Davutovic v Contract Hydraulics Services Pty Ltd
[2015] VCC 1767
•8 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-04341
| JOHN DAVUTOVIC | Plaintiff |
| v | |
| CONTRACT HYDRAULICS SERVICES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 November 2015 | |
DATE OF JUDGMENT: | 8 December 2015 | |
CASE MAY BE CITED AS: | Davutovic v Contract Hydraulics Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1767 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the back – pain and suffering only – range case – credit
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Sabo v George Weston Foods [2009] VSCA 242; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering for injuries suffered in the course of work with the defendant, in particular, on or about 28 June 2002.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M J Garnham | Slater & Gordon Ltd |
| For the Defendant | Mr P A Scanlon QC with Ms F Spencer | Thomson Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him throughout the course of his employment with the defendant, including on or about 28 June 2002 (“the work injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the back.
6 The plaintiff relied upon three affidavits, two sworn by the plaintiff on 14 April 2014 and 6 November 2015, and one sworn by his wife, Angela, on 17 November 2015. The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff. However, I will refer to the evidence of the plaintiff and witnesses in my reasoning. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 The founding legal principles for serious injury applications are discussed in the many well-known case authorities.[2] I will only refer specifically to case authorities as required on particular issues in contention.
[2]See for instance Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 and Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592
The Issues
9 Counsel for the defendant informed the Court that:
· This is a “range case”;
· The plaintiff has retained a capacity for full-time employment and sporting pursuits;
· In 2014, the plaintiff developed an injury to his cervical spine for which he receives his current treatment. This requires a consideration of the case authority of Peak Engineering & Anor v McKenzie;[3]
· the plaintiff’s credit was in issue.
[3][2014] VSCA 67
The Plaintiff’s credit
10 I take the view that there was no real challenge to the plaintiff’s credit. The plaintiff answered questions directly. His evidence was consistent with what he told medical witnesses. His evidence is supported by his wife’s evidence, which was not challenged. There is no medical evidence to suggest that the plaintiff has attempted to exaggerate or embellish his symptoms in the clinical setting, or that his condition is functional. Mr Carey, orthopaedic surgeon, said he was unable to detect any non-organic signs of abnormal illness behaviour. Mr Weaver, orthopaedic specialist, said that “[h]e clearly presented as a well-motivated individual …”.[4] I formed the view that the plaintiff presented as a hardworking man who was keen to maintain employment. This is what he told the Court. I formed the view the plaintiff was a credible witness.
[4]Plaintiff’s Court Book (“PCB”) 89D
Analysis of the evidence
11 Based on the medical evidence, I am satisfied the plaintiff suffered a compensable injury arising out of his employment with the defendant. All of the medical witnesses accepted that the plaintiff suffered injury to his lumbosacral spine in the form of an aggravation and or the development of degenerative changes and including an L5-S1 disc lesion.
12 The injury was variously described as:
· Mild anterior and posterior spondylosis with spondyloarthropathy from L4 to S1[5]
[5]Dr Chen – PCB 33
· Discogenic low-back pain[6]
[6]Dr Naidu – PCB 34
· L5-S1 disc lesion[7]
[7]Dr March – PCB 41
· Symptomatic deterioration of the lumbosacral discs/aggravation of longstanding lumbar spondylosis[8]
[8]Mr Carey – PCB 56 and 57
· Continuing L5 left-sided radiculopathy from a disc injury at L5-S1[9]
[9]Professor Marshall – PCB 64
· Lower lumbar invertebral disc degeneration[10]
[10]Mr Weaver – PCB 89D
· L5-S1 degenerative disc changes with encroachment of the left L5 nerve root[11]
[11]Mr Kudelka – PCB 89K
· Flare-up of mild degenerative changes at L4-5, L5-S1 level with radiculopathy of the left L5 nerve root[12]
[12]Mr Khan – PCB 76
· Lumbosacral disc problem[13]
· Continuing low-back symptoms attributable to degenerative disease in his spine (not work related).[14]
[13]Mr Jones – PCB 89S
[14]Associate Professor Buzzard – Defendant’s Court Book (“DCB”) 8
13 Other than Associate Professor Buzzard, general surgeon, all medical witnesses accepted that the plaintiff’s low-back condition is work related.
