Delaney, Gavin David v Saxon Court Pty Ltd (t/as
[2009] VCC 992
•31 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-03382
| GAVIN DAVID DELANEY | Plaintiff |
| v | |
| SAXON COURT PTY LTD | Defendant |
| (Trading as WHITLANDS SAWMILL) |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 29 July 2009 |
| DATE OF JUDGMENT: | 31 July 2009 |
| CASE MAY BE CITED AS: | Delaney, Gavin David v Saxon Court Pty Ltd (t/as Whitlands Sawmill) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0992 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 - injury to the lower back - whether the consequences were at least very considerable for pain and suffering and loss of earning capacity - leave granted for pain and suffering and loss of earning capacity: section 134AB (c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr I Fehring | ||
| For the Defendant | Mr D Myers with | Wisewould Mahony |
| Mr J Forbes | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 31 August 2007 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant on 12 December 2002.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr T Monti appeared with Mr I Fehring of Counsel for the plaintiff and Mr D Myers appeared with Ms J Forbes of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. •
The plaintiff tendered the following evidence - the Plaintiff's Court Book ("PCB") pages 25-136; 137-138 and 267: Exhibit A
•
The defendant tendered the following evidence - the Defendant's Court Book (“DCB”) pages 20-24 and 257-259: Exhibit 1
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 10 October 1941. He is now sixty-seven years of age. He is a married man with six adult children all of whom are independent.
10 The plaintiff was educated to Leaving Certificate[5] level before entering the workforce. He worked in Melbourne for some years before he and his wife moved about thirty years ago to Whitlands, a country town about 40 kilometres from Mansfield. He and his wife live on a bush block of 150 acres, of which about 25 acres is cleared, which has been used by him to run some cattle.
[5] The equivalent of Year 11 in today's terms
11 After taking up residence in Whitlands, the plaintiff commenced working for the defendant at its sawmill as a timber stacker.
12 On 12 December 2002, the plaintiff was emptying racking sticks from a container. He was working from a height of about 1.2 metres above ground level. In the course of traversing a low front tube railing, the container capsized, with the result that the plaintiff was catapulted about 8 metres, landing heavily on his left hip.
The Plaintiff's Medical Treatment
13 The plaintiff tried to continue working after the incident occurred. He attended the Mansfield Medical Clinic on the day of the incident and saw Dr Anderson, general practitioner. He was given two days off work and then returned to his full-time duties.[6]
[6] PCB 26
14 He returned to the Clinic on 5 March 2003 and gave a history to Dr Esser, general practitioner, of aggravating his lower back. On examination, Dr Esser found restriction of movement sufficient to necessitate referring the plaintiff for x-rays[7] and a CT scan.[8] According to Dr Esser, he considered the changes shown on the radiology to be consistent with the plaintiff's age.
[7] PCB 25
[8] PCB 94
15 The plaintiff was then referred to a chiropractor for treatment[9] and later to a masseur[10] who provided the plaintiff with massage treatment described as “Bowen massage”. The plaintiff continued having the Bowen massage until about six months ago.
[9] PCB 27-28
[10] PCB 30
16 On the occasion on which the plaintiff saw Dr Esser on 5 March 2004, he was given two weeks off work, but because of the nature of his lower back condition he was not able to return to work at the sawmill.
17 The plaintiff made an attempt to return to work at the Stella Matuling Vineyard in April 2004. He worked for three days before the pain and discomfort became too much for him and he was forced to resign.[11] He has not worked in any other employment since.
[11] PCB 10-11
18 As a result of the pain and discomfort he experienced, he saw Dr Esser on 22 April 2004. Dr Esser gave the plaintiff time off work. However, on 8 July 2004, Dr Esser certified the plaintiff as being totally unfit for work, and it would appear from the clinical notes of the Clinic that certification to that extent persisted.[12] What is also evident from the clinical notes is a picture of the plaintiff experiencing limitation of lower back movements with stiffness, pain and soreness.
[12] PCB 37-45
19 The plaintiff is presently not undergoing any active treatment. He expressed a dislike for prescription medication, preferring to use over the counter medication such as Panadol.
