Gray v Wak-Law-Rol Pty Ltd
[2014] VCC 300
•21 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-13-01851
| JOHN NEVILLE GRAY | Plaintiff |
| v | |
| WAK-LAR-ROL PTY LTD | First Defendant |
| and | |
| KLEENHEAT GAS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17-19 March 2014 | |
DATE OF JUDGMENT: | 21 March 2014 | |
CASE MAY BE CITED AS: | Gray v Wak-Law-Rol Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 300 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – damages – injury to the vestibular system – Post-Traumatic Stress Disorder – Adjustment Disorder – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
Application in relation to pecuniary loss damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr C Hangay | Slater & Gordon |
| For the Defendants | Mr N Chamings | Thomsons Lawyers |
HIS HONOUR:
1 Leave to bring proceedings to recover damages is sought for a paragraph (a) injury to the vestibular system resulting in a loss of balance. A paragraph (c) injury is also relied on, being Post-Traumatic Stress Disorder and an Adjustment Disorder. The leave sought is for both pain and suffering and pecuniary loss damages. Loss of hearing was not pursued as a consequence of the paragraph (a) injury.
2 The defendants admit a compensable injury was suffered to the vestibular system, but maintain that it does not meet the level of “serious” in terms of pain and suffering or pecuniary loss consequences.[1]
[1]Transcript (“T”) T31, T128
3 The defendants do not admit a compensable psychiatric injury. This is in spite of the admission of liability in a letter dated 24 March 2011 from the authorised insurer with respect to no-fault benefits stating clearly:
“Liability is accepted for the following injuries:
· Right vestibular dysfunction
· Psychiatric condition.”[2]
I accept this is an admission that is very significant that the plaintiff suffered psychiatric injury in the course of his employment.[3] The defendants also contend that if a psychiatric condition was suffered, it is not “severe” in terms of either pain and suffering or pecuniary loss consequences. [4]
[2]Plaintiff’s Court Book (“PCB”) 23
[3]Ansett Australia Ltd v Taylor [2006] VSCA 171 at paragraph [3]
[4]T31
4 The plaintiff is a fifty-four‑year-old man who said he had not worked between 2006 and 2009 due to family arrangements between him and his wife. He returned to the workforce on either 16 or 17 June 2009 via the first defendant, a labour-hire company, and was working at the premises of the second defendant.[5]
[5]PCB 6
5 He was welding on 26 June 2009 when a fuel tank exploded while using an oxy torch. He was thrown back onto the ground by the force. Within a day or two he had fluid coming from his ears and a deep humming sound, especially in his right ear.[6]
[6]PCB 7
6 After a short return to work, he was put off on 3 July 2009.[7] He has not looked for work since.[8] The plaintiff admitted that he was given the sack from work, due to his work output not being satisfactory to the employer, although he considered the demands unrealistic. He expressed in oral evidence the reason he was told was:
“Your volume of tanks is not sufficient. We have to let you go”.[9]
[7]PCB 8
[8]Transcript (“T”), T80
[9]T61
7 He went to his first medical practitioner, Dr Choi, after he was sacked and on the same day as his dismissal. However, Dr Choi was a doctor who did not practise in WorkCover and another Sunshine clinic was recommended. The plaintiff came under a Dr V Navani at the other Sunshine clinic.
8 The plaintiff freely admitted he had not looked for any work[10] but said he had cut lawns, pulled carpet up in a house, done some painting and some trench work, either for nominal payment or as a favour it seems. He had also picked up discarded washing machines and refrigerators from the roadside and sold them.[11] In my opinion this is consistent with some work capacity.
[10]T80
[11]T80, 96 and PCB 12
9 Dealing with the application for leave to recover pecuniary loss damages, the paragraph (a) and (c) injuries can be dealt with together.
