Hollway v Honda Australia Pty Ltd
[2017] VCC 1240
•14 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00996
| TONY HOLLWAY | Plaintiff |
| v | |
| HONDA AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 21 August 2017 | |
DATE OF JUDGMENT: | 14 September 2017 | |
CASE MAY BE CITED AS: | Hollway v Honda Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1240 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENTCOMPENSATION
Catchwords: Serious injury – injury to neck– pecuniary loss – pain and suffering – aggravation in subsequent incident – suitable employment
Legislation Cited: Accident Compensation Act 1985
Cases Cited:A G Staff v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Philippiadis v Transport Accident Commission [2016] VSCA 1; Humphries v Poljak [1992] 2 VR 129; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted for pain and suffering only in relation to the first incident
Leave granted for both pain and suffering and loss of earning in relation to the second incident
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Mr M Belmer | Maurice Blackburn Lawyers |
| For the Defendant | Ms K Galpin | IDP Lawyers |
HER HONOUR:
Preliminary
1 Mr Hollway is a 46-year-old man who claims to have suffered an injury to his neck on 13 July 2010, while lifting a car boot lid, in the course of his employment as a storeman for the defendant (“the first incident”). Mr Hollway subsequently underwent a C6-7 discectomy and fusion. He suffered an exacerbation of neck pain on 5 August 2013, when he hit some shelves while driving a stock picker (“the second incident”). Despite suffering increased neck pain, Mr Hollway continued to work until he was made redundant in November 2013. Mr Hollway has not worked since that time, and claims that he is unable to hold down permanent employment as a reliable employee due to his ongoing neck pain.
2 Mr Hollway claims to have suffered serious consequences to his neck, as a result of both incidents, in respect of his pain and suffering and loss of earning capacity. In order for Mr Hollway to be entitled to claim common law damages for either incident, the impairment of his cervical spine arising from that specific incident must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant accepts that Mr Hollway suffered a neck injury during the course of his employment in the first incident, but disputes that his consequences are serious. The defendant also accepts that Mr Hollway was involved in the second incident, but disputes that it caused him a permanent injury. In the alternative, the defendant submits that, if the second incident did cause him an injury, the consequences to Mr Hollway are not serious, noting that he cannot aggregate the impairments from the two incidents.
4 Only Mr Hollway was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that Mr Hollway suffered a neck injury during the course of his employment in the first incident, which continues to be a cause of his spinal impairment, and which caused him serious consequences in respect of his pain and suffering. Further, I am satisfied that Mr Hollway suffered an aggravation to his pre-existing neck injury in the second incident, the consequences of which are such that Mr Hollway has satisfied the requisite loss of earning capacity test.
Mr Hollway’s life before he suffered his neck injury
6 Mr Hollway is married and lives with his wife and three children, aged 12, 11 and 9.
7 Mr Hollway completed Year 12 and then subsequently worked for a court recording business, where he was required to collect and deliver the audio recordings for the court transcriber. He then worked for approximately seven years as a logistics and supply storeman with Ansett Australia. Following its collapse, Mr Hollway worked as a storeman for Caterpillar Logistics/Daimler Chrysler. In his last year in such employment, Mr Hollway was promoted to department team leader, which involved supervising a team of workers and ensuring there was sufficient stock to be delivered. Mr Hollway accepted that this role was approximately 80 per cent managerial in nature, and that the balance of his time involved moving the stock around.
8 Before commencing his employment with the defendant, Mr Hollway said he had suffered occasional minor problems with lower back pain. In 2005, he suffered pain between his shoulder blades for a period of time, which subsequently resolved without any ongoing problems. Mr Hollway stated that he had suffered some neck and right arm pain after commencing employment with the defendant, and recalls seeing a physiotherapist in 2009. Mr Hollway also recalled some neck and right arm pain in March or April 2010, which improved with time, such that he was able to work his normal duties.
9 Prior to suffering his neck injury in July 2010, Mr Hollway said that he played golf every Saturday and Sunday. He also walked for approximately 30 minutes to one hour most mornings before work. Mr Hollway also enjoyed bike riding with his children on the weekend, and had a social hit of tennis about once a month. Mr Hollway said he was also a keen gardener.
Mr Hollway’s neck injury and its consequences to him from the first incident until the second incident
10 In 2007, Mr Hollway commenced employment with the defendant.
11 On 13 July 2010, Mr Hollway injured his neck when lifting a car boot lid. He said that he felt something tear in his neck and he experienced intense pain. Mr Hollway said that an hour later, he began to experience pain down his right arm into his elbow.
12 Mr Hollway said the pain worsened the following day, and was aggravated by activities that involved him moving his right arm or neck.
13 On 15 July 2010, Mr Hollway attended the Goonawarra Medical Centre in Sunbury, and consulted his general practitioner, Dr Pearly Cooray. She prescribed Voltaren and issued Mr Hollway with a light duties certificate.
14 On 19 July 2010, Dr Cooray prescribed Panadeine Forte and referred Mr Hollway for osteopathy. Mr Hollway said that he attended an osteopath on five or six occasions, but that it did not help, and his symptoms persisted.
