Dovile v Trump Property Maintenance (Vic) Pty Ltd

[2010] VCC 483

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-02552

AARON GREGORY DOVILE	Plaintiff
v
TRUMP PROPERTY MAINTENANCE (VIC) PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2010
DATE OF JUDGMENT:	21 May 2010
CASE MAY BE CITED AS:	Dovile v Trump Property Maintenance (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0483

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – whether consequences of injury meet statutory threshold – application with respect to pain and suffering consequences only.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Philbrick SC and	Maurice Blackburn
Mr D J N Purcell
For the Defendant	Ms M Britbart	Herbert Geer
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages with respect of the pain and suffering consequences of an injury suffered by him in the course of his employment with the defendant on 15 June 2005. The impairment of body function relied on by the plaintiff is the impairment of his lumbar spine associated with an intervertebral disc injury suffered by him at the L3-4 level.

2          In the course of the proceeding, the plaintiff gave evidence and was cross- examined. Otherwise, the parties rely upon various documents contained in their respective Court Books which included:

• two affidavits sworn by the plaintiff: the first on 17 December 2008; and the second on 27 April 2010,

• the affidavit of the plaintiff’s mother, Margaret Dovile, sworn 23 April 2010,

• a number of medical reports and medical records.

3          In his first affidavit, the plaintiff deposed that:

• He was currently twenty-six years of age and had attended school until Year 10. He said that on leaving school he commenced an apprenticeship as a vinyl tiler, that he completed his apprenticeship whilst in employment with the defendant, and that he thereafter continued in employment with the defendant as a vinyl tiler until the date of his injury.

• He suffered an injury on 15 June 2005 when, whilst carrying a heavy box of tiles, he developed severe back pain which spread into both legs.

• By reason of symptoms of back pain, he attended his general practitioner, Dr Karna, who initially referred him for physiotherapy and subsequently to an orthopaedic surgeon, Mr Wilde, who first saw the plaintiff in August 2005. Mr Wilde arranged for the plaintiff to undergo an MRI scan and informed him that he was suffering from a bulging disc at the L3-4 level and a tear in that disc. He further advised the plaintiff that by reason of this injury, he should seek lighter work and that he should not return to work as a vinyl layer. The plaintiff was subsequently referred to Cedar Court for rehabilitation and eventually saw Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. At all times conservative management was recommended to the plaintiff for his injury.

• In early 2008, the plaintiff commenced his own business involving the stripping and grinding of concrete floors. This work is undertaken using a concrete grinding machine. The plaintiff described the fact that in undertaking that work he was assisted by a sub-contractor and, whilst the work was not particularly heavy, he was selective in the work he undertook and he particularly avoided any jobs involving stairs.

• Before suffering his injury he enjoyed playing golf with his father and brother and engaged in motorbike riding and jet ski riding. He said that while he still owned a motorbike he did not ride it, and that he had given up riding a jet ski.

• He suffered from constant back pain which varied from discomfort on a good day to severe pain on a bad day. He said that his work sometimes involved a lot of bending and that this could bring on severe attacks of pain. He described difficulty getting into a comfortable position. He said that he had to now avoid activities such as attending movies, as sitting for long periods aggravated his pain. He described an ability to do housework but said that he avoided heavier work and that he required the assistance of his brother to mow his lawns. He said that before his accident he enjoyed attending a gymnasium, but that since the accident he had abandoned that activity. He said that he was concerned about his long- term work prospects.

4          In his second affidavit, the plaintiff described the fact that:

• Since June 2008, he had increasingly experienced pain in his back which kept him awake at night. He said that he had contacted Dr Karna in February 2010 to obtain a prescription for sleeping tablets and that he had at that time been referred for physiotherapy treatment which had provided him with short-term relief.

• He said that he managed his pain by occasional recourse to Panadeine Forte. He estimated that on average he made use of Panadeine Forte once or twice a month and said that whilst he had occasionally taken Panadol, he found that this did not make much difference to his symptoms.

• He said that he continued to work in his concrete grinding business and was assisted by a friend who sub-contracted to him. He described his friend as doing most of the heavier work where possible and said that his duties were more of a supervisory nature and involved lighter activities, such as quoting or using a grinding machine.

