Harnden v Prefab Technology Pty Ltd
[2012] VCC 520
•2 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03629
| CHRISTOPHER JOHN HARNDEN | Plaintiff |
| v | |
| PREFAB TECHNOLOGY PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2011 | |
DATE OF JUDGMENT: | 2 May 2012 | |
CASE MAY BE CITED AS: | Harnden v Prefab Technology Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 520 | |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – Accident Compensation Act 1985 – serious injury – s.134AB(38)(a) and (b) – low back injury – pain and suffering only – relevant principles – whether “serious”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Mr C J Nettlefold | Ryan Carlisle Thomas |
| For the Defendants | Mr I S Gourlay | Lander & Rogers |
HIS HONOUR:
Introduction
1 By way of originating motion filed on 18 August 2010, Christopher John Harnden (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for an injury to his low back suffered by him on or about 19 June 2007 (“the injury”) arising out of or in the course of his employment with Prefab Technology Pty Ltd (“the first defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. The parties tendered various documents.[1]
[1]Annexure A
Relevant Legal Principles
4 The court must not give leave unless it is satisfied, on the balance of probabilities, “the injury” is a “serious injury” within the meaning of “serious injury” contained in s.134AB(37) of the Act.[2]
[2]Section 134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:
“(a)permanent serious impairment or loss of a body function…”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back.
7 In order to succeed the plaintiff must prove, on the balance of probabilities, that:
(a) the injury suffered by him arose out of or in the course of or due to the nature of his employment with the first defendant on or after 20 October 1999;[3]
[3]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 4 VR 622 at [11]
(b) the injury and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c) “the consequences” of the low back impairment in relation to “pain and suffering” are “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked and as being at least very considerable”.[5] This test is sometimes referred to as the “narrative test”.
[4]Barwon Spinners (op cit) at [33]
[5]Section 134AB(38)(a) and (b) of the Act
8 In determining the application, the court:
(a) must make the assessment of serious injury at the time the application is heard;[6]
[6]Section134AB(38)(j) of the Act
(b) notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a matter of impression and value judgment;[7]
(c) must give reasons which are extensive and complete that the court will give on the trial of an accident, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[8]
[7]Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
[8]Section 134AB of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]-[92]
The Issues
9 Counsel for the first defendant, in answer to a query from the Court, confirmed that essentially the defence of the first defendant was whether any low back injury relied on by the plaintiff satisfied the narrative test (that is to say, a “range” case).[9]
[9]T 9, L 5-16
The Background of the Plaintiff, His Injury and Medical Treatment
10 The court refers to the affidavits sworn by the plaintiff on 12 January 2010[10] (“the first affidavit”), 4 April 2011[11] (“the second affidavit”) and 15 June 2011[12] (“the third affidavit”). The plaintiff accepted that the contents of such affidavits were “accurate”.[13]
[10]Exhibit 1 at PCB 24
[11]Exhibit 1 at PCB 31
[12]Exhibit 1 at PCB 32a
[13]T 12, L 21
11 The plaintiff gave viva voce evidence that he was presently employed as a traffic controller and described his present duties to involve:
“Relatively light work – holding (indistinct) – shifting – putting out multi frame signs, the ones with the little symbolic workers and road works ahead signs in them and all the rest of it and setting up most job sites, overseeing a lot of the job sites I set up. Shifting bollards around which has happened occasionally in the empty water barriers.”[14]
[14]T 11, L 31-T 12, L 6
12 When asked as to any medication that he takes for pain, the plaintiff gave evidence that he takes a combination of Voltaren (anywhere from three to five times a week), Panadeine Forte (three to four times a week but up to six times a week) and amphetamines (two to three times a week). He obtains the Voltaren over-the-counter from the chemist and obtains the Panadeine Forte from “an old mate just down the road”. The plaintiff also gave evidence that he swims and does home exercises (“the best I can”).
13 He last saw a doctor about his “condition” on 10 October 2011 when he attended Dr Chesney at the Yarra Ranges, at which time he obtained a prescription for Panadeine Forte and referral back to physiotherapy. He explained that he generally obtained the Panadeine Forte from his friend rather than going to a doctor and spending $55 per visit, which he can ill-afford. However, on this occasion his friend was not home and he “needed something”.
14 The plaintiff described his drinking habits to be “half a dozen to eight beers a night”, whereas before the injury, he only drank socially. He now requires a drink to go to sleep.
15 By way of his first affidavit, the plaintiff gave the following evidence:
· He is a 43 year old (born on 1 April 1969) who lives with his partner and her two children.
· His parents were “alcoholics” and he was more or less left to bring himself up with no regular education. From about the age of nine he was in trouble with the police and spent many of his pre-teen and teenage years in and out of boys’ homes.
· He last committed an offence about seven or eight years ago, at which time he returned home from work on a fishing trawler and found his partner in a relationship with another man. He was subsequently sent to jail for three years for assault and a number of offences arising out of this incident.
· Over the years he has worked as a bricklayer, builder’s labourer, fisherman, mill hand and casual worker.
· In about 2006, he was treated for low back pain by a physiotherapist, Mr Philip Hunter, and Dr Victor Chang. Such treatment consisted of three or four physiotherapy attendances in December 2006 and he recovered from that injury.
· Prior to the injury, he enjoyed fishing, motorbike riding and activities with his partner’s children. Probably as a result of working on building sites, he was “pretty handy” around the house and he and his partner enjoyed a busy social life and going camping.
· He commenced employment with the first defendant on 27 January 2007.
