Mahuta v Meridan Concrete Australia Pty Ltd
[2013] VCC 689
•20 June 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-12-03619
| TAHUNA MAHUTA | Plaintiff |
| v | |
| MERIDAN CONCRETE AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 14 June 2013 | |
DATE OF JUDGMENT: | 20 June 2013 | |
CASE MAY BE CITED AS: | Mahuta v Meridan Concrete Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 689 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation of degenerative changes to the low back – pain and suffering damages only.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
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 M Garnham | Slater & Gordon Ltd |
| For the Defendants | Mr S Martin | Herbert Geer |
HIS HONOUR:
1 This is an application for leave to commence proceedings for the recovery of pain and suffering damages only. The plaintiff relies on s134AB(37)(a) of the Accident Compensation Act 1985 (“the Act”).
2 The injury relied on is aggravation of degenerative changes in the low back. The body function of the low back is the relevant function said to be impaired.
3 The plaintiff relies on a course of employment from 8 November 2007 up to 15 April 2008 (the period) with reliance on an elevation of symptoms on 15 April 2008.
4 The defendants admit the plaintiff suffered a compensable injury after 20 October 1999. The defence is that the compensable injury is not a “serious injury” and this is a “range” case. I understand this to mean that the consequences the compensable injury has led to do not meet the test of being “at least very considerable”. Credit was also put in issue.[1]
[1]Transcript (“T”) 11 and 12
5 It is really a single, discrete issue for my determination. I note the recent repeal of s134AE of the Act and the explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. 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.
6 In large part these are applications involving matters of value judgment, opinion or impression.[2]
[2]Woolworths Ltd v Warfe [2013] VSCA 22 at 129 and 130
Background
7 The plaintiff is aged fifty-three years and came to Australia in 1980. He has worked essentially in unskilled labouring jobs in abattoirs, factories, the railways and on construction projects.
8 He had suffered various injuries over the years that included some back symptoms. However, I find these were not limiting him when he took up employment with the first defendant on 8 November 2007 as a steel fixer. This was a very heavy labouring job.[3] He had some low-back pain from this work but a significant increase in the level of pain occurred when working at Red Hill on 15 April 2008 in the course of his employment with the first defendant.
[3]Plaintiff’s Court Book (“PCB”) 12
9 Since then he has not worked in unrestricted heavy labouring work. He struggled on in lighter modified duties until about 31 October 2008, when he was made redundant. He has been unable to work in any full-time capacity since.[4]
[4]PCB 13
10 He has tried to upskill with some courses, generally involving the construction industry but has not been able to find any regular work.
11 The plaintiff describes a picture of constant pain since 15 April 2008.[5] Over the last few months, he has been the carer for a lady friend of his, Carolyn Pollard, with whom he lives. He carries out most of the household chores at the unit that they share.[6] Previously, he was in a relationship with this lady but that ended some eight years ago, although it is over many years now that they have been living together under the one roof.[7]
[5]PCB 13 and 17
[6]PCB 18
[7]PCB 20
The Plaintiff’s evidence
12 Two affidavits have been sworn by the plaintiff and one by Carolyn Pollard. In addition, the plaintiff gave oral evidence. He was a very vague witness with a very imperfect recall of details, including dates and events. Examples are documents he signed,[8] employers he allegedly worked for,[9] relevant dates,[10] injuries he has suffered over the years[11]and hospitals he was taken to.[12] He says for example that he commenced working for the first defendant on 1 March 2008.[13]
[8]T19
[9]T20
[10]T21, 22, 24
[11]T23-24, 35-36
[12]T25
[13]PCB 12
13 Counsel opened the case with a chronology which had the plaintiff starting work with the first defendant in early 2007 but it seems he commenced work on about 8 November 2007. No issue is really made as to the precise start date in view of the admitted compensable injury.
