Jessop v D P World Melbourne
[2012] VCC 1601
•7 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03185
| BRENDON JESSOP | Plaintiff |
| v | |
| D P WORLD MELBOURNE (formerly P & O PORTS LIMITED) | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 October 2012 | |
DATE OF JUDGMENT: | 7 November 2012 | |
CASE MAY BE CITED AS: | Jessop v D P World Melbourne | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1601 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the lumbar spine – pain and suffering only
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(37)
CASES CITED – Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
JUDGMENT – Leave granted for pain and suffering
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie with Mr B Hutchinson | Shine Lawyers Limited |
| For the Defendant | Mr B McKenzie | Herbert Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is movement of the back and, in particular, the lumbar spine.
6 The plaintiff relied upon two affidavits, sworn 29 April 2011 and 15 October 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of his impairment to the lumbar spine in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“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. … .”[6]
[5][2009] VSCA 181
[6]Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
15 Secondly, the plaintiff’s credit was in issue.
The Plaintiff’s Evidence
16 In his affidavits sworn on 29 April 2011 and 15 October 2012, the plaintiff deposes that:
· He commenced work with the defendant in or about early 1990 and has worked as a stevedore for over twenty years. At the time of the injury, he was working as a straddle driver, which involved driving a straddle crane to transfer shipping containers.
· In 2003, he began to develop lower back pain associated with the straddle driving. At first, he felt mild pain and stiffness in his lower back after he finished work. By about March or April 2004, the back pain worsened in severity and became longer lasting.
· In June 2004, he saw his general practitioner, Dr Steven Ahern, and was referred to an occupational therapist, Dr Helen Sutcliffe, who prescribed anti-inflammatory medication and referred him for physiotherapy. He had some physiotherapy and acupuncture but did not obtain more than short-term relief. He continued working with the pain. In July 2006, he returned to Dr Sutcliffe, who arranged an MRI scan and cleared him to work two hours per day in the straddle crane.
· He continues to work for the defendant doing modified duties, refuelling and securing pins to the containers, and occasionally as foreman. He finds work physically straining and finishes a shift in agony. He does not enjoy work as much as he used to. Driving straddle cranes was more prestigious and he earned more because of the availability of overtime.
· He has more or less constant back pain and stiffness. He has symptoms in his legs now. He takes Panadeine Forte when the pain is bad, but tries to avoid medication because it upsets his stomach and he does not want to become dependant on it. He uses heat packs, massage and lies down. He performs home-based stretching exercises.
· He walks and tries to do light jogging, but after thirty minutes the pain worsens. He tries to swim regularly and uses the spa and sauna, which provide temporary pain relief.
· After sitting for an hour or two, his back symptoms become too uncomfortable.
· He previously was a keen gardener. He has to get other people to do a lot of the jobs around his home now. His father-in-law does most of the mowing and cleaning the window exteriors, painting and basic maintenance.
· He has put on weight since 2004.
· He was a runner in the Yarra Junior Football League and enjoyed participating in the sport as he had previously played VFL. He played tennis regularly, and golf. He enjoyed the social and competitive nature of these activities, but has been unable to return to them.
· His back pain interferes with his socialising, especially with his wife and children. He no longer has the energy and fortitude to socialise. He and his wife used to taken their caravan to Port Arlington, where he had a boat, and used to go fishing. He has now sold his boat and fishes from the pier.
· His intimacy with his wife has been affected. The pain is bad at night and often wakes him and he is restless in the night. He has become short with people and intolerant when he is in pain.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff was cross-examined and gave the following pertinent evidence:
· He agreed he was the sole director, secretary and sole shareholder of Classique Imports Melbourne Pty Ltd (“Classique Imports”). He said Classique Imports oversees the trust account for Group One International Pty Ltd (“Group One International”) of which he is a director and shareholder.
· He said Group One International exported cardboard to China but now sells cardboard locally. He was responsible for logistics. He said the turnover was approximately half a million dollars last year.
· He said his family was the beneficiary of the trust. There had been no profit for the three to four years the company had been operating. However, he expected the trust would receive a distribution of $20,000 this year.
· He agreed that he was a director of Western Australia Cool Rooms Pty Ltd, Victorian Cool Rooms Pty Ltd, South Australia Cool Rooms Pty Ltd, Queensland Cool Rooms Pty Ltd and New South Wales Cool Rooms Pty Ltd. He said only Victorian Cool Rooms was operational, producing mobile cool rooms. He performs administration work for the company. He did not know the turnover of that company.
