Dunn v Wharington International Pty Ltd and VWA
[2011] VCC 286
•4 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02924
| STEVEN DUNN | Plaintiff |
| v | |
| WHARINGTON INTERNATIONAL 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: | 25 February 2011 |
| DATE OF JUDGMENT: | 4 March 2011 |
| CASE MAY BE CITED AS: | Dunn v Wharington International Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 286 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – application for leave for pain and suffering consequences conceded – whether the loss of earning capacity consequences were serious – intervening psychiatric injury resulting in loss of alternative employment – whether the initial injury inevitably would have resulted in loss of the alternative employment: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC with | Arnold Thomas & Becker |
| Mr J Brett | ||
| For the Defendants | Mr B McKenzie | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 29 June 2009 by which the plaintiff applies for leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The defendants conceded that the plaintiff’s pain and suffering consequences meet the statutory test, but not the plaintiff’s loss of earning capacity consequences. Therefore, the plaintiff seeks leave to bring such proceedings for loss of earning capacity.
3 Mr A Adams QC appeared with Mr J Brett of Counsel for the plaintiff and Ms B McKenzie of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the cervical spine.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • Extract of the clinical records of Dr Kunz, general practitioner: Exhibit A; • The plaintiff tendered his Court Book (“PCB”), pages 14-129: Exhibit B; •
The defendants tendered their Court Book (“DCB”), pages 3-106 and 134- 150: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[1]
(b)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by sub-s.(19)(a), sub-s.(19)(b) and sub-s.(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(c)
Sub-section (38)(c) provides that the impairment must have consequences in relation to loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(f)
Sub-section (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(g)
Sub-section (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(h)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] Barwon Spinners, at paragraph 33
8 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 30 April 1968. He is now forty-two years of age. He is a single man. He obtained modest education to Year 8, after which he entered the workforce.
10 The plaintiff registered with MAD Recruitment, which assisted him in obtaining a job as a truck driver for a company known as Cleanaway. He registered with another recruitment agency known as Galaxy Personnel Pty Ltd, which assisted him in obtaining a job as a spray painter with the first defendant.
11 After about fifteen months, the first defendant offered the plaintiff a permanent position as a spray painter.
12 In his first affidavit sworn 11 February 2009, the plaintiff described the manual handling which was required in order to undertake his work as a spray painter. One of the tasks involved pulling on a rope with his left hand which was fed through a pulley. The rope lifted a lid on a rinsing tab. The lid of the rinsing tab weighed between 100 and 120 kilograms. As the rope did its job the plaintiff pushed the lid up with his right hand. At a particular point he took his right hand off the lid and quickly placed it on the rope so that he could use both hands to pull the lid the rest of the way up.
13 On 26 March 2007, the plaintiff was performing the lift. As he completed this task he was met with a loss of sensation in the whole of his right arm. Later medical examinations disclosed that he had suffered a major injury at the C6- 7 level of his cervical spine.
The Injury
14 Unlike the vast majority of applications of this kind, the concession made by the defendants that the plaintiff’s pain and suffering consequences are serious makes it unnecessary to review the medical evidence in any particular detail.
15 For that reason it is only necessary to review some of the medical material. The starting point is Mr Bittar, neurosurgeon, who performed surgery on the plaintiff’s cervical spine on 23 October 2007.
16 The plaintiff told Mr Bittar that he experienced a sudden onset of numbness in his right arm, and on the following day developed pins and needles in his right index and middle fingers. He also described progressively worsening symptoms which Mr Bittar described as right brachialgia.
17 An MRI scan was taken which demonstrated severe C6-7 foraminal stenosis which was worse on the right side. He diagnosed C7 radiculopathy secondary to the C6-7 foraminal stenosis.
