Lippelt v Rondo Building Services Pty Ltd
[2011] VCC 279
•8 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00789
| OTTO LIPPELT | Plaintiff |
| v | |
| RONDO BUILDING SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 February 2011 |
| DATE OF JUDGMENT: | 8 March 2011 |
| CASE MAY BE CITED AS: | Lippelt v Rondo Building Services Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 279 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – injury to the left arm – pain and suffering only – application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Slater & Gordon Ltd |
| For the Defendants | Mr N B Chamings | Thomsons Lawyers |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(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 first defendant on 26 September 2007.
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 s.134AB(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 injury to the left arm, the non-dominant arm.
6 The plaintiff relied upon two affidavits, sworn 25 November 2009 and 30 September 2010. The plaintiff was cross-examined. In addition, the plaintiff 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 s.134AB(37) of the Act.[1]
[1] S.134AB(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 first defendant on 26 September 2007;[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering;
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act, an impairment or loss of body function, in this case, the pain and suffering consequence: “… is, when judged by comparison with other cases in the range … fairly described as being more than significant or marked, and as being at least very considerable.”
9 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:[4]
“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. … .”[5]
[4] [2009] VSCA 181
[5] 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.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) of s.134AB(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.[7]
(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.[8]
[7] S.134AB(38)(j) of the Act
[8] 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 defendants 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.
The Plaintiff’s Evidence
15 In his first affidavit sworn on 25 November 2009, the plaintiff deposes that:
•
He was born on 4 July 1962 and is currently forty-seven years of age. He left school after completing Year 11 and worked at a steel supplier as a storeman and progressed to a product manager. Since then his employment history has included working as a product manager, managing personnel in the security industry, sales manager/ representative, and an accounts manager. In March 2007, he commenced working with the first defendant as a regional sales manager, which involved the sale of various roadside posts/aides.
•
On 26 September 2007, he injured his left arm whilst working with the first defendant. Some days prior, he had taken a display case home to take it to a trade show in Ballarat, and injured himself when lifting it into the back of his station wagon. The display case slipped back when he was putting it in the car and his left elbow hyper-extended and dislocated as a result. He experienced acute pain in his left arm.
•
After the incident, he rolled on his elbow to put it back in and then saw a general practitioner at the Greenvale Medical Centre. He was given painkillers. He continued working that day, despite experiencing a lot of left-arm pain. In the days following from the incident, he had ongoing left-arm pain. He was referred for an x-ray and an ultrasound, which he understands to have revealed that he had torn his left biceps tendon.
•
In October 2007, he was referred to Mr Roger Sutherland, orthopaedic surgeon. On 16 October 2007, Mr Sutherland operated on his left arm. He worked up until the surgery and after, though afterwards he initially worked from home so he could rest his arm.
•
Following the operation, he continued to experience arm pain and the area still looked deformed. He saw Mr Chris Pullen, orthopaedic surgeon, for a second opinion. Mr Pullen discussed further surgery, including possibly shortening the tendon. He has decided not to pursue this option because of the various risks involved.
•
His treating doctor is Dr Ravi Pachauri. He is taking medication for high blood pressure and high cholesterol. He no longer takes prescription painkillers as they cause stomach pain. He does sometimes take Panadol and Nurofen Plus. After the operation, he had a couple of physiotherapy sessions.
•
His left arm is now visually quite different from what it was prior to the incident. He often experiences pain in her left upper arm area and this pain extends from his elbow up to his shoulder. He is right-hand dominant. The pain increases when he uses his left arm. The bicep area of the arm sometimes feels as though it locks up and he can no longer lift heavy weights with his left arm. His left arm hurts even when he does simple things like grabbing a carton of milk from the fridge. His sleeping is affected and sometimes he has been woken with severe left- arm pain when he has rolled on it the wrong way. He has been a keen guitarist since he was a teenager. Whilst he can still play the guitar, he finds his left arm begins to ache after a while so he does not play it as much. He normally takes Nurofen Plus when he is going to play the guitar for any length of time. Prior to the incident, he used to enjoy motorcycle riding of a weekend, but now rides less often, because riding aggravates his left-arm pain. He used to enjoy playing a social game of golf, but now finds it too painful, and as a result, no longer participates in work golf days.
•
He recently separated from his partner of five years. His left-arm pain affected that relationship, in that sexual relations and heavier type housework could aggravate his arm pain. His partner did more of the heavier housework. He pays for his lawns to be mowed because the pushing and pulling causes left-arm pain.
•
He is still employed by the first defendant as a sales manager, but he no longer carries out any heavy or awkward lifting work. He travels by plane for work quite a bit and tries to not carry too much luggage as this can aggravate his left-arm pain.
•
Because of the incident, his enjoyment of life has been, and will continue to be, seriously diminished and the injury has caused him considerable pain and suffering.
