Langley v Allens Arthur Robinson Operations Pty Ltd
[2010] VCC 1030
•6 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05494
| PAUL LANGLEY | Plaintiff |
| v | |
| ALLENS ARTHUR ROBINSON OPERATIONS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 August 2010 |
| DATE OF JUDGMENT: | 6 August 2010 |
| CASE MAY BE CITED AS: | Langley v Allens Arthur Robinson Operations Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1030 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION ACT – Accident Compensation Act 1985 – injury to the lower back – whether the consequences of the compensable injury were at least very considerable: section 134AB38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with | Slater & Gordon |
| Ms M Dib | ||
| For the Defendants | Mr D Myers | Thomson Playford Cutlers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 19 November 2009 by which the plaintiff applies for leave pursuant to s.134AB(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 first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr P Rattray, QC, appeared with Ms M Dib of counsel for the plaintiff and Mr D Myers of counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is his lower back.
5 The following evidence was adduced during the hearing:
(a) The plaintiff gave evidence and was cross-examined; (b) The plaintiff tendered his Court Book ("PCB"), pages 13-19; 25-26; 47-49; 55-60; 63-70; 72-78; 83-85; 88 and 93-105: Exhibit A; (c) The defendants tendered their Court Book ("DCB"), pages 1-2 and 163-211: Exhibit 1. 6 The application is brought under the definition of “serious injury” contained sub-s.(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-s.(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 impairment or losses of a body function, may fairly be described as being more than "significant" or "marked" and as being as least "very considerable".
(d)
Sub-s.(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 and 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 sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622, at paragraph 11
8 I am required by s.344AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born on 26 October 1959. He is now fifty years of age. He is the father of two children. He is separated from his partner.
10 In about April 2003, the plaintiff commenced employment with the first defendant as a maintenance supervisor. He was required to undertake maintenance and repairs at the first defendant’s office premises at 500 Collins Street, Melbourne.
11 On 16 November 2004, the plaintiff entered a goods lift. When the goods lift reached the 22nd floor, it suddenly dropped five floors, before jerking to a sudden halt on the 17th floor. As a consequence, the plaintiff wrenched his lower back and immediately experienced stabbing pain in his lower back.
The Plaintiff's Medical Treatment
12 There was practically nothing in the medical evidence which was controversial. Therefore, I think it is unnecessary to rehearse the medical evidence in any significant detail save for the following summary:
•
The plaintiff saw Dr Czuba, general practitioner, on 16 November 2004.[2] He referred the plaintiff to have an x-ray which was taken on 16 November 2004 which showed advanced spondylosis, more prominent at L3-4.[3]
•
Dr Czuba prescribed the plaintiff analgesics. He referred him to have physiotherapy,[4] and he later referred the plaintiff to Mr Bittar, neurosurgeon.
•
The plaintiff saw Mr Bittar on 24 March 2005, and again on 19 January 2006. He referred the plaintiff to have CT scan and an MRI scan, both of which were taken on 12 April 2005.
•
Mr Bittar referred the plaintiff to Dr Mitchell, physician. The plaintiff first saw him in May 2005. He gave the plaintiff a diagnostic block on 9 June 2005, and again on 5 July 2005, which reduced his pain significantly.[5] He subsequently performed a radio-frequency neurotomy on the plaintiff’s lower back on 15 August 2005, which reduced the plaintiff’s pain by about 50 percent.
•
Dr Mitchell was of the opinion that the plaintiff showed discogenic signs in the L3-4 disc. He recommended that the plaintiff undergo a discogram. He referred the plaintiff to Dr Verrills, physician, to perform the discogram.