15 On 13 August 2010, a CT scan was taken of Mr Hollway’s cervical spine. It demonstrated a small right paracentral disc protrusion at C6‑7.
16 Mr Hollway was then referred for physiotherapy treatment, which provided some pain relief in respect of his right elbow. He continued to suffer ongoing neck pain.
17 On 9 December 2010, Mr Hollway obtained a clearance from Dr Cooray and returned to normal duties. However, Mr Hollway said that he could not cope with lifting the heavy panels, and that he suffered a recurrence of symptoms in his neck. He had persistent pain between his shoulder blades and into his right shoulder, with the pain extending down to his right elbow and wrist.
18 In February 2011, Mr Hollway was referred to orthopaedic surgeon, Mr Peter Wilde. He arranged for an MRI scan to be taken on 9 March 2011. The scan demonstrated a disc protrusion at C6‑7, which compromised the exiting right C7 nerve root. Mr Wilde then recommended surgery.
19 On 1 August 2011, Mr Wilde performed a C6‑7 discectomy and fusion on Mr Hollway. Six weeks after the surgery, Mr Hollway said that he had much less pain, but that his neck continued to be stiff and sore.
20 In approximately November 2011, Mr Hollway returned to work on light duties and reduced hours. His medical certificate stated that he should not lift more than 10 kilograms, and that he should avoid overhead lifting.
21 Mr Hollway said that he started to suffer from headaches about two months after his neck surgery, and that he had never suffered headaches on a regular basis before this time. Mr Hollway said the headaches became much more powerful after he returned to work, such that he commenced taking Panadol on a daily basis.
22 Mr Hollway said that he continued to suffer pain in his neck and between his shoulder blades despite being on modified duties. He also said that his arm symptoms returned and that he had difficulty sleeping. Mr Hollway said that he became depressed and was prescribed an antidepressant medication.
23 Over time, Mr Hollway’s certificates of capacity changed, such that by 22 June 2012, he was able to lift up to 20 kilograms. However, it was stated that he could not do “reach” fork lift driving. In April 2013, the restrictions remained the same, however, the certificate also stated that Mr Hollway required a rotation of his duties.
24 Prior to the second incident, Mr Hollway obtained his last prescription for medication on 24 November 2011, at which time he was given Mobic. After this time, Mr Hollway took Panadol Osteo both before work and before going to bed, as well as Ibuprofen every couple of days.
25 Prior to the second incident, Mr Hollway’s last medical attendance in respect of his neck injury was a consultation with Dr Cooray, on 10 April 2013. She noted that he was “happy to go off work cover/reduce restrictions, no weight restrictions” and that he wanted to be able to get physiotherapy when needed. On examination, Dr Cooray noted a good range of neck movement, but that end range neck extension was stiff and painful.
26 In the fortnight prior to the second incident, Mr Hollway attended his physiotherapist at Sunbury on two occasions complaining of anterior neck pain.
27 Mr Hollway said that his neck pain remained constant, but was aggravated by activities associated with work, including lifting and moving his neck. He said he was able to get by at work, but that his neck pain was worse by the end of the day.
28 Mr Hollway stopped playing golf after the first incident, but returned to playing six months after his surgery. He said that over time, he built up to playing 18 holes again, but that he did not play every week.
29 Mr Hollway also said that he stopped his regular walks, as he felt that walking, particularly up hills, increased his pain.
The aggravation to Mr Hollway’s neck injury in the second incident, and the consequences of that aggravation
30 On 5 August 2013, Mr Hollway suffered a flare-up of neck pain when he was reversing a stock picker that banged into some shelves. He said he felt his neck had been jarred, and that the pain became worse. He said he had the next day off work, and that his increased neck pain continued upon his return the following day.
31 On 9 August 2013, Mr Hollway attended his physiotherapist, at which time he reported the second incident, and said that he had suffered a jarring pain. It was noted that after taking Panadol, and with rest, Mr Hollway was “okay today but general stiffness and sore”.
32 On 12 August 2013, Mr Hollway attended the Goonawarra Medical Centre with a complaint of vomiting, which he related to food poisoning. No mention was made of his neck pain.
33 On 30 September 2013, Mr Hollway attended the Goonawarra Medical Centre with a complaint of neck pain. He did so again on 17 October 2013, at which time Mr Hollway was given his first Mobic prescription since November 2011.
34 In early November 2013, the defendant informed its employees, including Mr Hollway, that its entire workforce, at this specific location, would be retrenched at the end of the month.
35 On 7 November 2013, Mr Hollway consulted Dr Cooray, reporting that he had jolted his neck in a work incident two months earlier, and that he had suffered pain and stiffness since that time. It was also noted that Mr Hollway had been “sacked from work”. He was prescribed Mersyndol Forte medication.
36 Dr Cooray arranged for a CT scan to be taken of Mr Hollway’s cervical spine on 9 November 2013. It confirmed the presence of the C6-7 anterior spinal fusion, and demonstrated posterior disc protrusions at C4-5 and C5-6, causing mild narrowing of the spinal canal at those levels, with possible mild indentation of the spinal cord. There was also noted to be mild retrolisthesis at C4-5. In comparison with the previous CT scan of 13 August 2010, it was noted that the retrolisthesis at C4-5, and the posterior disc protrusions at C4-5 and C5-6, were new.