The Viva Voce Evidence

5          In the course of his evidence, the plaintiff said that he had undertaken a five- year apprenticeship during which he was paid, in his first year at $5 an hour and his last year at between $9 and $10 an hour. He said that immediately before his accident he had completed his apprenticeship and had been working as a qualified vinyl layer for less than twelve months. He said that during this time his wages had improved considerably when compared with those which he was receiving as an apprentice. He described having two brothers, two cousins and two uncles who worked as vinyl layers. He said that the loss of his trade was –

“Very frustrating. Like that’s what I know how to do. That’s what I do
and I can’t do it.”

6          The plaintiff said that he presently managed his symptoms by a regime of exercise and stretching and the occasional use of painkillers and sleeping tablets which had been prescribed by his general practitioner Dr Karna. He described the fact that whilst there had been some initial improvement in his symptoms during the period which immediately followed his injury, this improvement soon plateaued and that over the last five years there had not been much improvement. The plaintiff described the chronicity of his symptoms in the following terms:

“It’s better, definitely better now than when it first happened, but it’s still

very much, very similar to how it was.”

7          The plaintiff described the presence of difficulty sleeping, which had been a feature which he said was associated with his back pain and had always been present since he had injured himself. He agreed that he had not made use of sleeping tablets on many occasions and agreed that other than in respect of a recent attendance upon Dr Karna, he had only been prescribed sleeping tablets on two previous occasions. He said that since returning to work, which required him to be up at 6.00 am every morning, his sleeping problem had become a real issue. He agreed that he had been prescribed Panadeine Forte by Dr Karna on only three occasions since June 2005 but said that he also had access to Panadeine Forte which had been prescribed for a dental problem. He said that he avoided using sleeping tablets when possible, having regard to advice given to him by his general practitioner, that he should treat them “like gold and only use them when I have to use them”.

8           The plaintiff accepted that he had been able to manage the activities involved in his business without the need for extra visits to Dr Karna or the recourse to extra medication. He said that:

• he always worked with the assistance of a sub-contractor and that he was

generally able to perform the activities involved in his work although he employed his sub-contractor to do the heavier aspects of the work, including lifting;

• but for his injury he would be able to do fifty per cent of the jobs which he presently undertakes without the assistance of a sub-contractor;

• he was able to go fishing with his father, that he was able to keep his house clean, that he could cope with vacuuming but he did not do work outside the house;

• whilst he had given up riding his motorbike, he had taken up pushbike riding and that whilst he maintained social contact with his friends he was restricted in the activities in which he engaged with them.

9          The plaintiff described suffering from good days and bad days and said that his symptoms could be exacerbated by his work. He said that he occasionally had to lie down in the course of grinding concrete in order to relieve back pain and that his sleep was a constant problem for him. He said that in the last year he was constantly tired, that he had to get up at 5.30 in the morning and that he was not getting to sleep until the early hours of the morning.

10        He said that before the accident he enjoyed working out in a gymnasium which he attended four to five days a week. He said that he was now precluded by his symptoms from riding motorbikes or jet skis with his friends. He said that whilst he could still go away with his friends on weekends, he was required to watch everyone having fun and was not able to become involved.

The Evidence of Margaret Dovile

11        In an affidavit dated 23 April 2010, Margaret Dovile the plaintiff’s mother who is a registered nurse, described her son prior to the accident as being a cheerful man who maintained a very active life. She said the effect of his injury had been to cause her son to cut down on his outdoor and physical activities and that he was now a changed person.

12        Mrs Dovile said that before his injury, the plaintiff enjoyed riding his motorbike and his jet ski and that he would play social golf with his father and brother. She described the plaintiff as enjoying gardening and building and repairing furniture which he would often construct from items of scrap. She described these activities as being substantially abandoned by the plaintiff since his injury. She said that before the accident the plaintiff enjoyed attending a gymnasium and maintaining his fitness, that he took pride in working out and enjoyed the level of fitness which he gained by attending the gymnasium. She said that the plaintiff had difficulty sitting for extended periods of time and confirmed that he had trouble with sleeping. She described noticing the disturbed sleep pattern of the plaintiff associated with his back discomfort, stating:

“He will frequently leave his bed to sleep on the floor due to this discomfort. I have noted that Aaron will frequently leave my house to go home and have a sleep in the afternoon due to the disturbance to his regular sleep.”

