Mahamez v Schweppes Australia Pty Limited
[2014] VCC 2261
•17 November 2014
| 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-13-02277
| PAUL MAHAMEZ | Plaintiff |
| v | |
| SCHWEPPES AUSTRALIA PTY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 17 November 2014 | |
DATE OF JUDGMENT: | 17 November 2014 | |
CASE MAY BE CITED AS: | Mahamez v Schweppes Australia Pty Limited & Anor | |
| MEDIUM NEUTRAL CITATION: [First revision 29 January 2015] | [2014] VCC 2261 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the low back – pain and suffering only.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Phelan v Transport Accident Commission [2013] VSCA 306
Judgment: Leave granted to bring proceedings for recovery of pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab | Slater & Gordon Ltd |
| For the Defendants | Mr I Gourlay | Minter Ellison |
HIS HONOUR:
1 This application for pain and suffering damages only relies on an injury and impairment of the spine, in particular the low back. It is an admitted compensable injury. The discrete issue is whether consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “at least very considerable”.
2 Essentially, the defendants sensibly argued that the consequences may well be “considerable” but are not “very considerable”.[1]
[1]Transcript (“T”) 13
3 The plaintiff is a well motivated employee who has worked in a forklift driver/storeman capacity as a direct employee of the first defendant, Schweppes, since July 2003. Schweppes put him on their staff after having the opportunity to appraise his attitude and performance over a number of years since about 1995, when he worked for them but as a labour-hire employee or for Linfox Australia, out on placement on Schweppes’ premises.
4 The plaintiff is obviously still regarded highly as he has been working full-time for Schweppes since October 2012, after being put off by them in May 2012. He was reinstated effective 8 October 2012. He has been working full time since then, with permanent restrictions of not lifting over 5 kilograms and doing no repetitive bending.
5 While it remains that he was taken back by Schweppes, the fact is he works on “thin ice”, as it were, when the terms of his letter of reinstatement are read carefully.[2]
[2]Plaintiff’s Court Book (“PCB”) 11; Defendants’ Court Book (“DCB”) 70-71
6 The plaintiff’s injury occurred at work on 17 November 2009 when lifting. He saw his general practitioner, Dr S Prakash, the next day with severe pain in the lumbar area. Conservative treatment was tried.[3] He was referred to Mr T Han, specialist neurosurgeon, in January 2010 within about two months of the injury occurring.
[3]PCB 30
7 The plaintiff was off work initially for about eight months, before returning on graduated hours, starting at four hours per week with modified duties. In time he worked up to full hours, after getting back in the warehouse rather than constantly sitting in the office, which aggravated his back pain.[4] In fact, in spite of just on five years passing now, he has never got back to unrestricted duties, and on the evidence, that situation will remain for the foreseeable future.
[4]PCB 7
8 The plaintiff probably got back to normal hours by about October 2010 on forklift/storeman duties but with no picking work and observing the 5-kilogram lifting limit and avoiding repetitive bending.[5]
[5]PCB 8-9
9 Schweppes put him off in about May 2012, due to his being unable to perform unrestricted duties.[6] He looked for work by obtaining assistance via the Work Streams employment agency. Over some five months, he applied for a number of jobs but had no success. He got one interview for a forklift position in Laverton but on filling out the form about the previous back injury, that job application came to an end. Naturally, that got him rather depressed and worried about his future in regard to work.
[6]PCB 11
10 Indeed, since his second return to work, which was in October 2012, I accept his evidence when he said:
“Whilst I am grateful that I can keep working, I have to be very careful with my back as a flare-up of back pain can be easily triggered and I need to do everything in my power to keep my job.”[7]
[7]PCB 12 and 13
11 The plaintiff was moved from afternoon shift to dayshift in 2011 at the request of Schweppes.
12 As to his return to work in October 2012, after being put off by his employer, it is salutary to recall the evidence that the union had to get involved.
