Jain v IBM Australia Pty Ltd
[2014] VCC 464
•15 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03456
| ANIL JAIN | Plaintiff |
| v | |
| IBM AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2014 | |
DATE OF JUDGMENT: | 15 April 2014 | |
CASE MAY BE CITED AS: | Jain v IBM Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 464 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – cervical spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Watts v Rake (1960) 108 CLR 158; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Proceedings dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Malpas | Victorian Compensation Lawyers |
| For the Defendants | Mr I Gourlay | Wisewould Mahony |
HIS HONOUR:
Introduction
1 In or about April 1999, the plaintiff commenced employment at IBM Australia Pty Ltd (“IBM”) as an IT specialist performing activities including, but not limited to, programming and client services.
2 In 2004, he was given a project to work on at General Motors in Port Melbourne. He lived in Narre Warren at the time and it would take him about two hours on public transport to travel to work. He commenced employment at 6.30am and worked at this location for approximately six months (“the first period”). During this period, he worked very long hours and he often did not finish work until about 10.00pm or even 2.00am the following morning. On occasions, he worked for 24 hours straight and also had to work on weekends.
3 During the first period, he was provided with a laptop computer by IBM, which necessitated him holding his neck in a flexed position for long periods of time.
4 Some time prior to 30 March 2006, the plaintiff developed headaches, and eventually, by this date, he was experiencing neck pain. He took some time off work and reported his injuries.
5 The plaintiff then changed projects and worked only 40 hours per week. He also took a holiday in about November 2006 and this helped to relieve some of his neck symptoms. However, when he returned to work, he found his symptoms returned, and by about March 2007, he found he was no longer able to work his pre-injury work hours, and put in a Claim for Compensation, which was accepted (“the second period”)
6 Thereafter, the plaintiff performed alternative light duties at reduced hours with IBM. In or about 2008, he changed his address to an area closer to work (“the third period”).
7 By about 2009, the plaintiff began to work full-time hours again but was under restrictions to only work for 40 hours per week but with no overtime. However, he states he was receiving continued pressure from management for him to increase his hours and to work at night and on weekends. Accordingly, he considered that IBM was not able to provide him with any duties suitable to his capacities and within his work restrictions.
8 On or about 31 March 2012, the plaintiff’s employment with IBM was terminated, which he believed was related to IBM’s inability to accommodate his restrictions due to his neck injury and in particular by him not being able to perform long overtime hours outside the prescribed employment hours (“the fourth period”).
9 Thereafter, in about May 2012, the plaintiff obtained work as an IT specialist with the RACQ in Brisbane. He performed this work on a full-time basis for approximately six months. On or about 21 December 2012, he ceased the contract and returned to Melbourne. He swore that whilst performing this work in Brisbane, he was able to take a couple of minutes’ break every half hour, so as to stretch and adjust his neck. He found the work generally manageable and he was not required to travel long distances or to work long hours. However, he stated he did experience increased neck and upper back pain whilst performing this work and he found that he was reliant on medication and treatment to allow him to complete the work. He also underwent physiotherapy and self-managed exercises at a gymnasium as part of his therapy. He stated he had some difficulties concentrating due to medication he was then taking.
10 At this stage, he was concerned about his ability to keep upgrading his skills to remain competitive in the IT market. As a result of his neck injury, he found it difficult to upgrade those skills, as he had difficulty spending prolonged time reading or on the computer as a result thereof.
11 Thereafter, he obtained a contract as an ETL developer with the Corporate Planning and Performance Office at James Cook University in Townsville. The contract was for a fixed term from 30 September 2013 to 29 August 2014. His job involves writing programs and documents to meet business requirements and provide technical support to the University. He has been working, first, 36.5 hours per week without a day off pursuant to this contract but since October 2013, he has been working 38.17 hours per week with one day off every month.
12 By an Originating Motion filed in this Court, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings at common law against IBM. He relies upon paragraph (a) of the definition of the “serious injury” in s134AB(37) of the Act, namely “permanent serious impairment or loss of a body function”, being the cervical spine.