The Medical Evidence

13        There is no issue that the plaintiff has sustained a disc injury at the L3-4 level which has rendered him permanently unfit to perform the work of a vinyl layer.

14         In a report dated 7 October 2007, Mr Peter Wilde described the plaintiff as suffering from mechanical lumbar back pain secondary to an L3-4 disc disruption without radiculopathy. He commented:

“The prognosis is guarded and I expect that he will always suffer from low grade symptoms of chronic lumbar pain and stiffness. He will have to modify personal and work activities to accommodate his symptoms to avoid further deterioration.”

15        Mr Wilde further opined:

“He should undergo vocational re-training into more sedentary forms of work. Taking this man’s previous education, work skills and employment history into account, it may be difficult for him to find appropriate work. Thus I consider he is partially incapacitated in that he is not able to return to work in pre-injury employment but could in suitable employment for which he is reasonably trained.”

16        In a report dated 26 June 2007, Mr M Kahn, an orthopaedic surgeon, described the plaintiff as suffering from discogenic pain emanating from the L2-3 and L3-4 discs with referred pain down his left groin and testicle. He described the plaintiff as being left with a mild partial impairment of function which rendered him fit to perform suitable work avoiding repetitive bending and twisting and turning his spine or lifting unusually heavy weights.

17        In a report dated 20 April 2001, Dr C Thomas, a consultant in rehabilitation and pain medicine, described the plaintiff as having suffered an injury involving an annular tear at the L3-4 level. He opined that

• the plaintiff’s prognosis was one which involved persistent pain and associated disability;

• the plaintiff’s condition had been largely stable since 2006 and that it was likely to continue into the foreseeable future;

• the plaintiff required conservative treatment and support and there was no expectation that his back pain would either improve or worsen;

• the plaintiff had a capacity to undertake work which did not involve bending, lifting and frequent twisting below waist height, and that this position was unlikely to change. He reported that the plaintiff’s pain interfered with his ability to sleep and that daytime fatigue was a problem for him; that the plaintiff’s work aggravated his symptoms and that his symptoms could be exacerbated even by activity which involved bending only for a couple of minutes.

18        In a report dated 23 April 2009, Mr Michael Polke an orthopaedic surgeon described the plaintiff as suffering from low-back pain which was aggravated by prolonged sitting and also whilst in bed at night. He obtained a history from the plaintiff that he had been required to give up his hobbies, including jet skiing, motorbike riding and gymnasium work since his injury. He opined that the plaintiff should not return to his pre-injury work and that he should avoid work which involved repeated bending and heavy lifting.

19        In a further report dated 2 March 2010, Mr Polke opined that the plaintiff remained mildly symptomatic, that he presented with virtually no residual abnormal signs and that he expected a further recovery would take place in the plaintiff’s condition in future years.

Findings

20        In deciding the issue which arises in this case, namely whether the plaintiff’s pain and suffering consequences, 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”; I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[1] and one in which I am required to take into account –

“not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[2]

[1]            Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[2]             Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

21        Whilst there is a level of mild disagreement in the medical evidence as to the plaintiff’s prognosis,[3] I am satisfied that there has been very little improvement in the plaintiff’s condition since mid-2006, and that it is largely stabilised. In making this finding I rely upon the plaintiff’s evidence as to the lack of improvement in his symptoms which evidence was supported by that of his mother. In the context of that evidence I prefer and accept the opinions of Mr Thomas and Mr Wilde that the plaintiff’s condition has stabilized to that of Mr Polke who opined otherwise.

[3]             Mr Polke opines that the plaintiff will make a further recovery whereas Mr Thomas and Mr Wilde were, by mid-2006 (Mr Thomas) and mid-2007 (Mr Wilde), expressing the opinion that the plaintiff’s condition was largely stabilised and that he should modify personal and work activities to accommodate his symptoms and avoid further deterioration.

22        I am satisfied that by reason of his injury, the plaintiff has lost the trade which he spent five years qualifying in and that this loss is of particular significance having regard to the plaintiff’s family history of employment in that trade.

