David Allan Frith v Integrated Forrest Products Pty Ltd under external administration and/or controller appointed
[2013] ACTSC 215
•31 October 2013
DAVID ALLAN FRITH v INTEGRATED FORREST PRODUCTS PTY LTD under external administration and/or controller appointed
[2013] ACTSC 215 (31 October 2013)
NEGLIGENCE – personal injury – claim against employer – plaintiff injured while moving trolley loaded with timber planks at sawmill – plaintiff required to undertake task without assistance – no handles or barriers on trolley – no adequate instruction or supervision – unsafe place and system of work – employer negligent
DAMAGES – personal injury – injury to lumbosacral spine – earlier surgical fusion – aggravation of existing condition – consequential adjustment disorder with mixed anxiety and depressed mood – plaintiff effectively unemployable – permanent and total loss of earning capacity
Occupational Health and Safety Act 1989 (ACT)
Occupational Health and Safety (Manual Handling) Regulations 1997 (ACT)
No. SC 581 of 2010
Master Harper
Supreme Court of the ACT
Date: 31 October 2013
IN THE SUPREME COURT OF THE )
) No. SC 581 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DAVID ALLAN FRITH
Plaintiff
AND:INTEGRATED FORREST PRODUCTS PTY LTD under external administration and/or controller appointed
ACN: 083 521 966
Defendant
ORDER
Judge: Master Harper
Date: 31 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The further hearing of the action be stood over to a date to be fixed for further evidence and submissions consistent with these published reasons.
The plaintiff claims damages from his employer for personal injuries caused in the course of his employment, in an incident which occurred at about 8:15 pm on Thursday 8 November 2007.
The plaintiff
The plaintiff was born in December 1968 and was almost 39 at the date of injury. He is now approaching 45 years of age. He was born in Wollongong, and went to school there, leaving at the end of year 10, aged about 16. He had a number of jobs after leaving school, some involving rural labouring. He worked at a horse stud near Bega, a grazing property at Tottenham and a sheep stud at Bathurst. He worked for a time on a fishing trawler out of Yamba. He found work as a bouncer in Sydney at the age of 18 or 20.
He moved to Canberra in 1991. He had various jobs in Canberra, including as a bouncer, a driver, a debt collector and a surveyor’s assistant. By 1999 he was working with Readymix Concrete as a tester. This required him to lift and carry heavy concrete cylinders. In January 1999, in the course of this work, he slipped and fell, straining his back. He was found to have an injury at the L5-S1 level in the lumbar spine, with disc herniation impinging on the L5-S1 nerve root, with some herniation also at L4-5. In May 1999, Dr N Chandran, neurosurgeon, operated on his back, carrying out a disc excision at L5-S1 on the left, and a rhizolysis at L4-5.
After this surgery, he returned to work on light duties, and was in due course certified as fit to return to full duties. Unfortunately for him, the day after he told his supervisor that he was fit for full duties, he was dismissed.
He was able to find work of a similar nature with another company, Testcrete, but found that the work aggravated his low back. In June 2001, he stopped work with that employer, and made a workers’ compensation claim. He went onto Centrelink benefits. In September 2001, he took on voluntary work as a disc jockey at a community radio station, where he worked for more than a year.
During this period of his life he was in a de facto relationship and had two children, a daughter in 1995 and a son in 2002.
Late in 2002, he developed symptoms related to his gall bladder, which was surgically removed in July 2003. In March 2003, he settled his workers’ compensation claim against Testcrete by deed of release. It appears that he did not engage in paid employment between June 2001 and 2005, when he started work with Canberra Sand and Gravel at the Belconnen tip. Whilst in that employment he gained a licence to drive a front end loader. Early in 2006, he moved to employment with the defendant company as a loader operator, working what he described as the afternoon shift, starting at 3:00 pm and working through until 2:00 am or thereabouts. The defendant operated a sawmill at Hume, to which logs were delivered from forests at Bombala and Eden. The plaintiff drove a front end loader with a grabber which he used to pick up bundles of logs and move them from the point of delivery to another position in the yard at the sawmill. His evidence was that the cabin was equipped with a sprung seat, and that there was considerable movement on the seat and in the cabin as he went about his work. He said that he had no problem with his back carrying out those duties.
The incident which caused the injury
By November 2007, the defendant’s business had greatly reduced and was expected to close. Numerous employees had been laid off. The sawmill itself was not operating. The plaintiff and other employees were directed to work at the planing mill, where planks into which the logs had been cut were graded, stamped and secured in bundles for sale.
The plaintiff had not previously worked at the planing mill. He was directed to work there on Wednesday 7 November, the day before his injury. He and the other staff were unhappy about this reallocation of duties but accepted it. A group of about ten staff reported to the supervisor at the start of the afternoon shift. To being with, the plaintiff was directed to push timber planks onto a chute. After doing that for some time, he was directed to work on what he called the round table. This was a circular rotating, flat wooden table, onto which planks were delivered through a chute. The planks were of varying lengths, and smaller offcuts also arrived on the table from the chute. The table was in a large metal shed, on a concrete floor. The plaintiff’s evidence was that the floor was covered in sawdust and woodchips. Part of the job of the plaintiff and his colleagues was to put the offcuts into a bin. The principal task was to take planks off the table, one at a time, and stack them on trolleys appropriate to their length. In the process each plank was stamped by a manual stamper about the size of a mallet with the defendant’s logo.
The majority of the trolleys were simply a flat metal base with four metal castors. There were some more sophisticated trolleys with vertical pipes and handles which made them easier to move, particularly when loaded with timber.
The system was that the employees would take a plank from the rotating table, turn from the table towards the trolley being loaded, and place the plank on the trolley. The planks were placed in layers, eight planks across and eight planks high. When that height was reached, timber crosspieces referred to in the industry as “gluts” were placed on top and a fresh load of planks placed on top of those gluts. When the trolley was full, it was required to be moved to a position where a forklift truck could approach it from its side to lift a load of what would have been 64 planks, to be moved to another area in the shed. During this process the planks were not strapped or otherwise secured. The trolleys, on the plaintiff’s first day, were moved by two people. The trolleys were hard to move from a stationary position, in part because of their weight, but also because of the sawdust and woodchips on the floor.
