Hawkins v DHL Express (Australia) Pty Ltd
[2013] VSCA 26
•20 February 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0126
| JOHN HAWKINS | Appellant |
| v | |
| DHL EXPRESS (AUSTRALIA) PTY LTD (ACN 001 112 929) | Respondent |
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| JUDGES | REDLICH and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 August 2012 |
| DATE OF JUDGMENT | 20 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 26 |
| JUDGMENT APPEALED FROM | John Hawkins v DHL Express (Australia) Pty Ltd (formerly DHL International (Aust) Pty Ltd) [2011] VCC 1182 |
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ACCIDENT COMPENSATION – Accident Compensation Act 1985, s 134AB(16)(b) – Common law damages – Whether workplace injury had serious injury consequences – Whether judge erred in regarding failure to take medication or continue with treatment as evidence that pain and suffering consequences were less than very considerable – Whether judge erred in treating worker’s advanced age as supportive of proposition that injury not serious – No vitiating error – Appeal dismissed. Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, applied. Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, considered.
ACCIDENT COMPENSATION – Test to be applied to the appeal – Section 134AD Accident Compensation Act 1985 repealed – Judge’s determination of serious injury only set aside for specific error or if plainly wrong or wholly erroneous – Mobilio v Balliotis [1998] 3 VR 833, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D F Hore-Lacy SC and Mr G Chancellor | Rose Mary Brondolino & Co |
| For the Respondent | Mr S A O’Meara SC and Ms R L Kaye | Herbert Geer |
REDLICH JA:
I will ask Justice Tate to deliver the first judgment.
TATE JA:
Introduction
The appellant, Mr John Hawkins, (‘the worker’) appeals against orders made by a judge of the County Court dismissing his application for leave, brought under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), to bring common law proceedings for pain and suffering damages in respect of a claimed neck and right shoulder injury caused by his employment with the respondent, DHL Express (Australia) Pty Ltd (‘the employer’).[1] Leave was refused on the ground that the injury was not a ‘serious injury’ within the statutory definition.
[1]Hawkins v DHL Express (Australia) Pty Ltd (Unreported, County Court of Victoria, Judge K L Bourke, 12 August 2011) (‘Reasons’). There was no dispute that the worker’s employment with the employer had caused the injury alleged.
The worker relied on paragraph (a) of the definition of ‘serious injury’ to be found in s 134AB(37) of the Act, which refers to a ‘permanent serious impairment or loss of a body function’. The body function relied upon was the cervical spine and the right shoulder. The judge found that the impairment did not have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, could be fairly described at the date of the hearing as being ‘more than significant or marked, and … at least very considerable’.[2]
[2]Section 134AB(38)(c). See also ss 134AB(16) and 134AB(19) of the Act.
At the hearing of the appeal, the question was raised as to the test to be applied to the appeal, given that the repeal of s 134AD of the Act took effect on 10 December 2009.[3] Section 134AD had imposed a requirement that this Court ‘shall decide for itself’ whether the injury was a serious one.[4] However, as the proceeding in the County Court had commenced on 21 April 2010, after the repeal of s 134AD, the parties assumed that s 134AD had no application to this appeal and that appeals to this Court from a determination on the hearing of a serious injury application in the County Court revert to the general appellate jurisdiction conferred by s 74 of the County Court Act 1958.[5] The test that applied in this context before the enactment of s 134AD was that expressed in Mobilio v Balliotis,[6] namely, that the judge’s determination that a plaintiff had or had not suffered a serious injury ‘should be set aside only for specific error or if plainly wrong or wholly erroneous’.[7] The parties proceeded on the assumption that the effect of the repeal of s 134AD is that the test in Mobilio has been reinstated. I consider that their assumption was correct.[8]
[3]Section 134AD was repealed by s 60 of Act No 9 of 2010, the Accident Compensation Amendment Act 2010. Section 60 was deemed to have come into operation on 10 December 2009: see s 2(5) Accident Compensation Amendment Act 2010.
[4]Section 134AD provided:
On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.
This was not an error-based jurisdiction: see Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124.
[5]Section 74(1) of the County Court Act 1958 provides:
Subject to this section, any party to a civil proceeding who is dissatisfied with any judgment or order of the court constituted by a judge other than an associate judge may appeal from the same to the Court of Appeal, notwithstanding that the civil proceeding may have been brought in the County Court by consent as provided by this Act.
[6][1998] 3 VR 833 (‘Mobilio’).
[7]Ibid 858 (Phillips JA); see also 835 (Winneke P); 836–7, 841–3 (Brooking JA), 853–4 (Ormiston JA), 860 (Charles JA).
[8]See Murray Goulburn Co-Op Co Ltd v Filliponi [2012] VSCA 230 [48] (Neave JA and Beach AJA), to the same effect. See also Bezzina v Phi [2012] VSCA 161, [27] (Harper JA and Beach AJA, adopting also the alternative formulation of ‘patently unsustainable’ as referred to by Buchanan JA in Cowden v Transport Accident Commission [2003] VSCA 198, [18]).
