Drousiotis v Wingfoot Australia Partner Pty Ltd
[2014] VCC 221
•13 March 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-13-00211
| SPYROS DROUSIOTIS | Plaintiff |
| v | |
| WINGFOOT AUSTRALIA PARTNER PTY LTD | First Defendant |
| and | |
| GOODYEAR TYRES PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 17 February 2014 | |
DATE OF JUDGMENT: | 13 March 2014 | |
CASE MAY BE CITED AS: | Drousiotis v Wingfoot Australia Partner Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 221 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to the spine and right upper limb – whether the consequences of injuries were “very considerable” – whether the plaintiff has established a loss of earning capacity of 40 per centum or more – quantum of the plaintiff’s income from personal exertion.
Legislation Cited: Accident Compensation Act 1985, s134AB; Transport Accident Act 1986, s6(2)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave to the plaintiff to commence a proceeding claiming damages for pain and suffering and loss of earning capacity in respect of injuries suffered by him in the course of his employment with the defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram SC with Mr J Goetz | Antony, Sdrinis & Co |
| For the Defendants | Mr P Hayes | Wisewould Mahony |
HIS HONOUR:
1 Spyros Drousiotis alleges that he suffered injury to his lumbar and cervical spine and right upper limb in the course of his employment with the defendants. He seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of those injuries.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as it is relevant to this application, as a:
“(a) permanent serious impairment or loss of a body function.”
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622
5 The term “serious” is to be satisfied by reference to the consequences to Mr Drousiotis of any impairment or loss of such body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 135AB(38)(b)
6 The impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering or loss of earning capacity consequences of such impairment or loss, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Mr Drousiotis has suffered the loss of earning capacity required by s134AB(38)(b) unless he establishes, in addition to the requirements of s134AB(38)(c), that at the date of the hearing of the application he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss(38)(e), (f) and (g).
8 Mr Drousiotis claims, and the defendants dispute, that:
(a)the pain and suffering consequences of his physical injuries can fairly be described as being more than significant or marked and at least very considerable; and
(b)he has suffered a loss of earning capacity which is at least very considerable and, in addition, has suffered a loss of earning capacity of 40 per cent or more, measured in accordance with s134AB(e), (f) and (g).
Background
9 Mr Drousiotis is aged fifty-two. He was born in Cyprus and migrated to Australia in 1975. He was educated up to Year 10.
10 Mr Drousiotis has been a right-hand dominant manual worker throughout his career.
11 Mr Drousiotis has a stable and consistent employment record. He commenced employment with South Pacific Tyres (subsequently operated by the defendant companies) as an apprentice electrician in 1978. From 1982, he has specialised in industrial electronics.
12 In May 1991, Mr Drousiotis was made redundant by South Pacific Tyres. One month later, he obtained employment at Meadow Lea Foods as a special class engineering tradesperson. He worked there until June 2000, when he was retrenched. Soon after, he recommenced employment with South Pacific Tyres as a specialist skills electrician. He continued in that employment until December 2009, when South Pacific Tyres closed its Somerton plant. Mr Drousiotis has not worked since. He alleges that he suffered the injuries the subject of this claim in the period 2000 to December 2009.
13 There was evidence that Mr Drousiotis suffered several injuries before the relevant period of employment.
14 In 1982, he suffered an injury to his low back and was off work for a short period of time before resuming on modified duties, eventually returning to normal duties. Five years later, in 1987, he again sustained injury to his low back after falling backwards onto his buttocks. X-rays and a CT scan performed in the two years following showed no abnormality.
15 By 1989, Mr Drousiotis was still suffering some spinal pain and was referred by his general practitioner, Dr Kenny, to several surgeons, all of whom recommended conservative treatment. He received an epidural injection which was of little benefit. He underwent an MRI scan in May 1990, which showed a degenerate disc at L5-S1 with posterior disc prolapse. Above L5, the discs were reported as being normal.
16 Mr Drousiotis lodged a claim against South Pacific Tyres in respect of injury to his low back. The claim was settled in 1993 for $25,000.
17 Mr Drousiotis does not appear to have been treated in respect of his back during the course of employment with Meadow Lea Foods between 1991 and 2000.
18 Prior to recommencing employment with South Pacific Tyres in 2000, Mr Drousiotis was assessed by Dr Kenny and a doctor retained by the defendants as fit to perform work, so far as his low-back condition was concerned.
19 The injuries the subject of this claim were alleged to have occurred during the course of the second portion of his employment with South Pacific Tyres between mid 2000 and late 2009, when the company closed down.
20 Around 2005 or 2006, while in a stationary vehicle, Mr Drousiotis was struck from behind by another vehicle. He received several sessions of physiotherapy and recovered from the accident shortly after.
21 In October 2005, he suffered injury to his neck and upper back whilst lifting metal plates at work. He received further physiotherapy. He did not require any time off work, but it took him some time to fully recover from the effects of the upper back injury.
22 Mr Drousiotis again saw Dr Kenny in 2006, suffering from numbness in his right arm, hand and fingers after crimping cables. He was diagnosed with tennis elbow and the numbness gradually subsided, although it returned from time to time when performing repetitive tasks with his right arm.
