Habib v Locin Security Services Pty Ltd
[2010] VCC 1964
•8 July 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-04897
| USAMA HABIB | Plaintiff |
| V | |
| LOCIN SECURITY SERVICES PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4, 7 & 8 June 2010 |
| DATE OF JUDGMENT: | 8 July 2010 |
| CASE MAY BE CITED AS: | Habib v Locin Security Services Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1964 |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application; s 134AB Accident Compensation Act 1985; whether test for obtaining leave in respect of loss of earning capacity met.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Richards SC | Maurice Blackburn |
| With Mr J. Gorton | ||
| For the Defendant | Mr C. Miles | Wisewoulds |
| HER HONOUR: |
1 Mr Usama Habib suffered injury to his cervical spine in an incident on 16 April 2004 during the course of his employment with the defendant. In order to claim damages in respect of that injury, he applied to the court for a finding that he suffered a “serious injury”, both as to pain and suffering and as to pecuniary loss within the definitions and requirements of s.134AB of the Accident Compensation Act 1985. His case primarily relied on injury to his neck as constituting permanent serious impairment of the function of the cervical spine, under part (a) of the definition of “serious injury”[1]. Alternatively, his case was that as a result of ongoing pain from his neck injury he suffered an Adjustment Disorder with depressive mood and anxiety which should be found to constitute a serious injury, being permanent severe mental or behavioural disturbance or disorder under part (c) of the definition.
[1] S.134AB(37)
2 In his closing address, counsel for the defendant conceded that the injury to the plaintiff’s neck or cervical spine on 16 April 2004 would constitute a “serious injury” under part (a) of the definition for pain and suffering[2]. The defendant continues to dispute that there was a “serious injury” as to loss of earning capacity, whether under part (a) or part(c) of the definition.
[2] T 123,lines 15-19
3 In response, counsel for the Plaintiff stated that the plaintiff did not persist with the claim under part (c) in respect of pain and suffering[3].
[3] T 152,lines21-24
4 The remaining issue, therefore, is whether the plaintiff can establish that either his cervical spine injury or his adjustment disorder have caused such permanent loss of earning capacity as to entitle him to claim damages for such losses.
5 To obtain leave to bring proceedings for damages in respect of loss of earning capacity, the plaintiff must satisfy the narrative tests, namely:
- in relation to his loss of cervical spine function, that it can be fairly described as “more than significant or marked” and “at least very considerable” when compared with the range of possible other impairments of a body function[4];
or
- in relation to his adjustment disorder, that it can be fairly described as “more than serious to the extent of being severe” when compared with other cases in the range of possible mental or behavioural disturbances or disorders[5].
On either basis, and more particularly, he must satisfy the court that at the date of the hearing of this application he has a permanent loss of earning capacity of 40% or more[6], measured under the “formula” of comparing his gross income from personal exertion which he presently is or is capable of earning in suitable employment, with the gross annual income that he was earning or was capable of earning had the injury not occurred, the latter assessed by considering his earnings in the 3 years before and 3 years after the injury[7].
[4] S 134AB(38)(c)
[5] Ss 134AB(38) (d)
[6] Ss 134AB(38)(e)
[7] Ss 134AB(38)(f)
Plaintiff’s background and personal circumstances
6 Mr Habib is now aged 43. He was born in Egypt where, after finishing school, he obtained a Bachelor of Agricultural Science. In 1994 he emigrated from Egypt to New Zealand, where he undertook a Diploma of Wool Science and Technology, and also worked. In 1998 he returned to Egypt where he met and married his wife, and they then returned to New Zealand together. In 2001 they immigrated to Australia. They have two children, now aged about 10 and 9.
7 On arriving in Australia Mr Habib was keen to obtain employment to support his family. He undertook what jobs were available. In 2002 he obtained employment as a security guard with Locin Security Services Pty Ltd, based at the premises of Olex Australia Pty Ltd. He regularly worked the 4pm to midnight shift, entitling him to a shift allowance and some overtime. His duties were for the majority of his time confined to the guardhouse, where he would monitor and check entry and exit of vehicles, mostly from a seated position. In addition, up to about 30 per cent of his time was spent on patrol duties around the site, sometimes on foot but it was usual to ride a supplied tricycle. It is common ground that his duties were relatively light in physical terms.
