Crowe v Trevor Roller Shutter Services (No. 2)
[2011] VSC 28
•11 February 2011
ohj
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 09532 of 2009
| DUANE ALEX CROWE | Plaintiff |
| v | |
| TREVOR ROLLER SHUTTER SERVICES PTY LTD | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23-26 November 2010 | |
DATE OF JUDGMENT: | 11 February 2011 | |
CASE MAY BE CITED AS: | Crowe v Trevor Roller Shutter Services (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 28 | |
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ACCIDENT COMPENSATION – Workplace injury – Negligence – Breach of statutory duty – Assessment of damages – Pecuniary loss damages – Pain and suffering damages – Regulations 12, 13, 14 and 15 Occupational Health and Safety (Manual Handling) Regulations 1999 – Section 134AB Accident Compensation Act 1985.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T.J. Casey QC with Mr G. Coldwell | Alessi & Kemp |
| For the Defendant | Mr R.J. Stanley QC with Ms D. Galbally | Thomsons Lawyers |
HIS HONOUR:
Introduction
Mr Duane Crowe, the plaintiff, was employed by Trevor Roller Shutter Services Pty Ltd, the defendant, between 9 September 2002 and 21 February 2003. On Saturday 16 November 2002 and Saturday 11 January 2003, the plaintiff was performing overtime for the defendant. On each of these dates, he was required to lift and move a large number of metal springs. The springs, when compressed, were each of the order of 1.5 metres in length. Different evidence was given as to their respective weights. On one view, some weighed 25 kilograms and some weighed 45 kilograms. On another view, they were of varying weights between 10 and 50 kilograms.
In this proceeding, the plaintiff alleges that as a result of performing this work, he suffered a low back injury involving intervertebral disc prolapses at L5/S1 and L4/5. Further, he alleges that this injury was caused by the negligence of the defendant and/or breaches of regulations 12, 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999.
Whilst the defendant did not deny at trial that the plaintiff performed work lifting and moving metal springs on the two Saturdays I have identified, it denied that in requiring or permitting the plaintiff to perform this work, it was negligent or in breach of any statutory duty. Originally, it also contended that if there was any negligence or breach of statutory duty on its part, the plaintiff was guilty of contributory negligence. However, at trial, the allegation of contributory negligence was abandoned.
The plaintiff’s claim is governed by s 134AB of the Accident Compensation Act 1985. The plaintiff claims both pain and suffering damages and pecuniary loss damages within the meaning of s 134AB(37).
The history of the trial
The trial of this proceeding was originally listed as a jury trial. On 23 November 2010, I dispensed with the jury on the basis that the jury trial (estimated by the parties before trial to take eight to ten days) would take less than half that time as a cause and, in the absence of some compelling reason not to do so, the matter should proceed as a cause.[1]
[1]See Crowe v Trevor Roller Shutter Services Pty Ltd [2010] VSC 536.
During the course of the trial (which in fact occupied slightly less than 2½ days sitting time), the defendant obtained leave to appeal in relation to the order dispensing with the jury. However, the Court of Appeal directed that the trial should proceed to the conclusion of submissions, but that judgment should not be delivered until the resolution of the defendant’s appeal.
During the course of final addresses, I raised with counsel the question of at what time any assessment of damages should be made in this case. Ordinarily, I would have assessed any damages as at the week following the conclusion of the trial (that being when I would have delivered judgment but for the order of the Court of Appeal). In the result, the parties were content with that approach and this judgment was ready and available to be delivered on 2 December 2010.[2]
[2]T234.17 - .30.
The plaintiff’s background
The plaintiff was born on 11 May 1979 in Leeton, New South Wales. He attended Leeton High School to Year 12. However, he did not pass Year 12. He thinks he passed one subject, home economics. He described himself as not being academic, “but much into sport”.
The plaintiff was captain of sports at his school in 1995 and 1996. He was captain of the school football team in 1993, 1994 and 1995. He represented the State of New South Wales in junior football, and was a member of the team which won the National Schoolboys Carnival in 1995. He was a good middle distance runner and cross-country champion who represented New South Wales in athletics from 1993 to 1996. He was also a more than proficient boxer. He won the District Amateur Boxing title in his final year at school (1996). He went on to win the State title, fighting as a junior welterweight. He attended a training camp at the AIS in Canberra in 1997.
In early 2002, he and his wife Nicole and their first child Jaxson (who was then about two) moved to Melbourne for the purpose of the plaintiff pursuing a professional boxing career. He was accepted into the gym of Keith Ellis and commenced training six days a week. He gave evidence that before he was injured, he had four professional fights, winning three and knocking out the Victorian welterweight champion.
While the plaintiff was still at school, he engaged in part-time employment. He worked as a “gopher” for a plumber for approximately three years. When he left school, he commenced work as a concrete labourer for Sheldrick Concreting. He performed this work for a few years, before commencing employment at the Leeton Soldiers Club. He worked in hospitality at the Leeton Soldiers Club between April 1998 and February 1999, before commencing work as a process worker at Berri Limited. He also obtained work as an inspector for the New South Wales Department of Agriculture. He described himself as having a preference for outdoor work, “just hands-on work really”.
When he came to Melbourne, the plaintiff obtained work with a copper recycling company. He did not enjoy this work, and soon after (9 September 2002) he commenced employment with the defendant as a trainee repairman. A large part of the defendant’s business was the manufacturing and installation of roller doors. However, as well as the manufacturing side, the defendant also had a service department. The plaintiff worked in the service department as part of a team of two. The work involved repairing damaged slats, replacing motors or drive shafts, or just setting limits on doors. The plaintiff described his employment with the defendant as “a good job”.
The substance of the plaintiff’s evidence-in-chief was that he was in effectively continuous employment from before he left school until the time when he commenced with the defendant. However, in cross-examination he conceded that there were times when he was in and out of employment and in receipt of unemployment benefits. Whilst the evidence does not enable one to be precise as to the chronology of the plaintiff’s employment, I accept the evidence given by the plaintiff and his wife that the gaps in employment were “never that long” and that the plaintiff made sufficient money to get by in life.
The plaintiff met his wife (Nicole) when they were both students at Leeton High School. They married in August 2002. They have five children, born in February 2002, May 2003, March 2006, February 2008 and October 2009.
The overtime work on 16 November 2002 and 11 January 2003
On a date in November 2002, the defendant’s foreman, Stan, offered the plaintiff a Saturday overtime job. The job involved moving a load of springs which had been delivered to the factory. The plaintiff performed this work on 16 November 2002.
Originally, the springs had been unloaded onto the concrete driveway of the factory. They were brought inside by forklift. The springs were on pallets. The pallets were in front of stillages, and the plaintiff was required to put the springs into the stillages.
When asked how many pallets the plaintiff was required to work with on this day, he said he could not say the number. When asked how many there were approximately, he said, “It could have been 20, it could have been more, it could have been less”. When asked how many springs there were on each pallet, he said he was not sure, “There could be ten, there could be 20, there could be more …”.
When asked about the weight of the springs, the plaintiff said there were more than two sizes: the lightest would have been ten or 15 kilograms, and the heaviest around 50 kilograms. Each spring, when standing upright, was of the order of 1.5 metres in length. When picked up from the back, the front of the spring would drop. The plaintiff described the lighter springs as “springy” and the heavier ones as being “tighter”.
On 16 November, the plaintiff started this work at 9.00am. He described the movements he made performing this work as follows:
“Well first because they were all sort of stacked up in front of the stillages I tried to place my feet as best as I could, and bend down, always bending with my legs, and – yeah, at the start of it you could pull the bin and start the stillage until it got up a bit, and then once the springs got up to a certain height I placed my hand on the front of the spring after I’d picked it up. I’d pull it in as much as I could and then I’d get underneath it and push it in.”
When asked how easy it was to get access to the springs to lift them, the plaintiff said:
“Yeah, there was no room, it was pretty much as close to the stillage as possible, and you (sic) had to get my feet in around them. It was – yeah, there was no proper way, not that I could find to do it anyway.”
