Cox v Victorian WorkCover Authority
[2021] VCC 1058
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03148
| DAVID GRIFFITH COX | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2021 | |
DATE OF JUDGMENT: | 16 March 2021 | |
CASE MAY BE CITED AS: | Cox v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1058 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – aggravation – pain and suffering – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering damages in respect of injury to his back arising out of or in the course of the plaintiff’s employment with his employer on 19 March 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Lawyers |
| For the Defendant | Ms D Manova | Russell Kennedy Lawyers |
HER HONOUR:
1On 19 March 2013 when twenty-one years of age, Mr Cox suffered an injury to his spine whilst attempting to do a backflip on a trampoline during the course of his employment with Bounce Australia Pty Ltd (trading as Bounce Inc) at the Bounce trampoline centre in Glen Iris (“Bounce”). In this incident, Mr Cox suffered an L1 compression fracture and tears of the ligament structure and facet joints at L1-T12.
2Mr Cox subsequently required surgery in the form of a spinal decompression and fusion. Mr Cox claims he suffers persisting back pain which he says is worsened after a day at work. Mr Cox also claims that due to his back injury, he can no longer play basketball, which is a sport that he had played since the age of five. In order for Mr Cox to be entitled to claim common law damages for his pain and suffering, he must satisfy me that his spinal impairment satisfies sub-paragraph (a) of the definition of “serious injury” contained in s134AB of the Accident Compensation Act 1985.
3To assess the impact that Mr Cox’s spinal injury has had upon him, I will briefly outline his background, the nature of his injury, treatment received, and the consequences he claims.
4Mr Cox is now twenty-nine years of age. Whilst at high school, Mr Cox worked as a part-time basketball referee and also at Bunnings. After completing Year 12, Mr Cox commenced a Bachelor of Social Science at La Trobe University and completed the first year of his degree.
5He said that whilst undertaking study at university, he worked in several part-time jobs, including in his role at Bounce, where he was employed to work as a kitchenhand and party host. Mr Cox also said he played basketball socially throughout his time at university, and played one to two games per week. Mr Cox also said that he went on lengthy bike rides prior to suffering his injury the subject of this claim.
6On several occasions in 2009 and 2010, Mr Cox consulted a physiotherapist in respect of some lower back pain, and in 2009, he required some days off work. Mr Cox had not recalled this himself, but accepted this history when the medical records relating to it were put to him in cross-examination. In the trampolining accident, Mr Cox said he heard a cracking noise in his spine, felt pain, and crawled off to the side of the trampoline where he was advised to lay still.
7He was taken by ambulance to The Alfred hospital and was admitted to the Trauma Unit. On 21 March 2013, Mr Lu Ton performed a T12-L2 posterior decompression and fusion surgery using screws and a titanium plate. Mr Cox remained at The Alfred hospital until 24 March 2013 and was discharged with OxyContin, Endone, Ibuprofen and Panadol to assist with his pain management. Mr Cox also commenced seeing a physiotherapist, Mr Andrew Cobb, after the surgery, and he attended on him on a regular basis for several months.
8On 15 June 2013, Mr Cox returned to Bounce to work and undertook light duties.
9On 9 October 2013, he was cleared by his general practitioner to do normal duties. Mr Cox said that whilst working at Bounce, he was able to return to light trampolining, including bouncing from a standing position to lying on his back and then to being upright again. Mr Cox said that over time, he felt the pain in his back increase and towards the latter part of his employment at Bounce, he asked to spend more time working in the kitchen area than on the trampolines.
10Mr Cox said that he finished at Bounce in approximately 2017.
11Mr Cox said that from the time of the surgery, he had a constant awareness of a feeling of discomfort in his spine around the area where the plate and screws were inserted. He said he had occasional pain if he did too much.
12In 2014, Mr Cox commenced a Bachelor of International Studies at Deakin University. In August 2014, Mr Cox cancelled a flight due to his back pain, and his general practitioner prescribed him Celebrex medication and recommended exercises for his back and core strength.