23 On 8 January 2007 and 23 February 2008, he was struck by vehicles at work.
24 In December 2007, he felt pain in his right shoulder and numbness in his right arm, hand and fingers whilst replacing a cable. In early February 2008, an x‑ray of the right shoulder showed little other than a small piece of metal embedded in the anterior soft tissues.
25 On 12 February 2008, an EMG study arranged by an orthopaedic surgeon, Mr Greg Hoy, demonstrated a delay in conduction to the abductor pollicis brevis, consistent with mild right Carpal Tunnel Syndrome.
26 On 18 February 2008, he complained to Mr Hoy of further neck pain.
27 On 5 August 2008, he underwent a right carpal tunnel release procedure.
28 Mr Drousiotis returned to work with South Pacific Tyres on 3 October 2008 on light duties. He remained on such duties until just before December 2009 when the defendants’ factory closed. He has not been employed since.
29 Mr Drousiotis has continued to have conservative treatment since that time. In January 2009, an MRI scan of his cervical spine was reported as showing multi-level disc desiccation and a small disc prolapse at C6-7. On the same date, an ultrasound of the right shoulder showed mild tendonosis of the supraspinatus tendon but no tear.
30 In early 2009, Dr Kenny referred Mr Drousiotis to two neurosurgeons, Mr Thien and Mr Lo, who both advised against surgery.
31 In January 2009, an MRI scan of the lumbar spine showed desiccation and narrowing of the L5‑S1 disc and a left-sided prolapse abutting and deforming the left L5 nerve root.
32 In March 2010, he completed a three-month Pain Management Program at Epworth Rehabilitation.
33 In early 2010, Mr Drousiotis was referred to Dr Victor Wilk, who, in May and June of that year, administered an epidural injection at the L5-S1 level and two lots of lumbar nerve blocks at the L3, L4, and L5 levels.
34 In June 2012, Dr Kenny referred him for a cortisone injection into the right shoulder.
35 Mr Drousiotis is currently prescribed the analgesic Digesic, takes four Panadol per day and two Panadeine at night. He is unable to tolerate non-steroidal anti-inflammatory medication.
36 Mr Drousiotis has physiotherapy treatment once or twice per month.
Diagnosis of Injuries
37 A very large number of medical reports were initially included in the Court Books of the parties. The plaintiff’s Court Book contained approximately 400 pages with some 72 reports or letters from medical practitioners, including some 26 medico-legal reports. The defendants’ Court Book contained twelve reports from nine practitioners. Counsel for the plaintiff accepted my invitation to cull some 34 reports or letters upon which he did not intend to rely. It would be a rare case that necessitated 26 reports from twelve medico-legal practitioners. I do not consider this was such a case.
38 Mr Drousiotis alleged that injuries to his lumbar spine and cervical spine amounted to a “serious injury” as defined. Further, he contended, and the defendants agreed, that the injuries to his cervical and lumbar spine could be aggregated in determining whether there was a permanent and serious impairment of the function of the spine.
39 In addition, he alleges that an injury to his right upper limb was a “serious injury” as defined. In particular, he alleged an injury to his right shoulder, right elbow and right Carpal Tunnel Syndrome could be aggregated so as to establish a serious and permanent impairment of the right upper limb. The parties were at odds as to whether these injuries could be so aggregated.
Right Upper Limb
40 Mr Drousiotis was treated for a right epicondylitis (tennis elbow) in March 2006. He first complained of right shoulder pain to Dr Kenny in November 2007, at about the same time that he was referred to Mr Hoy in relation to right Carpal Tunnel Syndrome. I am not satisfied that he still suffers from any convincing symptoms relating to the tennis elbow condition.
41 An EMG study in February 2008 showed results consistent with mild Carpal Tunnel Syndrome. In August 2008, Mr Hoy performed a carpal tunnel release procedure. Mr Drousiotis’ evidence was that his symptoms had improved post surgery. On the basis of his own evidence and the histories he has provided to medical practitioners, I am not satisfied that he is currently experiencing symptoms of any real significance that relate to the Carpal Tunnel Condition.
42 An ultrasound examination in January 2009 was reported as showing tendonosis of the supraspinatus tendon with mild bursal impingement but without tear or calcification.[5] A further ultrasound in June 2012 produced similar results.[6]
[5]Plaintiff’s Court Book (“PCB”) 68
[6]PCB 73
43 Mr Drousiotis’ evidence was that he had experienced pain and restriction of movement in his right shoulder since the incident in October 2005 when lifting heavy metal plates.
44 There are medical opinions that Mr Drousiotis’ shoulder and arm pain is likely to be referred from his cervical spine. Whilst I accept this is so, I also accept, on balance, that, in the course of his employment in the relevant period, he did suffer a discrete injury to his shoulder with resultant tendonosis of the right supraspinatus tendon, and that some of his right upper limb symptoms probably relate to that discrete injury.
Lumbar Spine
45 I find that, on the evidence, Mr Drousiotis had suffered an injury to his lumbar spine at least as far back as 1987 when he fell onto his buttocks. This was well before the relevant period of employment. He had treatment for some time and had radiological investigations as late as 1990. There is no evidence of treatment for low-back pain in the ten years or so preceding 2000.