8 His pay varied according to the exact amount of overtime worked, and included a shift allowance. His average gross pay as at April 2004 was, according to the defendant’s claim form, approximately $780 per week[8], including $207 of regular weekly overtime – “ordinary hours” being 38 per week.
[8] Exhibit J
9 His gross annual earnings from this employment for the financial years ending June 2003 to 2007[9] ranged from approximately $40,000 to $45,500, the higher amounts achieved in the 2 years following his injury.
[9] ie 2 years before and 3 years after the injury – for ss 134AB(38)(f).
10 Although not his first language, Mr Habib’s understanding of English is very good.
The incident and its aftermath
11 On 16 April 2004 Mr Habib was performing regular patrol duties at the Olex Cables premises after dark. There had been a number of break-ins and he was paying attention to the perimeter fence as he rode a tricycle on a path inside that fence. He was holding a torch in his hand aimed at the fence, and watching the fence, and in the absence of other lighting did not notice a metal cradle which had been left on the pathway, and his tricycle struck it. This caused the tricycle to stop suddenly, throwing him forwards over the handlebars of the tricycle. He did not in his words “flip over” the handle bars, and did not fall to the ground, but jerked quite violently as he was thrown forwards as the tricycle stopped suddenly. This has been interpreted by several doctors as a “whiplash” motion.
12 Mr Habib says, and I accept, that he felt immediate pain in his neck and upper back at the time of this incident, and that as time went by the pain also seemed to travel into his left shoulder and arm.
13 He reported the incident to his manager and was referred to Dr Roy Wilkinson who provided medical services to the company. Dr Wilkinson saw the plaintiff on 23 April 2004, and the history he took of the injury included that Mr Habib was riding his bike on 16 April, that his head was turned to the left at the time, that he did not fall off the bike but felt a neck strain and since then had had neck and upper back pain. Deep Heat and Voltaren tablets had not helped. At that stage there was no pain down the arms and no numbness, tingling or weakness in the arms or legs. On examination there was restricted flexion, extension and rotation of the neck, but not of the back, and there was tenderness in the upper cervical spine and in between the shoulder blades. He was referred for physiotherapy. He was certified for normal duties, although Mr Habib says that the doctor initially recommended two weeks of lighter duties but he asked to remain on normal duties as he did not want to cause problems for the employer as he liked working there. I accept his evidence about this.
14 Mr Habib did attend physiotherapy at first, but he preferred to attend a chiropractor, whose records[10] indicate that he did so between 7 May 2004 and 29 May 2006, at times weekly or fortnightly but overall quite regularly, receiving treatment for his neck. I accept his evidence that he felt ongoing pain in his neck and upper back or between the shoulder blades, but he did not want to lose or jeopardise his job, and kept working without time off or complaint. As it was a relatively light job he was able to do so, especially because he found it a friendly environment, and he was able to move around from the seated position in the guardhouse to ease his discomfort, even lying on the floor at times if necessary.
[10] Exhibit
15 In June 2005 he fell down a set of stairs at work, causing injury to his left knee which immediately swelled up, required transfer by ambulance to hospital for treatment, and on which he subsequently underwent arthroscopic surgery in September 2005. He returned to work within two weeks of that surgery as he says he was afraid of losing his job. Although there was cross-examination as to whether he felt more pain in his neck from this incident, I accept him as truthful when he says that his main attention was on his knee and he cannot now recall whether he specifically felt any further pain in his neck. In the defendant’s closing submissions it was not argued that this incident caused or substantially aggravated the neck injury the subject of this application.
16 In mid 2006 Mr Habib used accumulated annual leave and took his family overseas, to Egypt, for approximately three months. He says that the pain and restriction in his neck continued while on leave, but he did not have treatment during that time. On his return to Melbourne he returned to his previous employment with the defendant, but in October 2006 accepted a job offer to work directly for Olex, the company on whose premises he worked as a security officer, as a machine operator. His letter of resignation to the defendant dated 12 October 2006 gave four weeks notice, and graciously acknowledged his appreciation for the opportunity to work there. I am satisfied that his reason for leaving was to take up the opportunity of a higher paying job. Unfortunately, after approximately a month, he was terminated from that employment - he says without explanation, but as he was on a three months’ trial before becoming permanent there was nothing he could do about it. He asked for his job back with the defendant, but it was not available at that stage.