· On 19 June 2007 he suffered injury and described the circumstances in the following terms:
“On about 19th June 2007 I was involved with a co-worker putting together roof trusses. In the course of attempting to move a truss weighing somewhere between 100 and 140 kg, the co-worker’s wrist gave way and the truss which we had lifted above head height, dropped onto my left shoulder. I consequently suffered an injury to my low back.”[15]
[15]Exhibit 1 at PCB 26
· The next day he attended Dr Sandrasegaram at the Churinga Medical Centre and in the following months was treated by him; Mr Philip Hunter, a physiotherapist; Mr Rodney Simm, an orthopaedic surgeon; Ms Beth Saverneh, an occupational therapist; and Dr Ralph Poppenbeek, a consultant in occupational medicine.
· He was off work for two months and thereafter his doctor certified him fit for light duties and he participated in return to work plans commencing on 18 September 2007 consisting of:
o18 September 2007 – two days a week one hour a day;
o18 October 2007 – two days a week 1.5 hours a day;
o November 2007 – two days a week 2.5 hours a day.
· He was given fairly severe restrictions for lifting, bending, pushing and pulling.
· His back did not improve and he considered that his boss was not “supportive”, always commenting that he was employed to build roof trusses and not to sweep floors. Because of persistent pain and stiffness and because he was finding it “extremely difficulty to be reliable in turning up for work”, he ceased work with the first defendant.
· After being out of work for about four months, he commenced with a traffic control company, Traffica, on 12 March 2008, where he remained until March 2009, working on a casual basis.
· Because his hours were not consistent with Traffica and he wished to obtain full-time work, he commenced employment with another traffic control company, ATC, in March 2009, working on a casual basis but working more hours per week.
· He has a sympathetic boss who knows about his back injury and is supportive, he is able to sit or stand when he wants, he is able to take a chair with him to work and, if he does have pain during the day, he is able to rest.
· He has pain all the time and wakes with a nagging, throbbing pain in the low back, which is about one or two on a scale of nought to ten, but the pain can increase with activity to six out of ten. This happens several times a week.
· He has been told by the doctors that there is “not much that can be done for me” and consequently he has undergone little treatment. He did resort to taking amphetamines for a while and became “addicted”, but does not take drugs now.
· His physical relationship with his partner has been affected, with intimacy infrequent, painful and difficult.
· He had to sell his motorbike because he could not handle the vibration.
· He still goes camping, but he had to get rid of the tent and a lot of the equipment and now uses a small campervan. He realised he was unable to cope with putting up tents, setting up camp and could not sleep on a mattress.
· One of his partner’s two children, a boy aged ten, is “sports mad” and he feels a loss that he cannot get out and join in sporting activities with him.
· He goes to bed very late and tries to get himself extremely tired or nearly exhausted so he might at least get a few hours sleep, after which he tosses and turns during the night and often wakes. Sometimes he drinks more than he should so that he can sleep.
· He has put on 20 kilograms since he was injured.
· “These days” most of his energy goes into keeping his job and he is “absolutely knackered” when he gets home from work. On weekends he does very little and most of his recreational time is used for resting and trying to get himself into shape for return to work.
· His injury has resulted in a “dramatic interference” with his personal and domestic life and he lives on tenterhooks almost every day worrying that “my back will give way”.
16 By way of his second affidavit, the plaintiff gave the following evidence:
· In January 2010 he injured his right hand and left ankle when away camping, when a motorcycle ridden by his brother-in-law rode over his foot. He attended the doctor, was x-rayed, given antibiotics and lost no time off work.
· His symptoms remain much the same as described in his earlier affidavit and domestically, socially and recreationally his activities are much the same as when described in his first affidavit.
· He last saw the physiotherapist in mid-2010 and it helped, but he has not returned because it is very expensive. He tries to swim twice a week but is still in excess of 20 kilograms heavier than before being injured.
· His work as a traffic controller is “very light work” and the boss insists that “I am accompanied with everything I do”.
· His present duties include holding a stop/go sign, setting up roadwork signs and cones, bollards and empty water barriers. He also drives from job to job and performs a lot of paperwork.
17 By way of his third affidavit the plaintiff gave the following evidence:
· He continues with his employment as a traffic control officer.
· He has been using strong non-prescription pharmaceutical medication to try to reduce the pain levels which he experiences in his back on an ongoing basis.
· He has been able to reduce the medication this year and is trying to do as much as he can without using medication.
· On occasions, the back pain still feels severe and on these days he is not able to work or get anything done without the use of pain relief.
· He believes he would be unable to continue his employment if he did not use medication, particularly when he has severe pain, which is at least once or twice per week.
· The medication allows him to have some social and domestic life because otherwise he would not be able to get out of the house and do very much at all.
· The back pain never goes away and for reasons which are not clear to him it can “flare-up and become severe, at which time I have no choice but to take the medication”.
18 The plaintiff also relies on an affidavit from Kaye Lynette Green, sworn on 9 December 2010.[16] The depondent describes herself as the daughter of the partner of the plaintiff and has known the plaintiff for approximately five years. Since the occurrence of the “injury”, she has observed the plaintiff to be “restricted” in his day-to-day activities and has “difficulty” engaging in tasks which require a lot of bending and lifting, such as mowing, vacuuming and placing dishes in the dishwasher.
[16]Exhibit 1 at page 33 PCB
19 She has also observed over the past few years that the plaintiff has gained excessive weight and that his energy levels appear to be “very low” with much time spent sitting on the couch watching television.
20 The plaintiff also relies on an affidavit from Audrey Kaye Walker, sworn on 5 October 2011.[17] The deponent describes herself as the partner of the plaintiff, whom she has known for five years or so. They have been living together for about four years.
[17]Exhibit 1 at page 34a PCB
21 When she first met the plaintiff, she describes him as “an easygoing person who was very happy and active”. In particular, she describes him as “quite a socialite and he used to party a lot”.
22 Since the injury, she has observed the plaintiff to be less active and upbeat, they go out less, he spends most of his spare time resting and has put on about 30 kilograms in weight over the last few years.