14 Counsel for the defendant did not identify any intervening cause or event, save for relying upon the report of Associate Professor Buzzard, who said:
“… His back problem is probably now not related to the specific injury of 12 years ago or indeed the earlier injury. It is related to the underlying degenerative disease process.”[15]
[15]DCB 8
15 Associate Professor Buzzard was the only witness to express that view. He had examined the plaintiff on one occasion in 2015. He does not say why the current symptoms no longer relate to work and when they ceased to be work related.
16 Accordingly, I accept the majority of the medical evidence is that the plaintiff’s low-back condition is work related.
17 Further, the defendant admitted liability for the plaintiff’s s98C permanent impairment claim. In Ansett Australia Ltd v Taylor,[16] Ashley JA said that in cases where liability in relation to a claim is accepted:
“… such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”
[16][2006] VSCA 171
18 No such explanation was offered by the defendant in this case. I accept this is a relevant evidentiary admission by the defendant, to be weighed up in all the circumstances of the present case.
Pre-injury – back
19 The plaintiff deposed that a few years prior to the incident, he had a period of low-back pain. This occurred when he was moving a large and heavy metal plate. He thought he had a day or two off work and three to four physiotherapy sessions. He did not recall experiencing leg pain, only back pain. He was able to continue with his work and leisure pursuits without restriction. He was playing football and leisure pursuits of snowboarding, skiing and surfing prior to the work injury. I accept that, prior to the work injury, the plaintiff was asymptomatic in respect to his back.
20 It is necessary for me to consider the evidence as to the consequences to the plaintiff of the back injury.
Pain
21 The plaintiff’s evidence is that since the work injury in 2002, he has progressively become more restricted with low-back pain. He has had persistent/constant pain which at times (two or three times per month) is “debilitating”[17] and at times, “severe”.[18] At times, he notes pain going into his left leg, pins and needles in his left leg and also, to a lesser extent, in his right leg. The pain is aggravated by sitting, especially driving, sneezing, bending, putting on his shoes and socks, working, twisting and working at a level below the knees.
[17]T11, L14
[18]T11, L9
22 The plaintiff reported to all medical witnesses the level of pain he suffers. All doctors accepted the plaintiff suffered pain.
23 Dr Chen, general practitioner, and Dr Naidu, sport and exercise medicine physician, described the pain as “chronic back pain”. The plaintiff reported to Dr Naidu that the pain consistently flares up when he works at a level below his feet, in particular, digging trenches and laying piping below ground. His symptoms flare up when working on roofs.
24 The plaintiff reported to Dr March, sports and orthopaedic doctor, that he suffers low-back pain which occasionally radiates as tingling to the left buttock and left leg, with some weakness of the left leg, particularly when driving for more than one hour.
The plaintiff’s wife, Angela, deposed that since the plaintiff injured his back in 2002, he has suffered from constant back pain.[19]
[19]PCB 18B, paragraph [4]
25 Based on the evidence of the plaintiff, medical witnesses, and the evidence of his wife, I accept the plaintiff has reported constant ongoing low-back pain since the work incident in 2002. He was consistent in reporting the level of back pain he suffers to the medical witnesses. I accept that the experience of pain for the plaintiff is a substantial consequence, and one that I can take into account. I note the pain has continued for thirteen years.
Treatment
26 The plaintiff’s evidence is that currently, he takes medication in the form of Norgesic and Voltaren. He takes Norgesic four or five times per week, and Voltaren approximately four, five or six times per week. If he does not take the medication, he is in “a heap” of pain, comes home a very grumpy person, and probably cannot attend work the next day.[20] He has remained on anti-inflammatory medication almost continuously, and painkilling medication.
[20]T49, L5-7
27 The plaintiff’s evidence is that over the past thirteen years, he has obtained treatment for his lower back in the form of osteopathy, chiropractic, physiotherapy, Pilates, epidural injection, as well as referral for various scans and referral to an orthopaedic surgeon. Currently, he receives physiotherapy treatment for his back, and he performs Pilates exercises daily.
28 No medical witness suggested the plaintiff’s treatment is inappropriate.
29 In 2012, Mr Kudelka, orthopaedic surgeon, was of the view that the plaintiff should be referred to a neurosurgeon to consider surgery.
