Dods v Manuell Pty Ltd
[2014] VCC 1486
•11 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01642
| CHRISTOPHER DODS | Plaintiff |
| v | |
| MANUELL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August and 1 September 2014 | |
DATE OF JUDGMENT: | 11 September 2014 | |
CASE MAY BE CITED AS: | Dods v Manuell Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1486 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – compensable injury to the lower back – whether the pain and suffering consequences were “serious” – film – creditworthiness and reliability of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: The plaintiff has leave to bring a proceeding to recover damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Pillay | Robinson Gill |
| For the Defendants | Mr S Smith | Minter Ellison |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 9 April 2013, the plaintiff seeks the leave of the Court, pursuant to s34AB of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for an injury to his lower back which he suffered in the course of and within the scope of his employment with the first defendant.
2 The plaintiff claimed that he suffered a compensable injury to his lower back. The only issue which the parties required me to determine was whether the pain and suffering consequences meet the statutory test.
3 Mr A Pillay of Counsel appeared for the plaintiff. Mr S Smith of Counsel appeared for the defendants.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 8-56; 73-76 and 82-106: exhibit A;
· The defendants tendered the following evidence:
§ film taken of the plaintiff on 22, 23 and 29 June 2013: exhibit 1;
§ film taken of the plaintiff on 6 July 2013: exhibit 2;
§ the defendants’ Court Book (“DCB”), pages 8-10, and from the plaintiff’s Court Book, pages 67-72: exhibit 3.
The Plaintiff’s background
5 The plaintiff was born in October 1974. He is now 39 years of age. He completed his secondary schooling to the VCE level at Emmaus College. It would appear that he completed his schooling in 1992. He commenced a course in accounting at the Outer Eastern TAFE in 1993. It would appear that he did not enjoy tertiary study. He failed some subjects. He returned to the course in 1994. He then gave it away in preference for entering the workforce full time.
6 The plaintiff obtained full-time work with a number of employers after he ceased his tertiary studies. He worked in warehouses for a number of employers. He commenced working as a storeman for the first defendant in about 2007.
The Plaintiff’s injury
7 The plaintiff commenced employment with the first defendant at its warehouse in Northcote. After he had been working for the first defendant for about six or seven months, it moved its warehousing operations to Fairfield.
8 The plaintiff was required to undertake a significant amount of manual handling in the first defendant’s warehouses. It was in the course of undertaking manual handling on 10 March 2010 that he suffered an injury to his lower back. He was lifting large and awkward boxes weighing about 15 kilograms from the floor onto a shelf, which was at about chest height. The event which immediately preceded his first experience of pain in his lower back, was when he lifted a smaller box from the ground, which he intended to take to a workbench. As he did so, he felt excruciating pain in his lower back which extended down the back of his right leg as far as his foot.
The Plaintiff’s medical treatment
9 The first form of medical treatment which the plaintiff sought was from Mr Spagnolo, physiotherapist. The plaintiff first saw him on 15 March 2010. He provided the plaintiff with treatment until March 2011.[1] Before the plaintiff commenced treatment with Mr Spagnolo, he experienced pain in his lower back and tightness in his right leg. He was limping. He found it difficult to sit. He said he found it difficult to do much, and I assume he meant physically. The massage treatment caused the plaintiff pain. He felt that it had bruised his lower back.[2]
[1]PCB 38-39
[2]PCB 14
10 The plaintiff then saw Dr Hubel, general practitioner, on 15 March 2010. He told Dr Hubel that he was experiencing pain in his lower back extending into his right buttock, hamstring and calf. He made a provisional diagnosis of a disc injury with concurrent radicular pain into the plaintiff’s right lower limb. He referred the plaintiff to have a CT scan which was performed on 23 April 2010. Dr Hubel examined the CT scan and considered that it demonstrated a broad-based disc protrusion at L3-4, a central posterior disc protrusion at L4-5, and a right-sided L5-S1 disc prolapse which contacted the right S1 nerve root.
