Hodgetts v TAC
[2011] VCC 1494
•31 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMANGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01240
| REX HODGETTS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 11 October 2011 |
| DATE OF JUDGMENT: | 31 October 2011 |
| CASE MAY BE CITED AS: | Hodgetts v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1494 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – serious injury – paragraph (a) of the definition of “serious injury” – whether the plaintiff satisfies the test set out in Humphries v Poljak [1992] 2 VR 129.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with | Ryan Carlisle Thomas |
| Mr A E A MacNab | ||
| For the Defendant | Mr R K Meldrum QC with | Solicitor for the Transport |
| Ms A M Magee | Accident Commission | |
| HIS HONOUR: |
Introduction
1 By way of an Originating Motion filed 24 March 2010, Rex Hodgetts (“the plaintiff”) seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”), to bring common law proceedings to recover damages for a back injury (“the injury”) suffered by him arising out of a transport accident which occurred on 16 June 2004 (“the transport accident”).
2 The plaintiff gave evidence and was cross-examined. The parties tendered various material.[1]
[1] See Annexure A
Relevant Legal Principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.93(17) of the Act.[2]
[2] S.93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.93(17) of the Act, which reads:
“In this section –
serious injury means –
(a) serious long-term impairment or loss of a body function … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the low-back.
6 In order to succeed, the plaintiff must prove on the balance of probabilities:
(a) that “the injury” suffered by him was a result of the transport accident; (b)
the requirements of the test set out in the seminal decision of Humphries v Poljak[3] wherein a majority of the then Full Court of Victoria stated:
[3] [1992] 2 VR 129
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder, itself fell to be judged by whether they satisfy the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s.(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[4]
[4] Humphries (op cit) at page 140. Also see Mobilio v Balliotis [1998] 3 VR 833
[5] Richards v Wylie [2000] 1 VR 79
(c) “serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot itself constitute or be the producer of the impairment of a body function;[5] 7 I was informed by Senior Counsel for the plaintiff that his client alleges that the pain and suffering consequences of his low-back injury satisfies the requisite test.[6]
[6] See T 7, L10
The Issues
8 When queried as to what were the issues in the matter, Senior Counsel for the defendant informed me “credit and range”.[7]
[7] See T 7, L22
The Background of the Plaintiff, his Injury and Medical Treatment
9 The plaintiff swore affidavits on 5 September 2006[8] (“the first affidavit”) and on 29 July 2011[9] (“the second affidavit”) and gave evidence that such affidavits were “accurate”[10] subject to some alterations which were made during viva voce evidence.
[8] See Exhibit 1 at page 8
[9] See Exhibit 1 at page 15
[10] See T 16, L25
10 Such alterations included:
(a)
In paragraph 3 of the first affidavit, the year should be “2004” rather than 2006;
(b)
In paragraph 7 of the first affidavit, where the plaintiff swears “he prescribed me strong painkilling medication because I was in an awful lot of pain at that stage” is only the “recollection” of the plaintiff and he “can’t swear by that”;
(c)
In paragraph 8 of the first affidavit, there is a reference to the plaintiff having a job with Connolly Security Service in Williamstown at the ABC on the reception desk. What is meant to be conveyed by that statement is that Connolly Security Service is situated in Williamstown and that the plaintiff was working at the ABC premises situated at Ripponlea;
(d)
In paragraph 9 of the first affidavit, the plaintiff speaks of a “continuous level of aching” and, that it “varies from day to day”. Such assertion means that although there is a “constant ache, at various times I get more severe spasm-type pains”.[11] Such severe pain is brought on by climbing up stairs or extended sitting and standing. The plaintiff gave evidence that he can sit for ten to fifteen minutes, up to half an hour, and then he has to “change positions”. Furthermore, he can stand or walk for about an hour before having to sit down.[12]
(e)
In paragraph 10 of the first affidavit, the plaintiff deposes that since the transport injury he has been unable to perform goal umpiring. Although the plaintiff maintained that he was unable to perform goal umpiring, he actually gave that activity up at the end of the 2002 season as a result of moving to Laverton after the breakdown of his marriage in 2002.
[11] See T 9, L6-7
[12] See generally T 9, L8-21
The plaintiff gave evidence that he was a goal umpire for about five seasons up to 2002 and although there may be an opportunity in Queensland to perform such activity, he would be unable to stand for 100 minutes in a goal square and keep concentration and focus on the game.[13]
[13] See T 12, L15-22
(f) In paragraph 10 of the first affidavit, the plaintiff describes being a member of the SES prior to the transport accident, albeit as a non-active member because of his work commitments. He had been in the SES for five years and enjoyed such work but would be unable to cope physically with the requirements of this activity. He became inactive when again he moved to Laverton after the breakdown of his marriage; (g) In paragraph 6 of the second affidavit, the plaintiff deposes, in part: “Prior to my accident I was a keen fisherman. I used to enjoy going surf fishing at the beach. I can no longer do this and I can’t carry the equipment.”