18 Mr Bittar firstly recommended conservative treatment. It did not yield any effort to the plaintiff. He then recommended surgery, which he performed, undertaking a C6-7 anterior cervical decompression and fusion.[2]
[2] PCB 38-39 and the operation note at PCB 36
19 Mr Bittar then expressed the following relevant opinion:
“At the time of his last review, I recommended that he avoid lifting objects weighing more than 3 or 4 kgs. I recommended that a return to work on modified duties if these were available. He should have some gentle physiotherapy to his neck in order to improve his neck stiffness.
His prognosis is reasonably good. He is likely to obtain a sustained benefit from surgery and his condition should stabilise approximately 12 month[s] following surgery. There is a small but significant chance of further deterioration requiring surgery. His prognosis over the next 12 months will determine whether or not he is able to return to his pre-injury employment. At present, and his capacity for employment is limited.”[3]
[3] PCB 39
20 The plaintiff returned to work with the first defendant after about seven months. He left after about three or four weeks because he was unable to cope with the work he was given.
21 The plaintiff returned to MAD Recruitment. It found him a job with City Wide Garbage Collection driving a garbage truck. The plaintiff said that the garbage truck he drove was fully automated. Apart from the expected operational controls to move the truck, all of the other functions of the truck were fully automated.[4] However, the plaintiff was required to keep his eye on the bins as they were lifted mechanically. In addition, he had to turn his head to the left and the right to look in the mirrors as an aid no doubt in not only driving the truck, but also lining up the track to mechanically lift bins.[5]
[4] Transcript 23-24
[5] Transcript 27
22 In his first affidavit, the plaintiff described the surgery being successful in resolving the burning pain in his arm. However, he was left with significant symptoms in his neck and loss of sensation and altered sensation in his right index finger and middle finger.[6]
[6] PCB 17
The Assault
23 The plaintiff was savagely assaulted on 6 August 2008. He suffered a significant injury to his right hand and developed a severe psychiatric disorder. The development of the disorder played a significant role in the plaintiff being unable to maintain his job. He stopped working altogether by October/November 2008.
24 The plaintiff’s assailant brought the plaintiff’s face to the ground. He knelt on his right hand, resulting in a crush injury. He was struck in the chest, resulting in fractured ribs, and suffered an injury to his right knee as well.[7]
[7] Transcript 18. The description given by the plaintiff was taken from a medical certificate at DCB 65. Many of the medical practitioners who examined the plaintiff following the occurrence of the assault recorded a history of how it occurred. It is unnecessary to say that any more detail because it was not a matter of controversy.
25 There is very little medical material in either Court Book explaining what medical treatment the plaintiff obtained as a result of the injuries he suffered when he was assaulted. However, it would appear that he had surgery to his right hand which involved having pins inserted.[8]
[8] The most graphic description is contained in the medical report of Dr Alexander who described the plaintiff as having suffered multiple fractures to his right thumb and ring finger; four fractured ribs on the right side; a soft tissue injury to his right knee and a Post-Traumatic Stress Disorder with Depression at PCB 95.
26 The plaintiff was able to return to work, however, he was transferred from the Brunswick depot where the assault occurred to the Templestowe depot. By the time this occurred, the plaintiff was in something of a downward spiral. He was coping less well psychiatrically.
27 Two episodes occurred while he was working from the Templestowe depot which tipped him over the edge. In the course of collecting bins on a garbage round, he ran over a bin. He was confronted by the owner of the bin. He described the incident as being scary.[9] Subsequently, a female complained that the plaintiff had spilt some rubbish. The plaintiff said it was only grass.[10]
[9] Transcript 33
[10] Transcript 33-34
28 Whatever actually happened, the plaintiff was confronted by his boss. He was sacked from his job.
29 Dr Weissman, psychiatrist, examined the plaintiff on a medico-legal basis on 23 September 2010. Dr Weissman was made aware of the injury the plaintiff suffered to his neck and also the assault. Dr Weissman provided two reports dated 23 September 2010 and 4 February 2011 in which he brought together materials which he had been provided for the purpose of determining the nature and extent of the psychiatric disorder which the plaintiff acquired.
