Crawford v Brinks Australia Pty Ltd
[2009] VCC 639
•9 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-07-05116
| MARK CRAWFORD | Plaintiff |
| v | |
| BRINKS AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 29 May 2009 |
| DATE OF JUDGMENT: | 9 June 2009 |
| CASE MAY BE CITED AS: | Crawford v Brinks Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0639 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – plaintiff suffered injury to his lower back – whether the pain and suffering consequences were least very considerable – whether the loss of earning capacity consequences were least very considerable – whether the plaintiff had undergone rehabilitation and retraining as required by subsection (38)(g) – leave granted for pain and suffering and loss of earning capacity: section 134AB (38)(c), (f) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC with | Maurice Blackburn |
| Mr S Carson | ||
| For the Defendant | Mr S Smith | Thomson Playford Cutlers |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 18 December 2007 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant on 16 January 2003.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Philbrick SC appeared with Mr S Carson of Counsel for the plaintiff and Mr S Smith of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. •
The plaintiff tendered the following evidence - the Plaintiff's Court Book (“PCB”) pages 9-54: Exhibit A
• The defendant tendered the following evidence:
ƒ video film of a guardhouse attendant’s job: Exhibit 1 ƒ video film of a weighbridge operator's job: Exhibit 2 ƒ the Defendant's Court Book (“DCB”) pages 36-68 and 110-132: Exhibit 3.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
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.
(f)
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.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering 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,[3] an approach which I intend to follow in the present case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti [4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 3 February 1958. He is now fifty-one years of age. He is a married man with adult children.
10 After completing his formal schooling, the plaintiff was employed in a variety of occupations before commencing work with the defendant in June 2001 as an armed guard working with armoured vans.
11 On 16 January 2003, the plaintiff was working as an armed guard on an armoured van. The van was parked on Acland Street, St Kilda near a National Bank where the plaintiff was to unload and deliver bags of coins. It was in the course of lifting bags of coins out of the van onto a trolley and then manoeuvring the trolley around an obstruction that he felt pain in his lower back.[5]
[5] PCB 10
12 The plaintiff completed his work. On his return to the defendant's depot he completed an Incident Report. He took two days off work, returning to work on alternative duties. That work involved fixing faults on automatic teller machines. He was then put back onto work as an armed guard on armoured vans.
13 On 30 July 2003, the plaintiff aggravated the pain that he continued to experience when stooping in order to handle bags of coins.
14 The plaintiff subsequently saw a physiotherapist before seeing Dr Martiniello, general practitioner, on 6 August 2003, by which time he said that the pain in his lower back was constant and radiated into his left buttock and left leg.[6]
[6] PCB 12
The Plaintiff's Medical Treatment
15 Dr Martiniello referred the plaintiff to have x-rays and also a CT scan which were taken on 7 August 2003.[7] He was of the opinion that the plaintiff had suffered an L5-S1 disc prolapse causing the plaintiff left-sided sciatica.[8] He prescribed the plaintiff Vioxx, Antenex and Codalgin Forte for pain-relief.
[7] The first CT scan was taken on 7 August 2003 (PCB 51) and the second was taken on 28 April 2009 (PCB 53)
[8] PCB 27A
16 The plaintiff was absent from his employment from about 6 August 2003, returning to work in November 2003, when he was again given alternative duties fixing faults on automatic teller machines.
17 The plaintiff then returned to work as an armed guard on armoured vans in early 2004. He was required to drive a van with a defective seat which caused constant jarring of his lower back. The pain he was experiencing in his lower back worsened to the point where he went off work again in March 2004.
18 Dr Martiniello referred the plaintiff to Mr Kavar, neurosurgeon, who saw the plaintiff on 6 May 2004. Mr Kavar had the CT scan. After he examined the plaintiff, Mr Kavar concluded that he was primarily suffering from lower back pain without any neurological deficit, leading him to conclude that he was suffering from lumbar spondylosis.