The plaintiff says such assertion is not accurate and that he can carry the
necessary equipment but describes his difficulties in the following terms:
Q: “What difficulty do you encounter, if any?--- A: The walking through the sand carrying the said equipment, I
just can’t walk through the sand dunes like I used to.Q: Do you still go surf fishing?--- A: I have tried but I am restricted on my casting, so it’s basically
not anymore.Q: Why are you restricted with your casting?--- A: To cast a surf rod it’s more a body movement and I just
haven’t got the flexibility in my back to cast it.”[14][14] See T14, L20-27
11 The plaintiff also gave evidence that he suffered a neck injury which he believed occurred in about January 2003, which resulted in a discectomy at C5-C6 and C6-C7, together with a fusion. He also underwent an ulnar nerve release performed by Mr Laidlaw in February 2004 to the left elbow.
12 The plaintiff also gave evidence that prior to his transport accident, he had been a long haul truck driver for about fifteen years and then for five years he was an intra-state truck driver driving from Geelong to various places throughout Victoria. Absent the transport accident, he intended to continue work as a truck driver.
13 The plaintiff gave evidence that he moved to Queensland in December 2006 in part to avoid the cold of Melbourne’s winters which caused stiffness in his low-back.
14 When asked what his current job as a security guard involves, the plaintiff gave the following evidence:
“I drive a Suzuki 4-wheel drive, a small 4-wheel drive. I drive around schools, factories, shopping centres, different places of business, checking doors, windows, general security of properties. I also respond to alarm calls which I go and do. I check the property out, if it appears secure I write up a report, continue on. If there is evidence of a break-in, I walk away and call the police.
Q: How do you cope with that job?--- A:
The most of it is Okay, schools are a problem because I’ve got a lot of stairs to walk up. Walking down I have no problem. Walking up stairs is always a problem.
Q: What is the problem?--- A: I just – I think it must be the fact that I’m pushing up to climb the
stairs.Q: What effect does it have on you?--- A: It stiffens up my back.”[15] [15] See T 15, L30 – T 16, L13
15 In his first affidavit, the plaintiff gave the further following salient evidence:
• He is a fifty-seven-year-old divorcee with adult children. •
He was employed by Straightline Transport as a semi-trailer driver and as at June 2004, was working between fifty to sixty hours per week.
•
On 16 June 2004, he was struck by a vehicle when standing near his truck.
•
He was conveyed by ambulance to The Alfred Hospital and “understood” that he had suffered fractures to his lower spine, fractured ribs on the right side, facial injuries, including a fractured tooth and a bad laceration to his forehead.
•
He was fitted with a back brace and eventually discharged on 21 June 2004.
•
He attended the Outpatient Clinic of The Alfred Hospital for about eight months, mainly in relation to his low-back injury, and wore the back brace until about February 2005.
•
Because of the nature of the fractures to his low-back, he was advised to avoid physiotherapy, to rest and not engage in anything too physical.
•
He consulted his general practitioner, Dr Howell, in October 2004, and the plaintiff has a recollection that he was prescribed strong painkilling medication.
•
The plaintiff was off work until 18 November 2005, after which he underwent a security course for two weeks at the International Security Training Academy in South Melbourne.
•
Approximately a month after completing the course, he was employed with Connelly Security Services, performing static security work at the ABC in Ripponlea. At one stage he was working full-time but because of budgetary problems, his hours were reduced to four hours each morning, five days per week.
•
Also, at that time (September 2006), the plaintiff was performing a 12- hour shift on a Saturday night at Betta Foods at Broadmeadows or with Pacific Rail in Dynon Road, Footscray.
•
He was earning (September 2006) approximately $550 net per week compared to when he was driving, earning $800 gross per week.
•
He tries to avoid bending, twisting and turning, because if he does too much, his lower back can flare-up very badly.
•
His sleep is interrupted by his low-back injury, with lying on one position causing the same sorts of problems as sitting or standing in one position for too long. In particular, he described (as at September 2006) he is able to sleep for about four hours before he wakes up with pain in his low-back, causing him to get into another position; or alternatively, sometimes having to get up and relieve his position before being able to get back to sleep.
•
He also used to go 4-wheel driving in the country where he would camp and walk, but has not “done much of that” since the injury. He has tried, but driving along bumpy roads and camping is something his back will not tolerate.
•
He attended school to the equivalent of Year 11 and has a number of licences, including an endorsed licence to drive a truck and a forklift. He could not return to that sort of work as he could not tolerate sitting in the cabin of a vehicle for too long.