46 An x-ray on 31 May 1990 was reported as showing a posterior, degenerate disc prolapse at L5-S1 obliterating the anterior epidural fat.[7] An MRI scan of 31 December 2009 was reported as showing desiccation and narrowing of the L5-S1 disc containing a radial fissure and abutting and deforming the left L5 nerve root.[8]
[7]PCB 56
[8]PCB 69
47 In paragraphs 8 to 10 of his affidavit sworn 5 September 2012, Mr Drousiotis made reference to having had low-back symptoms from 1987 to 1989 and to specialists to whom he was referred around that time. He made no further reference to low-back pain in the course of his employment from 2000 up until the closure of the factory in December 2009. In paragraph 10 of his affidavit, he deposed that he was referred to an orthopaedic surgeon, Mr Speck, in March 2010 and to Dr Wilk during 2010 in relation to his low back. Dr Wilk performed an epidural injection and nerve blocks at the lumbar level.
48 Dr Kenny, in his report of 17 February 2011, refers to Mr Drousiotis having lower back problems that required treatment. He does not identify the date of onset of those problems nor express an opinion as to their likely cause. In his reports of May 2012 and November 2013, Dr Kenny states that Mr Drousiotis continued to have lower lumbar pain.
49 In Mr Thien’s letter of February 2009 (eleven months prior to ceasing work), no mention is made of the lumbar spine at all.[9] Similarly, Mr Lo and Dr Lewis appear only to have been concerned with Mr Drousiotis’ neck in the early part of 2009[10] and a report of the physiotherapist, Mr Kornberg, of 20 May 2011 makes no mention of any low-back pain.[11]
[9]PCB 97-8
[10]PCB 99, 101-2
[11]PCB 122
50 In January 2011, Associate Professor Bittar took a history from Mr Drousiotis of him being struck by a truck at work on three separate occasions and that these exacerbated his pre-existing lower back pain.[12]
[12]PCB 125
51 In February 2011, Associate Professor Myers took a history that Mr Drousiotis had had troubles with his low back since 1987 and that this had become worse after 2005 to 2006, that he managed it, and that it was variable ever since.[13]
[13]PCB 134
52 Taking the affidavit and medical evidence into account, I am satisfied that Mr Drousiotis probably suffered an aggravation of pre-existing degeneration of his lumbar spine. I shall deal with the extent of and consequences of that aggravation later in these reasons.
Cervical Spine
53 There is no suggestion that Mr Drousiotis suffered neck pain prior to 2000.
54 I accept the majority of the medical evidence that it is likely that he suffered an injury to his cervical spine in an incident in October 2005 whilst lifting metal plates. That injury is likely to have been aggravated to an extent in a car accident in 2005-2006 and in incidents in 2006 and 2007, when he was struck by vehicles at work.
55 Mr Thien reported that the MRI scan of Mr Drousiotis’ cervical spine of January 2009 showed a suggestion of a left-sided prolapse at C5-6 but considered that this was not related to his right-sided symptoms. In addition, he noted the suggestion of a right-sided lesion at C6-7 and the possibility of a small right-sided lateral disc prolapse at that level.
56 Dr Lewis reviewed the MRI and concluded that it showed multi-level disc degeneration which was age-related and showed no specific abnormality.[14]
[14]PCB 102
57 Mr Brearley considered there was mechanical neck pain from an intra-disc injury at the C6-7 level with resultant disc prolapse and pressure on the emerging cervical nerve roots.[15]
[15]PCB 155
58 Associate Professor Bittar considered that there was a small right prolapse at the C6-7 level. His diagnosis was of aggravation of cervical spondylosis with cervical radiculopathy.[16] He considered that such condition, with ongoing neck and arm pain, was work related. Similar views were expressed by Associate Professor Myers,[17] Dr Sutcliffe,[18] Mr Troy[19] and Dr Yong.[20]
[16]PCB 127
[17]PCB 143
[18]PCB 275, 286
[19]Defendants’ Court Book (“DCB”) 39
[20]DCB 1
59 Mr King considered that stresses and strains and recurrent injuries at work had resulted in chronic neck pain with radiculopathy at the C6-7 level, resulting in right brachial neuralgia.[21]
[21]PCB 193
60 In June 2011, Mr Blomberry held a similar view. He considered that Mr Drousiotis’ previously asymptomatic degenerative changes became symptomatic as a consequence of heavy and repetitive work in the course of his employment.[22] By December 2013, he thought Mr Drousiotis had developed a widespread Pain Syndrome, explained on the basis of sensitisation of pain nerve pathways or, alternatively, on psychological factors.
[22]PCB 166, 170
61 Professor Littlejohn thought Mr Drousiotis had pain from various musculoskeletal structures but also an independent and significant Chronic Pain Syndrome fitting the criteria for fibromyalgia which, he explained, had an organic basis and also a psychological component.
62 Mr Klug considered there was no doubt that the imaging studies of Mr Drousiotis’ cervical spine revealed changes which could be consistent with his complaints of neck pain with a spread of pain to the right upper limb.[23] He did not think there was clear evidence of neurologic involvement.