· He said in total for all the companies he works approximately four hours per week doing administration duties from home.
· He denied that he did not need to increase his hours of work because of the income he expected to receive from the trust.
· He said he had experience in administration work when he worked for the Herald and Weekly Times and with the defendant when he worked in plant operation. He never obtained a degree in administration.
· He said the work he does with the companies is not physical work, it is different to the work he does with the defendant.
· He said his work has not been modified with the defendant. He is now located in the general stevedore section of the defendant. He agreed it was a regular job, in that it was not protected work.
· He said he has good and bad days. He said probably twenty-five per cent of the time he has no back pain while working for the defendant. He corrected his answer and said he constantly has back pain, and some days he can deal with it and some days it is overwhelming. It can range from between two to three up to a grading of eight out of ten.
· He agreed he told Mr Kossmann that since he notified the defendant about his back pain he felt he was being bullied and had some workplace-related issues.
· He said Mr Kossmann did not ask him about the current work he was doing and whether it was physically straining.
· He said Mr Simm did not ask him whether the work was very physically straining. He said he did not tell him that almost without fail he finished a shift in agony, because he was not asked the question. He could not recall whether he told Mr Brownbill the work was very physically straining. He believes he would have suggested to Mr Brownbill that, almost without fail, he finished his shift in agony, but maybe not in those words. He was unable to recall.
· He agreed he did not have certificates to say no bending, twisting or lifting, but said there was an informal arrangement with the defendant.
· He agreed he had had very limited time off work and if overtime was offered, he would do overtime if he was required to.
· He agreed he did not see Dr Sutcliffe between August 2008 and February 2012. To the best of his knowledge, when he saw Dr Sutcliffe this year, he told her his back had deteriorated. He then said he could not recollect whether he did or not. He said he went to see Dr Sutcliffe because his back had deteriorated and she recommended another MRI scan.
· He agreed he had seen Dr Ahern in April 2007 because shiftwork had upset his sleep. To the best of his knowledge, he had not discussed snoring and sleep apnoea with Dr Ahern.
· He said he did not tell Mr Kossmann that his back pain is bad at night and often wakes him up, nor did he tell Mr Brownbill.
· He denied that he told Mr Simm that he sleeps well.
· He said he had told Mr Kossmann, Mr Brownbill and Mr Simm that his back condition had worsened or deteriorated. He saw them because his back had worsened.
· He said he obtained Panadeine Forte and Nurofen from his mother. He said he tried to manage his pain, which he has been doing for a very long time. He had had concerns about taking tablets.
· He travelled to Thailand, which was an eight-hour flight, with his wife. He sat beside the pool and attended the kick boxing.
· He said when he was a straddle crane driver there were no critical demands. These have been introduced in the last few years. He agreed he drove the straddle crane between one to three times per month now.
· He agreed he earned $114,951.00 in the last twelve months. He is a Grade 5 stevedoring employee and would earn between $125,000 to $150,000 if he was doing straddle work.
· He said he had attended the first aid room approximately five times in the past twelve months.
18 In re-examination, the plaintiff gave the following pertinent evidence:
· Now when he drives the straddle crane he has pain at a level of eight out of ten.
· Ninety per cent of his employment is assigned to washing duties. Two per cent is the straddle driving and six per cent the pins and one or two per cent refuelling.
· There are aspects of the pin man duties which are not difficult. The constant removal of the pins and placing them over a long period of time worsens the back. He said refuelling does not cause challenges to his back. He said there are aspects of washing the straddle lifts which are challenging, climbing the stairs increases the back pain.
· The defendant has the right to place labour as it sees fit and places him in areas that are not as demanding in relation to his back injury.
· Notwithstanding being certified for full duties, he now performs different duties.
· It is a policy of the defendant that an employee is required to do overtime and, if an employee refused, it would jeopardise his employment.
· He is not regularly asked to work overtime. He believed he could work overtime but it would depend on the duties.
· His mother obtains prescriptions at a subsidised rate and that is why he obtains his medication from her. He takes Panadeine Forte during the working week, on average once a week at least, but on a bad week he will take up to three times the dosage.
· He said after driving the straddle crane when driving home he would be screaming with pain, he would take Panadeine Forte at such times.