16 In his second affidavit sworn 30 September 2010, the plaintiff deposes that:
•
Since swearing his previous affidavit there has been no change in his physical condition. The pain he previously described is constant and worse during colder weather. In colder weather he uses an elastic brace to support his arm.
•
He has begun to experience pain in his right shoulder. He attributes this to the fact that he tries to do things with his right arm only and uses his left as little as possible.
•
He continues to require medication for his left-arm pain. Presently he takes four Nurofen Plus tablets per day and four to six Nurofen tablets. He experiences the following side-effects from these medications: constipation, grogginess and difficulty concentrating.
•
He now has trouble sleeping on either his left or right side. On average he wakes three times per night because he has rolled onto his side. He only gets around five to six hours of sleep per night and wakes up fatigued.
•
Since swearing his last affidavit, he has joined a band as a guitarist and plays one to two times per month and rehearses only once prior to playing. His partner and other band members assist with the lifting of heavier equipment. He takes Nurofen Plus before he plays or rehearses.
•
He used to ride his motorbike three to four times per week in summer and once or twice per month in winter. Since the incident he has only ridden on about six occasions. On each occasion he has taken Nurofen beforehand, but has still struggled with the pain in his left arm.
•
He has not returned to play golf. He has in fact sold his golf clubs and does not anticipate being able to return to the sport.
•
Before his injury he enjoyed weightlifting three times per week. He continues to attend the gym, but has not done so in the last three months. When he does attend the gym he is limited to lifting machine weights and barbells because with his left arm he can only lift about 60 per cent of the weight he can lift with his right arm.
•
Since swearing his previous affidavit, he is in a new relationship, but continues to experience difficulties with sexual relations with his new partner.
•
He continues to require paid assistance with lawn mowing, edging and household repairs. His new partner has taken over all the household work. Prior to that change he was struggling with household tasks and had to complete them in a piecemeal way so as not to overexert his arm.
•
Since swearing his previous affidavit, he has been employed by Terra Firma Industries as a business development manager. He is able to cope with this work as it does not require strenuous activity with his arms.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff was cross-examined and gave the following pertinent evidence:
•
From the date of the injury to after the operation he was taking Nurofen to cope with the pain. He saw his general practitioner, Dr Pachauri, on fifty one occasions between 22 October 2007 and 10 February 2011, but did not consult him about his left-arm pain, as he wanted to keep it separate. He agreed it would be convenient to get something to assist with the pain or to assist with sleeping when he saw Dr Pachauri about other medical issues.
•
He agreed that he saw Dr Pachauri about other sexual matters. He agreed that he did not discuss with Dr Pachauri or Dr Reynolds issues of a sexual nature as a result of his arm injury.
•
The plaintiff said he had discussed the side-effects of the medication he was taking with his general practitioner, namely constipation, grogginess and difficulty concentrating. His general practitioner recommended he use a dietary fibre such as Metamucil.
•
The plaintiff agreed that he had a MySpace page where he recorded the venues and dates upon which he played the guitar. He agreed he performed in a band whilst employed full-time and he had functions booked for the balance of the year. He said the band would accept more bookings for the year if it suited the members. On occasions he performed in Shepparton, Bright, Watsonia, Eltham, Emerald and Altona. He agreed the band did not decline work because of the state of his arm.
•
He agreed set-up time of the band was about 35 minutes, depending on the venue and drummer. Generally, the band performs three 45-minute sets with breaks of between 20 to 25 minutes.
18 In re-examination, the plaintiff said:
•
He carried the amp in his right arm. Normally one would use both arms, but because he does not want to hurt his left arm he uses the right. He said other members of the band or his partner help him bring in the heavier items of equipment. He said before he performed he took painkilling medication and after a performance he goes home to rest.
Investigations
19 Dr N Gupta reported on an x-ray of the left elbow dated 2 October 2007. He said:
“The bones and joints of the left appear normal. No obvious fractures or dislocations are seen. The joint spaces and articular margins appear normal.”
20 An ultrasound of the left elbow dated 4 October 2007 showed:
“No abnormality of the medial or lateral sides of the elbow joint.
Anteriorly the biceps tendon is absent suggesting a tear at the elbow increased in vascularity consistent with bursitis.
insertion.
Posteriorly there is calcification seen of 0.14 cms in the triceps insertion.
COMMENTThere is a mixed echogenecity mass seen at the distal medial forearm consistent with a biceps muscle tear associated with haematoma measuring 2.2 x 8 x 0.9 cms.
Torn biceps tendon. Olecranon bursitis.”
21 An MRI scan of the left elbow performed by Dr Andrew Rotstein dated 22 February 2008 disclosed:
“Conclusion:
1. Distal biceps tendon repair is intact but there is post surgical tendon thickening and tendinopathy involving the distal 7 cm of the tendon and the biciptal aponeurosis.