11 According to Dr Hubel, the plaintiff was treated by him until 2 March 2011. By that time, the plaintiff had undergone what he described as:
“… soft tissue work, lumbar mobilisation, neural stretches, postural taping, postural re-education. A progressive home exercise program was also prescribed and involved postural alignment, core strengthening exercises, neural stretches and pilates based exercises.”
12 Dr Hubel added:
“Over the course of Mr Dods’ treatment which ceased on 02/03/2011 there has been an improvement in the frequency and duration of Mr Dod’s symptoms. At last examination it appeared as if Mr Dods’ injury had largely stabilised following revised work restrictions including nil lifting, alternate office duties and nil heavy manual work. Due to the serious nature of Mr Dods injury, however, he would always be prone to ebb and flow in his progress.”
13 At that stage, Dr Hubel considered that if the plaintiff remained physically active and if he continued to improve his core strength, then he would continue to see some improvement in his back pain. He also considered that the plaintiff would continue to find that prolonged sitting and heavy/moderate manual work would aggravate his lower back. He added that given the nature and “severity” of his injury, the plaintiff would always be at increased risk of re-injuring in his lower back, particularly if he returned to his pre-injury work.[3]
[3]PCB 38-39, and 43-44
14 The plaintiff admitted that the occasions he saw Dr Hubel for medical treatment tapered off. Dr Hubel said that the plaintiff had attended him on a number of occasions for treatment unrelated to his lower back injury, but it would appear that Dr Hubel enquired of the plaintiff how he was getting on:
“Since that time, he has attended on a number of occasions unrelated to the back injury, and in response to enquiries as to the LBP he gave the impression that he was managing well with regular exercises and getting on with his work and personal life albeit with some minor restrictions and inconvenience.
During this time he did nevertheless refer to persistent problems with leg cramping. However, we had previously concluded, that as surgery would be a last resort only, no further action would be initiated unless the symptoms worsened.”
15 The plaintiff returned to see Dr Hubel on 11 July 2013 because he was experiencing intermittent erectile dysfunction. The plaintiff said that the dysfunction was due to the pain in his lower back. The plaintiff’s complaint of that dysfunction led Dr Hubel to revisit what residual lower back pain he had. He then organised to review the plaintiff on 19 July 2013. Dr Hubel then expressed the following opinion, which I will set out in full:
“The LBP itself, whilst intermittent, is very incapacitating when it flares, is usually accompanied by bilateral calf cramps (predominantly on the right) and takes days of intensive exercise and defensive avoidance of routine work and home routines while pain gradually subsides.
The triggers for LBP are numerous - he gives the example of waiting for an hour in the waiting room to see Dr Hince, which triggered several days of pain. Unfortunately, his work requires several hours of sitting in the car every day. While the car seat is arranged in the best configuration available, the daily outcome of prolonged sitting is unpredictable.
The LBP may in fact be precipitated by any number of routine activities such as leaning forward to wash the dishes, reaching down to a laundry basket, mowing the lawn, vacuuming the carpet, general household maintenance, shaving, putting out the garbage and even putting out and collecting “Open for Inspection” boards for work.
Indeed, even sleep is not entirely safe and he may wake in the morning with LBP having climbed into bed pain free the night before.
While he appears to accept these limitations, when pressed, he acknowledges that they have impacted significantly on his life. And the consequences of such limitations on his family and personal relationships cannot be trivialised.
He used to compete at and enjoy golf, snooker & bowling (as well as other outdoor sports) - which he can no longer do - consequently he no longer sees many of his friends.
Mr Dods also described persistent difficulty with sexual intercourse, due principally to immediate as well as subsequent back pain. This sets up a cycle of anxiety about the sex act which is difficult to overcome (he requires the assistance of Cialis for sex, followed by several days of response for the pain).