14 The plaintiff’s affidavits do not give any details about previous back complaints or claims. He does relate how:
“… due to the heavy nature of the work I carried out over the years I sometimes had back pain, however I do not recall this as stopping me working for any significant length of time.”[14]
[14]PCB 12
15 In cross-examination, the plaintiff was taken to a Worker’s Claim for Compensation form he signed on 17 November 1995 claiming compensation for a muscle strain to the back said to have occurred on 13 November 1995.[15] The plaintiff had no recall of this at all but did adopt the signature as his.[16]
[15]Defendants’ Court Book (“DCB”) 1
[16]T19
16 The plaintiff was then shown another WorkCover Worker’s Claim Form[17] with an attached letter he agreed was in his own handwriting.[18] The Claim Form describes the injury as “lower back damage degenerative facet joints” occurring on 14 December 2005 when walking “… out the back door at home”.[19] The handwritten letter attached to this Claim Form then gives more detail and 19 September 2005 as a date on which he was coming off scaffold and tore ligaments in his left ankle.[20] While on rehabilitation, having returned to work on light duties, he describes in the letter that he fell at home on 14 December 2005 and hurt his back. However he was not even clear, after reading the letter again, about much detail regarding this claim.[21]
[17]DCB 7-9
[18]DCB 10-11; T28
[19]DCB 7
[20]DCB 10
[21]T29
17 In cross-examination, the plaintiff describes an injury at the Parkville Commonwealth Games Athletes’ Village in 2006. After a certain amount of confusing evidence, I accept that this is probably the incident described in the handwritten letter that refers to an ankle injury on 19 September 2005. He described this as having occurred while working for Boral and the Claim Form refers to Boral.[22] A further accident occurred, according to the plaintiff, while working for Boral at Federation Square following the accident at the Commonwealth Games Athletes’ Village.
[22]DCB 8
18 It was apparent very quickly from observing the plaintiff in the witness box that he is a very simple and unsophisticated man. His affidavits are seriously deficient, but given the very real lack of capacity to understand and comprehend paperwork that was put to him in cross-examination, that deficiency is largely understandable. When I requested the plaintiff be given the parties’ Court Books in the witness box so that he could better understand questions being put to him, he could not even cope with this.[23] In the end, stickers had to be used so he could even get onto the right page in the right Court Book that counsel was taking him to. He still had difficulty.[24]
[23]T18
[24]T33-35 and T73-74
19 When the plaintiff started work with the first defendant he signed a WorkCover and Occupational Health Details form that is undated, but answers “No” to a question about back complaints.[25] This document is clearly inaccurate in view of the other evidence about pre-existing back symptoms.
[25]DCB 16
20 In spite of a great deal of confusion in the plaintiff’s mind,[26] I accept on the whole of the evidence, that the plaintiff had hurt his back several times before the relevant period. He had suffered some accidents at work and outside of work.[27] I accept there were back symptoms that put him off work but only for short periods. I find he was capable of performing the heavy work full time as a steel fixer when he started employment with the first defendant in November 2008.
[26]T 31-32
[27]T31
21 In cross-examination, the plaintiff was taken to a number of references that were intended to impeach his credit. He was asked about a comment recorded by Mr Michael Shannon, surgeon, who saw him on 17 December 2008 and recorded that the plaintiff had continued working in traffic control at that time.[28] It is agreed between the parties that the plaintiff had been made redundant by the end of October 2008.
[28]DCB 30
22 The plaintiff was further taken to a number of clinical notes in relation to references where he indicated to doctors or physiotherapists that he had been working. A number of examples were put to him.[29] Apart from when, as a result of driving offences, he was obviously performing work at a nursery as part of a community-corrections order, I do not accept the defendants’ suggestion that the plaintiff was engaged in any employment for any length of time after being made redundant. The court ordered employment following a drink driving offence involved very light work. I accept that it even had to be reduced because of back symptoms.
[29]DCB 103, 127, 139 and 145
23 Dealing with the plaintiff’s evidence as a whole, I found him to be an unreliable witness in certain respects but a man who was endeavouring to tell the truth. He made some significant admissions against interest.[30] These included references to playing cricket and driving in circumstances where it seems he has had no current licence..[31] In addition he provided information about back injuries that do not appear elsewhere in the material, such as the Federation Square incident. Thus I conclude that while little reliance can be placed on dates and precise details from the plaintiff concerning events, places and times, he was a witness doing his best to be truthful. I found his demeanour forthright and his struggle when trying to recall detail was patently obvious.