· He obtains Nurofen from his mother and takes that once a week on a good week. In a bad week, he will take Nurofen three times a week.
· In the past he has taken muscle relaxants.
· He obtained sleeping medication from his mother and takes that probably twice a month.
· In the past twelve months he would have gone to the first aid area for icepacks on approximately five occasions, which was similar in the past year. An employee provides the icepacks, he is not aware of the supply of icepacks being recorded.
· His house is currently on the market because he is finding it too hard to maintain. In particular, painting, general maintenance, gardening and mowing are too much for him. He has lived there for twenty years. He feels sad as he has raised his three children there and the family has good memories of living there.
· He attends self-managed hydrotherapy regularly once a week. He walks every day and performs an exercise program that was provided by the physiotherapist, David Pitcher. He finds the hydrotherapy, walking and exercise program helpful.
Investigations
19 On 2 August 2006, a CT scan of the lumbosacral spine showed:
“There is mild protrusion of the L4-5 disc, which may be desiccated, accounting for back pain. There is however no nerve root entrapment nor impingement. The spinal canal is capacious.”
20 On 8 December 2010, a CT scan of the lumbar spine showed:
“L4-L5 disc shows mild left paracentral diffuse disc bulge.
L5-S1 disc shows mild left paracentral diffuse disc bulge.
Central canal calibre is maintained. Mild stenosis involves bilateral L5‑S1 exit foramina particularly on the left side. The exiting nerve roots are touched but not compressed. Remaining lumbar exit foramina are capacious.
Conclusion
However lumbar degenerative disease. No central canal stenosis. Mild bilateral L5-S1 foraminal stenosis more marked on the left than the right.”
21 On 31 July 2012, an MRI scan of the lumbar spine showed:
“At the L4-5 level, there is moderate bilateral facet osteoarthrosis. The disc appears normal. Neural pathways and structures appear normal.
At the L5-S1 level there is disc desiccation and a shallow left posterior paracentral disc bulge with moderate facet osteoarthrosis. As a result there is minimal narrowing of the lateral recess for the left S1 nerve root.
Impression: There is low lumbar facet osteoarthrosis and there is a shallow left paracentral disc bulge at the L5-S1 level. No evidence of nerve root compression.”
The Plaintiff’s Medical Evidence
Dr Stephen Ahern
22 In September 2012, Dr Ahern, general practitioner, reported on the MRI scan dated 31 July 2012. He said:
“1 On the basis of the MRI scan report, ie the presence of low lumbar facet osteoarthritis and shallow left paracentral disc bulge at L5-S1 level, there is an organic basis for Mr Jessop’s pain.
2 The changes reported are of a degenerative nature. They may have been exacerbated by Mr Jessop’s employment.”
Mr David Pitcher
23 In September 2006 and September 2012, Mr Pitcher, physiotherapist, provided two reports relating to the plaintiff, whom he had treated between July 2004 and September 2006. He had not reviewed the plaintiff prior to writing the 2012 report. Mr Pitcher treated the plaintiff on referral from Dr Helen Sutcliffe, occupational physician. The plaintiff reported a sudden nerve pain (“the nerve pain”) as he extended his spine at work. The back pain had been intermittent since the initial accident but was particularly aggravated by prolonged sitting and driving with the right foot on the accelerator. The plaintiff’s symptoms followed a pattern whereby they worsened gradually over the course of the day. The plaintiff’s taking of anti-inflammatory medication and walking assisted his symptoms.
24 The plaintiff received weekly physiotherapy treatment for three months. The plaintiff’s back flared up from time to time, requiring further periods of back treatment. He was finally treated on 11 September 2006.
25 Mr Pitcher said the plaintiff’s injury had an organic component. He said that the pain had been ongoing for eight years; he expected that a component of his pain was neuropathic and generated by a sensitised nervous system. He said that did not mean the plaintiff’s symptoms were psychological in origin. He did not consider the plaintiff would improve in the foreseeable future. He said he had the potential to make some gains over the next few years with appropriate treatment. He recommended regular weekly physiotherapy with weekly physio-supervised hydrotherapy.
Dr Helen Sutcliffe
26 In September 2009 and July 2012, Dr Sutcliffe, occupational physician, provided medical reports to the plaintiff’s solicitor. Dr Sutcliffe treated the plaintiff between June 2004 and August 2008. He was seen in February and July 2012. Dr Sutcliffe said the plaintiff complained of continual low-back pain, increasing with twisting and turning, with radiation to the posterior aspects of both legs and the anterior aspect of both legs medially. He had pins and needles in both legs and he described pain present at an intensity of five on a visual analogue scale of nought to ten, with increase in pain to a level of eight when he was at work.
