Hurd, Michael John v Hudson Frame and Truss Ltd
[2009] VCC 1434
•26 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-02070
| MICHAEL JOHN HURD | Plaintiff |
| v | |
| HUDSON FRAME AND TRUSS LIMITED | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2009 |
| DATE OF JUDGMENT: | 26 November 2009 |
| CASE MAY BE CITED AS: | Hurd, Michael John v Hudson Frame & Truss Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1434 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Application for leave to bring proceedings to recover damages for pain and suffering – disc prolapse - lower back pain- whether aggravation of degenerative condition or injury- whether consequences of injury very considerable – leave granted – Accident Compensation Act s. 134AB
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Garnham | Slater & Gordon Ltd |
| For the Defendant | Mr J L Batten | Wisewould Mahony |
| HIS HONOUR: |
Introduction
1 The plaintiff, Michael John Hurd, is aged forty-four years. He claims that he has suffered a serious injury and seeks leave under s.134AB of the Accident Compensation Act 1985 (“the Act”) to issue common law proceedings to recover damages in respect of pain and suffering.
2 The injury alleged is a disc prolapse at L5-S1. The relevant body function in which there has been an impairment or loss is said to be the lumbosacral spine.[1]
[1] T1 L28-31
3 The plaintiff signed a Workers’ Claim Form under the Act on 8 October 2004 alleging an injury, described as a lower back sprain, which was first noticed on 6 or 7 September 2004.[2]
[2] Defendant’s Court Book (DCB) 62
4 The plaintiff alleged that the consequences of the injury were: restrictions on his domestic and social activities, including his ability to play actively with and engage in sporting activities his four young daughters, on his ability to play sport especially golf and tennis, which have been significant parts of his life and a limitation in the type of jobs he can pursue. He also pointed to the back pain that he continued to suffer, particularly during the night.
5 The defendant, Hudson Frame and Truss Limited, submitted that the injury was a lower back sprain and soft tissue injury. It submitted that it did not cause the underlying condition, but admitted that an aggravation of a pre- existing degenerative pathology occurred in the course of the plaintiff’s employment with it.[3] It argued that the effect of the claimed injury had ceased and that the injury did not now materially contribute to any incapacity/consequences. It also submitted that the plaintiff failed to satisfy the “very considerable test” in s.134AB of the Act.
[3] T 10 - L7-8
6 The plaintiff was the only person called to give evidence.
7 The onus of proof is on the plaintiff to show that his back injury is a “serious injury” within the definition contained in s.137AB(37)(a) and (38)(b) and (c) of the Act.
The Plaintiff’s Employment History
8 The plaintiff completed schooling to Year 11. His jobs have included working in merchandising, running his own gardening business, being a warehouse and transport manager and factory hand.
9 The plaintiff is a keen sportsman and prior to September 2004 regularly played golf and tennis.
10 In 1997 he witnessed the death of a fellow worker and since has suffered from anxiety and depression, has been on anti-depressant medication and suffered from some panic attacks.
11 In October 2003, the plaintiff commenced working for the defendant as a factory hand, cutting and joining wood for floor trusses. The trusses, when complete had to be lifted onto a trolley and wheeled onto a truck. They measured up to seven metres in length and weighed between 30 and 80 kilograms.[4]
[4] Paragraphs 8-11 are based on the summary at T 2 L1- T3 L23
The Plaintiff’s Evidence
12 The plaintiff swore two affidavits in support of his application: on 17 January 2008 and on 2 September 2009. He was cross-examined, but it was accepted by the defendant that there was no credit issue or suggestion of exaggeration or elaboration,[5] and that he was very frank and honest in his evidence .[6]
[5] T 53 L15-19
[6] T 74 L24-25
13 I formed the impression that the plaintiff was a truthful witness on whose evidence I could rely.
14 In about September 2004, the plaintiff began to experience a sore lower back and was absent from work for a few days. He sought medical assistance at the Knox Medical Centre and on 16 September 2004 consulted Dr Beasley. The medical notes of that consultation, as reported in later medical report, recorded that the plaintiff complained that one week before he had “got back pain” and that he had “no past history of any back injury” and that examination disclosed “pain in right lumbar spinal area and right paraspinal musculature”. The notes also recorded that the plaintiff had “restricted lumbo sacral “[7]
[7] Plaintiff’s Court Book (“PCB”) 24
15 The plaintiff commenced physiotherapy. He was away from work for a few days and returned on light duties and reduced hours. He said that he found the light duties difficult as they involved quite a bit of physical activity and bending down to pick up rubbish.[8]
[8] Affidavit of the plaintiff sworn 17 January 2008 PCB 7- paragraph 7
16 In February 2005, he experienced further back pain and he undertook more physiotherapy and was again absent from work.