13 Schweppes’ letter followed a meeting in August 2012.[8] That letter puts the plaintiff on notice that any changes to his condition or restrictions would lead to a review of his position. Clearly, the plaintiff has to be very careful if he wants to keep his employment at Schweppes.
[8]DCB 17-71
14 For a man of only forty-three years of age, he faces his job being terminated if back symptoms took a change for the worse. He has stayed employed over the last two years but the position is clearly precarious, in my opinion. He still does overtime when asked, usually at the end of his shift, and it averages about four hours per week.
15 There has been no significant pecuniary disadvantage to him due to the injury since returning to work on 8 October 2012.[9] However, he did suffer losses before that, on the figures, and could probably do a few more hours’ overtime now if uninjured.[10]
[9]PCB 48
[10]PCB 48
16 I accept the plaintiff suffers constant back pain plus right leg symptoms. The pain varies in severity depending, basically, on what he does.[11]
[11]PCB 8 and 11; T21, 23, 29 and 55
17 It has been said many times that constant pain can amount to a very considerable consequence in terms of loss of enjoyment of life. In this case, I find that it does.
18 Aggravating factors include sitting for long periods.[12] Such a restriction on sitting is a very considerable consequence really for anyone. That is certainly so for a forty-three-year-old man when that consequence is one that would last, on the probabilities, for the foreseeable future. I accept it is only 20 to 45 minutes sitting, depending on the chairs, before back pain increases.
[12]PCB 7 and 12
19 That was consistent with the plaintiff’s posture in Court.
20 The plaintiff cannot stand or sit for long in the one position. He needs to shift around.[13] This must intrude into one’s enjoyment of life in numerous activities of daily existence. These are restrictions in day-to-day life, whether it be at a place of employment, home or socially. We largely take for granted our capacity to sit for long. He is restricted in terms of that capacity now.
[13]PCB 12
21 That evidence is consistent with him not being able to put up with the constant sitting in the office job he had on his first return to work. That evidence has not been challenged by any evidence from Schweppes via any people at the workplace at that time.
22 I have had the advantage of observing and hearing the plaintiff in the witness box. He was a sensible and reliable witness, in my opinion. He did not exaggerate his symptoms and was fairly philosophical about his lot. He just puts up with it. Dr Mary Wyatt, for the defendants, called him a “straightforward” witness.[14] I agree with that comment. The defendants described him as frank.
[14]DCB 55
23 No doctor criticises him in the sense of any exaggeration of his pain or of his restrictions, nor does any doctor say his complaints are unreasonable.
24 Essentially, he self-manages his back condition.[15] On the evidence, he needs to. He has to be ever careful. The situation has really remained unchanged over the last few years but he has had flare-ups. He experienced two significant flare-ups last year that led to weeks of increased symptoms.
[15]PCB 15
25 Heavy cleaning is done around the house by way of paid home help. This is consistent with his sensible decision to follow medical advice and avoid the bending and lifting involved in those physical activities. He constantly avoids activities that will flare up the level of his back symptoms so he can go to work.
26 While his constant pain that will last for the foreseeable future on the evidence satisfies the serious injury test, some other matters require comment.
27 While obviously leave is not sought for pecuniary loss damages, evidence about the plaintiff’s work capacity in this case is also relevant to a pain and suffering application.
28 His future employment is a real worry for this man, even though it cannot be said to translate into significant pecuniary disadvantage in recent times. The plaintiff’s evidence about his vulnerable hold on employment was: “This worries me enormously.”[16] I accept his concern is well-founded. He is in a tenuous position, for a man with no real skills who, for nineteen years or so, has worked in, basically, one field of manual-type labour.
[16]PCB 9
29 He has been off work for two significant periods already, being 2008-2009 and 2012. In 2012, he said to the psychiatrist, Dr S Assadi, that: “… [I] felt hopeless, worried and uncertain about [my] future”.[17]
[17]PCB 44
30 I accept that evidence and also that his worry, to an extent, is still there and will be with him for the foreseeable future.
