Dean v Crossway Holdings Pty Ltd
[2011] VSCA 198
•30 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3866 of 2009
| WILLIAM THOMAS DEAN | Appellant |
| v | |
| CROSSWAY HOLDINGS PTY LTD | |
| Respondent |
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| JUDGES | NEAVE, MANDIE AND HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 May 2011 |
| DATE OF JUDGMENT | 30 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 198 |
| JUDGMENT APPEALED FROM | Dean v Crossway Holdings Pty Ltd (Unreported, County Court of Victoria, Judge O'Neill, 25 September 2009) |
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ACCIDENT COMPENSATION – Appeal from unsuccessful application to commence proceedings to recover damages for pain and suffering and loss of earning capacity – Accident Compensation Act 1985, s 134AB(16)(b) – Injury sustained in first incident followed by more serious injury in second incident – Claim in respect of injury arising from second incident already settled – Whether first injury a serious injury – Whether first incident resulted in loss of earning capacity of 40 per cent or more – Insufficient evidence to assess appellant’s loss of earning capacity in suitable employment – Appeal allowed in part.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R P Gorton QC with Mr T J Seccull | Slater & Gordon Lawyers |
| For the Respondent | Mr M F Wheelahan SC with Mr S A O’Meara | Herbert Geer Lawyers |
NEAVE JA:
The appellant, William Thomas Dean, was employed on his family’s farm by the respondent, Crossway Holdings Pty Ltd (‘Crossway Holdings’). On 6 August 2001, he injured his back and neck while lifting and stacking 50 kilogram bags of potatoes (the ‘first incident’). On 20 May 2002, he suffered an injury to his lumbar spine, while working on the farm (the ‘second incident’). The insurer, as the agent of the Victorian WorkCover Authority, issued a certificate consenting to the bringing of common law proceedings to recover damages for the injury to the appellant’s lumbar spine, arising out of the second incident, on the basis that this was a serious injury.[1] This common law claim was settled by the insurer.
[1]Accident Compensation Act 1985, s 134AB(16)(a)(ii).
The Authority did not issue a similar certificate in respect of the injury arising from the first incident. On 25 September 2009, a County Court judge refused the appellant leave to commence proceedings under s 134AB(16)(b) of the Accident Compensation Act 1985 (the ‘Act’) to recover common law damages for pain and suffering and loss of earning capacity caused by the first incident, on the basis that it was not a serious injury as defined by ss 134AB(37) and (38) of the Act.[2] The appellant now appeals against that decision.
[2]These provisions are set out at [71] below.
Although the written submissions filed on behalf of Crossway Holdings raised questions about the nature of the appeal, both counsel ultimately accepted that this appeal is governed by s 134AD of the Act, which requires this Court to ‘decide for itself whether the injury is a serious injury’.
The evidence
The two main issues in contention before the judge below were:
(1)whether the appellant injured his lumbar spine as well as his thoracic and cervical spine in the first incident; and
(2)if his lumbar spine was not injured in the first incident, whether the injury to his cervical and thoracic spine was a serious injury.[3]
[3]Definition of serious injury in s 134AB(37) (a) of the Act.
At the commencement of the trial, the appellant was aged 35 and living with his wife and five dependent children on the family farm.[4] He had left school during year 10 and had worked on the farm as a general farmhand since he was 15. The farm covers approximately 1,800 acres, 1,500 of which is used to ‘run cattle for meat and sheep for meat and wool’. The balance is used to grow a variety of crops, including wheat, oats, barley and potatoes.
[4]The appellant lived on and owned 80 acres of the 1,800 acre farm.
Most of the evidence about the nature of the appellant’s injury was in the form of medical reports. The appellant and Mr Stanley Schofield, an orthopaedic surgeon who treated the appellant for the injury to his lumbar spine, gave viva voce evidence and were cross-examined in the proceedings below.
The appellant’s evidence
In the first affidavit filed in support of this claim, which was sworn on 7 November 2007, the appellant said that, before the first incident, he had suffered an injury to his neck after falling over a branch, but that the neck pain had settled after treatment. He said that, up until the first incident, he had been able to operate machinery, drive trucks and tractors, and perform strenuous manual labour, often in ‘tight and awkward positions’.
He said that he had sought medical treatment from his general practitioner the day after the first incident and had returned to work on 11 September. However, at lunch time on that day, he was forced to stop driving a tractor because of pain. On 12 September 2001, when Dr Richard Oliver took over his care, the appellant’s main problem was pain in the mid to upper part of his back, but he was also having some lower back pain.
The appellant said that he had returned to work on modified duties on 8 October 2001, but then had another week off before returning to work on 24 October 2001. After his return to work, he had done modified duties, avoiding jobs involving repetitive lifting and bending, until he injured his back again in the second incident. Following the second incident and unsuccessful surgery on his lumbar spine, he ceased all work on 15 February 2007 and has not worked since. The appellant said that:
I believe I remain incapacitated for work as a farmhand and that this will be a long term situation. I also believe that I am unable to perform any regular work which involves heavy or repetitive lifting or bending or twisting. I would also be unable to perform any regular work which involves twisting, bending or stooping of my neck.
…
I continue to suffer the effects of the injury I suffered in the incident on 6 August 2001. I continue to suffer back pain which extends up into and between my shoulder blades. I also continue to suffer pain in my neck together with pain and numbness into my left shoulder, left arm and into the fingers of my left hand. I also suffer lesser type symptoms into my right arm and into the fingers of my right hand. I also suffer headaches.
The injury to my back and neck has impacted on my lifestyle, my day to day living activities and quality and enjoyment of life. I struggle to cope with the pain and physical limitations that the injury is placed on me. I am often moody, irritable and stressed.
...
In the financial year ending 30 June 2001, my gross earnings from my employment was $24,708.00. Consequently, I estimate that my injury has contributed to a loss of income equivalent to approximately $475.00 gross a week in the periods I have been absent from work as a result of the injury. I anticipate I will continue to suffer a loss of wages in that amount into the future.
He deposed that, in the period between September and October 2001, his general practitioner, Dr Oliver, prescribed him Mersyndol Forte, Panadeine Forte and paracetamol but that, after Dr James Choong had taken over his care in March 2004, he ceased taking that medication and was prescribed morphine patches instead.
In his second affidavit, sworn on 21 August 2009, the appellant described other occasions on which he had injured his back prior to the first incident, beginning with a fall from the tray of his father’s truck when he was 11 or 12. However, he deposed that, until the first incident, he was capable of performing hard physical work for long hours and regularly playing sport. He said that, after the first incident, he had never got back to doing the kind of work he had done previously and was generally limited to driving a tractor and feeding livestock.[5] While the main focus of his pain ‘was on the upper spine [he] was also getting pain in [his] lower back from soon after the incident’. As a result, his doctor had ordered a CT scan which showed a lower back problem.