30 In 2013, Mr Carey discussed with the plaintiff operative treatment in the form of spinal fusion. The plaintiff decided against this and favoured non-operative conservative management.
31 In 2013, Mr Carey recommended ongoing Pilates and if the pain worsened, pain management. This recommendation had not changed in 2015.
32 In November 2015, Mr Kahn, orthopaedic surgeon, recommended pain management and multidisciplinary rehabilitation.
33 In August 2015, Dr Naidu recommended Pilates-based rehabilitation.
34 In October 2015, Dr Chen recommended Pilates, physiotherapy and rehabilitation.
35 In 2015, Dr March recommended Pilates and core exercises. Further, the plaintiff may require radiofrequency denervation. He said the plaintiff’s prognosis is poor.
36 I accept the level of treatment the plaintiff receives is appropriate and that it is likely he will require further ongoing treatment. This is a consequence I can take into account. Given the length of the treatment and the likely future treatment, I consider this is a consequence at the high end of the scale.
Sleep
37 The plaintiff’s evidence is that his sleep is affected. He suffers interrupted sleep and has difficulty returning to sleep. The plaintiff’s sleep difficulties were confirmed by his wife. Accordingly, I accept that sleep disturbance is a consequence which I can take into account.
Personal relationships
38 The plaintiff’s evidence is that his intimate relationship with his wife has been affected. This was confirmed by his wife. I accept that this is a consequence I can take into account.
39 The plaintiff’s evidence is that he has four children between the ages of four to twelve years. His two youngest children are aged four and six. The plaintiff’s evidence is that he has been unable to pick up his two younger children since they were six months’ old. He said the children are aware that he cannot pick them up and it makes him sad. I accept that this is a significant consequence for a parent.
40 The evidence of the plaintiff’s wife is that the plaintiff is restricted in his ability to undertake normal activities around the home. The household is busy with four children. The plaintiff tries to assist but it is clear to her that he is in pain. He is restricted in gardening. The plaintiff’s evidence is that he does mow the lawns but on occasions, his son assists. I accept that the plaintiff is restricted in the activities he performs at home, which is a consequence I can take into account.
Sporting and recreational activities
41 The plaintiff’s evidence is that prior to the work injury, he was active in sport and recreational activities. He enjoyed surfing, both on a board and body surfing. He expressed a love of surfing. He does not stand and surf a wave, and could not recall the last occasion he had done so; he estimates it was two or three, or perhaps three to four years ago. He did attempt it since that time, but said it caused him pain, and he was forced to leave the water and take medication. He conceded he will lay down and float on a surfboard while his children are in the water.
42 Prior to the work injury, he used to windsurf approximately twice per week during summer. Due to the low-back pain, he has not windsurfed for about five years.
43 Prior to the work injury, the plaintiff enjoyed snowboarding. He would go to the snow for one week each season when he would snowboard. Due to the back pain, he has not snowboarded for approximately three years. His two older children snowboard and it upsets the plaintiff that he is unable to participate in this activity with his children.
44 The plaintiff’s evidence was that he coached his ten-year-old daughter’s basketball team in 2015. His back injury restricted how he coached, as he was unable to run about freely or demonstrate moves.
45 The plaintiff cannot kick a football or engage in general activities with his children because of the back pain. If he kicks a football, it is possible that he will require the next day off work to recover.
46 I accept that for a person such as this plaintiff, who has been an active participant in sporting activities in the past, to not be able to participate in sporting activities which he enjoyed and in which his family participate, is a significant consequence which I can take into account.
Work
47 The plaintiff’s evidence is that at the time of the work injury, he was employed as a leading hand performing commercial plumbing. As a leading hand, he was able to rely on other workers to do the heavy lifting. He ceased that job due to a downturn in work and obtained employment with another commercial plumbing company, which he ceased due to a downturn in business. He agreed that between 2002 and 2007, the only interruption in his work was due to a downturn in business.
48 The plaintiff began to work for his own company, Baytech Plumbing Pty Ltd, partly because of ongoing difficulties with his back. By working for himself, he thought he would be able to control how much strain he was putting on his lower back.