Work history
The worker has been in the workforce since he left school at 15 years old. He has performed a variety of work including in workshops, motor repair shops, as a labourer and as a driver of trucks and machinery. From 1966 to 1997, he worked in the meat industry as a delivery driver/meat ‘lumper’ (unloader) and sometimes in sales. During that time, in 1981, he started his own wholesale meat business with a truck he had purchased from a previous employer. He later entered paid employment and subsequently purchased another truck and worked as a sub-contractor.
In March 1998, at age 59, the worker commenced employment with the employer. The employer is a freight transport and courier business. The worker was employed as a driver of an 8-tonne truck. From 2000, the worker was based at Tullamarine airport. His work involved assisting with the unloading of freight containers known as ‘cans’ from aircraft and the loading of larger freight containers known as ‘cages’ onto trucks. Each cage could potentially weigh up to 600 kilograms. He was required to manually push and shove cages from the warehouse to the back of a truck. This task involved the use of a ‘dolly’ (a small platform on wheels) and it required him to maintain one hand and arm on the dolly lever to keep the cage tilted and moving forward on the wheels, while using the other hand or arm to grip the cage and pull it and control its movement over an uneven surface. These tasks were awkward and placed a lot of strain on the worker’s neck and shoulders.
While working at Tullamarine, the worker worked six days a week, from Monday to Saturday, and did a lot of overtime. In 2004, he was earning about $850 net per week.
Over the years, including while employed by previous employers, he often experienced back, neck and shoulder pain due to the nature of his work. The pain and stiffness would usually settle overnight and occasionally he would see a physiotherapist. He did not require time off work.
He was diagnosed with an inguinal hernia in early 2004 but continued to perform the same work duties.
The first incident
In or about July 2004, while working at Tullamarine, the worker was pushing and attempting to manoeuvre a loaded cage weighing between 500 and 600 kilograms onto the dolly when he experienced what he described as a ‘sudden and severe’ pain in his neck that extended to his right shoulder (‘the first incident’). He also experienced a ‘sudden feeling of pressure’ in his head. He became unstable on his feet and vomited. He had never previously experienced such sudden and severe neck and shoulder pain.
The worker completed his shift and reported the incident to his team leader. He rested at home and hoped his neck and right shoulder pain would settle. It did not. He attended physiotherapy sessions on about seven to 10 occasions in August and September 2004. He continued working on his normal duties and continued to suffer from neck and right shoulder pain. He attended his general practitioner, Dr Donald James McColl, on 20 September 2004, because of the ongoing pain. He also underwent surgery to repair his inguinal hernia on 21 September, which required him to take leave from work for about two months.
Dr McColl arranged a CT scan of the worker’s neck and he prescribed medication while also referring the worker to an osteopath. Neither the medication nor the osteopathic treatment provided any significant relief.
The worker returned to work with the employer in about mid-November 2004 at which time his neck and right shoulder pain continued. There was no change to his duties.
The second incident
On or about 8 February 2005, the worker was manoeuvring loaded cages into the back of the truck when the pain suddenly worsened and he experienced pain across both shoulders, particularly his right shoulder (‘the second incident’). He finished his shift but felt he could no longer cope with the duties he was doing and reported the situation to the team leader.
On the same day, he saw Dr McColl, who prescribed anti-inflammatory medication (Mobic) and medication for pain relief (Panadeine Forte). Dr McColl certified the worker unfit for work. The worker made a claim for compensation which was accepted. He received WorkCover payments for two and a half years.
There was no available work which the worker could perform. He could drive a truck but not unload it. The employer had no positions for a driver that did not involve loading or unloading a vehicle. The worker was assessed by a rehabilitation organisation, WorkFocus Australia, and it classified him as unfit for work. At the time of the first and second incidents (collectively, ‘the incidents’), the worker was about 65.[9] He did not want to retire. There was no retiring age for his position and the employer was prepared to keep employing workers as long as they could perform the work. If not for his injuries, the worker would have continued working for the employer indefinitely.
[9]He was born on 28 September 1939.
In May 2005, Dr McColl referred the worker to an orthopaedic surgeon, Mr David de la Harpe, who organised a magnetic resonance imaging (‘MRI’) scan. He saw Mr de la Harpe again in June 2005 but has not returned to see him or any other specialist for his neck or right shoulder since that date.
The worker’s osteopathic treatment continued until WorkCover determined that it should be reduced, and he began hydrotherapy in late 2006.
The worker’s compensation payments eventually ceased in about August 2007. By then, he had been off work for over two years. He went onto the aged pension but struggled financially and felt bored and useless at home. After a period of time on an aged pension, his son-in-law arranged for him to do delivery work with Pro Air Systems (‘Pro Air’), an air-conditioning company, delivering architectural drawings and light parts or equipment in a company ute to work sites.
At the date of the hearing of the application, the worker was 71 years of age. He is now 73.
The judge’s refusal of leave
In the County Court, the worker relied upon two affidavits he had sworn and was cross-examined. Dr McColl also gave oral evidence and was cross-examined. The worker and the employer relied on medical reports, radiological reports and vocational materials.