31 That psychiatrist repeated that the plaintiff's anxiety and depressive symptoms in 2012 were in the context of work issues and “… because he was worried about losing his job”.[18]
[18]PCB 45
32 On the probabilities, while he has held the job for two years now, he is required to be very careful, due to the letter the defendants sent to him on 28 September 2012 and the permanent restrictions put on him.
33 Issues of disturbed and interrupted sleep are relevant in this case.[19] The loss of the capacity to enjoy a good night’s sleep has been commented on often.[20]
[19]PCB 8 and 12-13
[20]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs 27 and 45
34 On the probabilities, I accept this man has lost the capacity to enjoy uninterrupted sleep due to his spinal pain and this is a very considerable consequence when viewed as a permanent problem.
35 It needs to be remembered the plaintiff has a life expectancy on the Australian Life Tables of over forty years. I take this into account. It is relevant to an application such as this.[21]
[21]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph 43; Phelan v Transport Accident Commission [2013] VSCA 306
36 To have permanent restrictions on him at his age just in relation to lifting and bending is equivalent more to a very old man’s lifestyle than a strong, young man injured at only thirty-eight years of age. A limit of 5 kilograms is a very serious limit on activity for a man of his large physique, as is the need to avoid repetitive bending. These restrictions have a relevance that extends far beyond the workplace.
37 In effect, I find the plaintiff relies on home help around his home, his brother’s help, and it is all directed to him staying well enough to keep his job. His job would be jeopardised if he did the cleaning and heavy gardening himself.[22]
[22]PCB 11
38 I accept his enjoyment of life extends beyond just holding on to some employment. He pays a price, on all the evidence, in terms of activities outside work, just so he can keep going at work. That is a very considerable consequence for the plaintiff, who is at an age where just the dependence on home help is a very significant piece of evidence. It would be very rare indeed for a forty-three-year-old individual, working full time, who is paying for home help himself, as well as for gardening.
39 The medical evidence supports a view that he is very vulnerable to further flare-ups of symptoms if he strays outside the perimeter fence he lives and works within. In the most up-to-date report from the defendants (Mr M Polke, in August 2014), this case was very aptly summarised:
“His progress is reasonable provided he works within the restrictions suggested, namely confining his job to no heavy lifting more than 5 kilograms or repeated bending and by avoiding working in areas of confined, awkward areas/spaces.”[23]
[23]DCB 61
40 This is in fact the most up-to-date report across all of the nine or so doctors in the two court books presented to me.
41 What Mr Polke said was really the same as what the treating neurosurgeon, Mr Han, had said back in 2012. Back then, Mr Han said:
“In my opinion, he should avoid repetitive bending and twisting to his back. He should therefore remain in his modified work environment rather than to return to his pre-injury job description.
It is therefore important that he extend this restriction with regards to lifting and bending to home environment such as mowing the lawn and mopping the floor.”[24]
[24]PCB 29
42 The probabilities are that this very well-motivated man will keep working as long as he can at Schweppes but he pays the price, in terms of loss of enjoyment of life.
43 The uncontested evidence of the plaintiff's brother confirms the serious restrictions with respect to lifting any significant weights, and limitations, for example on shopping. He confirmed also the work that he does to assist the plaintiff around the plaintiff’s house.[25] The place is an old home apparently and there are a lot of maintenance needs. In essence, his brother up the case when he said the plaintiff is “… very careful in looking after himself”.[26]
[25]PCB 13(a) – (b)
[26]PCB 13(b)
44 The plaintiff used to mow the lawn at home. If he does it now, pain levels would increase he said. I accept that evidence, so he pays someone else to mow the lawn. They mow the lawn on the nature strip and in the front and back yards which he would otherwise do himself pre-accident. It was a 30 to 40-minute job and he gets people in regularly and pays for it, since the insurer stopped paying several years ago.
45 The plaintiff said it would have a huge impact on his capacity to work if he mowed those lawns himself. Similarly, the weeding with the bending required is something that he does not do now and pays a gardener to do it.