27 He described shooting and tingling pain which increased in intensity after work to such an extent that he had difficulty with driving at times. He had no limit on his walking and he was able to sit for fifteen minutes with comfort. He said sitting was the most uncomfortable position. He avoids standing. He reported that on two or three occasions when driving home, he endured excessive pain where he just gritted his teeth and carried on. He reported that he no longer played golf or tennis weekly as he did before, nor could he undertake other sporting activities. His social activities were restricted because of his inability to sit and stand. He took Panadeine Forte intermittently. Sexual activity was restricted as a result of the pain.
28 Dr Sutcliffe said in 2004, the plaintiff sustained the onset of discogenic pain as a result of the duties he performed as a straddle driver whereby vibration was experienced and the plaintiff was required to frequently twist and turn. The plaintiff suffered discogenic pain as a result of disc derangement at L5-S1 level as a result of his employment. She believed his employment was a significant contributing factor and noted that he had no significant time off work. She said the plaintiff had limited capacity for pre-injury duties, but has the capacity to work undertaking the work he currently performs.
29 Dr Sutcliffe said the plaintiff had sustained very substantial loss of capacity for activities of daily living in his leisure and social activities, as well as his relationship activities. In addition, his domestic activities have been adversely affected by the injury.
30 In September 2012, Dr Sutcliffe said:
“Mr Jessop has sustained onset of discogenic pain as a result of his duties in employment.”
31 She believed, as a result of his employment, there had been an aggravation of degenerative change in the lumbosacral spine, in addition to the discogenic pain he sustained.
Mr Thomas Kossmann
32 In September 2012, Mr Kossmann, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitor. Mr Kossmann diagnosed discogenic and mechanical back pain on the basis of a low lumbar facet osteoarthritis at L5‑S1 level, as well as a shallow left paracentral disc bulge at the L5-S1 level.
33 Mr Kossmann said the plaintiff needed to undergo maintenance therapy in the form of painkillers and anti-inflammatories. He did not think the plaintiff would require surgery. He said the plaintiff’s injury to his lumbar spine was caused by his employment and it was a significant contributing factor. He said the plaintiff was unable to work in physical employment where he has to lift more than 10 kilograms or has to twist or bend his upper body. Mr Kossmann said the plaintiff could not return to his previous duties as a full-time straddle driver, as this work involves sitting for a long period of time, twisting and turning his upper body.
34 Mr Kossmann said the plaintiff’s social, domestic, recreational and sporting activities had been affected by the onset of lumbar spine pain. The plaintiff had delegated gardening work to a gardener. He had to give up his sporting activities, such as tennis and as a football runner. The plaintiff reported no difficulty performing the activities of daily living.
Mr David Brownbill
35 In October 2012, Mr Brownbill, neurosurgeon, saw the plaintiff at the request of the plaintiff’s solicitor. Mr Brownbill recorded the plaintiff as:
“… cooperative without embellishment appearing straightforward in his presentation.”
36 Mr Brownbill recorded that the plaintiff’s current treatment comprises daily back exercises, swimming and use of a spa about once per week. He takes Nurofen, a muscle relaxant, or Panadeine Forte intermittently.
37 Mr Brownbill said the plaintiff’s physical activities as a stevedore over many years, particularly when driving a straddle truck, involved forces to the lower back with resulting degenerative changes in the facet joint and disc regions, perhaps with aggravation of pre-existing asymptomatic degenerative changes. He said, in the future the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He anticipated the plaintiff will experience pain in a fluctuating manner indefinitely. He recommended the plaintiff continue conservative treatment with analgesics and anti-inflammatory medication as appropriate. It was his view the plaintiff’s degenerative changes have become symptomatic with his described work activities as a stevedore, particularly straddle driving, being a material contributing factor.
38 He thought the plaintiff was precluded from returning to increased straddle driving work. He was aware that the plaintiff has not been able to return to golf or tennis and was only able to help with light household chores.
