Jagger, Andrew Keith v Huon Personnel Pty Ltd
[2009] VCC 994
•3 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY
Case No. CI-08-05734
| ANDREW KEITH JAGGER | Plaintiff |
| v | |
| HUON PERSONNEL PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 29 and 30 July 2009 |
| DATE OF JUDGMENT: | 3 August 2009 |
| CASE MAY BE CITED AS: | Jagger, Andrew Keith v Huon Personnel Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0994 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 - whether the consequences to the plaintiff of a lower back injury were at least very considerable for pain and suffering and loss of earning capacity - whether a finding that the plaintiff's claim for loss of earning capacity met the statutory test also satisfied the requirements of the statutory test for loss of earning capacity for pain and suffering - Advanced Wire & Cable and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 - leave granted for both pain and suffering and loss of earning capacity:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr I Fehring | ||
| For the Defendant | Mr D Myers with | Wisewould Mahony |
| Ms J Forbes | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 29 May 2007 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant up to and including 21 October 2006.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr T Monti appeared with Mr I Fehring of Counsel for the plaintiff and Mr D Myers appeared with Ms J Forbes of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. •
The plaintiff tendered the following evidence - the Plaintiff's Court Book ("PCB") pages 14-43; 44-51; 54-55 and 188-191: Exhibit A
•
The defendant tendered the following evidence - the Defendant's Court Book (“DCB”) pages 1-12 and from the Plaintiff’s Court Book pages 56- 175: Exhibit 1
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross, and affirmed by the Court of Appeal in Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 18 January 1972. He is now thirty-seven years of age. He lives with his partner, Donna Marie Forster, in a small country town known as Wandiligong.
10 The plaintiff is a qualified carpenter by trade. He commenced working for the defendant in September 2006 as a labourer.
11 The defendant was working under a contract with Abigroup Pty Ltd which was the head contractor in the construction of the freeway to bypass Wodonga.
12 The work which the plaintiff was required to perform was heavy work. It involved undertaking formwork, bridge construction, erection of scaffolding and constructing edge forms to form bridges. The tasks involved in doing that work involved lifting and manoeuvring heavy edge forms, scaffolding pipes, timber and steel and often required the plaintiff to work in confined spaces.
13 As a consequence of undertaking that work, the plaintiff developed pain in his lower back which worsened by 21 October 2006 when he developed right leg pain as well.[5]
[5] PCB 14-15
14 The plaintiff informed an employee of the head contractor that he had suffered an injury. He completed a WorkCover Worker’s Claim Form on 19 December 2006 on which he nominated 10 November 2006 as the date on which a informed that employee that he had suffered injury.[6]
[6] DCB 1-3
The Plaintiff's Medical Treatment
15 The plaintiff first saw Dr Richardson, general practitioner, on 3 November 2006. Dr Richardson recorded that the plaintiff told him that after lifting formwork known as shutters, he developed lower back pain with pain radiating into his right buttock.
16 Dr Richardson examined the plaintiff and found him to be exquisitely tender at the level of L3-5 spinus processes, together with significant tenderness and muscle spasming of the para-spinal musculature. Straight leg raising and a neurological examination revealed no abnormality.
17 Dr Richardson referred the plaintiff to a physiotherapist. He also prescribed him Voltaren, which is an anti-inflammatory agent. He also gave him a certificate to be off work for one week.
18 Dr Richardson next saw the plaintiff on 10 November 2006 after he had undergone a number of sessions of physiotherapy. Dr Richardson saw the plaintiff again on 20 November 2006, 22 February 2007, 5 April 2007 and 30 April 2007. The plaintiff's complaints of lower back pain were much the same on each of those occasions.
19 On the last occasion the plaintiff saw Dr Richardson he informed him that he intended to commence his own business.
20 There was subsequently a substantial hiatus in the plaintiff's formal treatment. He did not consult a medical practitioner again until 20 April 2009 when he returned to see Dr Richardson. On that occasion, Dr Richardson recorded that the plaintiff was experiencing lower back pain, and had for some months, which was made worse by cleaning, gardening or any movement that required bending and twisting. He also recorded that the plaintiff told him that he had been doing exercises previously shown to him, presumably by the physiotherapist.
21 Dr Richardson did not refer the plaintiff for any radiological imaging. He was of the opinion that it was unnecessary because the symptoms experienced by the plaintiff were not severe enough to warrant taking that step.
