Harkin v Victorian WorkCover Authority

[2024] VCC 678

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-05203

JOHN GERARD HARKIN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HIS HONOUR JUDGE FRAATZ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2024
DATE OF JUDGMENT:	1 May 2024 (ex tempore)
CASE MAY BE CITED AS:	Harkin v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 678

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to left hip – causation – delay in reporting symptoms to general practitioner – consequences

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dahl v Grice [1981] VR 513; EMI (Australia) Ltd v Bes [1970] 2 NSWR 23; TTB SMS Pty Ltd v Reading [2020] VSCA 203

Judgment:                  Leave granted to bring proceedings for damages for pain and suffering.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Frederico	Maurice Blackburn
For the Defendant	Ms K Manning	Hall & Wilcox

HIS HONOUR:

1The plaintiff, John Harkin, now aged sixty-eight, has worked as a gardener since 1989.  In 2013, he commenced employment with the Northern Grampians Shire Council in that capacity.

2In late July 2016, Mr Harkin and a co-worker were applying mushroom compost to garden beds from a 4-tonne truck which had side and rear gates.  His duties required him to open and close those gates repeatedly and to use a coal shovel to spread about 90 cubic metres of wet mulch over two days.  It was extremely heavy, awkward and repetitive work.

3Mr Harkin gradually noticed the onset of lower back, left and right hip and groin pain and attended his general practitioner, Dr Catherine Pye.  Dr Pye certified him as unfit for work and he lodged a WorkCover claim for an injury to his lower back, which was accepted.  He retired in September 2016.

4Mr Harkin seeks leave by this application to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the “permanent serious impairment or loss of a body function”. The injury relied upon is to the left hip.

5There are two issues in this application.  The first being causation:  Did Mr Harkin suffer an injury to his left hip in the course of his employment in July 2016?  And secondly, the question of “range”, which I will explain in more detail shortly.

6The issue as to causation arises in the circumstances of the first recorded complaint about his left hip, being to Dr Pye, some fourteen months after the accepted date of injury in July 2016.[1]

[1]        Defendant’s Court Book (“DCB”) 59

7The Victorian WorkCover Authority (“VWA”) submits, principally based upon the opinion of Dr Simon Journeaux, trauma and orthopaedic surgeon, that Mr Harkin's left hip condition wholly relates to the natural history of constitutional pathology.  In Dr Journeaux's assessment, there is no evidence that Mr Harkin's left hip injury was caused, aggravated or exacerbated by the events that occurred at work in July 2016.

8He states that, although this is possible, it is not probable based on the medical evidence.[2]  In expressing this opinion, Dr Journeaux did not accept Mr Harkin's history to him: 

“He tells me that as his back pain resolved, he noticed problems referrable to his left hip. … .”[3]

[2]        Report of Dr Simon Journeaux, dated 29 February 2024, DCB 14 at paragraph [30]

[3]DCB 17

9Dr Journeaux's opinions are based on his view that: 

“… his left hip was not in fact symptomatic up until [around September 2017].”[4]

[4]        DCB 31

10The VWA's submission in relation to range – whether Mr Harkin satisfies the narrative test of “serious” injury – related to his retained capacities, in particular, his motorcycle riding; and, further, that the consequences to him, when judged in comparison with other cases within the range of cases that come before the courts, could not fairly be described as at least “very considerable”.

Legal principles

11The relevant legal principles in applications of this type are well known and they are not in dispute.

12Mr Harkin bears the onus of demonstrating that his impairment is permanent and that the consequences are serious.

13The narrative test is set out in s325(2)(a), (b) and (c) of the Act.  The seriousness of an impairment is determined by whether the pain and suffering and enjoyment of life consequences –

“… when judged by comparison with other cases in the range of possible impairments of losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[5]

[5]        Humphries and Anor v Poljak [1992] 2VR 129 at 140

14I also had regard to the principles in Ellis Management Services Pty Ltd v Taylor,[6] where the Court of Appeal stated:

[6] [2013] VSCA 326

“... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.

…

The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.

Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.

The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. ...  .”[7]

(Footnotes omitted.)

[7](Ibid) at paragraphs [52] and [57]-[59]

15While impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained.[8]

[8]        Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, at paragraph [27]

16I also had regard to the principles in Haden Engineering Pty Ltd v McKinnon[9] as to the assessment of pain.