The plaintiff was asked whether he had been given instructions as to how to go about the job. His response was that he just followed everyone else. He could see that the other workers were getting pieces of timber and putting them on trolleys to a particular width and height, and he did the same thing. He worked out how high to go before putting the gluts across. He said that picking the timber up from the table and placing it on the trolley involved a bending and twisting motion, with one hand on top and a foot in the air as he had stretched over to straighten the planks. The planks on the trolley were loose. On the first day, two employees would reach down toward the wheels and push on the frame of the trolley to turn it around, with a hand on top of the pile of planks to keep them in place. It was not practicable to try to move the trolley by pushing only on the timber on top, because this would simply move the timber and not the trolley. The laden trolleys were heavy.
When the plaintiff reported for work on 8 November 2007, the day of his injury, he did not have any assistance. He was on his own for the entire shift, starting at 3:00 pm. It was his sole responsibility to lift planks one by one from the revolving table, and to put each plank on a trolley.
There were no trolleys available with handles or vertical pipes. When a trolley was full, the plaintiff had to move it on his own. He used the same technique, with one hand on the base of the trolley, low towards the floor, and the other on top of the planks. He found it very hard to get the trolley moving to start with. He described the wheels as old and rusty. They did not move freely. Even after the initial push, it was hard to keep the trolley moving. The plaintiff also had to stamp each plank, using the mallet-type marker, with the defendant’s logo, at both ends of the plank.
At about 8:00 pm, the plaintiff was pushing a laden trolley. He straightened up and felt a burning sensation in his lower back. He knew he had done something to his back, in the centre of the back below the belt line. He felt pain down the back of his left leg to the knee. He had trouble walking. He located the supervisor and told him what had happened. This involved the plaintiff mounting a couple of steps, which he found difficult. The supervisor told him to go to the crib room. This seems to have been up a flight of stairs. The plaintiff tried to mount the stairs without success, and ended up sitting on the steps, in a lot of pain in the low back with a burning sensation in the leg. The supervisor went away and returned. He said that he had made a telephone call to his superior and been directed to take the plaintiff to the emergency department at Canberra Hospital.
The plaintiff was not seriously challenged in cross-examination about the circumstances of his injury, or about his employment by the defendant. No evidence was called by the defendant on the issue of liability. The defendant, as anticipated, closed the sawmill soon after the plaintiff’s injury, and by the time of hearing was under external administration. I recognise the reality that the defence was conducted by the defendant’s workers’ compensation insurer on risk at the time of the plaintiff’s injury, and that it would not necessarily have been a simple matter for the defendant at trial to identify and locate witnesses such as the supervisor. It is not in the circumstances appropriate for me to draw any inference against the defendant in respect of the lack of oral evidence on the question of liability.
Within two weeks of the injury, the insurer had engaged an occupational therapist and rehabilitation consultant, Ms Cummins, who had the opportunity to inspect the planing mill and the round table. By that time she was informed that the defendant had been unable to locate a purchaser for the mill and that the business would be shutting down in the near future. The company had been trying to keep its staff active as long as possible but had had to shut down some areas of production. The only area still working when she got there was the area where the plaintiff sustained his injury. She took a number of photographs of the planing mill, the round table, the trolleys and the planks. She reported that the planks were cut into lengths of 900 to 1800 mm. The round table rotated at waist height. When the trolley was full it was pushed two to three metres, so that the timber could be loaded by the forklift. There were two types of trolley, one with handles and the other without. Both had large castor wheels. The base of the trolley was 330 mm (mid-calf) high. The trolley without a handle had to be pushed from its base or the top of the stack of timber. Bending was required but the level reduced as the layers of planks were added. The top row, when the trolley was full, was about 1410 mm. The work involved frequent low back bending and twisting, constant reaching below shoulder level and constant lifting below chest level of weights ranging from 181 gm to 4.2 kg. The laden weight of the trolley was in Ms Cummins’ opinion between 246 and 676 kg. She was informed on her inspection that there were two to three workers involved, with one of them “floating”. She estimated that each employee would move three planks per minute, weighing 1.6 to 3.2 kg, and that the trolley had to be moved about ten times, although she did not specify a period for the ten movements. She did not give oral evidence but her report about her inspection, dated 22 November 2007, was admitted without objection.
The solicitors for the plaintiff qualified an expert witness, Ms Marcia Lusted.
Ms Lusted is a physiotherapist with many years experience in the treatment and rehabilitation of musculoskeletal disorders. She is also a certified professional ergonomist with a master’s degree in occupational health and safety. She has seventeen years of consulting experience in the latter field, in which she lectures at the University of Sydney. She has published extensively at academic and industry levels, and has made a particular study of back injuries in the workplace.
She was provided with a copy of the report by Ms Cummins. By the time she came into the matter, the defendant had ceased to operate, so she did not have the opportunity for an inspection of the premises. However, she had the benefit of the photographs taken by Ms Cummins, and was given a factual history consistent with the plaintiff’s oral evidence.
She noted that the National Standard and Code of Practice for Manual Handling of 1990 had been adopted as a regulation in 1991 under the Occupational Health and Safety Act1989 (ACT): Occupational Health and Safety (Manual Handling) Regulations 1997 (ACT). The standard provided for employers to identify manual handling hazards, assess them and take all practical steps to control them. This involved the elimination of manual handling where possible, and otherwise, the implementation of an appropriate system of risk management. Her opinion was that it should have been obvious to an employer that pushing trolley loads as required in the planing mill at the defendant’s premises presented a manual handling hazard. It was a task that was done frequently every day. There should have been a risk assessment taking into account workplace layout, required actions and movements by employees, duration and frequency of manual handling, characteristics of loads and equipment, locations of loads and the distances they were required to be moved, weights and forces, and the skills and experience of employees to whom these tasks were allocated. In her opinion the layout of the work area was unsatisfactory. There should have been enough space for a forklift truck to approach trolleys from the side without the trolleys having to be moved. The trolleys without handles were unsatisfactory, providing no satisfactory place to grip the trolley or to hold the timber in place. The position which the employees were required to adopt in order to move the trolleys carried a risk of back injury, compressing the lumbar discs and intervertebral joints to one side, and applying a torsional force to the spine. The removal of timber from the round table to the trolleys also involved bending and twisting.