22 Dr Richardson was ultimately of the opinion, based on his clinical impressions, that it was most likely that the plaintiff suffered injury to facet joints and was experiencing secondary muscle spasming. He added that due to the neurological symptoms extending into the plaintiff’s right buttock and right leg, he considered it was likely that the plaintiff had suffered a lumbar disc disruption with a prolapse of a disc.
23 On the question of causation, Dr Richardson said he considered that the incident was the sole cause of the injury for which he treated the plaintiff .
24 The plaintiff gave evidence that he has undertaken stretching exercises every day and has undertaken walking of between one to two kilometres three to four times per week as his exercise regime.[7] The only medication he now takes to deal with the pain he experiences is Panadeine or Panadol. He said that depending on the degree of pain he experiences, he would take the maximum dose of those forms of medication overnight to get to sleep. He said he tries to avoid taking medication.
[7] Transcript 43-44 and 46
25 The plaintiff has a blood pressure problem for which he has required hospital treatment in the past.[8] He said he is unable to use prescription medication because it does not agree with the blood pressure medication he takes.[9]
[8] Transcript 15
[9] Transcript 43
The Other Medical Evidence
26 Mr O'Brien, orthopaedic surgeon, examined the plaintiff on 29 September 2008.[10] Mr O'Brien was of the opinion that the plaintiff had suffered an injury to his lower back which persists, and indeed, he described the plaintiff's position as being one of chronic pain resulting from the length of time that he had endured the symptoms of pain in his lower back. He considered that the plaintiff's prognosis was guarded and that the plaintiff’s history of suffering pain suggested that the pathology was well-established and would continue. He described the level of the plaintiff's disability as being moderate.
[10] PCB 32-34
27 Mr O'Brien obtained a history from the plaintiff of his self-employment. He considered that the plaintiff would be precluded from full-time employment, and by inference he was of the opinion that the plaintiff's self-paced self- employment was appropriate for him. He was also of the opinion that the plaintiff would suffer permanent restrictions in his general domestic, social and recreational activities.
28 Mr O'Brien re-examined the plaintiff on 9 June 2009.[11] On that occasion he obtained a different history from the plaintiff to the extent that he was told by the plaintiff that he suffers pain radiating into both buttocks and both thighs, but more on the right side than the left side. He was also told that the pain in his right leg extends to the knee and on the left side to the mid thigh.
[11] PCB 36-39
29 Mr O'Brien did not alter his opinion in any appreciable way after re-examining the plaintiff. He considered that the plaintiff's pain remained unchanged since he first examined the plaintiff, and he essentially repeated the same opinion which he gave on the first occasion he examined him.
30 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 6 July 2009.[12] He obtained a history that the plaintiff had suffered localised pain in his lumbo- sacral area radiating mainly to his right buttock. Mr Dooley did not consider that the plaintiff was suffering sciatic nerve radiation into either leg. He was of the opinion that the plaintiff had suffered an aggravation of pre-existing lumbar disc degeneration centred mainly in the lumbo-sacral area of the plaintiff’s spine. He did not consider that there were any signs of radiculopathy, that is, nerve involvement.
[12] PCB 41-43
31 Mr Dooley was of the opinion ultimately that the plaintiff had suffered disability which was almost certainly permanent. He considered that the plaintiff was permanently incapacitated in undertaking heavy physical work, and if he attempted to return to such work, he would almost certainly aggravate the injury. He said he was hopeful that the plaintiff would be able to continue in his present work and would be able to return to playing tennis and golf.
32 Mr Dooley was of the opinion that the plaintiff did not require any other treatment, referring in that regard to physiotherapy and chiropractic treatment nor did he consider he was a candidate for surgery. He considered the plaintiff's prognosis was reasonably good because of the absence of any nerve root involvement.
33 Mr Leitl, orthopaedic surgeon, examined the plaintiff for the defendant on 22 May 2007.[13] He was of the opinion that the plaintiff had suffered a musculo- ligamentous strain of his lumbar spine and that he had recovered from the injury. He was of the opinion that the plaintiff was fit for his pre-injury work.
[13] DCB 6-11
Serious Injury
34 I propose to consider the question of loss of earning capacity first given that a finding that the plaintiff has satisfied the statutory test for loss of earning capacity means that the plaintiff is entitled to leave with respect to pain and suffering as well.
