes feels weak and numb.”
46 Commenting on an MRI carried out in 2002, he noted:
“The MRI was a couple of years ago and he thinks his symptoms have significantly worsened since then. He is being treated with anti-inflammatories, physiotherapy and exercise and does derive some benefit from this. He’s been using Tramal now as well as Panadeine Forte and he is fairly dependent on this.”[32]
[32]DCB 106
47 In evidence, the plaintiff accepted he had said these things to Dr Prentice.[33]
[33]T33-34
48 Dr Prentice arranged for a further MRI scan to be carried out in December 2004. That reported, inter alia:
“Disc protrusion centrally and particularly to the left side, causing posterior displacement and compression to the left S1 nerve root, within the central canal.”[34]
[34]PCB 81
49 In February 2005, Dr McDonald noted the plaintiff then complained of “problems with the back” and “irritability and marital dysfunction”.[35] In evidence, the plaintiff confirmed not only was that the situation in February 2005, but also that these consequences had continued up until the time of the occurrence of the October 2006 incident.[36]
[35]DCB 92
[36]T43, L6-15
50 In May 2005, Dr McDonald recorded that the use of Tramal was causing mood swings, hot flushes and diarrhoea, and that the plaintiff had also been prescribed Amitriptyline in 2004-2005 for its neuropathic effects.[37] The defendants submit this evidence reveals that well prior to the October 2006 incident, the plaintiff had been prescribed a very significant suite of analgesic medication taken in high dosage which was causing unpleasant side effects in the nature of gastrointestinal problems and other issues for the plaintiff.
[37]DCB 92
51 Dr McDonald also noted in May 2005, that the plaintiff could not sit for longer than 20 minutes and is unable to drive long distances.[38] In evidence, the plaintiff acknowledged that this was the fact.[39]
[38]DCB 92
[39]T44
52 The notes of Dr McDonald reveal that in August 2005, the plaintiff reported an exacerbation of low back pain when lifting his two-year old daughter from the car.[40] In evidence, the plaintiff also acknowledged he had said this to the doctor.[41]
[40]DCB 91
[41]T45
53 On 27 October 2005, Dr McDonald noted “struggling at work with increased back pain into the left leg, Panadeine Forte not doing much”.[42] Again, in evidence, the plaintiff accepted the accuracy of the note.[43]
[42]DCB 91
[43]T46
54 The plaintiff had been referred to Mr de la Harpe, an orthopaedic surgeon, by Dr McDonald in August 2005 and Mr de la Harpe saw the plaintiff in his rooms on 10 October 2005. He requested an MRI scan of the plaintiff at that time. It showed a left-sided L5-S1 prolapse with displacement of the S1 nerve root.[44] Mr de la Harpe was then of the opinion that the plaintiff should not be engaging in manual labour, given the condition of his back.[45]
[44]PCB 83
[45]PCB 35
55 A note of Dr McDonald on 1 March 2006 records “Exacerbation of chronic back pain – especially at work – similar to previous – L leg – also radiates to the lower thoracic area – standing up to 3 hours non stop at work – body twists”.[46] In evidence, the plaintiff agreed the note recorded what he had told Dr McDonald.[47]
[46]DCB 91
[47]T47
56 The plaintiff was then involved in the incident at his place of work with the first defendant on 17 October 2006 and attended Dr McDonald on 23 October 2006, when he complained of acute lumbar back pain radiating into the right leg. I have referred to Dr McDonald’s report above where he describes this as being a new symptom for the plaintiff.[48] Dr McDonald’s clinical notes of this consultation also went into evidence and confirm what is found in his report.[49]
[48]PCB 20
[49]DCB 90
57 Since the occurrence of the incident on 17 October 2006, the plaintiff has continued to be treated by Dr McDonald, who prescribed painkilling and anti-inflammatory medication.[50] The plaintiff was also referred for physiotherapy and counselling.[51]
[50]PCB 15 [13]
[51]PCB 15 [13]
58 In his affidavit, the plaintiff deposes to having had a substantial amount of time off work before returning on light duties and reduced hours and then further time off work. He received compensation for the time off work.[52] The evidence shows in fact that the plaintiff was off work from the time of the incident until late October 2006, when he returned on restricted duties and reduced hours.[53] He only worked for two weeks during the calendar year 2007[54] because of back pain, and during periods when he was at work, he was never able to work the whole day. The maximum he was able to work was six hours.[55] On 29 August 2007, the plaintiff told his treating physiotherapist that he was only able to manage two hours’ work before his pain worsens. Earlier that month, he complained to her that his problem was “constant numbness in the right big toe and intermittently in other toes”.[56]