13In February 2015, Mr Cox attended upon his general practitioner, and amongst other complaints, reported lower back pain. His general practitioner’s clinical notes indicate that they discussed analgesia and walking.
14In April 2015, Mr Cox undertook some paid work experience with CAE Aircraft Maintenance Pty Ltd. He subsequently obtained an ongoing position with CAE and was employed to assist in maintenance of light aircraft. Mr Cox thereafter commenced a four-year apprenticeship.
15Whilst undertaking this apprenticeship, Mr Cox said that he also worked part-time jobs to supplement his income. For the first two years he was at Bounce, and then from 2017 to 2018, he worked in several bars. Whilst undergoing this apprenticeship, Mr Cox also attended trade school for two or three weeks at a time every few months. Mr Cox said that his work duties involved lifting and bending as well as climbing underneath aircraft dashboards, working from ladders, bending over engines and lying on concrete floors in order to carry out maintenance.
16Mr Cox said that he avoids doing any heavy lifting at work and finds that working in confined spaces and twisting movements aggravate his back pain. Mr Cox said that he has recently done further study and is planning to get additional licences so that he can inspect and sign off on aircraft safety assessments instead of doing the manual work on the aircraft.
17Mr Cox said that he takes one to two days off work each month due to his back pain.
18More recently, Mr Cox took two weeks off work in February 2021 due to his back pain, and he spent his time resting in bed and stretching. Mr Cox said that his boss knows about his back pain and is okay with him taking leave without the need for a medical certificate.
19Away from his work, Mr Cox said that because of his back pain, he stopped playing basketball in around 2017 to 2018. He said that his back was getting increasingly painful at work and then he would play basketball and have to try and push through, such that he needed to take days off work subsequent to that. Mr Cox said that in the end it was not worth it, and so he gave the basketball up.
20Mr Cox acknowledged that he has had periods of depression, including in February 2015 when his relationship broke down and he deferred his university studies, then again in November 2017, Mr Cox said he had some issues with substance abuse and had some time off work. Mr Cox said that his general practitioner referred him for psychological counselling and prescribed him Lexapro. Mr Cox believed that this antidepressant medication caused him to gain 30 kilograms in weight.
21Mr Cox said that since that time he has only managed to lose 5 kilograms. Despite having to cancel a flight due to his back pain in August 2014, Mr Cox has since travelled overseas on several occasions, including to Bali, Cambodia, China and Central America. Mr Cox said that on these trips he went hiking and sightseeing. Whilst in Bali, Mr Cox came off a scooter and injured his leg. Mr Cox said that on these long-haul flights, he would try and stand and walk as much as possible and he also took painkilling medication.
22Mr Cox said that since suffering his injury the subject of this claim, he has also attempted other recreational activities. He said he tried skateboarding on one occasion, but whilst attempting a half pipe, he dislocated his left shoulder and was taken to the Emergency room at Box Hill Hospital. Mr Cox said that he has not done this activity since. Mr Cox also said that he attempted skydiving at Barwon Heads. He said he had previously done a tandem skydive with friends and decided to do an accelerated course so that he could skydive on his own.
23Mr Cox said this course involved a semi-solo skydive in which he left the plane without assistance, but was followed by two qualified instructors to supervise him and ensure he was able to pull the rip cord. Mr Cox injured his shoulder in this skydive whilst pulling the cord. Mr Cox acknowledged that when he enrolled in this skydiving course, he signed a waiver acknowledging he may injure his back. Mr Cox said that he did this activity as he felt his back could not get worse.
24Mr Cox accepted that since late 2013, his attendances upon physiotherapist, Mr Cobb, have not been for his back pain, but instead for injuries suffered at basketball as well as in the skydiving and skateboarding attempts. Presently, Mr Cox said the only recreational activity he continued to do is cycling. He is able to cycle to work, which is only 15 minutes from his home.
