Godfrey v Anco Seed and Turf Pty Ltd
[2014] VCC 1803
•10 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04026
| TIMOTHY JOHN GODFREY | Plaintiff |
| v | |
| ANCO SEED & TURF PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2014 | |
DATE OF JUDGMENT: | 10 November 2014 | |
CASE MAY BE CITED AS: | Godfrey v Anco Seed & Turf Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1803 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application on the basis of s134AB(37)(a) – whether injury to the lumbar spine “serious” within the meaning of s134AB(38)(c) – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Judgment: Leave granted pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendants claiming damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell | Ryan Carlisle Thomas |
| For the Defendants | Mr B R McKenzie | IDP Lawyers Pty Ltd |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 20 August 2012.
2 In the Originating Motion the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendants claiming damages.
3 The plaintiff’s case is that he suffered an injury arising out of, or in the course of, or due to the nature of his employment with the first defendant.
4 There is no issue in this proceeding that in the course of his employment with the first defendant on or about 18 January 2010, the plaintiff suffered an injury to his lumbar spine requiring surgery in the form of discectomy and decompression on or about 9 August 2010.[1]
[1]Transcript (“T”) 3
5 Further, there is no issue in this proceeding that the plaintiff continues to suffer pain and suffering consequences as a result of sustaining the injury, or that those pain and suffering consequences are likely to be permanent.[2]
[2]T36
6 The plaintiff claims that the injury he sustained has resulted in permanent serious impairment or loss of a body function to his back and lumbar spine within the meaning of s134AB(37)(a) of the Act.
7 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering only.
8 The issue in dispute in this proceeding is limited to the question of whether or not the pain and suffering consequences of the plaintiff’s injury are “serious” within the meaning of s134AB(38)(c).[3] This issue is to be determined having regard to all of the evidence. The hearing in this application proceeded without either counsel referring in any detail to medical reports. That is because there is no dispute between the parties about the kind of injury suffered by the plaintiff or that it causes on going pain. The dispute in this case is about the consequence that the plaintiff is no longer suitable for heavy manual work involving heavy lifting, twisting and bending and, whether or not having regard to his age, that is a consequence that results in his injury being regarded as a serious injury within the meaning of the Act.
[3]T36 and T42
9 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
10 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and what consequences (if any) were suffered and continue to be suffered by him.
11 The plaintiff filed and served three affidavits in support of his application. Those affidavits were sworn on 25 January 2012, 13 March 2013 and 6 August 2014 respectively.[4]
[4]See Plaintiff’s Court Book (“PCB) pages 19 to 28C inclusive
12 In addition, the plaintiff was called for cross-examination and was extensively cross-examined by the defendants’ counsel.
13 The plaintiff also filed and served an affidavit of his friend, Brett Lindsay Mills, sworn 10 August 2011[5] and an affidavit of his mother, Sharon Margaret Combridge, sworn 10 August 2011[6] and an affidavit of Aiden Andrews, sworn 11 September 2011.[7] Neither Mr Mills nor Ms Combridge or Mr Andrews was called for cross examination. Whilst these affidavits were tendered in evidence, neither counsel relied on the contents of them in support of their respective submissions.
[5]PCB 29
[6]PCB 31
[7]PCB 32A
14 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit A the Plaintiff’s Court Book (“PCB”) pages 19 to 74.
15 I admitted into evidence as exhibit 1 on behalf of the defendants, pages 15 to 44 and 48(a) to 59 and 85 to 115 inclusive from the Defendants’ Court Book (“DCB”).
16 After considering all of the evidence and the various submissions made by counsel, and for the reasons which hereafter follow, I have concluded that the plaintiff should succeed on his Originating Motion. These are my reasons for that decision.
17 It is necessary to start with the affidavit material filed by the plaintiff. The plaintiff is now thirty-two years of age. He is a single man who lives at home with his mother. He is in a relationship with a woman who does not live with him.
18 The plaintiff was educated to Year 12 at school and afterwards he commenced a course at university in aerospace engineering. After a short time, he realised this course did not suit him and he commenced and completed an apprenticeship in horticulture and turf management. He stayed on at the school where he did his training working as a caretaker and doing live-in security and maintenance. He did this work for about three years.