[52]PCB 16 [14]
[53]PCB 51, T54
[54]T61
[55]PCB 28, T54
[56]PCB 28
59 The plaintiff’s employment with the first defendant ceased on or about 5 October 2008, and he has not worked since.[57]
[57]PCB16, 17 and 122
60 The evidence shows that notwithstanding the pre-existing low back injury from which the plaintiff had suffered since 1996, leading up to the incident in which he was injured at work on 17 October 2006, the plaintiff was still able to work full time doing relatively hard manual work. In each of the financial years ended 30 June 2004, 2005 and 2006 respectively, the plaintiff earned in excess of $45,000.00. The records show that the plaintiff’s income in 2007 was $42,791.00 but this was almost all compensation. In 2008, the figure was $31,699 but again was almost all compensation. The figure as at 30 June 2009 of $7,924.00 was again compensation earnings. The plaintiff has been unable to work since 5 October 2008.
61 The plaintiff deposed in his affidavits as to the various consequences to him both in terms of ongoing pain and suffering and of not being able to work.[58] None of this evidence was in issue on this application. The consequences collectively, including a heavy regime of ongoing medication, are accepted as serious consequences. The issue in the case is causation. The defendants submit the plaintiff has not proved his case on this issue. I do not accept that submission.
[58]PCB17 [16] to [18] and PCB 19b [2] to [23]
62 I find that the plaintiff suffered a low back injury at work in 1996. He continued to suffer from the consequences of this injury up to and including 17 October 2006, when he was again suffered a low back injury at his place of employment with the first defendant. The consequences of the injury suffered by the plaintiff in 1996 affected the plaintiff from time to time, requiring ongoing treatment and medication, but they did not prevent the plaintiff from working. Whilst at different times the plaintiff may have suffered from some right-sided pain in his right foot and right leg as a consequence of his injury in 1996, this was not the major consequence for him and did not prevent him from working. As at 17 October 2006, the plaintiff’s pre-existing back injury did not prevent him from carrying out constant, heavy manual work for the first defendant.
63 When the plaintiff again suffered injury to his low back in October 2006, I accept he continued thereafter to suffer from new symptoms in the form of pain and numbness in the right leg and foot. I accept that as a consequence of this new injury or aggravation of a pre-existing injury, the plaintiff suffered from ongoing pain and an inability to continue with his work. I accept that as a result of what occurred on 17 October 2006, the plaintiff suffered from new symptoms and pain and suffering consequences as referred to in his affidavits and the medical reports produced in evidence.
64 As I said earlier, I watched the plaintiff closely in giving his evidence. I accept him as a truthful witness, not given to overstating his problems. I accept his evidence that it is the consequence of the injury or, aggravation of a pre-existing injury to his low back that occurred on 17 October 2006, that now causes him ongoing daily pain, requiring constant medication, and which prevents him from engaging in suitable employment. I find that the pain and suffering consequences for the plaintiff arising from the 17 October 2006 injury are, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c) of the Act. There is the further consequence that the injury suffered on 17 October 2006 prevents the plaintiff from engaging in any form of ongoing employment despite his efforts to continue working. As I said earlier, I accept the opinion of the treating doctor, Mr Kinloch.[59]
[59]PCB 20-21
65 In my view, the plaintiff has made out a case for leave pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendants for damages for pain and suffering and loss of earnings and loss of earning capacity. I will grant leave on the basis that on 17 October 2006, the plaintiff suffered a serious injury to his lumbar spine in the course of his employment with the first defendant within s134AB(37)(a) of the Act. That injury was probably an aggravation of a pre-existing injury to the lumbar spine.