23 In particular, over the last six months she has noticed that the plaintiff’s back pain seems to be giving him more and more “grief” – in particular, when he has had a “big day at work”. Furthermore, she has observed him having difficulty sleeping and “he tends to wake me tossing and turning two to three times a week and complains that he can’t comfortable because his back is sore”. He also has trouble “putting on his socks and jocks”.
24 Although he continues to play with her son, Jack, every now and then, that relationship has been affected as the plaintiff cannot play with him as he did before the injury. Their intimate life is almost “non-existent now”, with the plaintiff “not interested any more”.
25 Whereas before the injury, the plaintiff used to help around the house with heavy domestic chores such as the vacuuming and the washing, he finds it difficult to help with these chores now. In particular, he used to do all the gardening and mowing, but now a neighbour is paid to do most of the gardening and cleaning of the gutters for them. The plaintiff does give mowing and odd jobs a go every now and then.
26 Before the injury, the plaintiff’s greatest hobby was getting out on his motorbike, which has now been sold. He has difficulty walking the dog and, although they continue to go camping, it is in a campervan rather than “roughing it”.
27 Under cross-examination, the plaintiff gave the following pertinent evidence:
· In or about 1995, he stopped performing various strenuous work, such as bricklaying, because of the condition of pericarditis.
· At that time, he also changed his lifestyle, causing him to move to Queensland.
· In or about December 2006, when employed by ARB, he hurt his back when lifting a bull bar.
· He remembers being referred to a physiotherapist, taking Voltaren and Panadeine Forte.
· He thinks he got back to work performing light duties for another couple of weeks and thereafter stopped that job because the work involved him working afternoon shift which clashed with his partner’s hours of work.
· When he started with the defendant on 27 January 2007, he had no ongoing problems in relation to his back.
· He has no particular memory of whether he had a week or so off after ceasing with ARB and commencing with the defendant.
· After the injury, he attended Dr Sandrasegaram at the Churinga Medical Centre and thereafter for some time before changing to Dr Chesney at the Yarra Ranges Medical Clinic because he could not “understand” Dr Sandrasegaram and he appeared to be more interested in his finger jamming in his Jaguar motor car.
· Dr Chesney became his general practitioner about mid 2008 and, since then, he has seen him about four or five times.
· When attending Dr Sandrasegaram, he was provided with return to work plans by the defendant. Such programs commenced on 18 September 2007 and extended to December 2007.
· He ceased work with the defendant in December 2007 and this evidence was given:
Q.“That’s what you did, or you were put off?”
A.“Well, I didn’t really feel comfortable over there Your Honour, and you can only sweep a floor so many times.”
Q.“Yes?”
A.“And I wasn’t – he wasn’t aiming to sweep floors, he was paying me to make roof trusses, so there was no productivity getting made.”[18]
[18]T 24, L 14-19
· He commenced as a traffic controller in or about March 2008, after ceasing with the defendant at the end of 2007.
· He has been with his present employer, ATC, as a traffic controller for “the last couple of years”.
· A traffic controller is a self-contained unit (with a ute or a truck, etc) in which you place signs, bollards and witches hats.
· A standard bollard weighs six kilograms.
· He drives a Mitsubishi Triton one tonne ute and the signage and other material fills roughly the whole of the back of the ute.
· He accesses material on the ute by pulling it from the side of the ute.
· His start time varies and, for the last two weeks, he has been working in Deer Park so he has to be up at 4.30 in the morning and does not get home until seven o’clock at night.
· His work is on a casual full-time basis – sometimes he works a bit more than 40 hours per week and sometimes a bit less.
· He is earning substantially more than he earned as a roof trusser – for the year ending 30 June 2009, he made $50,685, whereas in prior years he was making in the $20,000 and $30,000 range, and for the year ending 30 June 2011, he made $53,000.
· More often than not, there are two people in the ute.
· His work takes him all over suburbia and he could be required to go to Geelong where, on occasions, he has been required to stay overnight.
· He still tries to get out with the son of his partner, attends his football matches and also attends his local team in the Montrose area.
· He does perform some light gardening occasionally and also he takes it in turns with the son of his partner to mow the lawns.
· He has a campervan, which is one of those pop-top vans, and camps at Strathmerton or Lakes Entrance.
· He has a “tinny” boat which sits on the roof of the pop-top van.
· This coming Christmas, he hopes to stay at Barmah for about three weeks camping and fishing on the boat.
· He is able to put his clothes on and tie his shoelaces.
· His partner works in the office of his employer and allocates the various jobs.
· Apart from the “tinny”, he has a bigger boat, which is another “tinny” that is approximately 16 feet and on a trailer, and it has an outboard motor.
· He has only taken it out once so far when he went out to Barmah over the Cup weekend.
· He hitched the trailer to his vehicle and unhitched it at the other end, and launched the boat.
· Before the injury, he had an XR road trail bike. In the six months prior to the injury, he may have ridden his trail bike once a week, maybe every weekend, depending on what he was doing on the weekend.
· He accepted that he rode the motorbike from “time to time” and, although it was not the “be all and end all” of his existence, it was a “social outlet”. Since the injury, he has tried to ride his motorbike, which he ultimately has had to sell, and he has also tried to ride his sister’s bike.
· He accepted “as probably right” that on 14 December 2006, he had been prescribed Voltaren in relation to the earlier episode of injury at ARB; on 25 June 2007, he had been prescribed further Voltaren and Panadeine Forte, 500 milligrams; on 2 October 2007, he had been prescribed Panadeine Forte, and on 16 December 2008, there was a further prescription for Panadeine Forte.
· He accepted that it was possible that he had a flare-up in December 2008, causing him to go to the doctor and being prescribed some further Panadeine Forte.