37 On 18 November 2013, Mr Hollway attended the Goonawarra Medical Centre. It was noted that he had suffered neck pain for a long time, but that it was getting worse with work activities. Mr Hollway requested a certificate in which he was certified as fit to work only light duties.
38 On 19 November 2013, Mr Hollway again attended the Goonawarra Medical Centre. It was noted that, following an incident on 5 August 2013, he had suffered “severe discomfort in the neck radiating to the shoulders” and that he had been having physiotherapy.
39 Prior to being made redundant, Mr Hollway said that he was struggling with ongoing neck pain, which was worse at the end of each day. Despite him no longer receiving any medical certificates, Mr Hollway said that he avoided using the “reach” forklift, as it involved repetitive looking upwards. He also said his work duties were very light. Mr Hollway said he was placed in the “A” section, in which he would pick and pack small car parts. He also did some cleaning and tidying up of the defendant’s premises.
40 In April 2015, Mr Hollway returned to Mr Wilde for review. Mr Wilde obtained a history that Mr Hollway had experienced unrelenting neck pain since the second incident.
41 On 26 May 2015, a further MRI scan was taken of Mr Hollway’s cervical spine. It demonstrated disc bulges at C4‑5 and C5‑6, but no evidence of neural compression. Mr Wilde did not recommend any further surgical intervention or corticosteroid injections, but instead, recommended that Mr Hollway undergo physiotherapy and osteopathy treatment.
42 As Dr Cooray had moved from the Goonawarra Medical Centre, Mr Hollway came under the care of general practitioner, Dr M Samararatna. Dr Samararatna referred Mr Hollway for psychological treatment, as well as to the Barbara Walker Pain Management Centre, through which he has received physiotherapy treatment via regular Skype interviews.
43 Mr Hollway is currently prescribed the following medication for his pain and depression: Mobic 15mgs, one per day; Mersyndol, two to four per day; Pristiq 50 mgs, one per day and Lyrica 150 mgs, two per day; together with a Norspan patch weekly.
44 Since being made redundant in late November 2013, Mr Hollway has not undertaken any paid employment. He said that he has applied for a large number of jobs but that he has struggled to even obtain an interview; he recalls having had one unsuccessful interview. Mr Hollway sent his résumé to a friend who worked at a golf shop, but he never heard back and did not follow it up, as, in any event, he did not think he was physically capable of working there. He thought that the pain in his right arm would make it difficult for him to help customers to lift golf buggies and overhead items.
45 Mr Hollway said that he tries to help with domestic duties around the home. He said he avoids vacuuming, as the movement aggravates the pain in his shoulder blades and neck. Mr Hollway said his wife now does most of the housework.
46 Mr Hollway said that his sleep is disturbed by pain and that he wakes at least three times a night. He said he never gets a good night’s sleep and that, as a consequence, he feels fatigued. Mr Hollway said that when he wakes in the mornings he feels sore and not well-rested.
47 Mr Hollway said that he takes his children to school, but that he is otherwise limited in the activities he is able to do with them. Mr Hollway said that, rather than playing sport with his children, he tends to sit on a bench and just watch them. He said that when he does try to kick a football it aggravates his pain.
48 Mr Hollway’s wife provided an affidavit in support of her husband’s claim. She confirmed that, prior to the first incident, her husband had been physically active and had spent a lot of time playing golf, and had enjoyed playing tennis. Mrs Hollway felt that her husband has been a different person since being injured, and said that he has struggled even more since the second incident. She confirmed that her husband wakes during the night and that he struggles to get moving in the mornings. Mrs Hollway also confirmed that her husband no longer plays golf.
Mr Hollway’s medical evidence
49 Dr Samararatna provided a medical report dated 21 November 2012, in which he detailed the impact the first incident had upon Mr Hollway, including the need for surgical treatment. It was noted that following his return to work, Mr Hollway continued to experience residual pain and discomfort in his neck, particularly when looking upwards or flexing his neck.
50 Dr Samararatna stated that Mr Hollway was a candidate for workplace retraining, to enable him to work in a less physically demanding role. At that time, Dr Samararatna also recommended that Mr Hollway resume physiotherapy treatment and continue with conservative management of his symptoms.
51 In a subsequent report dated 4 August 2017, Dr Samararatna detailed the second incident, noting that it had caused an exacerbation of Mr Hollway’s pain levels. Dr Samararatna stated that he considered Mr Hollway’s current condition to be a direct result of the first incident, as well as an aggravation of that injury in the second incident. Dr Samararatna stated that, in his opinion, Mr Hollway had no capacity to return to pre-injury duties and that, given the nature of his “chronic ongoing pain, physical limitations and limited education and skill base, he has limited capacity for alternative work and has been unable to secure any employment”.
52 Dr Samararatna was hopeful that Mr Hollway may gain some benefit from attending a pain management clinic, but stated that, in his opinion, Mr Hollway will remain reliant on pain medications and lifestyle modifications.