16 In his second affidavit, the plaintiff gave the following salient evidence:
• He is currently employed as a security officer, working approximately 40 hours per week with four nights on and four nights off. His weeknight shifts start at 6.00 pm and finish at 4.00 am the next day and his weekend shifts start at 6.30 pm and finish at 4.30 am the following day. • He describes his work as a security officer in the following terms: “My work as a Security officer involves me driving around to various locations such as school and businesses to ensure that they are safe and secure. I have to get in and out of the car many times throughout my shift and this causes me discomfort when getting in and out of the car. I sometimes struggle when walking up and down the stairs of these locations. At the end of my working week my body usually aches from the pain. I put up with the pain because I need to work to get an income.”[16]
[16] See Exhibit 1 at page 15 PCB
•
He describes having a constant dull pain in his back which inhibits his ability to sleep at night, and that he would be “lucky” to get more than four hours of sleep per night.
•
In relation to treatment, he comments that he has not seen a physiotherapist for a long time as he can no longer afford it, and sees his doctor about every eight to ten weeks but not always in relation to his transport injuries.
•
He takes no specific medication apart from Panadol, when the pain is “extreme”. He comments that it is “something that I am learning to live and put up with”.
The Radiology
17 The plaintiff has undergone various radiological studies of his lumbar spine. They include:
(a)
A plain x-ray of the lumbar spine on 16 June 2004.[17] The conclusion of the radiologist is:
[17] See Exhibit 2 at page 34 PCB
“There is suspicion of a chip fracture of the anterior-superior aspect of the body of L4 but this appearance could be due to overlying bowel. There is a fracture of the anterior aspect of the superior end-plate of L5. No other fractures seen in the lumbar spine and no malalignment.”
(b) A plain x-ray of the lumbar spine on 22 June 2004.[18] The findings of that x-ray were: [18] See Exhibit 2 at page 39 PCB
“There are fractures of the anterior superior end plates of L4 and L5 with some loss of height of these vertebral bodies. The remaining lumbar vertebrae appear normal. No malalignment seen.”
(c) An MRI scan of the lumbar spine on 22 June 2004.[19] The findings of that scan are: [19] See Exhibit 2 at page 40 PCB
“Alignment of the lumbar spine is preserved. Comminuted fractures can be seen of the anterior portions of the superior aspects of the end plates and bodies of L4 and L5. There are small anterosuperior avulsed bony fragments and tear of the anterior longitudinal ligament at the L4/L5 discs. There is oedema seen in the L3/L4 and L4/L5 discs. There is a small anular (sic) tear posterior at the L4/L5 disc. However, the posterior longitudinal ligaments are intact. The middle and posterior columns are essentially unremarkable. L4 has lost some 15% of anterior vertebral height while L5 has lost some 10%. There is also oedematous change seen in the L5/S1 intervertebral disc and some minor bone oedema at the S1 superior end plate. Spinal nerves appear to exit normally. Fractures involving the anterosuperior corners of L4 and L5 with disruption of the anterior longitudinal ligament at the L4/L5 level.”
(d) A plain x-ray of the lumbar spine on 21 July 2004.[20] The report of the x-ray reads: [20] See Exhibit 2 at page 41 PCB
“The fractures of the anterosuperior aspect of the bodies of L4 and L5 are again seen, vertebral alignment remaining anatomic and there is only slight loss in height of these vertebrae anteriorly. T12 and L1 vertebral bodies are also little deformed but without features suggesting recent bone injury visible. The disc at L5-S1 level appears somewhat narrowed in keeping with disc degeneration in the discs at the L3/4 and L4/5 level also appear slightly reduced in their height. No fracture of posterior vertebral elements can be seen in association with the vertebral body fractures.”
(e)
A CT scan of the lumbar spine on 1 September 2004.[21] The “impression” of the radiologist was:
[21] See Exhibit 2 at page 42 PCB
“Stable fractures with no malalignment. Slightly more
compression anteriorly than the prior CT.”
(f) A plain x-ray of the lumbar spine on 29 September 2004.[22] The report reads: [22] See Exhibit 2 at page 43 PCB
“Two views are provided of the lumbar spine. Vertebral body fractures can be seen involving L4 and L5. There is approximately 20% loss in height anteriorly of the L4 vertebral body and approximately 10 to 15% loss of the L5 vertebral body. No retropulsed fragment can be seen.
In comparison to a previous examination there has been no
change to the positions of the fracture fragments.”
(g)
A plain x-ray of the lumbar spine and CT scan of the lumbar spine on 7 December 2004.[23] The findings on the plain x-ray were:
[23] See Exhibit 2 at pages 44-45 PCB
“Compression deformities of the anterosuperior end-plates of L4
and L5 are unchanged. No new fracture seen.
Degenerative narrowing of the L5-S1 disc noted. No other
significant abnormality seen.”