13 At the hearing of the application, the plaintiff confined his application to one for leave to claim pain and suffering only. He also abandoned his claim pursuant to paragraph (c) of the definition of “serious injury”. His counsel submitted that his claim was so confined because of an apprehended inability to satisfy sub-paragraph (ii) of s134AB(38)(b) of the Act.
14 At the hearing of the application, the plaintiff relied upon three affidavits sworn by himself (exhibit A), an affidavit sworn by his wife, Sangeeta Jain (exhibit B) and upon medical reports of treating and examining doctors.
15 The defendants relied principally upon medical reports and a video taken on 7 May 2012 which extended for one minute and 47 seconds (exhibit 6).
16 The plaintiff, who was cross-examined, was the only witness heard orally.
17 No issue of credibility arose on the hearing of this application.
18 Prior to the injury, which became symptomatic in or about March of 2006, the plaintiff never suffered from any pre-existing neck pain, but probably was suffering from degenerative but asymptomatic degenerative change in his cervical spine.
The Plaintiff’s background
19 The plaintiff is a married man with two children, aged twenty-one and twelve. He was born in November 1963 and grew up in India. He migrated to Australia in or around 1998. He completed his high school education in India and also achieved a Diploma in Mechanical Engineering and was made an associate member of the Institution of Engineers in mechanical engineering. Thereafter, he worked with Indian Airlines as an aircraft maintenance engineer. Upon arrival in Australia, he completed a Graduate Diploma in Computing Studies at RMIT and commenced employment with IBM in or about April 1999.
Treating medical history
20 The plaintiff first consulted his treating general practitioner, Dr Alan Lim, in or about June of 2006 and later was treated by Dr Lucarelli, in the same practice, from about March 2008. He was then referred to neurosurgeon, Mr Patrick Chan, in April 2008, who ordered an MRI scan of his cervical spine which revealed multi-level disc degeneration and mild bilateral bony foraminal stenosis from C3-4 to C5-6.
21 Mr Chan reported on 20 October 2008 (exhibit H). He took a history that the onset of the neck pain was in approximately March 2006 whilst the plaintiff was using a computer. The pain then progressed over the next two years. The plaintiff described the pain as constant and was exacerbated with activity at work. The pain increased with neck flexion and lateral rotation to the right. Analgesia and physiotherapy had provided some degree of relief in the previous two years. The plaintiff found that with some adjustment he was able to continue with work at that time. He found that the pain was mainly worse if he worked for over six hours at his desk.
22 Examination revealed a non-tender neck with a slightly restricted lateral rotation to the right. Upper and lower limb neurological examinations were otherwise normal. Mr Chan considered that although the working environment may not be the direct or the sole cause of his neck pain, it was most likely that his symptoms were exacerbated by his work activity as described.[1]
[1]Plaintiff’s Court Book (“PCB”) page 4
23 Mr Chan considered that the plaintiff could return to suitable work of less than six hours a day with frequent breaks to allow him to rest and stretch. Also, Mr Chan considered the plaintiff should continue with his physiotherapy which would need to be supplemented with analgesia and anti-inflammatories.
24 Thereafter, the plaintiff was under the care of his treating general practitioner, Dr Lucarelli, who stated that as at 10 October 2008, the plaintiff had “undergone extensive physiotherapy and uses Antenex, Fenac and Panadol for the pain”. He also considered, at that stage, that the plaintiff suffered “from a chronic permanent injury”.[2]
[2]Exhibit G, PCB 51
25 The plaintiff was also treated by physiotherapist, Mr George Kokovas, who reported on 11 November 2008 and 14 May 2013 (exhibit J).