The plaintiff gave evidence that he was not offered any assistance to do the work. There was an overhead crane, but this was not offered to him. Further, there were other men in the factory – but none of them assisted. The plaintiff described himself as working “flat out pretty much” until two o’clock. In the five hour period he performed this work, he said he had one ten or 15 minute break. He was asked and answered the following questions:
“What level of exertion were you using to do this work?---I was – they were going in there quick. I put away a lot of springs, put it that way. Put it this way, the average person wouldn’t put them away.
Did you find it heavy work?---Yes toward the end of the day.
You were hot?---Yes, the lighter ones – yeah they were going in there quick. They weren’t too hard but towards the end of the day after the body took a bit, it was a struggle at times.
Did you feel any sensation in your body as you were doing the work, particularly towards the end?---Yes at time to time towards the end I could feel strains, but yes, being hot I sort of just kept going really and finish what I had to finish and yeah got on with it really.”[3]
[3]T63.14 - .27.
The plaintiff described himself as being exhausted when he finished the work, saying, “I knew I had a good day’s work, that’s for sure”. He said he pulled up tired with his low back being affected. He described a niggle for which he sought treatment from a masseur. However, ultimately he went back to his normal job on the following Monday – although the described himself as “favouring [his] body a little bit”.
Over Christmas 2002, the plaintiff went home to Leeton. He described his back as feeling a little bit sore after five or six hours in the car. He said, “I knew I had an injury but yeah, strong minded, confident, I just – I didn’t know it was as bad as it was”.[4]
[4]T66.8 - .10.
Subsequently, on a date in January 2003, the plaintiff was again asked to perform overtime, doing the same sort of work shifting springs from wooden pallets into stillages.
The plaintiff performed this work on 11 January 2003. Again, he started at 9.00am. He said there were more or less about the same number of pallets as there were on the first occasion; and that the springs were about the same dimensions and weights (i.e. between 10 kilograms and 50 kilograms).
Whilst the plaintiff described the weights of the springs on each occasion as being between 10 and 50 kilograms, the defendant’s answer to interrogatory 16[5] relating to the work performed on 11 January 2003 was:
“I believe the springs varied in weight from approximately 25 to 45 kilograms. I believe the plaintiff would have stacked approximately 400 springs [on 11 January]”.
[5]Exhibit B.
Like the first occasion, no assistance was provided and the plaintiff worked for five or six hours with just the one ten or 15 minute break.
As to discomfort, the plaintiff said that he felt discomfort whilst doing the work on 11 January. He said he had a minor niggle and ache from the first occasion, but this time “it was sharp”. When asked what was sharp and what part of his body was affected, he said, “The lower back, like that’s where it was more digging into me, especially towards the end of the day, lifting the springs, pulling them”.
When asked why he continued to do the work, he said, “To finish it, to get it done, to get them out of the road so I could get home”.
Events following 11 January 2003
The plaintiff went home. He had pain in his low back and down his right leg. The pain radiated into his calf muscle. Whilst he continued to have symptoms, nevertheless he went back to work on the following Monday and worked the whole of that week. He said, “I just didn’t want to take a day off”. He was not able to continue with his boxing training regime. He said, “I very rarely trained after the first incident”.
He went to see a chiropractor, Dr Rossborough, on 16 January 2003, and commenced treatment with him.
In February 2003, the plaintiff and his family moved to Wodonga. The plan was that the plaintiff would play football for Wodonga. Shortly after moving to Wodonga, the plaintiff consulted Dr Tan at the Wodonga West Medical Clinic. The plaintiff’s first attendance was on 28 February 2003. He attended because, as he described it, “I was struggling in my normal day-to-day stuff and he gave me these mild anti-inflammatories and painkillers and just told me to get on with my everyday stuff”.
The plaintiff obtained employment with Countrywide Pool and Spas on 3 March 2003. The work involved laying pipes, dropping off dirt and sitting in a truck. The plaintiff said it got to a point where he could not do this work any longer. This employment ceased on 13 March 2003.
The plaintiff went back to Dr Tan. Dr Tan increased his painkillers and changed his anti-inflammatories. An X-ray was ordered and the plaintiff was referred to an orthopaedic surgeon, Mr Hillier.
After leaving Countrywide Pool and Spas, the plaintiff signed on with a hire firm, Catalyst Recruitment. Catalyst Recruitment obtained a job for the plaintiff with Wilson Transformers. The plaintiff commenced with Wilson Transformers on 31 March. This work involved fitting components into machinery. The plaintiff described this work as, “Not too bad”. However, this employment was terminated when the employer noticed the plaintiff displaying discomfort. According to the plaintiff, the employer said he did not want to take a risk with him. This employment was terminated on 2 May 2003.
On 29 April 2003, the plaintiff first saw Mr Hillier. Upon examination, Mr Hillier’s clinical impression was that the plaintiff had sustained an L5/S1 disc prolapse, producing right S1 neural compromise. Mr Hillier recommended an MRI. An MRI was performed showing a large L5/S1 right-sided disc prolapse which matched the plaintiff’s clinical symptoms. Mr Hillier advised the plaintiff to stop playing football and that the prolapse should be managed with a disc sequestrectomy. The plaintiff agreed, and this surgery was performed on 20 June 2003. The plaintiff gave evidence that whilst in hospital, a complication occurred requiring him to be admitted to the intensive care unit. Eventually, he recovered from that complication and was discharged home to convalesce.
The plaintiff’s problems persisted. The plaintiff gave evidence that the surgery was not as successful as it had been made out to be.
The plaintiff continued to attend Dr Tan from time to time. On 24 September 2003, Dr Tan referred the plaintiff to Mr Diwan, an orthopaedic surgeon in Sydney. Dr Diwan discussed further surgical options with the plaintiff. The plaintiff did not take up these options.
On 1 March 2004, the plaintiff underwent CT discography. The plaintiff described this procedure as “severely painful”. The procedure involved the insertion of needles into the discs of the plaintiff’s lower back, with the aim of seeing whether the plaintiff’s back and leg pain was reproduced. The pain was reproduced at L5/S1, and the conclusion of the discogram was that the plaintiff had evidence of discogenic pain at that level.
The plaintiff had further discussions with Mr Hillier concerning the options of surgery and conservative management. The plaintiff opted for conservative management. The conservative management undertaken has included physiotherapy, acupuncture, massage, the use of a TENS machine, painkillers, anti-depressants, anti-inflammatories, injections in the back, exercise and Pilates.
In 2006, the plaintiff enrolled in a TAFE course – Certificate 3 in Youth Work. The plaintiff was interested in helping troubled young kids, having had what he (and his wife) described as a somewhat deprived background. However, the plaintiff did not complete the course: first, he found it physically demanding; and secondly, he was not suited to what he described as “the legality” part of the course.
On 21 May 2007, the plaintiff obtained casual employment as a barman at the Jindera Hotel. Initially, he was working from 10.00am to 2.00pm, two or three days a week. Trade was slow, and the plaintiff was able to cope. However, the plaintiff’s hours were changed to the 5.00pm to closing shift and his work became busier. He required more medication to cope. The plaintiff spoke to his boss about changing back to the day shifts. This was not possible, and ultimately the plaintiff ceased work on 14 January 2008. At the time he ceased work, the plaintiff said that he was physically unable to continue with the job.
In April 2008, the plaintiff was assessed by a pain management team at the Wodonga Regional Health Service. He was then accepted into their inpatient programme, which he attended between 16 November and 5 December 2008.
Since that time, the plaintiff has not been in employment. He is registered with an employment agency, Hume Employment. However, they have not offered him any employment – and he has been unable to find a suitable job.