[5]He gave similar evidence in re-examination.
The appellant deposed that:
Following the incident on 6 August 2001 I did not get back to work performing the type of work I had done as a farm hand prior to the incident. At various times I was either off work altogether or I was restricted to work which did not involve heavy lifting or bending. Generally I was limited to driving tractors and trucks and feeding the livestock. That was the sort of work I was doing when I injured my back in the further incident on 20 May 2002 …
Since making my previous affidavit my condition has remained much the same.
As at the date of the second affidavit, Dr Choong had prescribed MS Contin and Endep. The appellant was also taking Diazepam, as a muscle relaxant, but stopped doing so because of side effects.
In his evidence-in-chief, the appellant said that his current symptoms were from the top to the bottom of his spine. These varied and ‘[t]he low back can be the worst at – most of the time but the upper back can be just as bad’. He was still seeing his general practitioner and had been having physiotherapy treatment on the whole of his back for the past three or four years. Before the first incident, he had been able to work from 40 hours a week to 80 hours during the potato harvesting season. At times he would work 12 hours a day, 7 days a week. He said he had never got back to farm-work without restrictions.
Much of the appellant’s cross-examination related to his claim that both his lumbar spine, and his middle and upper spine were injured in the first incident. His Honour’s finding that the appellant had not satisfied the onus of proving that he had suffered a serious injury to his lumbar spine in the first incident is not challenged on appeal. For that reason, it is unnecessary to refer to the appellant’s evidence on that matter in any detail.
In cross-examination, the appellant said that, before the first incident, his main work on the farm had been tractor driving, but he also did a lot of heavy lifting. He repeated his assertion that, following the first incident, he had done only light work and said that, as a result of his back problems, he was now limited to taking the tractor ‘up the paddock’ and straining fences while using the tractor. He also did a little grinding and welding.
He said that, although his lower back now affected him the most, his upper back gave him problems ‘[m]aybe 25, 30 per cent [of the time]’ and that he had physiotherapy treatment once a week.
The appellant agreed in cross-examination that he had hurt his back on a number of occasions before the first incident. He said he had begun attending the family chiropractor when he was about 11 after falling off a truck and had continued to do so about twice a year for treatment of both upper and lower back symptoms. He said that, although he had not taken time off work for back pain prior to the first incident, he had refrained from performing the more strenuous aspects of his job for short periods until his symptoms had improved.
He also agreed that, on 5 April 2002 (ie, after the first incident, but before the second one), he had hurt his neck by hitting his head when getting into the cabin of a tractor.
The issue whether the appellant’s back had been damaged before the first incident or between the first and second incident by another fall or injury took up a considerable amount of his cross-examination. However, as I explain below, it did not play a large part in his Honour’s reasons, and on appeal, there was little emphasis placed on this question.
The appellant was also extensively cross-examined on the precise work he was able to do after the first incident. I refer to his evidence in [87]–[89] below.
In re-examination, the appellant said that he was still taking MS Contin and Endep.
Reports of treating practitioners
On 7 August 2001, the day after the first incident, the appellant went to the emergency department of the Ballarat Base Hospital and reported that he had hurt his back while lifting sacks of potatoes. The medical notes indicate that he was tender at T5 to T8, but that he otherwise presented with good flexion, extension and rotation.
On 13 August 2001, the appellant saw his general practitioner, Dr R Hinchey, who reported to the insurer on 19 September 2001 that the appellant had presented complaining of mid-dorsal pain, that there was no evidence of bone injury and that he was locally tender with muscle spasm. Dr Hinchey treated the appellant with analgesics and referred him to Mr Peter Rice, a physiotherapist, but by 3 September 2001, there was no improvement in the appellant’s symptoms. At that time, he was ‘tender mid-line from T4 to T8 and had considerable lack of mobility with muscle spasm’. Dr Hinchey considered that the appellant had ‘sustained a moderately severe muscle tear of his dorsal spine which has taken several weeks to heal’ and that ‘[h]e should not suffer any long term sequelae from this injury’.
Dr Henry Moorhouse, a doctor working in the same clinic as Dr Hinchey, certified the appellant ‘unfit for any work duties’ from 20 to 27 August 2001, noting a diagnosis of ‘? disc lesion T3-4’. The appellant’s symptoms did not improve and on 27 August 2001, he returned to Dr Hinchey, who ordered an X-ray of his thoracic and cervical spine. These were taken on the same day by Dr R Wilkie, who reported a ‘reasonably good range of flexion-extension’ in the appellant’s cervical spine and a ‘mild mid and lower dorsal kyphosis’ (ie, curvature).
Mr Rice’s report of the same date noted that the appellant had persistent dorsal pain at T4 to T6 and a new left scapula pain, which he thought had a cervical source. A further certificate was issued by Dr Moorhouse, certifying that the appellant was ‘unfit for any work duties’ until 3 September because of ‘neck and back pain’, and another by Dr Hinchey on 3 September 2001 till 10 September 2001, noting ‘dorsal back strain’.
Because of his continuing symptoms, and at the suggestion of Mr Rice, the appellant sought a second opinion from Dr Oliver. Dr Oliver provided a report to the insurers on 6 December 2002 (ie, after the second incident). He said that, when he first examined the appellant, he was suffering from both lumbar back pain and pain in the upper thoracic muscles at the level of T5 and T6. He treated him with Voltaren, Prednisolone and Endone, which, by 4 October 2001, resulted in some improvement. He then injected the T4 to T7 areas of the appellant’s spine with a steroid, and certified him as fit for light duties on 8 October 2001. On 19 September 2001, Mr Rice reported that the appellant was ‘vastly improved’ after his injection and had started back on some light farm work.
Throughout the period that the appellant consulted Dr Oliver, he complained of pain in his lumbar spine, neck and left shoulder. Between 12 September 2001 and 25 May 2002, Dr Oliver examined the appellant on a number of occasions and issued multiple WorkCover certificates, certifying the appellant as having back and left shoulder strain and as either unfit for all duties or fit for light duties only. From 24 October 2001 until 27 March 2002,[6] the certificates indicated that the respondent should not lift weights above 8 kilograms or bend excessively. Another certificate covering the period between 27 April and 17 May 2002 recommended that the respondent refrain from lifting weights in excess of 5 kilograms.