[30]T90-91, T 87
[31]T87, T90-91
24 I accept the plaintiff’s evidence when he describes constant pain in his lower back at the present time, as well as pain going into his left buttock area. I accept that he has been on medication of one type or another and presently includes Panadeine Forte, as well as Valium. His evidence is corroborated in the affidavit of Carolyn Pollard with respect to his symptoms since April 2008 and the requirement for pain relief medication and medication to help him sleep.[32] I accept also that Ms Pollard is in a very good position to paint a before and after picture of the plaintiff given her extensive knowledge of his activities over the years.[33]
[32]PCB 21
[33]PCB 22
25 This case raises the relevance of analysing the effects and impact of pain in pain and suffering applications.
26 I find the plaintiff is a stoical man. His stoicism should not be held against him.[34] Recent authority that deals with the relevance of pain in circumstances where it is constant directs the court to issues to be considered.[35] I find in this case that pain impacts on the plaintiff’s sleep and his general mobility.[36] The constancy of his pain[37] is such that he is still required to take pain-relieving medication. Such medication has caused him to have side effects.[38] He has undergone a significant amount of conservative treatment.[39] The extensive clinical records tendered by the defendants indicate the large number of attendances at various doctors and physiotherapists since April 2008. There are numerous references to back and leg pain that are consistent with a level of symptoms that could only be described as “constant” and “very considerable”.
[34]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
[35]Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 at paragraphs [19] and [20]
[36]PCB 13, 17 and 21
[37]PCB 13 and 17
[38]T15
[39]PCB 12, 13, 14 and 17; DCB 80-176
27 I accept his evidence that the pain has also impacted on his performance of household and carer activities[40] as well as recreational and social life.[41]
[40]PCB 21 and 22
[41]PCB 13, 14, 15, 17, 18, 21 and 22
28 With respect to assessing credit it is worth noting that no doctor on either side in any way was critical of the plaintiff’s genuineness at clinical examination or in his general presentation. Also, the extensive vocational assessment material tendered by the defendants from the Ayres Group does not point to anything other than a compliant worker willing to take advice about job options and undertake courses that might lead to employment.[42] This material reads favourably in terms of motivation. I found the plaintiff a motivated man who is keen to work but is coming from a very limited base of “transferrable skills”.[43]
[42]DCB 66, 67, 70, 74, 78 and 79
[43]DCB 62
Medical evidence
29 As the plaintiff’s consequences must be judged now, the more up-to-date medical reports are most relevant.
30 The general practitioner, Dr Andrew Smith, reported on four occasions. He reports that his practice was visited by the plaintiff the day after he suffered the significant increase of symptoms on 15 April 2008. The plaintiff was put on Voltaren, one to three per day, and Valium, one to two per night. He was referred off to a Dr Tim March, a specialist in spinal medicine.[44] The diagnosis from Dr Smith was:
[44]PCB 23
“… a combination of disc bulge (L3-4 and L4-5) with the annular disruption (L4-5) as well as the facet joint dysfunction.”[45]
The plaintiff was never going to be able to be a steel fixer or heavy labourer again. It is reported that the plaintiff has ongoing chronic back pain and left-sided sciatica with frequent muscle spasm.[46]
[45]PCB 24
[46]PCB 25
31 In 2011, Dr Smith described it as a significant injury and that there was difficulty with aspects of daily living, including getting dressed. He thought heavy duties around the home were beyond the plaintiff[47] and that deterioration was likely with time.[48] He had a lifelong restriction for any heavy lifting work and consequences were described as:
“… he is unable to do his previous occupation which he enjoyed and he is limited in his ability to enjoy outside social activities or indeed to contribute in a meaningful way to all of his domestic chores.”[49]
[47]PCB 27
[48]PCB 30
[49]PCB 31
32 Dr Smith’s final word was on 7 May 2013 when he noted the condition had not resolved. There was no treatment really open save for exercises and gym. He described consequences:
“He is never able to do repeated lifting, pushing or pulling and should avoid repetitive bending. He should not involve in any sport of heavy lifting or other manual labour type occupations. He can certainly walk for a reasonable period of time and he can stand for a reasonable period of time. The incapacity for these types of activities is likely to be long term.”[50]
[50]PCB 33
33 Based on the general practitioner’s opinion, the consequences in daily life and the work limitations can fairly be described as “very considerable”.
34 Dr Tim March has not seen the plaintiff since mid 2008 so his opinion is of limited use. He thought it was a “… mixed soft tissue problem which was primarily discogenic”.[51] There was a likely annular tear at L4-5. He noted the plaintiff was keen to keep working on light duties, and I infer that Dr March thought that was consistent with the plaintiff’s limitations for work but he does not really comment any further.