The only other income earning activity that needs to be referred to at this stage, is the dog breeding enterprise that has been run by the plaintiff and his wife since approximately 2006. The plaintiff described this enterprise as a hobby – having had advice from his accountant to that effect (i.e., a hobby not requiring any money received to be declared to the Commissioner for Taxation). On the other hand, it was put by the defendant that this enterprise was, in truth, a business. Further, it was put by the defendant that, at the very least, the earning of income from the dog breeding business should have been declared to the Department of Social Security – having regard to the plaintiff’s receipt of Commonwealth benefits.
The plaintiff’s medical evidence
The plaintiff did not call any medical witnesses to give viva voce evidence. Instead, the plaintiff tendered the following reports:
(a)Dr Ian Rossborough (chiropractor), 4 February 2004;
(b)Dr Xiong Tan (general practitioner), 24 September 2003 and 9 February 2004;
(c)Mr Ashish Diwan (orthopaedic surgeon), 19 February 2004;
(d)Mr Terence Hillier (orthopaedic surgeon), 12 February 2004, 9 November 2006, 17 November 2006 and 26 November 2010;[6]
(e)Dr Robert Szabo (general practitioner), 15 December 2006 and 28 May 2009;
(f)Dr Esther Langenegger (programme manager of Wodonga Regional Health Services Pain Management Programme), 21 April 2008 and 5 December 2008;
(g)Dr Robyn Horsley (occupational physician), 26 July 2004, 27 May 2009, 25 August 2010 and 22 September 2010;
(h)Mr Kevin King (orthopaedic surgeon), 20 July 2004, 1 May 2009 and 3 September 2010; and
(i)Mr Geoffrey Klug (neurosurgeon), 20 April 2009, 9 August 2010 and 23 November 2010.
[6]This report was produced after the commencement of the trial in response to a letter from the plaintiff’s solicitors raising a number of questions about the medical evidence.
In addition, the plaintiff tendered reports of MRI scans dated 19 May 2003 and 25 June 2010, and a report of the CT discography, to which I have already referred.
In his report, Dr Rossborough stated that the plaintiff first presented to him on 16 January 2003 complaining of acute right sacroiliac joint pain. Dr Rossborough records that: “This injury followed a lifting incident that allegedly occurred as a result of lifting heavy springs, (50-60 kilograms), during the performance of his normal work duties for a roller door company”. Dr Rossborough’s report then details the treatment he provided until the plaintiff left Melbourne in February 2003.
There is an issue between the parties as to whether the plaintiff gave the work injury history set out above to Dr Rossborough in either January or February 2003. The defendant tendered two pages of Dr Rossborough’s records.[7] These records set out details of the consultations that occurred in January and February 2003. In them, there is no reference to the circumstances in which the plaintiff suffered injury. I will say more about this below.
[7]Exhibit 7.
Dr Tan’s reports detail the history of the plaintiff’s attendances upon him, the referrals to Mr Hillier and Mr Diwan, the surgery that I have already referred to and the plaintiff’s progress until late January 2004.
Mr Diwan’s report details the physical examination he conducted of the plaintiff after his surgery. The report states: “Physical examination reveals a pleasant gentleman who is in obvious agony”. The diagnosis at that time was recorded simply as “status post decompression (possibly L4/5)”.
Mr Hillier’s reports reveal that he first saw the plaintiff on 29 April 2003. The history is recorded as one of the plaintiff being troubled with lumbar pain since December 2002. The plaintiff said: “that he had been untroubled prior to that and he did not give, at my assessment, any specific injury either at work or in his boxing activities”. Mr Hillier’s clinical impression was that the plaintiff had sustained an L5/S1 disc prolapse producing right S1 neural compromise. MRI was recommended and ultimately the plaintiff came to the surgery I have already referred to. Mr Hillier thought that the plaintiff had good potential to recover from the effects of the disc prolapse following surgery. However, on review in August 2006, it was thought that facet injections might be tried to relieve the pain the plaintiff was then suffering from. As at November 2006, Mr Hillier did not see the plaintiff as being totally incapacitated for work. However, Mr Hillier thought that the plaintiff would certainly need to look at controlled work duties for which retraining might be necessary.
In his report of 12 February 2004, Mr Hillier stated:
“As mentioned earlier in my comments, I was also concerned to note that the L5/S1 disc showed features of longstanding internal disruption with an altered disc signal and signs of instability between L5 and S1.”
In his final report, Mr Hillier clarified this aspect of his earlier report in the following terms:
“My use of the word longstanding was simply to acknowledge that disc laxity does develop over time, unless there is an incident of recent and very severe trauma, and that was not suggested in Mr Crowe’s case. The radiological features of desiccation and flattening of that disc, plus retrolisthesis, indicated that this laxity had developed over quite some time, at least months, if not, several years.”
Again, I will deal with this aspect of Mr Hillier’s evidence below. It is sufficient at this stage to say that the defendant took this evidence to mean that the plaintiff had pre-existing degenerative changes at L5/S1 (even if they were asymptomatic at the time the plaintiff performed the relevant work for the defendant) – whereas the plaintiff sought to make a case that the work in respect of which he makes complaint gave rise to “very severe trauma” as contemplated by Mr Hillier (and was thus causative of what Mr Hillier described as “longstanding internal disruption”).
Dr Szabo’s reports detail the plaintiff’s consultations with him between June 2006 and May 2009. As at May 2009, Dr Szabo expressed the opinion:
“I believe Mr Crowe is permanently unable to return to physical manual work as a result of his back pain. He is likely to continue to experience symptoms of pain ongoingly, with intermittent flare-ups. There may, however, be scope for him to find employment in a non-manual role in the future, were he to gain sufficient skills in a particular area.”
The reports of Dr Langenegger detail the assessment of the plaintiff for the purposes of participating in the Wodonga Regional Health Services Pain Management Programme and the plaintiff’s participation in that programme between 16 November and 5 December 2008. The substance of the assessment was that it was in the plaintiff’s best interests to participate in a pain management programme as soon as possible. The report of the plaintiff’s participation in the programme identifies what are described as “some positive gains” that the plaintiff made as a result of the programme. Suffice it to say that the plaintiff continued to have levels of pain after this programme.
Dr Horsley wrote four reports. In her first report, she described the plaintiff’s diagnosis as follows:
“Mr Crowe has sustained a significant injury to his lumbar spine resulting in a discal lesion at L5/S1 which required sequestrectomy. He has developed secondary depression. He has peripheral radicular features.”
Dr Horsley expressed the opinion that, given the length of time since the injury and the ongoing nature of the plaintiff’s symptoms, she believed that the symptoms were likely to persist. As to causation, she expressed the opinion:
“I believe the events as described on 11 January 2003, lifting 400 springs of up to 50-70 kilograms over a period of six hours with a 15 minute break, in addition to an environment where the ergonomics of his manual handling technique were less than ideal, with no overhead crane available, has been the significant contributing factor.”
As to the plaintiff’s capacity to work, Dr Horsley stated:
“I believe that Mr Crowe is currently unfit for his previous job role as a roller door service person because of the critical physical demands of such a job role.
I believe that he is also unfit for his previous role as a concreter which involved labouring. I am uncertain of the critical physical demands of his job role as a process worker at Berri. I understand that there was a manual component.”
In her report of 27 May 2009, Dr Horsley expressed the opinion again that the plaintiff’s symptoms were likely to persist. However, she said it would be in his best interests to return to work. She then identified the following work restrictions:
–avoidance of repetitive overreaching;
-avoidance of repetitive pushing and pulling;
-avoidance of lifting items greater than 12-15 kilograms on a permanent basis;
-avoidance of lifting items up to 10-12 kilograms on a repetitive basis;
-good manual handling technique, even when lifting light items;
-avoidance of sitting for periods up to an hour without changing posture;
-avoidance of standing for up to one hour without changing posture;
-avoidance of walking for up to an hour without taking a rest break;
-avoidance of driving for up to one to one and a half hours without getting out and having a walk around;
-avoidance of repetitive stair climbing;
-avoidance of ladder climbing;
-avoidance of repetitive bending and lifting;
-avoidance of truncal rotation.