66 As I indicated earlier, the plaintiff also seeks leave to commence a proceeding on the basis the plaintiff suffered a serious injury within s134AB(37)(c) of the Act. In my judgment, the plaintiff cannot succeed on that part of the application for the following reasons.
67 In his affidavit, the plaintiff admits to having what he describes as “drug and alcohol problems” dating back many years, certainly before he commenced employment with the first defendant, FMP.[60] The notes of the plaintiff’s general practitioner reveal his parents reported “abnormal behaviour” in January 1998. The plaintiff complained of depression in October 2000.[61]
[60]PCB 13 [7]
[61]DCB 121
68 A report from Dr Sonia Ghai at Ballarat Health Services Psychiatric Services reveals that the plaintiff presented in September 2006 (one month before the October 2006 incident) with a history of depressive symptoms for a number of years. These were described as “lowered mood, poor sleep, themes of hopelessness and worthlessness”.[62] The report noted the plaintiff had a longstanding history of “polysubstance abuse including alcohol, amphetamines and cannabis, and Ice”.[63] The plaintiff was diagnosed in September 2006 with “Major Depressive Disorder with a differential diagnosis of Drug/Alcohol related Mood Disorder.”[64] In May 2007, the plaintiff’s file was closed in view of the plaintiff’s “poor engagement with treatment”.[65]
[62]PCB 36
[63]PCB 36
[64]PCB 36
[65]PCB 36
69 In October 2007, the plaintiff was referred to Ballarat Psychiatric Services by his father because of the plaintiff’s aggressive and violent behaviour towards him and work colleagues in the context of ongoing amphetamine and alcohol use. Dr Ghai opined the plaintiff suffered a drug induced psychotic disorder at that time.[66]
[66]PCB 37
70 The plaintiff relies upon three reports from Dr Carol Newlands, a psychiatrist, who saw the plaintiff at the request of the defendants’ insurer on 31 May 2010.[67] Dr Newlands’s reports are lengthy and thorough and it is not possible to summarise them fully here. She opined the plaintiff suffered from:
[67]PCB 164
1 A Major Depressive Disorder, recurrent.
2 Drug and alcohol abuse – long lasting
3 Adjustment Disorder with Mixed Anxiety and Depressed Mood relevant to various unrelated psychosocial stressors.[68]
[68]PCB 174
71 In a further report after a second consultation on 8 August 2012, Dr Newlands did not change her opinion. She added the plaintiff’s Major Depressive Disorder was caused by his employment.[69]
[69]PCB 189-190 and 196
72 The plaintiff was admitted to the Grampians Psychiatric Unit on two occasions in September and December 2009.[70] The plaintiff is participating in the Methadone Program for drug addiction and has done so since September 2010.[71]
[70]PCB 167
[71]PCB 167
73 Whilst I am prepared to accept that the plaintiff presently suffers from a Major Depressive Disorder and, an Adjustment Disorder with Mixed Anxiety and Depressed Mood, I do not accept the opinion of Dr Newlands that this is caused by a workplace accident that occurred on 17 October 2006.
74 The plaintiff had previously suffered symptoms of depression in a setting of long-lasting drug and alcohol abuse. His psychiatric history, in my view, is complicated by the drug and alcohol abuse. I cannot say, on the balance of probabilities, that the plaintiff’s Major Depressive Disorder and, Adjustment Disorder with Mixed Anxiety and Depressed Mood, are injuries suffered during the course of his employment with the first defendant.
75 Further, even if the plaintiff’s psychiatric injury was work related, I am not satisfied the evidence shows that the consequences of that injury can properly be described as “severe” within the Act. As I said earlier, a mental or behavioural disturbance or disorder within s134AB(37)(c), shall not be held to be severe for the purposes of the application unless, the pain and suffering consequences or, the loss of earning capacity consequence is, when judged with comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe within s134AB(38)(d). Here, the evidence does not, in my opinion, permit of such a finding.
76 I reject that part of the plaintiff’s application that relies on a serious injury within s134AB(37)(c) of the Act. The plaintiff is granted leave to commence a proceeding for damages for pain and suffering and loss of earnings on the basis that he suffered a serious injury during the course of his employment with the first defendant on 17 October 2006 within s134AB(37)(a) of the Act.
77 I will hear the parties on costs.
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