· He has been getting Panadeine Forte from his friend for about two and a half years, “maybe a bit longer”.
· He was asked questions about a history given to Dr Robyn Horsley and the following evidence was given:
Q.“Without saying whether that’s correct or not what you were telling her was that you had some low grade pain. Is that a fair way to put it?”
A.“Yep.”
Q.“The low grade pain, correct me if I’m wrong, flares up from time to time?”
A.“Correct.”
Q.“When it flares up you take some Panadeine Forte?”
A.“Yep.”
Q.“And that might happen say once a week?”
A.“No, that might happen anywhere from three to five times a week. It’s really difficult to say.”
Q.“Yes. When it happens do you always take a Panadeine Forte?”
A.“No.”
Q.“Sometimes it’s not bad enough to take medication?”
A.“Well, I might – might take a Voltaren just to – just to get rid of the flareness out of it. So it’s not only just Panadeine, I might mix them up.”[19]
[19]T 41, L 22-T 42, L 5
· When asked whether Panadeine Forte at night may help him sleep, he said he considered that Panadeine Forte and “half a dozen beers” is necessary.
· He takes the Panadeine Forte one at a time, “roughly” five or six Panadeine Forte per week.
· He accepted that there has been some improvement in his leg pain, but then it tends to flare up.
· In his present work, he may “occasionally” help the contractors. In particular, the following evidence was given:
Q.“Yes?”
A.“I might pick up a shovel or a broom and just scrape a bit of dirt off the road for them.”
Q.“A broom of course involves the action of sweeping; shovel you’re doing a bit of light digging.”
A.“Yeah, well it was no – no different to what I was doing when I was on me back to work program.”
Q.“What else, crow bar?”
A.“Occasionally I might pick up – hand them over a crow bar or something, yes.”
Q.“And you might use a crow bar yourself from time to time?”
A.“Every now and again I might just pick one up, it depends how I’m feeling. It won’t last forever though.”
Q.“Crow bar as and when you’ve used one, and you’ve got a memory of using one, haven’t you?”
A.“Yep, yep.”
Q.“We’re talking about the long - - -?”
A.“Yeah, yeah, just - - -”
Q.“- - - crow bar, four or five feet?”
A.“I don’t know.”
Q.“The ones that you use in a downward stabbing motion if I could call it that?”
A.“Yeah.”
Q.“So you’ve done that sort of thing?”
A.“Yeah, I’ve tried picking some of the ground to hold my signs there – you know with - - -”
Q.“What do you drive the pickets in with?”
A.“The picket rammer.”
Q.“Is that a hammer or some other - - -?”
A.“No, it just slides over the top of the picket.”
HIS HONOUR:
Q.“Top and brings it down, yes?”
A.“Yeah, a fence rammer.”
Q.“A fence poster, yes?”
A.“Yeah, a fence post rammer.”[20]
[20]T 45, L 16-T 46, L 10
· After the occurrence of his injury, he hired a truck to move furniture when he changed premises. He accepted he did some light lifting on that occasion and carried some light “stuff”.
· He believes he helped manoeuvre the fridge and probably helped move a bookcase.
· The plaintiff accepted that a video tape of 10 July 2011 showed him at the football with his dog.
· He accepted the video dated 11 July 2011 showed him in an orange work outfit. He said that the video showed him either holding a stop/slow bat or a crowbar. He identified the work site at Mount Dandenong Road and Liverpool Road.
· He was shown further video taken on 26 October 2010 where one of his work units was seen at an Alma Road, Caulfield North site.
· He was shown further video dated 29 March 2011 at a work site in Warrigal Road, Chadstone, which revealed him cleaning up the signs and collecting the signs from the job.
· He was shown a further video dated 13 July 2007, the day on which he moved house, which showed him in a blue T-shirt.
· After the videos were shown, the following evidence was given:
Q.“Mr Harnden, … I showed you a number of videos which showed you, I suggest, at work in the job that you described to us in your evidence before lunch as a traffic controller. Would it be fair to say that in the course of the film you were engaged in setting up the traffic control signs and the various other bits and pieces that have to be put out?”
A.“Yes.”
Q.“In the course of putting out the signs and the traffic restrictions and the bollards and the like you engaged in a variety of movements; you were bending, you were lifting the things that you had to lift. You seemed, I would suggest, to have some, I daresay one could call them little tricks, for example when putting out the sign with the flexible legs you would hold the sign and then with one leg flick the leg of the sign back and then when all four legs of the sign were out put it in place?”
A.“Yes.”
Q.“In doing that you had to put your back, I suggest, into a position where your back was slightly extended and you were then able to move your leg out to the right-hand side. Is that a fair description of the activity you were performing?”
A.“Yeah.”
…
Q.“You were also seen in the course of the film, and as His Honour says it does speak for itself, but you acknowledge that it showed you carrying the signs, a couple of occasions jogging back across the road, walking up and down the road?”
A.“Jogging?”
Q.“Yes?”
A.“No, I didn’t see that part.”
Q.“When you were going across perhaps a bit alarmingly in the middle of the traffic you came back - - -?”
A.“A little bit quicker than stepping you mean?”
Q.“A rapid walk, can we call it that?”
A.“Yeah, okay, we’ll call it rapid.”
Q.“All right. But the film, I’d suggest to you, was a pretty fair illustration of what you were telling us about this morning?”
A.“It’s me day to day work, day to day job.”[21]
[21]T 57, L 5-T 58, L 10
· His present employer knows that he has got back difficulties and “everything we do” is “nothing over six kilos”.
· He accepted it was probably the pattern of attendances on Dr Sandrasegaram when it was put to him that he attended on 25 June 2007, 10 July 2007, 2 October 2007, 19 November 2007, 14 April 2008 and 16 December 2008.