With these restrictions, Dr Horsley thought the plaintiff had a partial capacity for work on dayshift. Specifically, Dr Horsley stated:
“Mr Crowe is permanently unfit for his previous roles, as already stated. He has a partial capacity for work; probably up to 20 hours per week within the restrictions as outlined above.”
However, later in the same report, Dr Horsley expressed the opinion that the plaintiff’s prognosis for return to work was guarded. Opinions consistent with those I have just set out were expressed in Dr Horsley’s subsequent reports.
Mr King first saw the plaintiff in July 2004. He took a history of the November 2002 and January 2003 work that is largely consistent with the evidence given by the plaintiff.[8] In his first report, Mr King expressed the following opinion:
“There seems to be no doubt from his clear history, subsequently clinical, radiological and operative findings and my present findings today, that he did sustain an acute injury to one or more of his lumbar discs and associated ligamentous structures on 14-11-02 with, on 11-01-03, a further injury which apparently caused a rupture of the annulus of the L5-S1 disc with a classical right sided disc prolapse at this level with S1 nerve root involvement.
Following lumbar discectomy, although obviously well indicated and well performed, the results have been rather disappointing as happens in about 20% of lumbar discectomies even for classical disc prolapses. Presumably due to persisting and post-traumatic scarring and developing post-operative scarring around the S1 nerve root and involving the L5-S1 level, he has been left with some chronic back pain and persistent right buttock and thigh pain, of moderate severity, and he seems to have stabilised at this level.”
[8]Although the history records the November work as having been performed on 14 November 2002, rather than 16 November 2002.
As to the possibility of future surgery, Mr King said:
“It is possible that if the lower back pain persists and becomes increasingly severe there may be some indication for lumbosacral fusion at some time in the next 1-2 years in view of the localised changes in the L5-S1 shown on MRI scanning. On the other hand, this operation is notoriously unpredictable in its effects and I think his refusal to have a lumbosacral fusion is a very reasonable decision on his part.”
In his second report (May 2009), Mr King expressed the opinion:
“He is permanently unfit to do heavy unskilled manual labouring work in the foreseeable future and as he has no other clerical or other specialised skills this means that he is basically unfit for any sort of manual work in the foreseeable future. He did struggle on for a while doing part-time bar work but this became too much for him.
…
In his present state, due to organic injuries to his lumbar spine, he is chronically and severely disabled and unfit for work.”
In his final report, Mr King said that his clinical opinion remained basically unchanged from the ones he had expressed in his earlier reports.
Mr Klug took a history of the work the plaintiff said he performed in November 2002 and January 2003. Mr Klug then expressed the following opinion:
“After considering the information in the various documents and my own assessment I believe this person did sustain a significant low back injury. He suffered an injury to the L5/S1 intervertebral disc leading to a disc prolapse which in turn was responsible for back pain, sciatica and some disturbance of neurologic function in the affected lower limb.
It is most likely that he suffered an initial injury in late 2002. As a result of his employment a very substantial aggravation occurred on 11/01/03 leading to substantial worsening of his condition, ultimately leading to the need for a surgical procedure.
It appears that despite a variety of treatments his condition has failed to resolve. It is unclear why he has persisting pain of the alleged severity but it is well recognised that even after a correctly performed surgical procedure back pain, with some referral of pain to a lower limb may persist.
Based on my assessment I do not believe he could undertake physical activities which would place undue strain on his low back. On the other hand I do believe that his condition is such that he could undertake alternate types of employment that would not place undue strain on his back. I believe that he could undertake some limited physical activities such as working at bench top height with flexibility in the work place. He could also undertake some sedentary type activities but would require some retraining to undertake such an occupation.
You have asked me whether or not he could return to professional boxing. I feel this would be inappropriate. In my opinion it is likely that resumption of such an activity would lead to some worsening of his already existing back condition.
His prognosis appeared to be guarded. I feel it is more likely than not that his current symptoms will persist with some waxing and waning. There is always the potential that there could be some improvement but I feel that complete resolution is an unlikely scenario.
It does appear that he has become somewhat depressed following the injury and the failure of such to resolve following extensive forms of treatment, including an operative procedure. I feel it is likely that functional factors are playing some role in his current presentation but that basically the main cause for concern is the physical injury involving his spine.[9] He was clearly a very active person before suffering this injury and I am sure that his inability to cope with activities aside from his work, as he did in the past, remains a cause of considerable concern and frustration to him.”
[9]In final addresses, Senior Counsel for the defendant did not appear to dispute this opinion: see T239.13.
In his report of 9 August 2010, Mr Klug’s opinion was not materially altered. However, he went on to say:
“Overall in view of his [the plaintiff’s] background and training it may be difficult to find a suitable type of employment for [him].”
In his final report, Mr Klug noted that there was evidence of degenerative change at L5/S1. He went on to say:
“I did read the report compiled by Mr Kevin King. I note that in general there would appear to be agreement between his and my assessment of this person. Possibly there may be some slight difference of opinion in regard to this person’s work capacity but any difference would only appear to be at the most of a minor degree.”
Whilst the pre-surgery MRI revealed a right posterolateral disc herniation at L5/S1 “almost certainly compressing the descending S1 nerve root on this side”, the latest MRI (25 June 2010) was reported as:
“Impression – mild degenerative disc disease at L5/S1. No recurrent disc protrusion, central canal or foraminal compromise.”
The defendant’s medical evidence
Like the plaintiff, the defendant did not call any witnesses to give viva voce evidence. Instead, it tendered:
(a)the clinical notes of Dr Tan;
(b)a report from Dr Simon Kennedy (psychologist), 23 December 2003;
(c)reports from Mr Russell Miller (orthopaedic surgeon), 28 July 2004 and 5 August 2004;
(d)a report from Dr Barrie Kenny (psychiatrist), 14 September 2005;
(e)reports from Mr Steven Leitl (orthopaedic surgeon), 28 July 2006 and 1 April 2009; and
(f)a report from Mr Michael Dooley (orthopaedic surgeon), 6 July 2010.
Whilst the defendant admitted having the plaintiff medically examined on five other occasions between December 2003 and August 2006 (the examinations were conducted by orthopaedic surgeons, a general surgeon, an occupational physician and a psychiatrist), none of these specialists were called to give evidence, and their reports were not put into evidence.
The records of Dr Tan tendered by the defendant amplify the details of the plaintiff’s attendances on Dr Tan and Dr Tan’s treatment. Of specific note, is the reference in the records to Dr Tan’s letter to Mr Hillier, in which Dr Tan stated that the plaintiff could not “record any history of injury”.
The reports from Dr Kennedy and Dr Kenny are of limited use in this proceeding. The plaintiff did not call any evidence from a psychiatrist or a psychologist. The plaintiff’s case is that he has a serious organic physical injury. In final address, Senior Counsel for the defendant essentially accepted the opinion of Mr Klug that functional factors are playing some role in the plaintiff’s presentation “but that basically the main cause for concern is the physical injury involving his spine”.[10] In the circumstances, the opinion of a psychologist (Dr Kennedy) that the plaintiff was not suffering from a psychological disorder as at December 2003 is not of great assistance. Similarly, the opinion of a psychiatrist (Dr Kenny) that in September 2005 he thought the plaintiff might have had an adjustment disorder earlier on, but that he does not have a psychiatric condition can only be of limited assistance in the resolution of this proceeding.
[10]T239.8 - .17.
In his first report (28 July 2004), Mr Miller expressed the opinion:
“Mr Crowe has suffered a disc injury at the L5/S1 level and has had surgery for this with only moderate response. He has significant ongoing symptoms and the prognosis is only fair.”
In the same report, Mr Miller stated that the plaintiff would have a diminished work capacity and would have difficulty with work that involved repetitive bending, repetitive lifting and lifting of weights more than ten kilograms. He also said that the plaintiff would have a requirement to shift his posture on a regular basis. Mr Miller said that he believed these work restrictions would be permanent and work-related.