(1) Worker’s evidence
The worker emphasised that he was able to work at his own pace with Pro Air and avoid labour which he considered might cause him increased neck and shoulder pain. He worked from 7:30am to 3:30pm at the latest and spent most of the time on the road. As soon as he arrived at a job, he would undo the ropes and the other workers on site would unload the ute.
He initially worked between one and three days a week but he has increased those hours and was usually working 28 hours a week with Pro Air at the time of his application to the County Court and was earning an average of $565.00 gross per week. He continues to suffer a significant loss of wages,[10] despite having this alternative employment and receiving a part aged pension.
[10]There was no claim for economic loss: Reasons [64].
He has never had many recreational activities, mainly because he has always worked as hard as he could. He has ceased playing golf but he only played about six times a year before becoming impaired. He still tries to undertake light gardening and maintenance work around the house. His wife is a keen gardener. He now sits around and reads books in his spare time, whereas before the incidents he used to get out into the garden and be active. He is generally more dependent on others to assist him.
In an affidavit sworn in December 2009, he deposed that he suffered ‘constant’ neck and shoulder pain, mainly in the right shoulder. The pain was ‘variable’ but even when he did not engage in activity, he experienced some pain. He had also experienced feelings of numbness in his left hand, particularly at night. He suffered constant pain that ‘dr[ove] him nuts’[11] and interrupted his sleep.
[11]Ibid [56].
In his affidavit sworn 10 November 2010, the worker deposed that he continued to suffer pain and restrictions similar to those set out in his previous affidavit. He would go to bed at about 9:30pm and usually wake at about 2:30am because his neck would start to ache and he had pain in his right arm. He would then toss and turn until he got up at about 5:30am. In his evidence, he rated his pain at about eight out of 10. He had not taken anti-inflammatory or pain-relieving medication, such as Mobic, Tramal, Panadol or Nurofen, in five years, because it did not provide him with pain relief. He ceased physiotherapy in 2004. The osteopathic treatment ceased in 2007. He last saw Dr McColl in relation to his shoulder and neck condition in September 2007.
In the twelve months before the hearing, the worker had developed a non-work-related heart problem for which he was prescribed Warfarin and Atenolol.
He is not having any active medical treatment for his continuing neck and right shoulder pain.
(2) Worker’s treating medical history
The worker relied on a series of reports by Dr McColl, dated December 2006, April 2009 and May 2011. In those reports, Dr McColl consistently expressed the opinion that: (1) the incidents had caused soft tissue cervical ligamentous injuries; (2) this had aggravated the worker’s longstanding but likely asymptomatic cervical degenerative disease; (3) the injuries were permanent and the worker was unlikely ever to return to anything other than casual work; (4) domestic and recreational activities could only be undertaken for a short time before aggravating the worker’s cervical neck symptoms; (5) treatment through analgesics and anti-inflammatory medication had been used to relieve the pain but the worker had only partially responded and once he began to take Warfarin he was restricted to taking only paracetamol; and (6) the worker’s employment was the substantial contributing factor to the onset of the pain in his neck.
In particular, in the May 2011 report, Dr McColl advised that he did not believe any rehabilitation or medical treatment would significantly affect the consequences of the impairment to the worker’s spine. All the worker’s activities were affected by ongoing cervical spine pain and he considered that the worker would only be able to work in a casual capacity, that his pain would worsen over time and that he would require stronger and more frequent analgesia.
During cross-examination, Dr McColl accepted that the physical nature of the work engaged in by the worker for most of his life was a substantial contributing factor in the development of his condition, but he said that, nevertheless, the incidents had ‘triggered’ the severity of his symptoms. He also reiterated the view expressed in his reports regarding the lack of prospects for the worker’s rehabilitation. He considered that the worker’s condition was not attributable just to his age but rather depended on the level of activity he had engaged in, particularly the heavy physical work.
Dr McColl acknowledged that the worker had not seen him specifically about his neck since September 2007, although on occasions the worker had spoken to him about it in consultations for the cardiac condition. The worker had indicated that it still restricted him and still hurt, but that was the extent of the discussion. He considered that the worker would not be able to undertake employment involving the lifting of heavy items, on a repetitive basis, and that driving five days a week would be difficult. He conceded that he would not have thought that the worker would be capable of doing the kind of work that he now engages in for Pro Air.
(3) Investigations
The worker was referred for a CT scan in September 2004. This revealed some degenerative changes to his cervical spine; specifically, spinal stenosis due to disc protrusion and end plate osteophytosis at levels C4-5 and C5-6. There was foraminal narrowing at the level of C5-6 and C6-7 and mildly on the right at C3-4. There was mild spinal stenosis due to disc bulging, mild disc protrusion or end plate osteophytosis at levels C2-3, C3-4 and C6-7.
The MRI scan organised by Mr de la Harpe was done in order to determine whether a significant disc prolapse had occurred. The results of the MRI indicated that the worker was suffering from advanced cervical spondylosis with severe right foraminal stenosis at C3-4 due to moderate right foraminal disc protrusion and moderate facet osteoarthritis. There were bilateral foraminal stenoses due to osteophytes and disc bulges at C4-5, C5-6 and C6-7. Mr de la Harpe concluded that the worker had suffered an acute mechanical exacerbation of pre-existing degenerative changes in his neck.
