Haapakoski v Bridgestone Australia Ltd
[2014] VCC 979
•3 July 2014 (Revised)
er
| 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-11-04659
| ROBERT HAAPAKOSKI | Plaintiff |
| v | |
| BRIDGESTONE AUSTRALIA LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 June 2014 | |
DATE OF JUDGMENT: | 3 July 2014 (Revised) | |
CASE MAY BE CITED AS: | Haapakoski v Bridgestone Australia Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 979 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords Damages – serious injury application – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E Hill | Slater & Gordon |
| For the Defendants | Ms A C Ryan | Minter Ellison |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming general damages for injuries suffered in the course of his employment with the first defendant between 2002 and 2009 and in particular, arising out of an incident involving heavy lifting which occurred in March 2005. The injury relied upon by the plaintiff is one to the lumbar spine and the impairment of function is that of the lumbar spine.
2 There is no issue that:
· On 9 April 2013, whilst stepping down from the tray of a truck, the plaintiff experienced significant low back and right leg pain (the 2013 incident); and
· The task required of me in this application is to identify the consequences to the plaintiff of the employment-related injury to his lumbar spine which arose during his employment with the first defendant in the period the subject of this application, to the exclusion of any symptoms or incapacity caused by the 2013 incident.
3 The plaintiff has sworn a number of affidavits in support of the application. Relevantly, in his first affidavit, he said that:
·Between February 2002 and March 2005, he would sometimes get aches and pains in his lower back performing the heavy work undertaken by him in the course of his employment with the first defendant in removing and fitting wheels and tyres to vehicles. He said he developed particularly bad back pain as a result of an incident which occurred on 21 March 2005 when he was fitting a wheel to a low loader. As the result of that incident, the plaintiff said that he was initially away from work for two weeks; was never able to resume his pre-injury duties; was precluded from carrying out the heavier work involved in his employment, and that he often undertook sweeping and cleaning work until his employment was terminated in March 2009. He said that from the time of the incident until the date of his termination, “I sometimes had to take time off work because of back pain”.
·He sometimes took Panadeine Forte, Panadol and Nurofen for pain relief. He occasionally took Temazepam to assist him with sleeping. He sometimes used a heat pack, and also smoked marijuana, to assist him in control of his symptoms.
·He had constant low-back pain, commenting “I get pain going down from my buttocks into my legs and the back of my knees, more so the left leg”.
·He could not stand in one position for extended periods of time or walk long distances.
·Following his retrenchment by the first defendant, he found employment with Supermail in Seaford as a forklift driver in January 2010. In June 2010, he commenced employment with Peer in Dandenong as a forklift driver.
·He had few hobbies. He spent a lot of the weekend just lying in bed. He had two children aged fifteen and seventeen and his symptoms restricted his ability to interact with them.
·Prior to being injured, he enjoyed motorcycle riding; however, his back pain was exacerbated by riding a motorcycle and he now seldom engaged in that activity.
·His work options had been restricted by reason of his symptoms.
4 In his affidavit of 22 August 2012, the plaintiff deposed that:
·He continued to have constant low-back pain which caused him to struggle to get through the day. Most of the time when he came home from work, he was required to lie down to ease his back pain. He also rested on weekends to assist him to recover from the working week. He continued to have symptoms of pain extending into his backside and legs, particularly his left leg. In describing his current symptoms, the plaintiff largely repeated the content of his previous affidavit.
·He had commenced to play indoor soccer with his children. He found that he was unable to participate vigorously in the sport, and that after playing soccer he developed an increase in his symptoms of back pain. He had largely given up motorcycle riding.
·He was reluctant to use medication, stating that he sometimes employed Panadeine Forte on weekends, as it would not affect his capacity to work. During the week he used –
“… Panadol approximately four to five a day. Occasionally I take Nurofen. I continue to use a heat pack approximately twice weekly and I also apply Voltaren gel to ease back pain.”
·He continued to work for Peer Industries in the capacity of a driver. He said that he had found working as a forklift driver difficult and was able to undertake work as a truck driver as this work involved very little manual activity.