The findings of the CT scan were:
“Compared to the previous examination there has been further healing of the fracture. There is no further height loss and no further increase in kyphosis. Gas is developing in the disc between L5 and S1 consistent with ongoing degenerative changes. Alignment appears within normal limits. Facet joints are normal. Early osteophytic lipping is present at L4-5.”
(h)
A CT scan of the lumbar spine on 18 February 2005.[24] The radiologist comments:
“Old compression fractures of L4 and L5 but no further loss of
height since prior study.”[24] See Exhibit 2 at page 46 PCB
18 The plaintiff relies on a report from Dr D MacDonald setting out details of the plaintiff’s attendances at The Alfred Hospital.[25] Dr MacDonald details that the plaintiff was admitted to The Alfred Hospital on 16 June 2004 with a diagnosis of, inter alia, fractures of the L4 and L5 vertebrae which were managed conservatively and the patient fitted with a Low Taylor brace. He was discharged home on 21 June 2004 with arrangements for him to be followed up in Outpatients. He was ultimately discharged from the Outpatients’ Clinic on 30 July 2004.
[25] See Exhibit 2 at page 47 PCB
19 The plaintiff also relies on a report dated 23 September 2005 from his Victorian general practitioner, Dr John Howell.[26] The defendant also tendered letters from The Alfred Hospital to Dr Howell dated 8 December 2004 and 23 February 2005.[27] Furthermore, the defendant also tendered medical records of the plaintiff from the South Barwon Medical Centre (where Dr Howell was situated), including a prescription history and consultation history running from 22 November 2001 through to 22 June 2006.[28]
[26] See Exhibit 3 at page 51 PCB
[27] See Exhibit B
[28] See Exhibit C
20 In his report, Dr Howell notes that he has known the plaintiff since 1994 and that he first saw the plaintiff in relation to the transport accident on 20 October 2004 to provide ongoing WorkCover Certificates, which continued to 11 August 2005. Dr Howell notes that as at 11 August 2005, the plaintiff reported that his pain levels were tolerable, worse with coldness, and that he had been offered training as a level two security guard. Dr Howell certified the plaintiff fit for this training.
21 In relation to prognosis, Dr Howell stated:
“Concerning prognosis, employability, and impairment; it is my opinion that Mr Hodgetts will get back to fulltime employment, however I do not believe that he will be able to resume his previous occupation as a truck driver. I think it is appropriate that he get into the security business. As far as the prognosis is concerned, I believe that he will have low to medium chronic back pain which will be variable, and at times disabling. As far as permanent impairment is concerned, I believe that he will suffer permanent back restriction of movement and apt to tolerate variable levels of back pain. … .”[29]
[29] See Exhibit 2 at page 61 PCB
22 The medical records of the plaintiff at the South Barwon Medical Centre indicate that he underwent a C5-6-7 discectomy with fusion on or about 21 January 2003. Seemingly the surgery was performed by a neurosurgeon, Mr J Laidlaw. A perusal of the records would suggest that the plaintiff was prescribed Tramal and Voltaren Rapid on 19 August 2002, Tramal on 29 January 2003 and Panadeine Forte on 3 February 2003. A perusal of the notes would suggest that there was no pain medication prescribed by Dr Howell in relation to the fractured vertebrae arising from the transport accident.
Medico-Legal Reports
23 The solicitor for the plaintiff arranged for the plaintiff to be examined by the orthopaedic surgeon, Mr W H Huffam, on 25 October 2005[30] and on 11 January 2011.[31]
[30] See report dated 12 November 2005 in Exhibit 3 at page 53 PCB
[31] See report dated 19 January 2011 in Exhibit 3 at page 58 PCB
24 When examined by Mr Huffam on 25 October 2005, the plaintiff complained of a continual ache in the lower part of his back radiating to the right buttock but not radiating further down the legs.
25 Mr Huffam had access to some of the x-rays of the lumbar spine and although noting the intervertebral disc space narrowing between L5 and S1, he considered such changes of many years’ standing.
26 Mr Huffam was of the opinion that the plaintiff had suffered an injury to the lower lumbar spine with crush fractures of the fourth and a less severe crush fracture of the fifth lumbar vertebra. Furthermore, he considered such fractures were of a stable type and the vertebral bodies have consolidated with some deformity. Examination revealed a moderate limitation of movement of the lumbar spine with some irritability and muscle spasms on movement.
27 At the time of the first examination, Mr Huffam considered that the plaintiff would probably improve over time but would always have some degree of backache.
28 When seen on 11 January 2011, Mr Huffam obtained a further history that the plaintiff had moved to Queensland on 2 December 2006 and had been performing security work for the last three years. At that examination, the plaintiff complained of a constant dull ache in the lumbar spine, worse if he sits for a long time. He has had some manipulative treatment of his back.
