Cuevas v Jayco Corporation Pty Ltd

[2014] VCC 477

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-10-05186

RAY CUEVAS	Plaintiff
v
JAYCO CORPORATION PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 and 4 April 2014
DATE OF JUDGMENT:	8 April 2014
CASE MAY BE CITED AS:	Cuevas v Jayco Corporation Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 477

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – industrial accident – injury to the spine and right leg – pain and suffering only

Legislation Cited:     Accident Compensation Act 1985

Cases Cited:State of Victoria vGlover [1998] VSCA 93; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26

Judgment:                 Leave granted to bring proceedings for the recovery of pain and suffering damages.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Goldberg	Slater & Gordon Ltd
For the Defendant	Ms A Ryan	Minter Ellison

HIS HONOUR:

1       This application under the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for pain and suffering damages only relies on impairments to two body functions, firstly of the spine as well as of the right leg.

2       The plaintiff was only twenty-eight years old when he was injured in a frightening industrial accident.  He was crushed beneath a large caravan roof that fell on him on 1 April 2008.  He was knocked to the ground.[1]  He was conveyed by ambulance to The Alfred, where multiple injuries were treated, including fractures of the ribs, thoracic T5 and of his jaw, as well as lacerations and contusions.  Surgery on his jaw was carried out.  He was an inpatient at the hospital for four days.[2]

[1]Plaintiff’s Court Book (“PCB”) 5, 8

[2]PCB 5-6 and 38-39

3       The defendant has admitted a compensable injury was suffered to the spine and to the right knee.  The only issue for determination is whether the consequences of each body function, treated separately, amount to “serious”.[3]  In other words, can they be fairly described when judged by a comparison with other cases in the range of possible impairments as being more than significant or marked and being “at least very considerable”?

[3]Transcript (“T”)24

4       The plaintiff, who is now thirty-four years of age, gave oral evidence.  He presented as a very motivated man who had been employed by the defendant as a caravan laminator and cabinetmaker.  He was doing heavy assembling and labouring work.[4]  This is consistent with his work history which really involved factory, manufacturing and labouring-type jobs.  In essence, he has always worked in unskilled manual factory-type work.[5]  This is partly because he has had only one year of education in this country and that was to Year 8.  He left school aged sixteen years, so that age at Year 8 level indicates he was probably not outstanding or was troubled by the language barrier.  He was accurate in describing his ability to read, write and express himself in English as being not very good.[6]

[4]PCB 5

[5]PCB 4

[6]PCB 4

5       In the witness box, all of these difficulties in coping with English as a second language were manifest.  He had difficulty following counsel on many occasions.[7]  He could not follow the written word, even when it was being pointed out to him with the assistance of Court staff at times taking him to the document that counsel were directing his attention to.[8]  He was a very compliant witness who answered questions sometimes without obviously not comprehending them properly.  It was a case in which the opportunity to observe this thirty-four-year-old man in the witness box had its advantages.  He presented at all times as a man who was honest and cooperative.  I found him to be very genuine.  He was not always accurate due to language difficulties that he clearly faced, coupled with his very limited education in this country.  Generally he presented as a fairly simple, unsophisticated young man.  Credit was not in issue.

[7]T29, 32, 37-39, 46, 48-49, 53, 62

[8]T46

6       A number of doctors have commented on the genuineness of the plaintiff, including those who saw him for the defendant.  Mr M Dooley, orthopaedic surgery, found the plaintiff to be sensible and genuine.[9]  A Dr S Varma, psychiatrist, also noted that the plaintiff was cooperative.[10]  Doctors who saw him at the request of the plaintiff’s solicitors also commented favourably on him as a pleasant and honest historian.  For example Mr S Schofield, orthopaedic surgeon, reported to this effect.[11]

[9]Defendant’s Court Book (“DCB”) 13

[10]DCB 16

[11]PCB 70

7       The plaintiff returned to work at the defendant’s premises on restrictions and putting up with pain from both his spine and leg problems.  Eventually, he was terminated by letter on 1 October 2012 as he was:

“… unable to further increase your capacity for work in accordance with your latest certificate.  We therefore acknowledge that your capacity is such that there are no suitable or sustainable duties that we are able to offer you at Jayco.”[12]

[12]PCB 18

8       Undeterred, he underwent some training in security.  He became qualified and obtained work as a static security guard at Monash University in October 2013.  He still works there full time and is in a sedentary control room situation where he has the advantage of being able to alter his posture. 

