Eagle v Patrick Port Services Pty Ltd
[2013] VCC 5
•4 February 2013
| 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-12-00598
| MAURICE EAGLE | Plaintiff |
| v | |
| PATRICK PORT SERVICES PTY LTD (ACN 058 614 994) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2013 | |
DATE OF JUDGMENT: | 4 February 2013 | |
CASE MAY BE CITED AS: | Eagle v Patrick Port Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 5 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Pain and suffering – injury to lower spine – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226
Judgment: Leave to the plaintiff to bring proceedings at common law for pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer | Robinson Gill |
| For the Defendants | Mr M Hooper | Herbert Geer |
HIS HONOUR:
Preliminary
1 The plaintiff sustained injury in the course of his work duties for the first defendant on or about 9 September 2005 as a result of a faulty seat in a truck he was driving. He remained working for the first defendant on modified duties until January 2008, when no further duties were available. He has not worked since that time. He alleges he has suffered the loss or restriction in a range of domestic and recreational activities.
2 This is an application to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on or about 9 September 2005. The body function said to be lost or impaired is the lower spine. The application is thus brought under ss(a) of the definition of “serious injury” as contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, various affidavits of the plaintiff and members of his family, medical and radiological reports, and clinical notes were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff was born in May 1946, was fifty-nine at the time of the workplace injury and is now sixty-six years of age. He was educated to Form 4 and undertook employment in a range of areas, including as a cook. In 1987, he commenced truck driving for Mayne Nickless. That company was subsequently taken over by the first defendant, and he continued his employment.
5 Prior to the incident, generally his health was good, although he had occasional back pain, in particular in 2002 and 2005. On neither occasion did he require time off work and received little treatment.
6 The plaintiff was originally married at age twenty-five and had four children, who are now all adults. He married his current wife in approximately 2002. At the time, the plaintiff and his wife were living in St Albans. In 2006, they moved to Benloch, a small town in rural Northern Victoria on a property with a house and several acres of land.
7 Prior to his injury, the plaintiff was an active man in a range of areas. He was an abseiling instructor with the Scout Movement, and took groups rock climbing and abseiling on approximately fifteen to twenty weekends per year.[1] He also enjoyed bushwalking. The abseiling activity required him to carry packs of equipment.
[1]Plaintiff’s Court Book (“PCB”) 22
8 The plaintiff also enjoyed lead lighting with his wife. He was a capable handyman, and undertook various renovation and maintenance work at the houses at which he lived.
9 According to his affidavit, the plaintiff said he and his wife intended to travel around Australia.[2] In evidence, he said that had he not been injured he would have done a range of work to his property, including the construction of chook pens, decking around the house, the construction of a carport, and establishment of a vegetable garden.
[2]PCB 10
10 Of recent times, his wife has been unwell, and has suffered a number of strokes. He has become her Carer, and is paid a Carer’s Pension by the Department of Social Security.
The injury and its consequences
11 Up until September 2005, the plaintiff had been driving a particular truck for the first defendant. On or about 9 September 2005, he was given an older truck to drive, the seat of which he alleges had basically collapsed. After driving that truck around for the day, he alleges he suffered severe back pain by reason of the poor suspension.
12 On 12 September 2005, the plaintiff saw his local general practitioner, Dr Fowler, of the Niddrie Clinic, complaining of severe mid-back pain as a result of the truck seat suspension.[3] He gave a further history of “previous intermittent back pains of less severity over an indefinite period, but seemed to regard these as just part of his job”.[4] He described the pain in his back since the injury as constant and more severe. According to his Claim Form,[5] at that time he was working between 11 and 47 hours of overtime per week.
[3]PCB 29
[4]PCB 29
[5]PCB 93
13 Dr Fowler prescribed Paracetamol and Mobic. An x-ray was ordered, and according the report to Dr Fowler, showed a compression fracture at the 7th thoracic vertebra. However, I accept the opinion of Mr Simm[6] and Dr Kam[7] that in fact the x-ray was incorrectly reported, and there was no T7 compression fracture. Ms Spencer, for the plaintiff, did not press that fracture, nor any mid-thoracic injury constituted a “serious injury” in her submissions.
[6]Defendants’ Court Book (“DCB”) 28
[7]DCB 32
14 The plaintiff was certified as unfit for work for about a month, and then returned to work, again truck driving, and eventually returned to working 8 hours per day, five days per week. In evidence, he said that although there was overtime available, he was unable to undertake it because of his back pain. In addition, Dr Fowler certified that the plaintiff only undertake restricted duties, and although he drove the truck without apparent difficulty, did not undertake any loading or unloading of the vehicle, and this was done by forklift.