29 In his final report, Mr Huffam states, in part:
“Mr Hodgetts does have considerable disability relating to his back injuries. He would not be capable of performing his previous work as a long distance truck driver, any form of work requiring heavy lifting or bending but he is capable of performing suitable employment which will not place a strain on his back and his present security work does appear to be within his capabilities.”[32]
[32] See Exhibit 3 at page 62 PCB
30 It is convenient to also refer to the medico-legal examinations relied on by the defendant. These consist of the following:
(a)
Examination by the neurologist, Associate Professor Richard Stark, on 23 July 2009;[33]
(b) Examination by the psychiatrist, Dr Timothy Entwisle, on 1 March 2011;[34] (c)
Examination by the orthopaedic surgeon, Mr Michael Dooley, on 2 March 2011,[35] together with a supplementary report of Mr Dooley dated 4 July 2011;[36]
(d)
Examination by the general surgeon, Mr David Conroy, on 13 December 2005;[37]
(e)
Examination by the consulting neuropsychologist, Professor Simon Crowe, on 13 January 2006.[38]
[33] See report of same date in Exhibit D at page 6 DCB
[34] See report dated 21 March 2011 in Exhibit D at page 10 DCB
[35] See report dated 30 March 2011 in Exhibit D at page 15 DCB
[36] See report of same date in Exhibit D at page 21 DCB
[37] See report of same date in Exhibit D at page 65 DCB
[38] See Exhibit E at page 94 PCB
31 Associate Professor Stark diagnosed the plaintiff to be suffering from compression fractures of the L4 and L5 vertebrae. Although he found the plaintiff to have some restriction of low-back movement, there were no signs of radiculopathy. Professor Stark found the plaintiff to report his symptoms in a “straightforward and unexaggerated fashion”. Professor Stark did accept that he would be unable to work as a truck driver because of the prolonged sitting involved, but as capable of performing the security work.
32 When examined by Dr Entwisle on 1 March 2011, the plaintiff gave a history that he “still does some surf fishing”. Dr Entwisle did not consider that the plaintiff presented with any psychiatric condition.
33 Mr Dooley diagnosed the plaintiff to be suffering compression-type fractures of L4 and L5 vertebrae, together with aggravation of pre-existing degenerative disc disease of the lumbosacral spine. In particular, Mr Dooley stated:
“Mr Hodgetts sustained stable compression fractures of the body of the L4 and L5 vertebrae. These fractures were managed conservatively in a brace. Mr Hodgetts mobilised gradually. In association with these fractures I believe that the accident involved some aggravation of longstanding degenerative disc disease in the lumbosacral level of the spine. I believe that the injuries would account for his symptoms of ongoing low level back ache and occasional exacerbations of pain. Overall the appropriate treatment for Mr Hodgetts is for him to remain generally active. …. He will have difficulty carrying out regular heavy physical activity but he is capable of continuing in his employment as a security officer. … .”[39]
[39] See Exhibit D at page 18 DCB
34 Mr Conroy examined the plaintiff essentially for an independent impairment assessment and, as at 13 December 2005, diagnosed the plaintiff to be suffering from healed compression fractures of the 4th and 5th lumbar vertebrae.
35 Professor Crowe was of the opinion that the plaintiff performed in a completely unimpaired manner in all aspects of cognition. However, Professor Crowe did note that the test results suggested a mild level of self-reported depression and anxiety and this exists in association with a moderately high level of abnormal illness behaviour.[40]
[40] See Exhibit E at page 102 PCB
The Cross-Examination of the Plaintiff
36 Under cross-examination, the plaintiff gave the following salient evidence:
• He had moved to Queensland on 2 December 2006. • He is the owner of a 4.5-metre boat. •
Dr Howell was his general practitioner in Victoria and since being in Queensland he has attended various doctors and the last one, who he has been attending for about six or seven months, most probably will be his general practitioner.
•
When he goes fishing, on average it is for about four or five hours. When he goes out in his boat he is never by himself as he “can’t handle the boat on my own”.[41]
•
He accepted that fishing by boat and boating itself has grown as an interest and he has tended to do less surf fishing as a result.
•
When surf fishing, he had difficulty casting as he tended to swivel his back.
•
He presently works for Queensland Property Protections and has been employed for about two years and eight months. He works four days on and four days off, commencing at 6.00 pm during the week, and if working on Saturday and Sunday, commences at 6.30 pm.
•
On any particular shift he travels approximately 180 kilometres and visits approximately seventy-five premises, the vast bulk of which are visited more than once per shift.
•
The plaintiff accepted that he would be walking some kilometres each shift.[42]
•
He does not do the lawn mowing at his premises, which is either done by his girlfriend or her son.