(4) Worker’s medico-legal evidence
The worker was examined on three occasions by Mr Russell Miller, an orthopaedic surgeon, in 2007, 2009 and 2011. In 2007, Mr Miller found that the worker had an underlying degenerative disease in his cervical spine of a significant degree aggravated by the work injury with only a fair prognosis of recovery. He considered that the worker also had some ongoing low back symptoms likely to be due to degenerative disease that were moderate and the prognosis was good. There was minor rotator cuff pathology in the shoulder and the worker had only minimal symptoms. He considered then that conservative treatment was appropriate, that the worker could not return to work that involved repetitive bending, lifting, pushing and pulling and that he could not return to his former occupation. He considered that the worker’s mobility had not been significantly affected and that his leisure activities would be limited to a degree by the degenerative disease.
On examination in 2009, Mr Miller considered that the worker had significant symptoms in the cervical spine and there appeared to be a pattern of ongoing deterioration including the development of left arm pain. He thought the long-term prognosis for this condition was fair to poor and his views remained unchanged with regard to the other conditions. He considered that conservative treatment would be necessary indefinitely. He also noted that the worker had taken up working again but expressed the view that his return to work would likely be subject to further restrictions within the next five years. He regarded the worker’s injuries as having stabilised in the sense that there was no prospect of improvement.
After the final examination in 2011, Mr Miller confirmed that the worker’s prognosis in relation to his neck was ‘fair to poor’ and advised that the impairment was the result of a physical injury with no evidence of significant psychological or functional overlay.
(5) Employer’s medical evidence
The employer relied on a report from Mr de la Harpe in January 2006, two reports from an orthopaedic surgeon, Mr Michael Shannon, in 2005 and 2010, and two reports and a letter from another orthopaedic surgeon, Mr Ian R Jones, in March and September 2010 and June 2011, respectively.
The report from Mr de la Harpe concluded that the worker did not require surgery. At that stage, Mr de la Harpe considered that the worker’s condition would improve with osteopathic and analgesic treatment and that he was capable of performing some form of work, although not work involving the type of heavy manual handling he had previously undertaken.
In 2005, Mr Shannon expressed the view that the worker was suffering from significant pre-existing longstanding multi-level cervical disc degeneration. On examination, the worker had restriction of cervical movement by about a quarter, a full range of shoulder movement and no significant spasm or hesitancy. There was tenderness in the right trapezius muscle, and no neurological abnormality. He considered that the disc degeneration was in part age-related and may well have been contributed to by his former occupation as a meat lumper and further aggravated by his previous duties with the employer. He considered that the worker was not fit for his former occupation or for any other heavy physical work but that he might be capable of light duties.
After the re-examination in 2010, Mr Shannon considered that there had been little change in the worker’s condition since his previous examination. There was still a mild restriction of cervical movements and a virtually full range of shoulder movement, with no neurological abnormality. He noted that the worker had said he was by then experiencing pain 24 hours a day but had resumed light part-time physical work appropriate to his condition.
When the worker was examined by Mr Jones in March 2010, he reported symptoms of pain ‘24/7’. Mr Jones observed that the worker’s cervical spine had an almost full range of flexion and only slightly limited extension. Rotation to the right was moderately limited, and minimally limited to the left. The site of tenderness was indicated to be the right trapezius muscle. Neurological assessment in both upper limbs was normal. In his view, the worker suffered from symptoms of neck pain and stiffness, with referred pain to his left and right shoulder girdles and some symptoms but no clear signs of neurological involvement affecting the left and right hands. He thought the prognosis was likely to be one of persisting symptoms, pain and stiffness in the short term, with a possible slow deterioration in the long term.
He considered that the worker’s employment with the employer had been a minor but significant contributing factor to his complaints and that the major proportion of his incapacity had resulted from the generalised degenerative state affecting his cervical spine. He concluded that the worker had a permanent incapacity for heavy physical employment but was fit for restricted work.
In September 2010, Mr Jones said the outlook for the worker would be one of persisting neck pain and stiffness, long term, with a possible slow deterioration. He confirmed his view that the degenerative changes predated the incidents and that work continued to be a minor contributing factor to the worker’s symptoms. He also confirmed that the worker did not have a capacity to do his pre-injury work, and had a permanent incapacity for heavy physical employment but was fit for work which did not require extremes of pulling, pushing or heavy lifting. He considered the worker had learned to live with the pain.
By letter dated 6 June 2011, Mr Jones advised that he believed the worker would be capable of undertaking his current part-time delivery job on a full-time basis in spite of his neck condition and right shoulder girdle complaint.
(6) Vocational evidence
In May 2006, WorkFocus Australia reported that the worker advised that he was experiencing constant neck pain and pain in the back of his shoulder, and that he considered he did not have the ability to return to work and was concerned about his age being a barrier to employment. While it identified some alternative employment options as goals for the worker (including customs service officer; delivery driver/courier (within medical restrictions); forklift driver (within medical restrictions) and general clerk), it advised that at that stage the worker was unable to return to work as he lacked the relevant capacity.