In his subsequent report, Mr Miller stated:
“I believe that there is a likelihood that Mr Crowe had pre-existing degenerative disease in the L5/S1 disc. I believe on the basis of the history given including the fact that he reported no prior back problems, that that injury was aggravated by the work event … . I believe on that basis his employment has materially contributed to his condition.”
Mr Steven Leitl examined the plaintiff for the defendant in July 2006 and March 2009. Following his second examination, Mr Leitl set out the plaintiff’s diagnosis as follows:
“L4/5 and L5/1 disc injuries and aggravation of lumbar degenerative condition.”
In answer to specific questions, Mr Leitl stated:
“There was a back strain in November 2008 (sic 2002) with the same employer but the major injury occurred on 11 January 2003 when back pain increased and he developed right sciatic symptoms.
MRI demonstrated a right L4/5 disc prolapse [query L5/S1] which was treated surgically.
Sciatica was relieved but back pain has continued to the present time.
…
The diagnosis of his current condition is that he has back pain due to aggravation of the lumbar degenerative condition.
…
There was aggravation of pre-existing L4/5 and L5/S1 disc degeneration. In my view, given the continuity of symptoms since onset and the age of onset that aggravation has not ceased.”
Mr Dooley examined the plaintiff for the defendant in June 2010. In his report, Mr Dooley expressed the following opinion:
“Mr Crowe suffers from naturally occurring degenerative disc disease of the lumbar spine affecting mainly the L4/5 and L5/S1 levels. He describes the onset of low back pain and right sided sciatica after lifting and manoeuvring metal springs. I believe that in this episode he sustained a right sided lumbo-sacral disc prolapse on the background of his degenerative disease. Because of persisting sciatic pain he underwent a right sided lumbo-sacral discectomy. This procedure did improve his sciatic pain, but Mr Crowe has complained of ongoing low back pain. He was advised that this related to his degenerative disc disease at the lumbo-sacral level and that he should consider either a fusion or a disc replacement procedure. He is reluctant to consider such surgery. A disc prolapse necessarily involves some aggravation of the underlying degenerative disc disease. Even following what one might term technically successful surgery, patients will still note ongoing intermittent low back pain and some lower limb pain. While one would expect ongoing pain as outlined above, on balance I believe that the constancy and intensity of Mr Crowe’s ongoing pain are greater than one would expect to see for the injury sustained. He has had an understandable psychological reaction to his injury and/or pain. Prior to his injury, he was a very active sportsman and participated in elite boxing. The majority of people who have performed sport or leisure activities at an elite level and who can no longer do so after injury, suffer some form of grief or depressive reaction. It would be my opinion, that to a degree this is accounting for Mr Crowe’s ongoing symptoms. From an orthopaedic viewpoint, he would be capable of engaging in low impact activities. Regular exercise would be of benefit to him. For his overall well being, I believe that Mr Crowe would benefit from a return to appropriate, productive and satisfying work.”
In answer to specific questions raised by the defendant, Mr Dooley said:
“From an orthopaedic viewpoint alone, Mr Crowe would be capable of carrying out the duties required of a welfare and community worker, youth and disability worker and sales representative. He would need to avoid work that involved regular heavy physical activity or regular bending and lifting. He would need to avoid work that would potentially place him in a physical conflict with disabled or unstable clients et cetera.
Mr Crowe has not worked for around seven years. When he does return to work, it would need to be on a graduated capacity and it is too early to say as to whether or not Mr Crowe could ultimately return to full-time work.”
The plaintiff and his wife as witnesses
The plaintiff and his wife were the only witnesses to give viva voce evidence. Both of them gave their evidence in a straightforward fashion. To my observation, each of them attempted to give an honest and accurate account of events as recollected by them. When Mr King first examined the plaintiff, he found the plaintiff to be “a rather slow, halting but nonetheless clear, earnest and straightforward historian”. I formed a similar view when watching the plaintiff give evidence-in-chief and when watching him during cross-examination.
Both the plaintiff and his wife were tested in some detail during cross-examination. Specifically, they were both cross-examined concerning their failure to declare income received from their dog breeding/selling enterprise and their failure to report this income to Centrelink during periods when they were receiving Centrelink benefits.
Their explanation for not declaring income to the Deputy Commissioner of Taxation in relation to the dog enterprise was advice given to them by their accountant that they were not earning income, but rather, engaging in a hobby. Whilst the correctness of this advice might be debated, neither the plaintiff nor his wife were substantially challenged on the question of whether this advice was actually given. Having considered the matter, I have no reason to disbelieve the plaintiff or his wife on this issue.
Of slightly more concern is what appears to be a failure to report to Centrelink the income received from the dog enterprise. However, the lack of precise details of the income earned, the benefits received, the terms upon which any relevant Centrelink benefits were payable and the specific obligations imposed upon the relevant recipient of Centrelink benefits, prevents me from making any finding adverse to the plaintiff or his wife on this issue. In the end, I formed the view that it was more appropriate to consider the veracity and reliability of the evidence of the plaintiff and his wife by reference to the inherent probabilities of what they said when examined against their respective backgrounds, levels of education, insight, understanding and motives.
Liability
Senior Counsel for the defendant commenced his final address in the following terms:
“Your Honour, there are several matters that we say give this case a strange element. The first one is why didn’t the plaintiff, if he had really injured himself as he claims, make a complaint to the employer? Why didn't he bring a claim? His explanations, we submit, are totally without any real basis. The fact is he had not long before - within a year or two before - had a workers compensation claim so he was aware of the system and yet, he chose not to pursue it, notwithstanding the fact that he says he was in financial difficulties and yet he was expending money himself, both on medication and a TENS machine, albeit that his hospitalisation and operation was paid by his health fund. Nevertheless, it is in the ordinary experience of mankind in this society, when one is injured at work and if one knows one has been injured at work and one knows one is suffering expenses and one knows that there is a system that provides for compensation, why that’s not availed of.
That, in a sense, throws attention on the question of just what really did happen to the plaintiff; what really did cause his injury? It must be conceded on behalf of the defendant that the injuries, so far as this court is concerned, have only been ascribed one cause. We can’t point to any other cause and we don’t.”[11]
[11]T230.28 – 231.21.
This opening reflected the fact that the plaintiff was not significantly challenged concerning his description of the work he alleges he performed on 16 November 2002 and 11 January 2003. Indeed, the plaintiff’s description of the work on 11 January 2003 was, to a large extent, in accordance with the defendant’s answer to interrogatory 16[12] so far as the weights and number of springs were concerned. In any event, I accept that the work the plaintiff performed on 16 November 2002 and 11 January 2003 was performed as described by him.
[12]Exhibit B.
The question then becomes whether the plaintiff was injured as a result of performing the impugned work. The plaintiff described the development of symptoms on the days he performed the relevant work. The plaintiff’s wife gave evidence of how he complained of hurting his back following performing overtime work on a Saturday in November 2002. She also gave evidence of complaints over the next few weeks that his back was still troubling him.[13]
[13]T166.25 – 167.14.
Further, Mrs Crowe gave evidence of what she remembered occurring when the plaintiff came home after doing another Saturday of overtime in January 2003. She said she actually asked him why he did the work, because she knew he had a sore back. She gave evidence that the plaintiff asked her to put a cold pack or ice on it. Further, she said that that night he was complaining of pain across the top of his back and into his buttocks (on the right side) and his right leg as well.[14]
[14]T167.31 – 168.13.
In addition to the plaintiff’s failure to make an initial WorkCover claim, the defendant also relied upon the failure by the plaintiff to ascribe his injuries to the overtime work, as justifying a conclusion that the plaintiff had not established that the impugned work was a cause of any injury to him. There is no doubt that the histories recorded in a number of the medical reports are less than ideal so far as the plaintiff is concerned in relation to this issue. It is, at least, curious that the plaintiff could not tell Dr Tan what led to his back pain – although I note the plaintiff’s explanation that he found Dr Tan difficult to communicate with (there was a possible language barrier).[15]
[15]T119.18 - .19.