•
Dr Verrills performed a provocative discogram on the plaintiff in November 2005. The results of it were negative, that is, it did not support the assumption of Dr Mitchell that the plaintiff had suffered disc damage in his lumbar spine.[6]
•
The plaintiff returned to Mr Bittar on 19 January 2006. Mr Bittar was aware of the treatment provided to the plaintiff by Dr Mitchell and Dr Verrills. After reviewing the plaintiff, he was of the opinion that there was no role for surgery in his treatment. He advised the plaintiff to undergo treatment in the form of hydrotherapy, Pilates and core strengthening exercises. He advised him that he should walk as much as possible, and in relation to his capacity for work, that he should not lift anything more than 4 to 5 kilograms and should avoid twisting whilst bending.[7]
[2] The plaintiff also saw Dr Hipolito, general practitioner. It would appear that he was unable to see Dr Czuba at his rooms in William Street, Melbourne. Dr Czuba wrote to Dr Hipolito on 20 June 2005 (PCB 50) providing him with a history of the plaintiff's injury and treatment, presumably so that Dr Hipolito could gain an understanding of the plaintiff's predicament if he was to treat him. Dr Hipolito provided a report dated 27 June 2007 - at PCB 61-62
[3] PCB 47
[4] PCB 15 and 92
[5] PCB 90
[6] PCB 84
[7] PCB 72
13 The plaintiff continues to see Dr Czuba. He prescribes the plaintiff Panadeine Forte for pain relief. The plaintiff estimates that he has taken 4 to 6 Panadeine on occasions. On other occasions he has taken less, and on some occasions he has successfully either taken a minimal dose or none at all. Otherwise, the plaintiff is not having any treatment.[8]
[8] The reports of Dr Czuba, at PCB 55-60, demonstrate that the plaintiff had been prescribed Tramal, Prexig and Valium, as well as Panadeine Forte to control his back pain
14 During cross-examination, the plaintiff said that he would like to continue his swimming which might be of benefit to him in dealing with the pain he experiences in his lower back. However, he has not done so because he is unable to afford the cost of attending a swimming pool, and he has not undertaken any gymnasium exercise for the same reason.
15 The plaintiff said that he has an exercise ball which is approximately 3 feet in diameter which he used for undertaking exercises as instructed by a physiotherapist. He also has a bicycle. Both the exercise ball and the bicycle are in storage at Rosanna.
16 The plaintiff said that he lives in a caravan in the Wandong Caravan Park, Broadhurst Lane, Wandong. The caravan is too small to accommodate the exercise ball, and it was my impression that he has nowhere to store the bicycle safely at the caravan park. The caravan park is 50 kilometres from Rosanna.
The Medical Evidence
17 There was little controversy in the medical evidence regarding the injury suffered by the plaintiff.
18 The preponderance of the medical evidence points to the plaintiff having suffered an injury to his lumbar spine.[9] Neither Mr Rattray nor Mr Myers contended other than that the plaintiff had suffered a compensable injury which resulted in an impairment of the function of the plaintiff’s lumbar spine, with pain and suffering consequences for him. However, where they parted company was whether the pain and suffering consequences met the statutory test.
[9] The plaintiff's injury was described in the following ways: Dr Czuba did not provide a specific diagnosis, but considered that the plaintiff’s lower back pain was due to spondylosis (at PCB 56); Mr Bittar gave a differential diagnosis of musculoligamentous injury; intervertebral disc injury and facet joint and sacroiliac joint pain (at PCB 56 and 74); Dr Mitchell appears to have considered that the plaintiff's pain was coming from the L3-4 disc (at PCB 88); and by inference, so did Dr Verrills (at PCB 83-85); Mr King, orthopaedic surgeon, was of the opinion that the plaintiff suffered injury to his lumbar discs and associated musculoligamentous structures (at PCB 98); Dr Sillcock, occupational physician, was of the opinion that the plaintiff was suffering from mechanical lower back pain (at PCB 103); Mr Dooley, orthopaedic surgeon, was of the opinion that the plaintiff had aggravated pre-existing
19 In addition to the foregoing, all of the medical practitioners I have just referred to were also of the opinion that the plaintiff was not fit for his pre-injury employment with the first defendant.
20 Dr Czuba imposed restrictions on the plaintiff's capacity to work. He was of the opinion that the plaintiff should not engage in heavy lifting over 5 kilograms from floor level; should not engage in heavy lifting of weights of 10 kilograms from bench level; should avoid lifting and twisting of his back repeatedly; should have the opportunity to walk and sit if needed, and should be provided with standard rest breaks during the course of his working day.10
21 Mr King, Dr Sillcock and Mr O'Brien were of the same opinion as Dr Czuba regarding the restrictions which needed to be placed on the plaintiff's working conditions if he were able to return to work.11 Mr O'Brien did not accept that the cause of the plaintiff's incapacity for work was solely due to the impairment of function of his lower back, but was also due to psychosocial issues.12
Serious Injury
22 Mr Myers informed me that the only issue raised by the defendants which I needed to determine was whether the pain and suffering consequences contended for by the plaintiff met the statutory test.
23 Mr Myers conceded that the plaintiff had suffered a compensable injury which
lumbosacral disc degeneration (at DCB 208-209), and Mr O'Brien, orthopaedic surgeon, was of the
opinion that the plaintiff was suffering from symptomatic lumbar spondylosis (at DCB 191).