[23]DCB 178, 184
63 Associate Professor Brazenor considered there was no physical explanation at all for any of his symptoms and that he was suffering either from a “self imposed invalidism in an attempt to gain compensation” or a “psychiatric disease manifesting as obsessional hypochondriasis”.[24]
[24]DCB 19
64 Mr Gale thought he had age-related degenerative changes in the cervical spine, causing right shoulder symptoms.[25] Mr Francis had a similar view.[26]
[25]DCB 54
[26]DCB 64
65 To a degree at least, all of the doctors referred to above depended on the honesty of Mr Drousiotis in describing his symptoms. I have had the opportunity of watching him give his oral evidence and his demeanour under cross-examination. I consider that he gave his evidence in a relatively straightforward manner. At times he appeared frustrated during a lengthy cross-examination but I did not conclude he was attempting at any stage to mislead the Court. I concluded that he was an honest witness.
66 Taking all of the evidence into account, I am satisfied that Mr Drousiotis suffered an injury to his cervical spine in the course of his employment with the defendants between 2000 and 2009, and in particular, in October 2005, when he was lifting metal plates. I consider it is most likely that, in that incident, he suffered an aggravation of cervical spondylosis with cervical radiculopathy resulting from the prolapse identified at the C6-7 level. I note the view expressed by a number of doctors to the effect that his symptoms are attributable to an exacerbation at work of his pre-existing but asymptomatic degenerative cervical spine.[27]
[27]
67 I accept that he had pre-existing degenerative changes of his cervical spine but that these were asymptomatic prior to his employment over the relevant period. I accept they have remained symptomatic since 2005.
Consequences of Injuries
68 Submissions were made concerning the aggregation of various injuries.
69 Insofar as the right upper limb is concerned, I do not consider that Mr Drousiotis’ carpal tunnel injuries are presenting him with significant problems at the present time. Whilst he may suffer symptoms that are still attributable to that condition, I find that they are relatively minor. Likewise, I was not satisfied that symptoms relating to his right tennis elbow were currently of significance.
70 Whilst I accept that Mr Drousiotis suffered a discrete injury to his right shoulder in the course of employment, I consider it likely that the majority of his right arm symptoms are associated with his neck injury. I am not satisfied that the consequences of his discrete right shoulder injury could fairly be described as at least very considerable.
71 I am, however, satisfied that the injury to Mr Drousiotis’ cervical spine is a substantial one.
72 His cervical spine was asymptomatic prior to the relevant period of employment. His complaint of symptoms of pain since the 2005 incident has been consistent. His general practitioner plainly considered him to be a genuine patient.
73 Although there is some medical opinion that he was suffering from a pain syndrome which might have involved some psychiatric component, I am satisfied that the bulk of his pain has an organic basis.
74 I accept that the degree of aggravation of Mr Drousiotis’ low back condition is contentious. Nevertheless, I accept that he suffered sufficient low-back pain to warrant a number of invasive procedures such as epidural injections and nerve blocks. I do not consider that a person in Mr Drousiotis’ position would agree to undergo such procedures unless his symptoms were genuine.
75 Submissions were made on behalf of the defendants that Mr Drousiotis’ physical impairment was negligible. I do not accept that submission.
76 DVD films were tendered, depicting Mr Drousiotis on 6 and 10 May 2013 and on 3, 7 and 8 October 2013. At times during the films, I consider that Mr Drousiotis moved in what might be described as a cautious manner or, as his counsel put it, in a “gingerly” manner.
77 Counsel for the defendants submitted that the films showed Mr Drousiotis moving freely and were indicative that he had exaggerated his problems to doctors who saw him and to the Court. I have watched those films again since. I do not think they advance the defendants’ case in the manner submitted. I considered that the films showed Mr Drousiotis engaging in no activities that would cast doubt concerning the extent of his spinal injury or concerning his honesty. I concluded that the films did not display Mr Drousiotis doing anything that he had indicated that he could not do. He had never suggested in his affidavit or oral evidence that he was a cripple or that he could not walk. The films did show him walking relatively short distances and driving a motor vehicle short distances. He was depicted opening a car door on a number of occasions. My viewing of those occasions indicated that on the majority of them, he commenced opening the door with his right arm but soon after, used his left arm to assist in the opening procedure. This, in my view, was consistent with him having the problems with his right arm to which he had deposed. Contrary to suggestions put to him in cross-examination, I did not observe him perform any actions in which his right elbow was raised above shoulder level. These activities included his opening and closing of the boot of his motor vehicle. In summary, I consider the films tendered showed Mr Drousiotis performing no activities inconsistent with his evidence.
78 I do not consider the fact that he is able to accompany his mother on shopping occasions or that he accompanied his family to Cyprus for four months in 2009 to be inconsistent with his evidence.
79 On the evidence before me, I find that the consequences of Mr Drousiotis’ injury to his spine include the following:
(a) He suffers consistent pain in his neck, highlighted by more acute stabbing sensations if he turns around.
(b) He suffers from significant headaches and that it is likely that these are caused by his neck injury.
(c) He sleeps poorly, often waking through the night. Not surprisingly, he suffers significant fatigue.
(d) Pain requires him to take significant quantities of medication. At present, it seems that he is taking one to two Digesic tablets per day, up to four Panadol tablets per day and two Panadeine tablets at night. He is unable to use anti-inflammatory medication as a consequence of his Crohn’s disease.
(e) He is restricted in his household chores. His brother helps him with heavier tasks around the house.
(f) His right arm feels to him as though it is heavy and weak and persistently aches. These symptoms are likely to be referred from his neck.