10 The plaintiff carries the onus of proving a loss of 40 per cent or more earning capacity. In this case, he has not proved what his pre-injury earning capacity was. I can make no finding on the evidence as to what his real earning capacity was before this injury. While I accept he has worked at some stage in welding and in industry over past years in various locations, both as an employee and self-employed, I cannot make any finding in the absence of convincing evidence as to the extent of any such capacity. There is no evidence provided as to earnings prior to him ceasing work in 2006 in order to follow a family arrangement. There is no evidence before the Court from him, from taxation returns or any documents as to earnings from paid employment or self-employment in those earlier years. The only employment in the three years prior to the explosion is the short period of casual employment with the first defendant from 16 or 17 June 2009 up until his dismissal on 3 July 2009. It was agreed he earned $456 gross over those few days.
11 In other words, his without injury earning capacity has not even been established sufficiently to be able to gauge its extent. The vocational assessment witness describes certain wage rates in industry but I am not satisfied the plaintiff earned such money. Whether he worked part time or full time and over what period of time, is not sufficiently made out on the evidence.[12]
[12]PCB 143a-b
12 It follows that no assessment of the extent of any loss can be established. It was a capacity which, for his own reasons, was not exercised in the three years pre-injury, save for some short casual hours in the two weeks or so that he was employed by the first defendant. There is no corroborative evidence from his wife or any other witness of his earning capacity before injury.
13 The plaintiff has failed to prove thus any permanent loss of earning capacity. If there is any such permanent loss, then he has not discharged the onus of establishing that it is 40 per cent or more, measured on the analysis required under the Accident Compensation Act 1985 (“the Act”).[13]
[13]Section 134AB(38)(e) and (f)
14 While it is not strictly necessary in view of what has just been stated, the plaintiff has obviously also failed to discharge the onus on him under the Act as to reasonable attempts at rehabilitation and retraining for alternative, further or additional employment.[14] He renewed his heavy duty truck licence in 2013 for reasons that are not entirely clear but I accept are consistent with him not considering himself totally and permanently incapacitated for work.[15] He conceded he might be capable of light work.[16] He is studying Mandarin Chinese and hopes to work as an interpreter.[17] Where, if anywhere, these factors might take the plaintiff in the future regarding alternative work is impossible to predict, but the fact remains that a permanent 40 per cent or more loss has not been made out on all the evidence.
[14]Section 134AB(38)(g)
[15]T88
[16]PCB 13
[17]T90
15 For the reasons mentioned, the plaintiff’s application for leave to bring proceedings for the recovery of pecuniary loss damages due to the paragraph (a) and/or (c) injuries must fail.
16 Turning to the claim for leave to bring proceedings for the recovery of pain and suffering damages, the test is whether the consequences of the loss of balance, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable.
17 Some comments have to be made in relation to the plaintiff’s evidence. He gave his evidence in a quite rambling manner at times. He very often went on to speak of matters in a non-responsive way that indicated either a failure to properly understand the question put to him or a general desire to move on and say something else that he thought was relevant. He did not give the impression of a man who was consciously trying to mislead the Court but he was often not accurate. His memory was not good and often he had difficulty answering the question in a relevant way.
18 While the credit of the plaintiff has, to some extent, been successfully impugned by the defendants, this is one of those cases where there is objective medical evidence of the vestibular injury. His hearing loss has been the subject of doctors criticising his veracity and effort on audiological hearing tests as well as in clinical assessments.
19 His presentation to doctors smelling of alcohol from the very first visit to Dr Choi on 3 July 2009 was also noted by other practitioners.[18]
[18]PCB 76, 77, 81, 115-116; DCB 47b, 47d, 111
20 Not surprisingly, the unreliability of the hearing test results has sensibly led to that injury not being pursued at this hearing.