26 In the first report, Mr Kokovas recorded the plaintiff was having treatment about once a week, consisting of electrotherapy, massive mobilisation and exercises. He was also doing a gym exercise program which helped him to manage his condition better. He also recorded that the condition deteriorated in August 2008 and the plaintiff had to take more time off work. He considered that he was suffering from a soft-tissue type of injury which had aggravated his pre-existing degenerative condition of the cervical spine. The injury, he thought, was still ongoing and was still aggravated by his work.[3]
[3]PCB 56
27 In his second report, Mr Kokovas records once again that the plaintiff attended for treatment for the first time in January 2008. He does not say whether he has examined him since that time, although he does opine that “he is still suffering from the same condition/problem”.[4] In any event, he considered that the condition had stabilised and that the plaintiff had a partial and permanent incapacity which was affecting his ability to work full time. He was not expected to improve further.[5]
[4]PCB 57.1
[5]PCB 57.1
28 Although in his affidavit sworn 22 April 2013, the plaintiff states he was continuing treatment from Mr Kokovas and that he had further consulted physiotherapists, Ms Bilby and Mr Lumley, and a Dr Kratzing in Brisbane, there are no reports concerning actual treatment since 2008 tendered on behalf of the plaintiff.
29 The defendants tendered two pages of clinical notes from Dr Kratzing, dated 20 June 2012 and 25 June 2012. Only the latter consultation concerned neck pain.
30 In his third affidavit, sworn 31 March 2014, the plaintiff states he takes one Targin tablet in the morning and one Antenex or one Lyrica tablet at night. He also takes up to six Panadeine Forte or Codeine Forte tablets a day, depending on the intensity of his pain. He also takes one Cymbalta tablet per day. He further states he undergoes physiotherapy once a fortnight and procures Chinese remedial massage for his neck as required.[6] In cross-examination, he could not remember the name of the doctor in Queensland who prescribes the medication nor is there any report from any doctor concerning those prescriptions. Nonetheless, counsel for the defendants concede that the plaintiff probably does attend his doctor once a month in order to obtain the necessary medication.
[6]PCB 27.1 – 27.2
Medico-legal examinations
31 The plaintiff has been examined by Dr Helen Sutcliffe, occupational physician, on 8 March 2013 (exhibit K) and Mr Kenneth Brearley, general surgeon, on 10 May 2013 (exhibit L). He has also been examined on behalf of the defendants by neurosurgeon, Mr Daryl Nye, on 17 July 2008 (exhibit 2); neurosurgeon, Mr Kevin Siu, on 13 June 2012 (exhibit 3); Associate Professor John A L Hart, on 17 April 2013 (exhibit 4) and finally, by orthopaedic surgeon, Mr Ian Jones, on 3 March 2014 (exhibit 5).
32 Findings on examination by the respective doctors were as follows:
(a) Mr Daryl Nye (17 July 2008):
“… normal spinal posture retained cervical lordosis, there was no spasm of paravertebral musculature in the cervical region. All cervical movements were executed to a full range, that is flexion, extension and lateral flexion performed to 45o and rotation was executed to 80o to each side. … .”[7]
[7]Defendants’ Court Book (“DCB”) page 6
(b) Mr Kevin Siu (13 June 2012):
“On examination, the range of movement in the neck is excellent. There are no tender spots.”[8]
[8]DCB 15
(c)Dr Helen Sutcliffe (8 March 2013):
“There was no muscle spasm observed in the cervical region and the range of neck movement was decreased to 40o of flexion, 40o of extension and right and left lateral flexion to 45o with left rotation to 60o and right rotation to 50o.”[9]
[9]PCB 66
(d)Associate Professor John A L Hart (17 April 2013):
“There were multiple tender areas in the cervical erector spinae and in the muscles of the shoulder girdle. There was no spasm of the erector spinae muscles. There was a full range of movement in the cervical spine.”[10]
[10]DCB 25
(e)Mr Kenneth Brearley (10 May 2013):
“There is some tenderness over the base of the neck. There is no deformity. The cervical lordosis is maintained.