PCB 59
Mr King (at PCB 98); Dr Sillcock (at PCB 104) and Mr O'Brien (at DCB 192).
DCB 191-192
had resulted in the plaintiff suffering an impairment of the function of his lower back. He also conceded that the plaintiff had suffered some pain and suffering consequences.
24 Mr Myers cross-examined the plaintiff regarding the onset of depression and whether the depression made his symptoms worse. The plaintiff admitted that he had suffered depression, but denied that the depression amplified his symptoms in any way.
25 In any event, the extent to which the plaintiff suffered from depression was not something which Mr Myers pressed. Therefore, I do not need to engage in what has been described as disentangling. I should add that if I had been invited to do so, I would have concluded comfortably that there was no need for any disentangling, because the consequences of the impairment of the function of the plaintiff’s lower back were, in my opinion, solely derived from the compensable injury and not from any secondary psychiatric problems encountered by the plaintiff.
26 After initially suffering injury, the plaintiff was absent from his employment until 27 November 2004. He returned to work on alternative duties of a very light nature. In about April 2005, he reduced his hours to four hours per day, two days per week. He was subsequently able to increase his hours to six hours per day, two days per week and then five days per week.
27 In about May 2006, the plaintiff attempted to lift two floor tiles weighing about 4 kilograms. He suffered a dramatic increase in his pain. He was absent from his employment thereafter. His employment was subsequently terminated.
28 The plaintiff obtained alternative employment. He was next employed by Powergas Pty Ltd as a dock assistant on 7 January 2008. He worked 38 hours per week with some overtime. At the time when he was employed, he informed that employee of the restrictions imposed upon him by Dr Czuba. He worked within those restrictions.
29 The plaintiff was dismissed from that employment because he removed stock belonging to the employer without permission and payment.[13]
[13] DCB 1-2
30 The plaintiff subsequently worked doing some window cleaning for a couple of months. The tasks he performed involved cleaning the windows of new houses.
31 The plaintiff was next employed by Global Traffic Group in about February 2010. The tasks he was required to perform involved him in setting up signs and directing traffic.
32 The plaintiff left that employment to take up employment with United Gas in early June 2010. The tasks he is required to perform involve him in filling gas bottles. I understood from the plaintiff's evidence that the gas bottles are in fact gas cylinders of about 4 feet in height.
33 The plaintiff described filling the cylinders, and then moving them by rolling them on their bottom edge. He also loads the cylinders onto trucks; does some deliveries, and spray paints cylinders. He estimated that an empty cylinder weighs about 35 kilograms and when full weighs about 80 kilograms.
34 The plaintiff said that the tasks he is required to perform are within the range of the restrictions imposed upon him by Dr Czuba, and I infer from his evidence that it is lighter work than he was performing with the first defendant before he suffered injury to his lower back.
35 The plaintiff's evidence, in his two affidavits and given orally, was to the effect that he suffers persistent pain in his lower back. He uses Panadeine Forte for pain relief frequently.
36 In May 2010, the plaintiff suffered a dramatic flare-up of lower back pain. He sought medical treatment. The medical practitioner he saw referred him to the Northern Hospital where he was taken by ambulance. He was given pain- relieving medication and acupuncture, and was discharged later in the night.[14]
[14] PCB 63
37 In his first affidavit sworn 7 July 2009, the plaintiff described himself as being fit and active prior to suffering injury to his lower back. He swam about 2.5 kilometres, swimming nearly every day; he rode a push bike for 30 minutes to an hour every couple of days; he jogged occasionally; he attended a gymnasium almost every day to do a light weight routine and enjoyed a social game of golf. Although not a member of a club, he estimated that he was playing well enough to consider that a handicap of about 10 would have applied to his game. He went river fishing once every few weeks. He had a reasonable social life with friends.
38 Mr Myers challenged the extent to which the plaintiff's injury has impaired his capacity to undertake domestic, recreational and sporting activities.
39 The plaintiff admitted that he is able to look after his personal hygiene, cook and clean. However, said that he has given away swimming, push bike riding, jogging, attending a gymnasium, playing golf and fishing. His social life has likewise suffered. He said he has tried to swing a golf club, but it was painful when he did, and he last went fishing a year ago with his two sons.