[6]There appeared to be a gap in the period covered by the certificates between 4 December 2001 and 20 January 2002.
On 16 October 2001, Dr Oliver ordered a CT scan of the appellant’s thoracic and lumbar spine. This revealed a ‘mild left posterior annulus bulge’ at L5 to S1 impinging on the left S1 nerve root and ‘no abnormality’ within the thoracic spine. On 5 April 2002, the appellant hit his head getting into the cabin of a tractor. He complained of neck pain and was put off work for a period of 22 days and treated with Vioxx, Endone and Orudus Gel. Dr Oliver reported that the appellant continued to suffer from pain in his upper thoracic spine and his lumbar spine. He said that the appellant’s ability to get back to work was ‘rather limited’.
Dr Oliver continued treating the appellant till about November 2004, during which time the appellant continued to complain of neck and back pain, and left shoulder and arm pain. Dr Oliver referred the appellant to Mr John Patrikios, an orthopaedic surgeon.
On 22 October 2002, Mr Patrikios advised Dr Oliver that he had not been involved in the treatment of thoracic and neck pain for many years and recommended consultation with another orthopaedic surgeon.
Mr Patrikios provided a report to the appellant’s solicitors on 30 April 2004. He said that the appellant had given him a history of injuring his neck and lumbar spine while lifting a bag of potatoes and injuring his lumbar spine after a further fall at work. He said that he had operated on the appellant’s lumbar spine on 19 May 2003 and that, when the appellant continued to experience pain, he referred him to Mr Schofield.
Mr Schofield first examined the appellant on 13 October 2003 for the treatment of his lumbar spine symptoms only. On 17 November 2004, he performed the second of the operations on the appellant’s lumbar spine.
Mr Schofield examined the appellant on 22 January 2009 at the request of the appellant’s then solicitors. His report dated 28 January 2009,[7] contained the following observations:
[7]He had previously reported to the appellant’s solicitors on the condition of the appellant’s lumbar spine (see report dated 4 December 2006, which noted that Mr Schofield was ‘not aware of the circumstances of the pain that developed in [the appellant’s] upper back one year previously’).
Current history and treatment
…
He reported that he did injure his neck at the time of the initial lifting episode in August 2001. He has had neck pain on and off since that time with a gradual worsening of his neck pain in recent months, which now is causing some referred left arm pain. He also has tingling over the ulnar aspect of both hands, which is particularly worse in the mornings.
Examination
… Examination of his neck revealed mild posterior tenderness, a reduced range of movement, which was [more] restricted in extension than other movements, neurological examination revealed slight weakness in the grip of the left hand, 1 cm wasting of the left arm above and below the elbow, normal reflexes and reduced sensation on the posterior aspect of the left upper arm.
…
Opinion
…
His neck pain has played a relatively minor role in his disability, but his symptoms are now getting worse and require further investigations. In order to assess the current state of pathology in his neck, I would recommend repeat x-rays with erect functional views and MRI scan of the cervical spine.
Mr Schofield’s evidence was that the appellant’s lumbar spine injury was likely to have been caused by the first incident, an opinion that he had expressed in previous reports to the appellant’s solicitors. His Honour did not accept that evidence. Because his Honour’s finding that the appellant did not suffer a lumbar spine injury in the first incident has not been challenged, it is unnecessary to further refer to that matter.
On 13 April 2007, Mr Graeme Brazenor, a neurosurgeon, saw the appellant at the request of Mr Schofield to determine whether a further spinal fusion would help. The report he provided to the appellant’s solicitors in 2009 dealt only with the appellant’s lumbar spine problems.
Mr David de la Harpe saw the appellant on a referral from his general practitioner on 4 April 2007. His report of 7 April 2009 to the plaintiff’s solicitors also dealt only with the lumbar spine.
Mr Peter Wilde, an orthopaedic surgeon, saw the appellant on a referral from Mr Schofield on 23 March 2009. Again, his reason for seeing the appellant was to advise on his suitability for a further fusion operation to deal with the lumbar spine problem. However, in the report that Mr Wilde provided to the appellant’s solicitors on 5 April 2009, he noted the following:
Assessment of spinal function and activities of daily living (according to the modified Oswestry questionnaire criteria as answered by the patient on 20/3/2009) revealed that the pain intensity was severe and painkillers gave little relief. Regarding personal care activities such as washing and dressing, he needed occasional help but could manage most personal care. He could lift only very light weights. He could walk up to quarter of a kilometre, sit for half an hour, and stand for only 10 minutes. Even with tablets, he could only sleep 6 hours. Employment/Homemaking tasks was severely restricted by pain and he could only perform light tasks. Pain restricted social life and he did not go out often. He could not manage journeys in the car over 2 hours.
…
CT scan cervical spine (8/10/2008) demonstrated the bony spinal canal appeared of adequate dimension throughout. The thecal sac and spinal cord had a normal appearance as far as they could be seen. No focal disc protrusions were evident. The neural exit foraminae appeared widely patent bilaterally. No focal bony abnormalities were detected. Minor end plate change involved C4/5 and C5/6, although disc space heights were well preserved. No significant facet joint arthropathy was seen. No other focal bony abnormalities were detected. No abnormalities were seen in the paraspinal soft tissues.
Conclusion:
Some minor degenerative change was seen but no evidence of a focal disc protrusion. No cause for the patient’s symptoms was identified.
Since 11 May 2004, the appellant has been treated by his general practitioner, Dr Choong. A CT scan was performed on 20 June 2007 at Dr Choong’s request. This indicated that ‘[a]lignment is satisfactory with minor disc narrowing between C4 and C7 … There is a mild posterior annular bulge at C6/7, but this is not associated with any extrinsic compression upon thecal sac or nerve root’.
On 7 April 2009, Dr Choong diagnosed the appellant with ‘[c]hronic neck pain: soft tissue injury’ as well as lumbar spine injury. He said that the appellant ‘will be in need of pain management for the indefinite future’, that he would not be able to return to work as a farm hand and did not have the capacity to return to other employment. Dr Choong’s report did not differentiate between the effects of the neck and upper spinal injury and the lumbar spine injury.
Respondent’s medico- legal opinions
The respondent relied on a number of medico-legal and other expert opinions, the most relevant of which cover the period between the first and second incident.
On 27 September 2001, Mr Michael Lawrence, an occupational therapist, conducted an interview with the appellant and a visit to the farm. In his report, Mr Lawrence noted his understanding that the appellant had suffered ‘a ligamentous strain in the T3-4 region’ and was experiencing pain in the thoracic and left scapular region. He said that the appellant was contemplating a return to work on 24 September 2001, and that the appellant described his condition as ‘OK and improving’. He strongly recommended that the appellant should minimise the handling of full bags of potatoes and that a small powered elevator would assist him in performing this task. He also advised him how to set up the tractor to reduce the loads on his thoracic spine.