Considering that the trolleys had to be moved, the employer should have ensured that the floor of the mill was clear of sawdust and woodchips, and that the wheels of the trolleys were maintained so as to be properly functional.
The plaintiff had no experience in the use of the trolleys or the round table, or the way of going about the job, until the day before his injury. He should have been given proper induction and training before commencing the task.
To the extent that it was necessary to use the trolleys, trolleys with handles should have been made available, and should have been properly maintained. Having regard to the weight of a laden trolley, two employees should have been allocated to the task of moving the trolleys.
Ms Lusted sat in court and heard the whole of the plaintiff’s evidence. In her own evidence she said that nothing that had emerged during that evidence had caused her to change her opinion.
Mr Lusted arrived at the opinion that a laden trolley carried a minimum of a cubic metre of timber, weighing something of the order of 550 to 650 kg.
She was cross-examined but adhered to her opinion.
Liability
I am satisfied on the evidence that the place of work and the system of work to which the plaintiff was allocated at the planing mill was unsafe. The trolleys themselves were unsafe, and the system of moving them, with one hand on the base of the trolley and the other on the top of the timber, was inherently hazardous in terms of the likelihood of back injury. I am satisfied that the trolleys should have had handles, and some means of securing the stacks of planks. The wheels, it seems to me, were not adequately maintained, and the floor should have been swept and kept clean. Even a system of providing employees in the position of the plaintiff with a broom and instructing them to sweep the area into which they were moving the trolley would have been safer than the system in place. The risk of injury was greatly increased on the day of the plaintiff’s injury by requiring him to move the trolleys unaided. Moving a trolley was clearly a two-man job at least.
Further, the system of work was unsafe in that the plaintiff was given either no instruction, or totally inadequate instruction, in how to perform the tasks on which he was engaged on the day of his injury.
I am satisfied that the plaintiff suffered injury to his back on 8 November 2007, and that the injury was caused by the negligence of the defendant in failing to provide him with a safe place and system of work.
Quantum – the oral evidence
Mr Bell, the supervisor, took the plaintiff to the Emergency Department of the Canberra Hospital within an hour of the injury. He was at that time suffering from severe back pain radiating into his left leg. He was given painkillers and a certificate to the effect that he was unfit for work. He was not admitted to hospital. A few days later he saw his general practitioner, Dr Prosser, who referred him for an MRI scan, and prescribed a strong painkiller.
Before he had an opportunity to return to work, the plaintiff and the rest of the staff of the defendant were made redundant, and the sawmill closed.
In January 2008, he was seen for the first time by Dr Gordon Stuart, a retired Brisbane neurosurgeon, who saw him on a number of occasions and provided reports to the insurer. Dr Stuart also gave oral evidence, to which I shall return.
The plaintiff continued to see Dr Prosser who prescribed painkillers and other medication, and continued his certificates of entitlement to workers’ compensation. In April 2008, the plaintiff commenced regular treatment by way of physiotherapy and acupuncture.
In the same month, he came under the care of a rehabilitation provider organised by the insurer. A case worker was allocated to coordinate his treatment, and seems to have referred him to various doctors.
His evidence was that the acupuncture was effective in relieving his pain for three or four hours, after which it reverted to its previous level. The physiotherapy he found unhelpful. He was referred to a psychologist who provided counselling for depression arising from his pain and financial problems. There was a period when he drank too much, in an attempt to improve his sleeping pattern. By the time of the trial he had given up drinking alcohol entirely. Dr Speldewinde gave him injections to the lumbar spine which he said helped a little.
In December 2008, he began a work trial at Yarralumla Nursery, working four hours a day three days a week. He found that he was unable to cope with the work, which included loading potplants onto a trolley, with moving and twisting. He ceased this work in July 2009, and began a work trial at a service station as a console operator. He found that he was able to operate the console but was unable to cope with the other duties which were expected of him in the position, including sweeping and mopping, and he also found that he was unable to cope with the prolonged standing required. He lasted only a few days.
In June 2009, he was given a nerve root block, an injection into the lower back, by a radiologist. This provided him with what he described as really good relief. He found that the day after, he was able to walk from his home to Belconnen and back, and to take his dogs for a walk, something he had been unable to do before the injection. The benefits lasted for about two weeks, but flared up when he was sent by the rehabilitation provider for a performance evaluation by an organisation called Ergoscience. The testing lasted for four to six hours to his recollection, and seems to have been designed to test his physical capacity. He was required to lift increasing weights, starting at a kilogram, up to 20 kilograms. He was asked to screw nuts and bolts at a desk. The nuts and bolts would then be put on the floor and he was expected to lean over from the desk and pick them up, which hurt. He was then required to walk up and down stairs, which he found agonising. He was asked to walk up and down a step ladder 25 times. By then he was in a lot of pain and in a bad mood, but he was urged to keep going. His evidence was that ever since then his back has been painful, and that he has never had any real relief since.
He said that he ceased acupuncture because the insurer informed him that it would not pay for it any further. It does not appear that the plaintiff gave any consideration to the possibility of continuing the acupuncture and paying for it himself. He gave no evidence about this. He was living on workers’ compensation and does not seem to have had any other financial means and it was probably not unreasonable that he simply accepted the insurer’s decision.
He did not believe by the time of trial that there was any available work which he could cope with. His partner and children did a lot of the housework, which he had been able to do himself before the accident when he was living alone. He had also done the gardening and taken some pride in it, but after his injury was unable to do so. One of his friends had helped a lot in the garden.