17 On 6 April 2005, a CT scan of the plaintiff’s lumbar spine revealed a broad based disc protrusion at L5-S1 slightly indenting the theca, but not resulting in a spinal stenosis. The scan also revealed that the neural outlet foramina and the posterior facet joints were normal.[9]
[9] PCB 53
18 The plaintiff was referred to Dr Alex Stockman, a rheumatologist.
19 The plaintiff completed a spinal functional restoration program conducted by Spinal Management Clinics of Victoria, including water aerobics, Pilates and stretching exercises.[10] He attended a gymnasium three times weekly for six months, performing an exercise program devised by the physiotherapist of low impact exercises for about thirty to forty minutes.[11] The funding for the gymnasium attendance ceased and he has not returned to the physiotherapist or the gymnasium.[12]
[10] T 28 L20-27
[11] T 42 L24-27
[12] T 43 L3-8
20 Between 28 June 2005 and 8 July 2005, the plaintiff was absent from work because of lower back pain.[13] Upon return he continued on light duties of sweeping and cleaning, on which he was engaged for about eight months in total. He did some sawing work for a couple of months.[14] In September 2005, he commenced estimating work, which did not involve any lifting or carrying. In early 2006, the plaintiff left the defendant’s employment. [15]
[13] PCB 25
[14] T 36 L13 - T 37 L6.
[15] Affidavit of the plaintiff of 17 January 2008 paras 7-8 PCB 7
21 In mid-2006, the plaintiff began working for Ultimate Merchandising Solutions, which was a business run by a friend, on a casual basis for twenty to thirty hours a week. This employment included working in supermarkets, helping to organise the layout and display of stock by setting up stands to promote particular products or, in the case of new or refurbished supermarkets, placing products on the appropriate shelves.[16] The heaviest items he lifted weighed about a kilogram.[17] He found that if he overdid work involving movement of his back that he experienced pain and sometimes would have to take time off work.
[16] T 44 L11- 18 and affidavit of the plaintiff of 17 January 2008 para 7 PCB 7
[17] T 46 L30 -T 47 L1
22 In early 2008, the plaintiff’s partner of seventeen years, Ms Joanna O’Callaghan, commenced full time work as a travel consultant. The plaintiff and Ms O’Callaghan are the parents of four daughters aged between thirteen and six. The plaintiff decided that because of Ms Callaghan’s new job, he would take on full time home duties.[18] He now prepares the children’s breakfasts and lunches and drives or walks the two youngest children to school. He does the shopping and prepares the evening meal. He is involved in his children’s activities. He is the vice president of the School Council of one daughter’s school, has been on the fundraising committee of another daughter’s primary school and is a committee member of his daughters’ basketball club.[19]
[18] Affidavit of the Plaintiff of 2 September 2009 para. 6 PCB 12
[19] T 31 L11-30
23 The plaintiff stated that he still experiences constant lower back pain, particularly after too much activity. His back often feels stiff and he cannot lift heavy weights. He experiences pain and pins and needles in the back of his left thigh, sometimes extending into his calf. He experiences occasional pain in his right groin, right testicle and right leg. He stated that his back pain is “still worse in the morning until I get moving. If I sit or stand in one position for too long I get increased pain”.[20]
[20] Affidavit of the Plaintiff of 2 September 2009 para 4 PCB 12
24 His back pain troubles him, particularly during the night and causes him to wake and gets out of bed, often at 3 or 4 am, and move around before the pain settles down.[21]
[21] T 40 L13 -16 where the Plaintiff confirms the history recorded in the report of Mr Stockman
25 The plaintiff agreed under cross-examination that he experiences little pain during the day.[22] However there was evidence that if he over exerts himself, he may suffer back pain during the day. The plaintiff stated that he looked after his back and that when he suffers back pain he takes Panadol and the next day he will not perform household tasks such as vacuuming, but activities such as light dusting or folding clothes.[23]
[22] T 40 L24
[23] T47 L21-27
26 He visits his treating general practitioner, Dr Brian Dunne, approximately every two to three months and takes anti-depressants and sleeping tablets. On occasion, and normally before he goes on his annual golfing trip, he takes Naprosyn, which is anti-inflammatory medication. He takes Nurofen, which is a pain killer, if his pain is bad. [24]
[24] Affidavit of the Plaintiff of 2 September 2009 para 9 PCB 13
27 He considered that his future employment options are limited and that he would not be able to carry out manual work involving the lifting of heavy weights. He said that even in more sedentary jobs, for example, working as a sales assistant, he would have to exercise care in his movements and the amount of time he spends on his feet.[25]