Dr David Kotzman, an occupational physician, examined the appellant on 14 November 2001 for the insurer. In his report, Dr Kotzman noted the appellant’s current complaint of a ‘dull pain in the inter-scapular area at rest, with a sharp pain when he twists or reaches forwards’. He noted that:
Investigations
He brought with him a range of investigation reports including plain X-rays of the cervical spine dated 27.8.2001, which were essentially reported as normal, a CT scan of the thoracic spine dated 6.9.2001, which is reported as showing some mild disc space narrowing and possible Schmorl’s nodes, an X-ray of the right shoulder dated 15.10.2001, which is reported as normal and a CT scan of the thoracic and lumbar spines dated 23.10.2001, which is reported as showing a minor disc bulge at L5-S1.
Examination
…
Examination of his cervical spine revealed a full range of movement, with no referred pain in the upper thoracic area on movement of the neck.
Examination of the thoracic spine revealed tenderness over the spinous processes and the left paravertebral muscles in the inter-scapular area. Pain was noted on specific flexion of the thoracic spine.
Range of motion of the thoracolumbar spine was full, but pain was noted on right rotation and the mid segment of the thoracic spine remained slightly convex to the left on left lateral flexion, indicating persisting stiffness in this plane of movement.
Range of motion of both shoulders was normal.
Comment/Opinion
This man is suffering from a soft tissue strain of the mid thoracic spine.
Based on his history of the onset of pain whilst lifting a bag of potatoes, I believe that employment was a significant contributing factor to his injury.
[He] currently has a capacity for restricted employment provided he avoids heavy lifting and twisting and bending. His current duties involving tractor driving are suitable.
Dr Kotzman said that the appellant’s injury had not yet stabilised but permanent impairment was unlikely.
Dr Kotzman re-examined the appellant on 30 April 2002. In his report of the same date, he noted that the appellant’s ‘upper back was more painful’ after a ‘couple of days of … turning sheep over to trim their hooves’. Before this, he had returned to work for about three weeks on alternate duties and was coping well. His condition was also said to have been ‘aggravated’ by the work he did driving the potato harvester, which involved twisting. This resulted in pain in the upper back, neck, left shoulder and left arm. The appellant’s current complaint was ‘persistent, but mild pain in the upper back between the shoulder blades, left shoulder girdle and neck’ and ‘intermittent pain in his left arm with activity’. Dr Kotzman’s opinion was as follows:
I previously was of the view that this man was suffering from a soft tissue strain of the mid-thoracic spine. On today’s assessment, the findings are more consistent with a cervical spine injury than an injury to the thoracic spine. As there is no further history of injury and he has continued to suffer from symptoms in the cervico-thoracic area, it is likely that this has been his problem all along and his previous symptoms were referred from his cervical spine. I therefore do not believe that there has been any new injury.
The appellant was examined after the second incident by Mr Brian Davie, an orthopaedic surgeon, on 31 July 2002, 3 December 2002 and 17 December 2003. In his report dated 1 August 2002 (based on his 31 July examination), Mr Davie observed:
When seen on the 31st of July 2002 he was not too bad at the moment and had an ache in the left shoulder and it extended at times into the left arm. There was no tingling now. There were no symptoms in the right arm. He had occasional low back pain …
…
William Dean has sustained in all probability a cervical disc injury with mild brachial neuralgia to the left arm. He is making the usual slow recovery. I believe that his work has been a significant contributing factor to the onset of the symptoms and continues to be a significant contributing factor …
In summary therefore I would be optimistic of a slow recovery with an eventual return to pre-injury type duties.
In his report of 4 December 2002, Mr Davie said that:
On examination cervical spine movement showed some loss of extension and lateral flexion to 30 degrees on the right and left but normal rotation and there was good movement in the shoulders, elbows, forearms, wrists and hands and no neurological changes were detected in the upper limbs. The lumbar spine also showed quite good movement with 70 degrees of flexion, 20 degrees of extension and 20 degrees of lateral flexion and rotation to the right and left in the lumbar spine. Function of the hips and knees was satisfactory today and sensation, reflexes and power were normal in the lower limbs and straight leg raising was 70 degrees on both sides with a negative straight leg raising test.
A CT Scan suggested a disc protrusion in the lower lumbar spine.
William Dean has sustained a cervical disc injury in work related circumstances and he has also sustained a lumbar disc injury in a further accident after I saw him in July 2002. His employment has been a significant contributing factor to the cervical disc injury and the lumbar disc injury and the injection treatment that is proposed is reasonable. The objective clinical signs are consistent with his symptoms. Investigations show a disc protrusion in the lower lumbar spine. I believe that he can return to work at the present time and do lighter work around the farm such as driving a truck and supervisory work and some maintenance. He is not totally and permanently disabled for work. He appears to be considering his future and there could be an incidence of further problems if he continues to do the heavy manual work common to most farmers. He may be better to move into lighter sedentary work to minimise the risk of recurrent symptoms. I didn’t believe that surgery was necessary for the neck or lower back. A back brace may help him. There may be a small permanent impairment in the cervical and lumbar spines but this would be small probably in the order of 0 to 5%. There are no non work-related factors in the claim. He is capable of using public transport.
In summary therefore he has two work related problems, one in the neck and one in the back. Further treatment for the back injury is appropriate. I consider I should review him in another six months.
Mr Davie’s third report was largely concerned with the appellant’s lumbar spine problems. In that context, he described the appellant as a ‘genuine and honest man [who] has not been given much help’. However, he noted that, originally, the appellant ‘had a neck problem but this apparently has now settled down as he didn’t refer to any problems in his neck’.
Messrs John Bourke and Paul Kierce, both orthopaedic surgeons and Mr Michael Polke, a medico-legal consultant, also provided reports to the insurers, which focused mainly on the appellant’s lower back. However, in his report dated 4 October 2006, Mr Bourke noted that, at times, the appellant ‘has neck pain, headaches and pain in between the shoulder blades’. In his report of 18 December 2008, Mr Polke said that: ‘The CT scan of his cervical spine on the 20 June 2007 showed mild generalized spondylosis and mild annular bulging at the C6/7 level not associated with extrinsic pressure on the theca or nerve roots’.