30 What is clear from Dr Weissman's assessment of that medical material is that the plaintiff was diagnosed as suffering schizophrenia by Bendigo Health following an involuntary admission on 10 October 2010. He did not agree with the diagnosis; however, he accepted that the plaintiff might go on to warrant a diagnosis of that kind.[11]
[11] Dr Weissman's first report is at PCB 97-113 and his second report is at PCB 114-123. His opinion regarding a diagnosis of the plaintiff’s psychiatric disorder causally connected to the incident, and then to the assault are at PCB 121.
31 The plaintiff gave some fairly graphic evidence of his difficulty in fraternising in public and with members of the public.[12] It would appear that it was a major reason why the plaintiff moved from Melbourne to Kerang. He said that he knows one or two people in Kerang, but his main reason for moving there is that he feels safer in a small town where “everybody knows everybody”.[13]
[12] Transcript 21 and 25-26
[13] Transcript 32
32 The foregoing demonstrates that the assault and the subsequent confrontations with a member of the public regarding a damaged bin, and then with his boss, have either caused or contributed to the development of a major psychiatric disorder, and the plaintiff's inability to tolerate the environment in which he once lived and worked in Melbourne. Furthermore, that major psychiatric disorder of itself has disabled the plaintiff from being able to work in suitable employment.
Loss of Earning Capacity
33 Mr McKenzie submitted that had it not been for the assault and the events which followed it, that the plaintiff would still be working driving a garbage truck.
34 Mr Adams submitted that the plaintiff was rendered vulnerable not only by the initial injury to his cervical spine, but by the surgery, and that is borne out by the opinion of Mr Bittar who did not discount the likelihood of the plaintiff’s cervical spine deteriorating.
35 Furthermore, Mr Adams submitted that the plaintiff was not only having pain and restriction of movement in his cervical spine, but was also experiencing disabling cervicogenic headaches. The plaintiff said he experienced these while driving the garbage truck. He said he experienced headaches as a result of turning his head while driving the truck,[14] and that he also experienced headaches doing simple and routine domestic tasks, such as vacuuming and leaning over the sink to do dishes.[15]
[14] Transcript 12 and 26-27
[15] Transcript 43
36 Mr Bittar reviewed the plaintiff on 31 May 2010. On that occasion the plaintiff told him that he was suffering left-sided occipitocervical headaches which were sharp, occurred on a daily basis and were more often severe. Further, that he experienced constant neck pain and intermittent right arm pain with constant numbness in his right index finger and, to a lesser degree, in his right middle finger.
37 Mr Bittar examined the plaintiff, finding moderate restriction of cervical motion in all planes and diminished sensation to light touch in the plaintiff's right index finger and over the radial aspect of his right middle finger. At that stage, his diagnosis was persistent neck pain and cervical radiculopathy, secondary to a C6-7 disc prolapse and foraminal stenosis, and cervicogenic headaches.
38 Mr Bittar recommended that the plaintiff be referred to a multidisciplinary pain clinic for treatment, and that he might be a candidate for a trial of an occipital nerve stimulator to reduce his headaches.[16]
[16] PCB 42-43
39 Mr Adams tendered a page from the clinical notes of Dr Kunz, general practitioner, who treated the plaintiff before he moved to Kerang. Mr Adams submitted that while the plaintiff was working driving the garbage truck he was experiencing significant difficulties with his neck, borne out by the occasions on which he sought treatment from Dr Kunz in May, June and July 2008.
40 My examination of the clinical notes reveals that on 7 May 2008, the plaintiff was complaining of left-sided headaches; on 16 May 2008, of pain in his cervical spine and shoulder; on 27 May 2008, reference was made to the plaintiff needing a home program to strengthen his cervical spine; on 25 June 2008, he complained of an increase in cervical symptoms, and a similar complaint on 1 July 2008, which the plaintiff related to his work.[17]
[17] Exhibit A
41 The aggregate effect of the opinion of Mr Bittar, the clinical notes of Dr Kunz and the plaintiff's evidence of the difficulties he encountered with persistent neck pain and headaches is consistent with a level of interference with the plaintiff’s capacity to undertake work driving a garbage truck.