·He said that prior to 2005, he used to enjoy going camping and fishing but he no longer carried out these activities as they aggravated his symptoms.
5 In his affidavit dated 2 May 2013, the plaintiff said that:
·He had continued to suffer from ongoing back and leg pains since the swearing of his previous affidavit.
·On 9 April 2013, whilst stepping down from the tray of a truck, he experienced significant low-back and right leg pain. Since the 2013 incident, he had attempted to work only on a couple of occasions for a few hours, at which time he had attempted some light work; however, this had proved too difficult.
·In April 2013, he had commenced physiotherapy treatment. He continued to suffer from low-back pain. He was often required to lie down when he came home from work to obtain some relief from pain. He often found sleeping on the floor assisted him in managing his back symptoms. He continued to have pain into his backside and legs. He was unable to walk long distances and often walked with a limp. He had difficulty walking on stairs. He commented:
“Many tasks are now more difficult and for example I find it difficult to get socks and shoes on and I normally get pants on when I am lying on the bed so that I can pull them up to me rather than bend.”
·He employed Panadeine Forte medication, approximately six to eight a week, and Nurofen, and sometimes Nurofen and Tramal. He applied Voltaren Gel and had been taking Voltaren tablets for some two months. He said that he would use more medication but for the fact that the medication had a churning effect on his stomach. He said that since the recent aggravation of his back pain, he had had a lot of trouble sleeping and had been prescribed sleeping tablet medication. He said he continued working for Peer Industries, approximately 40 hours a week, as a truck driver; that frequently throughout the course of the day he carried out stretches to help his back; that he had given up playing indoor soccer, which he had persisted with only for a couple of months.
6 In a further affidavit dated 12 June 2014, the plaintiff said that:
· He employed Tramal and Temazepam only occasionally.
· He, on average, made use of:
(i) Voltaren, Nurofen and Panadol, about six tablets a week;
(ii) Panadeine Forte, about six tablets per week;
(iii) Tramal, one tablet every month or so;
(iv) Temazepam, one tablet every month or so;
(v) Valium, one tablet twice a week.
·His work as a truck driver had been terminated following a disagreement with his foreman.
·He had undertaken some work on an asparagus farm between September and November 2013. Thereafter, until late March 2014, he had been in receipt of unemployment benefits. He attempted employment with a company called United Oils but this involved heavy work which he was unable to cope with. He had undertaken a number of certificates, hoping to secure employment in the services industry. He continued to suffer from sleeping problems, no longer rode a motorcycle, nor played football socially. He refereed indoor soccer matches once a month. He had modified the way he undertook home activities and avoided heavy domestic tasks which involved bending.
·Prior to hurting his back, he had worked in physical jobs and would not be able to carry out that sort of work in the future.
The Plaintiff’s viva voce evidence
7 In cross-examination, the plaintiff said that:
· He had ceased physiotherapy with Mr D’Sousa in 2012 but had resumed physiotherapy after the 2013 incident.
·He had played indoor soccer for a short period of some two or three months but had given up that activity some time in 2012.
·In June 2010, he had commenced employment with Peer Industries, initially as a forklift driver but thereafter as a truck driver.
·After the 2013 incident, he had been off work for about two or three months. On returning to work, he had not been able to resume truck driving because he required a modification to his seat, which he described as being illegal.
·Prior to the 2013 incident, he had a capacity to deal with his work; however, his back pain increased every day in the course of his employment as the day wore on. It was put to the plaintiff that following the 2013 incident, he no longer had a capacity for work. The plaintiff disagreed, saying that his capacity at the present time was “the same, pretty much” as prior to the 2013 incident.
·He was currently in receipt of WorkCover payments as the result of the injury sustained in the 2013 incident, and had been in receipt of such payments since November 2013. He said that he had been looking for work during this period, had undertaken a number of courses to enable him to work in customer services; had eventually secured a position which he believed was a customer service related position but on attending the workplace had been placed on warehouse duties which involved him lifting drums of oil. He said that after two days in that work, he had to cease the work because it was beyond his capacity.