The Medical Evidence
20 The plaintiff was examined by a number of medical practitioners at the Clinic, however, it would appear that he was seen by Dr Esser quite often. In a medical report dated 4 February 2004, Dr Esser expressed the opinion that the plaintiff had suffered a lower back strain and that it was unlikely that the plaintiff would ever be able to return to work at the sawmill.
21 Dr Jolly, general practitioner, who is also a medical practitioner at the Clinic, was asked for an opinion regarding the injuries suffered by the plaintiff and what consequences the injury has had for the plaintiff. He had available the report of Mr Brearley (referred to below). He described Mr Brearley's report as an excellent and accurate report which he had read carefully. He said he essentially agreed with the conclusions reached by Mr Brearley.[13]
[13] PCB 33
22 The plaintiff was subsequently examined by a number of medical practitioners on a medico-legal basis. I propose to only summarise their opinions because it occurs to me that they are in significant agreement about the nature of the plaintiff's injury and the degree to which he is disabled:
ƒ
Mr Hooper, orthopaedic surgeon, examined the plaintiff on 28 May 2003 for the defendant. He was of the opinion that the plaintiff had suffered a back strain which had caused him incapacity, rendering him unable to undertake his work at the sawmill. He was of the opinion that the plaintiff was fit to do lighter work, however, he did not offer an opinion as to the kind of light work the plaintiff could undertake.[14]
ƒ
Mr Battlay, general surgeon, examined the plaintiff on 5 April 2004 for the defendant. He was of the opinion that the plaintiff had suffered a strain to his lower back. He was not asked to venture an opinion beyond the diagnosis of the injury and an impairment assessment of the plaintiff.[15]
ƒ
Mr Fraser, rheumatologist, examined the plaintiff on 21 June 2007 for the defendant. He was of the opinion that the plaintiff had suffered a soft tissue strain to the left hip girdle region and/or on an aggravation of pre- existing degenerative changes in the thoracic and lumbar spine. He was of the opinion that at the time when he examined the plaintiff that his work- related injuries had long resolved and that what was troubling the plaintiff was related to age-related degenerative changes. He was of the opinion that the plaintiff was unfit for his work at the sawmill, but fit for alternative work with no bending or heavy lifting (over 3 kilograms).
ƒ
Mr O'Brien, orthopaedic surgeon, examined the plaintiff on 26 June 2007 for the defendant. He was of the opinion that the plaintiff suffered an injury to his lower back, and that the symptoms described by the plaintiff to him would persist. He was of the opinion that the plaintiff should be regarded as totally and permanently incapacitated for heavy physical activity, and he was also of the opinion that the plaintiff's injury would have an impact on his normal domestic, social and recreational pursuits.[16]
ƒ
Mr Brearley, orthopaedic surgeon, examined the plaintiff on 4 June 2008. He was of the opinion that the plaintiff had suffered an aggravation of degenerative disc disease resulting in mechanical lower back pain. He was of the opinion that the plaintiff’s lower back injury would have an impact on his social, domestic and recreational activities and would also restrict him in his capacity to work. He considered that the plaintiff would not be able to undertake work which involved prolonged sitting, standing, walking, driving, stooping or bending, twisting and lifting. Ultimately he was of the opinion that the plaintiff was only fit for very light work, and he suggested that the plaintiff could work four hours a day, five days a week in suitable part-time work.[17]
ƒ
Mr Isbister, orthopaedic surgeon, examined the plaintiff on 7 January 2009 for the defendant. He was of the opinion that the incident resulted in the plaintiff suffering a permanent aggravation of lumbar spondylosis particularly at L4-5 and L5-S1 which had resulted in the plaintiff suffering pain. He was of the opinion that the plaintiff's injury was severely incapacitating. He considered that restrictions, similar to those described by Mr Brearley, should be imposed upon the plaintiff, and that if he were to undertake any part-time casual employment it would need to be sedentary and not involve sitting or standing for any particular length of time nor any lifting, bending or twisting. He said he could possibly work for ten hours per week.[18]
ƒ
Mr Leitl, orthopaedic surgeon, examined the plaintiff on 2 June 2009 for the defendant.[19] He was of the opinion that the plaintiff had suffered an aggravation of lumbar and thoracic degenerative disc disease. He was of the opinion that the plaintiff's capacity for work was limited and that he would be unable to undertake work which involved prolonged sitting, standing or which involved turning, bending, lifting or stooping. He was asked whether the plaintiff would be capable of work as a sawmill operator, tour driver or mystery shopper. He considered that the plaintiff had the capacity to work as a mystery shopper.[20]
[14] PCB 96-98
[15] PCB 102
[16] PCB 109
[17] PCB 113-114
[18] PCB 120-121
[19] Mr Leitl noted that he had also examined the plaintiff on 3 August 2004 and 7 April 2008 for an insurer and provided medical reports based upon those previous examinations. Neither of the reports were reproduced in the Court Book
[20] The job description "mystery shopper" is of itself a mystery. It would appear that Mr Leitl was provided a job description, at PCB 136, which does not describe what the job entails save for the following - "Duties included surveying customer service in the Moyhu area and completing a service report. Job requirement: Must have Internet access and good communication skills. Own transport required." Beyond that no other description was given.