This in turn leads to relationship issues with his spouse - an issue not insignificantly compounded by his inability to help out with the household chores … .”[4]
[4]PCB 45-46
16 In his last report dated 1 July 2014, Dr Hubel referred to the plaintiff attending on 28 June 2014. The plaintiff complained of severe lower back pain with numbness in the three lateral toes of his left foot. It apparently lasted for some days and then subsided. The plaintiff told him that he had pain across his lower spine and in particular, on the right side at the L4-5 level. The plaintiff also told him that he had difficulty with his posture because of the onset of pain. Dr Hubel was of the opinion that the plaintiff would probably experience intermittent pain which he forecast was likely to increase, causing the plaintiff severe and disruptive pain. He also considered that the plaintiff might need surgery at some stage in the future.[5]
[5]PCB 47-48
17 It would appear that Dr Hubel wanted to satisfy himself that the complaints made by the plaintiff were verifiable. For that purpose, he referred the plaintiff to have a further CT scan which was taken on 5 May 2014.[6] He dealt with the appearances on the CT scan in his last report dated 1 July 2014. He considered that the appearances on the CT scan were consistent with the plaintiff’s complaints of pain in his lower back and pain radiating down into his right hip, the back of his thigh and right calf, with numbness in his fourth and little toe.[7]
[6]PCB 105-106
[7]PCB 47-48
18 Dr Hubel referred the plaintiff to Mr Dohrmann, neurosurgeon. It would appear that he saw Mr Dohrmann on 10 May 2010. The plaintiff told Mr Dohrmann that he experienced pain in his right buttock and calf which had receded and was then principally in the right buttock. He considered that the plaintiff’s symptoms of lower back and right leg pain were resolving. He did not see the need for surgical intervention. However, he then said:
“ The real issue is the longer term work aspect as further problems are likely if Mr Dods continues in work which involved repeated bending, lifting and twisting of the lumbar spine … .”[8]
[8]PCB 32
19 Dr Hubel referred the plaintiff to Mr Rogers, neurosurgeon. It would appear that he saw Mr Rogers on 28 July 2011. Mr Rogers was aware that the plaintiff had seen Mr Dohrmann. He understood that the plaintiff saw Mr Dohrmann because of the development of right-sided sciatica. Mr Rogers appears to have accepted that the plaintiff did have symptoms of right-sided sciatica, and he described the cause as follows:
“…this was certainly due to the moderately large right posterior-lateral disc prolapse at L5/S1 … .”
20 Mr Rogers advised the plaintiff to be as active as he could. He added that if the plaintiff’s right leg symptoms persisted and impacted upon his quality of life, then there would be a role for decompression of the right S1 nerve root.[9]
[9]PCB 37
The Medico-legal assessments
21 The plaintiff has been assessed by a number of medico-legal consultants. The first of those on the plaintiff’s side was Mr Kossmann, orthopaedic surgeon, who examined the plaintiff in May 2013 and March 2014.[10] I propose to refer to the opinion he expressed after examining the plaintiff in March 2014, because the opinions expressed in both of his reports appear to me to be very much the same. The critical part of his opinion is:
“Mr Dods has multiple disc prolapses in his lumbar spine which causes him pain from time to time radiating into his right buttock. In my opinion he has to undergo maintenance therapy, particularly if he has a flareup of his lumbar spine problem, in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. He has a moderate chance that he may have to undergo surgery at some stage in his life, in particular if he suffers from a catastrophic disc prolapse. In my opinion, Mr Dods has a work capacity; however he should not lift heavy items weighing more than 5 kg to 10 kg, twist and bend his upper body, kneel or squat. In my opinion. Mr Dods can work as a real estate agent full-time. In my opinion, Mr Dods has no work capacity for his pre-injury employment.”[11]
[10]Mr Crossman’s second report is dated “19 March 2013”. It must be a typographical error. I assume, therefore, that his second report should be dated 19 March 2014
[11]PCB 76, and also PCB 52-53