[41] T 31, L27-28
[42] See T 36, L22
37 The plaintiff gave this evidence in relation to his pain after leaving The Alfred Hospital:
Q: “Had the pain been bad when you were discharged from The
Alfred Hospital?---A: No. Q: Had it got better by the time, significantly better, by the time you
were discharged?---A: Yes. Q: Did it then go backwards after the discharge, sorry, the Outpatients’ Clinic at The Alfred, not just discharge from the bed and the … ?---
A: … Yes, the actual …. A: Outpatients said ‘we don’t need to see you any more’ was the pain
still really bad?---A: No, the pain is mostly always been negligible. It is a dull
consistent ache with occasional spasms of pain.HIS HONOUR:
Q: What you are describing there is that the situation up to now?--- A: Yes.”[43] (sic) [43] See T 42, L23 – T 43, L4
• The plaintiff believed he took a Panadeine Forte about a week ago. •
After it was suggested to him that Dr Howell did not prescribe any medication for pain after the transport accident, the following evidence was given:
Q: “Did he give you any other scripts after this motorcar
accident?---A: I have no idea. Q:
I suggest he didn’t. Can I suggest the reason he didn’t was that you were not telling him that you had any significant pain any time you went to him?---
A: Yes, and? Q: That would be fair wouldn’t it?--- A: That’d be fair. Q: Indeed, your picture was that after a few weeks the really
bad pain had passed and it rarely gets really bad now?---A: I agree. Q: That has been so for some years?--- A: I agree. Q: You can go weeks or months without feeling any significant
pain or discomfort, just a low-back grumble?---A: Exactly.”[44] [44] See T 48, L25 – T 49, L5
•
The plaintiff does wear a soft brace on occasion. It varies; it might be two or three days a month and then it might be two months before being last worn.
•
When the back does flare-up it flares-up for two or three days before he is over it completely.
•
When pushed as to whether or not he had been prescribed any painkillers in Queensland, the plaintiff ultimately said “I am not sure”.[45]
•
For the financial year ending 30 June 2011, the plaintiff grossed “just on $50,000”.
•
Other than taking a Panadeine or a Panadol, he has not received any other treatment in Queensland by way of physiotherapy or anything like that save for some remedial massage which he refers to as “physiotherapy” in paragraph 8 of his second affidavit. He went to the manipulative therapist for about ten to twelve weeks.
•
The majority of times that he attends a doctor in Queensland is for his asthma.[46]
•
When pressed as to attending a doctor for pain in his low-back in Queensland, the following evidence was given:
[45] See generally T 52-53
[46] See T 60, L10-16
Q:
“And you have not seen your doctor once in Queensland have you, for pain associated with the transport industry, not once?---
A: Not this recent doctor and, as I stated before, at least
eighteen months ago if I did.Q:
If you did. So I want to put this then to you. You can’t swear positively that you have seen one doctor on one occasion in Queensland for your transport injury, have you?---
A: Okay, no, I can’t swear that. Q:
The best you can say is you think it might have happened once and that about eighteen months ago, the best you can say?---
A: Yes.”[47] [47] See T 60, L23 – T 61, L1
•
The plaintiff accepted that when the video was taken of him (which the plaintiff had already seen) he would have been experiencing the low, dull ache as described to the Court.
•
In answer to a question from the Court, the plaintiff described himself as “very stoic”.
•
He has not lost any time off work since resuming work as a security officer.
•
He went camping for about a week in the Tin Can Bay area where he fished off the pier.
•
After the breakdown of his marriage, the plaintiff lived by himself, both in Victoria and in Queensland, until commencing to live with his girlfriend in August 2010.
•
The plaintiff drives a Pajero, which sometimes he drives on gravel roads and beaches but not into the scrub.[48]
•
He can drive for twenty minutes, half an hour or even up to an hour but then has to get out, stretch, walk around and straighten up.
[48] T 77, L26-29
38 Senior Counsel for the defendant put to the plaintiff various video films (which had been exchanged by the defendant prior to the hearing) consisting of:
(a)
film taken on 9 July 2010 which depicted the plaintiff walking, getting in and out of a motorcar, using a shovel to move some soil, bending at the waist and squatting. Furthermore, he was shown carrying a car battery to be used on his boat and then working on the boat and leaning into the boat when working;
(b)
film taken on 10 July 2010 which depicted the plaintiff walking, getting in and out of a motorcar, climbing up onto and down from a boat and bending at the waist. Furthermore, there was film of the plaintiff kneeling at the rear of the boat and assisting in the launching and retrieving to the boat;
(c)
film taken on 3 February 2011 where the plaintiff is shown walking, attending a shopping centre, driving a motor vehicle and bending at the waist.
39 The plaintiff did not dispute that he was the person shown in the various films.
40 It was put to the plaintiff in cross-examination that he was putting on “a little pantomime” by moving around in the witness box, taking his weight on one buttock and then the other with frequent changes. The plaintiff accepted that it was an ordinary day for him but he was doing a lot more sitting, and when sitting for any time he tries to make himself more comfortable.
