Field v State of Victoria
[2014] VCC 86
•17 February 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04978
| MARK FIELD | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2014 | |
DATE OF JUDGMENT: | 17 February 2014 | |
CASE MAY BE CITED AS: | Field v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 86 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – aggravation of pre-existing degenerative changes to the lower back – whether the pain and suffering consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: The plaintiff is given leave to bring a proceeding at common law
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Worth | Adviceline Injury Lawyers |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HIS HONOUR:
The proceeding
1 The plaintiff commenced a proceeding by Originating Motion filed on 13 November 2012 seeking the Court’s leave, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to commence a proceeding at common law to recover damages for the pain and suffering consequences he has suffered consequent upon suffering injury.
2 Mr G Worth of Counsel appeared for the plaintiff. Mr I Gourlay of Counsel appeared for the defendant.
3 The evidence adduced at the trial was as follows:
· the plaintiff gave evidence and was cross-examined.
· the plaintiff tendered his Court Book (“PCB”) pages 18 – 60, 64 – 65 and 109 – 122.
· the defendant tendered its Court Book (“DCB”) pages 1 – 6.
The Plaintiff's case
4 The plaintiff was born in May 1958. He is now 55 years of age. He was formerly married, but now divorced. He lives alone.
5 Following the completion of his University studies, the plaintiff obtained further qualifications entitling him to enter the teaching profession. Eventually, he found his way to the Manchester Primary School. He taught grade 5 students.
6 On 11 August 2008, the plaintiff parked his car in the school grounds. It was raining. He ran from the car park towards school buildings. He entered onto a pathway. Unbeknown to him, there was an apple on the pathway. He trod on it, with the result that he twisted and jerked his back.
7 The medical evidence in this proceeding was relatively uncontroversial. It is, therefore, unnecessary to refer to it in any particular detail. However, I will set out a very short summary of the salient features of it relied upon by the plaintiff and the defendant.
8 The plaintiff attended Dr Mok, general practitioner, about ten days after the occurrence of the incident on 21 August 2008. The plaintiff told Dr Mok that he had suffered pain in his lower back and pain in both of his legs. Dr Mok recorded that, at the consultation on 21 August 2008, the plaintiff complained of left-sided lower back pain with pain radiating down his left leg. The defendant challenged the extent to which the plaintiff has suffered pain in his legs. I will return to that subject later in these reasons.
9 Initially, Dr Mok prescribed the plaintiff Voltaren for pain relief. He was also referred to have physiotherapy. The plaintiff first had physiotherapy on 27 August 2008, provided by Mr Wicks, physiotherapist. He last had physiotherapy treatment in late January 2008, although he did attend Mr Wicks on 11 February 2010, at which time he discussed the plaintiff's reported significant deterioration in pain and functional capacity.
10 Dr Mok referred the plaintiff to have a CT scan on 28 October 2008. He considered that it demonstrated moderately advanced degenerative disease at L5-S1, with a moderate symmetrical L5-S1 disc protrusion. There was also evidence of small anterior osteophytes which he considered indicated mild multilevel degenerative disease. It would appear that his interpretation the CT scan is consistent with that of the radiologist.
11 The plaintiff continued to complain of lower back pain and leg pain, but mainly pain in the right leg. Dr Mok referred the plaintiff to Mr Boling, neurosurgeon who he saw on 5 March 2010. Mr Boling referred the plaintiff to have an MRI scan which was taken on 11 March 2010. The plaintiff told Mr Boling that he was experiencing severe lower back pain, which Mr Boling considered to be mechanical. Mr Boling’s interpretation of the radiology was that the plaintiff had severe disc degeneration at L5-S1 with disc bulging, but no significant nerve root compression or stenosis.
12 Mr Boling discussed a number of treatment options with the plaintiff. The first was for the plaintiff to have bilateral L5-S1 injections. The second was that, if the plaintiff's pain was severe and debilitating, then the most likely treatment to give him significant lasting benefit would be a spinal fusion at the L5-S1 level.