17 In November 2006 he started consulting a new general practitioner, Dr Amir Hanna, whom he still sees and who had supplied reports and gave evidence during the hearing.
18 It was coinciding with the period of his moving to work for Olex that, due to complaints of ongoing neck pain and left arm symptoms, he was sent by Dr Hanna for a CT scan of his cervical spine. Due to its report[11] he was then sent for an MRI scan, and these tests confirmed significant degeneration in his cervical spine, and in particular that at C6/7 there was a large left postero- lateral disc prolapse causing moderate narrowing of the left side of the cervical canal and marked narrowing of the left C6/7 intervertebral foramen with displacement and compression on the exiting left C7 nerve root. I note that an examination on behalf of the defendant in December 2006, by occupational health specialist Dr Maurice Wallin, recommended referral to a neurosurgeon or orthopaedic surgeon for assessment for treatment because of what he described as demonstrated cervical disc pathology.
[11] Exhibit C – CT scan 29/11/06
19 Mr Habib was referred by Dr Hanna to orthopaedic surgeon, Mr de la Harpe, who recommended surgery to relieve the pressure on the C7 nerve. This recommendation was confirmed by Mr Peter Nelson who examined the plaintiff at that stage for the defendant.
20 On 7 July 2007 Mr Habib underwent a discectomy and fusion at the C6/7 level. The operation was technically successful, and there was noted improvement in his left arm pain, although there was ongoing pain in his neck, which Mr de la Harpe confirmed was always likely. Mr de la Harpe found him anxious and guarding himself unnecessarily in the following months, and conducted further scans to check the soundness of the fusion and degenerative changes to other parts of his spine, but these reflected a good operative result and no other significant change.
21 Despite what was clearly his considerable anxiety about whether or not he could work again, in late November 2007, Mr Habib was offered back his previous security guard job with the defendant, wanted to take it up, and this was approved by his doctors, with Dr de la Harpe issuing a certificate of capacity for his full duties. His duties were the same as before.
22 I am satisfied that Mr Habib, although still suffering pain and stiffness in his neck and anxiety about his condition and worried as to whether he would work again, was strongly motivated to work. He regarded the defendant’s operation as a friendly atmosphere, where he knew the people and the work, and he could move around inside the guardhouse including doing exercises and rolling or lying on his back from time to time to relieve his pain. He agrees that he could cope with the work on this basis, although he also says that if the pain had become as bad as it has now he probably could not have continued.
23 That he continued to experience pain and stiffness in his neck is conceded by the defendant, and is reflected in visits to Dr Hanna over the following months at which he complained of such pain and was prescribed digesics to relieve the pain, as well as medication to help him sleep. I accept the plaintiff’s evidence that when he jarred his neck and told his boss he was told that did not want to hear this.
24 In April 2008 due to the defendant losing its contract with Olex Cables to provide security services there, the plaintiff was retrenched with other staff of the defendant at those premises. He was interviewed by the new contractor but was not accepted by it for ongoing employment at that site or anywhere else. He has not worked since.
25 He describes suffering ever since from ongoing pain in his neck and upper back, always present to some degree and at times becoming “humungous”[12] such that he cannot describe it. The symptoms in his left arm have also recurred, at late last year what he calls the ‘electric movement” on the upper body and on his left arm[13] feeling like a contraction pulse in the back of his upper arm above the elbow and sensation down to the back of his hand. To relieve it he lies down on his back on the floor. He finds it comes on if he sits for a long time. He has been prescribed Lyrica by Dr de Graaf for the pain, but the dose has been increased and makes him dizzy in the morning so he has to watch his balance.
[12] T 27, 8-11
[13] T 64.19-21
26 The defendant’s concession that the consequences to him of the injury to his cervical spine satisfy the test for a “serious injury” as to pain and suffering – that is permanent serious impairment of a body function when compared with other possible impairments to body functions - is in my view clearly warranted.
Efforts to find further work or retrain
27 Mr Habib freely acknowledges that he has a Bachelor of Agricultural Science degree from Egypt, retrained in New Zealand and had experience in a supervisory role there, and that he has computer skills. He says and I accept that during 2009 he searched for jobs in customer service, quality control, and supervision. He says that he applied for a number of such jobs and was interviewed for some and he thought the interviews went well, but he did not get offered the jobs and he attributes that to the fact that on filling out forms he had to disclose 2 work injuries in 2 years, both resulting in operations, and he never heard back.