His intention had been to resume work as a front end loader driver after the job with the defendant’s sawmill came to an end. He said that that was what he would be doing if he had not been injured. He enjoyed it and described it as one of the best jobs he had had.
Before the injury he had enjoyed diving with goggles and a snorkel. He had tried this since but found himself unable to cope with it. He had also been a keen fisherman, and had tried that since but was not sufficiently stable on his feet for rock fishing. He found that for beach fishing, walking through soft sand was painful for his back, and that in any event casting required twisting which was no longer open to him.
With some friends, he had engaged before the injury in pig hunting in mountainous country, but could no longer cope with that. He was able to walk around an oval near his house for exercise. He said that he found it painful to walk up and down stairs. He relied on Norspan patches for pain relief.
He said in cross-examination that he drove to Wollongong and back every three or four weeks or so to see his parents. He and his partner shared the driving, with typically two stops. When his partner moved from Wollongong to Canberra he made a number of trips to help her bring her furniture and other belongings to Canberra in a trailer. This involved him carrying some items to and from the house. He said that these were light items, such as a computer. He was able to hitch and unhitch the trailer. At the time of the hearing, his partner was working some 25 hours a week, and also studying for a university degree.
The plaintiff’s evidence was corroborated by his partner, Ms Dwyer. She clarified that she was studying for a Diploma in Laboratory Technology at the Canberra Institute of Technology. She said that she was working for twenty hours a week with a pathology firm. Her evidence was that before the injury the plaintiff was happy-go-lucky and a “pretty cool guy”. They lived together in the plaintiff’s government house with her five children, aged from 4 to 19 at that time. Two of the children had mild intellectual disabilities. She confirmed that the plaintiff had trouble sleeping, and was unable to attend to the heavier household chores such as vacuuming, cleaning bathrooms and bed making. These duties fell to her. She estimated that they took up on average about an hour a day. It was apparent to her that the plaintiff was in more pain towards the end of the seven days a Norspan patch lasted. She intended to pursue a science degree after she obtained her diploma, with a view to working as a scientific officer in a histology department. She had trained for such a position in Wollongong but required a degree to do the job. She agreed that while she was at work or studying, the plaintiff was the principal carer for the children.
I was a little confused by evidence that Ms Dwyer gave as to the amount of time she spent doing the tasks for the plaintiff that she would not have been doing if he had not been injured. Her answer was probably an hour a day. My confusion was as to whether this was in addition to the household tasks taking an hour a day, making a total of two hours a day. As I said while she was giving her evidence, I understand that the question is difficult to answer because it is in the nature of things that the time spent is not the same every day or at the same time every day and that the tasks in question are interspersed with other tasks.
The medical evidence
A substantial volume of medical reports and other background material was tendered in the plaintiff’s case without objection. Reports obtained by the defendant’s insurer and solicitors were also tendered. None of the treating doctors were required for cross-examination. Two of the plaintiff’s qualified experts (Dr Brooder, neurologist, and Dr Le Leu, occupational physician) gave evidence by telephone, as did a consultant neurosurgeon qualified on behalf of the defendant, Dr Stuart.
There were a number of reports from 1999 by Dr Chandran, the neurosurgeon who operated on the plaintiff in that year. Dr Chandran recorded that the plaintiff first saw him in February 1999 complaining of sciatic pain on the left side which had come on at work the previous month when he twisted and tried to break a fall. The plaintiff at that time weighed 128 kg and was trying to lose weight. A CT scan showed a bulge at L4-5 and a protrusion at L5-S1 towards the left. An MRI scan was undertaken, and showed central disc herniation at L4-5, consistent with a small annular tear. There was also disc herniation at L5-S1 on the left, with displacement of the left S1 nerve root. Dr Chandran recommended and subsequently performed surgery in the form of a disc excision on the left at L5-S1 and a rhizolysis at L4-5. This treatment was covered by the insurer of the plaintiff’s then employer. In July 1999, Dr Chandran reported to the insurer that the plaintiff had recovered well from surgery and was able to return to work provided that he underwent hydrotherapy for four weeks to build up his back, and took care about lifting.
The Canberra Hospital records were produced on subpoena. They showed an admission in July 2003 for chest pain. In the notes for this admission there was an incidental record of a history of the earlier surgery which mentioned a limp on walking since the operation, with on and off patchy sensory loss in the left leg. It is unclear whether the record was intended to imply a continuous limp or an intermittent limp. It was of little relevance to the plaintiff’s symptoms of that time requiring his admission to hospital, although counsel for the defendant sought to make something of it. A discharge referral to his general practitioner in October 2003 completed by a doctor at the hospital also mentioned the previous surgery and included the words “has a limp on walking”. Again, counsel for the defendant sought to attribute some significance to this entry.
The balance of the relevant medical material relates to the period after the injury.
On 6 December 2007, an MRI of the lumbar spine was conducted, confirming the likely tear at L4-5 and the laminectomy at L5-S1. The radiologist suspected that a distortion of soft tissue within the spinal canal on the left side might represent post-surgical perineural fibrosis but was unable to confirm this. The other available explanation was that it was a recurrent disc injury. The radiologist noted that the plaintiff had declined a gadolinium injection which might have helped to arrive at the correct diagnosis (the plaintiff in his evidence gave to my mind a satisfactory explanation of his refusal to permit the staff of the radiologist to give him the injection. It had all taken a long time and the staff had had considerable difficulty finding a vein, consistent with the plaintiff being so overweight).
The plaintiff was referred by his general practitioner in April 2008 to Dr Ashman, orthopaedic surgeon, who had the benefit of the MRI scan and conducted a physical examination. His opinion was that the plaintiff had aggravated his previous condition by overstretching epidural scar tissue. He did not require surgery but might have benefited from a CT-guided nerve root injection of anaesthetic and cortisone. For this purpose Dr Ashman recommended a referral to Dr Speldewinde.