[9] (2010) 31 VR 1 at 4-5, paragraphs [10]-[12] and [16]

17Further, as was said in Kelso v Tatiara Meat Co Pty Ltd:[10]

“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[11]

[10] (2007) 17 VR 592

[11]Ibid, at 629, paragraph [199]

18Of course, in serious injury applications, the credit of the applicant is of great importance.[12]

[12]        Johns v Oaktech Pty Ltd [2020] VSCA 10

This proceeding

19The matter proceeded in the “usual manner”:

(a)   tender of material in court books prepared by the parties: including relevant documents, medical reports, medical records and claim documents; 

(b)   Mr Harkin gave oral evidence and also relied upon his affidavits sworn 23 May 2023 and 19 March 2024 and the affidavit of his partner, Debra Lea Frenette, sworn 30 April 2023.

20The cross-examination of Mr Harkin was initially directed towards the lack of complaint of left hip issues in the course of 2016 and 2017.  He was also carefully cross-examined about his capacity for daily activity.  There was a particular focus for household tasks and motorcycling, including his substantial participation in the Grampians Chapter of the Ulysses social motorcycle club.

21I have considered all the tendered evidence and the transcript, submissions of the parties and Mr Harkin’s written submissions.  I shall refer to that evidence, and the submissions, only to the extent necessary in these reasons.

Credit

22There are no credit issues in this case.  I accept the submission that I may rely upon Mr Harkin's evidence.  I observed him in the witness box and found him to be an open, honest and straightforward witness who made appropriate concessions.  His evidence on the critical issues of the presence of symptoms in his left hip from shortly after the date of the injury, and the extent of his pain and suffering, was also corroborated by Ms Frenette, in her affidavit.

23I have had regard to the fact that, from September 2017, Mr Harkin gave consistent histories to all of the doctors who examined him about the onset of his pain.  The medical reports include comments to the effect he was a straightforward historian without embellishment.

24Notably, Dr Pye accepts his history of the onset of symptoms in the left hip.

Background and medical history

25In terms of his general history, Mr Harkin left school without completing Year 10, and while he started an apprenticeship as a butcher, did not complete it, and went on to work for fifteen years as a welder.

26In or about 1978, he broke his right leg in a serious motorcycle accident, and he has had other work-related injuries in the context of his work as a gardener, including bilateral hernias, which he underwent surgery for in about 2006 and 2008, and a right shoulder injury in 2003, and a right elbow injury in 2004.

27Mr Harkin had no significant issues with his lower back or hips prior to July 2016.

The injury

28The injury relied upon by Mr Harkin is symptomatic left hip osteoarthritis with an element of trochanteric syndrome, being abductor tendonitis.  This is the opinion of Dr Journeaux.[13]  There is a slight variance in the evidence of orthopaedic surgeon, Dr Philip Sheard, who opines the injury is a left hip glutinous medias calcific tendonitis, with mild aggravation of minor osteoarthritis of the left hip.[14]  Nothing turns on the difference in the identification of the tendonitis, both of which are present in the left hip.

[13]        DCB 29

[14]        Report of Dr Philip Sheard, dated 23 January 2024, Plaintiff’s Court Book (“PCB”) 41 and 44

29The diagnosis is supported by the radiology tendered, including an x-ray to the pelvis and left hip, dated 31 January 2018;[15] a CT scan of the left hip, dated 11 July 2018[16] and left hip ultrasound, dated 3 January 2019.[17]  There was also an x‑ray of the left hip on 6 February 2023.[18]

[15]        PCB 33

[16]        PCB 35

[17]        PCB 36

[18]        DCB 10

30Over time, Mr Harkin has had significant treatment for his left hip injury, including physiotherapy, which was eventually ceased as it was aggravating his symptoms.  He self-manages his ongoing conservative treatment regime at home. 

31He had an ultrasound-guided left trochanteric bursal injection on 9 January 2019, performed by Dr Pye, [19] and a CT-guided left joint hip injection on 10 July 2019, performed by sports physician, Dr Greg Harris.[20] 

[19]        PCB 38

[20]        PCB 39

Causation

32In terms of causation, Mr Harkin must prove, on the balance of probabilities, that a causal connection exists between the employment and the injury.  This is a question of fact and is to be approached like any other causation question as a matter of commonsense.

33Insofar as it might be said Mr Harkin's evidence, in total, amounts to only a possible causal relationship between his employment and left injury, I rely on the Full Court decision of Dahl v Grice,[21] where his Honour Gobbo J stated:

"At the trial there had been a considerable body of expert medical opinion. Of the five experts that gave evidence, two were prepared to find a possible causal relationship between the accident and the haemorrhage. Neither of these two doctors spoke in terms of probability rather than possibility. … ."

