Julian v City of Darebin
[2013] VCC 582
•30 May 2013
| 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-12-00857
| JOSEPH JULIAN | Plaintiff |
| v | |
| CITY OF DAREBIN | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2013 | |
DATE OF JUDGMENT: | 30 May 2013 | |
CASE MAY BE CITED AS: | Julian v City of Darebin | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 582 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – compensable injury to left hip – aggravation of pre-existing degenerative changes – necessity for a hip replacement – return to significant capacity – whether the pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Limited [2011] VSCA 52
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wicks | Maurice Blackburn |
| For the Defendant | Mr N Griffin | Hall & Wilcox |
HIS HONOUR:
1 Before the Court is an application brought by Originating Motion filed 27 February 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr G Wicks of Counsel appeared for the plaintiff and Mr N Griffin of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the left hip.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 10-61 and from the defendant’s Court Book (“DCB”), pages 36-45: Exhibit A;
· The defendant tendered its Court Book, pages 16-35 and 46-88: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(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”.
The statutory scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(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.
(c) Sub-section (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”.
(d) 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.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] 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 ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
Background
8 The plaintiff was born in 1940. He is now seventy-two years of age. He is a single man. He left school when he was fourteen years of age. His first job was as a paperboy. He subsequently completed an apprenticeship in the boot trade in which he worked for about six years. Subsequently, he worked in labouring and factory work, before commencing work with the defendant in 1990.
9 The plaintiff’s work with the defendant involved maintaining the defendant’s fleet of vehicles, which included cars, trucks, tractors and ride-on machinery. In his affidavit sworn 7 November 2011, he described some of the duties which he performed, and in particular, the heavy nature of those duties.[2]
[2]PCB 11-12
The injury
10 The work which the plaintiff did with the defendant appears to have imposed stresses and strains on his left hip to the extent that in 2004, he was experiencing increasing pain in his left hip while working. In particular, he found crouching or manoeuvring wheels of vehicles to be productive of pain.
11 On 24 September 2004, the plaintiff saw Dr Chong, general practitioner. He told Dr Chong that he was suffering pain in his left hip and he was limping. Dr Chong referred the plaintiff to have an x-ray of both of his hips. The x-rays demonstrated that the plaintiff had moderate degenerative changes in his right hip and severe degenerative changes in his left hip.
12 Dr Chong referred the plaintiff to Mr Owen, orthopaedic surgeon, who saw the plaintiff on 27 March 2008. He told Mr Owen that he had pain in his left leg and hip, particularly at night; he could not walk very far; he was limping; it was difficult for him, for example, to put on his socks and to cut his toenails, and he was taking medication to deal with the pain he was experiencing.
13 Mr Owen was of the opinion that the plaintiff was suffering from advanced osteoarthritis in his left hip and that he would be a suitable candidate for a hip replacement. There was then an hiatus in Mr Owen's treatment of the plaintiff. The plaintiff returned to see him in November 2008. By that stage, the plaintiff told Mr Owen that his left hip had deteriorated even further, to the extent that he was walking using a stick, the pain was keeping him awake at night, and he was only working half a day on a Tuesday and a Thursday.
14 Mr Owen undertook a total hip replacement of the plaintiff's left hip on 15 January 2009. Mr Owen considered that the plaintiff was doing well post-operatively, although his recovery was quite slow. The plaintiff was referred to the North Eastern Rehabilitation Centre. Mr Owen described the rehabilitation as “extremely good”. When he last saw the plaintiff on 25 November 2009, he described his progress thus:
“… He said at that stage he was getting some pain in his hip after doing a lot of walking and he localised that pain laterally. He was walking and doing his own physiotherapy.
I wrote to his general practitioner say[ing] that I was perplexed why he hadn’t returned to work. He could virtually do any work he wanted to with the implant he had. I had performed up to date x-rays and I thought they showed that the implant was well integrated.”
15 Later, he said:
“In terms of the patient’s capacity to work both now and in the future. The patient has had a hip replacement, which should allow him to return to reasonably heavy manual work. The patient unfortunately is I think of limited capacity to cope with a major event like this and I suspect has lost confidence and probably some work fitness and would probably find it difficult to return to his heavy work but I do think that he would have a work capacity even given his age.”