Mr Peter Kudelka
39 In May 2008, Mr Kudelka, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. Mr Kudelka said the plaintiff’s diagnosis was back pain related to degenerative changes at the lumbosacral disc level. He said the contributing factor to his condition was his occupation as a straddle driver and he described his condition as an aggravation of pre-existing but asymptomatic degenerative changes in the lumbosacral disc. He accepted that the condition contributed to a reduced capacity for work and the need for treatment.
40 Mr Kudelka said the plaintiff could continue full-time employment as long as his tasks were modified and he alternated straddle driving with activities that do involve repetitive excessive strains on the lumbar spine. He said the plaintiff could not return to unrestricted pre-injury duties. These will cause an exacerbation of his back pain symptoms. He said the plaintiff’s condition is likely to continue indefinitely.
41 Mr Kudelka said his treatment had been conservative, supportive and palliative, and included swimming, physiotherapy and analgesics.
The Medical Panel Opinion
42 The Medical Panel said the plaintiff had an impairment from the back injury which was permanent.
The Defendant’s Medical Evidence
Mr Paul Kierce
43 In October 2010, Mr Kierce, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s insurer. The plaintiff complained of pain in the central low-back area with radiation into the backs of his thighs. Mr Kierce said the plaintiff suffered with a degree of constitutional backache, although there was no significant evidence of back dysfunction on clinical and radiological examination. He thought the impairment had stabilised. He said the plaintiff suffered from a minor degree of backache, for which no definitive explanation can be given. There was no evidence of radiculopathy or of significant degenerative change in his lumbar spine.
Mr Rodney J Simm
44 In August 2012, Mr Simm, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor. Mr Simm said he was unable to establish a diagnosis for the plaintiff’s chronic low-back pain and referred lower limb symptoms. He said the plaintiff had non-specific mechanical low-back pain with referred symptoms into the lower limbs, but with no clinical signs of radiculopathy or neural tension. He thought his work as a straddle driver could have led to some symptomatic aggravation of very early underlying degenerative pathology.
45 His prognosis was that the plaintiff had an established stable pattern of symptoms which will persist, with no change anticipated in the foreseeable future. He said the symptoms related to the general nature of the plaintiff’s employment. He said the plaintiff’s employment with the defendant had involved activities which initiated and exacerbated what seemed to be relatively mild lumbar symptoms and referred symptoms into the lower limbs. He said it was reasonable for the plaintiff to have strong analgesic medication available for the occasional flare up of pain, otherwise he could self-manage his condition with regular walking, stretching exercises and over-the-counter medication.
46 He accepted that the plaintiff’s condition limited his ability to engage in unrestricted activities of gardening and lawn mowing. He said the plaintiff had been unable to continue with regular sporting activities and there had been some interference with his sexual relationship with his wife.
47 Mr Simm reviewed the MRI scan of 31 July 2012 which he said reported changes common in the general population of this man’s age. He said the changes were not predictive of pain. He said, reported in isolation, the MRI scan did not indicate that the plaintiff would necessarily have any back or physical loss of function of the back. However, the plaintiff had reported symptoms of low-back pain with radiation to the buttocks, more to the left than the right. There was radiating pain into the left hamstring and occasionally to the left foot. He had similar, but less troublesome, symptoms into the right lower limb. He said the symptoms were consistent with early degenerative pathology, as demonstrated on the MRI scan. He said a reasonable diagnosis for the plaintiff’s condition would be unresolved exacerbation of symptoms arising from early degenerative changes in the lumbar spine.
Video Surveillance
48 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the Defendant’s Court Book. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
49 The plaintiff gave straightforward and direct answers to all questions put to him. He remained calm throughout the process. He was respectful to the Court and to counsel. He did not exaggerate or embellish his condition. I formed the view the plaintiff was genuine, honest and hardworking. My view of the plaintiff was reinforced by the description provided by Mr Brownbill; namely the plaintiff “was co-operative without embellishment, appearing straightforward in his presentation”.
50 It follows that I reject the submission of counsel for the defendant that the plaintiff’s credit was in any way impugned. Counsel for the defendant submitted that the plaintiff’s failure to disclose in his affidavit his position as a director, secretary and shareholder of a number of companies reflected poorly upon his credit. In cross-examination, the plaintiff was frank about his involvement which amounted to four hours of administrative work per week. He said the work was not physical. I accept the plaintiff’s evidence that his participation was minimal and was restricted to administrative tasks which no doubt can be performed at a time of his choosing. I accept that his activities were not physical in nature. As such, I do not consider his business activities were relevant to his claim. Accordingly, I conclude that it was reasonable that the plaintiff did not disclose this material in his affidavit.