[25] Affidavit of the Plaintiff of 2 September 2009 para 7 PCB 13
28 While working at Ultimate Merchandising Solutions he could pace himself to try and manage his pain, but even then, because of his back injury, he could not meet all the demands of the job.[26]
[26] Affidavit of the Plaintiff of 17 January 2008 para 8 PBC 7
29 The plaintiff is limited in the manner in which he can play with his daughters. He cannot run about or throw a ball for long. His youngest daughter was about one when he suffered his injury and he was very disappointed that he was unable to be actively involved in her care, or freely nurse her, as he had with his older children.[27]
[27] Affidavit of the Plaintiff of 17 January 2008 para 11 PCB 8-9
30 He cannot jog and if he over exerts himself he said “that I pay for it the next day”.[28]
[28] T 33 L11-13
31 The plaintiff is limited in the amount of domestic work he can do. It takes him much longer to mow the lawns. He used to be a keen gardener and enjoyed maintaining a vegetable patch, but after sustaining the back injury found it very difficult to cultivate it. As a result his current vegetable patch is much smaller and harder to maintain.[29] However, he still performs some gardening and does domestic cleaning, such as vacuuming .[30]
[29] Affidavit of the Plaintiff of 17 January 2008 para 12 PCB 9
[30] T 33 L 19-31 cf statement of Victoria Brown DCB 36
32 The plaintiff said that his back injury had affected his sexual relations with his partner.[31]
[31] Affidavit of the Plaintiff of 17 January 2008 para 12 PCB 9
33 He has been a keen golfer and played a few times each month with friends at suburban courses in Melbourne. Since his injury he has been restricted to a yearly golf trip with friends. He gave detailed oral evidence about the trip which occurred on Friday to Sunday 11 to 13 September 2009, three days before this application was heard. He took Nurofen and anti-inflammatories to help him through the weekend.[32] He played 18 holes of golf on Friday, 11 September using a golf cart to move around the course, because to walk, as he used to, wore him out too quickly. He won the Stableford competition played with his friends on the Friday.[33] After the round he felt sore and tightening up with pain in his legs. He played 13 to 14 holes of golf on Saturday, 12 September. He was too sore to continue and decided to stop playing and rest. He still felt sore and took Nurofen on the Saturday morning and evening and did not sleep well. He agreed that the weather conditions on the Saturday, which included high winds, may have contributed to his decision to stop playing.[34]
[32] T 12 L27-31
[33] T 18 L26
[34] T 12 L27 – T 14 L29 and T 21 L12-13
34 On the Sunday the plaintiff played 11 holes of golf. He struggled to walk and was tired. He stopped because he experienced backache, but the fact that some of his companions had to leave to catch flights may also have been a contributing factor.[35]
[35] T 22 L24-27
35 Apart from this yearly trip with his friends, the plaintiff has stopped playing golf. Defendant’s counsel put to the plaintiff that there had been little change in his golf habits and that he now played with the same regularity as in the past. He disagreed with this suggestion.[36]
[36] T22 L2-4
36 The plaintiff used to play a weekly game of social tennis but this ceased in September 2004.[37] He said, in effect, that he had commenced playing tennis as a child and would have liked to continue playing, including with his children, but finds it too painful.[38]
[37] T 34 L30-31 - T 35 L1
[38] Affidavit of Plaintiff of 17 January 2008 para 14 PCB 10
37 He used to enjoy attending AFL football, but now seldom does because he finds it difficult to be seated for all of the game. He now watches local football, where he can stand and walk about as he needs when the pain requires it.[39]
[39] Affidavit of the Plaintiff of 17 January 2008 para 14 PCB 10
38 He takes Panadol and Nurofen during the colder months. His dosage varies from three to four times a week to once a week depending on what he was doing. He buys medication over the counter. He takes Aropax for depression and sleeping tablet medication.[40]
[40] T 15 L 2-5
Ms O’Callaghan’s Evidence
39 Ms O’Callaghan’s evidence was that the plaintiff used to play golf a few times a month at suburban courses in Melbourne, but since his injury had stopped doing so.[41] When he returns from his annual golf trip she observes him to be suffering back pain. She considers that he pushes himself to go on the annual golf trip so as to not allow his back injury to defeat him completely. He is limited in how much he can play with their children; he cannot run about freely and is no longer able to play tennis.