42 The question which needs to be resolved is whether I accept the plaintiff's evidence given at the trial of this proceeding, that putting to one side his psychiatric disorder, that he would not be able to drive a garbage truck now. The plaintiff described his difficulty doing that work in the following way:
"Q: When you were doing the garbage truck driving, say at the end of
the time when you were working at Doncaster, Templestowe?---A: Yes.
Q: In terms of your neck, what sort of difficulties were you having?---
A: It was just pain - like the sorer it got the stiffer it got, the less you could move it, because the muscles will just get bigger and bigger. It's all – If you move too much it would push your spine to the point where it's click out.(sic) I mean it really swells, all day while you're working. I put up with it because I had to. If I stopped working, I can't live on unemployment. I can't do that, I never have been able to. Even though I'm in that (… indistinct), I could - I could have a broken leg or a broken arm, I'd still work because I have to. I've got to eat, I've got to pay the rent, I've got to pay the electricity. It doesn't matter how bad you are, if you have to work, you have to work. This is what I thought. I thought I had to work. I didn't know I could stop and claim the injury again. It was really hacking on me and it was. I didn't even tell my boss that it was giving me pain because I thought he might fire me because of it, so there's something like that where I'd be - where I'd have no income and I was really generally worried about that a lot. I didn't know I could stop. I thought I had to keep working after WorkCover said, ‘Go back to work’. I thought that's it, I've got to work with this whether I like it or not. I didn't know. By rights I should never have gone back to work because I could have done more damage to my neck in that garbage truck, looking left to right all day like that. Maybe that’s why my neck is sorer, I'm not sure.
Q: Did you have any thoughts as you're working towards the end, as to finishing up?---
[18] Transcript 45-46
A: Yeah, way before the assault. I just didn't know how I was going to do it. I mean, if I finish up that job I'm going to have to do another one and I don't know - like when I say the garbage job was easy, that's the easiest job I could think of that I'm capable of doing. There may be an easy job out there, I don't know. But I'm not - I'm not experienced in it. I can only find something I was experienced in that I might have been able to do. (… indistinct) it was a pretty hard too. I can only tell you that, what can I do. At least I tried to work, I didn't go and bludge on WorkCover or – I actually wanted to work. I didn't want to be like this but I've got no choice now, do you understand. I've got no choice. I'd like to work like I said before. It gives me a purpose in life, something to do, a use. I've got mates that I can see at work. It's your whole day, your work. Without your job, you've got nothing. You are nothing. It's the way it is."[18]
43 I accept the plaintiff's evidence that he was having persistent pain in his neck and was suffering from disabling headaches following the surgery performed by Mr Bittar. I also accept that he moved his head and neck frequently in order to observe the bins he was collecting, and to look into the mirrors of the truck. I accept that the movements of his head and neck would have placed stress on his neck and created a setting for an increase in his symptoms relevant to his neck and headaches.
44 The plaintiff struck me as being a very well motivated man. After undergoing very serious episodes of surgery, he obtained alternative employment and was able to maintain employment for some eight months not only with a symptomatic neck, but also with the psychiatric disorder which became prominent after he was assaulted. I accept that he did his best to put up with all the symptoms arising from those injuries until he was sacked.
45 It is the foregoing reasons that I accept the plaintiff's evidence that he was struggling in his work driving the garbage truck, and that there was some inevitability regarding his capacity to retain that employment because of his increasing difficulty in meeting the physical demands of the job.
46 I ultimately accept the plaintiff's evidence that at present he could not work in that job nor in any other suitable employment.
Conclusion
47 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for loss of earning capacity arising out of his employment with the first defendant.
48 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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