13 Dr Mok also referred the plaintiff to Mr Rogers, neurosurgeon, who he saw some time in September 2010. Mr Rogers gave a similar opinion to Mr Boling. He gave the plaintiff two options: The first was to live within his limitations. The second was a posterior decompression at L5-S1 with complete discectomy, interbody grafting and internal fixation. Mr Rogers considered that the decision for the plaintiff with respect to treatment would depend upon the impact the symptoms were having on the quality of his life.
14 The plaintiff has not returned to see either Mr Boling or Mr Rogers. He has decided against having any surgical intervention. He has continued to see Dr Mok, but it would appear that he has probably not had any active medical treatment since he saw Mr Rogers.
15 There are two medico-legal opinions which I should refer to. Mr O'Brien, orthopaedic surgeon, examined the plaintiff on 10 September 2013. He was of the opinion that the plaintiff presented with discogenic lower back and leg pain emanating from the L5-S1 disc. He considered that it was highly likely that the plaintiff would continue to experience discogenic lower back and leg pain. He described here is disability as moderate and ongoing.
16 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 13 January 2014. His report is not overly edifying. He noted that the plaintiff has suffered an aggravation of underlying degenerative disc disease, and has ongoing symptoms typical for symptomatic degenerative disc disease. He limited his opinion to saying not much more than that the plaintiff has a physical capacity to carry out light physical work in clerical duties, but would be unable to carry out regular heavy physical work or work that involve a lot of lifting, bending and twisting. In the end, the opinions of Mr O'Brien and Mr Dooley are broadly equivalent in describing the nature and extent of the disablement caused by the plaintiff’s lower back injury.
17 Some of the medical opinions suggested that the plaintiff should undertake an exercise program which is precisely what he has done. He applied to the defendant for payment of a gym membership which it granted. He now attends the gym each day, usually in the morning. The gym sessions are sometimes an hour in length, and sometimes longer. The sessions are supervised by Mr Leith Darken, who is a personal trainer at the Lilydale Squash and Fitness Centre. Mr Darken swore an affidavit on 17 December 2013 setting out the gym sessions the plaintiff has undertaken under his supervision.
18 The plaintiff began working with Mr Darken in mid 2009. He told Mr Darken that he was suffering from chronic lower back pain. Mr Darken has supervised the plaintiff’s exercise program designed to increase and maintain his pelvic mobility; the flexibility in his lower trunk and lower limbs; increase his core and lower back strength, and increase his functional strength.
19 The plaintiff said he has a particular disinterest in taking pharmaceutical medication. It became clear that he has no interest in pursuing a surgical option. It also became clear that if he persists with his exercise program, that he obtains relief from the extent of the pain he can experience, which enables him to function within certain limits which I will describe below. Otherwise, the only reason he sees Dr Mok is to undergo periodic examinations of his lower back. In the past, he obtained medical certificates from Dr Mok which were relevant to restrictions on the work the plaintiff could perform in his role as a teacher. The plaintiff retired from full-time teaching when he reached the age of 55 years in May 2013.
20 The last medical certificate is dated 17 January 2012. It describes the injury as an L5-S1 disc protrusion. What is relevant from the last certificate are the restrictions which Dr Mok considered were reasonable to impose upon the plaintiff. He endorsed on the certificate the following:
“Limited participation in camping program, school sport, interschool sport and training, outdoor education programs, bike education, yard duty, extracurricular activities e.g. concert, fete, disco, twilight sport, lunchtime sport, moving equipment. No running, strenuous activities or heavy lifting. No standing for extended periods for more than 15 minutes without changing posture. No walking for [on] uneven surfaces. No tradesmen/handyman activities.”
The Issues
21 I was informed that the defendant did not contest the plaintiff’s creditworthiness, and a question regarding his reliability was only relevant to the frequency of the pain he experiences, and whether the pain and suffering consequences alleged by the plaintiff meet the statutory test.
