Hunter, Christopher v Original Foods Pty Ltd

[2009] VCC 1638

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-01243

Christopher Hunter	Plaintiff
v
Original Foods Pty Ltd	Defendant
Worksafe Victoria

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2009
DATE OF JUDGMENT:	21 December 2009
CASE MAY BE CITED AS:	Hunter, Christopher v Original Foods Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VCC 1638

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious Injury Application – Accident Compensation Act 1985 – s134AB(16) – Pain and Suffering – Permanent serious impairment or loss of a body function – Injury to the lumbar spine

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. McGarvie SC	Nowicki Carbone
with Mr A. Ingram
For the Defendant	Mr P. Scanlon	Lander & Rogers
with Ms F. Ryan
HER HONOUR:

1 Mr Hunter, aged 46, applies for leave to bring proceedings for the recovery of damages for pain and suffering only, in respect of an injury to the lumbar spine sustained on 7 February 2006 during the course of his employment with the defendant as a kitchen hand. He seeks a determination that he has suffered a serious injury under section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). He relies on paragraph (a) of the definition of serious injury contained in s.134AB(37) of the Act.

2          The defendant says that the court should not be satisfied that the plaintiff suffered compensable injury on 7 February 2006 because no incident report was filled in at work and because his treating acupuncturist who saw him on 10 February 2006 noted in her clinical notes the onset of symptoms two weeks earlier, even though by letter dated 28 May 2008 she corrected that to “two days” earlier. It says that the court should not be satisfied with her explanation for the change. In addition, the defendant says that this case does not meet the required threshold in that the pain and suffering consequences of his lumbar spine impairment are not more than considerable when compared with other cases in the range of lumbar spine impairments. In this regard, the defendant relies on the fact that the plaintiff is working full-time and has retained the capacity to engage in many social and recreational activities. The defendant says that the activities demonstrated by the plaintiff on video surveillance in February 2009 (when the plaintiff is seen walking, getting in and out of a car, sitting on rocks, sitting on concrete, squatting for some minutes, bending over once), reveal that he has retained good capacity, and this militates against the grant of leave.[1]

[1] The Defendant also relied on the cases of Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292;

3          The plaintiff says that on 7 February 2006, he was conducting an informal stock take of the contents of the freezer. The freezer had boxes on the floor. While moving an 8 kilogram box he stepped back down and slipped on a box or tray with his left foot, twisting his trunk to the left. He had no prior significant back injuries. He was not provided with an induction by his employer in relation to the need to fill in an injury register. He reported the injury to the sous-chef at work, Vitas, and to a sales manager, Tom Neil. He left a message on the answering machine between 8 and 9 February saying he would not be attending work and that he had a sore back and was going to the doctor. In fact, he went to see an acupuncturist, Pip Atherstone-Reid, who is his estranged wife’s sister. He told her that he injured his back at work a few days earlier. He could not explain the entry in her clinical notes to the effect that the injury occurred two weeks earlier. Before seeing the acupuncturist, he rang his employer and left a message with Mr Lynch to ask about the following week’s work, assuming his back would be alright by then and the acupuncture would be effective, but when his call was returned it was returned by Mr Trupp who said he was sacked because the company was not happy with his punctuality, attitude and quality of work. He saw a doctor in Brunswick and told them he had been sacked. He did not return to work. He completed a certificate in mediation studies and a traineeship as a community contact officer with the Brotherhood of St Laurence and is now employed by them as a team leader in the Collingwood housing estate, working 40 hours per week in a sedentary position which allows him to move around as he wishes, earning approximately $800 per week gross. He is paid to attend NMIT, where he is undertaking a Diploma in Community Welfare, three hours per week.

4          In his affidavits, the plaintiff stated that he received medical treatment for his injury and was certified unfit for work until 21 April 2006. He received weekly payments until 23 April 2006. He had a few osteopathic, chiropractic and acupuncture treatments in 2006 and 2007 but did not get long-term relief from them. As at 8 November 2007, he had constant lower back pain, varying in severity, with restricted movement, which was aggravated by frequent bending and heavy lifting. He used to play soccer on Wednesday and Sunday prior to his injury but no longer did so. He could not sit for long periods and had trouble travelling long distances. His ability to play with his son was affected. He was finding it difficult to help around the house.