[41] Affidavit of 10 September 2009 – PCB 15
40 The plaintiff often struggled in performing his work for Ultimate Merchandising because of back pain and she did the bulk of it. In March 2008, mainly for financial reasons, she began to work full time as a travel agent and the plaintiff assumed full time home duties. Ms O’Callaghan said that although this was not an ideal family situation, it worked best for them, because the plaintiff was limited in his work prospects due to the back injury.
41 Ms O’Callaghan stated that the plaintiff was a less happy and positive person since the injury. He was more moody and uncertain of his future. He often slept poorly because of back pain and sometimes got out of bed a few times during the night to try and help ease his back pain.
42 Ms O’Callaghan said that the back pain had affected the sexual relations between her and the plaintiff.
Evidence of the Plaintiff’s Friends
43 Two of the plaintiff’s long-term friends, Neil Veitch[42] and Andrew Edwards,[43] swore affidavits, stating that prior to his injury they had played tennis or golf with him. Mr Veitch stated that they regularly played tennis but that since being injured the plaintiff has stopped playing and was less inclined to socialise. When he did go out to a social event, he often appeared tired and irritable.
[42] PCB 18
[43] PCB 21
44 Mr Edwards said that prior to the plaintiff’s injury they played golf approximately once a month and sometimes more frequently. He said that during the 2008 golf weekend, the plaintiff struggled and did not complete one round of golf, he had difficulty walking the course and was very sore and stiff after playing. Mr Edwards has children the same age as the plaintiff’s and they take them to the park together to play. He stated that the plaintiff has to avoid strenuous activity with his children and he has noticed that he becomes frustrated by his limitations. He has also noticed that the plaintiff’s moods have become more variable and he often becomes impatient and frustrated with his inability to play with his children as he would like to.
Medical Evidence of Dr Dunne and Dr Stockman
45 On 14 June 2007, Dr Dunne, who as stated above was the plaintiff’s general practitioner, reported that the plaintiff had mild internal disc disruption at L5-S1 and lumbar facet joint arthropathy. The plaintiff’s treatment was described as “conservative as per modern thinking of Lower Back Pain”. He offered a good prognosis for the plaintiff and said that “if he could look for lighter work in the future- pain should improve”.[44]
[44] PCB 26-27
46 In a further report of 24 October 2007,[45] Dr Dunne diagnosed the plaintiff’s injuries as L3-L4 disc bulging and broad based disc protrusion at L5-S1 slightly indenting the theca. The precise injury identified was a disc prolapse of L5-S1 slightly to the right of the midline. His prognosis was for a gradual improvement of the lumbar disc situation. He suggested alternative employment in administration or mild mechanical duties for 40 hours per week with no sitting for longer than sixty minutes. He considered that the plaintiff should not lift more than 15 kilograms, or engage in any activity requiring sustained forward bending and twisting. Tennis, golf or sport could be challenging for the plaintiff, except when they were of a light recreational character. Contact sport and heavy household duties might be “contraindicated”.
[45] PCB 28
47 In Dr Dunne’s most recent detailed report dated 17 August 2009,[46] he diagnosed the plaintiff’s injury as lower back injury, a mild internal disc disruption at L5-S1, lumbar facet joint arthropathy. He stated that his prognosis was guarded “if still having issues of chronic pain syndrome” and wrote that the injury appeared to be consistent with a “wax and wane situation as per lower lumbar facet joint strain”. He stated that the plaintiff was not expected to undergo surgery, and that medical treatment would consist of physiotherapy, i.e., electotherapy, and stretching exercises, and medication of Naprosyn SR 750 daily. The plaintiff’s condition was not expected to deteriorate and “the injury syndrome” should not preclude him from employment in the future.
[46] PCB 30
48 Aggravating factors for the plaintiff’s condition were sitting in a good chair for sixty minutes, standing in one spot for ten minutes, lifting objects of more than 15 kilograms and lying on his stomach for more than ten minutes. He was unable to do heavy household chores, such as mowing the lawns. Walking and rest would ease his back condition.
49 Under the heading “24-hour behaviour”, Dr Dunne stated:
“Mr Hurd is stiff in the am for 1 hour, until he has a warm shower. Night time is the worst, when Mr Hurd wakes 4-5/ night due to a severe lower back ache. He rarely has trouble getting to sleep. Mr Hurd’s pain worsens as the day goes on. His pain is much worse by the end of the working week.”