49 The plaintiff has become more limited in what he can do at work. He is reliant on employees to perform the more physically demanding work. The plaintiff gave evidence that his business has changed, due to a downturn in commercial work, and he has switched to domestic work.[21] He is no longer employing plumbers because of the downturn. The plaintiff said that in terms of employees, he would need to put on an apprentice first,[22] and work on growing at a steady pace and getting to the stage of employing fully qualified plumbers.[23] His last employee was an apprentice. However, the plaintiff’s evidence is that he was not able to supervise the apprentice each day, as the back condition meant the plaintiff would take time off work. He ultimately released his apprentice as a result.
[21]T31, L19 – 22
[22]T32, L12
[23]T31, L22 – 23; T32, L23 – 24
50 The plaintiff’s evidence was that when he aggravates his back, he must take blocks of time off work to recover, usually a week. He gave evidence that this occurred four to five times in a year.
51 The plaintiff cannot lift heavy weights, walk up and down stairs, and ladders aggravate the back pain. He also finds that he is unable to do much of the heavier ground work such as drainage work (which entails digging), as it causes back pain. He finds it difficult to work on his knees. When working under a sink, he is not as efficient, as he cannot use both hands, he tends to require one hand for support, or must carry out the work lying down. Often at the end of the day his back is very stiff.
52 Further, the plaintiff’s evidence was that he had reduced the amount of plumbing work he could undertake. He estimated it had reduced to about 40 per cent because of his injury.
53 A number of medical witnesses imposed restrictions upon the plaintiff’s capacity for work.
54 Dr March said the plaintiff was performing permanent light duties, because bending, lifting, pulling et cetera aggravate his pain. The plaintiff will require time off to overcome episodes of pain.
55 Mr Carey[24] said the plaintiff will be permanently precluded and restricted in relation to employment duties which involve bending, lifting, twisting or stooping, pushing, pulling or lifting.
[24]PCB 58
56 Mr Kudelka said the plaintiff was performing modified alternate lighter duties.
57 Mr Kahn said the plaintiff did not have the capacity to perform his pre-injury duties, either on a part-time or full-time basis, which he considered was permanent. He imposed restrictions in relation to employment and activities, namely, no bending, lifting, twisting or stooping, and no pushing, pulling or lifting.
58 In September 2015, Mr Beckman, physiotherapist, said due to the nature of his work, the plaintiff should avoid prolonged work below knee level, heavy lifting, repeating bending and twisting – in particular, digging, and prolonged sitting or driving.
59 Based on the medical evidence, and the plaintiff’s evidence, I accept the plaintiff cannot return to pre-injury work. I accept he has restrictions on his ability to engage in unrestricted employment. The plaintiff’s own evidence is that he cannot perform work which involves heavy digging and below-knee work. His evidence is that this has affected his business and, in particular, the type of work he is able to quote on. Further, the plaintiff said that currently, he is probably down to about 40 per cent of plumbing work that he could undertake, and it is dropping each year. I accept this is consistent with his evidence that he is unable to employ an apprentice. I accept the plaintiff is restricted in his ability to engage in unrestricted employment. This is a consequence I can take into account.
60 I accept the plaintiff has suffered the consequences I have examined above as a result of his work injury. Those consequences are supported by the evidence of the plaintiff, the medical evidence and the evidence of his wife. I accept the plaintiff had a physically active life and, to all intents and purposes, now lives with his situation and gets on with it. I accept the plaintiff has continued working but he no longer has the ability to engage in unrestricted work. He has had to modify his work activities to accommodate the constant pain.
Disentanglement – the neck
61 Counsel for the defendant submitted that the plaintiff was complaining of other medical conditions which impede the plaintiff’s activities of daily living.
62 The case authority of Peak Engineering & Anor v McKenzie[25] requires that where different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences that are operative at the date of trial. This is necessary in order to determine which of the pain and suffering consequences are attributable to which injury.
[25]Supra
63 The plaintiff agreed that since 2008, he had received osteopathy treatment for neck stiffness. Further, the plaintiff deposed that in August 2014, he made a worker’s compensation claim for a neck injury. He was off work, he thought, for five days. He said his neck locked on a 45-degree angle, which he was unable to straighten. The neck improved. He has not had pain in the neck since the initial neck injury. Now he suffers “a bit of discomfort and stiffness”.[26]
[26]T51, L15–16
64 Currently, the plaintiff’s neck becomes stiff at times, but it does not keep him away from work. He keeps on top of it with osteopathy and physiotherapy by means of a preventative maintenance program. He does not take medication for his neck.[27] He deposed that on occasions, he gets pain going down his arms. The pain is not significant when compared with the ongoing and persistent nature of the low-back pain.