· He agreed that his attendances on Dr Chesney, at least up until November 2010, were in relation to smoking cessation, blisters from a rope burn and another doctor in relation to the motorbike clinic. He agreed that none of these consultations were for his back.
· He confirmed that he had seen Dr Chesney in October 2011 for another prescription of Panadeine Forte.
· He accepted that he enjoys having “a beer” with his mates at the football, but says he drinks more since the injury because of the pain.
· He drinks six to eight cans of beer a night at home.
· In 2011, he had been able to reduce the medication he takes for his back and the situation is that he has pain which bothers him about once or twice a week, for which he takes medication.
· He would take at least five or six Panadeine Forte per week now.
28 Under re-examination, the plaintiff gave the following pertinent evidence:
· When moving house, he “probably had pills” in the morning to ease the pain and, whereas he could in the past lift heavy weights, he was limited in the amount of weight he could lift.
· His social life with friends when having beers has changed in that he does not go to “pubs as much”. The reason he does not go to pubs is that, if a scuffle breaks out, he would not have the physical ability to take care of himself.
· Prior to the injury, he and his partner used to go out “clubbing” and, although they are getting a little bit old, used to enjoy going out to nightclubs and friends’ parties and “all that sort of stuff”.
· When taking the big boat out (in the past, only on one occasion), it has been “difficult” and a “little bit awkward”.
· He has only had the big “tinny” for three months and this was purchased because it has a trailer, whereas the little “tinny” did not have a trailer and required to be taken off the van roof.
· There is no “real pattern” to his flare-ups of pain. In particular, he gave this evidence:
Q.“How often does it come?”
A.“It – it comes every two weeks, it comes every week, it comes every three weeks, it just continuously comes.”[22]
[22]T 70, L 26-28.
The Medical Treatment of the Plaintiff
29 The plaintiff relies on medical reports from his then general practitioner, Dr Sandrasegaram, dated 10 July 2007[23], 14 August 2007[24], 16 August 2007[25], 19 November 2007[26], and 10 June 2009[27].
[23]Exhibit 2 at page 35 PCB
[24]Exhibit 2 at page 36 PCB
[25]Exhibit 2 at page 37 PCB
[26]Exhibit 2 at page 38 PCB
[27]Exhibit 2 at page 39 PCB
30 The plaintiff initially consulted Dr Sandrasegaram on 20 June 2007, at which time he complained of suffering back pain as a result of lifting a wood truss. The pain was sharp and in his lower lumbar area, radiating to the left pelvis and into the groin.
31 Examination at that time revealed increased muscle spasm and he was guarding his back and there was some restriction of low back movement.
32 Dr Sandrasegaram made an initial diagnosis of interfacet joint and ligamentous strain and, after one day’s rest, returned him to modified duties which were light with no repeated bending or lifting, pushing or pulling more than five kilograms.
33 The plaintiff again consulted with Dr Sandrasegaram on 25 June 2007, after having been at a physiotherapist three times. He was prescribed some anti-inflammatory and analgesic medications and then was referred for a CT scan.
34 The CT scan of the lumbosacral spine was undertaken on 25 June 2007 and the findings were:
“There is no evidence of disc protrusion nor of central canal, lateral recess or neural exit canal stenosis. The facet joints appear normal.”[28]
[28]Report of scan – Exhibit 2 at page 73 PCB
35 As at November 2007, Dr Sandrasegaram noted the plaintiff had been making progress with work and had graduated to three hours a day, although he had some aggravation of pain on 16 November 2007. Dr Sandrasegaram referred the plaintiff to the orthopaedic surgeon, Mr Simm, and also arranged for him to undergo an MRI scan.
36 The plaintiff underwent an MRI scan on 26 November 2007 and the conclusion of the radiologist was:
“No focal lumbar disc pathology and no evidence of nerve root compression. Mild bilateral facet joint degenerative changes are present at L5/S1.”[29]
[29]Report of scan – Exhibit 2 at page 75 PCB
37 Dr Sandrasegaram adopted the view of Mr Simm, that the plaintiff was incapable of returning to employment involving heavy lifting and, to that end, he recommended that the plaintiff obtain some work rehabilitation to obtain alternative duties, which were ultimately undertaken in traffic control.
38 Dr Sandrasegaram last saw the plaintiff in July 2008.
39 The plaintiff also relies on reports from the physiotherapist, Mr Philip Hunter, dated 1 June 2009[30] and 19 November 2010[31]. The plaintiff had initially attended at the clinic for physiotherapy treatment on 19 December 2006, when he had lifted a bull bar and experienced left lower back pain with some left buttock and leg pain. According to Mr Hunter, there had been marked improvement with Voltaren and rest, and he only required three physiotherapy for this bout of pain. He was last treated on 30 December 2006 when the plaintiff reported that he no longer felt any pain.
[30]Exhibit 2 at page 51 PCB
[31]Exhibit 2 at page 53 PCB
40 The plaintiff next consulted Mr Hunter on 20 June 2007, following the injury the previous day. Mr Hunter considered that the plaintiff’s injury was discogenic. He noted that the plaintiff was an “irregular attender at physiotherapy treatment” and, at that stage, he last attended on 19 December 2008.
41 On 22 April 2010, the plaintiff returned to physiotherapy and had one treatment with a Mr Greg Scott.
42 The plaintiff also relies on reports from his treating orthopaedic surgeon, Mr Rodney Simm, dated 21 August 2007[32], 9 October 2007[33], 4 December 2007[34] and 22 September 2008[35].