41 Under re-examination, the plaintiff gave the following pertinent evidence:
• When he jumped out of the boat, as depicted on the film, he landed on a lawn. • He has no difficulties putting on shoes but his socks are the problem because of full stretch. • His present girlfriend was formerly his cleaner, performing vacuuming, mopping, windowsills et cetera working an hour-and-a-half each Sunday. 42 After re-examination, the Court enquired of the plaintiff as to what would be the most troublesome one or two things resulting from his back condition. In answer to that, the plaintiff said foot care, involving cutting nails and things like that, and walking up stairs is a problem. The plaintiff did give evidence that his present address involves walking up twelve stairs to the premises. Furthermore, whereas the plaintiff asserted that he did all his own motor repairs prior to his back injury, he “can’t do that anymore”.
43 For completeness, I also refer to the supplementary report of Mr Dooley dated 4 July 2011[49] wherein Mr Dooley comments on the video material shown to the Court. He comments, in part:
“The DVDs show Mr Hodgetts walking at times. Usually he is walking at a slow or steady pace. They show him regularly bending and they show that he is able to bend to at least ninety degrees flexion of the lumbar spine. On one occasion, when getting under a boat, he bends probably further than this range of motion. They show him lifting and manoeuvring objects.
…
It is my overall impression, based on the surveillance DVDs, that Mr Hodgetts is able to function at a level greater than that which he presented in March 2011. … .”[50]
[49] See Exhibit D at page 21 DCB
[50] See Exhibit D at page 21 DCB
44 Furthermore, Mr Dooley considered that the plaintiff would be able to carry out a wide range of domestic chores and some home maintenance duties, although he would have difficulty carrying out regular heavy work or work that involves a lot of bending and lifting on a regular basis.
Analysis of the Evidence
45 After a consideration of all of the evidence, I am satisfied that the plaintiff suffered a low-back injury as a result of a transport accident which occurred on or about 16 June 2004. Essentially, the nature of such injury was crush fractures of the 4th and 5th lumbar vertebrae. Radiological evidence would suggest that the vertebral bodies have consolidated with some deformity. So much is not disputed by the defendant.
46 I also note that there is the suggestion by Mr Dooley that the transport accident also involved some aggravation of longstanding degenerative disc disease at the lumbosacral level of the spine.
47 On balance, I find that the crush fracture injuries give rise to low-level backache and occasional exacerbations of pain. In particular, I find that the plaintiff does have some degree of impairment of his low-back giving rise to ongoing and long-term organic symptoms.
48 Counsel for the defendant in general terms attacked the credit of the plaintiff. On balance, I came to the view that the plaintiff was attempting to give an honest account of his condition and symptoms.
49 The critical issue, in my view, is whether the plaintiff discharges his onus of establishing that the low-back injury satisfies the requirements of the test set out in Humphries v Poljak.[51] In this respect, the case was opened and prosecuted on the basis that the plaintiff’s pain and suffering consequences were at least “very considerable” and certainly more than “significant” or “marked” when judged by a comparison with other cases in the range of possible impairments.
[51] [1992] 2 VR 129
50 In relation to this critical issue, I am assisted by several Court of Appeal decisions (some of which deal with s.134AB of the Act peculiar to “pain and suffering” consequences):
(a) In Stijepic v One Force Group Aust Pty Ltd & Anor,[52] Ashley JA and Beach AJA referred to Dwyer v Calco Timbers Pty Ltd (No 2.),[53] wherein it is stated: [52] [2009] VSCA 181
[53] [2008] VSCA 260
“... the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[54]
[54] Dwyer (op. cit.) at paragraph [27]
(b) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[55] wherein Chernov JA, by way of dicta, stated: [55] [2006] VSCA 292
“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’ … .[56]
[56] Sumbul (op. cit.) at paragraph [24]
(c)
In Stijepic, Ashley JA and Beach AJA commented, in relation to those words:
“So far as the respondents’ final submission is concerned, 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. … .”[57]
[57] Stepijic (op. cit.) at paragraph [47]
(d)
I also refer to Haden Engineering Pty Ltd v McKinnon,[58] wherein Maxwell P stated that the concept of “a pain and suffering consequence” encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[59]
(e)
I also refer to Sabo v George Weston Foods,[60] wherein Neave and Mandie JJA made reference to the decision of Transport Accident Commission and O’Dea v Dennis[61] and adopted the words of Callaway JA when he discusses the weight which must be given to the adverb “very” and the words “at least very considerable”. Callaway JA stated:
[58] [2010] VSCA 69
[59] Haden Engineering (op. cit.) at paragraph [9]
[60] [2009] VSCA 242
[61] [1998] 1 VR 702
“Many … [impairments] are considerable, in the sense that they
are important or substantial, without being very considerable.”[62][62] Transport Accident Commission v Dennis (op. cit.) at page 703
51 It may be that the organic impairment and consequences suffered by the plaintiff are “significant” or “marked” but I find that such impairment, when judged by a comparison with other cases in the range of possible impairments, cannot be fairly described at least as “very considerable”.