50 In a report of 14 September 2009, two days before the application was heard, Dr Dunne stated:
“As a supplement to my report dated 17.8.2009, this patient suffers chronic lower back pain consistent with [an] organic low-back pain condition.
I am not a Pain Specialist or Psychiatrist but his injuries are consistent with the contribution of a WorkCare caused low-back pain”[47]
[47] PCB 33A
51 The plaintiff was also treated by Dr Alex Stockman, a rheumatologist, who in a report of 2 July 2007,[48] stated that the plaintiff’s nocturnal pain was due to a lumbar disc prolapse at L5-S1 with a considerable inflammatory component and the unusual feature of lack of pain when he was working during the day. Dr Stockman stated:
“I had sent him to physiotherapy for [a] functional restoration program and gave him Naprosyn, an anti-inflammatory medication. It is difficult to say whether he will be left with some residual pain and disability. The symptoms are likely to fluctuate depending on the nature of his work.
He would be better off looking for light employment where there is little lifting, bending, or twisting the spine.”[49]
[48] PCB 38
[49] PCB 39
52 The plaintiff has not seen any specialist since 2005 other than for medico- legal assessment.[50]
[50] T 20 L25
Medico-Legal Evidence Relied on by the Plaintiff
53 The opinions expressed in the medico-legal evidence presented on behalf of the plaintiff were generally to the same effect. These reports were by Mr M Flaim, surgeon, and Mr M A Khan, orthopaedic surgeon.
54 Mr Flaim, on 21 January 2008, stated that:
“The physical examination shows a reasonable range of movement without objective signs, and his investigations have demonstrated an L5- S1 disc lesion eccentric to the right, but not clearly affecting the nerve root.”…
The diagnosis is of an L5/S1 disc lesion which has been caused or aggravated by the lifting of heavy trusses.[51]
[51] PCB 42
55 On 5 September 2009, Mr Khan stated that the plaintiff:
“… during the course of his work with Hudson Frame & Truss Ltd, due to the heavy nature of his duties involving repetitive bending, twisting, turning and lifting, Mr Hurd has developed musculoskeletal and ligamentous strain to his lower back over a period of time. The injury has resulted in a disc prolapse at L5-S1 level with resultant referred pain down his buttocks and the sign of S1 nerve root irritability down his left leg. He does not have a radiculopathy or evidence of muscular wasting in his lower limbs in relation to the above injury.
As a result of his longstanding symptoms of discogenic pain in relation to the above injury, Mr Hurd has developed stiffness in his back and limitation of movements with pain flaring up when he attempts to sit for long periods, or twist or turn his spine repetitively. He is unable to do any heavy lifting or keep his spine bent for long periods. I consider his condition has now stabilised.
Mr Hurd has come to terms with disability and has now reversed the roles in the household. His wife is working on a full time basis and he has now taken over his duties as a househusband looking after his daughters and doing the housework within his limitation as mentioned above.
I do not consider that there is any indication for surgical treatment for his condition.
As his condition is stabilised I feel that he is totally and permanently unfit for his pre-injury duties.
He can perform suitable alternative duties within the limitations as suggested above, avoiding excessive bending, turning and twisting of his spine, lifting heavy weights or keeping his spine bent for long hours. He cannot sit for long periods or take part in activities of a physical nature.[52] . . . .”
Under the heading “Lifestyle Assessment”, Mr Khan states:
“He lives with his partner, who is a full time Travel Consultant, and his daughters in a 4 bedroom house which is at ground floor level. Mr Hurd is able to fulfil the duties of a househusband on a full time basis. He can do the cooking and vacuuming at his own pace, washing and drying the clothes. He can do the supermarket shopping and a limited amount of gardening.
His back injury has caused him considerable grief and disappointment, as he was not able to look after his youngest child who was 1 year of age when he sustained his injury. Beforehand he had been sharing the care of his other daughter.
Presently he can no longer play games with them freely on account of his back problem.
He takes his daughters to basketball.
Hobbies
In the past he was a keen golfer and used to play a few times per month with his friends around Melbourne.
Now he only plays limited games when he goes away on a yearly trip with a group of friends usually around the Murray River area. He has to take Nurofen and Panadol beforehand when he goes out to play golf on those occasions.