Serious Injury
Pain and Suffering
23 The preponderance of the medical evidence points to the plaintiff having suffered an injury to his lower back constituted by an aggravation of degenerative disc disease in the plaintiff’s lumbar spine and also his thoracic spine.
24 The only medical practitioner who offered an opinion contrary to the preponderance of the evidence on that score is Dr Fraser. I do not accept his opinion for several reasons: firstly, I prefer the evidence of the other medical practitioners who are surgeons of high rank who I expect would be very familiar with the treatment of spinal disorders; and secondly, Dr Fraser does not demonstrate why the work relationship has ceased, he merely states that as a fact. In the absence of such demonstration, there is no basis upon which I am prepared to find that he is correct in the expression of that opinion.
25 The preponderance of the medical evidence supports the conclusion that the injury to the plaintiff’s lower back has caused an impairment of the function of his lower back, and that the impairment is permanent. Again, it is only Dr Fraser who is out of step with that conclusion.
26 The preponderance of the medical evidence also supports the conclusion that the plaintiff cannot return to his work at the sawmill or in any other labouring or factory work, and that is so very obvious by the extensive nature of the restrictions which most of the medical practitioners would place upon the plaintiff's capacity to resume any work. At best, according to Mr Brearley, the plaintiff could return to work four hours per day, five days per week, and according to Mr Isbister only about ten hours per week.
27 The very same evidence relevant to the plaintiff's capacity for work also supports the conclusion that those same restrictions would dramatically impact upon the plaintiff's capacity to engage in social, domestic and recreational pursuits.
28 The plaintiff has sworn three affidavits on 16 April 2007,[21] 13 January 2009[22] and 1 July 2009.[23] I do not accept the primary submission made by Ms Forbes, that in relation to the plaintiff’s social, domestic and recreational activities that not much has changed in the plaintiff’s life when a comparison is made between what he was able to do before the incident occurred compared with what he is able to do now.
[21] PCB 8-13
[22] PCB 14-16
[23] PCB 17-19
29 I accept the plaintiff’s evidence that he was a very fit and healthy man prior to the occurrence of the incident. The fact that he was able to work in a sawmill and on his own bush block points to a man who was capable of hard physical labour.
30 I accept the plaintiff’s evidence that he is now in significant pain for which there is no treatment save for the use of medication, which the plaintiff says he does not like taking.
31 In summary, the plaintiff deposed to the fact that he has difficulty maintaining his bush block. He is unable to do the fencing, eradicate noxious weeds or gather firewood as he was once able to do. He suffers increased pain when he engages in bending, lifting, pushing or pulling. He is limited in being able the garden or drive a car. He is unable to obtain a comfortable night's sleep. He is unable to go on driving holidays, refusing to accompany his wife because of his inability to tolerate sitting in a car for extended periods of time.[24]
[24] PCB 11-12, 14-15 and 17-19
32 The plaintiff gave evidence that he had every intention of working beyond what is sometimes perceived to be the normal retiring age of sixty-five years. His motivation for doing so was because he and his wife had committed themselves to providing their six children with the best education possible which enabled their children to attend university. This left the plaintiff and his wife with little by way of financial resource.[25]
[25] Transcript 7
33 As a general observation, the notion that there is a retiring age is something of the past. As a matter of general knowledge, the Federal Government has considered raising the eligibility age for the receipt of an old age pension and also the age when superannuation benefits can be accessed. The impression I have, again as a matter of general knowledge, is that people who are in work should have an expectation to work beyond what is now a notional retiring age.