·He was currently using medication in the form of Panadeine Forte, Temazepam and Tramal. He also applied ice gel in the form of liniment. He said he employed Panadeine Forte every second or third day, Temazepam maybe twice a month and Tramal not very often. He described his medication in the following terms:
“It’s pretty much it, yes, I’ve pretty much taken that the whole time, your Honour.”
·His capacity to walk was limited to 400 or 500 metres, commenting “But I’ve always done that ever since, you know, it hasn’t changed”. It was put to the plaintiff that prior to 2013 he had achieved a position where he was managing quite well, to which the plaintiff commented “Managed, yes, not – it’s never been quite well”. It was put to the plaintiff that since the 2013 incident, he had attended his general practitioner on a more regular basis with complaints of back pain. The plaintiff did not accept this position.
·He had given up camping by reason of his restricted ability to stand and sit.
8 In re-examination, the plaintiff said that he wanted to work, he would continue to seek employment, and he had undertaken a number of courses including Responsible Service of Alcohol, Responsible Service of Food, and Responsible Service of Gambling “so to try different outlooks. I actually had a job interview last week.” He said that his rate of medication at the present time was “pretty much” that which he had employed prior to the 2013 incident.
9 The very strong impression I gained of the plaintiff as he was cross-examined was that he was a man with simple habits involving physical activity which centred largely around his work (which prior to 2005 had involved strenuous physical activity), his relationship with his son and daughter, with whom he had spent as much time as possible, and undertaking activities such as camping and motorcycle riding, the latter which he undertook fairly regularly and the former on an irregular basis. Further, I formed the impression that the plaintiff was not inclined to exaggerate his symptoms and was doing his best to provide an accurate description of his symptoms.
Medical evidence
10 The medical evidence in the case is a matter of record. The medical evidence relied upon by both parties is set out the medical reports which they have tendered, with the exception of the evidence of the plaintiff’s general practitioner who attended for cross-examination.
(i) The medical evidence contained in the tendered reports
11 There is little issue within the various medical reports which have been tendered, and which deal with the plaintiff’s level of incapacity prior to the 2013 incident, that by reason of his employment with the first defendant during the period the subject of the present claim the plaintiff suffered an exacerbation of an underlying asymptomatic condition in his lumbar spine, the effect of which was to alter the plaintiff’s capacity for work:
· From that which pertained when he commenced his employment with the first defendant, namely a capacity fit for unrestricted duties involving heavy lifting;
· To that which pertained at the conclusion of the plaintiff’s employment with the first defendant, namely a capacity for restricted lighter duties.
12 Further, the medical evidence to which I have referred above satisfies me that:
(i) As a consequence of the plaintiff’s work during the relevant period; and
(ii) Primarily by reason of the injury suffered by the plaintiff in March 2005;
the plaintiff developed a permanent vulnerability in his lumbar spine, the effect of which was to predispose him to suffering exacerbations of his spinal condition, the consequences of which may involve either:
· short-lived; or
· long term
increases in the plaintiff’s level of pain, and accordingly his capacity for activity.
13 In making this finding I do so taking into account:
(i) The following evidence tendered on behalf of the defendants:
· The medical opinions generated by Mr T J Russell, Mr Brian Davie, Mr Michael Troy and Mr Tony Kostos (each of whom expressed their opinions at a time at which the plaintiff was continuing his employment with the first defendant and well prior to the 2013 incident), who opined that the plaintiff should avoid heavy work or work requiring him to bend and to lift repeatedly;[1]
[1]I have disregarded the opinion expressed by Mr Littlejohn for the reasons expressed at the conclusion of the evidence at Transcript 60
· The opinion of Mr John O’ Brien, who, in a report dated 13 May 2009, opined that the plaintiff presented with a moderate disability by reason of the presence of chronic back pain, that his condition was stable but that his prognosis was “very guarded” given the duration of his symptoms; that he was physically restricted in his ability to undertake manual tasks, noting that at best the plaintiff was capable of only modified or light duties; that he was unable to participate in employment requiring significant lifting or repetitive bending and it was likely that the plaintiff would be permanently confined to modified duties in his future employment. Mr O’Brien further accepted that the plaintiff was restricted in his activities of daily living by reason of his symptoms, and commented that that restriction was likely to be permanent.