His Honour’s reasons
A considerable part of his Honour’s reasons related to the appellant’s case that the injuries caused in first incident extended to his lumbar spine. It was argued that, in combination, these injuries had resulted in serious pain and suffering[8] and loss of earning capacity consequences.[9] Counsel for Crossway Holdings argued that the appellant had injured only his middle and upper spine in the first incident and that this injury did not satisfy the legislative tests for a serious injury.
[8]Within ss 134AB (38)(b) and (c) of the Act.
[9]Within ss 134AB (38)(c)-(f) of the Act.
As I have said, his Honour’s finding that the appellant had not proved that he had suffered an injury to his lumbar spine, as well as to his middle and upper spine, in the first incident, was not challenged on appeal.
His Honour noted that there were difficulties in assessing the extent of the appellant’s cervical and upper spine injury because ‘as from May 2002 the focus of medical attention and treatment had been the lumbar spine’.
In considering whether the appellant’s middle and upper spine satisfied the ‘very considerable’ test, the judge said that:
(a) after the first incident, the appellant described ongoing pain in the middle and upper part of his back and in his left shoulder;
(b) Dr Oliver’s report said that the appellant had made similar complaints of pain after the second incident, particularly in June and September 2002;
(c) Dr Choong did not refer in his August 2004 or August 2006 reports or in a further undated report to the appellant suffering middle or upper spinal pain and had not received a history of an injury in the first incident. It was not until 7 April 2009 that Dr Choong referred to chronic neck pain. The CT scan of the appellant’s cervical spine of June 2007, which was requested by Dr Choong, showed a mild posterior annulus bulge at C6 to C7. His Honour noted that this was ‘not associated with any compression on the thecal sac nor nerve root’.[10] His Honour commented that it was difficult to understand how Dr Choong diagnosed chronic neck pain, without previously referring to neck pain;
[10]Dean v Crossway Holdings Pty Ltd (Unreported, County Court of Victoria, Judge O'Neill, 25 September 2009) (‘Reasons’), [104].
(d) the CT scans performed at the request of Mr Schofield showed little evidence of pathology and, in particular, a repeat scan on October 2007 reported minor degenerative changes at C5 to C6, without any evidence of disc herniation;
(e) Mr Davie’s report of December 2002 said that the appellant had originally had a neck problem ‘but this apparently has now settled down’; and
(f) X-rays and CT scans of the appellant’s cervical and thoracic spine between August 2001 and October 2001 showed only minor pathology. His Honour also referred to the lack of evidence of abnormalities in the early CT scans of the appellant’s cervical and thoracic spine.
His Honour concluded that:
It is difficult to attribute any pathology to the first incident, given the lack of any objective finding on the earlier CT scans. As Mr Schofield states, it appears the plaintiff’s cervical problems were minor only in the earlier years, but are now of more significance. In my view, given the passage of time, it is difficult to attribute his current symptoms to the specific incident of August 2001 rather than to his various heavier duties over the years, and earlier injuries.
It is clear the plaintiff did suffer pain in his middle to upper spine, extending into the neck and shoulder blades, after the first incident. The plaintiff, at that time, received significant pain‑relieving medication, and was required to reduce his hours of work. Further, the certificates of capacity issued by Dr Oliver after the second incident do make reference to neck strain and thoracic problems. It is reasonable to infer that after the first incident, there was some interference with the plaintiff’s work capacity. Further, the plaintiff also had physiotherapy treatment in respect of his mid and upper spine on occasions over the period from 2002 to 2005.
Despite the plaintiff’s complaints of constant upper back and neck pain, these complaints are not reflected in the histories provided to the various doctors, particularly to his treating general practitioners. In my view, the plaintiff suffered pain at or around the time of the first incident, but the problem in his upper back and neck was relatively minor in the ensuing years. That was the history provided to both Mr Schofield and Mr Davie when the plaintiff was specifically questioned on the matter. If the plaintiff has suffered a disc injury, as opined by Mr Schofield and Mr Davie, then in my view it is relatively mild, and further it is difficult to attribute it to the first incident, given the heavy work that the plaintiff had been undertaking over the years, and the relatively recent onset of more significant complaints in that area.[11]
[11]Ibid [105]-[107].
So far as loss of earning capacity was concerned, his Honour said that:
I am not satisfied that the plaintiff has suffered a reduction in earning capacity of 40 per cent or more when a comparison is made of his ‘without injury’ earnings at or about the time of the first incident, as compared to his earning capacity at the present time. In my view, his present earning capacity, which I accept as being nil, is related to his lower back problems.[12]
[12]Ibid [109].
Grounds of appeal
The appellant relied on the following grounds of appeal:
1.The learned [trial] Judge erred in failing to find that the injury to the Appellant’s neck and thoracic spine (his spine) was a serious injury within the meaning of s 134AB(37) of the Act.
2.The learned trial Judge failed to properly consider and determine what injury to the spine the Appellant suffered on 6 August 2001.
3.The learned trial Judge failed to properly evaluate and assess the consequences to the Appellant of the injury to his neck and thoracic spine (his spine) on 6 August 2001.
4.The learned trial Judge failed to properly consider the consequences to the Appellant to which injury to his neck and thoracic spine was a cause.
At the hearing of the appeal, the appellant was given leave to add the following additional ground of appeal:
5.The learned trial judge erred when considering and determining the appellant’s without injury earnings pursuant to s 134AB(38)(f) of the Act.
Appellant’s submissions
Counsel for the appellant submitted that his Honour had erred by failing to consider the long term consequences of the injury which the appellant suffered in the first incident. He argued that, while Dr Hinchey had originally considered that the appellant was suffering from a soft tissue injury from which he would recover, this prognosis had turned out to be incorrect.
This was demonstrated by the fact that the appellant was still receiving physiotherapy from Mr Rice in September 2002 for his neck and thoracic spine,[13] by the fact that he had sought a second opinion from Mr Oliver about his neck and mid spine pain, and by the fact that Mr Oliver had referred the appellant to Dr Patrikios for advice about the pain suffered by the appellant in his neck, shoulder and back. Counsel submitted that his Honour should not have placed so much weight on the fact that the CT scan did not show any bony injury, because the appellant’s claim related to a discal injury or an injury to ligamentous structures.
[13]Letter from Mr Rice to the insurer seeking funding for hydrotherapy to treat his cervical, dorsal and lumbar injuries which occurred at this workplace on 6 August 2001.
Counsel submitted that the appellant had never returned to heavier farm duties and to working the number of hours he was working before the first incident. Whilst he had returned to work after the first incident, he was unable to work more than 20 or 25 hours per week.