(g) His ability to bend, lift or stoop is considerably restricted.
(h) He is unable to attend to his gardening and lawns and has, as a consequence, employed a person to attend to these tasks.
(i) He has difficulty standing or sitting for extended periods of time. Likewise, his ability to drive a motor vehicle is restricted to short distances.
(j) He has been unable to participate in activities with his family as he would otherwise have liked to do. An example was that he declined his brother’s invitation to accompany his brother and family on holidays to the Mornington Peninsula.
(k) He suffers variable low back pain
80 An affidavit sworn by Mr Drousiotis’ brother is also supportive of his application.
81 Further, for reasons expressed below, I have come to the view that, realistically, he is unable to return to the workforce. Loss of the satisfaction of employment and the social interaction of mixing with work colleagues would, on any view, be important pain and suffering consequences of his injuries for him.
82 The invasive procedures involving his low back are far from routine ones. I do not consider it is likely that a person suffering from few symptoms, and effectively malingering, would consent to such procedures being conducted.
83 I have read the reports of Associate Professor Brazenor and note that he has come to the conclusion that there is effectively nothing wrong with Mr Drousiotis at all. His opinion bears little resemblance to that of every other medical practitioner whose views were in evidence. His views appear to be based, at least in part, on his reluctance to accept Mr Drousiotis as a truthful historian concerning the level of his symptoms of pain. As previously stated, I have found Mr Drousiotis to be an honest and straightforward witness. I have accepted his account of the pain from which he suffers and the consequences of it. Much of Associate Professor Brazenor’s opinion is therefore based on assumptions which do not accord with my findings of fact. I am not assisted by his opinions.
84 Further, I have noted his comments in relation to a report of an MRI scan of the lumbar spine performed on 30 December 2009. This report was prepared by a radiologist, Dr John Pike. Dr Pike reported that there was “desiccation and narrowing of the L5-S1 disc with fatty endplate changes and a mild disc bulge with a moderate-sized central to left-sided prolapse containing a radial fissure and abutting and deforming the left L5 nerve root”.[28]
[28]PCB 69
85 Associate Professor Brazenor stated that he had examined that scan and that whilst it showed a moderately chronically deflated L5-S1 disc with mild bilateral foraminal stenoses, there was no disc protrusion as such. There is no suggestion in the material tendered that Associate Professor Brazenor has any particular radiology qualifications or expertise in reading such scans and I would prefer the evidence of a radiologist where there was a difference. One would have expected Associate Professor Brazenor to have at least discussed his reasons for disagreeing with the radiologist in question rather than simply omitting reference to the prolapse and deformed nerve root referred to in the radiologist’s report.
86 For the reasons set out above, I am satisfied that the pain and suffering consequences of the injury to Mr Drousiotis’ spine are, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being “more than significant or marked, and as being at least very considerable”.
Loss of earning capacity consequences
87 Counsel for Mr Drousiotis submitted that there was a large body of medical evidence supporting the proposition that the plaintiff had no work capacity and hence he comfortably satisfied the required loss of earning capacity of 40 per cent or more, measured in accordance with s134AB(38)(e), (f) and (g).
88 Counsel for the defendants submitted to the contrary on two quite separate bases.
89 Firstly, it was submitted that Mr Drousiotis was capable of working in a light occupation. He relied upon the opinions of Dr Yong, Associate Professor Brazenor, Mr Troy and Dr Brown.
90 In November 2013, Dr Yong opined that Mr Drousiotis had a capacity for work, with a number of restrictions:
· Avoid repetitive neck movements
· Avoid repetitively bending and twisting the back
· Avoid firm pushing or pulling repeatedly
· Avoid above shoulder height tasks or reaching duties on a repeated basis
· Avoid firm gripping on a repeated basis with the right arm
· Avoid lifting more than 5 kilograms on a repeated basis.
91 A number of different employment options were suggested to Dr Yong. Of those, he considered that the position of a smart meter installer would comply with those restrictions, as would the position of meter reader. Dr Yong had been provided with an NES Vocational Assessment Report dated 13 June 2013 which apparently outlined those employment options.[29] It is unclear from Dr Yong’s report what duties were involved in such jobs and what prerequisites in terms of education or physical capacity were involved. Notwithstanding, the Vocational Assessment Report was not tendered in evidence. Mr Drousiotis gave evidence that he knew what installation of a smart meter involved. That is, it often involved getting into difficult places; the work would involve carrying a ladder and involved having to work above shoulder level regularly. Such a job would not appear to be suitable.
[29]See DCB 1-2
92 Associate Professor Brazenor considered Mr Drousiotis was physically capable of working full time until normal retiring age of sixty-five years, assuming that he was not suffering from a progressively worsening psychological illness. That view is unsurprising given his findings that there was no physical basis whatsoever for Mr Drousiotis’ symptoms. For the reasons set out above, I do not accept his views concerning the absence of physical injury. Accordingly, his views concerning work capacity are of little assistance to me.
93 Mr Troy considered that Mr Drousiotis did have a current work capacity when he saw him in April 2013. He was of the view that he lacked motivation to do anything. Notwithstanding, he did not consider that Mr Drousiotis was fit to return to his pre-accident duties but thought he was capable of performing administrative or alternative duties such as a security guard, a messenger, cleaning work (such as factory floors and benches) or a car park attendant. He thought he could also work in a warehouse, distributing small parts.