(7) Judge’s conclusion that consequences not serious injury consequences
The judge accepted that the worker had suffered a compensable injury to his cervical spine caused by the nature of his work for the employer, especially the incidents. Her Honour accepted that the worker ‘continues to suffer work-related cervical symptoms which are organically based’,[12] noting that although Mr Jones and Mr Shannon both appeared to suggest that it was degenerative factors rather than the incidents which caused the worker’s condition, they had both conceded that there was some ongoing contribution from the workplace injuries and Mr Miller and Dr McColl had each concluded that the worker suffered from the ongoing effects of the work-related aggravation of his pre-existing degeneration of the cervical spine.[13] Her Honour also accepted that the worker’s reports of pain and interference with his work activities were to be treated as credible, as was accepted by counsel for the employer.[14]
[12]Ibid [197].
[13]Ibid [195]–[196].
[14]Ibid [198].
As mentioned at the outset, her Honour rejected the proposition that, as at the date of the hearing, the consequences of the aggravation of the worker’s pre-existing degenerative change suffered as a result of the incidents during the course of his employment with the employer were serious injury consequences.
The basis of her Honour’s reasoning lay primarily in her application of the observation made by Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2):[15]
the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.
[15][2008] VSCA 260 [27].
In this context, her Honour made the observation that the worker had retained a capacity to work notwithstanding his impairment. She noted that he was able to work for four days one week and three days the following week as a driver for Pro Air, delivering plans or air-conditioning products to various sites throughout the Melbourne metropolitan area, and that the only restriction imposed upon his work activities by his employer was that he was not to unload the company vehicle and that others were to assist him in that regard.[16] Further, her Honour observed that there were ‘no medical restrictions whatsoever placed on the [worker’s] duties’ and that indeed Dr McColl had not realised that he had returned to work.[17] Although the worker had reported constant pain, he had not required medication to assist in the carrying out of his work duties for Pro Air, nor had he sought medical treatment or complained of increased neck problems to any treating doctor since resuming work.[18] The work for Pro Air involved prolonged driving activity for the whole day, driving between various sites in accordance with a work plan and calls on the day. Her Honour concluded that the worker was able to work continuously without set breaks and thus had a post-injury capacity for light work. She said: [19]
It is not a situation where the [worker] does a delivery and then returns to the base and rests between jobs.
Whilst I accept the [worker], who is now aged nearly seventy-two, does not have a capacity for unrestricted heavy manual work and has suffered a loss of income, he clearly has a capacity for light work of this nature on a fairly sustained basis working a full eight-hour day several days a week without the need for breaks.
[16]Reasons [204]–[205].
[17]Ibid [206].
[18]Ibid [207].
[19]Ibid [208]–[209].
To similar effect, the judge observed that the worker had remained relatively active in his home life, performing gardening and light maintenance work, not having had a particular interest in such work before the injury. Similarly, although the worker was unable to play golf as he had before the injury, this had not been of great concern to him.[20]
[20]Ibid [216].
With respect to the assessment of the pain suffered by the worker, the judge noted that it was important to consider what he had done about his pain. Although he had complained of constant pain for over five years since the incident, the worker had ‘not taken any medication or required any treatment, explaining that it did not provide him with any benefit’.[21] She concluded that the worker’s pain did not amount to an ‘endurance of permanent daily pain requiring frequent medication’ as described by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd.[22] The judge also noted that, although the worker had problems sleeping, ‘he has not required any medication or sought any treatment in this regard’.[23]
[21]Ibid [212].
[22](2007) 17 VR 592, 629 [199].
[23]Reasons [212].
Her Honour considered the worker’s age to be relevant. She said:[24]
Whilst it may seem a somewhat harsh consideration, the [worker’s] advanced age is also relevant. As Beach AJA and Ashley JA said in Stijepic v One Force Group Aust Pty Ltd … when judging the pain and suffering consequences for the [worker] by comparison with other cases, it is relevant to look at the likely period for which these consequences will be experienced.
[24]Ibid [214] (citation omitted).
Taking into account the totality of the evidence, the judge rejected the application in respect of the impairment to the cervical spine:[25]
Taking into account the totality of the evidence, whilst I am satisfied that the pain and suffering consequences of the [worker’s] neck impairment as a whole are significant and marked, they do not meet the statutory definition of serious.
Accordingly, the application in relation to the cervical spine is dismissed.
[25]Ibid [217]–[218].
She also rejected the application insofar as it was based on injury to the worker’s right shoulder given that Mr Miller considered that the worker had only minimal symptoms in his shoulder and his prognosis in that regard was good, and Mr Jones considered that the right shoulder symptoms were referred pain attributable to the degenerative condition affecting the worker’s cervical spine.
Grounds of appeal
In his notice of appeal, the worker relied on seven grounds of appeal:
(1) The learned trial judge erred in finding that the worker did not suffer a serious injury within the meaning of the Accident Compensation Act 1985.
(2) The learned trial judge erred in attaching weight or too much weight to the fact that the worker took no medication and was receiving no treatment for his injury.
(3) The learned trial judge erred in attaching no weight or insufficient weight to the organic injuries that the worker sustained.
(4) The learned trial judge erred in attaching insufficient weight to the worker’s diminution in earning capacity as a result of his injury.