53 Mr Wilde provided two medical reports in this matter. In his first report dated 10 September 2012, Mr Wilde detailed the surgical treatment provided to Mr Hollway on 1 August 2011. Mr Wilde noted that, following the surgery, Mr Hollway’s radiculopathy had resolved, although his neck felt “slightly stiff and sore posteriorly”.
54 Mr Wilde noted that Mr Hollway was capable of returning to light duties in early October 2011, and thought that he should have been in a position to return to full duties by the end of October 2011.
55 In a subsequent report dated 27 May 2015, Mr Wilde detailed his consultation with Mr Hollway in April 2015. At that time, he obtained a history that Mr Hollway had “experienced unrelenting neck pain” since the second incident.
56 Mr Wilde referred to the most recent medical image and considered that Mr Hollway suffered disc bulges at C4-5 and C5-6. He was of the opinion that Mr Hollway’s mild cervical segments were quite degenerate, and were the reason for his ongoing symptoms. Mr Wilde diagnosed an aggravation of mid cervical spondylosis without evidence of neural compression. Mr Wilde noted that Mr Hollway’s prognosis following the first incident and subsequent surgery was good, but that it was poor following the second incident. However, Mr Wilde did not recommend any further surgical intervention and did not consider corticosteroid injections were likely to be of assistance.
57 Mr Hollway’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr John O’Brien, in July 2016 and June 2017. In his report dated 4 July 2016, Mr O’Brien noted that, following the first incident and subsequent surgery, Mr Hollway reported persistent neck pain which he self-managed with over-the-counter analgesia. Mr O’Brien considered this to be suggestive of a persistent pathology.
58 Mr O’Brien then noted that, following the second incident, Mr Hollway suffered a significant exacerbation of neck pain with accompanied pain radiating into his right arm. Mr O’Brien considered the MRI scan demonstrated a sound C6-7 interbody fusion, and thought that there were degenerative changes in the motions segments above the fusion. Mr O’Brien diagnosed Mr Hollway as suffering chronic non-specific cervical and right arm pain. He considered the most likely cause of Mr Hollway’s ongoing symptoms to be aggravation of cervical spondylosis. Mr O’Brien was of the opinion that, given the severity of his pain and his requirement for substantial narcotic analgesia, that Mr Hollway was unable to perform any work, even in suitable employment.
59 In his most recent report dated 28 June 2017, Mr O’Brien noted that, following a physical examination of Mr Hollway, there was marked restriction of cervical movement and limited shoulder movement. Mr O’Brien stated that, although it was difficult to be precise as to the exact pathology underlying his pain, he considered Mr Hollway to be suffering chronic non-specific cervical and right arm pain. Mr O’Brien recommended ongoing conservative treatment with pain management, including reliance on medication.
60 Mr O’Brien was again of the opinion that, given Mr Hollway’s pain levels and use of multiple medications, he was not capable of undertaking any form of suitable employment.
61 Mr Hollway’s solicitors also arranged for him to be examined by neurosurgeon, Mr Ales Aliashkevich, in August 2017. In his report dated 9 August 2017, Mr Aliashkevich detailed Mr Hollway’s medical history, including the first and second work incidents. Mr Aliashkevich noted that the range of movements in Mr Hollway’s cervical spine were significantly restricted with flexion and extension. He also noted reduced pinprick sensation in Mr Hollway’s right arm predominantly in the C6 and C7 dermatomes.
62 Mr Aliashkevich diagnosed Mr Hollway as suffering chronic and refractory mechanical neck, right shoulder and arm pain as a consequence of the first and second incidents. He noted the history of the cervical discectomy and fusion at C6-7, and noted that there was adjacent segment disease in C4-5 and C5-6, with spinal canal stenosis and foraminal stenosis. Mr Aliashkevich also diagnosed Chronic Pain Syndrome and depression.
63 Mr Aliashkevich considered that Mr Hollway’s employment was a significant contributing factor to the aggravation of pre-existing degenerative disease of his spine.
64 Further, Mr Aliashkevich was of the opinion that, taking into account his functional limitations, intensity of pain, medication requirements, levels of education, training and skills, and his history of prolonged unemployment since 2013, Mr Hollway had no current capacity for employment.
65 In the conclusion of his report, Mr Aliashkevich recommended that further medical imaging may lead to a more specific treatment plan, including possible diagnostic cervical nerve sheaf blocks and radiofrequency denervation procedures. However, Mr Aliashkevich stated that, even if Mr Hollway obtained some symptomatic relief from future treatment, it was unlikely that he would be able to return to the workforce and perform any modified or suitable duties on a reliable and consistent basis.
66 Mr Hollway also relied upon a report from orthopaedic surgeon, Mr Michael Shannon, who examined Mr Hollway for the purpose of assessing his impairment for a lump sum benefit in respect of the first incident. In his report dated 22 March 2013, he noted that Mr Hollway continued to complain of pain and stiffness in his neck, particularly in the mornings. It was also noted that he had pain radiating into his right arm. Mr Shannon was of the opinion that his condition was likely to remain unchanged, but thought that his neck may be vulnerable to further injury.