28 He has also explored the prospect of retraining for other types of work – he would like to do a course to become a licensed draftsman, thinking he might be able to work part-time from home – in his comfort zone physically so far as his injury is concerned, assisting people with gaining council approval for renovations. The defendant would not approve that course although he said that he had prospects of starting in July and it would be government funded. He chose it because it only needs one year, but that would be full-time and he would not know until he started whether he could cope with a full-time course.
29 The very week of the hearing Mr Habib was doing a pre-employment course for estate agent representatives, run by REIV. I accept his explanation that he was doing this course because, being a 5 day course, it was the only course he could find as possibly suitable for him and short enough for him to obtain approval for the VWA to pay. I accept his evidence that while he could cope with the content of what was being taught and examined, he needed to take rest breaks during the course of the day by moving away from the classes because of his pain. Further, I am satisfied that even if he could find an employer he would not be able to sustain any significant productive workload as a real estate sales or leasing representative, because that would require either sustained hours in an office, or more likely attending appointments for inspections at properties, and not flexible enough to allow him to relieve his neck or arm pain as it arises.
Medical Evidence
30 The plaintiff’s general practitioner since November 2006, Dr Hanna, wrote reports and was called during the hearing to be cross-examined. He reported in September 2008 that Mr Habib had a partial disability and the duration was unpredictable and could be permanent with fluctuations. I April 2010 he reported that Mr Habib was suffering chronic pain and tightening around his neck post operatively and his continuing mental stress and anxiety was exacerbating all those symptoms. His opinion was that Mr Habib was totally unable to do any kind of his pre-injury duties or heavy lifting or manual labour, and although keen to return to work there was concern about the viability of that given his low pain tolerances.
31 On giving oral evidence Dr Hanna maintained his opinion that although Mr Habib wants to work, medically he is unable to do so. He was cross- examined about whether his original impression was that Mr Habib had actually fallen off the bike to the ground in the original incident, but in my view this is irrelevant because the defendant (and all of its medical advisers) do not question that the original incident was a significant contributing factor to his cervical disc prolapse and need for surgery. He confirmed that there is an ongoing psychological contribution to his perception of pain, and that his condition definitely worsened when he lost his job, but says that it was only partly psychological and also partly physical causing increased pain and stiffness, and that is why he was referred for more MRIs and CT scans and back to specialists, including Dr Kronborg and Mr de la Hapre, as well as to a psychiatrist. He maintained his view that the symptoms have got worse. He says the MRIs vary but none of them was normal. He did at one stage say they showed deterioration but subsequently agreed to defer to Mr de la Harpe’s view on that. Asked specifics about Mr Habib’s ability to do a course or to work, he said he could maybe do some hours with breaks and with day breaks in between, but did not think he could do a whole day of 7 hours, and also said he might be able to work for a day but could not do that successive days. He said Mr Habib could not do a regular job but could probably do a few hours maybe at home, not daily and overall maybe 3 hours every second day. He could not do a job including use of his left arm or sitting or standing for too long.
32 The defendant submits that Dr Hanna’s opinion should be considered altogether too sympathetic to his patient’s case, and points to Dr Hanna underestimating what even now the plaintiff says he can do eg in attendance all day at the REIV course, and in seeking to find work of up to 3 hours a day 5 days per week and not only on alternate days. I regard Dr Hanna as taking a sympathetic approach to his patient’s overall condition and degree of impairment, but I do not discount its weight for that reason because he sees Mr Habib regularly and has not simply accepted unquestioningly his patient’s version of his symptoms, but rather says that his patient is more optimistic about his ability to work than his medical condition warrants.
33 Mr David de la Harpe, orthopaedic spinal surgeon, in reports and in his oral evidence (having been required to attend for cross-examination) confirmed the history of his treatment of Mr Habib from referral in January 2007, his diagnosis of a cervical disc prolapse causing cervical radiculopathy, and recommendation of surgery to remove ongoing pressure from the nerve, there having prospectively already been permanent damage to the nerve. He confirmed that at first the plaintiff was understandably nervous about the surgery, but returned some months later having decided to proceed, and a routine discectomy and fusion was performed on 7 July 2007.