35 The foregoing has been the subject of two judgments of Judges of this Court, which I have referred to in paragraph 7(i) above, and affirmed by the recent decision of the Court of Appeal which I have also referred to in paragraph 7(i).
36 Mr Myers cross-examined the plaintiff at some length, making a sustained attack on the plaintiff's credit.
37 The first issue raised by Mr Myers through that cross-examination was the plaintiff's failure to undergo medical treatment save for a handful of attendances on Dr Richardson and some physiotherapy.
38 It is clear that the plaintiff has had very little active medical treatment, however, there is something in the submission made by Mr Monti that if Dr Richardson was of the opinion that the plaintiff did not require any further medical treatment over and above what was provided, then that was Dr Richardson's call and not the plaintiff's.
39 Dr Richardson was of the opinion that because the plaintiff’s symptoms were not severe, that he did not require any radiological investigations. If radiological investigations were required, and it was remiss on the part of Dr Richardson in not referring the plaintiff to have such investigations, I would have expected Mr O'Brien, Mr Dooley and Mr Leitl to have said as much.
40 Therefore, I do not accept that there is any merit in the criticism made of the plaintiff that his treatment comprised a handful of attendances on Dr Richardson and physiotherapy early in the piece suggesting, therefore, that his injury is modest at best.
41 However, I do accept the plaintiff’s evidence that he has engaged in a regime of his own exercise and walking in order to maintain his lower back in a mobile state. The plaintiff gave evidence of the nature of the exercises he was shown by the physiotherapist which he now undertakes.[14]
[14] Transcript 43-44
42 Furthermore, if Dr Richardson did not prescribe any further treatment and the physiotherapist was satisfied that instructing the plaintiff about an exercise regime was sufficient, then I consider that it was reasonable for the plaintiff for the plaintiff to follow the instructions he was given and limit his medical treatment accordingly.
43 The next issue raised by Mr Myers was the failure of the plaintiff to describe to Mr O'Brien, Mr Dooley and Mr Leitl the full extent of the pain which radiates from his lower back into his buttocks and legs.
44 Mr O'Brien ultimately obtained that history, however it is very clear that when a comparison is made between the opinion he stated on the first occasion he examined the plaintiff and the opinion he stated on the second occasion with that additional history, that there is no difference between the two opinions, and indeed, his second opinion was described by him as a confirmation of his first opinion.
45 Mr Dooley appears to have been given a history of at least buttock pain. His references to there being no sciatic nerve radiation or radiculopathy suggests that Mr Dooley turned his attention specifically to the cause of the buttock pain It is equivocal as to whether it also means that he was given some history by the plaintiff of radiation of pain into his legs.
46 Mr Leitl was given a similar history to that of Mr Dooley, that is, pain extending into the plaintiff’s right upper buttock. It seems to me that even if Mr Leitl was given the same history which was ultimately given to Mr O'Brien that probably would not have made any difference to his opinion that the plaintiff has recovered from the injury to his lower back.
47 On the foregoing analysis of the histories given to those medical practitioners, it seems to me that there is little in the criticism made by Mr Myers that the history given by the plaintiff was so deficient so as to render the opinions of Mr O'Brien and Mr Dooley unreliable.
48 The next issue raised by Mr Myers was the failure of the plaintiff to give a full history to Mr O'Brien, Mr Dooley and Mr Leitl of his prior back injury. The plaintiff suffered a prior lower back injury in 2003 when working from a ladder which resulted in acute pain in his lower back and right leg. I accept the plaintiff’s evidence that the symptoms which occurred on that occasion were short-lived. I accept that he recovered fully, and I infer that he must have recovered fully because he then resumed work as a carpenter and was able to take up heavy work with the defendant .
49 The next issue raised by Mr Myers was the minimal medical and like treatment obtained the plaintiff since the occurrence of the incident. He submitted that it was a reflection of the severity of the injury and its consequences.
50 Whilst the medical treatment obtained by a worker is relevant as a factor to determining the seriousness of an injury, as a matter of logic and commonsense, it cannot follow that a worker who has had little medical treatment does not have an injury which meets the statutory test yet a worker who has a lot of medical treatment does.