19 Mr Kavar considered that the plaintiff's prognosis was guarded because he was suffering significant pain in his lower back. He did not consider that surgery had any place in the treatment of the plaintiff. He recommended that the plaintiff engage in a regular exercise regime, have physiotherapy, massage and undertake regular stretching exercises.[9]
[9] PCB 49-50
20 The plaintiff returned to work in about mid-2004 and was put onto work which involved driving a sedan motor vehicle. Notwithstanding his change of work tasks, the plaintiff said that he continued to have constant lower back pain which was made worse by driving and also getting in and out of the motor vehicle. The plaintiff was made redundant by the defendant in July 2006.
21 The plaintiff was employed subsequently by Australian Armoured Express for about three months, however, he was only given days of work every now and again. In about mid January 2007, he was employed by Central Victorian Sweepers, driving a street sweeper. He found similar difficulty in sitting and driving. That employment came to an end in late June 2007. The plaintiff has not worked since.[10]
[10] PCB 14-15
The Other Medical Evidence
22 Dr Martiniello has treated the plaintiff since shortly after the incident occurred. He provided three medical reports dated 7 November 2004,[11] 18 August 2006[12] and 12 August 2008.[13] In his last report he expressed the following opinion:
"Mr Crawford suffers with chronic lower back pain related to his work in 2003. He also has left-sided sciatica consistent with lumbar disc injury. He has developed a chronic pain type syndrome with depressive symptoms. He has had to cease all employment since June 2007 and at present he would be unlikely to return to any form of employment due to his medical condition."[14]
[11] PCB 23
[12] PCB 25
[13] PCB 27A
[14] PCB 29. At the time when he expressed that opinion he had referred the plaintiff to undergo a second CT scan (PCB 53). According to the radiologist at L5-S1 there were mild degenerative changes associated with a minimal broad-based posterior bulge.
23 Mr Smith cross-examined Dr Martiniello on his opinion that the plaintiff would be unlikely to return to any full employment. Mr Smith showed the films to Dr Martiniello and asked him whether the plaintiff would be able to undertake either a job as a house attendant or a weighbridge operator. Dr Martiniello was of the opinion that the plaintiff would not be fit for either of those two jobs. He did not agree with the opinion of Dr Horsley, occupational physician, that with further rehabilitation the plaintiff would probably be able to work between 4 to 6 hours per day in the light job.
24 Dr Horsley provided three medical reports dated 26 November 2008,[15] 20 April 2009[16] and 7 May 2009.[17] Dr Horsley was of the opinion that the plaintiff had clinical signs consistent with an L5-S1 disc lesion and was suffering from mechanical back pain with radicular pain down his left leg.[18]
[15] PCB 30
[16] PCB 38
[17] PCB 40
[18] PCB 35
25 Dr Horsley was provided with film of the two jobs. In her second report, she expressed the opinion that the plaintiff had a work capacity in the vicinity of 15 to 20 hours per week and that the two jobs were suitable, however, she emphasised that the plaintiff's capacity was for part-time work.
26 Mr Smith cross-examined Dr Horsley along the same lines as he cross- examined Dr Martiniello. Dr Horsley essentially repeated her opinion that the plaintiff was fit for part-time work in the vicinity of 15 to 20 hours per week. The only qualification was that she considered that he could work up to 6 hours, four days per week if he were able to have Wednesdays off, in other words, if he could work on a Monday and Tuesday and then a Thursday and Friday.[19]
[19] Transcript #
27 Mr King, orthopaedic surgeon, examined the plaintiff in December 2008.[20] He was of the opinion that the plaintiff had sustained acute injuries to one or more of his lumbar discs and associated ligamentous structures which he considered would explain the onset of pain in his lower back and left leg. He was of the opinion that the plaintiff could probably manage a suitable supervisory job which did not involve bending, lifting and prolonged standing.[21]
[20] PCB 41
[21] PCB 46
28 Mr Smith did not make any substantial submissions based upon the medical evidence. The medical opinions obtained by the defendant were entirely consistent with the diagnosis of the plaintiff's injury made by Dr Martiniello, Dr Horsley and Mr King.