Counsel further submitted that, by the time that Mr Schofield was treating the appellant, he was suffering serious effects from the lumbar spine injury and that, as a consequence, insufficient medical attention had been given to his thoracic/cervical condition.
Matters said to demonstrate the serious ‘pain and suffering’ consequences of the injury were:
(a) the fact that the appellant had never missed a game of football or a tennis match because of any neck, mid-back or lower back problems prior to the first incident;
(b) the appellant’s evidence that he suffered from constant upper back, neck pain, pins and needles, headaches and numbness in his left arm and that his neck and upper back symptoms had not changed significantly since the first incident; and
(c) the appellant’s evidence that his upper back pain was worse than the lower back pain at times.
As to the loss of earning capacity consequences, counsel compared the appellant’s working life before and after 6 August 2001. He said that, before 6 August 2001, the appellant:
(a) never missed any time off work for his neck, mid-back or lower-back; and
(b) was able to perform all duties on the farm;
After 6 August 2001, the appellant was unable to perform any of the heavier aspects of his job, including those aspects relating to:
(a) heavy work associated with the potato harvest;
(b) digging and lifting posts, while fencing;
(c) grabbing and crutching sheep, and marking calves; and
(d) shifting augers.
He was also unable to work the number of hours that he had been working before the incident. Counsel relied on the appellant’s evidence, given in re-examination, that he would not have been able to do this work, even if he were not suffering from the lower back injury.
Counsel also submitted that the judge had erred by comparing the appellant’s ‘without injury’ earning capacity with the appellant’s earning capacity at the time of trial. He submitted that his Honour erred because the appellant’s earning capacity at the time of trial, which the judge accepted as being nil,[14] reflected the appellant’s 20 May 2002 injury and did not take account of the reduction in earning capacity which had already occurred before the second incident.[15]
[14]Reasons, [107].
[15]Counsel relied upon Acir v Frosster Pty Ltd [2009] VSC 454, [175] (J Forrest J).
Respondent’s submissions
Counsel for the respondent accepted that the evidence revealed that the appellant was now seriously affected by his back condition. However, he submitted that the appellant’s symptoms were overwhelmingly linked to the severe lumbar pathology and disability for which he had already been compensated. He submitted that, in deciding whether the appellant suffered a serious injury in the first incident, the Court should focus on medical records which were contemporaneous with the first incident. He emphasised:
(a) the views of Dr Hinchey and Dr Moorhouse in August and September 2001 that the appellant did not have a bony injury, but suffered a soft tissue injury;
(b) the optimistic occupational rehabilitation reports of Mr Lawrence and Dr Kotzman;
(c) Mr Davie’s report of December 2002 indicating that the appellant was likely to slowly recover from his soft tissue injury and gradually return to pre-injury duties;
(d) Mr Schofield’s third report dated 28 June 2009 that the neck pain had played a relatively minor role in the appellant’s symptoms. Although Mr Schofield said that these symptoms were getting worse, this report was made many years after the first incident and the judge had correctly taken the view that they may have been caused by other factors; and
(e) the reports of Dr de la Harpe, and Messrs Brazenor and Wilde, all of which focused on the effects of the lower back injury caused in the second incident.
Counsel submitted that the appellant’s summary of the treatment history had sought to elevate isolated suggestions that the first incident caused a bony (ie, discal) injury. Counsel conceded that there were CT scans in June 2007 which revealed a mild bulge at T6 to T7 and in October 2008 which referred to minor degenerative changes (without bulge), but said that, by that time, other incidents had intervened. He relied on Mr Schofield’s evidence that the bulge could be caused by degeneration rather than trauma and also on the fact that there had been few recent presentations for upper spine pain.
Counsel also submitted that the consequences of the first incident were not serious because, between August 2001 and May 2002, the appellant performed a wide range of light farm work and undertook the activities of daily living.[16] Further, as at 2009, the appellant’s evidence was that his lower back caused the worst problems, with his upper back giving him trouble only 25 to 30 per cent of the time.
[16]Counsel relied on the statement in Dr Kotzman’s second report that the appellant ‘is able to handle all aspects of his activities of daily living without difficulty, apart from holding his 3 month old baby, which aggravates his pain’.
As to the appellant’s loss of earning capacity, counsel contended that the appellant did not suffer a loss of more than 40 per cent arising from injury to the upper spine.[17] Counsel submitted that, prior to the first incident, the appellant had done only light farm work when he was experiencing incidents of spinal pain and that he continued to do the same kind of work after the first incident, before the intervention of severe lumbar problems in mid 2002. He relied on the appellant’s evidence that the light duties were a ‘very large part’ of the work that he had always done on the farm.
[17]Section 134AB(38)(e)-(g).
Conclusion
I deal first with the application for leave to bring proceedings to recover common law damages[18] for the pain and suffering consequences of the first incident. Under s 134AB(37) of the Act, the appellant must establish on the balance of probabilities that he suffered a permanent serious impairment or loss of a bodily function.[19] He must also satisfy the ‘narrative’ test in s 134AB(38)(b) and (c), which is as follows:
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
[18]Section 134AB(16).
[19]Section 134AB(37), definition of serious injury (a).
In considering whether the narrative test is satisfied, the impairment to the appellant’s upper neck and back cannot be aggregated with the injury to his lower back. Such aggregation is permitted only if the two injuries arose out of the same incident.[20]
[20]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511. The earlier injury could also be relevant if it was aggravated by the later injury and that aggravation itself amounts to a serious injury.
His Honour correctly considered that the medical reports contemporaneous with the first injury should be given greater weight than the reports made after the appellant had suffered a serious injury to his lumbar spine. But in my opinion, both the contemporaneous medical evidence and the appellant’s own evidence about the effects of the injury show that the pain and suffering consequences of the impairment to his neck and thoracic were, when compared with other cases in the range of possible impairments or losses of bodily function, ‘fairly described as being more than significant or marked, and as being at least very considerable’. I have reached that view for the following reasons.
First, there is no dispute that the appellant suffered a soft tissue injury to his cervical and thoracic spine in August 2001.
Secondly, both Dr Hinchey and Dr Oliver accepted that the appellant was suffering from pain in his neck and thoracic spine during the period between the first and second incident. This was also accepted by Dr Kotzman and Mr Lawrence, who provided advice to the insurers about the appellant’s rehabilitation.