15 The plaintiff received physiotherapy treatment for a period, although this did not help. In December 2005, he was treated by Dr Wilms, osteopath, for a period of about six months.
16 The plaintiff kept working driving trucks until October 2007, when he was instructed to work in a yard. He did various minor jobs and was told in January 2008 there was no further suitable work available for him. He has not worked from that time to the present.
17 From 2005 to 2008, the plaintiff continued to see doctors at the Niddrie Clinic on approximately a monthly basis. He was prescribed occasional medication and complained of constant lumbar pain. According to a report from Dr Michael Bloom, occupational physician, who examined the plaintiff for the WorkCover insurer in January 2006, his mid-back (as opposed to his lumbar) pain had fully resolved by that time.
18 The plaintiff undertook a Pilates exercise program. He took little in the way of prescription medication. He was described by Dr Hocking, his then treating general practitioner at the Niddrie Clinic, as a “stoical person who puts up with pain”.[8] In November 2008, he described to Dr Hocking that his pain level was 5 to 6 on a scale of 1 to 10. Dr Hocking said the plaintiff was suffering degenerative spondylitis which had been aggravated by the workplace injury.
[8]PCB 36
19 In 2009, the plaintiff commenced treatment with the Lancefield Country Practice and has been treated by Dr Marina Kefford of that clinic through to the present time. He still sees Dr Kefford each month for the prescription of medication. Norspan patches were prescribed for lower back pain relief. In December 2010, a CT scan of the plaintiff’s thoracic and lumbar spines was obtained. This showed a shallow disc bulge at L3-4, a broad-based disc bulge at L4-5 and a severely narrowed L5-S1 disc with endplate sclerosis. According to the radiological report,[9] the L5-S1 disc was said to be “severely degenerative”.
[9]PCB 49-50
20 In January 2011, the plaintiff attended The Royal Melbourne Hospital at the referral of his general practitioner as a result of his chronic lower back pain. Examination at the Neurosurgical Clinic suggested that he was not a candidate for surgery. It was recommended that he exercise, use heat and a lumbar support brace when doing avoid heavy work.[10]
[10]PCB 46
21 In 2011, the plaintiff attended a Chinese medical practitioner for massage. In March 2012, he was referred to a rehabilitation centre in Bendigo and had physiotherapy and sessions with a social worker and occupational therapist. In April 2012, Jurnista (an opioid pain medication) was prescribed as a substitute for the Norspan patches, which had given him a rash. At the present time, the plaintiff says that he takes 32 milligrams of Jurnista per day, six to eight Endone tablets per week, and six to eight pharmacy purchased pain-relieving tablets per day.
22 In 2011, the plaintiff was diagnosed as suffering a significant injury to his right shoulder involving a tear to the supraspinatus tendon. He is right hand dominant. This has required the prescription of medication, including Mobic, an anti-inflammatory, and a recent cortisone injection. He was referred to a clinic at the Northern Hospital and there is the possibility of surgery to the right shoulder. At the present time, there is no pain in the right shoulder as a result of the recent steroid injection. He said that the shoulder injury did not significantly restrict him, although acknowledged that in manual activities using his right arm, he suffered pain and some restriction.
23 The plaintiff says the workplace injury has caused the following consequences:
· He is restricted in sitting, standing, bending and walking for lengthy periods of time.
· He suffers chronic pain in the lower spine, exacerbated by heavier physical activities. The pain is unremitting and is only moderately controlled by medication.
· His sleep is affected and he often wakes up with pain in his spine.
· He is required to take a range of significant pain-relieving medication.
· His social life is affected and he and his wife are unable to socialise as much as they previously had done.
· He has been restricted in his abseiling activities, which was a particular passion. He continued as a “supervisor” in abseiling after the injury, but when the group with which he worked disbanded some years ago, he was not able to take up with another group. In particular he has not abseiled, and is unable to carry the heavier equipment.
· He misses his employment, which he says he enjoyed.
· He has been unable to do the home renovation and maintenance in the same manner as before.
· He and his wife have home help and Meals on Wheels provided several times per week.
· He is unable to do lead lighting, which he enjoyed previously.
· He and his wife had hopes of being able to travel around Australia, but he is unable to do so because of the driving restriction with his injury.
· He receives ongoing treatment from his general practitioner, on a monthly basis, although mainly for the prescription of medication.