There were a number of reports by Dr Speldewinde available. He first saw the plaintiff in July 2008, and continued to see him over the next few months. He prescribed a trial of Norspan patches and Lyrica, as well as a spinal fitness program with neural stretches, and pain management counselling. In a report in July 2009, he saw the plaintiff again on referral from his general practitioner. There had been no overall improvement. Walking and prolonged standing were extremely restricted.
A possible cause not previously mentioned was arthropathy of the left facet joints at L4-5 and L5-S1. Dr Speldewinde recommended further epidural injections, an increase in the dose of Lyrica, participation in an intensive pain control workshop, and radiofrequency neurotomy at L5.
In his next report in December 2009, Dr Speldewinde said that the plaintiff had completed a course of injections. The best relief repeatedly had been when the left L3-4, L4-5 and L5-S1 facet joints were injected at the same time. This gave him three or four days of almost complete pain relief, enabling him to walk much more freely. Consideration was still being given to percutaneous neurotomy of the same joints.
Dr Speldewinde said that it would be helpful for the plaintiff to lose weight but this was not the cause of his back pain.
Dr Brooder saw the plaintiff at the request of his solicitors three times, in August 2009, February 2011 and February 2012. In his first report, having been provided with background documentation, he took a detailed history from the plaintiff and carried out a thorough clinical examination. He expressed the opinion that the plaintiff had suffered a low back injury in November 2007 which had caused a pain syndrome. He had recently had some improvement resulting from an injection of local anaesthetic and cortisone. He was limited to part-time employment not involving heavy physical activity, and he was restricted in his daily and leisure activities also. His prognosis was guarded. The injury had aggravated significant pre-existing degenerative changes in the lumbosacral spine, particularly at L5-S1. He was likely to remain subject to persistent symptoms and some associated disability indefinitely. It was Dr Brooder’s opinion that his condition had been contributed to significantly by the incident on 8 November 2007. The degeneration was likely to progress and was susceptible to future aggravation. The plaintiff might benefit from a further foraminal injection, and would benefit from a weight loss program. It was possible that his low back degenerative condition would progress to a stage where he might come to further surgery.
In February 2011, Dr Brooder thought that the plaintiff’s condition had not changed significantly. He thought that the plaintiff would benefit from a pain management program and vocational retraining and rehabilitation for a lighter form of employment.
Dr Brooder last saw the plaintiff before trial in February 2012. He remained overweight. He had not improved and his condition was essentially unchanged.
Prior to trial Dr Brooder was provided with copies of the defendant’s reports, upon which he commented, and he gave oral evidence at the trial. I shall return to this after summarising the opinions of the defendant’s doctors.
In December 2009, Dr William Knox, psychiatrist, spent over an hour with the plaintiff, for a report to his solicitors. The plaintiff came across as having a low mood, a sense of hopelessness, frustration and worry. He was irritable and easily angered. His condition was affected by his back pain and physical impairment. He was in Dr Knox’s opinion suffering from an adjustment disorder with mixed anxiety and depressed mood. This was caused by the 2007 injury and was likely to persist. The psychological condition would contribute to the plaintiff’s difficulty in finding employment. His moodiness would be likely to alienate superiors and fellow employees. Dr Knox was not optimistic about his future mental health, and expected continuing psychological complications to the plaintiff’s physical symptoms. He thought that he should continue with antidepressant medication as well as pain management drugs. He would only ever be fit for part-time work, and was probably unemployable in the open market.
Dr Le Leu saw the plaintiff in January 2012. His opinion was that the plaintiff, who already had degeneration of the lumbar spine with a history of laminectomy and discectomy, had suffered a recurrence and exacerbation of symptoms in November 2007 which had become permanent. He noted that a nerve root block at L5-S1 on the left side had been highly effective but apparently had its efficacy drastically undermined by a functional capacity assessment soon afterwards. By the time Dr Le Leu saw him, the plaintiff had had the same level of symptoms for just over four years. He would probably continue to have that level of symptoms for the foreseeable future. A further foraminal injection might give significant improvement. If so, a follow-up neurotomy would be indicated. It was Dr Le Leu’s opinion that the disabilities and complaints were caused by the injury in November 2007. The injuries prevented the plaintiff from engaging in work of a moderately to highly physical nature. It was possible that he could perform work of a sedentary or semi-sedentary nature for a few hours a day, perhaps three days a week. He would require appropriate ergonomic furniture for such a job. He would benefit from an occupational therapy assessment of his home to see what equipment might be suitable there. Surgery would not be likely to be helpful.
Senior counsel for the plaintiff tendered a report from Dr Reading dated April 2002. Dr Reading was the plaintiff’s general practitioner at that time. He had referred the plaintiff to Dr Chandran for surgery. He noted that the plaintiff had returned to work on a graduated program from July 1999, resuming full-time duties in August 1999. Dr Reading’s opinion was that the plaintiff had made a good recovery from the 1999 surgery, not requiring a visit to the doctor until May 2001, when he had been moving a bucket of dirt at work and had an onset of lower back pain. He saw Dr Reading four times between May and September 2001 but the condition seemed to have resolved then, as he had not been back by April 2002 when Dr Reading reported to the plaintiff’s solicitors.
On behalf of the defendant, Dr Stuart saw the plaintiff in January 2008, April 2009 and May 2011. He prepared three reports and an additional letter commenting on a report by Dr Brooder, and he also gave oral evidence. He first saw the plaintiff in January 2008 at the request of the defendant’s insurer. He was given a history of a lumbar discectomy in 1997 after which the plaintiff was off work for six months, and was dismissed on return, but was essentially asymptomatic until the injury of November 2007. He measured the plaintiff’s height at 186 cm and weight at 152 kg. He viewed the MRI scan of 6 December 2007 and agreed with the report by the radiologist. He did not consider that the small annular tear at L4-5 was clinically significant. He thought that the plaintiff’s symptoms were due to degenerative disease of the lumbosacral spine with epidural fibrosis and scarring at L5-S1 in the left lateral recess of the S1 nerve root. His opinion was that the plaintiff suffered low back pain and left sciatica due to degenerative disease of the spine, aggravated by the work injury. He recommended exercise, walking and progressive resumption of work towards full duties. He did not think that surgery was required but said that the prognosis was uncertain. He did not think that the plaintiff was exaggerating his symptoms. He expected that the aggravation to the underlying degenerative condition would come to an end within four months of his examination, that is by May 2008.