52 I have come to such view on the following bases:
(a)
Although accepting that the plaintiff has some degree of ongoing mild pain with some exacerbations of the pain, such symptoms must be put in the context that the plaintiff has had no direct treatment for his back over the last five years while living in Queensland save for his evidence that he has undergone some manipulative therapy over a period of about ten weeks. In particular, when pressed, the plaintiff was not prepared to swear that he has received any prescription medication from any doctor when in Queensland to relieve any pain symptoms. The picture which emerged was that the plaintiff intermittently took an occasional over-the- counter pain tablet;
(b)
The plaintiff has been able to maintain full-time employment with no loss if time, performing duties which require him to drive extensively on four nights a week, walk around and check buildings, which includes climbing some stairs, which he finds difficult;
(c)
Although he had been a truck driver for many years prior to the transport accident, I gained the impression that although he would have continued to be a truck driver absent the transport accident, he enjoys his new employment and the lifestyle which he can build around it;
(d)
Although accepting that he may have difficulties with surf fishing, he made plain that he enjoys very much his boating activities, which involves fishing, and this in large measure has replaced his surf fishing activities;
(e)
The video material shown to the Court clearly displayed the plaintiff being able to climb on and jump off a boat with no apparent difficulty, bend frequently and be involved with the launching and recovery of his boat. Although never walking at a particularly fast pace, there did not appear to be any apparent restriction in his movements over the days that the video was taken. The plaintiff accepted that what was shown on the video was a “normal” day and to his credit, there was no suggestion that this was a “good day” in contrast to a bad day.
53 Counsel for the plaintiff submitted that the most pertinent consequence was the pain suffered by the plaintiff which at times interferes with the sleep of the plaintiff. Such assertion in relation to the sleep was not attacked by the defendant. However, after a consideration of all of the evidence, I do not accept that the pain symptoms are that significant. Indeed, as the plaintiff stated:
“… the pain is mostly always been negligible. It is a dull consistent ache
with occasional spasms of pain.”[63]
(sic)
[63] See T 42, L31 – T 43, L2
54 Furthermore, the plaintiff described some difficulties putting on socks and general foot care because of his back condition but seemingly does perform that activity. Reference was made to his being unable to perform goal umpiring or SES duties, but the evidence clearly suggests that those activities had not been undertaken for some years prior to his transport accident. Furthermore, the evidence would suggest that no effort had been made to resume those activities in any shape or form in Queensland.
Conclusions
55 Accordingly, I dismiss the application.
56 I will hear the parties on the appropriate orders to be made and ancillary matters.
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Annexure A
1 The plaintiff tendered the following documents:
(a) Exhibit 1 – The two affidavits of the plaintiff sworn on 5 September 2006 and 29 July 2011 found at pages 8-16 of the Plaintiff’s Court Book (“PCB”); (b) Exhibit 2 – Consisting of the radiological material relied on by the plaintiff at pages 34-48 of the PCB; (c) Exhibit 3 – Medical report from the general practitioner, Dr Howell, dated 23 September 2005; medical reports from the orthopaedic surgeon, Mr W Huffam dated 12 November 2005 and 19 January 2011 and a report from the general surgeon, Mr David Conroy, dated 13 September 2005. That material is contained at pages 51-63 and 65-70 of the PCB. 2 The defendant tendered the following material:
(a) Exhibit A– three discs of video dated 9 July 2010, 10 July 2010 and 3 February 2011; (b) Exhibit B – Letters from The Alfred Hospital to Dr J Howell dated 8 December 2004 and 23 February 2005; (c) Exhibit C – Medical records of the plaintiff from the South Barwon Medical Centre, including a prescription history and consultation history running from 22 November 2001 through to 22 June 2006; (d) Exhibit D – Consisting of medical reports from the neurologist, Associate Professor Richard Stark, dated 23 July 2009; psychiatric report from Dr Timothy Entwisle dated 21 March 2011; orthopaedic reports from Mr Michael Dooley dated 20 March 2011 and 4 July 2011 and what is referred to as the clinical notes of the South Barwon Medical Centre, all such material found at pages 6-92 of the Defendant’s Court Book (“DCB”); (e) Exhibit E – Report of Mr S Crowe dated 28 January 2006, contained at pages 94-105 of the PCB; (f) Exhibit F – Consisting of a WorkCover list of payments said to be for claim number 120400000950, together with reports from the investigator, Maurice Kerrigan & Associates, dated 14 July 2010 and 17 February 2011, such material found at pages 93-134 of the DCB, the Court noting that the exhibit in relation to the reports from Maurice Kerrigan & Associates will be used as no more than an aide-mémoir.
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