29 Mr Buzzard, general surgeon, examined the plaintiff on 26 August 2003, and was of the opinion that the plaintiff suffered a disc prolapse with left-sided sciatica at L5-S1.[22]
[22] DCB 38
30 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 6 May 2004, and was of the opinion that the plaintiff had suffered a lumbosacral disc injury with left irritative sciatica.[23]
[23] DCB 41
31 Dr Brown, occupational physician, examined the plaintiff on 30 May 2005, and was of the opinion that the plaintiff had suffered a lumbar disc lesion.[24] He examined the plaintiff again on 3 July 2006, at which time he expressed the same opinion.[25]
[24] DCB 46
[25] DCB 56
32 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 16 June 2005, and was of the opinion that the plaintiff had suffered an aggravation of lumbo- sacral disc degeneration.[26]
[26] DCB 51
33 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 24 November 2008, and was of the opinion that the plaintiff was suffering from discogenic back pain resulting from a small lumbo-sacral disc protrusion with some sciatic symptoms consistent with mild radiculopathy.[27]
[27] DCB 65
Serious Injury
Pain and Suffering
34 Mr Smith did not choose to make any submissions regarding the diagnosis of the plaintiff's injury or that it impaired the function of the plaintiffs lower back or that the impairment is permanent.
35 Mr Smith concentrated his efforts on whether the consequences of the impairment were at the least very considerable when the relevant comparison is made.
36 There is no doubt in my mind that the plaintiff did suffer an L5-S1 disc prolapse which resulted in left-sided sciatica. The only medical practitioner to differ from that diagnosis is Mr Dooley, who considered that the plaintiff had suffered disc degeneration which had been aggravated rather than there being evidence of a discrete disc injury.
37 The plaintiff swore two affidavits, on 6 August 2007 and 4 February 2009, which set out the consequences of the impairment of function of his lower back.
38 It is clear from the plaintiff's first affidavit that after initially suffering the injury he developed constant pain which was aggravated by the work he undertook for the defendant and with subsequent employers.[28]
[28] PCB 10-16
39 The plaintiff said that his capacity to engage in pleasurable activities such as fishing, camping and walking long distances has essentially come to an end.[29] His capacity to engage in social activities with his family has also been significantly curtailed, as has his capacity to engage in an intimate sexual relationship with his wife.
[29] PCB 16
40 In his second affidavit, the plaintiff expanded upon his first affidavit, describing that he sometimes has severe pain which goes into both legs. He now has a numb sensation in the thigh and calf of his left leg with cramping at night which often wakes him. His capacities to sit, stand and walk are significantly impaired. His capacity to undertake small domestic and other chores around his home is likewise impaired.
41 The plaintiff now uses up to eight Nurofen tablets per day to obtain some relief from the pain.[30]
[30] PCB 20-22
42 Mr Smith submitted that the consequences to the plaintiff do not equate with being at least very considerable. He pointed to the fact that the plaintiff and his family moved to a 28-acre property after the incident occurred, and that the plaintiff would not have moved if he was unable to undertake the maintenance and upkeep of that property. Essentially, the plaintiff said that what maintenance and upkeep he does is minimal, and otherwise it is undertaken by his family.
43 The plaintiff has suffered an obvious significant injury to the structure of his lower back in the form of an L5-S1 disc prolapse which is sufficiently significant to cause nerve irritation, resulting in radiculopathy affecting his left leg, and now both legs.
44 Of the medical practitioners who have examined the plaintiff recently, there is little disagreement as to the diagnosis of the injury and the fact that it would create a painful state for the plaintiff and would impair the function of his lower back. Of those, it is only Mr Shannon who expressed the opinion that the plaintiff is presently fit for full-time work.[31]
[31] DCB 68. Mr Shannon saw the films of the two jobs. Mr Shannon's handwritten note (DCB 68) referring to the plaintiff’s capacity to perform some duties full-time is presumably a reference to those two jobs
45 The plaintiff struck me as a very straightforward man. There was nothing about the manner in which he gave his evidence, nor its content, which led me to conclude otherwise than I should accept his evidence, both in his affidavits and given orally, of the consequences of the impairment of the function of his lower back without reservations. He is now literally affected in nearly every aspect of his daily life to the point where he is reduced to being able to do very little physically, resulting in a significant loss of a capacity to undertake social, domestic and recreational activities which were no doubt the very essence of his non-working life.