16 Mr Owen considered that the plaintiff would require minimal treatment in the future. He said he would require regular x-rays, presumably to determine whether the hip was functioning reasonably. He then described the implant as a robust implant that would be able to stand up to heavy use, although there is a risk of loosening or excessive wear. His expectation was that there was a 95 per cent chance of survival of the implant over a twenty-year period.[3]
[3]PCB 42-46
17 The plaintiff returned to see Mr Owen on 29 April 2013. The plaintiff told him that he had experienced problems with the implant, and in particular, he could not sleep on his left hip because of pain; was tender in the area of the scar with patches of numbness on the back of the scar; occasionally experienced groin pain; experienced problems with walking, having to rest every 10 to 15 minutes, and that he is left leg was smaller than his right leg.
18 Mr Owen had access to a number of x-rays of the plaintiff’s left hip which he considered were satisfactory in what they demonstrated. After examining the plaintiff, and no doubt giving consideration to what he saw on the x-rays, and also the plaintiff’s complaints of problems with the implant, he then said that the plaintiff’s ongoing symptoms in his left hip were minor and that the left hip was functioning satisfactorily.[4]
[4]PCB 46a-46b
19 The plaintiff continued to see Dr Chong. He last saw the plaintiff on 27 March 2013. He noted some weakness in the plaintiff’s left thigh, and some tenderness at the lower end of the operation scar. He noted that the plaintiff had a slight but definite left leg limp. He also noted some wasting of the plaintiff’s quadriceps and calf muscles due to the plaintiff using his left leg less and relying on his right leg more. He measured the plaintiff’s right leg and left leg. His right knee was 35 centimetres, and his left knee was 32.5 centimetres. His right calf was about 45 centimetres and his left calf was 43 centimetres measured about 14 centimetres above the upper border of the patella.[5]
[5]PCB 35
20 The plaintiff has been examined by a number of medical practitioners post the surgery. A consistent picture emerges from those medical examinations that the plaintiff has obtained a very good result following surgery and is now functioning at a tolerably good level.
21 The plaintiff was referred to Mr Wilde, orthopaedic surgeon, who examined him on a medico-legal basis on 19 December 2012. On examination, Mr Wilde noted that the plaintiff limped after walking around his rooms for about a minute. Otherwise, his examination was unremarkable. He considered that the surgery had given the plaintiff a satisfactory outcome. He considered that the plaintiff’s prognosis was good, although he considered that the plaintiff might experience discomfort and pain around his left hip from time to time, and he might need to intermittently take analgesic medication. He made the same observations regarding future medical treatment as Mr Owen, but he added that in the longer term if the hip replacement wore out, revision surgery might be necessary. He did not say that it would wear out or when it would wear out.[6]
[6]PCB 50-52
22 The defendant had the plaintiff medically examined. I propose to refer to only those medical examinations which occurred following the surgery. Dr Sillcock, occupational physician, examined the plaintiff on 22 October 2009, some nine or so months after the surgery. The plaintiff told her that he was much better following the surgery; was able to walk quite well and could walk for about an hour; had a little pain over the incision with numbness; was woken by pain in the region of the scar every two hours or so; has stiffness in his hip in the mornings which eases; experiences stiffness after sitting for 15 minutes or so; has some difficulty going up and down stairs and slopes; sits down when putting on his pants, shoes and socks, is able to mow his lawns, but unable to do much home maintenance.