51 In the end it is a matter of balancing the evidence of the plaintiff in the light of the opinions of the medical examiners in determining whether the lack of medical treatment is as significant as contended for by Mr Myers.
52 I have resolved this issue on the following bases: firstly, I accept the evidence of the plaintiff that he underwent the medical treatment which Dr Richardson considered was appropriate; secondly, I accept the plaintiff’s evidence that he has never been free of pain and restriction of movement produced by the original injury; and thirdly, I accept the plaintiff’s evidence that he undertakes the exercises shown to him by a physiotherapist in order to maintain some degree of control over the injury.
53 I am fortified in reaching the foregoing conclusions because of the opinions of Mr O'Brien and Mr Dooley. They are both orthopaedic surgeons who deal with injuries of this kind as part of their surgical practices. I do not accept that their opinions are in any way flawed, but rather they seem to be well-reasoned opinions based upon reliable histories and examinations.
54 I reject the opinion of Mr Leitl that the injury suffered by the plaintiff has resolved. Mr O'Brien and Mr Dooley disagree. I prefer their opinions because they are consistent with my findings that the plaintiff continues to suffer from the injury.
55 I now turn to the primary submission made by Mr Monti that the wages earned the plaintiff when he worked for the defendant demonstrate the true earning capacity of the plaintiff,[15] and that the loss of earnings suffered by the plaintiff due to the injury are very significant.
[15] PCB 44-51
56 The plaintiff’s relevant payslips cover a period from 3 September 2006 to 22 October 2006. The highest gross wage earned by the plaintiff over that period was $2,385.75 in one pay week. The lowest was $1,209.96. The average is $2,240.50, and expressed as an annualised figure is $116,506.
57 Subsection (38)(f) dictates the basis upon which the gross income from personal exertion is to be calculated in determining the wages which most fairly reflect the earning capacity of the plaintiff.
58 The plaintiff was working for the defendant earning the income referred to above which is a realistic reflection of his earning capacity at the time when he was injured.
59 Mr Myers submitted that I should not use those figures because it works an unfairness to the defendant. He submitted that I should rely upon the income earned during financial years, that is, between 1 July and 30 June, however, to tie a plaintiff to a financial year is very artificial. There is no warrant in subsection (38)(f) for determining the plaintiff's gross income from personal exertion in that way.
60 The plaintiff gave evidence that the project on which he was employed would have continued for some time. The head contractor obtained other work on other road projects which the plaintiff said he would have considered undertaking.[16]
[16] Transcript 42
61 The foregoing is then to be contrasted with the plaintiff’s earnings since he stopped working for the defendant. At best he has earned $31,356 from personal exertion for the year ending 30 June 2008 in the work which he now undertakes doing building and renovation work. It was my strong impression from the plaintiff's evidence that the work he now performs is at the lighter end of the building and renovation industry. I accept that this is a true reflection of the plaintiff’s present capacity for suitable work.
62 There is no doubt in my mind that when a comparison is made between what the plaintiff was capable of earning through personal exertion and what he is now capable of earning demonstrates a very significant difference of about $74,000 gross.
63 I find that the plaintiff suffered an injury to his lower back as described by Dr Richardson, Mr O'Brien and Mr Dooley. I find that the injury has impaired the function of his lower back, and that the impairment is permanent.
64 I find that the plaintiff is working to his capacity in suitable employment, but that when a comparison is made with his capacity as it was when working for the defendant, the loss of capacity reflected by the very significant difference in earnings leads me to conclude that the plaintiff's loss of earning capacity deserves the description "at least very considerable". I have reached that conclusion after making the relevant comparison as I have described it in my discussion of the statutory scheme.
65 It follows, based upon the authorities which I have referred to above, that a finding that the plaintiff has met the statutory test for loss of earning capacity must mean that he has also satisfied the statutory test for pain and suffering.
66 For the sake of completeness, I should refer to the submissions made by Mr Myers regarding the reliability of the evidence of Donna Marie Forster. Mr Myers cross-examined Ms Forster. He submitted that there was some conflict in the evidence given by the plaintiff when compared with the evidence of Ms Forster, however, given my findings that I accept the evidence of the plaintiff, I do not accept that any conflicts in the evidence given by Ms Forster bears very much on the issues which I consider properly dispose of this application.
Conclusion
67 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant up to and including 21 October 2006.
68 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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