[32]Exhibit 2 at page 43 PCB
[33]Exhibit 2 at page 45 PCB
[34]Exhibit 2 at page 47 PCB
[35]Exhibit 2 at page 48 PCB
43 Mr Simm initially consulted with the plaintiff on 20 August 2007 and obtained a history that the plaintiff was lifting a roof truss on 19 June 2007 when another worker dropped his end, causing the plaintiff to support the entire weight as a result of which he suffered low back pain. He noted that he had been taking Voltaren and Panadeine Forte and had physiotherapy.
44 Mr Simm subsequently examined the plaintiff on 1 October 2007, 4 December 2007 and 12 February 2008. He had available to him the CT scan and MRI scan arranged by Dr Sandrasegaram.
45 In his report to Dr Sandrasegaram on 4 December 2007, Mr Simm stated, in part:
“He had an MRI scan recently. I reviewed the MRI scan and I agree with the report that there is no significant pathology evident.
Mr Harnden falls into the group of chronic mechanical pain for which no pathological diagnosis has been established. It appears that his work manufacturing trusses is unsuitable and it is unlikely he will go back to pre-injury employment in the foreseeable future. Whilst it is good for him to go back and do part-time light work, in the long term I suspect he would need a change of direction in terms of his occupation.”[36]
[36]Exhibit 2 at page 47 PCB
46 When last seen on 12 February 2008, Mr Simm was of the opinion that the plaintiff had an unresolved soft tissue injury to his low back which related to a back strain injury at work on 19 June 2007. No specific pathological diagnosis was established at that time for his persistent back, but such pain was initiated by the lifting incident at work and had persisted from that incident. Mr Simm thought the plaintiff was incapacitated for his pre-injury employment but fit for suitable employment.
47 Dr Chesney, in a report dated 30 November 2010[37], notes that the plaintiff has attended that clinic a total of four times, two of which related to smoking cessation, one in relation to blisters from a rope burn and another visit in January 2010 relating to a motorbike accident in which he hurt his right hand and left ankle. In particular, Dr Chesney has no record of any work-related issues.
[37]Exhibit 2 at page 55 PCB
Medico-Legal Reports
48 The solicitor for the plaintiff arranged for the plaintiff to be medico-legally examined by ─
(a)the orthopaedic surgeon, Mr Roger Westh, on 25 May 2010[38];
(b)the general surgeon, Mr Thomas Kossman, presumably on or about 26 November 2010[39] and presumably 19 August 2011[40];
(c)the occupational physician, Dr Robyn Horsley, on 27 April 2011[41].
[38]Report dated 31 May 2010, Exhibit 2 at page 56 PCB
[39]Report dated 26 November 2010, Exhibit 2 at page 59 PCB
[40]Report dated 19 August 2011, Exhibit 2 at page 66a PCB
[41]Report dated 27 April 2011, Exhibit 2 at page 67 PCB
49 Mr Westh was of the opinion that the plaintiff suffered chronic mechanical back pain although the precise underlying cause was not clear. Examination revealed a painful restrictive range of movement with no evidence of any radiculopathy. He considered him unfit to perform his pre-injury duties but was capable of performing suitable employment.
50 Similarly, Mr Kossman made an ultimate diagnosis of mechanical back pain at lower lumbar spine with a basis of mild bilateral facet joint degenerative changes at the L5-S1 level which was consistent with the injury on 19 June 2007. He also was of the opinion that the plaintiff was unfit to perform his pre-injury duties but has a capacity to perform suitable employment.
51 Dr Horsley was also of the opinion that the plaintiff suffered chronic mechanical back pain with no radicular component. Furthermore, she considered him unfit for his pre-injury duties but fit for suitable employment such as the work he undertakes as a traffic controller.
52 It is convenient to also refer to the medico-legal examinations relied by the defendant. These consist of examinations by:
(a)the general surgeon, Mr Michael Troy on 1 August 2007[42];
(b)the occupational physician, Dr Ralph Poppenbeek, on 30 October 2007[43];
(c)the occupation physician, Dr Chris Baker, on 26 May 2009[44];
(d)the orthopaedic surgeon, Mr John O’Brien, on 12 August 2009[45];
(e)the orthopaedic surgeon, Mr Brendan J Dooley, on 23 May 2011[46].
[42]Report dated 2 August 2007, Exhibit B at pages 30-35 DCB
[43]Report dated 8 November 2007, Exhibit B at page 36 DCB
[44]Report dated 9 June 2009, Exhibit B at page 41 DCB
[45]Report dated 20 August 2009, Exhibit B at page 46 DCB
[46]Report dated 24 May 2011, Exhibit B at page 52 DCB
53 Mr Troy diagnosed a strain of the left sacroiliac joint which was contributed to by his employment with the defendant. At the time of his examination, he considered the plaintiff was not fit for his pre-injury duties, but fit for sedentary light work.
54 Dr Poppenbeek considered that the plaintiff presented with an acute episode of back and left leg pain from which he has “substantially recovered having resumed work”. It is noted that Dr Poppenbeek notes that he tended to agree with Mr Simm that the description of the pain was more consistent with discogenic pain rather than sacroiliac pain.
55 When Dr Baker saw the plaintiff in May 2009, he obtained a history that the plaintiff “used to” suffer symptoms down the legs, but he does not suffer any symptoms now (denied by the plaintiff). Furthermore, Dr Baker obtained a history that the plaintiff sleeps “pretty well” and occasionally takes painkilling medication – about five tablets a week. Dr Baker was of the opinion that the plaintiff had suffered discal injury at L5-S1 level which is continuing to cause him intermittent symptoms and restrict his ability to undertake unrestricted pre-injury duties. He did consider the plaintiff was capable of suitable employment such as that which he was performing as a traffic controller.