(5) The learned trial judge erred in attaching weight or too much weight to the worker’s age.
(6) The learned trial judge erred in attaching no weight or insufficient weight to the worker’s disturbed sleep experienced as a result of his injury.
(7) The learned trial judge erred in attaching insufficient weight to the extent and frequency of pain suffered by the worker as a result of his injury.
At the hearing of the appeal, leave was granted for the worker to rely upon an additional two grounds of appeal:
(8) The learned trial judge erred in placing weight or too much weight on the absence of any medical restrictions on the worker’s duties with Pro Air.
(9) The learned trial judge erred in finding that the worker did not rest between jobs and that he worked without the need for breaks in his employment with Pro Air.
Grounds 1, 2, 6 and 7: absence of medication, disturbed sleep, pain
In support of grounds 1, 2 and 7, the worker submitted that as there was no cross-examination regarding the levels of pain he experienced (eight out of 10) or the constancy of the pain (‘24/7’), and it was accepted that he was a credible witness suffering symptoms which were organically based, the judge ought to have concluded that he had suffered a serious injury. It was submitted that the judge was wrong to take into account what he had done about his pain, or what he had not done, because the reason he ceased taking medication or receiving treatment was because it did not provide more than limited relief. Moreover, he was later unable to take the vast majority of pain-relieving medication because of its incompatibility with Warfarin, which he needed to take as a result of his cardiac condition. Furthermore, Dr McColl had given evidence that the worker was ‘a pretty tough sort of a bloke’ who was ‘on the other end of the spectrum’ from being a hypochondriac. In those circumstances, it was argued, it would be quite wrong to treat the fact that the worker declined pain-relieving medication as indicative that the consequences of the impairment were less than very considerable. While taking pain medication daily may be evidence that there is ‘a real prospect of a “very considerable” consequence’, as it was considered to be in Kelso v Tatiara Meat Co Pty Ltd,[26] one cannot infer directly from the absence of daily medication that a person is not suffering ‘permanent daily pain’.[27]
[26](2007) 17 VR 592, 629 [199].
[27]Ibid.
Similarly, with respect to ground 6, the worker relied upon the uncontradicted evidence that his sleep was significantly disturbed because of the pain he suffered.
The employer responded by arguing that a determination of whether the consequences of an injury are serious ‘involves a value judgment, in which matters of fact and degree, and of impression, are operative’[28] and in relation to which no mechanistic formula can provide the answer.[29] The determination requires consideration of the whole of the evidence.
[28]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [41].
[29]See Humphries v Poljak [1992] 2 VR 129, 136–7 (Crockett and Southwell JJ), 167 (McGarvie J); Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
While the worker deposed that he experienced ‘constant’ pain, ‘24/7’, this could not automatically lead to an inference that he had suffered a ‘serious injury’ because he also gave evidence that his pain ‘varies’. It could not be concluded that the worker’s pain was regularly disabling because he did not give evidence to this effect. In particular, although he had worked as a delivery driver with Pro Air since May 2007, he did not give evidence of needing regular time off to deal with disabling pain. While it was true that the worker avoided activities that might increase his pain, he remained very active, including in his new employment. Although the worker’s evidence was that his sleep was disturbed, he also said that ‘a few beers … help[ed]’ and he did not give evidence of taking medication to assist his sleep or restrictions in his work as a consequence of sleep deprivation. Several medical practitioners had expected that the worker would need medication and treatment in the future, but this had not occurred, although he had undertaken treatment for about two years (including osteopathic treatment) while WorkCover was paying for the treatment.
The employer submitted that this history could not be ignored. While in the end the worker had not found much assistance from medication and treatment, the fact that he had not sought any treatment at all over a period of several years, and was not even taking paracetamol (which was compatible with Warfarin), confirmed the extent to which he had been able to return to regular and gainful employment while managing his pain and activity.
I agree. The analysis in Haden Engineering Pty Ltd v McKinnon,[30] as applied in Sutton v Laminex Group Pty Ltd,[31] demonstrates that, in determining the pain and suffering consequences of an injury, it is necessary to consider not only ‘what the plaintiff says about the pain (both in court and to doctors)’ but also ‘what the plaintiff does about the pain (eg medication, rest, seeking medical treatment)’ as well as ‘what the doctors say about the extent and intensity of the plaintiff’s pain’ and ‘what the objective evidence shows about the disabling effect of the pain’.[32] The judge was correct to consider all these matters and, in doing so, she did not fall into the error of regarding the failure to take medication, or continue with treatment, as in itself evidence that the pain and suffering consequences of the impairment were less than very considerable. Her Honour properly considered what the worker had done about the pain in the context of his own evidence about its intensity and effect and in the context of what the objective evidence said about the disabling effect of the pain. She was clearly alert to the need, when considering the disabling effect of pain, ‘to identify the extent to which the pain limits the [worker’s] physical functioning, and interferes with the [worker’s] enjoyment of life’,[33] that is, the extent to which ‘an area of work which [the worker] had enjoyed had been closed off to him’.[34] The worker had retained a capacity for the general type of work he had always done, albeit in diminished form, without medical restrictions, and this had proved to be sustainable despite his pain.