46 This plaintiff wishes to work. He does what is required to keep his job. He limits his activities around the home and in the garden in order to prevent increases of back pain. Also, home maintenance like painting and cleaning the gutters he avoids doing now himself. He gets the gardener or his brother to assist in regard to such jobs. He does not want to take the risk of increased symptoms.
47 On the medical evidence, and in particular the general practitioner’s permanent restrictions, he is very wise. Heavier cleaning inside the house is also avoided because of the bending and twisting that increases his pain. He pays for someone to do the heavier cleaning for two hours or so every fortnight. These are all restrictions for a man injured at only aged thirty-eight but on the probabilities are permanent ones. They are consequences, in terms of enjoyment of life, that, in my view, are very considerable. Even shopping has caused flare-ups of pain with some increases.
48 As I have alluded to briefly, treatment has effectively ceased in recent times. He still takes over-the-counter Panadol and concentrates on walking, as advised by his treaters. Treatment can, in a pain and suffering case, indicate high levels of pain. But when no treatment is advised that will help, it does not, as in this case, reflect any less pain. He was told to work and he does it. He walks 30 to 60 minutes per day because he was given that medical advice.[27]
[27]DCB 44-45
49 In this case, it indicates a patient who is sensible. He follows the restrictions put on him in order to remain at work. His motivation and genuineness is not in issue in this case.
50 In earlier times, narcotic medication was administered to him. Physiotherapy did not help so he does not have it now.
51 As regards his constant pain, it can vary in intensity, depending in particular on what he does. It can be severe enough for him to be virtually immobile and he must just soldier on at work.
52 I accept when one looks at all the evidence in this case, that there is no treatment reasonably open to him that will alter his situation, other than being careful and keeping to the lifting and bending restrictions on him, both at work and outside of work.
53 He has had significant flare-ups from time to time that could take six to eight weeks to settle and on other occasions, two to three weeks. Quite innocuous events could cause such flare-ups, like sleeping in a different bed or stepping over a puddle. Thus, in terms of current treatment, or the absence of it, I accept his evidence that he has been told there is not much doctors can do for him. He does not go often to his general practitioner now as there is not much point in going regularly.[28]
[28]PCB 12
54 If there is nothing by way of relief or treatment advised of him on the evidence in this case, what is the point of him going to the doctor? It reflects a sensible, stoical man who just does not go to doctors for the sake of making his serious injury case look better.
55 Essentially, the advice for him is be care what you do and when you do it, keep to those restrictions for the foreseeable future and walk regularly. He follows that advice and that is good treatment advice on all the evidence in this case.
56 I note the repeal of s135AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied it. Clear, proper and adequate reasons are still required but in this case, there is little use in quoting the doctors’ opinions in any great detail. Some opinions are now quite dated.
57 There is really no medical debate in this case.
58 Nevertheless, some brief comments are warranted, although the opinions are really self-explanatory.
59 The plaintiff’s treating general practitioner has treated him over many years, commencing in the mid-1980s.[29] That doctor’s more up-to-date reports help most in evaluating consequences now, five years after the accident at work. The general practitioner noted the plaintiff has been complaining of back pain and suffering back pain since 17 November 2009. He knows the plaintiff well, having seen him over so many years now. He described the plaintiff as a:
“… very compliant patient and he follows my advice and that of the people working for his rehabilitation so he can go back to work. He has permanent disability due to his injury he sustained at work. He will not be able to go back to his pre-injury duties. … .[30]
[29]PCB 38
[30]PCB 39
60 The doctor diagnosed disc pathology at two levels of the lumbar spine, with nerve root compression.[31]
[31]PCB 31
61 I read these reports as indicating a young man permanently restricted at work but also outside work in regard to lifting and bending.
62 The plaintiff has a life expectancy of over forty years, as I have indicated. His activities are permanently limited on the basis of the general practitioner’s reports. I accept that doctor’s views.