I find the opinion expressed by Mr O’Brien in this regard to be balanced and persuasive. It largely accords with the opinions expressed by each of the doctors to whom I have earlier referred. Insofar as there is any minor discrepancy between the opinion of Mr O’Brien and those of these medical practitioners, having regard to Mr O’Brien’s experience and eminence in the profession, I prefer his opinion.
(ii) The opinion of Mr Brownbill, who opined in May 2011 that on 21 March 2005, the plaintiff had suffered an aggravation of a pre-existing asymptomatic lumbar degenerative condition which would restrict him in the future in his ability to undertake activity involving “lifting, twisting or stooping, pushing, pulling, lifting, kneeling, squatting and crouching, or using steps or ladders in a repetitive fashion”. Mr Brownbill expressed the opinion that those restrictions could continue indefinitely and that the plaintiff’s symptoms of pain would continue in a fluctuating manner indefinitely. In a number of subsequent reports, Mr Brownbill largely echoed the position expressed by him in his first report.
14 I am satisfied that the opinions expressed by Mr Brownbill and Mr O’Brien describe accurately the effect which the first defendant’s work process the subject of this application had upon the plaintiff’s capacity for employment and his symptoms, as at the time of their respective examinations. I am further satisfied that these reports allow me to fix with appropriate precision the consequences to the plaintiff of his work process injury prior to the influence of any exacerbation of that condition by the 2013 incident.
15 Further, I am satisfied that the plaintiff’s continued employment (initially with the first defendant after March 2005 which continued until 2009, and thereafter with other employers), when considered in the context of the statements made by Dr Demirtzoglou as to the plaintiff’s desire to return to work and the enjoyment he derived from his work (to which I will subsequently refer), attest persuasively to fact that the plaintiff adopted the approach of managing the symptoms in his lumbar spine which were caused by reason of the work undertaken by him in the course of his employment with the first defendant, so as to minimise the effect of those symptoms upon both his earning capacity and his life in general, rather than to the minimal nature of those symptoms.
16 Taking into account the totality of the evidence in this case and particularly the impression I formed of the plaintiff as he gave his evidence, I am satisfied that the plaintiff presents as a stoic, well-motivated person and that I should accept the evidence given by him both as to his symptoms and as to the effect upon his life. The cross-examination of the plaintiff in my opinion in no way undermined my finding in this respect.
Dr Demirtzoglou
17 The plaintiff’s treating general practitioner, Dr Demirtzoglou, in a series of reports, expresses opinions consistent with the finding that I have made as to the plaintiff’s positive motivation and attitude and I rely on the content of his reports in making that finding.
18 As early as April 2005 the plaintiff was voicing to Dr Demirtzoglou his wish to return to work and his concerns that being confined to restricted duties affected his relationship with his fellow workers and caused him to feel “degraded” (see the report of Dr Demirtzoglou dated 16 April 2005).
19 In a report dated 15 December 2009, Dr Demirtzoglou describes the plaintiff presenting to him with a history:
· On 21 March 2005, involving major back injury in a setting of previous presentations with back pain which had commenced in approximately 2002; and thereafter;
· After 21 March 2005, of returning to light duties (initially on the basis of two hours per day);
· Re-injuring his back on 25 October 2005 in the course of his work, which injury required treatment with strong pain relief and physiotherapy; and
· After 25 October 2005, of continuing to consult him for certificates with respect to occasional days off work, difficulty sleeping, walking or standing for long periods due to back pain.
20 As at 15 December 2009, Dr Demirtzoglou opined that the incident of 23 March 2005 was for the plaintiff the most severe episode of back pain, but that the plaintiff experienced further episodes at work which aggravated his back pain.
