Lai v Toyota Motor Corporation Australia Ltd
[2013] VCC 601
•31 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-12-00683
| LOM LAI | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 May 2013 | |
DATE OF JUDGMENT: | 31 May 2013 | |
CASE MAY BE CITED AS: | Lai v Toyota Motor Corporation Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 601 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S J Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms J M Forbes | Minter Ellison |
HIS HONOUR:
1 This is an application which relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). The body function relied upon by the plaintiff is the function of the low back and the injury is described as disc and facet joint degeneration rendered symptomatic. The application seeks leave to commence proceedings for pain and suffering damages only.
2 Section 134AB(38)(c) of the Act states:
“an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
3 It is admitted by the defendant that the plaintiff suffered a compensable injury on or about 19 October 2005. The defendant has indicated that the only issue for determination by me is whether or not the compensable injury and the resultant body impairment of the low back meet the test of “serious injury”. It was described as a “range” case, and I take it from that, the sole defence is that the consequences do not meet a standard of being “at least very considerable”. [1]
[1]Transcript (“T”)4 and T52
4 I note the recent repeal of s135AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required.
5 It has been said often that a serious injury application necessarily involves a substantial amount of “value judgment” which does not of itself admit of detailed reasoning that is explicit. In large part these are applications involving matters of value judgment, opinion or impression. [2]
[2]Woolworths vWarfe [2013] VSCA 22, at paragraphs 129 and 130
The Plaintiff’s evidence
6 The plaintiff is a man aged fifty-seven who has an exemplary work record after fleeing East Timor and arriving in this country in 1983. He has been in continuous industrial employment since that time and has been with the defendant performing factory work since 1989. He has had different duties working for the defendant and has been highly enough regarded to have been promoted to a team leader in 1992. He has worked in various sections of the factory and was injured when in the CKD department. That work is best illustrated in some photographs tendered by the plaintiff.[3]
[3]Plaintiff’s Court Book (“PCB”) 82 and 83
7 His job involved a great deal of bending and lifting of boxes of nuts, bolts and screws[4] from positions that the photographs show are awkward. He suffered a sudden onset of low back pain on the subject date. This has resulted in degenerative changes in the spine being rendered symptomatic.
[4]T51
8 The plaintiff is the only witness who has been required for cross-examination. He has remained in full-time employment since being injured. He has been moved from the CKD section to the north dock section and then to the logistics section in the supply area at the defendant’s factory. These moves have been made by, he describes, “the bosses”. He was transferred for reasons that involved less bending and lifting demands on his back or, in other words, lighter duties.[5]
[5]T31
9 Credit was not put in issue. My assessment of the plaintiff could not be better described than by adopting the words of the only doctor who has seen the plaintiff on behalf of the defendant in the last few years. That doctor is Mr Michael Dooley, an orthopaedic surgeon. He reported on 13 May 2003 and described the plaintiff as “a sensible and genuine historian”. He quotes then from a letter that was obviously based on information from the employer which contains this passage: “He is described as a good employee with a good work ethic who performs his full time hours together with overtime.” Mr Dooley thought he was “not exaggerating his symptoms”. He notes that it is clear “he enjoys his work and that he is proud of the vehicles that his motor vehicle company produces”.[6]
[6]Defendant’s Court Book (“DCB”) 24
10 I found the plaintiff entirely credible and a highly motivated man. I accept his evidence about his symptoms and restrictions. He has a very stoical and commendable attitude to his injury. I find also that he has made every endeavour to limit his activities outside of the workplace in order to maintain his job. He has cut down on his social life, sporting activities, recreations and general activities in order to be able to get to work the next day. He needs a weekend’s rest to allow him to be ready for the week ahead at work each Monday.
Medical evidence
11 All the doctors in this case really describe his injuries in similar terms and in view of the repeal of s134AE of the Act, I do not intend quoting them at length, given that this application is contested on one ground only.
12 His general practitioner of many years is a Dr Aouad and he describes the lower back injury as a musculoligamentous strain with aggravation of degenerative changes.[7] He said the condition was stabilised.[8]
[7]PCB 40 and PCB 84
[8]PCB 39
13 A company doctor referred the plaintiff to a Dr Robert Gassin, muscular skeletal physician, in late 2005. Dr Gassin described the plaintiff’s injuries as mechanical low back strain with degenerative structures being rendered symptomatic by work. In the long term he needed to avoid work involving repetitive bending and twisting, heavy pushing and lifting.[9] Sensibly the plaintiff has followed this advice as best he can at work and home over the last seven and a half years.