63 The treating specialist, Mr Han, again saw the plaintiff on a number of occasions. He treated him in April 2010, October 2011, November 2011 and February 2012. He stated in the last letter to the general practitioner that disc herniation, possibly irritating the L4-5 nerve root, was shown on MRI scanning. Mr Han thought conservative treatment was the best advice and the plaintiff should remain on modified duties.[32] The essence of the reports of Mr Han is that there is not much more that can be done for this man.
[32]PCB 28
64 In his last report, Mr Han said the plaintiff had consulted him since 2010 with lower back pain and right-sided thigh pain. Over some two years of visits, the pain was ongoing, due to L4-5 prolapse.[33] Mr Han put real restrictions on a man then only just in his forties when he said:
“… he should avoid repetitive bending and twisting to his back. He should therefore remain in his modified work environment rather than return to his pre-injury job description.”[34]
[33]PCB 29
[34]PCB 29
65 Mr Han went on in some ways to speak in terms that are at the heart of this application, in that he said the work restrictions are not just limitations at work. He translated those restrictions into advice about lifting and bending in the home environment and to avoid things such as mowing the lawn and mopping the floor. To have to permanently avoid repetitively bending and twisting one’s back for a man of the plaintiff’s age is to live life, to some extent, in a straightjacket.
66 Lifting and bending are relevant at home, inside and outside the house, relevant to shopping, relevant to a number of his recreations and relevant to enjoyment of life generally. Even the simplest of chores like vacuuming, mopping the floor, cleaning the shower, as well as lawn mowing and pruning, are encompassed by Mr Han, who said he should avoid these activities as they are likely to exacerbate his back pain. That was the specialist’s view. At the plaintiff’s age, those restrictions are very considerable, in my opinion. He must face the fact that injured at age thirty-eight, he faces those restrictions, effectively for the foreseeable future.
67 Mr Han, in terms of treatment, only advised a conservative approach. It is a very stern warning, in fact, that Mr Han ends with. He said if the plaintiff did not follow the restrictions at work and at home, he is likely to exacerbate his back pain. He may have a larger disc prolapse, Mr Han said, if his condition deteriorates, and that would affect his ability to work.
68 Finally, he ended:
“He may even have to consider surgery.”[35]
[35]PCB 29
69 It is hard to envisage a stronger admonition to the plaintiff in regard to what he must do to keep his job and to stay away from serious exacerbations of his present very restricted back. I accept Mr Han’s opinions. He supports ongoing pain that significantly limits everyday activities. He warns repeatedly that pain is likely to worsen greatly and employment be lost if his patient is not careful.
70 Mr Han and the treating general practitioner support, in my view, the finding that the plaintiff has discharged the onus of proving consequences that could fairly be described as “at least very considerable”.
71 An Emergency Department report of a visit to hospital on 10 September 2011 was tendered. It confirmed the plaintiff's evidence of flare-ups and documented one when he needed narcotic drugs and hospital attendance.[36]
[36]PCB 47
72 A psychiatric opinion from Dr S Assadi was tendered.[37] He saw the plaintiff twice in 2012 for treatment. This was in the period when the plaintiff had been put off work. The report does very little to advance the matter in this pain and suffering consequences case which relies on a paragraph (a) injury, save to confirm anxiety about employment due to permanent back impairment.
[37]PCB 42
73 Dr Assadi noted the plaintiff was keen to return to work.[38] Fortunately for the plaintiff, he has achieved that return to work, apparently with the help of his union. Dr Assadi has not seen him since that time.
[38]PCB 45
74 A medico-legal report from Mr S Doig, orthopaedic surgeon, was provided.[39] It is dated 6 March 2014. He diagnosed the injury as one of disc damage at L4-5 and L5-S1.[40] The condition had stabilised. The plaintiff, he noted, in relation to treatment:
“He manages it himself.”