34 I see nothing exceptional in the plaintiff’s evidence that he would have worked on, and indeed, I accept his evidence that he intended to and had a very good reason for wanting to do so.
35 On the basis of the medical evidence, which I accept, it is clear to me that the plaintiff has a very troublesome lower back which has impaired the function of his lower back to such an extent that it has deprived him of his capacity to work as he chose to and which has also deprived him of the very quality of life which he and his wife sought to have by moving to Whitlands in the first place, and that is, to enjoy a rural life, to be able to work their bush block and to work locally.
36 Furthermore, I accept the plaintiff's evidence that he is clearly limited in what he is able to do in a social, domestic and recreational sense, and to that end I accept the evidence contained in his affidavits which I have summarised in paragraph 31 above.
37 The combination of the medical evidence and the plaintiff's evidence supports the conclusion that the impairment of the function of the plaintiff’s lower back clearly has consequences which deserve the description "at least very considerable". I have reached that conclusion by making the relevant comparison as I am required to which I have referred to in my discussion of the statutory scheme.
Loss of Earning Capacity
38 I find that the only factor which has precluded the plaintiff from returning to his work at the sawmill or being able to work as a labourer or at a vineyard is the impairment of the function of his lower back.
39 I do not accept that the plaintiff has any other injuries or ailments which have materially interfered with his capacity to work, nor do I accept that his age has materially interfered with his capacity to pursue work. It is very clear to me that the plaintiff has presented to a number of the examining medical practitioners as a fit and healthy man save for the fact that he has a very troublesome lower back.
40 Mr Leitl effectively dismissed the proposition that was put to him that the plaintiff could work in jobs such as a sawmill operator or tour driver. Although he considered that the plaintiff could be a mystery shopper, I repeat that whatever that job involves, it remains a mystery to me, and it was not something which was described in any evidence put before me. Ms Forbes endeavoured to describe what it involves, but there is no evidence to satisfy me that the plaintiff would earn any significant income from that job.
41 According to the job description, it involves one hour’s work. The job description does not say whether that means one hour per day, one hour per week or one hour per job of work.
42 The plaintiff considered that perhaps he could undertake work in a hardware store at a locality close to Whitlands. The plaintiff said that he thought he could manage four hours per day, three days per week, however, when he was asked to consider what the job involved, he said that he would not know until he commenced the job and he would be concerned to only do light work and would be keen to avoid heavy lifting.
43 To undertake a job in a hardware store of the kind contemplated by the plaintiff is inconsistent with the restrictions which Mr Brearley and Mr Isbister would place upon the plaintiff. As a matter of general knowledge, people who work in hardware stores are required to be on their feet for the purpose of serving customers. They are required to handle stock which inevitably involves lifting, bending, stooping and twisting and turning. The answer given by the plaintiff that he would look for the lighter side of that job and would avoid heavy lifting seems to me to be his acknowledgement that he would not be able to undertake tasks which involved those sorts of physical movements.
44 The reality of the situation for the plaintiff is that whilst he might be fit for suitable light work in a theoretical sense, I find that he has no real capacity to undertake a job of that kind. Furthermore, the travelling time involved of approximately forty minutes to Mansfield and an hour to Benalla and Wangaratta each way is likely to create additional stress on the plaintiff's back which he would have to endure to undertake that job. It seems to me that he would not be capable of combining the driving and also the tasks required of him in a job of that kind.
45 Therefore, I find that the plaintiff has satisfied the statutory test in relation to loss of earning capacity, and more particularly, I find that the plaintiff is not capable of undertaking suitable employment and that the consequences to him of the impairment of the function of his lower back in terms of loss of earning capacity deserve the description "at least very considerable", and again I have reached that conclusion by making the relevant comparison as I am required to which I have referred to in my discussion of the statutory scheme.
Conclusion
46 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant on 12 December 2002.
47 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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