Medical opinions
24 The plaintiff’s principal treating general practitioner at the Niddrie Clinic, Dr Hocking, relevantly said the plaintiff had aggravated degenerative spondylitis in the workplace incident.[11] According to a Certificate of the Medical Panel dated 17 August 2009, the plaintiff was suffering from an aggravation of pre-existing lumbar spondylosis to which his employment was a contributing factor. The Panel was of the view that the plaintiff was incapacitated for his work as a truck driver.
[11]PCB 39
25 Mr Anthony Buzzard, general surgeon, in a report of January 2009, said the plaintiff had pre-existing pathology in his lumbar spine which was probably aggravated by driving the truck in September 2005.[12]
[12]PCB 56
26 Mr Thomas Kossmann, orthopaedic surgeon, provided an opinion in September 2012. He said the plaintiff suffered discogenic and mechanical back pain on the basis of “severely degenerative L5-S1 disc disease, shallow disc bulges at the L4-5 and L5-S1 levels, mild to moderate lower lumbar facet joint arthropathy at these levels”.[13] He considered the plaintiff’s lumbar spine condition would deteriorate in the years to come, although noted he was not a candidate for surgical intervention. He said the condition would impact upon his domestic, social and recreational activities. He was of the view the pain was related to the workplace injury.
[13]PCB 65
27 Dr Clayton Thomas, rehabilitation specialist, in a report of November 2012, accepted that the poor suspension in the truck led to an aggravation of the plaintiff’s degenerative changes in the lower lumbar spine and had therefore led to the development of symptomatic spondylosis in that area. He said the plaintiff had no realistic capacity for employment and that the condition compromised his ability to function personally, recreationally and socially. He expressed some concern at the high levels of opioid medication the plaintiff was consuming. He suggested the plaintiff attend a pain management unit.
28 On behalf of the defendants, the plaintiff was examined on a number of occasions from 2006 until 2009 by Dr Michael Bloom, occupational physician. In his first report of 2006, he noted that the plaintiff’s mid-back condition had fully resolved.[14] He described the plaintiff as highly motivated and keen to maintain his work. At the outset, he accepted the plaintiff had suffered an aggravation of pre-existing degenerative changes in his lower thoracic and lumbar spine area caused by the poor seating. He received a history that the plaintiff had suffered for years with chronic intermittent low-back pain which increased on 9 September 2005. He said the pain was of gradual onset. However, in subsequent reviews, he said that the temporary aggravation caused by the workplace injury had resolved, and the ongoing pain was related to the pre-existing degenerative condition of his back.[15] He concluded that the work component had, by 2008, resolved. He said there was no doubt that the plaintiff’s chronic low-back pain would gradually deteriorate into the future. In 2009, he noted that the plaintiff was independent of his personal care, did gardening, including mowing, weeding and planting, and had built a fence and dug postholes. He again concluded that the workplace injury was no longer relevant to the plaintiff’s presentation.[16] He said the plaintiff was capable of work in a range of areas.[17]
[14]DCB 3
[15]DCB 15
[16]DCB 21
[17]DCB 24
29 In July 2012, the plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon. He obtained a history that the plaintiff’s lower back had never been pain free since he had left work. There was no radiation into the buttocks or legs. He noted the plaintiff was capable of driving 50 kilometres to Sunbury to do shopping and was reasonably comfortable in walking for up to 30 minutes. The plaintiff reported he was independent of activities of daily living and that the plaintiff and his wife received home help and Meals on Wheels. He concluded the plaintiff had symptomatic L5-S1 lumbar disc degeneration. He said the pathology was longstanding and advanced. He said the plaintiff suffered chronic fluctuating lumbar back pain related to that degeneration. Mr Simm said:
“… I consider that whilst he was employed as a truck driver and undertaking the physical demands of his work, there was some ongoing symptomatic exacerbation of the L5-S1 lumbar disc degeneration and a temporary exacerbation in 2005 of mild multilevel degenerative thoracic spondylosis. Employment was a significant contributing factor whilst he worked. On cessation of employment I believe his subsequent clinical course has been a reflection of the constitutional advanced L5‑S1 disc degeneration. If he is able to prove a history of persistent lumbar symptoms with no sustained recovery since leaving work, it may be accepted that the work-related exacerbation has not resolved.”[18]
[18]DCB 29
30 He accepted that the plaintiff’s pain interfered with his ability to undertake physically demanding activities which caused flare ups of his pain.