67 Mr Hollway’s solicitors also arranged for him to be examined by occupational physician, Dr Robyn Horsley, in November 2014 and July 2016. In her first report dated 12 November 2014, Dr Horsley recommended that Mr Hollway would benefit from involvement in a multidisciplinary pain management program. She also stated that if Mr Hollway upgraded his skills to Certificate IV in Warehouse and Logistics, it would increase his working options within a warehouse environment, and particularly an office-based environment.
68 Dr Horsley noted that, if there was an improvement in Mr Hollway’s depression and anxiety, he would have a capacity for work in the vicinity of 15 to 20 hours per week. Further, Dr Horsley stated that, if Mr Hollway was to upgrade his skills and move into a more clerical role, his capacity for work would likely be greater. However, she noted that his hours of work would depend upon involvement in a functional restoration program, treatment of his anxiety and depression, and the critical physical demands of the role.
69 In her subsequent report dated 13 July 2016, Dr Horsley again recommended that Mr Hollway undergo a multidisciplinary pain management program and a Certificate IV in Warehouse and Logistics to upgrade his skills.
70 Dr Horsley then noted the following work restrictions as a consequence of Mr Hollway’s cervical spine injury:
· avoidance of repetitive overreaching, pushing and pulling
· avoidance of static postures involving the cervical spine and shoulder girdle
· avoidance of above shoulder activities
· avoidance of rotation of the cervical spine, particularly to the right
· avoidance of forklift work which includes reverse driving and potential exposure to vibration
· avoidance of working in awkward and confined spaces
· good manual handling techniques, even when lifting light items
· avoidance of repetitive bending and lifting
· avoidance of lifting items greater than 8 to10 kilograms, except on an occasional basis
· avoidance of lifting items up to 8 kilograms on a repetitive basis.
71 Dr Horsley also noted Mr Hollway’s functional tolerances included:
· a sitting tolerance that varied between 30 to 45 minutes
· a static standing tolerance up to 15 minutes
· a dynamic standing tolerance between 30 to 45 minutes
· a driving tolerance in an automatic vehicle of up to 30 minutes.
72 Dr Horsley again noted that Mr Hollway’s depression and anxiety impacted upon his work capacity. She was of the opinion that Mr Hollway had the capacity to undertake part-time work in the vicinity of 15 to 20 hours per week initially, consistent with the restrictions detailed above, in circumstances where his functional tolerances improved and he was able to proactively treat his anxiety and depression.
73 Dr Horsley then considered numerous jobs recommended by AMS in its Vocational Assessment Report dated 26 February 2015. Dr Horsley felt that if Mr Hollway was able to complete a Certificate IV in Warehouse and Logistics, as well as improve his computer skills, then he would improve his attractiveness and skill base to apply for roles such as receiving and despatch clerk, stock clerk, warehouse administrator and sales clerk. However, Dr Horsley noted that, as Mr Hollway had no former sales experience, he was unlikely to be an attractive candidate in that role unless he upgraded his skills with a Retail Certificate II or III.
74 Dr Horsley expressly stated that she considered Mr Hollway would never be able to return to work as a storeman. However, she was hopeful that he could obtain alternate employment, as detailed above.
Defendant’s medico-legal evidence
75 The defendant arranged for Mr Hollway to be examined by orthopaedic surgeon, Mr Gerald Moran, on two occasions in December 2013 and May 2017. In his first report dated 6 February 2014, Mr Moran stated that, in his opinion, Mr Hollway had suffered a C6-7 disc prolapse in the first incident, and that he had sustained C4-5 and C5-6 protrusions in the second incident. Mr Moran was of the opinion that, at that time, Mr Hollway was unfit for his pre-injury duties and hours, and that he was only fit for light duty work, which did not involve his neck being in a fixed position.
76 Mr Moran provided a supplementary report on 27 February 2015, in which he commented on the AMS Vocational Assessment Report of 16 April 2014. Notwithstanding that Mr Moran had not seen Mr Hollway for approximately 14 months at that time, he offered an opinion that Mr Hollway was fit to perform the employment options set out in that report. Mr Moran made further comments regarding Mr Hollway’s work capacity in a report dated 5 August 2015. However, again, I note that by that time, Mr Moran had not examined Mr Hollway for approximately 20 months.
77 Mr Moran provided a final report dated 10 May 2017, following a re-examination of Mr Hollway. Mr Moran noted that Mr Hollway’s symptoms had remained unchanged since his previous examination, and that he complained of constant neck pain and pain in his right arm down to the wrist when he used his right arm.
78 Mr Moran recommended that Mr Hollway continue taking his medication, as he was of the opinion that Mr Hollway would continue to experience intermittent neck pain into the future. Mr Moran was also of the opinion that Mr Hollway had the capacity for light duty work, which did not involve his neck being in a fixed position. In circumstances where Mr Hollway had not worked since November 2013, Mr Moran considered that if he was to find suitable employment, Mr Hollway should initially work part-time, approximately 50 per cent of normal hours for three or four months, before any consideration be given to increasing his hours of work.