Thirdly, although both the treating doctors who saw the appellant between the first and second incident and Mr Lawrence and Dr Kotzman considered that he would eventually recover from the neck and thoracic spinal injury, and the appellant experienced some relief from the spinal injection administered by Dr Oliver, they accepted that the effects of the first incident were such that, at least for a period, the appellant should not engage in heavy lifting, twisting or bending during this period. As I have said, the WorkCover certificates issued by Dr Oliver from 24 October 2001 until the second incident[21] indicated that the appellant should not lift weights above 8 kilograms (5 kilograms after 27 April 2002) and/or bend excessively. Mr Davie examined the appellant after the second incident. But in his 1 August 2002 report, he considered that the appellant had probably sustained a cervical disc injury, although he was optimistic that he would slowly recover.
[21]Before that date there were certificates from Dr Moorhouse and Dr Oliver indicating he was unfit for any work until 8 October 2001 and from 6 October 2001 to 23 October 2001.
Fourthly, the evidence satisfies me that the appellant’s initially favourable prognosis turned out to be incorrect. The judge did not make unfavourable findings about the appellant’s credibility and Mr Davie remarked that he believed the appellant gave an honest account of his problems and that ‘he has a genuine cervical disc problem related to work’.
The appellant’s evidence was that he has continued to suffer neck and shoulder pain from the first incident until the hearing of the proceedings and that he was unable to do the full range of farm duties in the period between the first and second incident. Although he agreed in cross-examination that, on 8 October 2001, he had told Dr Oliver that his back was improving, he said that ‘I still had pain but it was good enough to … try to get back to work’.
Objective evidence supporting the appellant’s account can also be found in Dr Oliver’s report that, on 3 September 2002 (ie, after the second incident), the appellant was still suffering from ‘pain in the neck and left shoulder and thorico-lumbar pain’, in Dr Oliver’s referral of the appellant to Mr Patrikios for thoracic and cervical pain in October 2002, and in Dr Oliver’s continued treatment of the appellant for his neck and upper back pain (as well as lumbar pain) until about November 2004. It is also supported by the fact that the appellant was still receiving physiotherapy from Mr Rice in September 2002 for his neck and thoracic spine pain, as well as for his lumbar pain. When the appellant went to the hospital after tripping and hurting his right shoulder on 14 October 2001, he told the emergency nurse that he had had chronic back pain due to heavy weight lifting since August 2001.[22]
[22]This matter was referred to in cross-examination but the medical notes from which the information was derived were not provided to the Court. Both counsel agreed that the phrase used in the notes, ‘last August’, referred to August 2001.
Fifthly, I do not consider that the emphasis the doctors placed on treating the appellant’s lumbar spine problem after the second incident is a reliable indication that he was no longer experiencing symptoms in his neck or upper spine. The lumbar spine injury was more serious than the appellant’s upper spinal problem, and not surprisingly, the attention of treating doctors was directed to the question whether the appellant would be assisted by undergoing a further operation. But the focus on the appellant’s lumbar spine does not mean that the upper spine injury fell outside the definition of an injury having serious pain and suffering consequences. The appellant told his treating doctors that he had continuing problems with his upper spine, although that pain was less serious than the pain in his lumbar spine. In these circumstances, his focus on the pain and suffering and loss of earning capacity caused by the second incident and the failure of the subsequent surgery is explicable.
Seventhly, his Honour gave significant weight to the lack of objective finding of serious disc injury in X-rays and CT scans, although he noted that Dr Oliver referred to some evidence of disc protrusion, that Dr Davie considered that the appellant had suffered a cervical disc injury and that, in 2007, Dr Choong also observed a ‘mild posterior annular bulge at C6-7’. However, even if the first incident caused a soft tissue injury only, this is not determinative of the question whether the injury had serious pain and suffering consequences.[23]
[23]See, for eg, Cropp v TAC [1998] 3 VR 357, 363 (Ormiston JA) and the more guarded comment of Hayne JA (dissenting as to the result).
Finally, I note that his Honour said that:
If the plaintiff has suffered a disc injury, as opined by Mr Schofield and Mr Davie, then in my view it is relatively mild, and further it is difficult to attribute it to the first incident, given the heavy work that the plaintiff had been undertaking over the years, and the relatively recent onset of more significant complaints in that area.[24]
[24]Reasons, [107].
It is not clear whether his Honour’s reference to the ‘heavy work that the plaintiff had been undertaking over the years’ referred to work done before or after the first incident. If this was a finding that the appellant’s neck and thoracic pain was caused by heavy work done before the first incident, its evidentiary basis is not clear. His Honour appears to have accepted that the first incident caused the appellant neck and thoracic pain, although he found that the pain and suffering consequences of the impairment were not severe. I have previously referred to the evidence that the appellant had on occasions suffered neck and back pain before the first incident and had attended a chiropractor about twice a year. But the appellant said that he was not prevented from playing sport and there was no evidence that he had to take significant time off work because of these injuries.
If his Honour was referring to heavy work done between the first and second incident, the statement is inconsistent with the WorkCover certificates which limited the appellant to modified duties for almost all of the period between the first incident and second incident and with the fact that the appellant has been unable to do heavy work since May 2002.
I turn now to the appellant’s application for leave to commence common law proceedings in relation to his loss of earning capacity. In the case of loss of earning capacity, the appellant must also satisfy ss 134AB(38)(e) and (f), which require the worker to prove that:
(e)…
(i)… at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured as set out in paragraph (f); and
(ii) the worker ... will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f) for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred
The appellant was extensively cross-examined as to the work which he could do after the first incident. He agreed that, when he saw Dr Oliver on 8 October 2001, he had said that his back was all right, but his evidence was that he still had pain but was ‘well enough to try to get back to work’.
He said that he did grain harvesting and a little stock work in January and yarded sheep for shearing during January/February 2002. He had also irrigated potatoes, which involved:
driving a tractor, shifting the irrigator, walking just up and down the spud paddock, shifting pipes ...
The irrigator shifter, you hook it up with the tractor. It has a 200-metre length of hose on it that you wind up on to a reel with the – drive the tractor to wind it up, and then you drive to your next row, unroll the hose as you’re driving along …
This did not require lifting but only a little bending. He had also helped to yard the sheep while the father and a contractor were crutching and his sister and father did sheep drenching. He said he had used the fixed truck and the semi trailer for ‘carting hay, livestock – the father done the carting of the livestock’.
He was asked what work he was reduced to doing after May 2002 and he said:
WITNESS:Since the May ‘02, probably less tractor driving work that I could do, only – only tractor driving that wasn’t going to be rough, truck driving – limited truck driving, only in short distances, so - - -
COUNSEL:So only the fixed tray or still the semi?
WITNESS:Semi – both.
COUNSEL:I hadn’t asked you what use you put to the semi between August ‘01 and May ‘02. Could you tell us?