5          As at 16 July 2008, he stated that he used to ride his bike at least a few times per week but could no longer do so because it caused him too much pain. He was now playing darts once a week but had difficulty throwing. He used to go to rock concerts fortnightly and would dance, but could no longer dance at all. He found sitting painful and had to move around every 15 minutes. He found sitting in the car “agonising” and could only be in a car for 30 minutes before the pain became unbearable. He could no longer play with his son as he used to or cycle with him. He could no longer do the gardening he used to do. He was taking two 25mg Voltaren tablets every day but up to six per day if the pain was bad. He was also taking about two Panadol per day.

6          At the hearing, the plaintiff said his condition had not changed in the past two years. He was taking between one and three 50 mg Voltaren tablets per day. These were prescribed by his doctor. He said his back pain was worse at the end of the week and he took more Voltaren then. He said that on odd days, he did not take Voltaren. The cortisone injection he had in May 2009 provided no lasting relief. Most days, he has difficulty putting on his shoes and socks. He does his own shopping daily, to avoid carrying heavy goods. He has separated from his wife due to the problems caused by his back injury. He can still go to the park, fish on the beach and visit people at home, and socialise, but said he cannot dance anymore at concerts and finds this frustrating. He said that he did have trouble getting into the car on the video surveillance. He agreed that he squatted, bent over, and sat on the ground, but said that these activities were a lot harder for him after his injury. He said he stopped cycling 2 years after his injury.

7          He said he did not recall asking Pip Atherstone-Reid to send a letter correcting the error in her clinical notes but said he might have done so if asked by his solicitors. If he did so, he said he did not coach her as to what she should write.

8          There was no dispute that the radiological and medical evidence (from Mr Teddy, Mr Brearley, Dr Baynes, Mr Johnson and Mr Polke) is to the effect that the plaintiff’s symptoms of back pain and left leg pain are related to the disc protrusions at L4-5 (contacting the left L5 nerve root) and at L5-S1 (contacting the left S1 nerve root). There was no clinical evidence of radiculopathy. The injury suffered by the plaintiff in February 2006 is best described as an aggravation of pre-existing but asymptomatic lumbar disc degeneration of the L4-5 and L5-S1 discs. All the doctors (except Mr Polke in 2006, but he revised his opinion in April 2008) agreed that due to his lumbar disc injury and symptoms the plaintiff is permanently incapacitated for his former employment, but is fit to work in the sedentary occupation for which he has retrained and in which he is currently working full-time.

9          Mr Brearley[2] noted that the plaintiff has mechanic lumbar pain and some left leg symptoms as a result of nerve root irritation of the L5 nerve root, requiring painkillers and anti-inflammatories for any exacerbations. He felt that the injury had a very considerable impact on the plaintiff’s ability to engage in his usual social, recreational and domestic activities in that he can no longer run, cycle, go backpacking, dance or play competitive soccer.

[2] See his report dated 14 July 2008.

10        Dr Baynes[3] noted the likely permanence of his symptoms of back pain and intermittent left leg pain and concluded that the major problem was sitting for long periods. He felt that facet joint injections might help his symptoms.

[3] See his report dated 7 October 2008.

11        Mr Michael Johnson, orthopaedic surgeon, treated the plaintiff on one occasion with an epidural injection (which the plaintiff said gave him no lasting relief), and reported that his problems relate to the disc prolapses with associated L5 nerve root compression. He concluded in his report of 10 September 2009 that he had recommended surgery to the plaintiff as this would likely give him a good chance of substantial symptomatic relief, but noted that the plaintiff did not presently wish to have surgery.

12        Mr Polke reported in April 2008 that the plaintiff had ongoing back pain and some irritation of the relevant exiting nerve roots and that his prognosis was uncertain. He noted that if the plaintiff’s symptoms worsened, he may need microdiscectomy.

Causation

13        Dr Ballam, general practitioner, reported on 10 March 2006 that he saw the plaintiff on 11 February 2006 complaining of pain radiating from his back to his left buttock since lifting a box from the freezer one week before. He attended again on 16 February 2006 with continuing pain, but was improving. He attended for the last time on 28 February 2006.