He has a full range of neck movements. Flexion and extension are to 45o. Lateral flexion to right and left is to 45o and rotation to both sides is to 80o.”[11]
(f)Mr Ian Jones (3 March 2014):
“On examination the patient had a normal range of cervical flexion measured at 45o. Extension was slightly limited at 35o with rotation slightly limited at 45o to both left and right sides.”[12]
[11]PCB 74.3
[12]DCB 37
33 It was common ground that the plaintiff was suffering the effects of multi-level disc degeneration with mild bilateral bony foraminal stenosis from C3-4 to C5‑6 with mild central canal stenosis. There was no definite cord compression identified.
34 All practitioners considered there was either a work-related aggravation or exacerbation of underlying cervical spondylosis, together with a possibility of a musculoligamentous injury to the cervical spine. Mr Jones, being the last practitioner to examine the plaintiff, considered that any work-related exacerbation of the condition was such that he considered that the plaintiff would be in exactly the same position in March 2014 as he would have been with the underlying condition without the work-related contribution.
35 Accordingly, the range of views proffered by the various practitioners really amounted to the following possibilities:
(a) The impairment to the cervical spine was caused by an underlying, non work-related condition, the symptoms of which were exacerbated by the work performed, but did not alter the course of the underlying condition, such that by the time the work ceased, and certainly by March 2014, it was only the underlying condition which was productive of symptoms and impairment;
(b) The work had aggravated an underlying degenerative condition such that that condition was rendered symptomatic by the work and there has been no recovery to this point in time or likely to occur in the future. Under this scenario there would be two ongoing causes for the cervical impairment;
(c) A comparison of impairments due to the aggravated condition compared to the underlying condition as postulated by Petkovski v Galletti[13] is to be measured by the aggravated state of the spine as set out by the various doctors and the impairment produced by the underlying condition as opined by Mr Jones, which comparison results in a differential of virtually zero, or certainly not to the required threshold.
[13] [1994] 1 VR 436
36 Insofar as a court could be uncertain as to which of the above scenarios has been established by the plaintiff, it would have to be said that the plaintiff bears the ultimate burden of proof. Insofar as there is a shifting onus on the defendants pursuant to the dicta laid down in Watts v Rake[14] and cited with approval in Petkovski v Galletti,[15] the evidence to be introduced by the defendants is probably satisfied by that postulated by Mr Jones, such that the plaintiff would now have the ultimate burden of proof.
[14](1960) 108 CLR 158
[15]Supra
37 For the purposes of this proceeding, I will proceed on the basis that the plaintiff has established that the pre-injury state of his underlying degeneration was asymptomatic and that the work duties referred to aggravated that underlying degenerative state to the point of rendering it symptomatic and that therefore he is entitled to recover to the extent that the present day consequences meet the necessary statutory threshold.
Post-injury employment
38 The plaintiff is presently fulfilling a contract in Townsville, which is a full-time position, pursuing his preferred line of work. This employment is an indication to some extent of the limits on his physical abilities and casts some indirect light on the extent of his pain and suffering.
Pain and suffering
39 In his first affidavit, sworn 24 February 2012, the plaintiff swore that he experienced constant, though varied pain in his neck, and also suffered from frequent headaches.[16] He also stated that as a result of the constant pain and discomfort, he tends to have difficulties in concentration and also has frequent bad moods.[17] The pain also causes him “trouble sleeping and [he] often wake[s] up due to pain”.[18] However, there is no reference to the frequency with which this occurs. The plaintiff also experiences increased pain following any “intrinsic physical activity such as sitting for prolonged periods, reclining for too long in one position, reaching, bending, as well as repeated or prolonged twisting and leaning (such as leaning over the sink to shave)”.[19] However, he has been attending a gymnasium and involving himself in meditation as exercise to pass the time.[20]
[16]PCB 17, paragraph 33
[17]PCB 18, paragraph 34
[18]PCB 18, paragraph 37
[19]PCB 18, paragraph 38
[20]PCB 19, paragraph 42
40 The plaintiff stated he tried his best to assist his wife wherever possible; however, he felt he was quite dependent on her and other family members to perform activities in and out of the house.[21] At that stage, he believed it would be difficult for him to find any alternative work that accommodates his injury; however, this changed for the better at a later stage.