Pain and suffering consequences
22 The plaintiff swore two affidavits on 21 May 2012 and 22 January 2014. The affidavits contain the plaintiff’s evidence of the pain and suffering consequences he has suffered since the onset of the injury to his lower back. The plaintiff was cross-examined, and during that cross-examination, and the subsequent re-examination, he expanded upon the losses he has suffered as a consequence of the onset of the injury to his lower back. In summary, the pain and suffering consequences which the plaintiff has suffered, and continues to suffer are as follows:
· constant lower back pain which varies depending upon the activities the plaintiff engages upon;
· onset of right leg and groin pain if he performs heavy, repetitive or strenuous activity;
· interference with his capacity to mow his lawns and undertake domestic activities such as vacuuming, dusting, cleaning the shower, making his bed. He undertakes those activities slowly, with rest breaks, but experiences increased pain when he undertakes them;
· prolonged standing and walking when he goes shopping, together with any levels of lifting and twisting when loading and unloading shopping result in an increase in pain in his lower back, and results in pain in his right leg;
· gardening is restricted and is undertaken slowly and with rest breaks;
· collecting and chopping firewood has ceased. He was given to using firewood to heat his home;
· building such things as a pergola and undertaking landscaping in his garden has ceased;
· self care, such as, putting on pants, shoes and socks are difficult, as is drying himself with a towel after showering and cutting his toenails;
· sneezing and coughing can cause an increase in pain;
· outdoor activities such as running, bike riding, rock fishing, camping, bushwalking and boating have essentially ceased. The bike riding involved extensive rides;
· sleep is interfered with to the extent that he is woken two or three times each night with pain, and then has difficulty returning to sleep. He wakes in the morning with stiffness in his lower back;
· as is evident from the last medical certificate provided by Dr Mok, the plaintiff’s work activities had been restricted. Involvement in sporting pursuits such as cricket; netball games; playing football with students at lunchtime; engaging in games of basketball and cricket with students when on yard duty; the necessity to exercise care in movement on school camps; an inability to demonstrate activities in bike education; an inability to set up what was required for twilight sports programs; an inability to undertake handyman work at the school, for example, climbing a ladder to reach a ball on a roof, and an inability to assist setting up barbecues, tables et cetera for carols nights at the end of term 4 at the school;
· coaching the school football team and umpiring matches ceased;
· the necessity to remain seated in the classroom and have students come to him at his desk rather than going to the students and leaning over their desks when assisting them with their work; and
· his plan to take up landscaping and gardening work in retirement has not eventuated.
23 The first attack made upon the plaintiff's case was essentially that he continued working until he reached 55 years of age which was an optimum time for him to resign from his employment and obtain access to his superannuation. The plaintiff did not suggest that he was unable to work.
24 The next line of attack was that the plaintiff has had no medical treatment for a significant period of time, and is not in receipt of prescriptions for the use of any painkilling medication, and indeed, uses no medication of any kind for pain relief.
25 Lastly, when a measurement is made of what the plaintiff has lost as opposed to what he has retained, he has retained a connection with most of his domestic, social and recreational activities, pointing to the losses he has suffered as being less than what is required to satisfy the statutory test.
26 The only attack made on the plaintiff’s reliability, as opposed to an acceptance that he was a creditworthy witness, was an observation made by Dr Mok in his medical reports that the plaintiff’s pain is intermittent. The plaintiff denied that he told Dr Mok that his pain is intermittent. Otherwise, the plaintiff was cross-examined about the onset of leg pain and whether he has pain in both legs or only one of his legs. The plaintiff said that he has no leg pain, but without his regime of gym work he is a risk of increased pain and the onset of leg pain.
27 The plaintiff struck me as being an entirely forthright and honest witness who gave his evidence in a measured and well-considered manner without any evidence of exaggeration or a tendency to give unnecessary answers to assist his case. I accept that his pain is constant and not intermittent. I accept that he no longer has right leg pain, but if he misses any of his gym sessions, that he can be exposed to more pain and also right leg pain. I also accept that if the plaintiff engages in any arduous activity, that he is at risk of suffering a flare-up of the condition of his lower back and increased pain. I accept his evidence that, on an occasion when he assisted his daughter move furniture, he suffered such a flare-up.