94 In May 2008, Dr Brown considered that Mr Drousiotis was fit to continue working as he was at that time. This opinion was based on his understanding that, at that time, Mr Drousiotis was working full-time, normal duties as an electrician. This is contrary to the evidence of Mr Drousiotis that he had worked restricted duties during 2008 until close to the end of the year when it became apparent that the factory was closing. His evidence was, in the light of that information, that he was determined to finish up working full duties in the hope that doing so would help him in getting work without the need to disclose that he had finished with the defendants on restricted duties. In any event, Dr Brown’s report is nearly six years old and I consider that it is of little assistance in assessing Mr Drousiotis’ current earning capacity.
95 Counsel for Mr Drousiotis submitted that there was a large body of medical evidence supporting the proposition that he had no current work capacity and that that state was unlikely to change in the foreseeable future.
96 In February 2011, Dr Kenny, Mr Drousiotis’ general practitioner for a considerable period, considered that he would only be capable of work which did not involve the use of his right arm.[30] For a man with the limited education and work experience of Mr Drousiotis, this is an impractical suggestion.
[30]PCB 87
97 In May 2012, Dr Kenny opined that Mr Drousiotis continued to be unable to work at all and that he had no hope of returning to work in the future.[31] He expressed the same view in November 2013.[32]
[31]PCB 90
[32]PCB 93
98 In January 2011, Associate Professor Bittar considered that Mr Drousiotis’ work capacity had been dramatically affected. He thought he was totally incapacitated for his pre-injury duties and had a negligible capacity for alternate duties. He thought he was precluded from engagement in gainful employment.[33] He expressed the same view in October 2013, stating that the incapacity was permanent.[34]
[33]PCB 127-128
[34]PCB 132
99 Associate Professor Myers expressed the view in November 2013 that Mr Drousiotis would never get back to any form of gainful employment.[35]
[35]PCB 144
100 In May 2011, Mr Brearley opined that Mr Drousiotis was not fit to carry out his pre-injury duties, pointing out that his work as an electrician involved considerable use of his right arm with much repetitive work, heavy gripping, pulling and working above shoulder height. He was of a view that he had no training or aptitude for administrative work and thought that he currently had no work capacity.[36] In November 2013, he expressed a similar view.[37]
[36]PCB 156
[37]PCB 161
101 In June 2011, Dr Blombery was of the opinion that Mr Drousiotis was clearly unable to do his previous job as an electrician and that given his experience and age, it would be very difficult, if not impossible, for him to find a further occupation.[38] In December 2013, he expressed the view that his injuries currently precluded him from being engaged in gainful employment.[39]
[38]PCB 166-167
[39]PCB 171
102 In February 2014, Dr Sutcliffe expressed the view that Mr Drousiotis had no capacity for employment, taking into account the nature of his injuries, his age, education, past work experience and his incapacity.[40]
[40]PCB 287
103 In January 2014, Professor Littlejohn considered that Mr Drousiotis had a Chronic Pain Disorder which interfered with his household, recreational and work activity. He thought that he would have a long-term inability to perform meaningful work activity, based on his training and previous skills.[41]
[41]PCB 299
104 In September 2013, Mr Klug considered that it was possible that Mr Drousiotis could undertake restricted types of employment of a non-physically demanding nature such as working at bench top height with flexibility in the workplace. In view of his age, the long history of his complaints, together with variations in intensity, he thought his chances of being able to resume a consistent type of employment would appear to be somewhat remote.[42]
[42]PCB 185
105 Mr King, in November 2013, considered that the probability was that Mr Drousiotis was permanently unfit to go back to heavy, unrestricted work but that he did have the capacity to manage lighter duties which did not involve lifting and straining with the right upper limb, standing and any sort of strain on his neck.[43]
[43]PCB 199
106 In December 2013, Mr Drousiotis was interviewed by a vocational assessment specialist, Mr Radley. He reached the conclusion that Mr Drousiotis had no current work capacity to return to his pre-injury employment or any type of alternative employment, and no capacity for any relevant occupational retraining.[44] He appears to have based that conclusion largely on the basis of a large number of medical reports provided to him, most of which were tendered in evidence in this case.
[44]PCB 347-348
107 Mr Drousiotis is required to satisfy me as to his loss of earning capacity on the balance of probabilities, not beyond reasonable doubt. I accept that it is possible that he may be able to work in a job involving extremely light duties and one that does not aggravate his neck and upper right limb symptoms. However, on the whole of the evidence before me, I have concluded this is not a probability.
108 Secondly, counsel for the defendants made a quite separate submission that, even if Mr Drousiotis was unable to earn any income in employment, he still could not satisfy the Court that he had suffered a loss of earning capacity of 40 per cent or more when calculated in the manner required by s134AB(38).
109 The submission put forward by the defendants is that Mr Drousiotis’ current earnings from personal exertion should include income earned by way of capital gains resulting from the sale of real estate properties and company shares.