21 I interpret the report of Dr Demirtzoglou of 15 December 2009 as expressing an opinion that the incident of March 2005 was such that it caused the plaintiff ongoing back pain; insomnia; pain on prolonged sitting and standing; the need for the employment of pain relief and physiotherapy, and precluded the plaintiff from undertaking work involving lifting.
22 In a report dated 2 August 2012, Dr Demirtzoglou opined that the plaintiff’s back pain did not stem entirely from the incident which occurred on 21 March 2005 as the plaintiff has had trauma prior to that date and subsequent to that date, but “the accident on 21 March 2005 was a significant injury”. He again opined that the plaintiff remained unfit for heavy lifting but could perform lifting duties involving work which did not involve repeated lifting and bending of his back.
23 In a further report dated 4 May 2013, Dr Demirtzoglou expressed a similar position to that in his previous reports, opining that the plaintiff had “injured his back in the attempt to excel in his work”. He again opined that the plaintiff was restricted in performing repetitive bending, lifting, twisting, stooping and prolonged sitting, standing or walking, or activities involving the repetitive or prolonged use of his lower back, and that it was likely that those restrictions would continue in the foreseeable future.
24 Whilst in his report of 2 August 2012 Dr Demirtzoglou expressed the opinion that the plaintiff’s disability at that time was not permanent, I am satisfied, having regard to the context in which that opinion was expressed (namely with respect to the plaintiff’s presentation in 2005), that the opinion related to the plaintiff’s presentation at that time and not at the time at which he authored his report of 2 August 2012.
25 I make that finding notwithstanding the viva voce evidence given by Dr Demirtzoglou to the contrary[2] for the following reasons:
[2]Transcript 42
· Firstly, it is clear that Dr Demirtzoglou’s comment in his report was being expressed as at 2005, at which time the plaintiff was expressing his concern about his return to work.
· Secondly, the comment was expressed in conjunction with the statement by Dr Demirtzoglou that the plaintiff would continue with physiotherapy. Given that as at August 2012 the plaintiff was not undergoing physiotherapy, this comment by Dr Demirtzoglou was clearly referring to the plaintiff’s situation in 2005 when he was receiving physiotherapy treatment;
· Thirdly, the statement that the plaintiff does not have a permanent disability is inconsistent with subsequent statements by Dr Demirtzoglou as to the plaintiff’s prognosis as at 2012; namely that the plaintiff would always need to be careful with his back; that he was unable to perform heavy lifting work as he had in the past, but that he was fit to perform lighter duties involving lighter weights and work which did not involve repeated bending or twisting of his back.
· These latter opinions, which clearly refer to the plaintiff’s presentation as at 2012, are inconsistent with a statement that the plaintiff presented at that time with no permanent disability but are rather consistent with the opinion expressed by Dr Demirtzoglou in 2013, that the plaintiff’s restrictions to undertake work involving repeated bending, lifting, twisting and prolonged sitting and standing would persist for the foreseeable future.
26 For each of the above reasons I am satisfied that I should interpret the evidence by Dr Demirtzoglou in its totality on this issue as expressing an opinion that whilst as at 2005 the plaintiff was not presenting with a condition which had declared itself as giving rise to a permanent disability, that position had changed by 2012.
27 In a report dated April 2014, Dr Demirtzoglou commented upon the injury suffered by the plaintiff in April 2013, the relevance of which he largely dismissed, in opining that the plaintiff’s symptoms resulted “wholly or predominantly from the incident of 21 March 2005 and his employment leading up to March 2009 although there were back strains prior to that date while performing similar duties”.
28 As at April 2014, Dr Demirtzoglou opined that the plaintiff presented with constant low-back pain and an inability to walk or sit for long periods; an inability to undertake work which required him to lean forward; difficulty sleeping due to the presence of pain, and a requirement to employ Panadeine Forte and valium for episodic severe spasm.