[21] [1981] VR 513

34Further, his Honour cited, with approval, the decision of EMI (Australia) Ltd v Bes,[22] where Asprey JA said:

“Where scientific knowledge properly induced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question, in this case the syncopal episode, then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances. Reliance for the purpose of drawing that inference may be placed by the tribunal on the evidence as a whole and is not confined to the medical evidence only except where all medical evidence agrees that the matters sought to be relied upon must be excluded from consideration as lacking justification for the drawing of the inference. That is not the case here.”[23]

[22] [1970] 2 NSWR 238

[23]        Ibid, at 243

35The battle lines in this proceeding are drawn neatly.  All of the doctors, save Dr Journeaux, accept there is likely to be a causal connection between employment and the left hip injury, based upon the history of Mr Harkin.

36The opinions include those of Dr Graham Long.  Although his historical reports provide somewhat qualified support, in his opinion:

"My impression, however, is that he sustained a strain injury to his lumbar spine which has since resolved.  It is likely he also sustained a strain to his left hip with aggravation of underlying degenerative changes. … .”[24]

[24]        Report of Dr Graham Long, dated 16 February 2018, Plaintiff’s Supplementary Court Book (“PSCB”) 10

37I also rely on his supplementary report[25] after review of radiology.

[25]        Report of Dr Graham Long, dated 19 March 2018, PSCB 15

38The opinions also include the opinion of Dr Sheard that Mr Harkin sustained a soft-tissue injury to his left hip consistent with the accident.[26]

[26]        PCB 44

39Further, the claims agent, based upon on the report of Dr David Elder, dated 21 June 2021,[27] accepted liability for the injury to the left hip.[28]

[27]        PCB 57

[28]        See the notice of entitlement, dated 26 August 2021 at PCB 47

40I am not bound by this admission.  The application proceeded on the basis this was simply one consideration for the Court, and of no particular significance.

41Counsel for the VWA, Ms Manning, forcefully submitted that the evidence simply does not bridge the gap of an absence of any complaint of left hip symptoms between July 2016 and September 2017 to any treater. 

42On 28 July 2016, Mr Harkin presented to Dr Pye, who recorded the reason for contact being “muscular strain lower back”, with no mention of left hip symptoms.[29]

[29]        PCB 22

43On 27 September 2017, Mr Harkin again consulted with Dr Pye, who recorded complaints of “pain in the left hip area – over [lateral] side of acetabulum”.[30]  She also recorded that the left hip pain:

“started when [Mr Harkin] injured [his] back in July 2016 at work… .

this pain started then and continueing.

could be related to the old injury of july last year”[31]

(sic)

[30]DCB 59

[31]        DCB 59

44Ms Manning submitted, in particular, the absence of complaint to Dr Pye should be considered in the context of five attendances in relation to the lower back in 2016 and a number of other unelated attendances in 2016 and 2017.

45Further, Mr Harkin's WorkCover claim form, which he completed on 10 August 2016, did not refer to the left hip at all.[32]

[32]        DCB 5

46After considering all of the evidence carefully, I accept Mr Harkin's evidence of the onset of left hip pain in or about July 2016.

47Mr Harkin had severe pain in his lower back, causing him to cease work in July 2016.  He was focused on this pain, which was debilitating. 

48He also had pain in his left hip.  In his affidavit, sworn 23 May 2023, Mr Harkin deposed:

"I gradually noticed the onset of lower back, left and right hip groin pain … .”[33]

[33]        Affidavit of Mr Harkin, sworn 23 May 2023, PCB 14 at paragraph [11]

49He was invited on a number of occasions to provide an explanation as to this gap or absence of complaint.

50I accept his evidence that he had other niggles in the course of his employment, but he usually came good.  His evidence included:

A: “… I never really gave it - the hip or anything like that, much credence. I was just more worried about my back. That was … an injury I’d never experienced in my life, and I thought this is - I had to take it seriously, you know?---

…

Q:Are you saying to his Honour, ‘The reason why I never mentioned it to Dr Pye was because I was more focused on my back’?---

A: Absolutely.

…

Q: But then the lower back also goes away and then we have another 12 months of clinical notes where there’s no mention of it?---

A: Yeah.

Q: Do you have an explanation for that?--- 

A: I just wasn’t focused on me hip. Like I said, it wasn’t a big issue like me back was. That was just a side - you know, I was very dismissive of it I just thought that’d sort itself out in good time. … after I retired, so I wasn’t doing much so there was no - I wasn’t at work giving it the constant aggravation. 