2. The radial collateral and lateral ulnar collateral ligaments are mildly thickened consistent with previous strain. Medial collateral ligament mildly thickened but otherwise intact representing a previous strain.
3. Mild common flexor and common extensor tendinopathy.
4. Mild thickening of the superficial olecranon bursa but without bursal fluid collection.
5. Mild ulna nerve hyperintensity. Does the patient have clinical features of an ulnar neuritis?”
The Plaintiff’s Medical Evidence
22 In a report dated 26 March 2009, Dr Ian Reynolds, general practitioner, confirmed that the plaintiff attended on 9 October 2007 complaining of a dislocated left elbow approximately two weeks earlier. He had a ruptured distal left biceps tendon and was felt to have a tear in the belly of the muscle. Dr Reynolds noted that his treatment consisted of repair of his ruptured tendon followed by physiotherapy. He said the injury was stable, that further surgery, a tendon shortening procedure, may be an option, but would have attendant risks as for all procedures. He said the plaintiff was a strong person and he would have expected that the pain, suffering and distress would not have been of great magnitude with this type of injury. He said the disfigurement following the injury related to some bunching of the biceps muscle belly. He considered his prognosis was overall good and did not expect worsening of his condition.
23 In a report dated 13 May 2009, Mr Roger Sutherland, orthopaedic surgeon, said the plaintiff had a tear of the distal biceps tendon and felt that repair was indicated. He performed surgery. He reviewed him on 30 October 2007, 13 November 2007 and 22 January 2008. By January 2008, Mr Sutherland said his elbow was comfortable and he had a full range of movement. His power had improved. At that time, the plaintiff was concerned that the biceps muscle still appeared to ride higher on the arm than the other side, which indicated that there had been some lengthening over the repaired tendon. However, his function was excellent, and there was no need for further intervention. In the long term he expected the plaintiff would have good function. He regarded the injury as stable and thought it unlikely that there would be further degeneration. He said the plaintiff had no severe pain either at the time of his injury or after the surgery.
24 In June 2009, the plaintiff was medically examined by Mr Roger Westh, orthopaedic surgeon, at the request of his solicitor. It was Mr Westh’s view that the plaintiff had sustained a hyperextension injury to his elbow with a possible dislocation which reduced spontaneously and also a ruptured distal left biceps tendon with associated tear in the biceps muscle belly. He noted that he recovered well from the surgery. He said the plaintiff has residual shortening of his biceps muscle with a resultant prominent deformity, a full range of movement in his elbow, but has been left with residual pain, particularly in the front of his elbow. He considered the injury was stable. He said the plaintiff does experience significant and particular activity-related pain. He noted that the left-arm injury had not affected the plaintiff’s ability to undertake his activities of daily living. He said that the plaintiff is restricted in relation to social, recreational and domestic activities and that this incapacity will continue for the foreseeable future.
25 On 22 July 2010, the plaintiff was medically examined by Mr Russell Miller, orthopaedic surgeon, at the request of the plaintiff’s solicitors. It was Mr Miller’s view that the plaintiff had an elbow dislocation or subluxation with spontaneous reduction and associated biceps tendon tear. Clinically, he thought the tendon repair had broken down. He said there was proximal migration of the muscle and associated weakness and it was likely that he has had damage to the collateral ligaments to the elbow and the flexor extensor tendon origin. He considered long-term prognosis for the elbow was fair. He thought there was only a small risk of development of arthritic disease and he was unlikely to require surgical intervention. He said there was a small degree of bodily disfigurement as a result of his injury. He said he will encounter difficulty with work that involves lifting, pushing and pulling, with repetitive left-arm actions. He said he could use the arm for overhead work but not on a sustained basis. He considered his injuries had impacted on his domestic, gardening and recreational activities and the impact was permanent.
26 The defendants relied on the medical report of Mr Christopher Pullen, orthopaedic surgeon. The plaintiff consulted Mr Pullen for a second opinion in February 2008. The MRI scan was undertaken at his suggestion. The scan confirmed that his biceps tendon was intact. Mr Pullen found it hard to marry the clinical and investigative findings.
Video Surveillance
27 I was shown a video of the plaintiff taken over a number of hours. The video showed the plaintiff and other band members setting up for a performance. The video did not disclose any activity inconsistent with the plaintiff’s evidence. The video evidence did not assist the defendants.
Credit of the Plaintiff
28 The plaintiff was consistent in reporting the injury and complaints to the doctors whom he saw.
29 The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions.
30 I accept that he is a witness of truth.
Analysis of the Evidence
31 It was not in issue that the plaintiff suffered a compensable injury arising out of, or in the course of, his employment with the first defendant. What was in issue was whether the consequences of the injury were serious for the purpose of s.134AB of the Act.