34 When seen post operatively in September 2007, he had thought the chances of Mr Habib getting back to work quite poor, but agreed to support him when he was keen to take up the offer of his old job in November 2007, and agreed to certify him as fit for those duties full-time. His report dated May 2008, was written not having seen Mr Habib since November 2007, so without an examination of his condition shortly after he was retrenched.
35 Mr de la Harpe confirms that the ongoing scans show no problem with the physical result of the surgery, and no particular deterioration at the operation site or elsewhere in the cervical spine since the scans of late 2006, although there is enough degeneration shown on the latest MRI to account for neck pain. His opinion is that Mr Habib had had neuropathy for nearly 3 years before the surgery, and that pressure on the nerve for three years made the chances of permanent damage to the nerve quite high, and a cause of ongoing pain and neurological symptoms.
36 As to Mr Habib’s capacity for work, he thought he has a residual capacity for work but only for sedentary duties and limited in neck movements, especially those of looking up. Long hours at a computer would put strain on his neck but his old job would not be a danger to his neck, the capacity to do it being a question of tolerance of the pain that he continued to suffer from nerve damage caused before the surgery due to the long period of nerve compression.
37 Mr de la Harpe thought it not unreasonable for Mr Habib to start back at some work for 3 hours per day on alternate days. He thought given the duration of pre-surgery symptoms and post-operative symptoms that the prognosis is quite poor for returning to full-time employment, and that the upper limit in no more than half time.
38 His view was that no-one on as much medication as the plaintiff has been put through on his pain management plan with Mr de Graaf could be employed where they need full mental alertness. The Lyrica had alleviated neurological pain in the arm, and he was taking analgesics for localized neck pain.
39 couple of weeks after his retrenchment from the defendant’s employment. He
found him anxious about his future employment and feeling his symptoms
were quite severe and incapacitating. Mr Kudelka’s opinion was that MrMr Peter Kudelka examined Mr Habib for the defendant in May 2008[14], a He diagnosed the injury as an aggravation of pre-existing but asymptomatic degenerative changes throughout the cervical spine, thought the condition not resolved and still materially contributing to his incapacity for work. He said that the medical reason for the persisting symptoms was that Mr Habib has multiple areas causing his symptoms, only one of which had been treated surgically i.e. the C6/7 level.
[14] Exhibit N40 The defendant also had the plaintiff examined by Mr Brendan Dooley[15], for an impairment assessment. Mr Dooley found (in December 2008) on examination of the left arm signs of radiculopathy affecting the 7th cervical nerve root, with weakness in the triceps muscle and absent left triceps reflex. He confirmed the diagnosis of a large disc prolapse at the C6/7 level with neural compression, and of good position after fusion surgery. He described the prognosis as excellent with the long term outlook good, but said there is a possibility that the plaintiff could develop disc prolapse above or below the area of the fusion, particularly if he has further trauma. He did not specifically address capacity for work.
[15] Exhibit 941 Mr Michael Shannon most recently examined the plaintiff for the defendant[16] . Although he thought there to be a psychological reaction to the cervical injury, he said that irrespective of the psychological reaction Mr Habib is limited in his work capacity. He thought he had a capacity for light work as a static security guard provided it avoided confrontation, and for other work not involving heavy lifting.
42 Dr Malcolm Brown[17] thought the plaintiff had capacity to work as a security guard, provided there was no restraint work, and for any other work not requiring overly strenuous tasks. As he described the plaintiff as having been successfully treated with surgery and having only “some continuing minor symptoms” which appear to be aggravated by loss of neck muscle tone, I give his about capacity for work very limited weight, because I am satisfied that the plaintiff is suffering from significantly greater ongoing symptoms than Dr Brown found.
[16] Exhibit 11 [17] Exhibit 10
Whether the plaintiff is incapable of earning at least 60% of his pre-injury earnings.
43 The plaintiff’s case is that he has been totally incapacitated for work since his retrenchment, and that he is likely to remain so for the foreseeable future, or at most able to work up to 15 hours per week.