79 Mr Moran was of the opinion that Mr Hollway was not fit for his pre-injury duties, but considered the duties set out in the AMS Vocational Assessment Report of 26 February 2015 to be suitable.
80 The defendant arranged for musculoskeletal pain consultant, Dr Clive Kenna, to examine Mr Hollway on three occasions in June 2012, April 2015 and June 2017. In his first report dated 25 June 2012, Dr Kenna assessed Mr Hollway for the purpose of determining his safe return to work.
81 Dr Kenna stated that, in his opinion, Mr Hollway was fit for modified duties, but that forklift duties were not suitable and that he should be precluded from unrestricted lifting.
82 In a supplementary report dated 9 July 2012, Dr Kenna stated that he believed a 20-kilogram lifting limit was sufficient, and that he did not know whether Mr Hollway would be capable of lifting up to 25 kilograms.
83 In a report dated 16 April 2015, Dr Kenna detailed the impact of the second incident on Mr Hollway. He was of the opinion that the second incident was a “clear aggravation of his symptoms” and that Mr Hollway was left in a position where he was fit to perform only modified duties. Such duties included a lifting limit of about 5 to 6 kilograms, and the avoidance of any fixed posture or position, or use of the arms at or above shoulder height.
84 Dr Kenna then expressed an opinion as to Mr Hollway’s capacity to perform the jobs proposed in the AMS NES Refresher Assessment Report and Plan. Dr Kenna stated that he was in general agreement with the recommended jobs, and considered Mr Hollway had a capacity for full-time employment provided that suitable options were offered to him.
85 In a supplementary report dated 16 June 2015, Dr Kenna expressed an opinion that Mr Hollway’s current symptoms involved a combination of both the first incident and second incidents. Dr Kenna stated that the fusion performed in August 2011, resulted in an alteration of the biomechanics of Mr Hollway’s spine, which “probably in part contributed” to his current condition. He also recognised the second incident “may well have been a contributory factor in part”.
86 In his final report dated 27 April 2017, Dr Kenna agreed with Mr Wilde’s opinion that Mr Hollway suffered underlying pre-existing degenerative changes in the cervical spine, which were aggravated in the first incident, and were subsequently exacerbated in the second incident.
87 Dr Kenna was of the opinion that Mr Hollway was “only fit for very light part-time alternate duties”. However, Dr Kenna stated that if Mr Hollway was able to obtain suitable employment, he may be able to develop into working almost full-time hours, provided there was no constant postural positioning, or screen work. Dr Kenna again expressed agreement with the reports proposed by AMS in February 2015.
88 Finally, Dr Kenna noted that, in his opinion, there was no functional overlay for exaggeration of Mr Hollway’s symptoms.
Mr Hollway’s credibility
89 I considered Mr Hollway to be a simple, and at times, poor historian, but he was overwhelmingly honest in his evidence. There were numerous occasions when he could not recall exactly when certain events had occurred, but he openly conceded as such, and accepted the contemporaneous medical records as accurate.
90 I consider Mr Hollway gave frank answers in relation to his work skills. I accept that his résumé, prepared prior to commencing employment with the defendant, overstated aspects of his experience. For example, he stated that while working for Ansett Australia, he was responsible for “liaising with freight forwarders”. However, in cross-examination Mr Hollway said he was “not really sure what that meant”. Contrary to what the defendant submitted, I do not consider this to negatively impact upon Mr Hollway’s credibility. In my experience, it is not uncommon for a job applicant to overstate prior work responsibilities.
91 Mr Hollway was cross-examined regarding the agreement he had reached with AMS in April 2014, regarding the suitability of certain jobs. Mr Hollway said that he had agreed to the suggested jobs as he “was there to get work”.
92 Mr Hollway has consistently said that he would like to work, as demonstrated by the following example.
Q: “Knowing that has been advised or suggested by Ms Horsley, is that something you'd be prepared to undertake?- - -
A: Well, I'm prepared but the issue is can I do it?
Q: How will you ever know if you don't have a go?- - -
A: I struggle most days, day-in, day-out, something like that – well, maybe I could give it a go but honestly with the pain I've got, neck pain, shoulder pain, I don't know how you're working constantly would be – yes, I don't think I'd be able to do it long-term but, you know - - -
Q: So is - - -?- - -
A: I'm willing to give anything a go, a try.”
93 Notwithstanding Mr Hollway’s genuine desire to work, I accept his genuine belief that it is inconsistent with his ongoing pain.
94 Mr Hollway readily accepted his ability to perform a range of work-related tasks that were put to him during the course of cross-examination. However, in re-examination, when asked if he understood what certain tasks involved, Mr Hollway conceded that he had no idea what many of the tasks actually involved.
95 I do not consider that Mr Hollway sought to exaggerate or overstate his symptoms, nor the impact his pain has had upon his life and his ability to work. The defendant submitted that Mr Hollway had switched the focus of his consequences to the second incident, as the case had progressed. I do not accept this submission. I consider that Mr Hollway’s affidavits were consistent with the oral evidence he gave.