56 Mr O’Brien considered that the plaintiff presented with a mild restriction of lumbar movement accompanied by complaints of back pain and some local tenderness. He considered there was no evidence of any nerve root compromise, as confirmed by the radiological investigations. He considered that the plaintiff had suffered non-specific back pain which, over time, has responded to conservative treatment. In particular, Mr O’Brien stated:
“The clinical condition now does appear stable as the patient reports little change in what now appears to be back pain predominantly aggravated by any heavy physical stress. The patient indeed currently does not require any specific active treatment and in fact has learnt to self manage the problem by avoiding physically stressful activity and controlling any exacerbation of pain with analgesic medication. …”[47]
[47]Exhibit B at page 48 DCB
57 Examination by Mr Dooley revealed marked limitation of lumbosacral spine or movement with muscle spasm mainly noted in the paravertebral muscles of the lumbar spine on the left hand side. Examination revealed no signs of radiculopathy affecting either leg with no neurological deficit.
58 Mr Dooley expresses the opinion that he agrees with Mr Simm, the treating orthopaedic surgeon, in that the plaintiff suffers from non-specific back mechanical pain where no pathological basis has been clearly established, but the probabilities are that he sustained some disruption of the intervertebral disc at the lumbosacral level without radiculopathy affecting either leg (that is, no neurological involvement). Furthermore, Mr Dooley considered that such condition was “substantially and materially” contributed to by the injury on 19 June 2007. Mr Dooley considered the plaintiff unfit for his pre-injury employment but capable of performing suitable employment such as traffic control.
Analysis of the Evidence
59 There is no issue, and I so find, that the plaintiff suffered an incident of back injury arising out of or in the course of his employment on 19 June 2007.
60 After consideration of all the evidence, I consider that the nature of the injury is that as described by the treating orthopaedic surgeon, Mr Simm, (with whom Mr Dooley agreed) that the plaintiff suffers from non-specific back mechanical pain where no pathological basis has been clearly established. Both Mr Simm and Mr Dooley considered that there was some degree of internal disc disruption, probably at the L5-S1 level, without radiculopathy. The orthopaedic surgeon, Mr Westh, and the occupational physician are of a similar view.
61 Clearly enough, on the basis of the CT scan of the plaintiff undertaken on 25 June 2007 and the MRI scan of the plaintiff undertaken on 26 November 2007, there is no focal lumbar disc pathology and no evidence of nerve root compression. The absence of significant pathology, as demonstrated on the CT scan and the MRI scan, although relevant is clearly not conclusive as to diagnosis. In passing, it was submitted by counsel for the defendant that one would probably consider that minimal pathology would give rise to minimal symptoms. As pointed out in RJ Gilbertsons Pty Ltd v Skorsis,[48] it is not to the point whether the injury may be considered to be modest, but rather, whether the injury brought about impairment or loss of body function.[49]
[48][2000] VSCA 51
[49]RJ Gilbertsons Pty Ltd op cit at para [25]; see also Humphries v Poljak [1992] 2 VR 129 at para [134]
62 Furthermore, again after consideration of all the evidence, I find that the back injury on 19 June 2007 resulted in permanent impairment of the low back with some consequences.
63 The issue becomes whether or not “the consequences of such low back impairment in relation to ‘pain and suffering’ are, when judgment by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked and as being at least very considerable”.
64 Counsel for the first defendant did not attack the credit of the plaintiff and appropriately conceded that the plaintiff suffered some consequences as a result of such back impairment, but such consequences did not satisfy the narrative test. In this respect, there was no attack on the credit of the plaintiff but, rather, an analysis of what he has actually “lost” as a result of such back impairment.
65 Perhaps this is most graphically displayed by the video material that was shown to the Court. Prior to the showing of such video, the plaintiff described in detail the various aspects of his employment as a traffic controller which, on occasion, does involve the use of a crowbar and shovel. Furthermore, it is necessary, during the course of his duties as a traffic controller, to remove and replace traffic control equipment from a utility which he drives to various work sites. In particular, the various bollards used to control traffic weigh in the order of six kilograms. The video material was consistent with his description of his duties and did involve him bending on some occasions.
66 Counsel for the first defendant did not suggest, appropriately, in my view, that the activities shown in the video were inconsistent with any evidence of the plaintiff, but rather, the video supported the general proposition that the plaintiff could perform a reasonable range of duties in his day-to-day employment activities.
67 About four months after leaving the employment of the first defendant because of persistent pain and stiffness in his back and a lack of support from the first defendant, the plaintiff commenced employment with Traffica on 12 March 2008 where he remained until March 2009, after which he commenced employment with another traffic control company, ATC, where he continues to be employed. He describes his present employment with ATC to be satisfactory and has a “sympathetic boss” who knows about his back injury and is supportive, and he can sit or stand as he requires. Furthermore, he largely has the assistance of another person to assist in his duties.
68 I find that the plaintiff is clearly capable of such type of work and also find that he is earning significantly more in his present employment than what he was earning with the defendant.
69 The relevance of alternative employment in determining whether a person has suffered a “serious injury” in relation to “pain and suffering” was first referred to by Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd.[50] However, later authority makes clear that the fact that a worker enters into alternative employment which obviates any economic loss which the worker might otherwise have suffered, does not support the proposition that the pain and suffering consequences of the impairment are necessarily less than “very considerable”. In this respect, in Stijepic v One Force Group Pty Ltd[51] Ashley JA and Beach AJA stated:
“…it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[50][2006] VSCA 292 at para [24]
[51][2009] VSCA 108 at para [47]
70 Counsel for the defendant further submits that the plaintiff has had reasonably scant treatment for his low back injury and, although some activities have clearly been affected by his low back impairment, no particular activity (with the exception of the trail bike riding which the plaintiff described as a weekly social activity) has ceased but, rather, has been reduced or done in a different way. For example, whereas the plaintiff enjoyed camping in a tent with his family prior to the injury, he continues to go camping but with a pop-up van rather than being called to erect and dismantle a tent. Furthermore, such activities as he enjoyed with his partner’s “sports mad” son prior to the injury have been inhibited as a result of his back impairment. Although he does perform some activities, including gardening and mowing the lawns, these have diminished, as has the extent of his social life.