110 The submission requires consideration of the term “income from personal exertion”. By reason of s134AB(38)(a), that term has the same meaning as in s6(2) of the Transport Accident Act 1986. That section provides as follows:
“income from personal exertion in relation to a person means—
(a)the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b)the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c)any amount received as bounty or subsidy in carrying on a business; and
(d)the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e)any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f)interest, unless that person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person's business;
(g)rents or dividends; … .”
111 Counsel for the defendants submitted that the income taxation returns revealed a long period of astute investments by Mr Drousiotis. His taxation returns for each of the financial years ending 30 June from 2006 to 2013 were tendered.
112 In summary these showed:
2005-2006 Income from employment $73,959
Net foreign source income $490,234
Gross capital gains $42,554
Net Capital gains Nil
Rent, Dividends and Interest -
2006-2007 Income from employment $69,722
Gross capital gains $73,067
Net capital Gains Nil
Rent, Dividends and Interest -
2007-2008 Income from employment $59,366
Gross capital gains $95,089
Net capital gains $8,452
Rent, Dividends and Interest -
2008-2009 Income from employment $33,420
Gross capital gains $29,788
Net capital gains Nil
Rent, Dividends and Interest -
2009-2010 Income from employment Nil
Gross capital gains $557,166
Net capital gains $145,091
Rent, Dividends and Interest -
2010-2011 Income from employment Nil
Gross capital gains Nil
Net capital gains Nil
Rent, Dividends and Interest -
2011-2012 Income from employment Nil
(WorkCover only)
Gross capital gains $2,093
Net capital gains nilRent, Dividends and Interest -
2012-2013 Income from employment Nil
(WorkCover only)
Gross capital gains $164,038
Net capital gains $29,347Rent, Dividends and Interest -
113 I have not specified the income from rent, dividends or interest as these are exempted by reason of parts (f) and (g) of the definition of “income from personal exertion”.
114 In order to determine whether or not Mr Drousiotis has a loss of earning capacity of 40 per cent or more, I am required to compare the amounts described respectively in parts (f)(i) and (f)(ii) of ss(38).
115 The figure applicable to part (f)(ii) was agreed upon by the parties at $75,959 per annum (a weekly equivalent of $1,460.75). It follows that in order to have leave to commence a proceeding claiming damages in respect of loss of earning capacity, Mr Drousiotis would have to satisfy me that he is not capable of earning, from personal exertion, $44,375.00 or more per annum (that figure being 60 per cent of $75,959). I must also have regard to his earning capacity after any relevant rehabilitation or retraining and the reasonableness of his attempts to participate in such rehabilitation or retraining.
116 That figure of $75,959 is clearly based on the gross wage earned by Mr Drousiotis in his employment with South Pacific Tyres in the financial year ending June 2006. It is not based upon and does not include any other income assessed in that year. However, in the same year, Mr Drousiotis also declared gross capital gains and foreign income. It is clear that the parties did not include such income for the purposes of part (f)(ii) in assessing his gross income as most fairly reflects his earning capacity had the injury not occurred.
117 Nevertheless, the defendants submit that, for the purposes of part (f)(i), income from capital gains should be included. Indeed, it is submitted that once capital gains income is included in assessment of his current income, no loss of 40 per cent or more is established.
118 The logic of including capital gains income in a calculation in accordance with part (f)(i) but not in part (f)(ii) eludes me.
119 Counsel for the defendants submits that, prior to and since his injuries, Mr Drousiotis has been able to earn income as an investor/trader in real estate and in company shares. He submitted that his taxation returns showed a capacity to earn “income from personal exertion” in such a capacity.
120 Although there was no evidence of any likely capital gains in the current financial year (2013-2014), it was submitted that the historical perspective, as evidenced by his past taxation returns, presents a fairer and more realistic impression of his earning capacity as at the date of the hearing. Further, it was submitted that there was no evidence that he would not be able to engage in activities as an investor/trader as he had done in the past.
121 In relation to Mr Drousiotis’ real estate dealings, the evidence before me was:
(a) He had purchased no property since 1995.
(b) By 1995, he owned four properties –
(i) 1 Vaucluse Street, Brighton, purchased in 1983, and still rented.
(ii) 8/242 Beaconsfield Parade, Middle Park, purchased in 1992, rented and sold in 2009. For a short time he lived there.
(iii) 146 Head Street, Brighton, rented for some years and the premises at which he now lives.
(iv) 9 Best Street, Oakleigh, rented.
(c) When asked about his property investments, he said that his father had always told him to work hard for rainy days like he had done.
(d) He did not keep a close eye on his rental properties.
(e) Between 2005 and 2013, the value of his real estate investments had probably increased. The unit in Middle Park had, over about seventeen years, returned a profit of some $500,000 when sold.
(f) He did not go and look at the prices of properties.
(g) He always had an agent manage the properties. The agent sent him a note each month stating what rent had been received and what commission paid. The agent also sent him an annual statement which was given to the accountant.
(h) He and his three brothers had owned property in Cyprus (he was not asked about the origin of this and as to whether it was inherited or not) which had been sold and was declared as foreign income.
122 I am satisfied that the foreign income declared in 2005-2006 reflects the sale of the property in Cyprus, and was almost certainly a one-off transaction. Further, I am satisfied that the relatively large gross capital gains declared in 2009-2010 reflects the sale of the Middle Park unit, the only real estate property sold by Mr Drousiotis since 1995.