He cannot go and sit down to see a football match as he used to but rather has to watch football, standing and walking about, as sitting exacerbates the pain in his back.”[53]
[52] PCB 48-49
[53] PCB 47
Medico- Legal Evidence Relied on by the Defendant
56 The defendant’s medico-legal evidence was from Mr Rodney Simm, Mr Jonathan Rush and Mr Ian Jones.
57 Mr Rodney Simm, an orthopaedic surgeon, whose principal report was dated 2 March 2005,[54] concluded that the plaintiff almost certainly had early lumbar intervertebral disc degeneration, which had been aggravated by bending, lifting and twisting in the course of his employment with his current employer. He described the plaintiff “as an entirely genuine man with no elaboration of signs or symptoms”. He stated that:
“His history is consistent with the diagnosis. Aggravation of degenerative pathology often causes the most severe symptoms at rest or in bed at night. Symptoms often improve with increased activity.”
Who is “currently incapacitated for unrestricted pre-injury employment” and that
“… Even with good symptomatic improvement a return to unrestricted pre-injury work duties carries an extremely high likelihood of recurrent and unacceptable back pain.”
[54] DCB 1
58 Mr Jonathan Rush, orthopaedic surgeon, in a report of 14 December 2005,[55] stated:
“The patient’s general health is satisfactory. He continues to have some pain situated in the lower lumbar region. He would describe the pain as an occasional niggle on most days but on some days the pain is more severe, particularly if he has been more active previously. As well as the pain in the lower lumbar region, there is radiation of the pain on occasions into the right thigh, particularly into the right groin and testes and he notes that this particularly worries him if he does anything strenuous. Last weekend he did some vacuuming and there was a flare-up of the pain and he had to spend the next day in bed. There are no sensory symptoms in the legs.
. . .
As a result of some particular activity at work in September 2004, the patient developed back pain and right thigh pain associated with radiological evidence of disc degenerative disease and a small disc prolapse at the L5-S1 level. I believe that the activity in September 2004 aggravated a pre-existing degenerative disc at this level.
The patient has been appropriate (sic) treated and his condition is under control at this stage. It would be difficult for him to return to work which involved a lot of bending or heavy lifting or remaining in one position for long periods and he has now undertaken a Return to Work Program in a new position as an estimator and is coping with this work satisfactorily and should continue to do so. The Return to Work Plan as set out is satisfactory.[56]
[55] DCB 5
[56] DCB 7- 8
59 Mr Rush considered that it was too early to state whether the plaintiff would have a permanent impairment but if he did, it would be minimal.[57]
[57] DCB 9
60 Mr Ian Jones, orthopaedic surgeon, in a report of 9 November 2008,[58] stated that :
“At the present time Mr Hurd reports that his back is OK for eighty per cent of the time with the level of activity he is currently performing. His major complaints are of morning stiffness and pain ‘until I get going’. He also notices stiffness and pain particularly after long periods of driving.
Mr Hurd attempts to walk distances of one kilometre twice daily. He confirms he is able to manage the normal domestic household duties. He has indicated he tends to avoid anti-inflammatory agents but takes Panadol, one or two every two-three weeks depending on his pain level.[59]
…..
This man has some clinical and radiographic evidence of a disruption of the L5-S1 disc manifesting as some back pain and stiffness.
I believe the L5-S1 disc prolapse as demonstrated on MRI scan adequately explains this man’s current symptoms and signs. I cannot suggest anything further in regard to this man’s claimed injury and cessation of work.
There is no evidence of any functional or psychological reaction to his back complaint.[60]
[58] DCB 16
[59] DCB 18
[60] PCB 19
61 In a further report of 28 January 2009, Mr Jones stated:
“The changes described in the CT- scan and MRI-scan reports of 06.04.05 and 07.07.05 respectively would not be uncommon in a 43- year old man although the presence of an isolated disc lesion (i.e., pathology at one level only) would suggest that an injury or insult has occurred to that disc rather then reflecting degenerative changes. These would usually affect a number of discs.