WITNESS:The same as the fixed, carting hay, livestock – the father done the carting of the livestock.
It is apparent from the above evidence that, between the first and second incident, the appellant continued to work on the farm, although he could not do all the tasks he had done previously. It is to the appellant’s credit that he continued to undertake light duties during this period. But this is not necessarily inconsistent with his claim that he was suffering pain in his neck and upper back between the first and second incident.
In his November 2007 affidavit sworn in support of this application, the appellant deposed that, in the financial year ending 30 June 2001, his gross earnings were $24,708 (approximately $475 gross per week). There was no other evidence before us of the amount that the appellant was earning during the period within 3 years before and 3 years after the injury.
In his affidavit sworn on 12 August 2008 in support of his application for leave to seek common law damages in respect of his lower back injury, the appellant deposed that ‘when I was injured in the incident on 20 May 2002 I believe I was earning approximately $450 gross a week’ and that he had been unable to earn any income since 15 February 2007, when he ceased all work as a result of that injury. This indicates that his earnings were reduced by only $25 per week between the first and second incidents.
Section 134AB(38) requires the court to determine the extent of loss of earning capacity by comparing the amount the worker was earning or capable of earning at the date of the hearing of the application with the gross income the worker was capable of earning in suitable employment, had the injury not occurred.[25] Apart from the $450 figure contained in his 12 August 2008 affidavit, there was, in this case, little evidence from which the Court could properly assess the income the appellant was capable of earning within the three years before and after the first incident.
[25]During the ‘period within 3 years before and 3 years after the injury’. Cf Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121, [112]-[113].
As I described above, the appellant gave evidence that he had been able to work from 40 to 80 hours a week during the potato harvest and at times, worked 12 hours a day, 7 days a week. The appellant also gave evidence that he worked the 80 hour days during the harvesting of crops, that the potato harvest started in April/May and lasted till September/October (ie, 7 months)[26] and that he did bagging work for two months of that season. It was improbable that the appellant would have been able to return to working those hours after the first incident. The appellant also said he could not sit on a tractor for longer than 3 to 4 hours, which was much less than the 12 to 15 hour periods he had been able to work during the potato harvesting season, prior to the first incident.
[26]The appellant also gave evidence that the heavy lifting associated with the potato harvest could last till December. When asked what he did during the grain harvest, which takes place in January/February, the appellant said ‘[n]ot a lot’.
This evidence was relevant to the appellant’s without injury earning capacity, but only related to his work for Crossway Holdings. There was no evidence as to the wages he could have earned working as a farmhand on other farms before the first incident. Such evidence might have suggested that his without injury earning capacity was greater or less than his earnings disclosed.
The appellant‘s evidence was that, prior to the second incident, he could drive a tractor or truck, and do some stock and other work. The medical evidence was that he could perform light duties which did not involving lifting weights or frequent bending. The fact that there may have been no light farm work available to him in the area where he lived cannot be taken into account in determining the extent of his loss of earning capacity.[27] There was no evidence as to the income he could have earned performing light duties at other farms after the first incident. Such evidence was necessary for this court to compare the appellant’s earning capacity prior to the first incident, with the earning capacity he would have had at the date of the hearing, but for the second incident. Nor was there any evidence as to the appellant’s earning capacity in other jobs suitable to his capabilities.
[27]See definition of ‘suitable employment’ in s 5 of the Act.
The only evidence of the appellant’s earning capacity after the first incident was his gross earnings of $450 per week stated in the 12 August 2008 affidavit. In light of the $475 figure contained in his first affidavit and the absence of sufficient other evidence of his earning capacity before and after the first incident, it is not
possible to conclude that the appellant had suffered a loss of 40 per cent or more of his without injury earning capacity.
It was the second incident which destroyed the appellant’s earning capacity altogether. This was an independent supervening event which cannot be taken into account in determining the extent of the appellant’s loss of earning capacity arising out of the first incident.[28]
[28]Cf Acir v Frosster Pty Ltd [2009] VSC 454.
Thus his Honour correctly found that the appellant had not shown, on the balance of probabilities, that he suffered a 40 per cent loss of earning capacity as a consequence of the first incident.
For these reasons, I would refuse leave to the appellant to seek common law damages for loss of earning capacity.
MANDIE JA:
I have had the benefit of reading in draft the reasons for judgment of Neave JA and I agree with and adopt her Honour’s statement of the background facts and the evidence before the trial judge.
I agree with her Honour’s conclusion, for the reasons given by her, that the appellant has failed to establish a serious injury resulting from the incident at work on 6 August 2001 (‘the first incident’), with respect to the loss of earning capacity consequences thereof.
However, I respectfully disagree with her Honour’s conclusion that the appellant has established a serious injury resulting from the first incident with respect to the pain and suffering consequences thereof.
It is clear enough that the appellant suffered a soft tissue injury in the region of his neck and thoracic and/or cervical spine and possibly a cervical disc problem as a result of the first incident but the question is whether that injury constituted, at the time of the hearing, a permanent serious impairment having regard to the pain and suffering consequences thereof.
As her Honour notes,[29] the appellant agreed in cross-examination that, as at 8 October 2001, his back was ‘all right’ and that, while he still had pain, he was ‘well enough to try to get back to work’. He did grain harvesting and a little stock work in January 2002 and yarded sheep for shearing during January and February 2002. He had also irrigated potatoes which involved driving a tractor, shifting the irrigator and shifting pipes. He had used the truck and the semi-trailer for carting hay.
[29]Reasons of Neave JA, [86]-[90].
In his second affidavit sworn 21 August 2009, the applicant said that he continued to suffer back pain which extended up into and between his shoulder blades and continued to suffer pain in his neck and, in his evidence, he said that the pain in the upper back ‘could be just as bad’ but that his upper back gave him trouble only 25 to 30 per cent of the time. However the evidence does not suggest that, had the second incident not occurred on 20 May 2002, he would not have been able to continue with the work that he was performing between the date of the first incident and the date of the second incident.
Even if it were to be inferred, from the fact that the appellant has continued to suffer neck and upper back pain from the date of the first incident, that the impairment resulting from the first incident is ‘permanent’ – as to which there was no confirmatory medical evidence – the appellant has not, in my opinion, established that the pain and suffering consequences thereof can be fairly described as being
more than significant or marked, and as being at least very considerable. On the contrary, I consider that the work that the appellant was able to perform between the dates of the first incident and the second incident demonstrates that the pain and suffering consequences of his impairment were not ‘very considerable’.
Accordingly, I would dismiss the appeal.
HARPER JA:
I agree with Neave JA.
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