51 Counsel for the defendant submitted that the plaintiff did not disclose his recent trip to Thailand. I accept the plaintiff can travel. He did not tell the Court or any of the doctors whom he saw that he could not travel. Sitting on a plane for eight hours was not inconsistent with a man who performs physical work as described in his evidence.
52 Counsel for the defendant submitted that the plaintiff exaggerated his symptoms. In support of his submission counsel referred to:
· the plaintiff’s most recent affidavit, where he deposed that “almost without fail I finish a shift in agony”; and
· Dr Sutcliffe’s report, where she said the plaintiff reported two or three occasions where he had been screaming with pain when driving home. Counsel for the defendant submitted the evidence of Dr Sutcliffe was “quite florid”.
53 I reject the submission that Dr Sutcliffe used florid language in her report, she was reporting what she was told by the plaintiff. I consider the language used by Dr Sutcliffe in her report to be explanatory and straightforward. She reported what the plaintiff said to her. The expressions are typical of that used in medical reports.
54 Counsel for the defendant submitted that the plaintiff’s evidence as to his sleep was unsatisfactory given the comments by the doctors. The plaintiff’s evidence was that the pain in his back was bad at night and often wakes him up. His wife tells him he is restless during the night. His wife’s observations are consistent with the sluggish feeling he has in the morning. The plaintiff said he took sleeping tablets on occasions. Mr Simm reported the plaintiff “sleeps well”. The plaintiff disputed he said this to Mr Simm. Mr Kierce said the plaintiff can sleep. Dr Sutcliffe and Mr Brownbill made no comments about the plaintiff’s sleep. The background was he had consulted his general practitioner, Dr Ahern, about snoring. He was unable to remember the doctor referring to sleep apnoea. I do not accept the plaintiff’s comments about sleep in his affidavit and in cross-examination were in any way inconsistent with the comments of the doctors. Accordingly, I do not accept the plaintiff’s evidence as to sleep was unsatisfactory.
55 Accordingly, I accept the plaintiff’s evidence was in no way impugned.
Analysis of the Evidence
56 It was not in issue that the plaintiff suffered a compensable injury arising out of the work with the defendant. The medical practitioners described the injury differently, but agreed the plaintiff suffered an injury to his lumbar spine.[10]
[10]Dr Sutcliffe said the plaintiff had discogenic pain as a result of disc derangement at L5-S1. Mr Kossmann diagnosed discogenic and mechanical back pain due to osteoarthritis and a disc bulge at the L5-S1 level. Mr Brownbill said the plaintiff had mild degenerative changes involving the intervertebral disc and facet joint region. Mr Simm said the plaintiff had non-specific mechanical low-back pain with referred symptoms into the lower limbs.
57 I must consider the plaintiff’s injury at the time of the hearing of the application. Accordingly, I place greater weight upon the more up-to-date evidence of Dr Sutcliffe, Mr Kossmann, Mr Brownbill and Mr Simm, all of whom re-examined the plaintiff in 2012.
58 All doctors accepted the injury was work-related. All doctors accepted the plaintiff had limited capacity for pre-injury duties. Mr Kossmann said the plaintiff was unable to work in physical employment where he has to lift more than 10 kilograms or has to twist or bend his upper body. Mr Brownbill imposed similar restrictions on heavy lifting, forced spinal movement, repeated bending or prolonged standing or sitting. Mr Simm was aware that the plaintiff had been largely exempted from straddle driving and heavy physical work.
59 The plaintiff’s evidence was that he had lost income and enjoyment in his work because of his injury. The work he now performs is less enjoyable than the work he performed driving the straddle crane. That was his passion and where his skill lay. He earned more money as a straddle driver because of the availability of overtime. He said his current work is physically straining, particularly using the ladders to wash the straddle cranes, and he struggles, increasingly so, with it. He is fearful as to how long he will be able to continue the work. The plaintiff’s evidence was that he finishes his shifts in agony and at home he applies a heat pack and lies down to recuperate for the next day’s shift. He said he obtained icepacks from work.
60 An affidavit was sworn by Ms Karina Conlan, an employee of the defendant, who was informed that the plaintiff only sought first aid at work on two occasions. There was no evidence from a first aider that every icepack which is handed to a worker is recorded. Accordingly, I accept the plaintiff’s evidence on this aspect.