25Mr Cox said that he can now only cycle for shorter distances than what he did prior to suffering his injury. Mr Cox said that he experiences back pain on a daily basis. On most working days, he said that his pain is 4 out of 10 by the end of the day. Mr Cox said that he has a general feeling of weakness in his back and he experiences increased pain with twisting or turning. Mr Cox said that every couple of days he takes two to four Nurofen and occasional Voltaren or paracetamol.
26Mr Cox said that he uses Deep Heat, Tiger Balm, and heat packs on a regular basis.
27In this case, there were three medico-legal opinions tendered.
28In September 2020, neurosurgeon, Professor Peter Teddy, examined Mr Cox via Zoom. In his report dated 8 September 2020, Professor Teddy noted that Mr Cox is in pain most of the time. As it was a Telehealth appointment, Professor Teddy was unable to examine Mr Cox; however, based upon the history obtained and his review of the medical imaging, Professor Teddy considered it was likely that Mr Cox would continue to suffer back pain of varying severity for the foreseeable future and that he was at an increased risk of degenerative change above and below the level of his fusion.
29In a supplementary report dated 10 March 2021, Professor Teddy said that he considered the likelihood of Mr Cox requiring further surgery as a direct result of the injury to be less than 10 per cent.
30In February 2021, Mr Cox was examined by a neurosurgeon, Mr Armin Drnda. In his report dated 16 February 2021, Mr Drnda detailed Mr Cox's history, including the treatment received and the different recreational activities he had performed, including injuries sustained whilst performing such activities. In this report, Mr Drnda stated that Mr Cox did not have back pain since sometime in 2014 and he attributed his more recent complaints of pain to lower back pain and not the thoracolumbar junction where he suffered his injury. Mr Drnda also noted that Mr Cox had put on weight, and his conclusion was that the cause of Mr Cox’s pain was repeated physical strain and obesity rather than the injury the subject of this claim.
31In March 2021, Mr Cox was examined by orthopaedic surgeon, Mr John Skelley. In his report dated 9 March 2021, Mr Skelley also recorded that Mr Cox complained of constant lower back pain with varying intensity. On Mr Skelley’s examination of Mr Cox, he noted mild tenderness extending from the thoracolumbar junction to the base of the spine. Mr Skelley considered it likely that Mr Cox’s current symptoms of pain would be chronic and continue for the foreseeable future. Mr Skelley was of the opinion that the injury had stabilised and any deterioration in the future is likely to be no greater or slightly greater than deterioration seen with normal ageing in the spine.
32In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[1] President Maxwell stated that in assessing the plaintiff’s pain and suffering consequences, the Court should have regard to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the plaintiff’s pain, and what objective evidence shows about the disabling effect of the pain. The weight to be attached to the plaintiff’s account of pain depends largely upon an assessment of the plaintiff’s credibility.[2]
[1](2010) 31 VR 1
[2]See Haden (ibid) at paragraphs [11]-[12]
33President Maxwell noted that the Court will make its own assessment of the plaintiff’s credibility, based upon the evidence provided and said that “the Court may also take into account the views expressed by examining doctors as to the reliability of the plaintiff’s accounts of pain.[3]
[3]Haden (ibid) at paragraph [12]
34I considered Mr Cox to be a genuine witness. He was, however, a poor historian. He forgot his prior lower back pain in 2009 and 2010, including the need for some days off work in 2009. He also forgot he had gone to Bali and Cambodia since the accident. However, Mr Cox seemed genuine in such oversights, and I do not consider his failure to independently recall these events to reflect upon his character.
35Mr Cox was frank in conceding he had previously used illicit drugs, and had been depressed around the time his relationship broke down. He did not seek to relate such depression to his back pain. Further, when cross-examined as to the range of activities he had done since the accident – such as hiking, scooting, skateboarding and sky-diving – Mr Cox was upfront about these activities and did not claim that such activities aggravated his back injury.