32 The medical opinion of his treaters, Mr Sutherland, orthopaedic surgeon, and Dr Reynolds, general practitioner, as at March 2009, was that the injury had stabilised, his progress was good, function was excellent, and it was unlikely that he would experience degeneration. When seen by medico-legal doctors in June 2009 and July 2010, the plaintiff was complaining of ongoing pain in the front of his elbow, the appearance of his biceps, and pain when he played golf. He said he was limited in heavy lifting, and no longer does that type of work. He is limited in his ability to garden and mow the lawns. He takes Nurofen Plus when in pain, and on occasions takes up to four per day. He complained that he was limited in his sexual relations because he was unable to put pressure on his elbow.
33 At the highest, Mr Westh accepted that the plaintiff did experience significant activity-related pain. He said left arm injuries have not affected his ability to undertake his activities of daily living. Mr Westh accepted the plaintiff was restricted in relation to social, recreational, and domestic activities, which, he said, would continue for the foreseeable future.
34 Mr Miller described the long-term prognosis for the elbow as fair, and said there was only a small increased risk of developing arthritic disease in the elbow. He considered the injury had a significant impact on activities of daily living. He said the impact on his domestic, gardening, and recreational activities was significant, and would be permanent.
35 The level of medical treatment the plaintiff was receiving for his left arm was limited to consultations with Dr Reynolds on 9 October 2007, 29 January 2008, 17 July 2008, and 11 February 2010, yet he saw his regular general practitioner on a number of occasions in relation to other medical issues.
36 The plaintiff said, in his second affidavit in September 2010, that in more recent times he has experienced pain in the left arm. He was prescribed medication by the first doctor he saw. Since then, there does not seem to be any other medication prescribed. He agreed that the medication he took was Nurofen (4 to 6 per day) and Nurofen Plus (4 per day), daily, to cope with the pain. He now experiences side-effects from the medication of constipation, grogginess and difficulty concentrating. In cross-examination, he said he had raised the side-effects with his doctor who advised him to take a dietary supplement, Metamucil. However, I note that he has not discussed the level of pain and need for medication with either Dr Reynolds, whom he consulted for the arm, or his general practitioner, Dr Pachauri, whom he consulted on a regular basis for other matters.
37 Both Mr Westh and Mr Miller accepted that the plaintiff has an injury, the consequences of which will continue for the foreseeable future.
38 The plaintiff’s evidence was that he worked full-time. He can cope with that work, as it does not require strenuous activity with his arm. He plays a guitar in a band which performs regularly. Before he plays with the band he takes Nurofen.
39 The plaintiff said he no longer rides his motorbike as frequently as before the accident, and takes Nurofen Plus before he rides. He struggles with the pain in the left arm caused by the riding. He used to enjoy playing a social game of golf, but found trying to swing the golf club too painful. He has now sold his golf clubs.
40 He also said he enjoyed weight-lifting, which he did at the gym three times per week. He is now limited to lifting machine weights and barbells, because he cannot lift symmetrically. With his left arm he can only lift about 60 per cent of the weight which he lifts with the right.
41 The plaintiff said his sleep is affected. He wakes during the night because he has rolled onto his side. He wakes up fatigued.
42 The plaintiff said he could no longer mow the lawns and is reliant on his partner to perform the housework. Between partners he has performed the housework but in a piecemeal way.
43 What was in issue was the consequences of the plaintiff’s injury and whether they met the test of seriousness for pain and suffering, in that they could be considered to be “more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
44 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[9]
“… many disturbances are considerable, in the sense that they are
important or substantial, without being very considerable.”[9] [1998] 1 VR 702
45 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of “very considerable” magnitude. Although the plaintiff’s left-arm injury has had a notable effect on his life, he retains the capacity to participate in many activities and to undertake full-time work.
46 In Stijepic v One Force Group Aust Pty Ltd,[10] Ashley JA and Beach AJA said:
“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.”[11]
[10] [2009] VSCA 181
[11] ibid at 42
47 In assessing the consequences:
“The significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
48 It is accepted that the plaintiff has residual symptoms with his left arm. But the residual symptoms have left him in the main with a non-dominant arm that can be used in a reasonably normal fashion. The plaintiff continues to work. He plays his guitar and is able to play in a band on a regular basis. He conceded that his arm does not restrict the engagements that the band accepts. He has retained the ability to go to the gym, even though he can no longer lift free weights and is now restricted to using machine weights and barbells because he can only lift about 60 per cent of the weight he can lift with his right arm. He can still ride his motorbike but less frequently. He drives his motor vehicle. He has a permanent relationship. He retains the ability to maintain an active lifestyle.
49 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequence to the plaintiff satisfies the test. I accept that the plaintiff suffered an injury to his left arm at work in September 2007. I accept that the injury has had consequences to him, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
50 Accordingly, I dismiss the application.
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