44 The defendant argues that the fact that Mr Habib was able to return to his full pre-injury employment duties, not only for more than 2 years after the original injury to his neck, but also for some 5 months after his recovery from the surgery on his neck, proves that he has not suffered any significant earning incapacity, and certainly not the requisite 40% permanent loss under the formula that must be applied.
45 It argues that he is still capable of doing the job that he did with Locin Security, which was admittedly a light job, and the test to be applied must disregard the employment market and whether he is likely to actually obtain such a job again; the fact that the job continued to exist – through the new contractor to Olex – is sufficient to prove that it is a job that exists and of which the defendant argues he has remained capable. The defendant argues that any incapacity he suffers for that job or for a range of other jobs, must be due to psychological symptoms which are not to be taken into account on a claim based on part (a ) of the definition, and which do not reach the degree of permanent severity to satisfy part (c) of the definition.
46 The defendant points to the lack of visible deterioration in the plaintiff’s cervical spine – as recorded through repeated MRI and CT scans - as supporting its contention that physically nothing has changed since he was last working, post-operatively, full- time for the defendant.
47 The formula under ss 134AB(37)(f) requires an assessment of a figure that most fairly represents the plaintiff’s “without injury” earnings based on the annual gross earnings in the 3 years before and 3 years after the injury. In this case I find that that figure should be $45,000, notwithstanding that that is an amount actually earnt by the plaintiff after his injury.
48 In the present case it is not possible to assess an actual gross amount that the plaintiff could presently be earning because he has not actually worked since April 2008 and I have not been provided with any figures of other workers or even of what a full-time security guard would now be paid. I can infer on the balance of probabilities that a full-time security guard doing similar duties to the plaintiff’s former job – and doing them on shift rates and with some overtime – would be earning no less than $45,000 gross per annum.
49 The real issue in this case is not an arithmetic calculation, but an assessment of the evidence as to the plaintiff’s current earning capacity or what it could be after reasonable efforts at retraining.
50 Having heard and observed Mr Habib being cross-examined, I have little hesitation in accepting him as a truthful and reliable witness. I accept that he has become very intense and focussed on his injury and his circumstances, and that is understandable given his situation. Although English is not his first language, he explains himself very well. He at times took care to qualify or clarify questions, but also made several concessions that I would not expect of someone exaggerating or trying to overstate his case.
51 Not only do I find him credible, I am satisfied that he genuinely has tried his best to work ever since his injury- succeeding because of this motivation while he had the job with the defendant, and still trying to think of what might potentially offer him future remunerative work. His motivation is to support his family (as his wife did not work until last year), and also because he realises that he has become very depressed focusing on his injury and the hardship to his family, and he thinks he needs the distraction of working.
52 I accept Mr Habib’s overall descriptions of the levels of pain he suffers, and of other symptoms, and while I do not doubt that his psychological condition at times amplifies his perceptions of those, and undermines his daily ability to cope with them, I am satisfied that it is the original organic injury to his cervical spine that is the ongoing cause, having compressed the nerve for long enough to cause permanent damage, and having activated symptoms of pain at several levels of his cervical spine only one of which has undergone surgery. In my view the opinions of Mr de la Harpe and earlier of Mr Nelson support this conclusion and explain why the consequences of the original injury are continuing despite the lack of significant deterioration in the spinal structure as reflected on scans.
53 I am satisfied that Mr Habib has made all reasonable attempts to find other employment since April 2008. I am also satisfied that he has tried to seek out possible retraining[18]. I am satisfied that Mr Habib has the intelligence and understanding of English that would enable him to pass various courses or retraining for some types of office-based or even home-based occupation, or as he freely concedes, he could perform the tasks required in quality control or a supervisory capacity. However, I am also satisfied that he continues to suffer symptoms of severe enough neck pain and left arm radiculopathy that would prevent his ability to work in a sustained manner at any of these jobs. When the effects of medication are added to this condition, interfering with concentration or as Mr de la Harpe says interfering with alertness, his capacity for even supervisory or quality control work is further diminished.
[18] S 134AB(37)(g)
54 The defendant relies on the opinions of several doctors that the plaintiff is capable of doing his pre-injury duties or other static security work not involving physical confrontation or the restraining of people. Mr Habib agreed that in his job with the defendant he was not meant to try to physically restrain an intruder but to notify others, however he said and I accept that if suddenly or unexpectedly confronted by an intruder he might need to move quickly and awkwardly just to avoid such a person, as he recalls doing on one occasion when surprised by an intruder, and any such sudden awkward movement would now aggravate pain and could put his cervical spine at further risk. For this reason I do not consider the theoretical capacity for static security work realistic.