22 Mr Siu, neurosurgeon, examined the plaintiff on 19 July 2013. He was of the opinion that the plaintiff had suffered an L5-S1 disc prolapse. On examination of the plaintiff’s lower back, he found that his range of movement “was very good”. He considered that the plaintiff’s injury had substantially stabilised, but he noted that the plaintiff had reported a recent exacerbation of pain. That appears to have been an episode when the plaintiff engaged in the act of intercourse with his wife and subsequently, had pain in his lower back which lasted for several days. That event appears to be consistent with the occasion when the plaintiff saw Dr Hubel on 11 July 2013 complaining of erectile dysfunction. Mr Siu thought it unlikely that the plaintiff would require surgery. It would appear that he thought surgery might need to be considered if the plaintiff suffered an acute injury. He considered that the plaintiff was partially, not totally, incapacitated for his pre-injury work. He considered that he was coping well with his “new job” (in real estate) because it did not require bending and lifting.[12]
[12]PCB 70-71
23 The plaintiff saw Mr Brownbill, neurosurgeon, on 22 April 2014. Mr Brownbill was of the opinion that the plaintiff had suffered an L5-S1 disc derangement and prolapse. He considered that the injury had substantially stabilised. He noted that the plaintiff was experiencing ongoing fluctuating intermittent lower back and right leg pain. He considered that the plaintiff might require surgical decompression of the L5-S1 disc in the future. He considered that the plaintiff was totally incapacitated for his pre-injury employment. He commented on the fact that his recreational activities of pool, tennis and golf, and his domestic activities, as well as seeing to his own personal hygiene, had been compromised.[13]
[13]PCB 86
24 Mr Simm, orthopaedic surgeon, examined the plaintiff for the defendants on 6 August 2013. He was of the opinion that the plaintiff had suffered an L5-S1 lumbar disc protrusion with right-sided S1 radiculopathy. He considered that the injury had stabilised, but that it would persist. He considered that the plaintiff was incapacitated for his pre-injury employment or alternative manual work. However, he considered that the plaintiff was fit to perform his work as a real estate agent because it was non-physical work.[14]
[14]PCB 91-92
The nature of the Plaintiff’s injury
25 The plaintiff has been examined by surgeons of the highest rank. They were each provided with a reasonable history of how the plaintiff came to suffer injury, and the symptoms of pain he was experiencing in his lower back, right buttock and leg. They are all of the opinion that the plaintiff suffered a disc injury at L5-S1, which is responsible for the pain that the plaintiff has experienced in his lower back and right leg. Mr Kossmann went somewhat further than the other surgeons. He was of the opinion that the plaintiff had suffered multiple disc prolapses, including L5-S1.
26 Not only do these surgeons agree on the diagnosis of the plaintiff’s injury, they all consider that he is not fit for his pre-injury work. Whilst they described the limitations they would place on the plaintiff’s capacity to undertake manual work in somewhat different terms, the preponderant opinion is that the plaintiff should avoid manual work. He is fit for light work. He is fit to undertake work as a real estate agent. Apart from Mr Dohrmann, the other surgeons consider that the plaintiff is at some risk of requiring surgery in the future. Those surgeons also commented on the fact that the plaintiff will continue to suffer some level of persistence of symptoms of pain in his lower back, and right leg pain.
The Plaintiff’s consequences
27 The defendants mounted a challenge to the plaintiff’s case, submitting that the plaintiff has had little medical treatment, is able to work full time as a real estate agent, and that what pain and suffering consequences the plaintiff has suffered demonstrate that he has retained more than he has lost, and therefore, he cannot meet the statutory test. I disagree.
28 I am satisfied that the plaintiff has suffered the following pain and suffering consequences:
· The plaintiff has probably suffered a disc prolapse at L5-S1.
· He experiences a persistent level of pain in his lower back. He also experiences pain and cramping in his right leg.
· His ability to stand, walk, run and climb stairs is impaired.
· He is unable to help his wife with all of the domestic tasks around their home. He cannot mow the lawns.
· His relationship with his wife deteriorated to the extent that, in 2013, they separated for a three-month period. I accept that this was due to the injury to his lower back and its consequences.
· He has given up playing golf, snooker and ten-pin bowling. He has attempted to engage in each of these recreations since he suffered the injury to his lower back, but without success.
· His sexual contact with his wife has been seriously impaired. I have summarised that in the quotes taken from a report provided by Dr Hubel above.
· Even shaving imposes strain on his right leg and has resulted in cramping. He has installed a higher toilet seat to avoid the pain associated with sitting on a lower seat.