14        Dominic Briscomb, osteopath, reported on 14 March 2006 that he saw the plaintiff on 10 March 2006 who presented with left lower lumbar pain that came on at work on 7 February 2006 when he slipped in a walk-in freezer at work.

15        Ms Pip Atherstone-Reid reported on 14 February 2006 that she saw the plaintiff for pain in the sacroiliac joint region. He had difficulty walking and pain on bending. She treated him with acupuncture and suggested he rest his back and refrain from heavy lifting. In her clinical notes she noted “m/c: 2 weeks ago – twingey L sacroiliac joint difficulty moving.” In her letter dated 28 May 2008 she wrote “on reflection of my clients Acupuncture notes dated 10 February 2006 Friday 2.30pm, I would like to withdraw my original statement of m/c: 2 weeks ago – twingey L sacroiliac joint difficulty moving…I can only conclude that the 2 weeks ago was meant to be 2 days ago.”

16        At the hearing, she said that she recollected seeing the plaintiff at a temporary clinic in Kew, that he told her he hurt his back at work two or three days earlier. She could not recall who asked her to send a letter to the court clarifying her clinical notes, but said that when the notes were drawn to her attention she realised she had made a mistake because she knew he told her the incident happened 2 days before the consultation. On that basis, she guessed that “weeks” was a mistake and should have read “days”, but that the reference to “2” was correct. She denied writing any other letter referring to her clinical notes. She said she sent her clinical file to the court on 22 May 2008 and her letter dated 28 May 2008 was sent separately.[4] She said that after treating the plaintiff twice for his back symptoms she referred him to Billie Atherstone, another acupuncturist at the same clinic, who treated him twice in August 2007.

[4] The Court stamp indicates that the letter was received on 30 May 2008.

17        I found Ms Atherstone-Reid to be a straightforward witness and I accept her evidence that when she first treated the plaintiff he told her he had been injured at work 2 days earlier, and that her clinical notes mentioning “2 weeks” were wrong. I note in any event that both Dr Ballam and Mr Briscomb received a history in March 2006 of an injury at work on 7 February 2006. I note also that according to the affidavit of Mr Lynch the plaintiff lodged a claim for compensation form on 14 February 2006 claiming he suffered injury on 7 February 2006.

18        The plaintiff was extensively cross-examined. I found him to be a straightforward witness who answered questions carefully without embellishment. He was emphatic as to the occurrence of the injury at work on 7 February 2006 and I accept his evidence that he verbally reported his injury to the sous-chef Vitas and the sales manager Mr Tom Neil, before leaving work that day. His evidence is consistent with that of Ms Atherstone-Reid and with the reports of Dr Ballam and Mr Briscomb. I prefer the plaintiff’s evidence where it conflicts with that of Mr Lynch on the question of the occurrence of the injury on 7 February 2006 and his report of the incident to management.

19        I am satisfied that the plaintiff suffered the relevant injury to the lumbar spine at work on 7 February 2006.

Pain and suffering – other lay evidence

20        I have already referred to the medical reports which indicate that the plaintiff will permanently continue to suffer low back pain and left leg pain requiring medication and possibly, if the symptoms worsen, surgery. The reports also refer to the inability to sit for long periods or to dance, play soccer, cycle, run or backpack.

21        The plaintiff’s estranged wife provided an affidavit sworn on 16 July 2008 in which she deposed to the plaintiff’s gardening, backpacking, soccer, cycling, dancing and play activities with their son which the plaintiff enjoyed prior to his back injury and which he was no longer able to perform. She also deposed to the fact that his back pain had an adverse impact on their sexual relations.

22        Christine Sammut, the Enterprise Development Co-ordinator of the Brotherhood of St Laurence at the Collingwood estate, deposed in an affidavit sworn on 17 June 2009 that since they have worked together she has seen the plaintiff leave early on some occasions due to severe back pain, and on many occasions has seen him hold his lower back appearing to be in some discomfort.