29 Whilst Dr Demirtzoglou opined that the plaintiff was unfit for any duties as at April 2014, he recanted from that position in the course of his viva voce evidence, and I interpret his position on this issue being that, whilst he held the position the plaintiff was largely unable to work as April 2014, he no longer held to that position but took the view that the plaintiff was now fit for lighter forms of work.
The viva voce evidence of Dr Demirtzoglou
30 Dr Demirtzoglou said that he had managed the plaintiff’s condition since 2001. In evidence-in-chief, he said that he maintained the position which he had expressed in his report of 11 April 2014 that the plaintiff’s symptoms, disability and incapacity continue to result wholly or predominantly from the incident of 21 March 2005.
31 In cross-examination, Dr Demirtzoglou was taken to his report of 2 August 2012 in which he had expressed the view that the plaintiff was not going to have permanent problems as the result of his work and that he could continue to be active and continue to work. In expressing the latter opinion, Dr Demirtzoglou agreed that he was opining the plaintiff was unfit for his previous heavy work but he had a capacity for alternate duties. (I understood this expression by Dr Demirtzoglou to be referring to alternate duties in a sense of restricted lighter work). He opined that as at April 2014, the plaintiff was fit to work but “in a modified form”.
32 As to the effect of the 2013 incident:
(i) Dr Demirtzoglou made the following comment:
“There was an aggravation, but there was an underlying problem with his back that stemmed back to 2005.”
(ii) When it was put to Dr Demirtzoglou that the events of 2013 were the major factor in the “deterioration and ongoing deterioration of his symptoms”, he responded:
“I think there was one factor but I can’t say entirely – no.”
(iii) Dr Demirtzoglou said:
· That there had been a deterioration in the plaintiff’s symptoms after April 2013 but that the contribution of the 2013 incident was purely an aggravation of his underlying problem.
· That after April 2013, the plaintiff’s pain was intense and required a modification in his pain relief.
· That the managed with valium and he continued to take sleeping tablets which were not part of his current medication but had been prescribed in the past.
· That the plaintiff’s level of pain prompted more frequent attendances upon Dr Demirtzoglou.
· That the 2013 incident “was purely an aggravation of his overlying problem, but was not a singular defining event in his symptoms”.
33 In re-examination, Dr Demirtzoglou:
· Said that in his report of May 2013, he had opined that the plaintiff’s prognosis was poor – given his prognosis over the past few years – and that it was likely that the plaintiff would have recurrent exacerbations of pain and disability. He said that at the time he expressed that opinion, the 2013 incident was in the forefront of his mind.
·Agreed that as at August 2013, he was prescribing medication in the form of brufen, an anti-inflammatory; Panadeine Forte and Tramal for pain relief and a sleeping tablet for the plaintiff’s use.
·Said that the plaintiff had suffered flare-ups between 2005 and 2009 and that those flare-ups were of a similar nature to the 2013 incident, the latter incident being hard to differentiate from the earlier flare-ups, commenting:
“They were aggravations of his lower back. I don’t think the 2013 incident was, as I said, a defining moment. It was purely revisiting his previous pains that he had.”
·Said that he had noticed that the plaintiff’s flare-ups from time to time had required alterations in the level of the plaintiff’s pain.
34 At the conclusion of his evidence, the following exchange took place between myself and Dr Demirtzoglou.
Q:“Doctor, my role in this process is to fix as accurately as I can the consequences as at today of the plaintiff’s work between 2005 and 2009. In 2013, there was what you’ve described as an aggravation?---
A:Yes.
Q:So, what I would be assisted by is your opinion as to whether, at the present time, in 2014, the plaintiff is presenting with the condition which is largely if not totally sponsored by 2005 – 2009 activity, or continuously influenced by the 2013 incident?---
A:It was the situation between 2005 and 2009. The events that he actually incurred at work in that period of time I think they were the major forces in his pain.”
The medical evidence relied upon by the Defendants as to the effect of the 2013 incident
35 In a report dated 2 December 2013, Mr Battlay comments:
“Mr Haapakoski has had ongoing symptoms in his lower back and these were aggravated in a work-related incident. Although he claims ongoing symptoms since 2004, he has had a recent aggravation in his last job and I think that that the reason why he is currently off work.”