· He tries to protect his lower back from being aggravated by activity. He is anxious about suffering flare-ups of pain in his lower back.
· His sleep was more seriously affected earlier on. He continues to experience difficulty in obtaining a reasonable night’s sleep.
· He may require surgery at some stage in the future.
29 The defendants made an unsuccessful attack on the plaintiff’s credit. There was an unreasonably extensive amount of cross-examination regarding the plaintiff’s work as a real estate agent. The upshot of it was that he is now better off than he was when he was working at a warehouse. At present, he is paid $50,000 as a retainer. His sole source of gross income is the commission he is paid on the sale of real estate. At some stage during the course of this financial year he will be required to account back to his employer for the $50,000 retainer.
30 None of the cross-examination on this issue impressed me as establishing anything which affected the plaintiff’s creditworthiness and reliability. What it did establish, is that the plaintiff is doing much lighter work in the real estate industry.
31 The plaintiff was shown film taken on 22, 23 and 29 June 2013[15] and 6 July 2013.[16] It was suggested to him that the films showed him demonstrating full, free and unrestricted movement of his spine. The plaintiff disagreed. He said that he observed himself limping at various stages during the films. For my own part, I was unable to detect that, but I accept the plaintiff’s evidence that he is in a better position to determine what is full, free and unrestricted movement, when compared to how he was behaving on the films.
[15]Exhibit 1
[16]Exhibit 2
32 The films should not have been shown. They demonstrated practically nothing. What they did show was a man going about the business of a real estate agent. He was shown standing, walking, getting into and out of his car, and carrying what appeared to be very small and lightweight advertising sandwich boards. There was nothing in the films that contradicted the evidence given by the plaintiff in his affidavits and orally. There was nothing in the films which contradicted the opinions of the medical practitioners who considered the plaintiff’s fitness for suitable employment. All agreed that the plaintiff is fit to work as a real estate agent. So, I ask rhetorically, what is the controversy raised by the films?
33 I am not satisfied that the plaintiff’s creditworthiness and reliability has been successfully undermined to any degree at all. I have carefully read his affidavits and the transcript of his oral evidence. I have compared that evidence with the histories he gave to the examining medical practitioners. I have not found any contradiction, of a material nature, which could possibly suggest that he is other than a creditworthy and reliable witness. Indeed, it seems to me he has been direct, forthright and honest in his evidence, and in the giving of histories to the medical practitioners.
34 There was an odour in the cross-examination that in some way the plaintiff, the plaintiff’s solicitors, and Dr Hubel had arrived at an arrangement for Dr Hubel to provide the plaintiff with an updated medical report. It did not go so far as to suggest that, in some manner, Dr Hubel is palpably biased in favour of the plaintiff, but there was a thread in the cross-examination to suggest that. It appears to me that all Dr Hubel did was to undertake a thorough examination of the plaintiff by taking a long history from him, conducting an examination and referring him to have a further CT scan, to determine whether there was a pathological basis for the complaints made by the plaintiff. Again, I ask a rhetorical question – what is wrong with that?
35 I favour the approach, that a determination as to whether or not the pain and suffering consequences meet the statutory test, is about what has been lost, and one can be informed of what has been lost, by what has been retained.
36 I accept that the plaintiff suffers pain in his lower back and right leg. I accept that he suffers flare-ups of pain. I accept that the nature and extent of the injury to his lower back has interfered with each aspect of his domestic, social and recreational life, set out in paragraph 27 above. Indeed, what the plaintiff has lost has had a major impact on nearly all of the domestic, social and recreational activities which were part of his life. What he has retained is a capacity to engage in some of those activities, to a relatively modest degree, and the retention of the capacity to work in employment which makes very few physical demands of him.
37 I am satisfied that the pain and suffering consequences suffered by the plaintiff meet the statutory test for the reasons set out above. I find that those consequences are permanent. In reaching these conclusions, I have made the comparison with other impairments of a like kind, as I am obliged to do.
Orders
38 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering.
39 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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