96 I am satisfied that Mr Hollway was a witness of truth and I have no hesitation in accepting his evidence in its entirety.
Is Mr Hollway’s impairment permanent?
97 The defendant contended that I could not be satisfied that Mr Hollway’s impairment is permanent, as there is a prospect that he will receive treatment in the future, which may result in an improvement in his condition. The defendant relied upon the medical report of Mr Aliashkevich, who raised the possibility of further medical investigations and procedures, as well as Mr Hollway’s evidence that he will seek advice about such treatment options at an upcoming scheduled appointment at the Barbara Walters Pain Centre.
98 I note that the Barbara Walters Pain Centre have provided Mr Hollway with physiotherapy treatment via Skype. I consider the possibility of any further investigations or procedures to be speculative at best, and on the evidence before me, I am satisfied that Mr Hollway’s impairment is permanent. Given that Mr Hollway’s condition has persisted for at least four years since the second incident, I consider any future improvements from treatment are likely to marginal.
Mr Hollway’s loss of earning capacity claim arising from the first incident
99 To be entitled to claim pecuniary loss damages for the first incident, Mr Hollway has the onus of satisfying me that, as at the date of hearing, and on a permanent basis, as a consequence of the impairment to his cervical spine, attributable to the first incident alone, he has sustained a loss of earning capacity which produces a financial loss of 40 per cent or more.
100 I note that after his surgery, and prior to the second incident, Mr Hollway was able to work his pre-injury hours. Although he was no longer receiving Certificates of Capacity, I accept Mr Hollway’s evidence that his work duties were light, and that he did not use the reach forklift. I am satisfied that such work constituted suitable employment, and that by taking regular pain-killing medication, Mr Hollway was able to persist with such employment.
101 Ms Hartley suggested that Mr Hollway could rely upon the second incident as being causally related to the first incident, in that the first incident created a vulnerability in Mr Hollway’s cervical spine. Such an approach was raised on appeal in the matter of A G Staff v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[1] a case involving a plaintiff who suffered right shoulder injuries in two separate work accidents. Mandie J accepted that this approach would be permissible if the evidence established that the first incident rendered the plaintiff vulnerable to all the consequences that became apparent after the second incident.
[1][2012] VSCA 60
102 In March 2013, Mr Shannon stated that, as a consequence of the first incident, Mr Hollway’s neck would be vulnerable to further injury. However, as Mr Shannon did not re-examine Mr Hollway after the second incident, there is no further comment by him as to whether or not the second incident was the type of aggravation he had contemplated.
103 Dr Kenna stated that the first incident resulted in an alteration of the biomechanics in Mr Hollway’s spine, which could probably, in part, have contributed to his current condition.
104 The other doctors do not comment on whether they considered the second incident to have arisen as a result of vulnerability created in the first incident. The majority of medical opinions dealt with the two incidents as separate, and on the basis that the second incident was the main cause of Mr Hollway’s incapacity for suitable employment.
105 There is no evidence before me that, if not for the second incident, the cervical spine injury that Mr Hollway suffered in the first incident was likely to deteriorate, such that it was probable he would be incapable of performing full-time light duties as a storeman, as at the date of hearing.
106 In the circumstances, I do not accept that the first incident is a cause of any ongoing incapacity for suitable employment.
Are the pain and suffering consequences from the first incident very considerable?
107 I must now separately consider whether the pain and suffering consequences to Mr Hollway arising from the first incident are very considerable. The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively in considering the seriousness of the impairment.[2] In considering if Mr Hollway’s cervical spinal impairment from the first incident is “serious”, the consequences – from this incident alone - must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[3]
[2]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
[3]Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
108 As a consequence of the first incident, Mr Hollway underwent surgery, which involved the fusion of his neck. Following that surgery, he had an improvement in his neck pain, although he still took over-the-counter pain medication on a daily basis. Mr Hollway also continued to suffer some restriction of movement in his neck, and said that his pain was aggravated by activities such as lifting and the frequent movement of his neck. I note that he had returned to play golf, but that he did not play as often as he had done prior to the first incident. Mr Hollway no longer walked on a regular basis.
109 I note that Mr Hollway was just 39 years of age at the time he suffered this injury.
110 As was also noted by Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd & Anor:
“…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 to 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.”[4]
[4][2009] VSCA 181 at [43]
111 Mr Hollway has satisfied me that, when compared to other cases in the range of possible impairments, the pain and suffering consequences of his cervical spine impairment, attributable to the first incident, can be described as at least very considerable.
Did Mr Hollway suffer an injury in the second incident?
112 I am satisfied that as a consequence of the second incident Mr Hollway suffered disc protrusions at C4-5 and C5-6. I consider this conclusion to be consistent with the medical imaging, which indicated that subsequent to the second incident, there was additional damage to the cervical spine beyond the previously fused C6-7. It is also supported by the opinions of Mr Wilde and Mr Moran, and is consistent with Mr Hollway’s evidence that he suffered persistent increased neck pain following the second incident.