Against the defendant’s submission that the failure by the plaintiff to tell his doctors that work was a cause of injury should result in the plaintiff failing to establish that fact, is the history recorded in Dr Rossborough’s chiropractic report. The report records the plaintiff’s first presentation on 16 January 2003 in respect of an injury “follow[ing] a lifting incident that allegedly occurred as a result of lifting heavy springs … during the performance of … work … for a roller door company”. Senior Counsel for the defendant submitted that this statement was of limited (if any) evidentiary value. He pointed to the lack of this history in Dr Rossborough’s clinical records, and noted that the report was written approximately 12 months after the plaintiff was treated by Dr Rossborough. However, having considered these submissions, I see no reason to conclude otherwise than that the history recorded in the report was the history given by the plaintiff on or about 16 January 2003.
There is some force in the defendant’s submission concerning the plaintiff’s failure to make an initial WorkCover claim and failure to give a clear and consistent history to medical practitioners linking his overtime work to his back symptoms. However, I am satisfied that when one examines the whole of the evidence (including that of the plaintiff and his wife), the probabilities are that the plaintiff was injured as he described in his evidence. In these circumstances, it is unnecessary to consider further the plaintiff’s explanation that he thought (or was hopeful) that his symptoms would resolve in the short-term (although, this evidence, which I accept, obviously goes some way to answering the defendant’s submissions).
For the sake of completeness, I should say that I have not overlooked the plaintiff’s letter of 5 February 2003, headed “Payroll Department”.[16] The letter provided:
“I regret to inform you that on the 21-2-03 will (sic) be my last day with Trevor Roller Shutters.
I thank you for the good opportunity that has been given to me. And the experience has been great.
Thank you to all staff at Trevor’s.
(Signed).”
[16]Exhibit 1.
The plaintiff was cross-examined about this letter. He was asked and answered the following questions:
“If you were going up north because of your back and your back was so bad why didn't you retire on 5 February rather than telling them you were going to be retiring on the 21st? --- Because I did the right thing and gave them two weeks to fill my position.
Why didn’t you tell them that it was because of your back?---Because I just didn't want to do that.
You thought it was better for them to think that you were just leaving them in the lurch for no good reason?---No. Well, Mick knew of the situation and I didn’t think the problem was as severe as what it was. I was told to go on WorkCover at the time by the person who was treating me but, yeah, I just thought that the problem wasn’t that bad.”
I accept this evidence. It accords with my impression that the plaintiff is a somewhat unsophisticated person who generally attempts to make the best of things.
In the result, for the reasons given above, I accept that the plaintiff was required or permitted to perform work on 16 November 2002 and 11 January 2003 as described by him, and that as a result of this, he suffered injury to his back. The next issue is whether, in so requiring or permitting the plaintiff to perform this work, the defendant was negligent or in breach of one or some of regulations 12, 13, 14 or 15 of the Occupational Health & Safety (Manual Handling) Regulations 1999. In this regard, Senior Counsel for the defendant said in his final address:
“I don’t propose to make any submissions to Your Honour at all with respect to liability.”[17]
I took this to mean that if I found that the plaintiff was injured as a result of performing the work he described, then the defendant did not contest liability any further. However, in the event that I have misunderstood the defendant’s position, what follows are my reasons for concluding that the defendant was in fact negligent.
[17]T234.15 - .16.
The duty of care owed by an employer to an employee was recently described by the High Court in Czatyrko v Edith Cowan University.[18] The Court said:[19]
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[20]
[18](2005) 79 ALJR 839.
[19]Ibid at 842 [12].
[20]Footnotes omitted.
In McLean v Tedman,[21] Mason, Wilson, Brennan and Dawson JJ said:[22]
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th edition (1983), pp 480-481 and in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
[21](1984) 155 CLR 306.
[22]Ibid at 313.
More generally, Mason J said in Wyong Shire Council v Shirt:[23]
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
[23](1980) 146 CLR 40, 47-48.
Whilst the issue of contributory negligence was not a live one at trial, there was some cross-examination of the plaintiff which appeared to be designed to show that the plaintiff could have asked for assistance or did not need to work with the speed with which he worked. In my view, any such suggestion fails to give sufficient regard to the employer’s obligation to, not only establish and maintain a safe system of work, but also to enforce such a system.[24]
[24]McLean v Tedman (1984) 155 CLR 306, 313.
Whether the springs were of varying weights between 10 kilograms and 50 kilograms or of two different weights (25 kilograms and 45 kilograms), the plaintiff should not have been permitted to lift large numbers of them over hours without assistance. A reasonable employer in the position of the defendant would have discharged the duty of care it owed the plaintiff by providing him with appropriate manual or mechanical assistance. In not providing this assistance, or in not taking some appropriate step to alleviate the obvious risk of injury to the back that was posed by the work the plaintiff undertook on 16 November 2002 and 11 January 2003, the defendant breached the duty of care it owed the plaintiff as its employee.
For like reasons, the plaintiff’s injury was caused by breaches by the defendant of at least regulation 15 of the Occupational Health & Safety (Manual Handling) Regulations 1999. Regulation 15(1) provides:
“An employer must ensure that any risk of a musculoskeletal disorder affecting an employee occurring –
(a) is eliminated; or
(b) if it is not practicable to eliminate the risk, is reduced so far as is practicable.”
In this case, the impugned work posed a risk of a musculoskeletal disorder within the meaning of regulation 15; and the defendant did not ensure that the risk was eliminated, or reduced so far as was practicable.[25] The expression “musculoskeletal disorder” is defined in regulation 5 to mean “an injury, illness or disease that arises in whole or in part from manual handling[26] in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease which is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant”. Whilst the word “risk” is defined in the regulations to mean “the likelihood of an injury, illness or disease occurring due to exposure to a hazard[27]”, the likelihood referred to in the definition has been held to be “a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent”.[28]
[25]As to the foreseeability or identifiability of the risk posed by the work performed in November 2002 and January 2003, I have not had need to have recourse to the evidence of Mr Meikle and Mr Hosford in the report from Perform Enhance Pty Ltd (Exhibit G). However, I am fortified in my conclusions on this issue by the evidence given in this report.
[26]“Manual handling” is itself defined in the regulations to mean “any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object”.
[27]“Hazard” is defined in the regulations to mean “the potential to cause injury, illness or disease”.
[28]See Martin v Hendersons Industries Pty Ltd [2004] VSCA 19, [45].
It follows from what I have said above that the plaintiff must succeed on the issue of liability, he having established that he sustained a back injury as a result of the negligence of, and breach of statutory duty by, the defendant. I turn now to consider the issue of quantum.
Nature and extent of the plaintiff’s injury
I have already set out the medical evidence tendered in this case in some detail. The medical evidence discloses that the plaintiff sustained a serious injury[29] affecting his lumbar spine. I accept Mr Klug’s description of the plaintiff’s injury (which description is consistent with the balance of the medical evidence) as “an injury to the L5/S1 intervertebral disc leading to a disc prolapse which in turn [has been] responsible for back pain, sciatica and some disturbance of neurologic function in the affected lower limb”.
[29]In at least the ordinary sense of those words (cf the meaning given to them in s 134AB(37) of the Accident Compensation Act).
The plaintiff has also been found to have degenerative changes in his lumbar spine. Mr Hillier described “features of longstanding internal disruption” which he said developed over time “unless there is an incident of recent and very severe trauma”. The defendant contends that these degenerative changes (features of internal disruption) existed before the plaintiff performed the work the subject of this proceeding. It contends that it can only be responsible for an aggravation of what might have been asymptomatic degenerative changes in the lumbar spine.