23 Dr Sillcock appears to have devoted the balance of her opinion to the plaintiff’s capacity to work. She was of the opinion that the plaintiff had a work capacity at that stage and could engage in his pre-injury employment with modifications, for example, not lifting in excess of 10 kilograms; avoiding prolonged sitting or standing, and avoiding squatting or crouching. She considered that the plaintiff had made a good recovery with a little pain and some limitation of movement.[7]
[7]DCB 22-27
24 Dr Yong, occupational physician, examined the plaintiff on 14 December 2010. The plaintiff told him that his capacity to sit, stand, walk and drive a car were unrestricted, and otherwise, he is independent in his activities of daily living. He gave a similar opinion to Dr Sillcock regarding the plaintiff’s capacity for work, that being that the plaintiff could return to work, but should avoid lifting over 10 kilograms and should avoid squatting or crouching. He did not consider that he was fit for his pre-injury work, which again fits in with the opinion of Dr Sillcock, who spoke of the necessity for the plaintiff to return to work with modifications.[8]
[8]DCB 32-35
25 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 3 August 2011. The plaintiff told him that he still has some pain over the lateral aspect of his hip; the pain was mild, although troublesome at night if he lay on his left hip; he walked with a limp and could walk about six blocks; was able to climb stairs using a rail, but had no particular problem putting on his shoes and socks or sitting or using public transport. Mr Shannon was asked to undertake an impairment assessment rather than a full medico-legal assessment. The only other useful observation he made was that the prognosis for the plaintiff’s left hip is that it will remain satisfactory for a number of years.[9]
[9]DCB 47-48
26 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 11 April 2013. The plaintiff told Mr Dooley that he experienced intermittent pain around the region of the upper lateral left side, trochanteric and buttock regions; he found it difficult to walk reasonable distances and on inclines; he uses Panadol for pain relief; he paces himself doing household chores and mowing the lawns, and that he could drive a car. Mr Dooley noted wasting of the left thigh and buttock musculature. He considered that the plaintiff would continue to note intermittent pain in his left buttock and upper thigh. He did not expect his left hip to deteriorate, and on balance, he would not require any specific treatment in the future.[10]
[10]DCB 55-56. Mr Griffin informed me that the defendant did not rely on Mr Dooley's opinion that the plaintiff had not suffered a compensable injury.
27 Mr Griffin cross-examined the plaintiff. It was my impression that the plaintiff did not significantly depart from the substance of the histories recorded by each of the examining medical practitioners whose examinations I have referred to. However, Mr Griffin put a number of assessment reports to the plaintiff which were essentially functional assessments. One was a history recorded by Mr Frank Imbesi of a rehabilitation provider known as AMS. The assessment was undertaken on 27 January 2010, which is about one year following the surgery. At that stage, the plaintiff gave a history that he could walk up to 3 hours per day comfortably; his condition had improved significantly since he had the surgery; he was experiencing only slight hip pain; on a scale of 1 to 10 he rated his pain as 1 on that scale; he avoided heavy lifting and strenuous activity, and he denied any neurological symptoms such as paresthesia, numbness or referred leg pain.[11]
[11]DCB 59
28 The upshot of what I have gleaned from the examinations is that the plaintiff was suffering significant pain, interference with his mobility and interference with his capacity to work through the period from 2004 to January 2009 when he had the surgery. Following the surgery, he has experienced significant improvement, but has been left with some residual problems which appear to be some pain in his hip and over the scar; interference with his sleep when he sleeps on his left hip; some interference with his mobility, and some wasting of the musculature left thigh, buttock and calf.
29 Furthermore, the preponderance of the medical evidence is that the plaintiff has a residual capacity for work, and could work in his pre-injury work with the modifications referred to by Dr Sillcock and Dr Yong. Indeed, Mr Owen considered that the plaintiff could go back to arduous work when he described the plaintiff as having capacity to virtually do any work he wanted to do. Perhaps Mr Owen was overly optimistic when it is contrasted with other opinions, such as the opinions of the experts in rehabilitation, namely, Dr Sillcock and Dr Yong. However, he reviewed the plaintiff with the benefit of x‑rays, which I consider probably puts him in the best position to comment on the plaintiff's rate of recovery and return to function.
The Plaintiff's consequences
30 The plaintiff is in many ways an unusual man because he considered that his work was his life. That resonates throughout the reports of Dr Chong,[12] who noted that the plaintiff’s siblings are deceased, and that he has very little, if anything to do with his nephews and nieces. He apparently has one friend who he sees on Sundays, and otherwise cherished his working life because it was also his social life. It is something which the plaintiff obviously misses to such a degree that Dr Chong noted that his psychological state had suffered because he was no longer able to work.