21 I accept that the vestibular dysfunction however has been objectively established. The defendants have paid ‘no fault’ compensation for the relevant permanent AMA impairment percentage. The compensable injury is admitted.[19]
[19]T31, 128
22 While the plaintiff was an unreliable and unsatisfactory witness on a number of matters, particularly in relation to work history and earning capacity, this was a case where the advantage of observing his demeanour and presentation was important. Part of his evidence was unsatisfactory but not all of it. It was also helpful to be able to ask him some questions when it was not entirely clear what he was saying.[20] At times he volunteered admissions against interest. For example, use of cannabis on one occasion was given unresponsively.[21] At another stage he volunteered picking up roadside rubbish and selling some items.[22]
[20]T61-62, 102, 104-105
[21]T55
[22]T80
23 Four photographs were tendered of the plaintiff and another man in bright coloured jackets similar to those often worn by outdoor manual workers.[23] The plaintiff denied he was working on this day. I infer from page 2 of the Defendant’s Court Book index that the investigator who obviously took the film did not have anything more that would have advanced the defendants’ case other than these photographs of the plaintiff standing around a car.[24] The defendants submitted that the plaintiff’s answers were inappropriate and indicated unreliability.[25] I agree the plaintiff did volunteer very quickly, which the transcript does not show, that it was the warmth of the jacket that led him to have it on. Why the other man was also wearing one is just curious speculation.
[23]Exhibit 2
[24]T64-66
[25]T123
24 I agree the photographs and his responses to questions about them were not entirely convincing. They are capable of leading to some hesitation in accepting the plaintiff’s evidence about his activities, especially in relation to work capacity. However, from these still photographs that really do not show much at all, I cannot draw any firm conclusions beyond some hesitation on that topic.
25 Whether or not he had exaggerated his hearing loss and was unreliable in tests, I am satisfied, after hearing him in the witness box, he was reliably and accurately recounting the problems the loss of balance caused, both in his affidavits and his oral testimony.
26 I accept his evidence that he could not keep a bicycle going straight. He had fallen off a bike due to loss of balance. He has not been able to ride with his little girl now for some time.[26]
[26]PCB 11; T105
27 I accept his evidence of a very considerable interest in horse riding in the past. I consider it reasonable and consistent that he would not even consider it now because of balance problems.[27] Similarly, he could not pursue his interest in Karate. He can no longer do the Karate sequence.[28] He had a love of sport that I find his loss of balance would now rule him out of.[29]
[27]PCB 9; T104-105
[28]T103
[29]T103
28 Of particular relevance was an incident he described that I had no reason to doubt about falling out of a chair. This took place as he did The Alfred hospital vestibular function tests last month that led to objective results of dysfunction. He suffered an unfortunate incident. As the hospital attendant slowly turned the chair around as part of the test, the plaintiff fell out of the chair onto the floor and had to be grabbed by the attendant.[30] This indicates balance problems that are not to be underestimated in their impact on very simple tasks of daily living.
[30]T82
29 I am satisfied that the objectively established vestibular dysfunction causing the loss of balance has caused very considerable consequences in terms of loss of enjoyment of life.
30 I accept the defendants’ argument that it has improved somewhat but I find it will not recover to the point of being normal.[31] In the long-term, he will not ever get back to unrestricted activities, particularly involving rapid movement of his head and visual field.[32] Such movements are so much a part of everyday life, they speak for themselves. He is permanently limited in them and at risk of loss of balance affecting his personal safety. Such a restriction on daily activities that are taken for granted and carried out without a moment’s thought is a very considerable consequence for him.
[31]PCB 101A
[32]DCB 40bb
31 I accept his evidence that he was involved in a very frightening incident that has remained with him and is likely to remain with him as a very vivid memory of a tank exploding virtually in his face.[33] He described persistently how he feared for his life and how it “freaks him out”.[34]
[33]PCB 17
[34]T89 and 100
32 I accept his evidence that over the last almost five years since the accident, his balance is still affected. He has learnt to cope with it, for example when walking or driving, but he has to be constantly careful in that regard.[35] He has had some “near misses” in relation to driving and this has partly been due to balance problems.
[35]PCB 11
33 The ability to walk, drive, and ride a bike, for example, are things that are simply taken for granted in everyday life. To have a loss of balance in the circumstances of this man’s life is a very considerable consequence.