36 Whilst I accept this analysis by Mr Battlay, I am satisfied that Mr Battlay’s analysis of the mechanism of the plaintiff’s current incapacity is that it involves a heightening of the plaintiff’s previous symptoms, in which the plaintiff’s pre-existing vulnerability played a significant part.
37 In my opinion the nature of that vulnerability is highlighted by the analysis undertaken by Dr Cam, who opines that the changes in the plaintiff’s MRI scans between October 2009 and April 2013 (which involve a change in the level of the protrusion of the plaintiff’s compromised L4-5 disc), may occur as the result of a continuation of the initial injury over time, notwithstanding the fact that in this case the progression was more consistent with being associated with the incident on 9 April 2013.
The DVD evidence
38 The defendants relied on a passage of DVD evidence which, in my opinion, was of no probative relevance to the issues for my consideration in this application.
Findings as to the relevance of the 2013 Incident in the Plaintiff’s current presentation
39 In my opinion, Dr Demirtzoglou as the plaintiff’s treating general practitioner, is well placed to opine as to relevance of the plaintiff’s employment with first defendant (and in particular the March 2005 injury), upon the plaintiff’s current presentation. This is particularly so given the duration of the period in which he has been managing the plaintiff’s condition.
40 It is clear that Dr Demirtzoglou regards the plaintiff’s employment with the first defendant during the relevant period as being primarily responsible for giving rise to a condition in the plaintiff’s lumbar spine which:
· Not only took away the plaintiff’s capacity to undertake unrestricted physical work; but also
· Exposed the plaintiff to the risk of periodic exacerbations of the type which he suffered in April 2013.
If there was any uncertainty as to the position of Dr Demirtzoglou before he gave evidence, it was resolved by his evidence, and I find his position in this respect to be persuasive, particularly when it is considered in the light of:
· the comments made by me as to the reports of Dr Battlay and Mr Cam above; and
· the findings of the magnetic resonance imaging studies undertaken upon the plaintiff’s lumbar spine in 2009.
41 Whilst I am satisfied:
· that following the 2013 incident, the plaintiff suffered an increase in his symptoms as set out in his affidavit and that those symptoms would not have developed at that time but for the occurrence of that incident; and
· that I should exclude those symptoms and their consequences when fixing the consequences of the work process the subject of this application;
I am equally satisfied that the consequences to the plaintiff of the 2013 incident were of greater significance, both in terms of pain and loss of capacity, by reason of the fact that the plaintiff presented immediately prior to the 2103 incident, with an extremely vulnerable back.
42 In making the statements the subject of the last preceding paragraph, it is appropriate that I make clear the position which I am satisfied I should adopt as to the relevance of the 2013 incident in this application, namely that:
(i) I should exclude any pain and suffering consequences which arise in association with that incident in assessing the consequences to the plaintiff of the injury and impairment associated with the work process the subject of this claim; however
(ii) I should take into account the 2013 incident as being an example of the consequences to which the plaintiff is now permanently prone by reason of his vulnerability to injury associated with the injury and impairment caused by the work process the subject of this claim.
Findings as to the consequences associated with the injury and impairment caused by the work process the subject of this claim
43 In fixing the consequences set out below, I do so on the basis of the findings by Mr O’Brien, Mr Brownbill and Dr Demirtzoglou as to the plaintiff’s presentation to them prior to the 2013 incident in so far as each of those doctors commented on a condition which they considered to have stabilized as at that date.
44 I am satisfied that:
(i) The effect upon the plaintiff of the impairment of the function of his lumbar spine associated with the first defendant’s work processes the subject of this application has been to cause him to lose his capacity for unrestricted work. Whilst the plaintiff subsequently retained a capacity for restricted duties of a lighter nature, the description of the activities which the plaintiff was fit for prior to the 2013 incident (which I am satisfied is appropriately described by both Mr Brownbill and Mr O’Brien[3]), in my opinion imposed a very considerable restriction upon the plaintiff’s employment prospects having regard to his:
[3] The evidence satisfies me that restriction in the plaintiff’s capacity for work and activity as described by Mr Brownbill and Mr O’Brien in this respect prior to the 2013 incident was permanent.