61 I accept that the plaintiff has continued to work but in a different, and less rewarding, capacity. I accept that the plaintiff has suffered a significant economic loss, which can be taken into account. Further, the plaintiff has had an area of work that he enjoyed closed off to him. Given his age, the limitations imposed upon his work and the possibility of deterioration in the future, I accept that the plaintiff has pursued his work at a cost to him in terms of pain, as he has little alternative given his lack of formal education and work history. The plaintiff is in his early fifties and could expect to have worked for another fifteen years.
62 Much was made by counsel for the defendant about the plaintiff’s lack of treatment. The evidence was that the plaintiff had not sought medical treatment from Dr Sutcliffe between June 2008 and February 2012. The plaintiff’s evidence was that he has been self-managing his pain. First, he attended physiotherapy for two years until September 2006. Now he performs the exercises daily. The plaintiff walks each day to relieve the pain. Currently he attends hydrotherapy weekly and takes medication, including Panadeine Forte and Nurofen, weekly as required, as well as muscle relaxants and sleeping tablets. The plaintiff said on two or three occasions a week he has pain at a level at eight out of ten and on those occasions he is required to take Panadeine Forte. On other occasions, his pain is at a level of two or three out of ten. He said he tries to avoid taking medication as much as possible and the level of medication he takes depends upon whether it is a good week or a bad week and the level of pain he suffers. I accept that the plaintiff’s evidence that he self-manages his pain and takes analgesic medication when necessary. No medical practitioner said this treatment was inappropriate or recommended additional treatment.
63 The plaintiff’s evidence was that he takes sleeping tablets on occasions, which results in him sleeping relatively well. When he does not take sleep medication his wife complains that he is restless in bed, he feels sluggish on waking. He said the pain often wakes him at night.
64 I am permitted to take into account the plaintiff’s stoicism.[11] I accept that the plaintiff was stoical in relation to the level of pain he suffered, the treatment he sought and the work he performed. The plaintiff’s stoicism cannot hide the consequences of the injury to this plaintiff.
[11]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at [3], Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [47]
65 Prior to his work injury the plaintiff was an incredibly active person. He was a VFA player in his earlier years. Since that time, he was involved as a runner for the Yarra Junior Football League, played tennis and golf regularly. He used to jog regularly to maintain his fitness. He can no longer perform these activities. He said he particularly misses being a runner for the football league because he enjoyed imparting to young players some of his football skills.
66 The plaintiff said he was a keen gardener before the injury. He had a large garden, which he enjoyed pruning, mulching and mowing the lawn. He is no longer able to perform those activities, and indicated to the Court that his property is on the market, largely because he is unable to maintain the property and large garden. He conveyed to the Court the sadness he felt on selling the property where he had lived and brought up his children for in excess of twenty years. The plaintiff had enjoyed holidaying at Port Arlington and fishing. He said he has been forced to sell his fishing boat because he could no longer maintain it. He told the Court he has difficulty sleeping in the caravan. He said that he and his wife use the caravan far less now because of the pain in his back.
67 The plaintiff said he lacked energy and fortitude to entertain as he had done previously. He complained to a number of the doctors that the level of intimacy between him and his wife had diminished because of his back pain and mood.
68 The plaintiff’s evidence was that he is frustrated by his level of inactivity. Exercise, whether in the garden or on the football field was a good way to keep trim and clear his head. He has put on 18 kilograms since the injury and does not like the way he looks and feels.
69 I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff and what he has told the Court, and the medical evidence. I accept that he suffers pain which affects his activities of daily living and at work. His sleep is affected. The plaintiff was an elite athlete as a young man and as a result, had many sporting interests which he is no longer able to perform. He had many outdoor interests which he is now restricted in performing. In addition, the plaintiff is able to work but in a less prestigious position which provides him with less satisfaction and enjoyment and results in a significant loss of income.
70 I am persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences the plaintiff suffers satisfy the test. I accept the pain and suffering consequences to this particular plaintiff are “serious”. I accept that, when judged by a comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least “very considerable” and certainly more than “significant or marked”.
71 As the plaintiff’s consequences have persisted for almost eight years and no doctor has suggested that his back pain will improve, in my view, his impairment is long-term.
72 Taking all the evidence into account, I am satisfied that the plaintiff has a permanent serious impairment to his low back.
73 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect to his work injury.
- - -
0
5
0