Mr Hollway’s loss of earning capacity claim arising from the second incident
113 To succeed in this application, Mr Hollway bears the onus of satisfying me that, as at the date of hearing, and on a permanent basis, as a consequence of the impairment to his cervical spine, attributable to the second incident alone, that he has sustained a loss of earning capacity which produces a financial loss of 40 per cent or more.
114 In undertaking this task, I must compare what Mr Hollway is currently earning, or capable of earning, in suitable employment, with his earning capacity prior to the second incident. To determine this, I must decide which of the following scenarios most fairly reflects Mr Hollway’s earning capacity, if had he not suffered the aggravation in the second incident:
(a)the gross income the plaintiff earned (or was capable of earning) from personal exertion in the three years before the second incident ; and
(b)the gross income the plaintiff would have earned (or would have been capable of earning) from personal exertion in the three years after the second incident, if the injury had not occurred.[5]
[5]s134AB(38)(f)
115 Mr Hollway earned the following gross income in the three years prior to the second incident:
· 30 June 2011 - $64,263
· 30 June 2012 - $60,082
· 30 June 2013 - $59,250
116 I consider the financial year ended 30 June 2013, which was his last full year of employment prior to the second incident and being made redundant, to be the figure that most fairly reflects Mr Hollway’s without-injury earning capacity. It equates to a gross weekly wage of $1,139.42. To succeed in his claim, Mr Hollway must satisfy me that, as a consequence of the second incident, he is incapable of earning more than 60 per cent of that gross weekly sum – that is, $683.65 per week. I must be satisfied that Mr Hollway suffers this loss now and on a permanent basis.
117 In assessing Mr Hollway’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to his physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[6]
[6]Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at [48]
118 The definition of suitable employment is an objective test which looks at Mr Hollway’s current suitability for work, taking into account matters such as his age, education, experience, and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[7]
[7]See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28].
119 This is a test of physical capacity, not employability, but it involves a consideration of what the plaintiff might, in the foreseeable future, be able to do on “a regular and consistent basis”,[8] allowing for such improvement as might be thought likely or possible after undertaking vocational education, or undertaking a pain management program.[9]
[8](Supra) at [49]
[9](Supra) at [49]
120 All of the doctors accept that Mr Hollway cannot return to his pre-injury duties.
121 Dr Samararatna considers Mr Hollway has a limited capacity for some alternative work, but noted this was subject to his chronic ongoing pain, physical limitations and limited education and skill base.
122 Mr O’Brien was of the opinion that Mr Hollway was totally incapacitated.
123 Dr Baynes and Dr Horsley both expressed a number of restrictions which Mr Hollway would require in order to be able to return to a sedentary job. Both doctors were optimistic that Mr Hollway could work on a part-time basis. Dr Horsley considered 15 to 20 hours a week to be realistic, and Dr Baynes considered 25 to 30 hours a week to be realistic. However, in offering these opinions, neither doctor commented upon Mr Hollway’s ability to attend work on a reliable and consistent basis.
124 Mr Aliashkevich was of the opinion that Mr Hollway was unlikely to perform such suitable employment in a reliably consistent fashion.
125 Mr Hollway was cross-examined in relation to a number of jobs that were recommended as suitable employment by vocational assessor, CoWork, in August 2017. Such jobs included freight forwarding clerk, import/export clerk, and a despatch clerk. Mr Hollway was asked about different aspects of these jobs, and agreed that he could perform many of those tasks. However, on numerous occasions Mr Hollway stated that he did not think he could do such work on a continual basis due to his constant pain.
126 I accept Mr Hollway’s evidence that his neck pain is constant and that he also has pain in his right shoulder, and at times, a shooting pain into his right arm.
127 I am also satisfied that since the second incident, Mr Hollway has taken much stronger medication, including Lyrica and Norpsan patches. He takes such medication on a daily basis, and I am satisfied that this affects his concentration.
128 I am also satisfied that Mr Hollway’s neck pain significantly interferes with his sleep, such that he wakes at least three times a night. I accept that he is tired during the day. He said he often falls asleep at lunchtime. I note that Mr Hollway had complained of some difficulties with sleep prior to the second incident, but that such difficulties did not interfere to the extent that he was fatigued the following day.
129 I am satisfied that Mr Hollway is unable to undertake study at TAFE due to his ongoing neck pain, difficulties sitting at a desk or computer, and his need to frequently move around.
130 In considering the whole of the evidence, I am satisfied that Mr Hollway’s neck injury prevents him from undertaking suitable employment in a reliable and consistent manner.
131 As a consequence, I am satisfied that Mr Hollway suffers a total loss of earning capacity. I do not consider further medical treatment to offer any prospect of improvement. I am, therefore, satisfied that his incapacity will remain for the future, and is permanent.
132 Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences for Mr Hollway meet the “very considerable” test.[10] Given my acceptance that Mr Hollway’s injury prevents him from reliably returning to any form of suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[10]s134AB(38)(c)
133 As Mr Hollway has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his neck injury, it is not necessary for me to consider separately his pain and suffering consequences.[11]
[11]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63]
134 In such circumstances, Mr Hollway is granted leave to commence a common law claim for pain and suffering and loss of earning capacity damages.
135 I will make the consequent orders.
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