Dr Stuart reviewed the plaintiff in April 2009. He noted that the plaintiff had had a number of spinal injections by Dr Speldewinde without significant benefit. He also noted that the plaintiff had given up drinking alcohol. His opinion was that the plaintiff was continuing to suffer low back pain and left sciatica, which he attributed to degenerative disease. He had previously expected that the plaintiff would have fully recovered from the aggravation by May 2008 but said that this had not occurred and that the plaintiff continued to experience symptoms. He said that the aggravation appeared to be ongoing. He was unable to determine how long full recovery might take, or indeed whether full recovery would occur. He said that the plaintiff’s continuing incapacity was due to the work injury of 8 November 2007. His prognosis remained poor in the short term and uncertain in the long term. The employment injury was a substantial contributing factor to his condition.
Dr Stuart next saw the plaintiff in May 2011. He was told that the plaintiff had had a nerve root injection in June 2009 which resulted in temporary improvement of symptoms, but these had returned shortly afterwards in the course of a rehabilitation assessment.
By the time of this report Dr Stuart had changed his mind about causation. He said that the plaintiff was incapacitated for work not as a consequence of the injury of November 2007 but due to underlying degenerative disease of the lumbosacral spine. He said that his opinion was that the 2007 injury had temporarily aggravated the underlying degenerative disease but that the aggravation “would have ceased by May 2008”. He thought that the plaintiff’s prospects of returning to work were remote. He was incapacitated for work due to his degenerative disease and his obesity. He did not think that the plaintiff required further treatment for the 2007 injury. It is unclear whether he thought that the plaintiff did not require treatment at all, or whether he thought that any treatment required was related to the degeneration rather than the injury.
The plaintiff was seen in October 2008 by Professor Peter Reilly, neurosurgeon, under arrangements made by the insurer. Professor Reilly was also given an incorrect history of surgery in 1997 rather than 1999, and told that the plaintiff returned to work after six months. He was not given any history of any other problems prior to the 2007 injury. He was provided with a copy of Dr Stuart’s first report, and his attention was drawn to Dr Stuart’s expectation that the plaintiff would recover from the aggravation caused by the 2007 injury by May 2008. He was asked to confirm whether the aggravation had ceased. His response was that the symptoms were continuing, and were due to the 2007 injury. He said that he considered that the plaintiff had a continuing incapacity due to that injury. The pre-existing back condition may have rendered the plaintiff susceptible to the aggravation. His employment was the substantial contributing factor to his condition when Professor Reilly saw him. He required formal rehabilitation, preferably through a multidisciplinary pain clinic or directed by a physical medicine specialist.
The defendant’s solicitors did not serve Professor Reilly’s report or call him to give evidence. The report was tendered by senior counsel for the plaintiff.
The defendant’s solicitors in May 2011 sent the plaintiff to Dr Virginia Pascall, occupational physician, for examination and report. Dr Pascall prepared a report of extraordinary length in the circumstances (23 pages). She had clearly been provided by the solicitors with a great deal of background information. She took issue with the neurological specialists as to whether the plaintiff’s radicular symptoms dated from the 2007 injury. She did not accept that he had aggravated his S1 radiculopathy as a result of that injury although she accepted that he had pain in his left leg. She also accepted that there was low back pain resulting from that injury. She thought that the left leg symptoms were muscular rather than neuropathic.
She accepted that the plaintiff suffered from depression. She thought that he had probably had some depression associated with alcohol abuse before the 2007 injury but that this had worsened after that injury, probably because he had so much time without purpose caused by the loss of his employment.
She considered that his primary complaints related to the degenerative changes in his lumbar spine and to muscular problems arising from those changes. She thought that the plaintiff’s complaint of a feeling of ants crawling in his legs was more likely to be caused by restless legs syndrome than neuropathic pain.
Dr Pascall thought that there was no evidence that the plaintiff was still suffering from depression by the time she saw him, although he may have been at an earlier time. She said that his obesity was a strong factor in the cause of his lumbar pain, as was his smoking. She criticised his use of Norspan patches as inappropriate, there being little evidence that his pain had diminished by using it, and it had not facilitated his ability to do things around the house, still less to resume a working life. She thought that the plaintiff had very poor pain coping skills, and she doubted whether this would alter. He would probably always attempt to avoid pain through passive strategies, the most harmful of which was his inactivity.
She did not think that his problems with sleep were causally related to the injury. There was in her opinion some symptom magnification present. She thought that the plaintiff was generally more capable than he presented, and thought there was a marked element of laziness about him. He presented in her view with a degree of incapacity which was not warranted.
She was also of the opinion that regardless of the injury, it would only have been a matter of time before the plaintiff developed symptoms of S1 nerve root irritation. There was, she thought, a substantial indication that the plaintiff’s symptoms were a result of progression of the degenerative changes, and the consequences of the 1999 surgery. She did not consider that he was suffering any continuing symptoms arising from the November 2007 injury. She acknowledged a relationship between the injury in 2007 and his presentation on assessment by her, arising from the general decrease in his muscular fitness and his lack of purpose in daily life, encouraging his sendentariness, and the loss of his job. Dr Pascall said that what she observed resulted from all of the negative factors of which the 2007 injury was the initiating cause. By the time she saw him, she said that there was nothing left of the original injury and its impact, and that most of the factors then observed would have presented by that stage regardless of whether the incident of 2007 had occurred or not.
She said that it would be very difficult for him to find employment, considering his complaints and his pain behaviours, in the context of his obesity and his previous lumbosacral injury and 1999 surgery. It would in her opinion have only been a matter of time before his lumbosacral region became symptomatic. If the 2007 incident had caused an aggravation of his lumbosacral condition, the aggravation would have ceased some time before she saw him.