[30](2010) 31 VR 1, 4–5 [9]–[11].
[31](2011) 31 VR 100, 111–13 [51]–[71].
[32](2010) 31 VR 1, 4–5 [11].
[33]Ibid 5 [14].
[34]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [25] (Ashley JA).
Moreover, her Honour took into account, amongst other things, the fact that the worker had not complained of increased neck trouble to any treating doctor since returning to work, that the nature of his sleep disturbance had not been such as to require medication or treatment and that he had remained as active as possible, including pottering in the garden and doing some light home maintenance.
In those circumstances, in my opinion, it was open for the judge to find that the pain and suffering consequences were less than serious. Grounds 1, 2, 6 and 7 should be rejected.
Ground 3: organic injuries
The worker submitted that there was clear evidence of an acute mechanical exacerbation of pre-existing osteoarthritic changes in his neck and that the evidence of Mr de la Harpe, Mr Miller, Mr Jones and Mr Shannon was consistent in this respect, supported by the CT scan and the MRI scan. He argued that, the organic injuries being what they were, her Honour ought to have found that the worker had suffered a significant injury to his neck.
The employer responded by arguing that the fact of the worker’s injury could have little direct bearing on the degree and dimensions of the consequences of his impairment. It could be accepted that the injuries were organic but this was not itself determinative of whether the consequences of the impairment to the cervical spine satisfied the statutory threshold.
I agree. Her Honour carefully set out the evidence of Mr de la Harpe, Mr Miller, Mr Jones and Mr Shannon with respect to the aggravation of the worker’s pre-existing degenerative condition but this in itself did not answer the question, which was required to be answered under the Act, whether the consequences of that aggravation, by comparison with other cases in the range of possible impairments, were more than significant or marked and at least very considerable. In my opinion, the medical evidence, both of the treating doctors and the medico-legal consultants, left that question open. This was at best a borderline case on the evidence; it was not a case where a mere description of the organic injuries led inevitably to the conclusion that the worker had suffered a serious injury, as the worker appeared to suggest.
It follows that ground 3 should be rejected.
Ground 4: diminution in earning capacity
In support of ground 4, the worker submitted that the judge erred in attributing the importance she did to his post-injury capacity for light work because the evidence was that he was working to the extent of his capacity for about half the wages he was receiving before the injury. This considerable diminution in his earning capacity should have been treated as a proper basis from which to infer that the consequences of his impairment were more than significant or marked and were at least very considerable.
The employer submitted that the worker’s diminution in earning capacity could have no relevance because there was no claim for loss of earning capacity under ss 134AB(38)(e)–(g) of the Act.
In my opinion, a worker’s complaint based upon diminution in earning capacity is not restricted to a claim for loss of earning capacity under ss 134AB(38)(e)–(g). A diminution in earning capacity may indirectly be evidence that an area of work which a worker enjoyed has been closed off to him or her, or it may indirectly be evidence of the extent of the loss of enjoyment of life, including interference with particular recreational or social activities, depending upon a plaintiff’s pre-injury circumstances. However, I consider that the judge correctly took into account the worker’s diminution in earning capacity when she noted that he ‘continues to suffer a significant loss of wages’.[35] It was one of the factors to be considered alongside all the other relevant factors in determining whether the consequences of the impairment met the statutory test. On its own, it was not a factor that could be determinative.[36]
[35]Reasons [44].
[36]See the range of factors relevant to a plaintiff’s complaint of loss of enjoyment of life: Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, 5–6 [16].
Ground 4 should be rejected.
Ground 5: significance of worker’s age
It was argued that it was wrong for her Honour to attribute the significance she did to the worker’s advanced age. Her Honour purported to apply the reasoning expressed by Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd.[37] In Stijepic, the appellant was a man aged 28 at the time of the appeal. Their Honours said:[38]
The circumstances of this case, in our opinion, put it on the borderline. The appellant is a young man with low back pathology which has at least been aggravated by the compensable injury. He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.
[37][2009] VSCA 181 (‘Stijepic’).
[38]Ibid [43].
This passage was relied on by Maxwell P in Haden Engineering Pty Ltd v McKinnon when he said:[39]
When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.
[39](2010) 31 VR 1, 7 [17].
The worker submitted that, while it may be relevant to whether a young person has suffered a serious injury that the consequences of an impairment are likely to continue for a long time, it is not permissible to adopt the converse reasoning, as her Honour did, and to reason that, because a worker of advanced age will have to endure the consequences for a shorter period of time than a younger person would, therefore those consequences are less serious in comparison. It was submitted that, indeed, the pain and suffering consequences of an injury could be regarded as more serious if a worker is of advanced age because the consequences will be experienced through the ‘twilight’ of that worker’s life and into the process of dying and death; that is, at a time when that worker will probably be experiencing other age-related ailments. This may make the impairment consequences worse than those for a young person, depending on the circumstances of the case. The worker argued that her Honour was not only ‘harsh’[40] but wrong. While a worker’s youth may be relevant as indicative of how long he or she will have to endure the consequences of an injury, it is not permissible to treat the shorter life expectancy of a worker of advanced age as a simple yardstick relevantly supporting the proposition that the consequences of an injury suffered are less than serious. The relevance of the duration of the consequences of an injury should be confined to the question of whether the consequences are likely to endure for a worker for the foreseeable future.