Q: So it wasn’t really an issue for you?--- 

A: Not in that 12 months, no. It was there but, as I say, you know, you don’t want to be rushing off [to] the doctor for every tiny little thing either … it just wasn’t annoying me like the back had and not like that.”[34]

And:

A: “… when I was injured that whole area [Mr Harkin indicated the area across his hips and lower back in the witness box] was just seized up and, you know, I needed to get me back to work and that was me main – well, the only priority. That - the hip, was just a sort of side issue. You know, I thought it’d get better in its own good time but sadly it didn’t and me back did.  And I was having no problem with me lower back at all, me right hip is fine but me left hip’s an issue.

…

A: … I mean, I got a lot of sore bits from my lifetime in horticulture, but my hip just wasn’t - it didn’t sort of strike me as something that was going to be a problem. I thought, that’ll go away …

Q:… And it became a problem in September 2017?---

A: … It’s just not going away, yes.[35]

[34]        Transcript (“T”) 11-12

[35]        T44-45

51I accept Mr Harkin's explanations, for the following reasons.  

52Firstly, they are consistent with a man of his background and disposition as a stoic person. 

53Secondly, Dr Pye accepts this history.  She is Mr Harkin’s longstanding general practitioner, who saw him in July 2016, and in an uninterrupted fashion in the months following.  Mr Harkin returned to her in September 2017 for advice and treatment in relation to his ongoing left hip pain.  She is in a very good position to consider the question of causation.  Her opinion is set out in her referral to Equip Physiotherapy of the history of ongoing pain since July 2016: 

“… left [lateral] gluteal muscle piriformis muscle strain ongoing since work cover injury in July last year.

… pain in the left hip area …

… started when he injured back in July 2016 at work. more lumbar pain.  this pain started then continueing (sic).”[36]

[36]        PCB 23

54Dr Pye also wrote to the Northern Grampians Shire Council on 11 January 2018, in these terms: 

“John has ongoing pain in left hip from work injury sustained in July 2016.  He requires a CT scan of his back and a 6 week course of physio.”[37]

[37]        PSCB 30

55Dr Pye’s opinion is also set out, at least inferentially, in her referral to Equip Physiotherapy, dated 27 September 2017.[38] 

[38]        PCB 23

56Somewhat unusually, there was not tendered a report from her in relation to these matters, however I find, based upon the materials tendered into evidence, that in her opinion, there was a connection between the employment in July 2016 and Mr Harkin’s left hip condition.

57Further, Mr Harkin also gave consistent histories to doctors over time as to the ongoing nature of his difficulties in the left hip.  Those histories included, to physiotherapist Jess Tucker;[39] occupational physician, Dr Long;[40] sports and exercise physician, Dr Harris[41] and orthopaedic surgeons, Dr Sheard[42] and Dr Journeaux.[43] 

[39]        Report of Jess Tucker to Dr Catherine Pye, dated 1 April 2019, PCB 25

[40]        Report of Dr Graham Long, dated 16 February 2018, PSCB 7

[41]Reports of Dr Greg Harris to Dr Catherine Pye, dated 6 May 2019 and 9 September 2019, PCB 29 and 31

[42]        Report of Dr Philip Sheard, dated 23 January 2024, PCB 41

[43]        Reports of Dr Simon Journeaux, dated 10 April 2024 and 29 February 2024, DCB 11 and 14

58Finally, I accept Mr Harkin's evidence that he did not see a doctor because he thought his hip would come good.

59I note Ms Frenette’s evidence included: 

“I remember that when … [Mr Harkin] was injured, he complained of left hip pain as well as lower back pain.

After his back pain improved, he continued to complain of hip pain.  These complaints of hip pain were ongoing.  I used to tell him to go to the doctor but he is one of those types of men who think that he will be alright and it will get better.”[44]

[44]        Affidavit of Debra Lea Frenette, sworn 30 April 2024, PSCB 4 at paragraphs [2] and [3]

60For those reasons, I reject Dr Journeaux's opinion based on his finding there was no evidence Mr Harkin aggravated his left hip in 2016.  I find that, consistent with the opinions of Dr Pye and Dr Sheard, that Mr Harkin injured his left hip in the course of employment in July 2016.

Permanence

61In terms of permanence, the test to be applied is whether the injury would persist and there would be no significant improvement over time.  This is not in issue.  I rely on the opinion of Dr Sheard.[45]

[45]        PCB 44

Impairment consequences

62Turning now to the impairment consequences in Mr Harkin’s affidavit and oral evidence.  I accept Mr Harkin suffers from daily, permanent, constant pain emanating from his left hip.