[27]T49, L2
65 The only medical witness to refer to the neck pain was Mr Jones, who said it was unrelated to the back pain and that ongoing back pain remains his problem.[28]
[28]PCB 89R
66 Having considered the evidence relating to the neck condition, I accept the plaintiff suffers neck stiffness on occasions which is managed by a preventative maintenance program with an osteopath and physiotherapy, and for which he no longer takes medication, nor does he take time off work. I take this into account when attributing pain and suffering consequences to the low-back injury. In accordance with Peak Engineering & Anor v McKenzie,[29] I have focused solely on the consequences of the low back injury.
[29]Supra
The Plaintiff’s age
67 I accept that all of the above consequences of the low-back injury are especially significant, given the plaintiff’s relatively young age of forty-four years.
68 In Stijepic v One Force Group Aust Pty Ltd,[30] the Court said:
“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[30](Supra) at paragraph [43]
69 I was referred to the medical opinions of Mr Khan and Dr March regarding the prospects for deterioration in the plaintiff’s low-back condition. Mr Khan opined that the plaintiff was likely to experience further deterioration and the development of progressive degenerative arthritis in his lumbar spine and facet joints of his back. Dr March said the plaintiff’s prognosis is poor. The plaintiff will continue to suffer and will continue to be on light duties at work and require time off to get over episodes of back pain.
70 I accept the plaintiff’s evidence about the impact of the low-back injury upon his work, as well as his capacity to participate in the recreational activities that he enjoyed prior to the work injury. I consider it is a very considerable loss for a man aged forty-four to be now effectively precluded from the pre-injury work he enjoyed, and the physical activities that provided him with so much pleasure. Of itself, for a young, active man, this is a very considerable consequence.
Stoicism
71 I accept that the plaintiff is stoical. His wife described him as that. A number of the medical witnesses commented favourably upon his persistence in working. It was my view that the plaintiff presented as stoical. He was not given to exaggeration and he gave his evidence in a most uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his work and everyday activities. I based my impression on the way he presented in the witness box and the comments of a number of the medical practitioners.
72 I accept the injuries suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain.[31]
[31]Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Retained capacity
73 Counsel for the defendant submitted that in considering the consequences to this plaintiff, I must take into account the capacities the plaintiff has retained.
74 I accept the plaintiff has retained a limited capacity to undertake modified work. He has lost the capacity to engage in unrestricted employment. He has retained virtually no ability to engage in the sports that he pursued before his injury, namely windsurfing, skiing and surfing. The evidence is that on a daily basis, he suffers from pain which warrants prescription medication most days of the week and some medication probably every day of the week. His family life is affected, in particular, his engagement with his children and their activities, his ability to assist his wife in domestic activities and in their intimate relationship. I am not persuaded that what the plaintiff has retained outweighs the very considerable consequences he has suffered.
Permanency
75 I accept that the plaintiff has had a continuity of symptoms and treatment since the work injury. The plaintiff’s evidence was that since injuring his back in 2002, he has never been free of back pain.[32] No medical witness suggested improvement.
[32]T11, L5
76 I accept the plaintiff’s back injury is permanent. He has suffered for thirteen years and the medical evidence is guarded as to the future.
Conclusion
77 I am satisfied the plaintiff was involved in a work injury which, to this plaintiff, resulted in him experiencing symptoms of a physical nature to his low back. For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to him of his impairment can reasonably be described as “serious”. I accept the back injury has consequences to the plaintiff that, when judged by a comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable and certainly more than significant or marked”. The consequences of his back injury have impacted upon his life as he knew it before the accident. In considering the consequences, I have not treated each consequence as equal but rather, attributed appropriate weight to each consequence in the light of the evidence. In my experience, the consequences measure up well against other serious injury applications where plaintiffs have been successful.
78 Accordingly, I propose to grant the plaintiff leave to bring proceedings to recover damages for pain and suffering for the injuries he suffered in the course of his employment with the defendant, including on or about 28 June 2002.
79 I will hear the parties on costs.
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