55 Mr Habib talks of aiming to work 3 hours per day, five days per week. I am not satisfied that he could currently sustain an employed job doing that, nor that he is likely to be able to sustain it in a commercially realistic setting in the future. I am not prepared to find that he will be permanently incapable of doing any remunerative work, especially if he could indeed find a remunerative occupation he could do from home. The problem with all such occupations is not just hours of pain free movement in the day, but being sufficiently reliable in the timing of work to satisfy customers or clients.
56 Having regard to Mr de la Harpe’s opinion, that at most he is likely to reach the capacity to work half time, and the motivation of Mr Habib himself, I am satisfied that if were to be able to establish himself in some other remunerative occupation in the future he could quite possibly establish a part- time occupation, but that it is unlikely that he could sustain on average more than about 3 hours per day or 15 to 20 hours per week.
57 In light of that finding I am satisfied that he will not regain the ability to earn more than 60% of his pre-injury earnings, as although rates of pay for the occupations he might achieve may be higher than for a security guard, his pre-injury earnings included a significant amount for shift work and overtime, being for a minimum of a 38 hour week, and at an average 15 hours per week on current rates of earnings he would fall well short of 60% of $45,000.
58 For these reasons I am satisfied that the plaintiff is incapable at present or for the foreseeable future of earning as much as 60% of his pre-injury earnings, and that he therefore has established a permanent loss of earning capacity of at least 40%, constituting a serious injury as to pecuniary losses.
Psychological injury
59 The plaintiff abandoned reliance on his claim that any mental or behavioural disturbance or disorder constituted a serious injury as to pain and suffering, but pursued it as an alternative basis to establish that he reached the level of a permanent loss of earning capacity of at least 40%.
60 Professor Mendelson’s opinion was that the plaintiff did not have any specific diagnosable mental illness[19], and therefore no loss of work capacity due to any diagnosable mental disorder or psychiatric impairment.
[19] Exhibit 761 Each of the other psychiatrists who examined the plaintiff did diagnose an adjustment disorder, with depressive symptoms; Drs Adlard and Stern said it was with mixed anxiety and depressive symptoms, and Dr Illesinghe said with depressive symptoms and a range of dysfunctional behaviours.
62 Dr Adlard[20] considered there was an adjustment disorder as a reaction to the injury to his neck, but not a separate Pain Disorder causing amplification of physical pain. Dr Adlard considered the symptoms clinically significant and impairing day to day life and social functioning, but that his adjustment disorder did not impair his ability to work, the limitations of which were dictated by his physical injury to his neck. Dr Stern[21] related the adjustment disorder to the injury on 16 April 2004 and the continuing pain, and said that from a psychiatric aspect alone he was fit for all work including his pre-injury duties, although his psychiatric symptoms had reduced his social and leisure activities.
[20] Exhibit 8[21] Exhibit 1263 Associate Professor Illesinghe[22], who has been treating the plaintiff since April 2008, diagnoses a chronic adjustment disorder with depressive mood as a result of his work injuries. He describes minimal improvement over a two-year period however predicts that with appropriate rehabilitation he would be able to gain further work capacity, and recommends further supportive psychotherapy. He says he expects further improvement but that it is difficult to predict whether he will regain full functional capacity to his pre-injury level.
[22] Exhibit G64 I am satisfied from these opinions, and Mr Habib’s own descriptions of his moods, that he has been suffering from an adjustment disorder with symptoms of depression and anxiety, as a reaction to the injury to his cervical spine, the ongoing symptoms especially of pain, and the predicament in which he has found himself of being unable to work and support his family. I am satisfied however that this is not a case where the psychological reaction has overtaken the primary cause of his incapacity for work which remains ongoing symptoms and their consequences of the physiological injury to his spine.
65 Further, while symptoms of anxiety and depression may have added to his inability to work, the only medical opinion supporting there being any incapacity for work resulting from his psychological condition alone is that of Dr Illesinghe. His opinion is that there is likely to be improvement with more rehabilitation and treatment, and although he says he can’t say whether his patient will regain full functional capacity to his pre-injury level, his opinion does not support the likelihood that his present level of incapacity for work is permanent.