46 In the circumstances, I consider that the consequences suffered by the plaintiff deserve the description at the least very considerable, and I find that the plaintiff has suffered a serious injury after making the comparison which I am obliged to make as I have described it in my discussion of the statutory scheme.
Loss of Earning Capacity
47 I do not accept the opinion of Mr Shannon that the plaintiff could do either of the two jobs full-time.
48 I was particularly impressed by the evidence of Dr Martiniello who undoubtedly knows the plaintiff very well because he has been the plaintiff's treating general practitioner from the time when the incident occurred through the plaintiff’s successful attempts to return to work with the defendant and his successful attempts at obtaining alternative work.[32]
[32] Transcript 62-65
49 What is very clear to me from the plaintiff's evidence is that he did not allow his lower back injury to get the better of him. He persevered, as best he could, by repeatedly testing himself in the workplace until he reached the point where he was no longer able to work because of the nature of his lower back injury and the extent which it disabled him for work.
50 If the plaintiff found it so difficult to maintain alternative work after he was injured then it is difficult to see how he could do either of the two jobs on a full- time basis given the opinions of Dr Martiniello and Dr Horsley.
51 Dr Horsley was more optimistic than Dr Martiniello. At present she is of the opinion that the plaintiff could return to either of those two jobs, preferably for 15 to 20 hours per week, or perhaps longer hours on Monday and Tuesday and Thursday and Friday, with Wednesday off. She did not accept that the plaintiff would be able to work full-time or for increased hours beyond 15 to 20 hours.[33]
[33] Transcript 47-49 and 52
52 Part of the thesis advanced by Dr Horsley was that the plaintiff had suffered de-conditioning as a result of being out of the workforce for a significant period of time. She was of the opinion, that if the plaintiff could undertake a course of rehabilitation, then he could obtain conditioning which would enable him to work the 15 to 20 hours per week.
53 Mr Smith submitted, that as a result of Dr Horsley's evidence the plaintiff had failed to discharge the onus he bears with respect to loss of earning capacity by not establishing the position he would arrive at if he undertook rehabilitation, however I reject that submission. It is abundantly clear to me that the best position the plaintiff will ever arrive at is working for 15 to 20 hours per week after undertaking rehabilitation to return him to some better physical condition where he is able to sustain work.[34]
[34] Transcript 57-58
54 Mr Philbrick produced an extract of the wages which the plaintiff could earn in one of three occupations proposed as being suitable. Mr Smith did not disagree with the figures, but he disagreed with the conclusions which Mr Philbrick submitted emerged from an analysis of the plaintiff’s capacity for work when compared with what that would mean in terms of a weekly gross income.
Position Rate 15-20 hours per Full-time week
Weighbridge operator $920 per week $18,884 - $25,179 $47,840 Machine operator $826 per week $16,955 - $22,606 $42,952 Guardhouse attendant $22.39 per hour $17,464 - $23,286 $44,243 55 Mr Philbrick submitted that the gross income earned by the plaintiff for the financial year ending 30 June 2005 of $52,760 represented the most fair reflection of the plaintiff's earning capacity consistent with three years before and the three years after injury required as the basis of comparison in subsection (38) (f) of the Act.
56 A calculation of 60 per cent of $52,760 is $31,656 which is considerably more than what the plaintiff could earn in either of the three jobs which Mr Philbrick submitted the material tendered by the plaintiff and the defendant threw up as suitable employment for the plaintiff.
57 I accept the evidence of Dr Martiniello that the plaintiff will have real difficulty obtaining suitable employment, however, I am more impressed by the evidence of Dr Horsley because she is a specialist in occupational medicine and I thought gave very soundly based evidence relevant to the basis upon which the plaintiff could return to a capacity for employment after rehabilitation.
58 Therefore, I find that the plaintiff has a capacity for suitable employment of about 15 to 20 hours per week. On the basis of that finding, what he could earn in either of the three jobs is well below 60 per cent of the gross income which most fairly reflects his earning capacity.
59 In the circumstances, I consider that the loss of earning capacity consequences suffered by the plaintiff are permanent and are at the least very considerable after making the comparison which I am obliged to make as I have described it in my discussion of the statutory scheme.
Conclusion
60 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant on 16 January 2003.
61 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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