31 In considering the various medical opinions, I prefer the opinions in particular of Mr Kossmann and Dr Thomas, who conclude that the plaintiff suffered an exacerbation of the underlying degenerative disease in his lower lumbar spine in the workplace incident in September 2005, and that that aggravation has persisted through to the present. There was some history to both the general practitioner and Dr Bloom that the plaintiff had pre-existing longstanding pain in the lumbar spine prior to September 2005, although he denied this in evidence. Even if that were the case, up until September 2005, the plaintiff was able to maintain full-time unrestricted employment, working extensive overtime in a reasonably arduous job. After September 2005, while he maintained employment over a number of years, he was restricted in the heavier aspects of that employment, and no longer able to undertake overtime. Further, I accept his evidence that he was unable to participate in his abseiling activities to the same level after the incident.
Conclusions
32 I had the opportunity to observe the plaintiff in the course of his evidence and cross-examination. In my view, he presented as an honest and credible witness. He had some difficulty with memory but generally he answered questions in a manner I would expect of an honest witness, and made appropriate concessions. I accept his evidence that the truck driving in September 2005 led to the onset of significant pain in both his lumbar and thoracic spines, although the thoracic pain eased within a relatively short period. I accept his evidence that the pain has persisted from that time through to the present.
33 In cross-examination, the plaintiff accepted he was able to undertake a range of activities, particularly around his property. These included:
· The construction of a fence which involved digging some postholes, although he was assisted by his son-in-law and worked at a slower pace than he would otherwise do.
· He renovated a number of rooms in his house which involved the removal of plaster, and the replacement with timber. Again, he had assistance and had to break from the work on a regular basis.
· He is paid as a Carer for his wife, and undertakes most of the domestic duties at home, although has assistance from Meals on Wheels and home care.
· He is able to drive some distance, including to Sunbury to do the shopping, which is a round trip of approximately 50 kilometres. For a period, he also travelled from his property near Lancefield to Niddrie to see his general practitioner.
· For a number of years after the workplace incident, he continued his truck driving, although was not involved in the heavier lifting duties.
· For a number of years after the incident, he did not seek very much in the way of treatment, in particular prescription medication for his lower back pain. However, I accept that he is a stoic person, as was noted by his general practitioner.
34 In submissions, Mr Hooper advanced two principal arguments: firstly, he said that when a fair assessment was made of the range of activities that the plaintiff is currently able to undertake, as set out above, the consequences to the plaintiff did not meet the “very considerable” test; secondly, by reason of the plaintiff’s recent serious right shoulder injury, the plaintiff was restricted in a range of domestic, recreational and personal activities. In other words, the plaintiff would have suffered the same consequences absent the lower back injury.
35 Dealing firstly with the plaintiff’s right shoulder, the correct approach, in my view, is to identify the subject injury; that is, the aggravation of the degenerative disease in the lower spine, and identify the consequences which flow as a result. If those consequences achieve the “very considerable” level as the legislation prescribes, then the plaintiff’s application succeeds. The plaintiff’s right shoulder condition did not become significant until 2011. By that time, the plaintiff was suffering the various consequences to which I have earlier referred. Even accepting the plaintiff has a significant right shoulder condition which restricts him in a range of areas, that does not alter the fact that those consequences would have continued absent the right shoulder injury. In my view, once the consequences are found to achieve the “very considerable” level, the imposition of a subsequent unrelated injury which causes the same or similar consequences, is of little relevance.[19]
[19] Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226 at paragraph 40
36 There is force in Mr Hooper’s submission that the plaintiff is able to undertake a wide range of activity, in particular around his property. It is necessary to determine not only what activities have been restricted or removed, but those which the plaintiff is still able to do. As was submitted by Ms Spencer, the plaintiff was a fit and active man, working long hours in arduous employment before the injury. I accept that he has suffered ongoing constant pain in his lower spine since the incident which in particular has required the more recent prescription of strong pain-relieving medication. His enjoyment of abseiling, a particular passion, has been significantly restricted over the years, and is now lost. Although he was not forced from employment by reason of his lower back pain, rather his employer did not have available duties, nonetheless, the loss of his employment is related to his injury. I accept that that is a particular consequence to him.
37 While the plaintiff has remained relatively active undertaking work around his property, I accept his evidence that he is restricted in what he can do, and what he has achieved has been done over a longer period of time. I accept that the more strenuous work leads to an aggravation of his pain. While he does perform almost all of the domestic duties for himself and his wife, he does receive assistance.
38 In all these circumstances, I am satisfied that the consequences to the plaintiff of his lower back work-related injury do achieve the “very considerable” level. The plaintiff’s application succeeds. I shall make appropriate orders.
0
1
0