34 It is not necessary to deal with what all the doctors say about his loss of balance in any great detail. His general practitioner, Dr Navani, noted on the first occasion he saw the plaintiff in July 2009, that the plaintiff stated he had poor balance and felt unsteady, as if he was “underwater”.[36] In the course of that doctor’s reports over the last four or so years, the diagnosis has not really changed. The doctor thought that further information about the vestibular dysfunction was really in the province of ENT specialists.[37]
[36]PCB 56
[37]PCB 69
35 Dr J Redhead, ENT surgeon, provided a number of reports. In April 2013, he noted that the vestibular disturbance had been present for nearly four years and recommended an assessment for a course of vestibular physiotherapy. He noted that the:
“... vestibular disturbance will restrict his social, domestic and recreational activities. He will most likely require a hearing aid and he will be unable to undertake activities where good balance is required for safety.”[38]
[38]PCB 96
36 Dr Redhead then commented, in February 2014, on some opinions and testing that a Dr V Cousins and a Mr H Millar had provided. Dr Redhead stated:
“In summary, Mr Gray does have a vestibular impairment documented by vestibular function testing on 24 January 2011.”[39]
[39]PCB 101
37 Then, on 17 February 2014, Dr Redhead noted that the plaintiff underwent vestibular function testing at The Alfred hospital on 21 February this year. Several abnormal findings were documented and Dr Redhead agreed that the plaintiff had some ongoing disequilibrium with positional vertigo of a non-specific nature. He pointed to limitations in relation to employment that involved operating machinery and power equipment where imbalance might affect the worker’s own safety or that of other workers. He concluded:
“Although improvement in his vestibular function tests have occurred between 2011 and 2014, abnormalities are still present and I believe that he should avoid employment and activities where good balance is required for safety. Since he has suffered vestibular problems for more than four years, he is unlikely to recover normal vestibular function even with physiotherapy.”[40]
[40]PCB 101A
38 I accept this surgeon’s opinion. To have to avoid work duties that involve good balance is consistent with having to avoid what must be a myriad of everyday activities where balance is important. That is a very considerable consequence that is permanent.
39 Mr H Millar, otolaryngology/head and neck surgeon, reported on several occasions and in February 2011, he noted:
“There is thus evidence of right vestibular dysfunction of a significant degree which presumably would have resulted from the explosive incident on 26/6/09.”[41]
[41]PCB 118
40 He then went on to provide an AMA assessment from the section on Equilibrium in the 4th edition Guides. He referred to tests and reached a percentage assessment following vestibular function testing. While the relevant AMA percentage is not arithmetically relevant to the task here, it nevertheless supports a permanent loss of balance. [42]
[42]PCB 120
41 A Dr V Cousins, otolaryngology/head and neck surgeon, reported on behalf of the defendants in September last year. He was somewhat equivocal about the extent of any vestibular system injury causing imbalance.[43] He said that, after examination, it was not indicative of “any significant signs of imbalance” as significant effects had not been confirmed. He did say:
“Problems with vestibular function and balance may affect his ability to perform his pre-injury work and in particular his ability to work machinery and drive the various work vehicles he has been trained to operate.”[44]
[43]Defendant’s Court Book (“DCB”) 31
[44]DCB 32
42 He then reported again in February this year following The Alfred hospital’s otoneurology testing on 21 February 2014. He felt that after these tests:
“These results suggest that Mr Gray has some ongoing disequilibrium with positional vertigo of a non-specific nature.”[45]
[45]DCB 33
43 He went on to discuss those tests more fully and stated that, while he found no clinical signs consistent with disequilibrium when he examined the plaintiff in September 2013, nevertheless the subsequent formal testing had identified some non-specific positional nystagmus which is consistent with a post-traumatic condition.[46]
[46]DCB 34
44 He stated rather gloomily:
“The fact that he has ongoing problems some 4½ years after the injury would suggest that his prognosis is guarded and he may not fully recover from this problem.”[47]
[47]DCB 34
45 The surgeon gave an opinion with respect to the effect of balance being compromised in a workplace context. However, these comments are just as apposite in terms of daily life for a man who drives a Toyota 1‑tonne vehicle as part of his family life, operates a lawnmower and has helped people out with trench work. He said:
“His current disequilibrium interferes with his ability to operate these forms of equipment safely, currently, suitable employment should not include positions where he is required to be overly physically active where his vertigo may be aggravated and should not include operation of machinery and other powered equipment when his own safety or that of other workers may be affected by his imbalance.”[48]