In her view, the plaintiff was probably unemployable for any work for which he was suited based on skills and experience. To be employable he would need to be retrained in desk-based work and would require a career change accordingly. She thought that he would have benefited from a graduated return to work in suitable duties with the defendant within six weeks of the injury, but unfortunately the defendant was no longer in business by that time. If such a program had been available and the plaintiff had been well-motivated, she said that he would have been working full-time in suitable duties within six months. His incapacity for work was caused by factors including his lack of motivation and his poor capacity to deal with chronic pain. It would, in Dr Pascall’s opinion, have been only a matter of time before he would have been too much of a liability to an employer to consider giving him work, considering his age, obesity and lifestyle, regardless of any lower back pain. She thought it likely that by the time she saw him, whether or not the 2007 incident had occurred, he would have been on a disability pension. She was dubious about his assertions that he had engaged in bushwalking and camping before his injury, considering his obesity and excessive drinking on weekends.
She was asked to comment on his need for domestic assistance. She said that he was accustomed to receiving domestic assistance through his partner and her children, but that this was a different question from whether he should have domestic assistance. The assistance provided to him had made him more dependent and had encouraged his laziness and lack of effort. She said that if he was still living alone he would be able to look after himself. At most, he should need no more than two hours domestic care a fortnight, and an hour of gardening assistance. She did not regard this need as causally related to the 2007 injury, but rather to his pre-existing degeneration and his obesity.
Dr Pascall generally agreed with Dr Knox’s opinion, with the exception that she did not believe that the plaintiff suffered from a psychiatric or psychological disorder, but rather that the findings were based on his personality characteristics including lack of pain-coping skills and motivation.
Shortly before trial, Dr Brooder was asked by the plaintiff’s solicitors to comment on the defendant’s reports. Dr Brooder could not understand the reason for Dr Stuart’s change of opinion between his 2009 and 2011 reports. There was no rationale for the change of opinion emerging from the second report. Dr Brooder remained of the view that it was clear that the aggravation to the underlying degenerative condition caused by the injury in November 2007 had not ceased by May 2008 as expected but had continued for very much longer.
Dr Brooder had no comments on the report of Professor Reilly and apparently agreed with his opinion.
He corrected a misapprehension of Dr Pascall as to the sensory distribution of symptoms in the plaintiff’s left leg and foot. He remained of the view that the plaintiff’s symptoms in the left leg and foot were causally related to the 2007 injury, and disagreed with Dr Pascall about restless legs syndrome. He said that generally Dr Pascall had failed to acknowledge that the plaintiff, following his 1999 surgery, had been able to return to full-time unrestricted employment over a number of years, and that his persistent low back pain and associated disability had developed only following the 2007 injury. He adhered to the opinion he had previously expressed.
Dr Brooder gave oral evidence by telephone. He expanded upon his explanation for his adherence to his original opinion, and disagreement with Dr Pascall. When cross-examined he adhered to his opinion, and did not agree with the proposition that the plaintiff might not be able to continue working if the 2007 incident had not occurred. Nor did he have any confidence that the plaintiff had any practical residual earning capacity.
Dr Le Leu also gave evidence by telephone. He generally adhered to the opinion he had expressed in his report.
Dr Stuart was asked to comment on Dr Brooder’s reports. He said that he found no reason to change his original opinion. He said that in medical assessments aggravation was usually considered to last for a maximum of six to twelve months. After that period, continuing symptoms were considered to be due to the underlying degenerative disease. Sometimes such symptoms would persist indefinitely, but were properly regarded as caused by the underlying degeneration. It was in his opinion illogical to presume that aggravation might persist indefinitely. Aggravation persisted for a finite period only.
Dr Stuart gave oral evidence by telephone. He has 35 years of clinical and surgical experience as a neurosurgeon. By the time of the trial he had ceased clinical practice but was engaged in medico-legal work. He is clearly a neurosurgeon of considerable eminence within the profession.
He was unmoved in cross-examination and adhered to the opinions he had expressed in his reports.
Dr Pascall provided a brief written response to Dr Brooder’s final report. She remained of the view that her opinion was a reasonable one. She did not give oral evidence.
Consideration of the evidence in relation to damages
I generally accepted the plaintiff as a truthful witness, although I thought that he had a poor memory for precisely when in the past particular events had occurred. It was not made clear during his evidence in chief that he was not in paid employment between June 2001, when he ceased work at Testcrete, until he started work with Canberra Sand and Gravel, probably during 2005. During that period of some four years he worked voluntarily at a radio station but did not resume paid work, or, as far as I can gauge from the evidence, engage in any heavy work.
As against that, he worked from then through until the injury, for something like eighteen months to two years, and his evidence that he had no problems with his low back as a loader driver was not challenged.
The evidence is clear that he had a degenerative condition in the lumbosacral spine, and that he had had surgery in May 1999.
It seems to me that, taking the plaintiff’s case at its highest, I would have to conclude that his prospects of progressive degeneration interfering with his earning capacity were considerably higher than for an average person without his pre-injury low back history and condition. This is probably best reflected by a higher than usual reduction in the amount which might otherwise be awarded for loss of earning capacity for the future.
As to the medical evidence, I found Dr Stuart’s alteration of opinion between April 2009 and May 2011 difficult to follow, and somewhat illogical. Dr Stuart acknowledged that the plaintiff had continuing low back symptoms in 2011, but, contrary to his 2009 report, expressed the opinion that the effects of the 2007 injury must be taken to have lasted no more than about six months, so that any continuing symptoms thereafter were not attributable to the injury but rather to the underlying degenerative condition. He did not seem to be saying that, absent the 2007 injury, the plaintiff would have developed such symptoms by mid-2008. He seemed simply to be trying to reconcile the facts with the principle that generally an aggravation of such an underlying condition is expected to last only six months. It is clear that in the present case the aggravation continued long after, and indeed still continues. I prefer the opinions of Dr Brooder and Professor Reilly. Their view, in broad terms, is that the injury of November 2007 is and remains a cause, if not the sole cause, of the plaintiff’s continuing low back and left leg symptoms. I acknowledge that the plaintiff was vulnerable to some other injury or triggering factor which might have led to increased low back and left leg symptoms if the 2007 injury had not happened, and that is something I must take into account in assessing damages, both for the period from November 2007 to date and for the future.