19 In 2008, he had another career change, working as an electrostatic spray painter, a job which lasted some eighteen months.
20 His next job was with the first defendant working as a farm hand or labourer.
21 In January 2010, whilst working for the first defendant, he injured his lower back whilst lifting a roll of turf onto a pallet. His work in this job generally involved heavy and repetitive bending, lifting and twisting.[8] None of this evidence given by the plaintiff is in contention in this proceeding. The plaintiff suffered from back pain and pain radiating down into the left leg.
[8]PCB 21
22 Following his injury, the plaintiff had a few sessions of physiotherapy but later attended the Casey Hospital where he was referred to a neurosurgeon, Mr Danks, who prescribed prednisolone. He also attended his general practitioner. He underwent an MRI scan and later the plaintiff had a nerve root injection but this did not give him lasting relief.[9] His general practitioner then referred the plaintiff to neurosurgeon, Mr Chris Xenos. On 9 August 2010, Mr Xenos performed an L4-5 microdiscectomy. The plaintiff had almost instant relief from his leg pain as a result of the surgery but still complains of ongoing back pain since the surgery.[10]
[9]PCB 22
[10]PCB 22 [11]
23 Following surgery, the plaintiff continued to see his general practitioner who prescribed anti-inflammatory medication, (initially Mobic). The plaintiff now only sees his general practitioner once or twice a year.
24 In early 2011, the plaintiff returned to study undertaking an engineering course. He said it was obvious to him that he could not return to his pre-injury employment, a view later shared by consultant orthopaedic surgeons who have examined him for the purposes of this proceeding.
25 The plaintiff told me that when he was looking for suitable work he was offered a job as the maintenance man come track manager of the Cranbourne Greyhound Racing Club. He obtained that employment in late 2011 and he still maintains that employment and is now earning more than $60,000.00 per annum. The plaintiff does not want to issue proceedings for loss of earnings or loss of earning capacity.
26 In his present employment the plaintiff works four days per week, usually Monday to Thursday. Sometimes he might have to work on another day. He starts early in the mornings and he performs various duties to maintain the greyhound racing track and he assists with the running of the race meetings, usually on a Monday evening but there may be trials through the week at which he is required to assist. The plaintiff deposed that at the end of work on a Monday, being the longest day, “my back is usually very sore and feels tight”.[11] The maintenance work he performs involves mainly tractor driving but there is other manual work involved from time to time clearing a spoon-like drain that surrounds the inner perimeter of the track. He also does manual lawn mowing. Since commencing, his employer has also employed another younger person to assist the plaintiff with his work. The plaintiff says that he usually delegates the heavier work to this person. The plaintiff freely concedes he is able to cope with his current employment notwithstanding his back pain.[12]
[11]PCB 28 [6]
[12]PCB 23 [14]
27 When the plaintiff swore his first affidavit he said his main problem was that of ongoing back pain. He said the level of pain fluctuates but “at times I still have severe pain. If I overdo things at work, or if I do too much at home, then I know about it afterwards with an increase in pain.”[13]
[13]PCB 24 [16]
28 Outside of work the plaintiff deposed his passion was previously hiking. Although he has been able to go on shorter hiking trips following injury, he deposes he can no longer undertake longer hiking walks because these require him to carry a heavy back pack for overnight and accommodation and, he simply can no longer carry such objects on his back. Therefore he no longer undertakes overnight hiking. However, he can walk. He has had difficulty sleeping and cannot sit in a car for long periods.[14] He says he can no longer play social golf which he previously enjoyed and in consequence of having to give up some of these activities he has lost contact with friends he previously had. He deposes in his first affidavit that he enjoys gardening and still does gardening at home but he must be careful.[15]
[14]PCB 24 [17]
[15]PCB 24 [18]
29 When the plaintiff swore his second affidavit on 13 March 2013 he said that he had to take care with physical activities because of the injury to his lower back. He was then suffering ongoing back pain and was taking “about six Nurofen Plus tablets most days”.[16]
[16]PCB 27 [5]
30 In his third affidavit sworn 6 August 2014, the plaintiff complained of ongoing symptoms in his left leg. He said he gets pain in his left leg “that runs down my buttock to behind my knee. On a bad day, I get the pain down to my left calf. The back surgery that I had initially seemed to relieve the left leg pain. However, with the passage of time, I seem to have some return of symptoms.”[17]
[17]PCB 28B [3]
31 The credibility of the plaintiff is not in question here. The plaintiff’s case is that even though he has had a relatively good result from surgery to his lumbar spine, he is left with a back which restricts his activities both with every day living and with work. At the age of thirty-two, the plaintiff is left with a light work back and even though he is now gainfully employed in a secure job, the variety of work open to him is restricted and should he wish to do so he is faced with the consequence that he can no longer seek employment in work that requires repeated and heavy lifting, bending and twisting.