66 Accordingly, I am not satisfied that the plaintiff meets the test for serious injury as to pecuniary loss based on his psychological condition – his adjustment disorder.
Conclusion
67 For the reasons outlined, I am satisfied that the plaintiff suffered injury to his cervical spine as a result of an incident during his employment on 16 April 2004, and that the consequences of that injury constitute a serious injury both as to pain and suffering and as to loss of earnings. I propose to grant leave to him to bring a claim for damages in respect of that injury for both pain and suffering and pecuniary loss damages.
IN THE COUNTY COURT AT MELBOURNE
SITTING BEFORE HER HONOUR JUDGE COHEN
LIST OF EXHIBITS
| Trial commencing on: | 4 June 2010 |
| USAMA HABIB v. LOCIN SECURITY PTY LTD (CI-09-04897) |
| Number and | Short Description of Exhibit | Tendered by |
| Identifying Mark | Date | Time |
on Exhibit
A Copy group certificate for Plaintiff 4 June 2010 3:21 period ending 30/06/06 B Affidavit of plaintiff sworn 11 Plaintiff 4 June 2010 3:40 June 09 C Radiology and scans Items 5- Plaintiff 4 June 2010 3:40 15 includes MRI reports dated 8 Dec 2006, 19 Feb 09, 18 Aug 09, 3 May 2010,
CT Scan 29 Nov 06, 16 Oct 07, 30 Oct 07, 10 Oct 09, x rays 9 July 07, 9 Dec 09, scan of cervical spine 10 Nov 07 (court book 24-40)
D Reports of Dr Hanna (court Plaintiff 4 June 2010 3:40 book 41-46) dates 23 Sep
2008 and 19 April 2010E 2 reports of Dr de la Harpe Plaintiff 4 June 2010 3:40 (court book 47-51) F Report of Dr De Graaff 1 June Plaintiff 4 June 2010 3:40 2010 (court book 52-55) G Report of Dr Illesinghe dated Plaintiff 4 June 2010 3:40 1 June 2010 (court book 55a
& b) and 23 March 2009H Report of the Western Health Plaintiff 4 June 2010 3:40 Sunshine hospital 30 May
2010 (court book 55c-e)J Claim forms of the plaintiff and Plaintiff 4 June 2010 3:40 defendant (court book 56-60)
12th & 16th May 04K Clinical records of Dr Peter Plaintiff 4 June 2010 3:40 Mitrevski (court book 61-70) L Clinical notes of Dr Hanna Plaintiff 7 June 2010 4:00 from 21 Nov 06 to 2 Feb 09 M Summary of plaintiff’s income Plaintiff 7 June 2010 4:01 tax assessments 2003-2009 N Report of Dr Peter Kudelka Plaintiff 7 June 2010 4:08 dated 8 May 2008
| Number and | Short Description of Exhibit | Tendered by |
| Identifying Mark | Date | Time |
on Exhibit
1 Photograph of white tricycle Defence 4 June 2010 12:47 2 Copy letter of plaintiff to first Defence 4 June 2010 2:22 defendant dated 12/ /2006 3 Copy certificate of capacity in Defence 4 June 2010 2:30 respect of plaintiff dated 12
Nov 074 Report of Dr Wilkinson dated Defence 4 June 2010 2:30 20 June 2004 5 Report of Dr Wallin 20 Dec Defence 7 June 2010 4:05 2006 6 Reports of Mr P Nelson dated Defence 7 June 2010 4:05 5 march 07 and 29 March 07 7 Report of Prof Mendelson 7 Defence 7 June 2010 4:05 May 2008 8 Report of Dr Adlard 3 Dec 08 Defence 7 June 2010 4:05 9 Report of Mr Dooley 18 Dec Defence 7 June 2010 4:05 2008 10 Report of Dr Brown 10 March Defence 7 June 2010 4:05 2009 11 Reports of Mr Shannon 25 Defence 7 June 2010 4:05 Aug 09 and 21 May 2010 12 Report of Dr Stern 5 Aug 2009 Defence 7 June 2010 4:05 13 Letters from Dr Kronberg Defence 7 June 2010 4:05
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