[9]DCB 50
14 Mr Gerald Moran, orthopaedic surgeon, reported on 10 August 2010 that the plaintiff had aggravated disc and facet joint degeneration in his lumbar spine and it was a stabilised condition.[10]
[10]PCB 53
15 Mr Kevin King, an orthopaedic surgeon, saw the plaintiff in December last year, and he described that on 19 October 2005:
“He put extra strain on already mildly degenerate but completely symptomless degenerative changes in lumbar discs and associated ligamentous structures – sustaining the onset of low back pain and some sciatica for the first time.”[11]
He thought the condition was stable.[12]
[11]PCB 64
[12]PCB 64
16 Dr N Rose, a psychiatrist, also saw the plaintiff in 2010 but he is of very limited relevance to this paragraph (a) application.[13]
[13]DCB 1
17 Mr Dooley is the only specialist to have examined the plaintiff for the defendant recently. He reports that the plaintiff has “naturally occurring and age related degenerative disease of the mid to lower lumbar region”. He felt that in relation to his work, “bending and lifting et cetera on October 19, 2005, Mr Lai aggravated his underlying condition”. He thought the condition stabilised and the ongoing symptoms that he had by way of low-back pain and occasional leg pain “are consistent with symptomatic degenerative disc disease of the low lumbar spine”.[14] The plaintiff could work where it does not involve regular heavy lifting or a lot of bending, twisting et cetera.
[14]DCB 23 and DCB 24
18 There is no need to further discuss the medical opinions in this case in view of the concession made by the defendant. The above references give the medical context of injury resulting in the impairment of the function of the low back.
Conclusions
19 The overall conclusion I have reached after reading the plaintiff’s two affidavits and the affidavit of his wife is that this man copes with ongoing employment by carefully limiting his activities both at work and in his life outside work. He has a single mindedness to do whatever it takes by way of reducing activities away from work so he can keep working. That reduction is very considerable in terms of loss of enjoyment of life.
20 He is worried about the effects of being injured on his work future and refers to it in both affidavits.[15] That worry for a stoic and determined worker is a very considerable consequence, given it is in the context of a stable condition still giving constant daily pain nearly eight years after being injured. He is a man who needed an interpreter to give evidence and his worry about future employment now that he is injured is very real and well founded.
[15]PCB 22 and PCB 26
21 He is motivated enough to follow the advice of the company physician, Dr Gassin, and keep himself on permanent restricted or light duties since October 2005, avoiding repetitive bending, twisting and heavy pushing and lifting.[16] He suffers constant low back pain and finds that by the end of a working day it is worse. In particular, at the end of a working week he is worse again and he spends his weekends resting and recovering to prepare for the following week at work.[17] It is testimony to his motivation and the sensible limitations he puts on his life that he has been able to continue in full time work, albeit on restricted duties, over the last eight or so years. He has been able to work full-time hours and to do overtime when asked on these restricted duties. Both are a credit to his commonsense and motivation, and do not reflect any lessened symptoms.
[16]PCB 22
[17]PCB 22
22 In the circumstances of this case, I reject the defendant’s argument that his capacity to keep working points to an impairment of body function that is not very considerable. In my view, the overtime he does is in the context of him feeling a concern about obeying his bosses and keeping the employer happy with him.[18] He can do this work because he takes painkillers and severely limits his outside activities so he can rest up for work.
[18]T35, lines 24-25; T36 lines 12-15, 22-24, 28-30; T40 lines 4-5
23 I find that if this man stepped outside the limitations that have been put on him by his doctors and accepted by his employer, he would probably be out of work very promptly. Given that he is fifty-seven years old, has no qualifications for work other than for manual type duties, he faces a situation where he can only keep on worrying about the future, and keep on working, by very considerably reducing his outside work activities and personal interests.
24 Accordingly, I find that the major consequence for this plaintiff is that he must limit his personal, family and recreational life to a very considerable extent in order to keep his job. He has continued to do that over the last eight years and, given his motivation, he probably will continue to do so. Nevertheless, in my view, he pays a price for that determination to keep working that amounts to very considerable consequences in terms of enjoyment of life.
25 His treatment has all been conservative. His injury is confirmed radiologically. He has been treated by several general practitioners including company doctors. He has been referred to the physician, Dr Gassin, by the company doctor for some form of more specialised occupational treatment. Gym, acupuncture and branch blocks are mentioned by Dr Gassin.[19] He has taken different painkilling medication and has also had massage and laser therapy.[20] He has also sought the advantage of some alternative medical treatments.[21] There is no suggestion of any surgical or invasive treatment that would assist him, so the plaintiff has sensibly followed the conservative treatment regimes suggested. He has recently needed a higher level of painkillers in the prescription drug Mobic.