On the other hand, the plaintiff contends that the features of internal disc disruption referred to by Mr Hillier were probably caused by the performance of the impugned work, because the work involved trauma to the plaintiff’s spine of the kind which Mr Hillier describes as “very severe trauma” in his final report. In support of this submission, the plaintiff points to the evidence of Mr Meikle and Mr Hosford in the Perform Enhance report.[30] Specifically, the plaintiff relies upon the following passage in the report:
“The task imposed a posture at the commencement of the lift that was to flatten and perhaps moderately reverse the lumbar lordosis as the trunk was flexed. The result was an exaggerated forward pelvic tilt that ensured a slippage/translation of L5 on S1 and a sustained elevated pressure on the intervening disc.”
[30]Exhibit G.
Neither side’s argument is without some force. However, in my view, the evidence does not disclose a pre-existing degenerative condition in the plaintiff’s lumbar spine that was likely to interfere with his ability to engage in employment (or to become symptomatic) at, what was in 2003, any time in the foreseeable future. This case falls to be assessed on the basis that the plaintiff, a previously fit and healthy young man of 23 years of age, suffered the substantial low back injury I have already described. That is, when dealing with the vicissitudes, I do not propose to assume that the plaintiff was substantially or significantly more at risk of developing a lower back disability in the foreseeable future than any other fit and healthy 23 year old.
There was some debate at trial as to whether the plaintiff left his employment with the defendant and moved from Melbourne to Wodonga in February 2003, either because of his back injury, or for other reasons to do with his and his wife’s circumstances. It was submitted by the defendant that I should not be satisfied that the move was because of any problem that the plaintiff was having with his back. There is force in this submission. However, ultimately I think the issue is largely a false one. It can be accepted that the plaintiff did not appreciate in February/March 2003 the significance of his back condition or the trouble it was going to cause him in the months and years that then lay ahead. On the other hand, just because the predominant reason for leaving Melbourne and going to Wodonga was not the back injury, does not gainsay the seriousness of that injury as it has manifested itself over time. In my view, all that really can be said is that the move from Melbourne back to the country meant that it was less likely that the plaintiff would pursue a remunerative professional boxing career. No doubt it was that sort of reasoning that led those advising the plaintiff in formulating his claim for pecuniary loss to eschew a claim for specific income in relation to boxing and to pursue the boxing issue only as a positive vicissitude in relation to the assessment of the plaintiff’s economic loss.
The plaintiff’s low back injury is a disabling one. It has involved (and will continue to involve) significant levels of pain and restriction of movement. The plaintiff has pain in his back every day. He described it as fluctuating between a two or three out of ten at its lowest and a seven, eight or nine out of ten at its worst.[31] As to physical things which he now avoids, he said, “There’s heaps of things in my life that I was capable of that I avoid today”.[32] Whilst the plaintiff is capable of engaging in some activity as disclosed in the medical reports to which I have referred, and as evidenced by what he has in fact undertaken since suffering injury (the attempts at employment, the attempt at the TAFE course and his activities in the dog breeding/selling enterprise), it is clear that his injury currently restricts (and is likely to restrict) him from working and living in the way he would have contemplated but for sustaining his injury.
[31]T99-100.
[32]T100.19 - .21.
I turn now to consider the plaintiff’s claim for pecuniary loss damages and pain and suffering damages.[33]
[33]Within the meaning of s 134AB(37) of the Accident Compensation Act.
Pecuniary loss damages
The plaintiff’s claim for pecuniary loss damages is made up of five elements:
(a)past loss of earnings;
(b)past loss of superannuation;
(c)future loss of earning capacity;
(d)future loss of superannuation; and
(e)Fox v Wood damages.[34]
[34]See Fox v Wood (1981) 148 CLR 438.
Past loss of earnings
In his employment with the defendant, the plaintiff earned an average of $664 net per week. This included the amount he was paid for overtime work. The defendant invited me to assess damages without reference to overtime earnings, alternatively by reference to the plaintiff’s subsequent employment with Wilson Transformers (without overtime, the plaintiff’s earnings with the defendant averaged $566 net per week; and the subsequent Wilson Transformers job paid an average of $556 net per week). I see no reason to disregard the overtime performed by the plaintiff in the course of his employment with the defendant. Further, it is to be remembered that the Wilson Transformers job was for a substantially shorter period than the plaintiff’s employment with the defendant – and it was a lighter job.
In my view, the appropriate base from which the plaintiff’s claim for past loss of earnings should be assessed is the average net weekly amount he earned in the course of his employment with the defendant. If one takes that figure and increases it to take account of movements in average weekly earnings,[35] one arrives at a past loss of earnings from 21 February 2003 to 2 December 2010 of $326,274.[36]
[35]See the report of Cumpston, Sarjeant: Exhibit F.
[36]I have updated the figure on p 3 of the plaintiff’s particulars of special damage dated 19 November 2010 to bring the figure from 22 November 2010 to 2 December 2010 (noting there was no dispute as to the arithmetic calculation set out on that page).
However, the defendant submits that there should be “a reduction of 10% for contingencies”. I agree. Whilst the prospect of the plaintiff earning income from professional boxing can be treated as a positive contingency,[37] the plaintiff’s move from Melbourne to Wodonga in February 2003 made the prospect of a remunerative professional boxing career less likely. Further, I accept that it is likely that, given the plaintiff’s previous employment history, there would have been periods of unemployment from time to time. When one factors in these matters, together with the fact that I have performed the base calculation inclusive of overtime with the defendant, in my view a reduction of 10% is appropriate. Applying the reduction produces a figure of $293,646.
[37]See also the affidavit of Lincoln Hudson sworn 1 June 2009: Exhibit J.
In the plaintiff’s particulars of special damage,[38] the plaintiff gave credit for income earned after he was injured as follows:
[38]Dated 19 November 2010.
–Countrywide Pools and Spas $ 1,148
–Wilson Transformers $ 2,615
–Jindera Hotel $ 8,740
–Riverina Bulldog Kennel[39] $20,000
Total$32,503
[39]This is the dog breeding/selling enterprise engaged in by the plaintiff and his wife, to which I have already referred.
Unsurprisingly, the defendant also submitted that this income should be taken into account in reduction of the plaintiff’s claim for past loss of earnings. Whilst various criticisms were made of what was said to be “the rubberiness” of the $20,000 Riverina Bulldog Kennel figure, it was not submitted that I should take into account a figure larger than that set out in the plaintiff’s particulars. Mrs Crowe gave substantial evidence as to the way in which the ultimate $20,000 figure was calculated. She gave evidence of revenue received over a four year period totalling $106,215 and what was said to be total minimum costs of $68,922. Whilst there was a question as to whether $2,142 of these costs were in fact costs incurred by Mr and Mrs Crowe, on balance I am prepared to accept the figures put forward by Mrs Crowe[40] as forming the basis for the $20,000 allowance. In the result, the plaintiff’s claim for past loss of earnings assesses at $261,143.
[40]See specifically Exhibit C.
Past loss of superannuation
The plaintiff tendered a report from Cumpston Sarjeant[41] which set out calculations for superannuation losses in relation to employer-funded contributions in the past (up to 22 November 2010) and in the future (after 22 November 2010). These calculations made a number of assumptions, including the earning rates of superannuation funds in the future. I raised with counsel for the parties the speculative nature of the assumptions and calculations. Both sides were content for me to assess superannuation losses by simply adding 9% of the gross wage to any past losses, and adding 9% of the relevant gross wage for the future (applying the appropriate multiplier for the future and discounts for vicissitudes).[42]
[41]Exhibit F.
[42]T260.14 – 261.7. Cf Norris v Brumar(No. 2) [2009] VSC 218, [49] and [52].
In my view, the appropriate past superannuation figure falls to be calculated on the gross income the plaintiff would have earned to receive the sum of $281,143 in the past. That is, I have added back on the $20,000 figure for Riverina Bulldog Kennel to the plaintiff’s net past loss of earnings because there is no evidence that the plaintiff received any superannuation benefit from this activity (whereas one assumes that the employers Countrywide Pools and Spas, Wilson Transformers and Jindera Hotel made provision for the plaintiff’s superannuation).