[51]PCB 35
35 The 2009 report of the treating physiotherapist, Stuart Stokoe is similarly somewhat dated. He said the plaintiff:
“… seems determined in his vocational retraining endeavours and appears motivated and enthusiastic about improving his physical capacity.”[52]
However, progress had been slow, although there was some improvement from the therapy.
[52]PCB 37
36 The medico-legal opinions include two reports from Dr David Brownbill, neurosurgeon, in 2012 and then on 15 May 2013. Dr Brownbill answers specific questions that really speak for themselves. The diagnosis was aggravation of longstanding lumbosacral degenerative change and the condition was stabilised. Putting aside any psychological or psychiatric condition, the incapacity was permanent in terms of restrictions for work:
“… involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting to a marked extent.”[53]
[53]PCB 47
37 He was “... likely to be restricted in relation to social, domestic and/or recreational activities in a moderate to marked degree” and this situation was also permanent.[54] No treatment save for medication was appropriate.
[54]PCB 47
38 I accept this evidence. It is consistent with the plaintiff suffering constant pain and being very limited in terms of what work he could perform, as well as in general daily life.
39 For the defendants, Mr Jonathan Hooper reported in June 2008. He accepted aggravation of the plaintiff’s back condition was caused by work that precipitated the onset of back and leg pain. It was early days, but an exercise program and avoiding heavy work was his advice. While it is of limited help in judging the impairment now, he clearly thought in June 2008, that the back condition was major when he said: “At this time his back is spastic and is very painful.”[55]
[55]PCB 49C
40 Mr John O’Brien, orthopaedic surgeon, reported for the defendants on 4 October 2011. While he does not really give as specific a diagnosis as some other practitioners, regarding the future, he said:
“I would suggest the prognosis is poor, as I have little doubt this patient will continue to describe chronic back pain.”[56]
[56]PCB 49F
41 As well as pain, he comments on consequences that include being –
“… not capable of a return to his pre-injury occupation, or indeed any form of employment involving heavy manual duties.”[57]
[57]PCB 49G
He could do lighter work and the course he was doing was appropriate. Mr O’Brien saw other limitations outside the workplace:
“It is likely however, that due to the chronic nature of the patient’s pain, the patient will remain somewhat restricted in his general, social, domestic and recreational activities.”[58]
[58]PCB 49G
42 Mr A Buzzard, surgeon, on 21 June 2012 reported to the defendants and diagnosed an aggravation of a pre-existing degenerative disease, including disc degeneration at L3-4 and L4-5.[59] He had a history of some pre-existing problems from the extensive enclosures that he was given.[60] The condition was stable. He did not report a lot on consequences, however, he is really on his own in indicating that the plaintiff could continue his work as a scaffolder.[61] He really concedes no consequence at all in terms of enjoyment of life and daily activities. I do not accept these optimistic views in relation to either the plaintiff’s work capacity or daily activities. Mr Buzzard is not supported by the general body of medical evidence in this case, and while his diagnosis is really no different than the other doctors, he is on his own in terms of the largely unexplained optimism he has about the effects of the condition. He does not set out the reasons why the impairment will not affect daily life nor why work was only a minor contributor. Mr Buzzard agreed at least with the others that self-administered exercise was about the only future treatment option.
[59]DCB 46-47
[60]DCB 43
[61]DCB 48
43 Mr Michael Shannon, orthopaedic surgeon, first saw the plaintiff for the defendants on 6 November 2006, before the subject period, regarding a left ankle injury and back symptoms. While the plaintiff is very vague about dates, it would appear that the 19 September 2005 incident Mr Shannon was then investigating is the same Commonwealth Athletes’ Village at Parkville incident that the plaintiff spoke about in cross-examination. Mr Shannon reported back x-rays showed some minor lipping and facet joint arthritis.[62]
[62]DCB 26
44 He thought the back condition was essentially age related and while the twisting of the plaintiff’s ankle in 2005, may have caused an aggravation of the back degeneration, it had only a duration of a month or two.[63]
[63]DCB 28
45 I accept the plaintiff had lumbar spine degeneration prior to the subject period but there was no ongoing disability for work or daily life established by the evidence.
46 Mr Shannon then saw the plaintiff in 2008 after the period of employment with the first defendant. Importantly, now he noted the new pathology of an annular tear.[64] The injury had not resolved, he thought, and the plaintiff was limited to light work. The “aggravation and acceleration of pre-existing condition and the work component has not resolved”.[65] A gym program was the only appropriate treatment.