9       The need for this was quite apparent in court, where he had to alter his posture continuously from obvious spinal discomfort after either sitting or standing for any length of time.  Indeed, he even needed a break in relation to some difficulties with back symptoms that manifested themselves in discomfort in court.[13]

[13]T41 and 53

10      The case raises the principles of assessing a very young man who has been able to return to full-time alternative work.[14]

[14]State of Victoria vGlover [1998] VSCA 93 at paragraph 30; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraphs 35, 38 and 43

11      The full context and circumstances in which the return to work has been achieved in this case need to be examined.  The most important evidence, which I accept, is that he works with constant spinal pain.[15]  Activity makes it more severe.[16]  He also needs very frequent medication that these days is over-the-counter due to some medical advice about the effects of narcotic medication in the past.  Endone and OxyContin were found to cause him mental problems and he has been advised to stay away from such narcotic pain relief.[17]  He was even advised to minimise Panadol Osteo usage.[18]  A variety of medications has been required over the period now of six years.[19]  I accept that the need for these medications, both by way of prescription and over the counter, has been caused by his ongoing spinal pain. 

[15]PCB 8, 11, 13, 15; T68, T43 and 55

[16]PCB 7-8, 12, 13, 15; T69-70

[17]PCB 13, 15; T43 and 47

[18]T66

[19]PCB 7-8, 15 and 23

12      Additionally, it is relevant in viewing his return to work, that he has wisely chosen work that can accommodate these spinal symptoms.  The static job that he has is a reflection on his incapacity now to go back to the heavy factory manual work that he was involved in for ten or more years prior to being injured in 2008.  He does not enjoy his new job.  He enjoyed and liked physical jobs.[20]  He works in his present position for financial reasons.

[20]T51-52

13      Another important aspect in this case is the plaintiff’s youth.  His statistical life expectancy is 51.4 years.[21]  I find he has a spinal injury that is now stable and it is a very relevant factor that he has not only symptoms over the last six years, but he can expect to have them for the duration of a very long life expectancy into the future.  I find he will remain suffering from his present spinal symptoms of pain and referred problems into his left leg for the foreseeable future.  In assessing consequences it is relevant thus to consider the length of time stretching out before him that, as a matter of probability, he will have to endure such symptoms.[22]

[21]T97

[22]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 17 and Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph 74

14      Looking at his return to work in the context of the overall evidence in this case, it is reflective of a young man who is not only motivated but has a largely stoical attitude to his symptoms in the spine and right knee.  I find that dealing with the spinal symptoms alone, he has a very severely impaired earning capacity now.  He is effectively out of the market for factory, labouring or physically demanding jobs which is the field where he has always worked.

15 This impairment is for the foreseeable future and while it does not translate into a 40 per cent loss and thus satisfy the test under the Act, it is nevertheless to be taken into account in terms of gauging pain and suffering consequences in the wider sense. He is working now in a sense in a “narrower paddock”.[23]  He has been forced by the injuries to his spine to avoid work where the lifting, bending and heavy demands on his back are required by the job.  He has lost the enjoyment of his preferred work and it is work that he is now unable to do that he used to be capable of.   It results in a loss of pleasure in that sense which I accept.

[23]Ellis Management Services Pty Ltd v Taylor (supra) at paragraph 48

16      I reject the defendant’s argument that the consequences of the spinal impairment have not been sufficiently delineated from those flowing from the right leg impairment.

17      The first affidavit evidence which I accept clearly points to symptoms including frequent pain that is spinal in origin.  It should be said the violence of the trauma caused a fractured jaw, fracture to his ribs and at T5 so violent insult to the structures of the spinal column is beyond dispute.  Examples of clear delineation in the affidavit material are the problems with frequent bending, twisting and stretching his spine.[24]  The main problem is spelt out as the lower back and the need for OxyContin for that.[25]

[24]PCB 7

[25]PCB 8

18      The further affidavit last year specifically described recurring back pain and how bending, twisting and flexing make it worse.[26]  He is never free of it and has acute flare ups of the back pain.[27]  The back pain was worsening as time went on.[28]  The back pain is ongoing.[29]  I accept this evidence.