23        Peter Seabrook, a friend of the plaintiff for the past four years, deposed in an affidavit sworn on 8 December 2009 to the plaintiff’s passion for soccer and to the fact that since his injury the plaintiff had to watch rather than play soccer and was frustrated by this. He stated that since the plaintiff’s injury he observed that at picnics and barbeques he was less involved with his son than prior to his injury.

Legal principles

24 I turn briefly to the legal principles applicable in this case. In order to make out a serious injury within paragraph (a) of the definition in s.134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[5] The court must consider the impairment of body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[6]

[5] See section 134AB(38)(c) of the Act

[6] See Sabo v George Weston Foods [2009] VSCA 242 at [66]; Stijepic v. One Force Group Australia Pty Ltd &

25        On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[7] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[8] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering. 9

[7] Fleming v Hutchinson (1991) 66 ALJR 211

[8] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58] 9 See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [80] 10 See TAC v Dennis, [1998] 1 VR 702,703 per Callaway JA

26        Some weight must be given, in considering whether the pain and suffering consequences of the plaintiff’s impairment are “at least very considerable” to the adverb “very”.10

27        In determining the application, the whole of the evidence is to be considered and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering.[11] Rather, the court must consider what the plaintiff has lost by virtue of the injury and what has been retained.[12]

[11] Dwyer v. Calco Timbers (No.2) [2008] VSCA 60; Stijepic v. One Force Group Australia Pty Ltd & Anor

[12] See Dwyer v. Calco Timbers (No.2) [2008] VSCA 60 at [27]

28        Each case needs to be determined in light of its own facts.[13]

[13] Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181

29        I am entitled to take into account that the plaintiff is 46 years old and that, compared with other persons with lumbar spine impairments, he will experience these pain and suffering consequences for a longer period of time.[14]

[14] See Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at [44]

30        A stoic plaintiff who has been prepared to put up with his pain and suffering and get on with business as best he can should not be treated less favourably than another who, being of less strength of character, simply resigns himself to his injury.[15]

[15] See Dwyer v Calco v Timbers (No. 2) [2008] VSCA 260, per Nettle JA at [3]

31        The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of very serious consequence.[16]

Findings and Reasons

[16] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267

32        I found the plaintiff to be a straightforward, understated witness and I accept his evidence as to the circumstances in which he injured his lumbar spine at work on 7 February 2006 and as to the pain and restrictions he continues to suffer as a result of his lumbar spine impairment. The video surveillance shows him doing activities that he concedes he can do, and it is not inconsistent with the pain and restrictions he claims to have suffered as a result of his lumbar spine injuries.

33        In this case, there is clear substantial pathology in the form of two lumbar disc prolapses, each contacting the relevant nerve roots, which is causing his symptoms. On the medical evidence, he will continue permanently to suffer persistent back and left leg pain requiring analgesic and anti-inflammatory medication. He will also continue to suffer the restrictions flowing from these symptoms including a poor sitting tolerance, inability to bend or lift repeatedly, inability to cycle, run, dance, backpack and lift his son. The medication he takes daily on prescription, Voltaren, is at twice the strength of tablets normally available over the counter. He is a relatively young man and at the age of 46 will have to live for the rest of his life with the pain and restrictions caused by his lumbar spine impairment. His sexual relations with his estranged wife were adversely affected by his back pain, and such activities may be similarly affected in future. The pain restrictions interfere with his ability to lift and play with his son, and to sit for long periods. There is real prospect that his symptoms will worsen and surgery will be required. The plaintiff’s injury has forced him away from heavy work and it is to his credit that he has retrained and found full-time employment in a sedentary job. This alone, however, does not detract from the pain and restrictions flowing from his lumbar spine impairment.

34        In all the circumstances, having regard to all the evidence, to the plaintiff’s age, nature of injury, severity of symptoms and amount of prescription medication taken, together with the restrictions on his daily activities and recreational activities, I consider that the pain and suffering consequences of his impairment are more than significant or marked and are at least very considerable when compared with other cases in the range of possible impairments of the lumbar spine.

35        It follows that leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering only in respect of the injury to the lumbar spine suffered during the course of his employment with the defendant on 7 February 2006.

Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181

Anor [2009] VSCA 181, per Ashley JA at [42]

[2009] VSCA 181