[48]DCB 34
46 I take this last opinion as referring to very considerable consequences in daily life as well as in a workplace.
47 Dr Cousins gave a very up-to-date report on the first day of the hearing of this application and the position was largely unchanged. He thought, in relation to the post-traumatic positional vertigo, that whilst the symptoms may improve somewhat, it was unlikely that this problem would fully resolve at this late stage. He then went on to state:
“On the balance of probabilities, Mr Gray’s disequilibrium is unlikely to resolve fully. It is my opinion therefore, that he will not be able to return to employment where a high level of balance function is required.”[49]
[49]DCB 46bb
48 Again, in the context of commenting on return to employment, he described that a course of vestibular physiotherapy could possibly achieve maximum improvement. I do not read that, in the context of all of his reports, as amounting to a probability. I read his reports as indicating that, given the length of time now, while some improvement may be possible, it is not likely.
49 He commented further on problems in the employment context that are equally relevant to daily life, when he said that the plaintiff should not return to work that included positions where he was required to be overly physically active. Positions where he needs to move his head around rapidly in any direction and positions where there is rapid movement in his visual field were also to be avoided. He should not be required to operate powered or other machinery, again for safety concerns. These limitations are sufficient to amount to very considerable consequences just in daily life, when one takes into account their breadth and the activities that would be affected recreationally, socially and just going about activities around the home and in general family life.
50 There are two earlier reports of ENT specialists from 2009, being a Mr G Sherman and Mr G Watson. These reports are dated August 2009 and September 2009.[50]
[50]DCB 47a and DCB 47c
51 Mr G Sherman reported in very early days that while he thought there was some exaggeration on the part of the plaintiff in terms of the hearing loss, he does not add anything relevant to an assessment now in March 2014 of the loss of balance.
52 Mr G Watson also commented in very early days and he was not satisfied at that stage about true hearing loss. He thought there were some inconsistencies with respect to the history. He again was reporting so early, and before up-to-date sophisticated testing, that it is of no assistance in the task at hand in assessing the loss of balance now and whether or not it has consequences that could be fairly described as being at least very considerable.[51]
[51]DCB 47d
53 Looking at the medical evidence overall, the early specialists, Dr G Watson in 2009 and Mr G Sherman in 2009, were essentially dealing with possible hearing loss. Similarly, with Mr H Millar who, however, did comment on the evidence of chronic balance disturbance back in November 2010, and further in 2011.
54 Thus, Mr Millar, Mr J Redhead and Dr Cousins are the most helpful in giving more up-to-date opinion on the subject paragraph (a) injury and how balance is affected. The general practitioner, Dr Navani, deferred to the specialists in his last report of November 2013 and said no more than that.[52] From that comment I infer he probably accepts such a condition exists at least but he is of no help as to consequences.
[52]PCB 69
55 The defendants’ argument that the improvement thus far and the prospect of further improvement means the plaintiff has not proved permanence does not get very far. Specialist physiotherapy is mentioned as a possible source of further improvement but no specialist says it is probable. I find the likelihood is the condition is stable and will remain for the foreseeable future on the most recent specialist opinions.
56 These opinions add up to a consistent body of current opinion I accept, that the condition is stable and will last for the foreseeable future.
57 Accordingly, I accept the evidence of a permanent loss of balance that impacts on daily life in a way that can fairly be described as a very considerable consequence for this man. It follows that I grant leave to bring proceedings for the recovery of pain and suffering damages.
58 In view of the grant of leave for the recovery of pain and suffering damages for the paragraph (a) injury, it is not necessary to go further and consider the paragraph (c) condition at length.
59 I do, however, accept that the extremely frightening explosion is still having a mental and emotional effect on him and he has suffered a permanent psychological condition that impacts on his daily life. Just the ongoing impact on his sleep after four and a half years is a great disruption to enjoyment of life.[53] Similarly, the need for continual medication with the side effects it results in is of great significance.
[53]PCB 11, T56, T89
60 I will hear the parties as to costs.
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