In regard to the described disc protrusion at L5 – disc protrusions do have the capacity to reabsorb over a period of some months but the internal structure of the disc of necessity has been destroyed and normal disc function is never restored in spite of the apparent disc resorption or healing.”[61]
[61] DCB 20
Consideration of Evidence and Submissions
62 The defendant submitted that the plaintiff’s back pain was minor. It relied on Mr Rush’s note that the pain was an occasional niggle on most days, but on some days was more severe, particularly if the plaintiff has been more active previously. Dr Stockman’s evidence referred to in paragraph 51 above was also relied on.[62]
[62] T 68 L25 – T69L2
63 The defendant submitted that the plaintiff has almost certainly early intervertebral disc degeneration, which had been aggravated by bending, lifting and twisting in the course of employment. In reliance on parts of Mr Simm’s and Mr Rush’s evidence, it submitted that the activity in September 2004 aggravated a pre-existing degenerative disc and that the plaintiff had an underlying condition of disc degeneration that flared up from time to time. The defendant also relied on the physiotherapist’s notes from February 2005 which stated “injured LB again … last week getting sore.”[63]
[63] DCB 57
64 However, there is substantial evidence that the plaintiff’s condition was caused by an injury to his back occurring in September 2004 and not the result of a degenerative condition. The evidence of Dr Dunne referred to in paragraphs 45-47 above, of Mr Flaim referred to in paragraph 54 above, and of Dr Stockman referred to in paragraph 51 above, support that conclusion.
65 As counsel for the plaintiff submitted, Mr Jones, one of the defendant’s medico-legal doctors stated that the L5-S1 disc prolapse as demonstrated on the MRI scan, adequately explained the plaintiff’s symptoms and signs. Mr Jones stated:
“The changes described in the CT-scan and MRI-scan reports of 06.04.05 and 07.07.05 respectively would not be uncommon in a 43- year old man although the presence of an isolated disc lesion (i.e. pathology at one level only) would suggest that, an injury or insult has occurred to that disc, rather than reflecting a degenerative changes. These would normally affect a number of discs.[64]
[64] DCB 20
66 The picture that emerges from the medical evidence is that :
(a) In 2004, the plaintiff suffered a lower back injury involving a lumbar disc prolapse, the L5-S1 disc, with some radiating pain; (b) The pain varies, on some occasions it is significant, particularly during the night, on other occasions it is slight; (c) The injury has stabilised and surgery is unlikely to improve it. 67 After consideration of all of the evidence, I find that the plaintiff’s back injury was caused by an injury that he suffered in September 2004 during the course of his employment with the plaintiff and is not to be attributed simply to a degenerative process. The evidence suggests that at that time, there was an onset of back pain of much greater severity than anything that the plaintiff had previously experienced. There is an ongoing nexus between the pain that the plaintiff suffers and the injury that occurred in September 2004.
68 The impairment is permanent in that it is likely to last for the foreseeable future.
69 Under s.134AB(38)(c) of the Act, an impairment or loss of body function is not to be held to be “serious” unless the consequence, in this case the pain and suffering consequence, is:
“. . . when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable”
70 Whether or not an injury satisfies this test is largely a matter of impression and value judgment.[65] I am required to make that assessment at the time the application is made to the Court: see s.134AB (38)(j) of the Act.
[65] Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 at [192]; and Sabo v George Weston Foods [2009] VSCA 242, at [67]
71 Counsel for the defendant stressed that the Court was required, as s.134AB (38)(c) indicates, to assess the injury by reference to other cases in a range of possible impairments or losses of bodily function and referred to the discussion of that concept contained in Humphries v Poljak. [66] In that case Crockett and Southwell JJ. stated:
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 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’. Beyond such guidance it is, we think not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.” [67]
[66] [1992] 2 VR 129
[67] Ibid 140.
72 Ashley JA in Stijenic v One Force Group Aust Pty Ltd[68] stated:
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation- because, it may be supposed , the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two where the applicant failed.”
[68] [2009] VSCA 181, [42] cf Sabo v George Weston Foods [2009] VSCA 242
73 Ashley JA also stated that when judging the pain and suffering consequences of an appellant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced.[69]
[69] [2009] VSCA 181, at [43]
74 In this case the plaintiff is still a young man being aged 44.
75 I need to mention one other matter before stating my conclusion on this part of the application. I have recorded above that the plaintiff takes medication for anxiety and depression. It was not suggested to me that those conditions were in any way the cause of the injury upon which he relies.[70] Mr Jones stated in his report of 9 November 2008 that:
There is no evidence of any functional or psychological reaction to his back complaint.[71]
[70] I did not regard defendant’s counsel submission at T66 L19-21 as such a submission, but in any event
[71] DCB 19
76 I have not taken those conditions of depression and anxiety into account in my assessment of the plaintiff’s impairment: see s.134AB (38) (h).
77 After considering all the evidence I conclude that within the meaning of s.134AB (38)(c) of the Act, the pain and suffering consequences of the injury for the plaintiff are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable. I have reached that conclusion for the following reasons.