32 The plaintiff relies upon the medical evidence from Mr Thomas Kossmann, orthopaedic surgeon, that he has no capacity for pre-injury employment as a farm hand and that he should not engage in any form of recreational sport activity where he is lifting heavy items or twisting his body. Mr Kossmann was also of the opinion that the plaintiff should undergo maintenance physiotherapy and hydrotherapy and he left open the possibility of further surgery.[18]
[18]PCB 61 and PCB 74E
33 The plaintiff also relies upon the medical evidence from Mr Michael Shannon, orthopaedic surgeon, who saw the plaintiff on behalf of the defendants in June 2013. Mr Shannon agreed that the plaintiff no longer has a capacity for pre-injury employment, adding “He is permanently restricted in the performance of work involving prolonged or repetitive bending or heavy lifting”.[19]
[19]DCB 31
34 Mr Shannon saw the plaintiff again on 27 May of this year and in his second report, he repeated what he had earlier said,[20] adding that the plaintiff’s back was “vulnerable to further injury”.[21]
[20]DCB 31E
[21]DCB 31D
35 The defendants’ case is that whilst it acknowledges the plaintiff suffered an injury to his lumbar spine requiring surgery, the plaintiff had a good result and the consequences from the injury could not now be regarded as being a serious injury within the meaning of the Act.
36 The defendants point to the fact that the plaintiff is able to hold down a good job which requires some manual work and he has now been doing this for some two years. The defendants point to the fact the plaintiff is able to work without restriction and without any medical certificate restricting the amount or kind of work he can do. The defendants also point to the evidence that the plaintiff only infrequently consults his general practitioner and the medication he is taking (Celebrex) is very limited. The defendants also point to the evidence that the plaintiff is able to engage in sporting activities such as limited hiking and kayaking and points to the photographic evidence from his Facebook page depicting him participating in such activities in support of its submission.[22]
[22]T26 et seq
37 In short the defendants’ submission is that the evidence shows the plaintiff suffered an injury to his lower back as a result of which there is no “permanent serious impairment or loss of a body function”. The defendants submit that the pain and suffering consequences for the plaintiff when compared with other such injuries could not be “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c). The defendants accept the plaintiff as a witness of truth and indeed rely upon his evidence to support its submissions.
38 At the end of the day, determination of the plaintiff’s application depends upon an assessment of the evidence that at the age of thirty-two, the plaintiff remains vulnerable to further injury. As a relatively young man with potentially many years of work ahead of him, he is restricted in the kind of work he can seek into the future and he is restricted in the type of physical sporting and social activity he can partake in and the extent to which he engages in such activities. For a person of his age and limited training, I consider the injury he sustained to his lumbar spine during the course of his employment with the first defendant has resulted in a permanent serious impairment or loss of a body function to his lumbar spine. In my view, the evidence shows the pain and suffering consequence of the plaintiff’s injury to the lumbar spine when judged by a comparison with other cases in the range of possible impairments can “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c). Having regard to the plaintiff’s young age, the consequence that the kind of work the plaintiff can be engaged in is restricted is a most serious consequence.
39 The plaintiff will have leave pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendants claiming damages for pain and suffering.
40 I will hear the parties on costs and appropriate orders.
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