· Limited education;
· Work experience (which has been limited to undertaking work of a physical nature); and
· Presentation to prospective employers, which in my assessment is that of an uneducated and simple man.
I am satisfied that this loss to the plaintiff is a very significant one and that the plaintiff’s ability to work in an unrestricted capacity was a very important aspect of the plaintiff’s life. In making this finding I rely not only on the plaintiff’s evidence to this effect but also upon his repeated statements to his general practitioner as to his desire to continue his employment and to carry out the tasks undertaken by his fellow workmates.
As I have observed earlier, given the level of the plaintiff’s symptoms during the period between March 2005 and the 2013 incident as described in his evidence (which I accept as being accurate), I am satisfied that his continued employment during that period was largely due to his stoicism, his own motivation and the importance of his work to him.
(ii) A significant consequence for the plaintiff of the impairment the subject of this application has been to render him extremely vulnerable to periodic exacerbations of his condition, the effect of which may:
· On the one hand, involve short-term increases in symptoms and incapacity of the type encountered by the plaintiff prior to the incident which occurred in April 2013; and
· On the other hand, involve more serious consequences such as those which arose by reason of the April 2013 incident. That the latter consequences arose in circumstances in which the plaintiff was undertaking an everyday activity which might be involved, with modest variation, in numerous physical activities which the plaintiff might undertake on a daily basis, illustrates in my opinion the vulnerability present in the plaintiff’s spine by reason of the injury the subject of this application.
In my opinion the existence of a vulnerability of that type is a consequence appropriately described as being very considerable for a man whose work and pastimes involve, exclusively, activity of a physical nature in that such a vulnerability in turn exposes the plaintiff:
· To the probability of repeated exacerbations of his condition; and
· To the ever-present prospect that his ability to work will be compromised, as it has been in the past, by absences from employment, or loss of employment, or the imposition of further restrictions upon the type of employment which the plaintiff is fit to undertake.
(iii) The plaintiff, when in employment, is likely to experience the difficulties he encountered as described in his affidavits of his daily work exhausting him such that he is required to rest at night and on the weekends in order to maintain his capacity for employment. I am satisfied that in these circumstances the plaintiff is likely to be denied the enjoyment associated with the simple physical activities which formed part of his life, such as camping, motorcycle riding or engaging in sport with his children.
(iv) Whilst the plaintiff’s symptoms of pain do not require him to ingest considerable amounts of medication, I am satisfied that it is likely that in the future the pattern of his past use of medication will continue and that he will probably require recourse to significant medication to deal with any exacerbations of his symptoms, and modest medication to maintain his condition in the absence of such exacerbations.
(v) The plaintiff’s symptoms have had the effect of changing the plaintiff from an active man, for whom the capacity for unrestricted physical activity both in his work and recreation was a fundamental feature of his life, to a person who must now avoid simple daily activities which were for him no problem prior to the onset of his work-related condition. The result being that the plaintiff now generally avoids any form of moderately strenuous activity and as such is precluded from the physical activities he undertook with his children and friends which he described in his evidence.
45 The task which I am required to perform in an application of this nature is a difficult one. It requires me to make a value judgment as to whether the plaintiff's impairment, when considered in comparison with other cases in the range of possible impairments, is appropriately described as being “more than significant or marked, and as being at least very considerable”. Whilst I am of the opinion that the plaintiff’s impairment falls at the borderline of cases which could be so described, it is my opinion that it is appropriate to so categorise his impairment.
46 For the reasons set out above I am satisfied that the plaintiff is entitled to the leave sought in this proceeding.
47 I will hear the parties as to the precise form of the order which should be made in this instance and also on the issue of costs
- - -
0
0
0