[26]PCB 11-12

[27]PCB 13 and 15

[28]PCB 14

[29]PCB 16

19      The 2014 affidavit further points out back pain separate from right knee and leg symptoms.[30]  It restricts standing, walking and sitting and requires changing posture.[31]  His back is vulnerable and he is cognisant of the prospects of surgery in the future.[32]  I accept this current affidavit evidence.  The change of posture has been commendably accommodated by his getting retrained for work he does not enjoy but which allows postural flexibility.  Clearly delineation is made out in the affidavits.

[30]PCB 20

[31]PCB 20

[32]PCB 22

20      His oral evidence also distinguished the spinal impairment and its consequences from the right leg.  He said he had constant pain in the back and into the left leg.[33]  Activity made his back very sore.[34]  When he even played with his little boy this resulted in tingling pain going into the left leg as well as constant back pain.[35]

[33]T68

[34]T69

[35]T70

21      While comments have been made about the difficulties the plaintiff had in the witness box it is quite apparent that he described a story of constant back pain over the last six years.  It continues.  The severity of it depends to a degree on activity.  It is probably worsening.  I accept all that evidence.

22      The doctors and the treatment history bear this out.  Not only has he required additional narcotic medication until being warned off it but he also has needed over the counter pain relief.  The list of scripts does not record those non prescription medications.[36]  He has even sought OxyContin again three weeks ago but was warned off it.[37]

[36]DCB 48-49

[37]T54

23      The argument of the defendant that the absence of present treatment militates against the consequences being “serious” needs to be put in perspective.  He has had conservative treatment.  He has followed up a suggestion of specialised pain management with some improvements but not resolution.[38]  He has been referred to specialists in 2012 for very serious discussion about surgery by way of a spinal fusion.[39]  He has sought chiropractic help but he is still waiting for the insurer to approve it.[40]  He has been on medication since starting the new job in October 2013 by way of Panadol Osteo and OxyContin but taken as minimally as he could.[41]

[38]PCB 55A-B

[39]PCB 49A-C

[40]T67

[41]T68

24      The most important aspect in rejecting the defendant’s submission is that after six years the plaintiff has been told there is no other treatment that will improve his back symptoms.[42]

[42]PCB 21

25      On all the evidence the only treatment option is instrumental spinal fusion surgery at thirty four years of age.  A Professor of Neurosurgery, Mr P Teddy, advised against it.[43]

[43]PCB 49C

26      The plaintiff still sought a second opinion.  He was referred to a Mr J Hunt, orthopaedic surgeon, who effectively said the same.[44]  It was premature at the plaintiff’s age.

[44]PCB 49A-B

27      The probabilities are that there is no more the plaintiff can do but look forward to putting up with spinal pain and its limitations for the rest of his days both at work and in daily life.

28      There is no necessity to deal with the medical reports in detail for the admitted spinal injury.  The last word from the general practitioner’s clinic is a deferral to specialist opinion.[45]

[45]PCB 42

29      Professor P Teddy and Mr J Hunt do not need elaboration.  Suffice to say that neither thought the referral for specialist advice about spinal fusion was inappropriate.  Reading their letters back to the referring general practitioner, I find they would probably have advised it with all its attendant risks given the extent of the pathology in this man’s low back.[46]  They just think it is too early and he should battle on conservatively doing the best he can.  I accept the views of these two specialists.  They support very considerable consequences in terms of loss of enjoyment from his preferred work and in life generally as a result of the spinal injuries standing apart from any other body function that has been impaired.