[64]DCB 31
[65]DCB 32
47 Mr Shannon saw the plaintiff a third time on 21 June 2010. He thought the plaintiff was suffering from lumbar disc degeneration aggravated by employment and he was unfit for significant physical work.[66] Further, he said the plaintiff was limited in not being likely to get back to pre-injury duties or other heavy physical work.[67] This situation was unlikely to change in the medium term.
[66]DCB 34
[67]DCB 35
48 I accept what Mr Shannon noted, namely, that there was a disc injury at L4-5 that was seen radiologically as well as damage to the disc at L3-4. I find these were caused in the course of the plaintiff’s employment with the first defendant. So while aggravation of pre-existing degeneration has occurred, I also find on the radiological evidence, when comparing the pre and post scanning, that there is probably a fresh injury in the way of an annular tear at L4-5.
49 Taking the medical evidence overall, there is really little controversy, save for Mr Buzzard’s unexplained optimism. The injury is essentially an aggravation of low-back degeneration with some fresh disc damage. The condition is stable. The aggravation is permanent and so are the consequences flowing from same. As indicated, the only issue for me to determine is whether or not the consequences are “at least very considerable”.
Conclusions
50 Judging this case against a range of low-back impairments, I find the consequences are very considerable for the plaintiff. He has ongoing pain. He needs ongoing medication although side effects have been noted that affect the ingestion of this medication. He is permanently restricted to lighter physical activities, both in a work context and daily life outside work. For a very physical man who was a former sportsman and heavy manual worker, this is a very considerable consequence. Really all the work he knows in recent times is the construction industry. He has been motivated enough to do CFMEU courses in that field[68] but essentially he is a heavy labourer now precluded from such work.
[68]T99
51 While the application is not put on the basis of seeking leave for pecuniary loss damages, it is nevertheless a pain and suffering and loss of enjoyment of life consequence for a heavy physical labourer now to have permanent restrictions on work he can realistically seek.
52 It is relevant to recall the comments of Maxwell P in the case of Haden Engineering Pty Ltd v McKinnon[69]as to the relevance of capacity for work. That was a case in which the plaintiff had been able to return to full-time work but it was said that that did not preclude an affirmative finding of serious injury and is one of the matters to be taken into account. Further:
“What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”
[69](2010) 31 VR 1 at paragraph [15]
53 Thus the ongoing pain the plaintiff is suffering and the disabling effects that it has can fairly be judged as “very considerable”. I consider they are permanent. For an active man injured at only forty-eight years of age, the consequences are “serious”.
54 Apart from the pain the plaintiff is still enduring, there are other consequences that can be described as “very considerable”. His work capacity is very considerably limited. He now endures what amounts to a permanent perimeter fence around his potential ability to meet the demands of any future job.
55 There are several other consequences I accept that are, of themselves, serious for him. His enjoyment of guitar playing is described in affidavit evidence and in oral evidence.[70] The plaintiff said in Court:
[70]PCB 14
“I love playing my guitar, soul music”
and then:
“I go into another world when I play. The pain doesn’t come into it.”[71]
[71]T60
56 However, the plaintiff describes how he pays a price in terms of pain and lost enjoyment after playing:
“… I suffer for it at the end of the day. I suffer for it big time.”[72]
I find the impact on his love of music and playing is a very considerable consequence for this man.
[72]T61
57 It is a similar situation with his passion for rugby.[73] It is something he loved.[74] He played the game up to the time of suffering some injuries. I accept the plaintiff’s evidence about the enjoyment he derives from watching the sport:
[73]PCB 15
[74]T93
“… at the end of the day when I come home I suffer for it. I’m passionate about my game.”[75]
The plaintiff is denied full enjoyment of following the sport he loves. It is for him a very considerable consequence.
[75]T93
58 The defendants’ arguments that the consequences for the plaintiff are not “serious” are not made out. While there are many aspects of his evidence that lead to criticism of his credit, and I have referred largely to these, nevertheless, I found him to be a witness who was truthful with respect to his injury, and in many ways understated it. He is a proud man who has attempted to get on with his life by re-training and still trying to maintain interests outside of work. He cannot now enjoy those interests to the extent he was able to do before he was injured, and that is a permanent condition.
59 For the above reasons, I grant the plaintiff’s application for leave to bring proceedings for the recovery of pain and suffering damages.
60 I will hear the parties as to costs.
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