I accept the opinion of Dr Knox as to the psychological and psychiatric aspects of the case. That opinion is unchallenged. I accept that the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood when Dr Knox saw him in December 2009, and I accept Dr Knox’s opinion that by and large the plaintiff is unemployable in the open market by reason of those psychological and psychiatric issues.
I prefer the evidence of Dr Le Leu to that of Dr Pascall. Dr Le Leu comes across to me as objective and open-minded, where as Dr Pascall gives the impression that she saw her role as something of a forensic investigator. Where she expressed opinions as to the neurological aspects, as I have said, I prefer the opinion of the experts with neurological qualifications and experience. I accept the opinion evidence of Dr Le Leu that the plaintiff will probably continue to have the same level of symptoms for the foreseeable future, and that his disabilities and complaints were caused by the 2007 injury. I accept his opinion that the plaintiff could possibly work in a sedentary or semi-sedentary position, but that opinion is based on his physical condition and is to be read with Dr Knox’s opinion based on the psychological issues. It does not seem to me that there is any real likelihood that the plaintiff will be offered paid employment in such a position. His literacy skills are poor. He has a history of back injury, which will militate against employers offering him work. He has been out of the workforce for six years. I accept that he is effectively unemployable for the future. He is probably fortunate that the responsibility of looking after his partner’s children gives him some focus and meaning in life.
Damages
Senior counsel for the plaintiff seeks general damages of $160,000.00. Counsel for the defendant submits that an appropriate range would be $90,000.00 to $100,000.00.
I accept that the plaintiff has moderately severe back pain every day, and that it is worse from time to time depending on the activities he engages in. It will be with him for the rest of his life. It is accompanied by left leg pain and other leg symptoms which will also be permanent. I take account of the plaintiff’s vulnerability following his earlier surgery and degenerative disease in the lumbosacral spine, which may have become symptomatic due to some other event if he had not been injured in November 2007. I award $120,000.00 for general damages. I apportion that sum equally between the past and the future. The past component attracts interest at the rate applicable under the general law. The past component should be apportioned relatively evenly over the six years since the injury, perhaps a little weighted towards the earlier part of that period. For interest on general damages I award $8,000.00.
The plaintiff’s treatment expenses to the date of trial amounted to some $60,000.00, all paid by the defendant’s insurer. Further payments will have been made since trial. On delivering these reasons, I propose to stand the matter over to provide the parties with an opportunity to lodge an updated list of payments by the insurer, to enable me to allow an accurate amount for past treatment expenses, and a more accurate estimate of likely future expenses. This will also provide an opportunity for the calculation of a precise Fox v Wood (tax on periodical payments of compensation) figure to the date of judgment.
It was common ground at trial that the weekly figure to be used for the calculation of past and future loss of earnings was $671.37 net. This would result in an award which I would round to $210,000 for the six years since the injury. That figure should be reduced to take account of the possibility that, if the injury had not occurred, the plaintiff might have undergone some other incident or event which triggered low back and left leg symptoms, causing him to lose time from work. I propose to reduce the figure by 10% on that account, to $189,000.00. I allow that sum for past loss of earning capacity.
That amount, after deducting workers’ compensation, attracts interest at the prescribed commercial rate. I shall await further evidence as to the workers’ compensation, as I mentioned above.
I allow $17,000.00 for loss of superannuation benefits for the period up to judgment, being 9% of the sum I allowed for past loss of earning capacity,.
The plaintiff seeks a figure of some $23,500.00 for future treatment expenses.
It would be artificial to attempt to arrive at such a figure mathematically.
The plaintiff will have a continuing need for prescribed medication, and visits to his general practitioner for prescriptions. He may have other expenses, perhaps, although it is unlikely, including surgery. I award $20,000.00 for future out-of-pocket expenses.
As to the Griffiths v Kerkemeyer component, I am satisfied that the plaintiff’s injury has caused a need for the provision of services to him around the house and garden. These have been provided to him without cost, principally by his partner and to some extent by her older children, with help from time to time from other family members and friends. The claim on behalf of the plaintiff is based on an hourly rate of $22.00 which seems to me reasonable. I am persuaded that the evidence justifies an award for an average of five hours’ assistance a week over the period since the injury. The figure arrived at should be discounted to reflect the possibility that other events in the plaintiff’s life, if the injury had not occurred, might at some time have given rise to a need for some or all of these services, for some of the period. For the past Griffiths v Kerkemeyer component I allow $50,000.00. That figure attracts interest at the prescribed commercial rate. In the absence of submissions by counsel on either side as to the calculation of that interest, I propose to adopt the conventional rate of 9% per annum, and to apportion the amount awarded for services evenly over the period since the injury. Interest will accordingly be allowed in the sum of $18,000.00.
For the future, I take account of the plaintiff’s obesity and his smoking history, as well as his underlying degenerative disease of the lumbar spine. I suspect that a point would have been reached regardless of the injury where the plaintiff would have required a good deal of the care he presently needs. I propose to allow an amount based on continuing care at the same rate for 20 years. The 3% multiplier is 788. I allow $85,000.00.
This leaves the components for interest on past loss of earnings, loss of earning capacity and superannuation benefits for the future, and past treatment expenses and tax on compensation to be quantified. I shall stand the matter over to a date convenient to the parties for further evidence and submissions on these components, prior to the entry of judgment.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 31 October 2013
Counsel for the Plaintiff: Mr FJ Purnell SC & Mr JR Sainty
Solicitors for the Plaintiff: Blumers Personal Injury Lawyers
Counsel for the Defendant: Mr AR Muller
Solicitors for the Defendant: Moray & Agnew
Date of hearing: 18, 19, 20 April 2012
Date of judgment: 31 October 2013
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