36Mr Cox is a stoic young man who, after an initial period of recovery from surgery, returned to work at Bounce. Whilst working full time and undergoing his apprenticeship, he also worked a part-time job – initially at Bounce and then later, at bars. I consider Mr Cox is highly motivated and his working history is evidence of this. Mr Cox’s motivation and enthusiasm for life is also seen in his overseas travel, which he has done despite increased pain on long-haul flights. Mr Cox has also attempted recreational activities which, from a conservative point of view, may have been unwise for a person with a fused spine to do. However, I accept that Mr Cox was simply attempting to get on with life as best he could, and his willingness to do so is also a sign of his genuine character. Overall, I considered Mr Cox a credible witness. This bears greatly on my assessment of his claimed consequences.
37Professor Teddy and Mr Skelley accepted that the trampoline accident was the cause of Mr Cox’s lower back pain. Mr Drnda was of a different opinion and attributed Mr Cox’s pain to his current activities and weight gain. However, Mr Drnda’s opinion is based on Mr Cox having no back pain since 2014, and that it only developed relatively recently. I consider this history by Mr Drnda is incorrect, as it is inconsistent with his general practitioner’s records, and, further, it is not in accordance with Mr Cox’s evidence that he has had an awareness of an increasing level of pain in his spine since the time of the surgery. I consider this incorrect history is fundamental to Mr Drnda’s opinion that the accident and spinal fusion are not the cause of Mr Cox’s current back pain. I am therefore not assisted by this aspect of his report.
38I note that all three medico-legal doctors accepted Mr Cox’s report of daily pain. None of them suggested he was exaggerating or feigning his complaints of such pain. I accept Mr Cox’s complaints of daily pain, and that such pain worsens by the end of the working day. I accept that Mr Cox regularly takes over-the-counter pain medication, and also uses Deep Heat, Tiger Balm and heat packs.
39As has been recognised by the Court of Appeal in previous cases, including Kelso v Tatiara Meat Company Pty Ltd[4] and ACN 005 565 926 Pty Ltd v Snibson,[5] the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a very considerable consequence.
[4][2007] VSCA 267
[5][2012] VSCA 31
40I accept that on occasions, Mr Cox misses time from work due to an increase in his back pain. I accept he recently took two weeks off work, during which time he rested his back and did stretching exercises. I accept Mr Cox’s evidence that his supervisor allows him to take time off without a medical certificate, as he needs to do from time to time. I also accept that Mr Cox does not see any point in seeing a general practitioner for certificates, as he knows what he has to do for his back pain to improve.
41Mr Cox said that he has accepted how his back is and has therefore not sought out further treatment from his general practitioner, surgeon or physiotherapist. There is a small prospect that Mr Cox may require further surgery, with Professor Teddy estimating this at less than 10 per cent. I consider this so speculative that I have given no weight to this possible consequence in my assessment of whether the consequences to Mr Cox are “at least very considerable”.
42I accept Mr Cox’s evidence that he hopes to move towards safety inspection of aircraft at work, so that he can reduce the manual work that he does for his employer. I accept that Mr Cox has given up playing basketball, as it causes him too much back pain and he was concerned not to let it get so bad that this would interfere with his employment. Although there may have been other unrelated factors that may have been at play in his life at the time he stopped playing, I accept that on an ongoing basis it is his back injury which prevents Mr Cox playing basketball. I consider this is a significant consequence, given he had been playing it since a child, had refereed at high school, and was playing once to twice a week at the time he suffered his injury. I accept that Mr Cox’s back pain increases during international flights, but he has dealt with this by standing as much as possible and taking Panadol. I make no criticism of Mr Cox for trying skateboarding and sky diving. I accept that as a young man he was very keen to try new activities and was prepared to take some risks in spite of his ongoing back pain.
43In assessing this application, I am mindful that Mr Cox is a young man. I accept that over the last eight years, his pain has gradually worsened. There is no prospect of improvement. His pain will be suffered over the whole of his adult lifetime. On the evidence as a whole, when compared to other cases in the range of possible impairments, I am satisfied Mr Cox injured his back in the trampolining incident and the consequences to him can be described as “at least very considerable”, such that he should be granted leave to seek common law damages for his pain and suffering.
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