The evidence does not allow me to be precise as to the gross figure that corresponds with the net figure of $281,143. From the Cumpston Sarjeant report, I estimate it would be something of the order of $350,000. Nine per cent of $350,000 is $31,500. In the circumstances, I allow $31,500 for past loss of superannuation.
Future loss of earning capacity
The plaintiff’s injury will affect his ability to engage in employment for the balance of his working life. Whilst the medical evidence suggests that the plaintiff has a residual work capacity which would permit him to work up to 20 hours per week, or more extensively (depending on precisely which medical reports one prefers), there is no doubt that any such work is subject to physical limitations and restrictions. I have already set out many of these in describing the medical evidence that was tendered.
Both sides’ submissions proceeded on the basis that the way to assess future loss of earning capacity was to identify the plaintiff’s uninjured earning capacity and then assess how much of this has been lost. Put another way, one might start by assessing the plaintiff’s loss of earning capacity as if it is total and then reduce this figure by the amount of his retained capacity. Having regard to the evidence, there is merit in this approach (with the caveat that one cannot get carried away by apparent mathematical precision: some broad judgments are still required).
With these observations in mind, the dispute between the parties can be narrowed to the following issues:
(a)Would the plaintiff have only worked to the age of 60 or 65 as contended for by the defendant, or would he have worked to the age of 67 as contended for by his counsel?
(b)What is the current weekly figure on which the calculation should be based ($660 net per week as contended for by the defendant or $973 net per week as contended for by the plaintiff)?
(c)What is the plaintiff’s retained working capacity (the defendant submitted 40% on one view and 90% on another view, whereas the plaintiff submitted that when one was looking at vicissitudes, one should take the “standard” deduction of 15% and increase that to 25% to take into account the plaintiff’s retained ability to earn income)?
The plaintiff gave evidence that he would have worked to normal retiring age. For many years, this has been regarded as 65 years of age. Recently, it has been suggested that normal retiring age might be 67. Looking at the sort of work the plaintiff was and is qualified to do, I am not satisfied that he would have worked beyond 65 years of age. In my view, the calculation should be performed on the basis that the plaintiff would have retired at the age of 65.
So far as the weekly amount upon which the calculation should be performed is concerned, I agree with the plaintiff’s submissions. The figure of $973 is arrived at by increasing the amount the plaintiff was earning with the defendant by the relevant movements in average weekly earnings.[43] It follows that if I was to assess the plaintiff as having sustained a total loss of earning capacity, I would allow $973 net per week to age 65. The multiplier to age 65 is 758. Allowing 15% for the vicissitudes produces a figure of $626,904.
[43]See the Cumpston Sarjeant report: Exhibit F.
I turn now to consider the plaintiff’s retained earning capacity. Whilst the plaintiff tendered a report from a human resources consultant, Ms Mary Oliver, which asserted that she did not foresee that the plaintiff would find an employer who would be willing to employ and retrain him for suitable duties, in my view the plaintiff does have a retained earning capacity. So much is demonstrated by his participation in the Riverina Bulldog Kennel operation, and the fact that he has been able to engage in limited employment since he was injured.
The defendant raised the possibility of the plaintiff engaging in a self-employed business venture. The submission was:
“In the event that the plaintiff engages in a self-employed business venture (whether with American bulldogs or other) the value of his lost earning capacity is significantly reduced and is likely to be nil. Taking into account the delay and the chance that the plaintiff’s physical restrictions may somehow restrict his earnings in his business venture, a reduction of 10% of his earning capacity should be allowed.”[44]
[44]Paragraph 7 of the defendant’s document headed “Future loss of earning capacity” handed up during the defendant’s final address.
There is no doubt that a significant amount of work has been done in pursuing the dog breeding/selling business known as Riverina Bulldog Kennel. Exhibit 3 (copies of pages from the Riverina Bulldog Kennel website) discloses the substantial amount of work that has been put into the enterprise, and the professionalism with which it has been conducted. However, after hearing evidence from both the plaintiff and his wife, I formed the view that the plaintiff’s wife was the key person (guiding hand) of this enterprise. In my view, the evidence does not disclose that the plaintiff is capable of pursuing or engaging in a self-employed business which would return to him 90% of his pre-injury earning capacity. Accordingly, I reject the defendant’s submission that the plaintiff has a retained earning capacity of 90% or 100% of his pre-injury earning capacity.
One cannot be precise about the plaintiff’s retained earning capacity. The plaintiff has suffered a significant loss of his earning capacity. This loss will be ongoing throughout the plaintiff’s working life. Whilst I am not prepared to find that the realities of the employment market suggest that the plaintiff will be unable to engage in remunerative employment, I accept that his injuries will pose substantial problems for him. Doing the best I can, I assess the plaintiff’s retained earning capacity as one third of what it would have been but for suffering the injury the subject of this proceeding.
In assessing the plaintiff’s retained earning capacity at one-third of what it would have been but for suffering the injury the subject of this proceeding, I formed the view that over time it was likely that the plaintiff would find himself able to engage in more employment and activity than he has to date. There are likely to be periods where he is able to engage in activity suggestive of a greater retained earning capacity than one-third. Equally, there are likely to be periods where he is able to engage in no more activity than he has to date. In substance, I have concluded that from the time of injury to the present, the plaintiff has not been able to engage in employment or activity to any greater extent than that demonstrated by his actual post-injury employment and participation in Riverina Bulldog Kennel. The assessment of one-third retained earning capacity is an average of what the plaintiff is likely to be able to do during the balance of his working life.
It follows that I assess the plaintiff’s future loss of earning capacity at $417,936.[45]
[45]$417,936 being two-thirds of $626,904.
Future loss of superannuation
The gross weekly income that produces a net weekly wage of $973 is $1,241. Nine per cent of this is $112. Calculating future loss of superannuation on the same basis as the parties were agreed that past loss of superannuation should be calculated, using the multiplier to age 65 (758), discounting for vicissitudes by 15% and assuming a retained earning capacity of one third, produces the amount of $48,108 for loss of future superannuation. It follows that I assess future loss of superannuation in the amount of $48,108.
Fox v Wood component
The parties were agreed that the Fox v Wood component of the plaintiff’s damages is $52,254.[46]
[46]Plaintiff’s particulars of special damage dated 19 November 2010 (p 6) and T247.
Pecuniary loss damages total
It follows from what I have said above that the plaintiff’s pecuniary loss damages assess as follows:
–past loss of earnings $261,143
–past loss of superannuation $ 31,500
–future loss of earning capacity $417,936
–future loss of superannuation $ 48,108
–Fox v Wood $ 52,254
Total$810,941
Pain and suffering damages
I have already described the consequences of the plaintiff’s injuries. The defendant submits that the appropriate figure for pain and suffering and loss of enjoyment of life is in the range $150,000 to $200,000. The plaintiff submits that the appropriate figure is $400,000.
In advancing his figure, Senior Counsel for the plaintiff reminded me that pecuniary loss damages fall to be assessed in today’s dollars. That is obvious. However, he submitted that in some recent cases, figures have been put, which figures have been put for the last ten years without adjustment. That may or may not be so. It is not necessary to resolve that issue in this proceeding.[47] It is sufficient to say that in assessing the plaintiff’s pain and suffering damages in today’s dollars, the appropriate allowance is $250,000.
[47]In any event, it would be difficult, without seeing and hearing all of the evidence in those prior cases, to make any assessment of whether the figures put or found for pain and suffering damages were lower than they should have been having regard to the fact that the assessment of such damages falls to be made in present day dollars.
Conclusion
For the reasons given above, the plaintiff has established an entitlement to damages, assessed, as follows:
(a)Pecuniary loss damages $810,941
(b)Pain and suffering damages $250,000
I will hear counsel as to the appropriate form of orders, interest and costs.
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