[40]Reasons [214].
In response, the employer noted that there was no evidence given below that the worker was in the ‘twilight’ of his life and that the proposition of law that he relied upon in relation to this ground had never been put at trial. However, it was difficult to deny that the worker’s advanced age was at least indicative that the ‘twilight’ of his life is more imminent than it would be for a much younger person, for example, the worker in Stijepic, and, to that extent, in my opinion, this is a matter of which judicial notice can be taken without evidence.Moreover, the worker’s argument with respect to his advanced age was relied on not as providing additional support for his claim at trial that he had failed to identify before, but rather as a means of responding to what he alleges to be erroneous reasoning engaged in by the judge in her reasons.
Ultimately, the employer appeared to accept that the judge’s reasoning with respect to the worker’s advanced age was at odds with what ought to have been at the heart of her assessment, namely the pain and suffering consequences of his impairment. Her Honour ought not to have treated the worker’s advanced age as in itself supportive of the proposition that his injury was less than serious. This is so because it will depend on the circumstances of each individual case as to whether the age of a worker, and the ailments associated with age, exacerbate the impairment consequences experienced. I do not consider that the remarks made in Stijepic in a case concerning a young adult can be extrapolated to mean that the impairment consequences suffered by a worker of advanced age are, by reason of the worker’s age, likely to be less than serious. Nor should the remarks be read as supporting the existence of a presumption in this regard.
However, as the employer submitted, the impugned reasoning was not necessary to her Honour’s conclusion that the worker’s injury was less than serious. The judge took into account a number of other factors that would have been sufficient to justify her conclusion in this regard, even had the error not occurred. This included factors concerning the consequences of the worker’s impairment, such as the minimal restrictions placed upon his work duties by his employer;[41] the lack of any medical restrictions placed on his work duties;[42] his lack of need for medication or medical treatment in order to continue work;[43] and his capacity for light work on a sustained basis.[44] The judge also took into account factors pertaining to how the worker had dealt with his pain, such as his declining to obtain medication or treatment in response to his general pain;[45] his not seeking out medication or treatment in response to his difficulty sleeping;[46] and his ability to undertake home maintenance.[47] As such, I do not consider the error to have been material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.[48]
[41]Reasons [205].
[42]Reasons [206].
[43]Reasons [207].
[44]Reasons [209].
[45]Reasons [212].
[46]Reasons [216].
[47]Reasons [215].
[48]See Wilson v County Court (Vic) (2006) 14 VR 461, 473 [49]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ).
Ground 5 should be rejected.
Ground 8: absence of medical restrictions on work for Pro Air
In support of ground 8, the worker submitted that it was abundantly clear from the medical evidence that he was unable to perform the heavy physical work he had been performing before the incidents. He argued that the judge had in effect ignored that evidence, and thus ignored relevant considerations, when she found that there ‘are no medical restrictions whatsoever placed on the [worker’s] duties’.[49]
[49]Reasons [206].
The employer argued that her Honour was correct to say that there were no medical restrictions on the worker’s duties. This was so because there were no certificates identifying any restrictions to which the worker was subject by reason of his impairment. Indeed, the worker was not visiting Dr McColl in relation to his neck or cervical spine. Neither Dr McColl nor any other doctor had specified that the duties the worker performed for Pro Air were only to be engaged in within certain limits. Dr McColl did not know that the worker was working again.
I agree. It may also be that the worker’s submission was based on a misreading of the judge’s reasons. In my view, her Honour’s observations should be read as noting only that there were no medical restrictions on the light work the worker was performing with Pro Air. The medical evidence consistently demonstrated that the worker was not fit to perform his pre-injury duties and it must be inferred that her Honour understood that he could no longer perform heavy manual work. Indeed, her Honour said as much when she remarked, ‘I accept the [worker] … does not have a capacity for unrestricted heavy manual work’.[50]
[50]Ibid [209].
Ground 8 should be rejected.
Ground 9: no need for breaks
The worker submitted that her Honour erred by misrepresenting the evidence in relation to his capacity to perform his duties for Pro Air. The evidence was that he could work at his own pace. There was no evidence that he worked ‘without the need for breaks’, as her Honour suggested.[51]
[51]Ibid.
The employer argued that self-paced work does not amount to evidence of a need for ‘breaks’. There was no evidence that, for example, the worker had to lie down on the floor every twenty minutes to recover from work performed for Pro Air or that, while driving, he had to pull over to take rests. If the worker sought to rely on his having a limited capacity for work that was dependent on him taking breaks, it was necessary for proper evidence to that effect to be adduced.
I agree. Ground 9 is without merit and should be rejected.
Conclusion
In my opinion, the worker has been unable to establish that any specific error was material to the judge’s determination or that the determination made at first instance was ‘plainly wrong or wholly erroneous’. I would dismiss the appeal.
REDLICH JA:
I agree for the reasons given by Justice Tate that the appeal should be dismissed.
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