[12]PCB 28-39
31 The plaintiff was able to rehabilitate himself following the surgery, to the extent that he was able to return to work in March 2010 working two hours per day, three days per week. His duties included mopping, picking up papers in the yard and driving a vehicle to pick up parts and run messages. By August 2010, he increased his hours to 30 hours per week, but in November 2010, he was informed that there was no more work for him, and he was laid off. His employment was terminated by the defendant by letter dated 19 January 2011.[13]
[13]DCB 88
32 In his affidavits sworn 7 November 2011 and 13 May 2013, the plaintiff said that he has a constant background level of pain in his hip which worsens, for example, by walking for 10 to 15 minutes or bending, lifting or crouching; walking on slopes and stairs; in cold weather and at night; by sitting in the same position which causes his hip to become stiff and more painful; and with dressing, particularly getting his left leg into long pants and putting on his shoes.
33 The plaintiff is able to do his general house work slowly; mow his lawns, but not in one session; has trouble doing house maintenance, for example, using a ladder, and does his shopping in small lots.[14]
[14]PCB 10-21
34 In addition to the social life he had in his work with the defendant, he is no longer able to attend the Reservoir Leisure Centre because he is not able to afford the fees which amount to something like $400 annually. Mr Griffin put to the plaintiff that he has received two lump sums, and is in receipt of superannuation. For the plaintiff, who has to survive on what is probably a modest weekly income, I can well understand how a fee of that size appears unaffordable. Like his work, the plaintiff obtained some measure of enjoyable social life at the Centre communing with others who he met there.[15]
[15]Transcript 10-12 and 31-32
Serious injury
35 I am not satisfied that the pain and suffering consequences described by the plaintiff are “serious”.
36 The plaintiff has described an interference with his social life because of the loss of his employment and his inability to attend the Centre. He has retained a significant level of mobility, but he does suffer interference with his capacity to walk distances, on inclines and up and down stairs, and with his sleep. He does not take any medication of any significance, nor does he require any medical treatment save for reviews to assess how the hip replacement is functioning.
37 The plaintiff has a residual capacity to work, as described by Dr Sillcock and Dr Yong, and of course, by Mr Owen. I gained the strong impression that if the defendant had not terminated the plaintiff’s employment, he would still be working quite happily with the defendant. It was not my impression that he gave any evidence to suggest that he does not have a significant residual capacity for his pre-injury work with the types of modifications described by Dr Sillcock and Dr Yong.
38 In Dwyer v Calco Timbers Pty Ltd (No 2),[16] Ashley JA observed that impairment and the consequences resulting from the impairment is concerned with what has been lost, but the significance of what is lost relevant to the seriousness of consequences may be informed to an extent by what has been retained.[17]
[16][2008] VSCA 260
[17]paragraph 27
39 Furthermore, I have followed the approach enunciated by Tate JA in Sutton v Laminex Group Pty Limited[18] in determining whether the pain and suffering consequences meet the statutory test.
[18][2011] VSCA 52, and in particular, at paragraphs 46 and 114
40 I have read the transcript of the plaintiff’s evidence, the documents tendered from the Court Books, and I have paid due regard to the submissions made by Mr Wicks and Mr Griffin.
41 It appears to me that what the plaintiff has lost is summarised in paragraph 36 above, but it also appears to me that he has retained a significant level of mobility and capacity to return to suitable employment. This seems to resonate loudly in the medical evidence I have reviewed. I think at best the pain and suffering consequences suffered by the plaintiff can be described as approaching significant or marked.
42 What is compelling is that the medical examinations are all characterised by the examiner describing the plaintiff’s recovery as being very good and the plaintiff having significant capacity to function in an overall sense. I have balanced my impressions of the degree of the plaintiff’s losses by what he has retained, and in particular, by what the medical examiners consider the plaintiff has retained.
Conclusion
43 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff’s Originating Motion be dismissed.
44 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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