40 One of the reasons given by the plaintiff for not be able to go swimming or attended a gymnasium is the cost of accessing a pool and a gymnasium. However, the inference I draw from the plaintiff's evidence is that because he has restrictions placed upon him by Dr Czuba of the kind already described, and because he is in constant pain and requires the use of Panadeine forte, that it is unlikely that he would be able to engage in those activities to any significant extent.
41 The plaintiff's credit was not attacked in any serious way. Rather, Mr Myers quite properly chose to attack the extent to which the plaintiff has been affected by the compensable injury. I accept the plaintiff’s evidence in all respects.
42 Mr Myers referred me to Haden Engineering Pty Ltd v McKinnon,[15] and in particular, to the very helpful observations made by Maxwell P, of the factors which are worthy of consideration when assessing whether an application based upon pain and suffering consequences only meets the statutory test.[16]
[15] [2010] VSCA 69
[16] paragraph 16
43 However, I do not read those helpful observations as amounting to the only considerations which a trial judge is to take into account in determining the pain and suffering consequences of a compensable injury.
44 Nettle JA pointed to the difficulties facing a trial judge in assessing whether the consequences of a compensable injury are sufficient to meet the statutory test. He observed that in order for a compensable injury to have consequences which amount to a serious injury is a question of fact, degree and value judgment. He considered that comparisons with other cases and checklists of relevant considerations were at best of limited utility.[17]
[17] paragraph 51, and Buchanan JA at paragraph 48
45 It occurs to me that the observations made by both Maxwell P and Nettle JA are reconcilable. In my experience, trial judges look for factors which, if present, or indeed absent, may be compelling in favour or against the conclusion that the consequences of a compensable injury meet the statutory test.
46 Often the presence of persistent pain and the need for medical treatment with a loss of capacity to engage in pre-injury work and domestic, recreational, sporting and social activities speak of consequences which are to be considered in determining whether the statutory test has been met.
47 Whilst it is an impossible task to gather together a range of cases in order to make a comparison with other cases which is suggested by subsection (38)(c), I think the legislature intended that a trial judge attempt to determine the level at which the bar is set before the gateway to a common law claim for damages can be opened to the plaintiff.
48 For my own part, I consider that the observations made by Nettle JA that the test to be applied by the trial judge draws the trial judge into the realms of imprecision, impression and adjectival criteria in attempting to disclose a pathway of reasoning, describes the real difficulty facing a trial judge in a case of this kind, and more particularly, what factors impressed or did not impress the trial judge and how those factors which the judge accepts satisfy the statutory test.
49 I think there is great sense in what Winneke P, observed in Nichols v Robinson.[18] He observed that stating the basis for a finding that the statutory test has been met does not readily admit of explicit reasoning.
[18] [2001] VSCA 11 at paragraph 14. There, Winneke P was dealing with an appeal under s.93 of the Transport Accident Act 1986
50 I think there are hallmarks which stand out in applications for serious injury which a trial judge will recognize as being consistent with satisfaction of the statutory test. It is undoubtedly an imprecise task and one which has an attendant difficulty in the trial judge attempting to disclose a pathway of reasoning.
51 Although I do not believe that Mr Myers was submitting that I should apply any or all the factors referred to by Maxwell P, it seems to me that they are nonetheless a helpful starting point, but in order to undertake the task I am set properly, I must assess the plaintiff's evidence and determine whether the pain and suffering consequences, as they affect him, satisfy the statutory test after doing my best to have regard to subsection (38)(c).
52 I think the fact that the plaintiff has persistent pain; requires the frequent use of medication; cannot pursue his pre-injury employment; can only work with significant restrictions, and has lost the ability to engage in domestic, recreational, sporting and social activities which were the very fabric of his non-working life, are losses which I think have had a dramatic impact upon the plaintiff's life.
53 I do not accept that just because the plaintiff is working in alternative employment, that it weighs against a conclusion that he has suffered a serious injury. I do not accept that the two are irreconcilable. There are many instances where a worker is able to work in alternative employment, but has an actively symptomatic injury which demonstrably impacts upon his/her life in a dramatic way.[19]
[19] See the observations of Buchanan JA at paragraph 47
54 I accept that the plaintiff is able to work in alternative employment. I accept his evidence that it is lighter work than his pre-injury work. I accept that the restrictions imposed upon him by Dr Czuba are significant for a man whose working life was essentially as a manual labourer.
55 It is difficult to conclude otherwise than the pain and suffering consequences meet the statutory test for the reasons set out above, and I make that finding after making the relevant comparison with other cases.
Conclusion
56 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant.
57 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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