Pain
78 First there is the issue of the pain that the plaintiff suffers from the injury. It is not sufficient to disable the plaintiff from performing a number of activities, but the plaintiff experiences significant pain on a regular basis, often during the night and after he engages in activity involving high exertion. I take into account that under cross- examination, the plaintiff agreed that since he had managed and regulated his back pain and avoided heavy physical activity he no longer experienced the severity of the pain that he once did. However, his sleep is frequently disrupted.
79 The defendant pointed to the limited medical regime that the plaintiff engaged in to control his pain. It is a largely self-managed regime.[72] The defendant submitted that the plaintiff had a soft tissue sprain for which he had had no treatment since 2005, including no Pilates, no physiotherapy and no gymnasium. The medical reports suggest that there is no particular medical treatment recommended for the plaintiff.
[72] T 41 L6
80 I do not consider the fact that the plaintiff has gone on with his life without being under constant medical care diminishes the restricted life that he now lives, or the pain and discomfort that he experiences, which is often disruptive of his sleep. I refer in this regard to the observations of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No.2).[73]
Domestic and Social life
[73] [2008] VSCA 260 at [3]
81 The next matter is the restrictions on the plaintiff’s domestic and social life following his injury. The plaintiff is restricted in his ability to participate and play games with his daughters. This is an important limitation on the joys of fatherhood, not least when the plaintiff is engaged full-time in home duties and is likely on occasion to be able to spend more hours with his daughters than Ms O’Callaghan. A parent’s ability to play with and interact with his children is of real significance.
82 There was evidence of a change in the plaintiff’s mood and to the fact that he was now less inclined to socialise
83 The back pain has also affected his sexual relations with his partner,.
84 The injury has significantly restricted the plaintiff’s sporting activities. These activities formed a large part of the plaintiff’s life. Many people in the community lead a life that revolves around their ability to participate in sporting activities. For such people sport, to a large degree, defines them. Participation in sport enables the expression of particular gifts that they have received and provides areas in which they can excel, which often may not be readily available elsewhere in their life. The plaintiff appeared to me to be such a person. Indeed much of his social life appeared to be centred on his sport.
85 Some members of the community may regard the ability to participate in sport as of no considerable importance. But based on the evidence, that is not the plaintiff’s viewpoint. Whilst his ability to take part in his annual golf trip to the extent indicated by the evidence, on first consideration might cast doubt upon the consequences of the injury for him, on reflection, it more speaks of the extent to which participation in sporting activities is of the essence of the plaintiff. Viewed in that light, the limitations the injury has caused to his sporting activities are very considerable. I consider that there is truth in Ms O’ Callaghan’s observation that the plaintiff’s participation in this annual golf weekend is an attempt to ensure that the back injury does not defeat him completely.
86 The plaintiff’s former frequent participation in golf and tennis has been markedly reduced. A weekly golfer has become a once a year golfer and a regular tennis player has stopped playing tennis.
87 His attendance as a spectator at sporting events such as AFL football games has also been restricted.
Work
88 The plaintiff’s back pain restricts his ability to perform manual work and, indeed, to perform the kind of work he was carrying out with Ms O’Callaghan in 2005 and 2006. The defendant pointed to the report of the physiotherapist, Victoria Brown, which stated that:
“Mr Hurd is able to perform heavy household chores like vacuuming and mowing the lawns but still experiences pain after completing these tasks.”[74]
[74] DCB 36-37
89 It was put that the plaintiff’s ability to work was a factor suggesting that the consequences of the serious injury were not very considerable. The defendant’s counsel relied on the fact that the plaintiff did not seek leave to claim loss of earning capacity. I take that submission into account, but do note that the plaintiff’s ability to take part in employment has been limited, to the extent that I have described above.
90 The fact that he is restricted in the work that he would usually perform is significant.[75]
Conclusion
[75] See Kelso’s Case (supra) at [197]
91 I am required to consider the evidence as a whole.[76] Taken in the aggregate, in my opinion, the matters I have identified in paragraphs 78 to 90 do establish that the consequences for the plaintiff of his injury have been very considerable.
[76] Jayatilake v Toyota Motor Corporation [2008] VSCA 167 at [17], per Ashley JA
92 For those reasons, I grant the plaintiff pursuant to s. 134AB (16)(b) of the Act leave to bring proceedings at common law to recover damages for pain and suffering arising out of and in the course of his employment with the defendant and occurring after 20 October 1999.
- - -
Mr Jones’ evidence would not support any such argument.
0
5
0