[39]PCB 14
[40]PCB 15
75 He said, further:
“There is no formal medical or physical treatment at this stage that is appropriate other than what he is doing.”[41]
[41]PCB 15
76 He also placed real restrictions on the plaintiff’s activities, and said:
“As a consequence of the physical injury, I consider that he will be restricted in his social, domestic and recreational activities.”[42]
[42]PCB 15
77 Mr Doig recognised these restrictions do not end when the plaintiff walks out the factory gate at 9.57pm each night when his afternoon shift ends. His restrictions intrude into much of everyday life. He went on further to say:
“He still has assistance for the garden and the house. He said that WorkCover refused to cover that and therefore he pays for that himself because he does not wish to stir his back up by doing these activities and he fears that they will.”[43]
[43]PCB 15
78 The plaintiff’s life is permanently limited, on Mr Doig’s view, and, in terms of enjoying life generally, he is limited very considerably.
79 The defendants’ doctors did not raise any medical debate in terms of this admitted compensable low-back injury. Mr D Nye, neurosurgeon, last saw the plaintiff about eighteen months ago, in April 2013. Even back in February 2012, Mr Nye diagnosed disc degeneration aggravated at work and, importantly, he said:
“Treatment should continue to be conservative and the claimant appropriately engages in a regular walking program.”[44]
[44]DCB 18
80 The condition, Mr Nye said, was chronic but stable.
81 In terms of work, Mr Nye fairly accurately summed up the situation, even three years ago, when he said of the plaintiff:
“Continuation of restrictions with a lifting limit of 5 kilograms and avoidance of repeated bending and twisting movements of the spine is appropriate.”[45]
[45]DCB 21
82 When he last saw the plaintiff in 2013, he thought the condition was stabilised, and he ended with the statement:
“The worker will continue to suffer consequences and a degree of incapacity due to the physical injury and into the foreseeable future.”[46]
[46]DCB 27
83 Mr T Gale, general surgeon, saw the plaintiff over two-and-a-half years ago so his views are a little out of date in terms of the task that I have to evaluate consequences now. It was basically an AMA permanent percentage assessment exercise that Mr Gale undertook and he does not assist greatly in terms of current consequences.
84 Dr Mary Wyatt, occupational physician, saw the plaintiff in 2012 and 2013. She thought the plaintiff managed his back condition as long as he regularly walked. In her view, the condition was stabilised.[47]
[47]DCB 47
85 She ended the report by saying:
“Mr Maghemaz will continue to suffer ongoing back complaints into the foreseeable future. He has had back symptoms now for four years.”[48]
[48]DCB 48
86 When she saw him again in 2014, the back problem was much the same for this “straightforward and cooperative” man.[49] His problem was chronic pain with some sciatica.[50] The prognosis was for the situation to remain for the foreseeable future. She really ended her two reports with an assessment that is an accurate summary, in my view, when she said:
“He is understandably concerned as he came close to losing his job and is focused on not having a flare-up in his back problem which may necessitate taking time off work.”[51]
[49]DCB 55
[50]DCB 56
[51]DCB 57
87 I have already referred to Mr M Polke, the most up-to-date of the doctors. Mr Polke advised work restrictions with avoidance of picking orders, repeated bending and heavy lifting. As to treatment, he thought the lower back problems were better managed by being active with regular walking than by resting.[52]
[52]DCB 61
88 Mr Polke ended by saying, rather pessimistically for a man still aged only forty-three years of age:
“Since his lower lumbar disc changes are permanent, having caused recurrent lower back pain issues over the last five years, he is likely to continue to suffer from recurrences of his lower back pain for the foreseeable future.”[53]
[53]DCB 61
89 It has often been said in applications such as this that they involve elements of fact, degree and value judgment. This is such a case.
90 On balance, the plaintiff has, in my opinion, proved “serious injury”. On all the evidence in this application, I find the plaintiff has discharged the onus of showing his impairment has caused very considerable permanent consequences in terms of loss of enjoyment of life. I grant leave accordingly.
- - -
0
3
0