[21]PCB 19, paragraph 43
41 In his second affidavit, sworn 22 April 2013, the plaintiff related how he obtained a contract with RACQ Brisbane for a six-month period. He found this work generally manageable, as he was not required to travel long distances or to work long hours; however, he did experience increased neck pain whilst performing this work and found that he was reliant on medication and treatment, such as physiotherapy and exercises at the gymnasium, to assist him.[22] Once again, he was concerned whether he would be able to obtain further work as an IT specialist due to the ongoing neck pain,[23] but once again, this also improved for the better at a later stage. He stated that the pain and disability affected his sexual life and he continued to avoid playing tennis. In cross-examination, he said his pre-injury tennis was confined to approximately once per month if three friends were available.
[22]PCB 22, paragraph 6
[23]PCB 22, paragraph 7
42 In his third affidavit, sworn 31 March 2014, the plaintiff related that he was working in his chosen profession at James Cook University in Townsville pursuant to a contract that was to expire on 29 August 2014. He is presently working 38.17 hours per week with one day off every month. He states that every day he suffers from pain in his neck and he avoids activities which could aggravate his pain. He lives about 3 kilometres from his workplace and drives to work. Although he states he feels very lonely in Townsville, he does not state that he had to travel interstate in order to find work, although that may be an inference that is still open.
Analysis
43 It is possible to obtain leave to commence a proceeding for pain and suffering damages by establishing that the loss of earning capacity consequences for a particular applicant satisfy the “very considerable” test in s134AB(38)(c) and the 40 per cent requirement of s134AB(38)(e).[24] No attempt was made to do so in this proceeding. Thus, the case must be established on the basis that the pain and suffering consequences of the injury, 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. This involves a value judgment in which matters of fact and degree and of impression are operative.[25]
[24]See generally Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 paragraphs [60] to [64]
[25]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
44 The task of a County Court judge is to see where the facts of the particular case sit in the broad spectrum of cases, including cases which do not end up in litigation.
45 The circumstances of this case, in my view, are on the borderline. The plaintiff has been able to remain in full-time employment in his chosen profession. He faces, in the future, ongoing neck pain, which is probably permanent and, in addition, there are effects upon his enjoyment of life, although apart from the occasional game of tennis or table tennis, it appears that he had little time for recreation in his pre-injury life.
46 I consider that the evidence adduced does disclose pain and suffering consequences which can be described as both significant and marked, but I am not persuaded that these consequences can be fairly described as being more than significant or marked or as being at least very considerable. Defence counsel submits that in reaching a conclusion whether a worker has established that he has suffered a serious injury, “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.[26] I accept that submission.
[26]See Dwyer v Calco Timbers Pty Ltd (No) [2008] VSCA 260 at paragraph [27]
47 I consider that the plaintiff has suffered, and will likely continue to suffer, from inhibitions in his ability to engage in unrestricted physical activity by way of tennis and table tennis but such ability is not affected to any great degree, or at least to the degree necessary to fit the description laid down by statute. In particular, it does not appear to me that the plaintiff’s enjoyment of life, comprising his social life and his ability to travel has been affected in a way which could be described as more than significant or more than marked – and certainly not “at least very considerable”.
48 I take into account the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[27] although I note subsequent Court of Appeal decisions alluding to the fact that such a return to employment is merely one of the factors to be weighed in balance.
[27][2006] VSCA 292 at paragraph [24]
49 Finally, as far as pain is concerned, I do not discern that the plaintiff is suffering a continuous substantial level of pain and his ability to pursue his chosen profession on a full-time basis seems to be achieved by a degree of analgesia that does not affect his overall performance.
Conclusion
50 For the reasons given, the application should be dismissed.
51 I will hear the parties as to consequential orders.
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