[19]DCB 17, PCB 45, PCB 47
[20]PCB 22
[21]PCB 28
26 It is a very considerable consequence, in my view, for a man with no skills to be worried over nearly eight years and indefinitely into the future that he is limited to restricted or light duties. While that has not been reflective of a loss of income to date, it is nevertheless a very considerable impairment of an unskilled man’s earning capacity. His concern about it is understandable. He has hung on to the employment at the defendant’s factory due to his being able to find light duties through now three different sections at the premises. I find that without these considerable restrictions, he would not have stayed on in the various jobs.
27 He works in effect with something of a perimeter fence around the duties that he can safely undertake. To work he needs the help of painkillers.[22] Nevertheless, it is an impairment of earning capacity that, while not reflective of the losses required to be demonstrated for purposes of leave to sue for pecuniary loss damages, is very real for him on the open employment market. The concerns he has about his future are very considerable worries given his limited language skills and his age.
[22]PCB 22 and 28, T42-T43
28 The consequences of constant pain have been the subject of a number of recent decisions, including the matter of Aburrow v Network Personnel Pty Ltd.[23] I find that the pain the plaintiff suffers from is constant, and when one looks at the matters to be taken into account as outlined in that decision, it amounts to very considerable consequences[24] for the plaintiff.
[23] [2013] VSCA 46
[24]Aburrow (supra) at paragraphs [19] and [20]
29 This plaintiff’s sleep is affected. He wakes up for half an hour to an hour most nights.[25] His performance of household and family duties is limited.[26] His recreational activities have been, in my view, impacted on and they comprise both his sporting interests and, to a lesser extent, fishing.[27] There have been effects on his social life that are of considerable importance to him and his family.[28] He describes briefly the effect on his sexual relationship with his wife, but the brevity of the note about that personal matter does not diminish its importance.[29] I find that these consequences of his impaired back function are very considerable.
[25]T48
[26]PCB 22-23
[27]PCB 23; PCB 28
[28]PCB 23; PCB 28-29
[29]PCB 24
30 However, in many ways, the most serious consequence for this man is that he must live his life very differently once he comes home from work every night and over the weekends in order simply to maintain employment. The description of how he is required to do so cannot be better illustrated than his inability at times to even sit down at the dinner table because of back pain after a day’s work.[30] I accept his wife’s evidence that the pain and his accommodation of it by altering his life have made him “a different man” who is “far less positive or happy”.[31]
[30]PCB 23, PCB 27 and PCB 32
[31]PCB 32-33
31 Another example is the medical advice to walk. He does so. At times he has to lie down to rest in the street.[32] For a man to have to go to these lengths, and those set out in his two affidavits and that of his wife, indicates very considerable interference with his enjoyment of anything like a normal life. Instead of being able to just come home and relax after a day’s work, an entitlement that can be easily taken for granted, he has to continually adjust and limit his life to accommodate the impairment of his back function.
[32]T49
32 The thrust of the defendant’s submission is that the plaintiff has been able to not only work full time over the last eight or so years, but has done overtime. He is not compelled legally to do the overtime. In fact overtime has increased in dollar figures, at least in recent years.[33] Rates of pay may not have changed, but without any detailed breakdown of hours, I accept that the plaintiff has been working more overtime in the last two financial years in particular. It is argued working overtime would limit his outside activities anyway, as the extended hours at work cut down the opportunity for other things.
[33]DCB 25-26
33 I was taken to a number of authorities where a post injury capacity for full time alternative employment is discussed in terms of judging whether an injury is “serious”.[34] The passages most applicable to this case are paragraphs 77 to 79 of Sutton.[35] In the present case, there is a body of relevant evidence, largely unchallenged, that leads to the conclusion that the plaintiff’s ability to carry out other duties should not “be relied upon, as the respondent (defendant) sought to do, as itself providing some evidence that the pain and suffering consequences of the appellant’s (plaintiff) impairment have not met the threshold”.[36]
[34]See Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
[35]Supra
[36]See Sutton v Laminex Group Pty Ltd (supra), at paragraph 79
34 I did not accept that his residual capacity to still work is persuasive in this case. There is more to life than just working.
35 Finally, the comments of Nettle J in Dwyer v Calco Timbers Pty Ltd (No 2)[37] apply to the plaintiff here. He can only continue at work on restricted duties over the years by putting up with his pain, taking daily painkillers and giving up much of what could be considered a normal enjoyment of life outside work. These factors add up to very considerable consequences in this case.
[37][2008] VSCA 260, at paragraph 3
36 For the reasons above, I grant the plaintiff leave to bring proceedings for the recovery of pain and suffering damages.
37 I will hear the parties as to costs.
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