[46]PCB 49B

30      The medico-legal opinions do not take the matter much further but need to be referred to briefly.  Looking at them chronologically, Mr G Moran, orthopaedic surgeon, saw the plaintiff for the defendant in very early days, October 2009.  It does not help in gauging consequences in April 2014 save to say he gave permanent AMA percentage impairments for the neck and lower back.[47]

[47]PCB 53-54

31      Mr M Dooley, orthopaedic surgeon, then saw the plaintiff for the defendant in 2010 and 2012.  His last report gave a diagnosis of degeneration of the lumbosacral disc with associated spondylolisthesis.  He thought the plaintiff would have difficulty carrying out regular heavy work or work involving a lot of bending.  I read this as a reference to the spinal impairment. He said the plaintiff was a sensible and genuine historian.[48]

[48]DCB 13

32      Mr S Schofield, orthopaedic surgeon, had the advantage over all other specialists in that he saw the plaintiff three times.  These were in 2011, 2012 and 2014.  He also had more radiology and examined it in far more detail than any other medico-legal witnesses in this application.  He analysed the radiological changes in considerable depth.

33      His view grew increasingly pessimistic over the three years that he was considering this young plaintiff’s plight.  In the end he considered the fusion was not only not appropriate but was now urgently needed.[49]  This was based on not only the clinical findings but a careful examination of the vertebral slippage that had progressed on radiological imaging of the spine.

[49]PCB 82

34      I accept the defendant’s argument that Mr Schofield is on his own in saying there was a need for immediate surgery.  However I accept his opinion as supporting the worsening of spinal symptoms.  The plaintiff described them as worsening.  I also find that his reports are clear evidence of a very serious permanent spinal impairment for such a young man that has consequences with respect to what work he will ever be able to do and lost enjoyment of life.  The consequences are very considerable at his age.

35      Dr L Barberis, occupational physician, saw the plaintiff in January 2012 for the defendant.  She is not in my opinion as well qualified as the specialist surgeons Teddy, Hunt, Schofield and Dooley with respect to the plaintiff’s spinal pathology.  She also predates their more recent opinions.

36      Nevertheless, she only thought he was fit for lighter type duties with restrictions on lifting and bending with 5 to 8 kilograms the limit.[50]  For a young labourer these are extremely serious restrictions not only for work but for many aspects of life generally.  Self management and analgesics were her recommended treatments with some future physiotherapy.  Her opinion does not predict any cure or eradication of spinal symptoms and the restrictions they cause.

[50]DCB 24

37      Dr H Sutcliffe is similarly an occupational physician and in my view not as qualified as the surgeons to comment on the spinal damage.  She saw the plaintiff at the request of his solicitors in June 2013.  She noted his persisting spinal pain and thought he had no work capacity for lifting, bending, twisting, turning and rotations stacking of heavy weights.[51]  The prognosis for the spine was poor with persisting and increasing pain there.[52]

[51]PCB 80

[52]PCB 81

38      Her specialty in occupational medicine meant the report focussed on work capacity.  However, the limitations she put on the physical movements listed amount to very considerable consequences in terms of daily life’s recreational, family, household and general activities.  Her report further supports my finding that the doctors’ opinions as a whole establish very considerable consequences in terms of loss of enjoyment of life.

39      The defendant’s psychiatrist, Dr S Varma, found the plaintiff cooperative and with no psychiatric illness in 2013.  That was consistent with his presentation in court.  The problems he had were physical.  While this doctor was perhaps stepping a little outside psychiatry, he reported:

“… from a physical point of view.  It seems to me he should not be performing any job that entails heavy lifting and standing for long hours but I will leave the physical component to be commented on by my medical colleagues.”[53]

[53]DCB 18

40      The WorkSafe Injuries Assessment documents do not really take the pain and suffering aspect much further.  They did point to his being keen to increase his functional tolerances and returning to work but lack of motivation is not even suggested in this case.[54]

[54]PCB 88

41      Similarly, the NES Vocational Assessment Report tendered by the defendant does not advance the matter.  It pointed out the plaintiff’s attention to his gym and rehabilitation generally and the adverse effects Endone had on him which caused him to have no wish to go on it again.[55]  The assessment really just chronicled a motivated young man who has experienced some improvement but is still facing employment and general activity restrictions for the foreseeable future.

[55]DCB 45

42      The plaintiff’s evidence and the medical opinions, especially those of the specialist surgeons, make out the grant of leave to claim pain and suffering damages for the impairment of function of the spine. For the reasons mentioned, it is not necessary to deal any further with the second impairment claimed, that of the right knee and leg.