23        I am further satisfied that the plaintiff suffers from continuing symptoms of pain which are exacerbated when he engages in any form of heavy or strenuous physical activity. Having regard to the plaintiff’s ability to manage his symptoms of back pain without recourse to the regular use of prescription painkillers, I am satisfied that the description of the plaintiff’s level of pain employed by Mr Wilde, namely “low-grade symptoms of chronic lumbar back pain and stiffness,” is an appropriate description to be applied to the plaintiff’s general physical state. I accept however the plaintiff’s evidence that he suffers from regular exacerbations of his symptoms which increase the level of pain which he is experiencing.

24        I am satisfied that a continuing feature of the plaintiff’s presentation is pain which interferes with his ability to sleep. In making this finding I rely upon the plaintiff’s evidence that an ongoing feature of his pain has been the fact that it interferes with his sleep which was supported by:

• The fact that in 2006, the plaintiff’s rehabilitation program was put on hold because sleeping issues associated with the plaintiff’s condition were preventing him from attending his program on a regular basis.

• A report generated from Cedar Court, the rehabilitation hospital which the plaintiff was attending in February 2006,[4] which records the fact that the plaintiff was, in the course of his treatment at Cedar Court, managed by both a doctor and a psychologist, but that no improvement in his sleeping problem was achieved.

• The fact that in June 2007, Dr Karna obtained a history of difficulty sleeping from the plaintiff, as did Mr Thomas in 2006.

• The medical records of Dr Karna which note that in November 2007 the plaintiff was suffering from back pain which was unchanged and from marked early insomnia.

• The fact that each of the medical practitioners who have obtained a history from the plaintiff of symptoms which significantly interfere with his ability to sleep have in no way called into question the veracity of that history.

[4]             Defendant’s Court Book 44

25        The defendant urges upon me the position that I should not be satisfied that the plaintiff’s symptoms of insomnia have been as severe as he described given the fact that he has not needed to make use of medication on a regular basis to assist him to sleep. I accept however the evidence of the plaintiff that until he commenced his present business, the difficulties he was encountering with his sleep, whilst they were present, were not so significant for him and that this explains his failure to seek medical help with this problem on a regular basis

26        The plaintiff presented as a person who was well-motivated to make the most of his life and lifestyle notwithstanding his injury. That he has commenced a business in order to diminish the effect which his injury has had upon his capacity to earn income bears testament to that fact.

27        My impression of the plaintiff was that he was a person for whom, prior to the accident, the physical aspects of both his work and his hobbies were of significant importance to him. The fact that at the age of twenty-three the plaintiff has lost the ability to engage in his trade gives rise to what I regard as being a very significant loss for a young man who was at the time at which he was injured just in the process of establishing himself as a qualified tradesman.

28        As I have observed, it is to his credit that the plaintiff has been able to establish a business which is remunerative and involves a pattern of work which he is able to cope with, notwithstanding that it has a tendency towards aggravating his symptoms. I am satisfied however, that the plaintiff’s injuries have had an adverse impact of considerable significance upon his general employability and the security of his employment which is permanent in that, should his new found business fail, the plaintiff now presents to the workforce as an unskilled worker fit only for restricted employment.[5] Further, the loss to the plaintiff of the enjoyment he obtained from engaging in his pastimes of gym training and motorcycle and surf ski riding are not without significance.

[5]             Although it was contended on behalf of the defendant that the absence of any complaint by the plaintiff to the various legal practitioners who have examined him that the loss of his apprenticeship was a significant loss to him, I formed the impression of the plaintiff that if anything he had a tendency towards stoicism and I do not find it surprising that he might not volunteer the frustration that he feels having been denied the opportunity to pursue his trade.

29        Whilst I am satisfied, taking into account all the evidence in the matter, that the consequences of the plaintiff’s injury to him fall at the borderline of the level of impairment required to satisfy the test of “serious injury” as laid down by the provisions of the Act, I am satisfied that the combination of the plaintiff’s young age, the loss of his trade and many of his hobbies, the stability of his condition which will expose him to ongoing symptoms of pain from which he will suffer for the duration of his life at the levels to which I have earlier described which is such as to cause the plaintiff to suffer from significant levels of insomnia, that it is appropriate to describe the level of the plaintiff’s impairment, when judged in comparison with other cases in the range of possible impairments, as being more than significant or marked and as being at least very considerable.

30        In the circumstances, I am of the opinion that the plaintiff is entitled to the leave sought. I will hear the parties at to the precise nature of the orders which should be made and upon the issue of costs.

- - -