28 Otherwise, I have read the plaintiff’s affidavits carefully. I listened to his evidence-in-chief, cross-examination and re-examination carefully, and I have read the transcript of his evidence. The assessment I make of the plaintiff’s evidence is that he is an entirely creditworthy and reliable witness. I have no hesitation in accepting his evidence of the pain and suffering consequences which he says have resulted from the impairment of the function of his lower back.
29 I will now turn to consider whether those pain and suffering consequences meet the statutory test.
30 The conventional yardstick in determining whether the pain and suffering consequences meet the statutory test is to determine what the plaintiff has lost, and in doing so, one can be informed of what has been lost by what has been retained.
31 I have considered the plaintiff’s evidence both in his affidavits and his oral evidence, the addresses of counsel, and the evidence tendered through the Court Books. On the basis of that evidence, I have reached the conclusion that the plaintiff’s pain and suffering consequences meet the statutory test.
32 There is no doubt that the plaintiff suffered an aggravation of significant degenerative changes in his lumbosacral spine. So significant was the aggravation that Mr Boling and Mr Rodgers considered that surgery was an option for the plaintiff to consider, and surgery of the most significant kind involving, among other things, a fusion. It is surgery considered only in the most needy circumstances.
33 The plaintiff’s losses are significant and are across almost every aspect of the plaintiff’s life. Firstly, the plaintiff has constant pain in his lower back. He is able to tolerate it to some extent. It interferes with his sleep. It interferes with his mobility. It interferes with all of the other activities which I propose to refer to in summary below. His ability to tolerate it is based upon his daily gym routine. On occasions when he has not undertaken his daily gym routine he has experienced more pain and disability.
34 Next, it became evident by what he said in his evidence that he had a great interest in teaching and was committed to his students. As a result of the injury, he was unable to meet most of the non schoolroom aspects of his roles as a teacher. It is clear to me that any measure of physical activity in the schoolyard and on the sporting field are no longer open to the plaintiff. That is verifiable by the last medical certificate provided by Dr Mok.
35 Next, he is less able to undertake his domestic routine. Shopping, cleaning his home, attending to his garden and undertaking handyman work were a significant part of his domestic routine. He is far less able to undertake work in his home, to shop and garden. More vigorous gardening and handyman activity are no longer open to him.
36 Next, the plaintiff was a man who enjoyed vigorous physical activity. Bike riding, rock fishing, bushwalking and the other activities which I have summarised above are no longer open to him.
37 It is true that the plaintiff has retained a capacity to teach, to engage in domestic activities and to attend to aspects of daily living, but it seems to me that he is now operating at a fairly low level of physical activity whereas before he was operating at a very high level of physical activity in a wide range of, no doubt, very enjoyable activities.
38 A conventional assessment of serious injury often involves measuring whether the consequences are serious or not by determining whether the plaintiff, among other things, has continued to have a regime of medical treatment. Whilst an assessment through that prism is legitimate and proper, it is not a proscribed method of assessment because the task which I undertake is to consider all of the evidence and to make a value judgement of the pain and suffering consequences as they affect this particular plaintiff, not the hypothetical plaintiff.
39 In making the value judgment that I have, I accept that the plaintiff has made a decision not to pursue a surgical solution, and is disinterested in taking medication where he can avoid it. Rather, he has adopted the approach which he was advised to take by strengthening his body through gym work. It seems to me that the gym work is therapy directed to maintaining the best level of mobility he can achieve. I think it is incorrect, therefore, to say that the plaintiff is not having treatment because I consider that therapy to be part of an advised and accepted treatment regime useful to him and productive of the plaintiff maintaining a level of mobility and capacity to undertake the requirements of daily living.
40 In the end, I am satisfied that what the plaintiff has lost because of the impairment of the function of his lower back meets the statutory test. What he has retained is rather modest when a comparison is made between what he was like before he was injured and what he has been brought to because of the injury.
Orders
41 The order I make is that the plaintiff be given leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985.
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