71 After consideration of all the evidence, I consider the circumstances of this matter are borderline. On balance, I am persuaded that the consequences suffered by the plaintiff as a result of his low back impairment may be fairly described as being more than significant or marked and at least very considerable. I find in favour of the plaintiff for the following reasons:
(a)Although the pathology is not significant, the consensus of medical opinion (with the exception of Mr Troy) is that a discal injury impacts on his capacity to perform heavier forms of work. Although not completely clear, the evidence suggests that the plaintiff gave away bricklaying because of a diagnosis of pericarditis which may well suggest that, prior to the injury, the plaintiff should have avoided heavier forms of work in any event. Notwithstanding, the plaintiff had performed fishing work and relatively heavy work prior to his commencement of employment with the defendant. Given his level of education and industrial background, I am of the opinion that a discal injury further limits the type of work that the plaintiff can undertake. It is fortunate that he has an understanding employer who provides another worker to assist him.
(b)It is clear enough that the plaintiff has had little formal treatment in relation to his back since early 2008. Indeed, Dr Chesney, who has been his treating general practitioner over the last couple of years, has only treated him on one occasion (10 October 2011) for his back condition. Notwithstanding, I accept that the plaintiff has constant low-grade pain which continuously flares up at different times. Although the plaintiff fluctuated from saying such flare-ups were anything from three to five times a week to every week or so, I gained the impression that the plaintiff was never pain free and had flare-ups on a reasonably regular basis. Furthermore, I accept that to control such pain, he takes a combination of Voltaren (anywhere from three to five times a week), Panadeine Forte, three to four times a week but up to six times a week, and amphetamines.
(c)In respect to the Panadeine Forte, the plaintiff gave evidence that he obtained such medication from a friend rather than obtaining it on a prescription from a doctor. Although there is no particular reference in the reports of obtaining Panadeine Forte in such a manner, the plaintiff gave frank evidence that he tended to avoid going to doctors where he had to pay a fee just to get a prescription when he could obtain tablets through a friend. Although I have some reservations about this part of the evidence, I tend to the view that he was attempting to give a truthful account to the Court of the circumstances surrounding his injury. I also accept that he tends to drink alcohol more than he would prior to the injury to help relieve the pain and also sleep at night.
(d)Both he and, more particularly, his partner referred to difficulties that he has with sleeping because of pain in his back. Furthermore, the intimate life between the plaintiff and his partner, according to the partner, was almost “non-existent now”.
(e)Although I accept that the plaintiff has not totally lost the ability to do gardening, mow lawns, go fishing or go camping or play with the son of his partner, each activity has been diminished and affected by his low back injury. I gained the impression that the plaintiff was a man who generally liked “the outdoors” prior to his injury and any diminution in his enjoyment of that activity would be significant for him. Such a situation is compounded when one considers the evidence of the partner, which I accept, that the plaintiff tends to be far more inactive now, particularly after returning from work which seemingly leaves him exhausted.
Conclusion
72 Pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for “pain and suffering” damages in respect to a back injury suffered by him on or about 19 June 2007, arising out of the course of his employment with the first defendant.
73 I will hear the parties as to the appropriate orders sought.
ANNEXURE A
74 The plaintiff tendered the following material:
(a)Exhibit 1 – Affidavits sworn by the plaintiff on 21 January 2010, 4 April 2011 and 16 June 2011, and affidavits sworn by A Walk on 5 October 2011. Such documents are found at pages 24 to 34C of the Plaintiff’s Court Book (“PCB”).
(b)Exhibit 2 – Medical reports from:
· the general practitioner, Dr Sandra Sandrasegaram, dated 10 July 2007, 14 August 2004, 16 August 2007, 19 November 2007 and 10 June 2009;
· the orthopaedic surgeon, Mr Rodney Simm, dated 21 August 2007, 9 October 2007, 4 December 2007 and 22 December 2008;
· the physiotherapist, Mr P Hunter, dated 1 June 2009 and 19 November 2009;
· the general practitioner, Dr D Chesney, dated __ November 2010;
· the orthopaedic surgeon, Mr R Westh, dated 31 May 2010;
· the general surgeon, Mr T Kossmann, dated 26 November 2010 and 19 August 2011;
· the occupational physician, Dr R Horsley, dated 27 April 2011; and
· CT scans dated 25 June 2007 and MRI scans dated 26 November 2007.
All such documents are contained at pages 35 to 73 and page 75 of the PCB.
75 The defendant tendered the following material:
(a)Exhibit A – Worker’s claim for day 19 December 2006 at pages 1 to 3 of the Defendant’s Court Book (“DCB”), a claim form dated 12 July 2007 at pages 6 to 7 DCB and a register of injuries dated 19 July 2007 at page 10 DCB.
(b)Exhibit B – Medical reports from:
· the general surgeon, Mr M Troy dated 2 August 2007;
· the general practitioner, Dr R Poppenbeek, dated 8 November 2007;
· the occupational physician, Dr C Baker, dated 9 June 2009;
· the orthopaedic surgeon, Mr J O’Brien, dated 20 August 2009; and
· the orthopaedic surgeon, Mr B Dooley, dated 24 May 2011.
All such documents are found at pages 30 to 56 of the DCB.
(c)Exhibit C – four videos of surveillance on 13 and 14 July 2007; 26 October 2010; 29 March 2011; and 10 and 11 July 2011.
(d)Plaintiff’s taxation summary at page 77 PCB.
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