123 The evidence was that since 1995, he had sold one property and purchased none.
124 In relation to Mr Drousiotis’ share holdings, the evidence was:
(a) His share purchases dated back before 1990.
(b) He had received advice from time to time from his accountant, from a stockbroker and also from his niece when she was a commerce student. He always had advice. Currently he gets advice from someone at CommSec and previously had got advice from another broker.
(c) Some of the money used to buy shares was borrowed.
(d) He did not receive research reports from a stockbroker but had talked to a broker on the telephone on a number of occasions.
(e) When he sold his flat, he put all the proceeds into shares rather than pay off the loan.
(f) The current value of his share holding is about $1 million but some of that is borrowed money. There is a debt of about $300,000 and that pre-dates 2005.
(g) In late 2012, he had sold about 230,000 Telstra shares. A CommSec broker had advised him to do so. That person was a qualified adviser so he thought he should listen to his advice. He said he put the proceeds into “preferred shares” which he later agreed might have been “preference shares”.
(h) He said he was not managing his share investment himself and not keeping a close attention to it. The broker gave him advice and the reasons. Generally, he goes along with the advice.
(i) He was able to look at a computer screen and check his CommSec balance from time to time.
(j) He did not know what a prospectus was.
(k) Sometimes he was sent investment brochures.
(l) It was a long time since he had bought or sold a share other than on the advice of a share broker – since his niece was helping him five or six years ago.
125 I am satisfied that the gross capital gain declared in 2012-2013 reflects the sale of his Telstra shares on the advice of his broker.
126 I do not consider that the evidence points to Mr Drousiotis’ capital gains income fitting within any of the categories set out in the definition of “income from personal exertion” in s6(2) of the Transport Accident Act. I do not consider that he was or is carrying on a business of share or property trading alone or with any other person.[45] Likewise, I do not consider that such capital gains were profits arising from the sale of property acquired by him for the purpose of profit-making by sale, or carrying out of any profit-making undertaking or scheme.[46] It was not suggested that parts (a), (c), or (d) of the definition had any application.
[45]Part (b) of the definition
[46]Part (e) of the definition
127 The evidence shows that Mr Drousiotis had commenced purchasing shares and investment properties around the early 1980s, at which time he was working as a full-time electrician. I find that he was a tradesman who worked hard and invested his savings wisely. His style and level of activity could not be categorised as an investment business, or as a profit undertaking or scheme.
128 He purchased income-producing houses and shares. From time to time, acting on advice, he sold some assets. His capital gains were not treated as the income of any business or undertaking – merely as capital gains income.
129 Counsel for the defendants submitted that Mr Drousiotis was earning such capital gains from personal exertion, as that term is defined. I do not agree. The definition of “income from personal exertion” is not an inclusive definition. It sets out the five categories which will constitute such income. I do not consider that, in the circumstances of this case, Mr Drousiotis comes within any of those categories.
130 Even if his past capital gains were properly considered to be income from personal exertion, there is no evidence that Mr Drousiotis is currently earning any capital gains or that he is likely to do so in the current financial year. This application was heard in February 2014. There was no evidence of any property or shares being sold so far in this financial year which might be productive of capital gains. If a particular company share or property was sold, it might or might not give rise to a capital gain. To infer there is likely to be capital gains in the current financial year in the absence of any evidence to that effect would be to speculate.
131 Suppose a badly injured worker sold an asset so as to receive a capital gain in mid 2013. If he sold on 30 June it would presumably be declared in the 2012-2013 year. If sold on 1 July, it would be presumably declared in the 2013-2014 year. I hardly think those are the sort of considerations the legislature had in mind when it required the Court to determine what a worker was earning from personal exertion at the time of the hearing.
132 Further, counsel for the defendants submitted that I should take into account the gross capital gains figures rather than the net figures which reflected capital losses along with gains, including capital losses brought forward from previous years. If I had found that Mr Drousiotis had been engaged in some business, undertaking or scheme that fitted within the definition of “income from personal exertion”, I would have found that it was the net capital gains position that was relevant rather than the gross. Capital gains only eventuate if and when an asset is sold. The amount of the gain will depend on its value as at its date of purchase, and a number of other matters such as its adjusted cost base and CPI figures over the period. I see no reason why the net position would not be the appropriate figure to take into account. Putting aside the absence of evidence of any capital gain in the current year, net capital gains for the past three full financial years average less than $10,000. Even if that figure was applied as income from personal exertion for the purposes of ss(38)(f)(i), I find that Mr Drousiotis would comfortably establish a 40 per cent loss of earning capacity.
Conclusion
133 For the reasons set out above I am satisfied that the pain and suffering and loss of earnings consequences of Mr Drousiotis’ spine injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as being more than significant or marked and as being at least very considerable. I am satisfied that the impairment is permanent in the sense that it is likely to persist for the foreseeable future.
134 Further, I am satisfied that he has suffered a loss of earning capacity of 40 per cent or more when calculated in accordance with s134AB(38) of the Act.
135 There will be leave pursuant to s134AB(16)(b) of the Act for Mr Drousiotis to commence a proceeding to recover pain and suffering damages and loss of earnings damages in respect of injuries suffered by him in the course of his employment with the defendants.
136 I shall hear the parties in respect of costs or other consequential orders.
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