63This pain requires frequent medication, including strong prescription medication, Panadeine Forte, in particular.[46]  He takes Panadeine Forte at least once a day.  He supplements that medication with additional Panadeine Forte when required, and also Ibuprofen, which he estimates he would take on a fortnightly basis in addition to the Panadeine Forte.

[46]        PCB 15

64Pain and suffering consequences encompass his treatment, including two injections into the hip. 

65Mr Harkin suffers from regular flare-ups of pain which “stop … [him] in his tracks”.[47]  These flare-ups last anywhere from three to four hours to several days, and he is unable to walk or ride a bike, including his motorbike.  They occur every couple of months. 

[47]        T48

66Mr Harkin's daily routine to remain limber and increase movement, and improve the pain and discomfort in his left hip, involves walking for an hour or so each morning.  In his own words: 

“I’ve got to be so sore to not go for [my morning walk].”[48]

[48]        T49

67He is unable to do so during the course of these flare-ups.

68He devotes other time on a weekly basis to self-management, including stretching and sauna treatments. 

69The constant pain in his left hip is between 4/10 and up to 9/10.[49]  He is forced, as a consequence of his pain, to live within the limits of this impairment, which involves difficulty in walking and some difficulty sleeping.  He takes Panadeine Forte at night to assist his sleeping. 

[49]        PCB 15

70He is also somewhat restricted in activities around the house and gardening.  He is not able to play golf or play bowls in his retirement, which he was looking forward to enjoying. 

71Even though Mr Harkin is able to ride his motorbike – sometimes substantial distances, 200 to 400 kilometres over the course of a day – he suffers pain and symptoms after the ride.  Ms Frenette’s evidence included that Mr Harkin usually has to take Panadeine Forte or Advil when he comes home from a substantial bike ride.[50]

[50]        PSCB 5

72Overall, the evidence supports a finding that Mr Harkin is a man who lives within the very considerable limits of an injury to the left hip.  The need to take Panadeine Forte daily, supplemented at times by additional medication, and his regimen of stretching and daily walking to manage his left hip condition, are all consistent with a serious ongoing condition.

Stoic Plaintiff

73I was invited to find that, although Mr Harkin's pain was constant – 4-9/10 – I should, in accordance with the principles stated in Haden Engineering Pty Ltd v McKinnon[51] and TTB SMS Pty Ltd v Reading,[52] reject his application upon consideration of what he had lost in terms of what he had retained. 

[51]Supra

[52] [2020] VSCA 203

74The VWA considers the significance of what he has lost might be informed by his retained pursuit of domestic and social activities riding his motorcycle; and at least in 2019, in accordance with the opinion of Dr Harris,[53] it was safe for him to exercise and perform other activities without risk of him doing any permanent damage.

[53]        PCB 31

75I must consider the extent to which Mr Harkin is a stoic individual.  I consider him as stoic, putting up with pain and getting on with his life as best he can, and it should not be held against him.[54]

[54]        Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [3]

76To Mr Harkin's credit, it appeared to me that he is not prepared to allow his injury to dictate a wholehearted reduction of his enjoyment of life.  There is no better example of this than his pursuit of his passion of motorcycle riding, which he has enjoyed over a period of fifty years.

77I accept his evidence that he finds it more comfortable to sit up on his modified Triumph motorbike than sitting in a car or at home on his couch.  The extent of his ongoing enjoyment of motorbike riding is also tempered by Ms Frenette’s evidence that he has pain afterwards and is forced to take medication.  He is no longer able to kickstart his older Triumph motorcycles.  Mr Harkin has five motorcycles.

Work capacity

78In accordance with Ellis Management Services Pty Ltd v Taylor,[55] pecuniary disadvantage consequences may fall for consideration in a pain and suffering case such as this.  I place no weight on this consideration in this application because the evidence does not permit, in my view, a positive finding that, but for the injury, Mr Harkin would, as at the date of the hearing, still engage in his former employment.

[55]Supra

Conclusion

79On the evidence as a whole, I am satisfied Mr Harkin injured his left hip at work in July 2016.  I am also satisfied that the combination of treatment, including hip injections, ongoing pain, interference with his domestic and recreational activity and requirement for ongoing conservative treatment, when considered in combination, are such that the pain and suffering consequences to Mr Harkin from this injury are indeed at least “very considerable”.  The evidence as to his ongoing pain and impairment limitations was not challenged.

80For these reasons, I am satisfied Mr Harkin ought be granted leave under s335 of the Act to bring common law proceedings to recover pain and suffering damages for his left hip injury sustained in the course of his employment.

81I will hear the parties as to final orders including costs.

- - -