McCowat v Sandblasting International Pty Ltd and VWA
[2012] VCC 1125
•17 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02865
| BRADLEY STEWART McCOWAT | Plaintiff |
| v | |
| SANDBLASTING INTERNATIONAL PTY LTD & SCHWEITZER CONSTRUCTIONS PTY LTD (trading as AAA BLASTMASTERS) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2012 | |
DATE OF JUDGMENT: | 17 August 2012 | |
CASE MAY BE CITED AS: | McCowat v Sandblasting International Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1125 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the back – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco (No 2) (2008) VSCA 260; Grech v Orica (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd (2009) VSCA 181.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr C J Nettlefold | Ryan Carlisle Thomas |
| For the Defendants | Mr C S O’Sullivan | Herbert Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 21 October 2004 (“the said date”).
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 s134AB(37) of the Act. The body function relied on is the back.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
10 The plaintiff relied upon two affidavits and was cross examined. The plaintiff further relied upon an affidavit sworn by his father, Bradley McCowat, on 31 July 2012, and his mother, Robyn Carstein, sworn 3 August 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is presently aged thirty one, having been born in December 1980. Having finished Year 10, the plaintiff then worked as a meat worker, machine operator, brickie’s labourer and a self employed spray painter. He commenced work with the first defendant on 26 June 2004.
12 On the said date, the plaintiff and a co worker were in the process of turning a steel truck turntable over a sandblasting procedure when the plaintiff’s back suddenly gave way (“the incident”).
13 The plaintiff worked for the next two days, but with awful difficulty. He could not bend, had trouble lifting anything heavier than a few kilograms and was in constant pain. After two nights of virtually no sleep, he attended his general practitioner, Dr Ward, and was certified unfit for work.
14 The plaintiff was advised to have a CT scan of his back in 2004, which revealed a large disc protrusion of the L5-S1 disc.
15 The plaintiff returned to work pursuant to a return to work program, starting with four hours a day and gradually increasing to six hours, and eventually resuming full time duties after about eight to ten months.
16 The plaintiff found the work extremely difficult and was eventually retrenched.
17 In cross examination, the plaintiff agreed that on his return to work with the first defendant, he was able to undertake full time duties dogging and crane driving.
18 Around this time, the plaintiff was also involved in a transport accident in August 2005. He attended Dandenong Hospital with his major complaint being pain between his shoulder blades. He lodged a Transport Accident Commission claim. He experienced thoracic pain for about six to eight weeks after the accident and he no longer has any pain in that area.
19 About a month after being retrenched, the plaintiff then obtained a job with a powder coating firm, where he worked for six months. His back played up shockingly during that time. There was a lot of heavy lifting involved in that job so the plaintiff eventually had to give it away.
20 After a further period off work, the plaintiff applied for and obtained work at Mono Pumps, where he worked on a casual basis for nine months as a spray painter and then was put on permanently as a leading hand and worked in that role for two and a half to three years.
21 Whilst in that job, the plaintiff’s back continued to give him problems from time to time, but he had a pretty sympathetic boss who knew of his injury and provided all the necessary lifting gear. The plaintiff also had the support of his general practitioner and painkilling and anti-inflammatory medication.
22 In cross-examination, the plaintiff described his leading hand duties at Mono Pumps. His job involved paperwork but also still working on the floor running a crew. It was a bit less hands on work than working just as a spray painter but he was still doing some spray painting of pumps.
23 The initial reason the plaintiff left this job in February 2010 was because there was a dispute with some other workers about overtime but the plaintiff did have problems with his back whilst doing his duties.
24 The plaintiff then did some odd jobs in installation and worked as a trade assistant with a plumbing firm, but avoided heavy work.
25 In May 2010, the plaintiff commenced work at Bob Jane T-Marts as a tyre fitter. He worked in that job for about three months. The work, involving four wheel drives, was too heavy for him and he had to abandon it.
26 The plaintiff was then unemployed for about four months. In about mid January 2011, he obtained a labouring position in Somerville, cutting up and measuring pieces of timber for houses. He worked in that role until 18 February 2011, when he was forced to give up the job because its physical demands were beyond him. His back hurt with all the lifting involved.
27 The plaintiff then worked for his father for about eight months as a plumbing labourer. That work came to an end because his father had to have surgery. The plaintiff would have continued in this role had his father not become ill. The plaintiff could cope with his duties as he was able to avoid heavy lifting.
28 The plaintiff then worked for nearly ten months as an excavator operator, truck driver and labourer for Carolyn Nominees in the construction of sound barriers on Melbourne freeways. His job involved excavator and truck driving, labouring, sawing, measuring, putting in bolts and a range of other duties. Lifting was mainly done by machine.
29 The plaintiff’s back played up constantly doing these duties and he was also getting pains down his legs. He needed an injection in his back at that time. In November 2011, he had to take a week off because of back pain and he thought that absence resulted in him being laid off in early December.
30 On 9 January 2012, the plaintiff commenced full time work with Gold Acres in Ballarat as a spray painter, having moved to the area to be with his partner.
31 The plaintiff deposed in late July 2012 that he did not know how long he would be able to stay in that job and it was becoming increasingly difficult. He usually spent every weekend resting and alternating between sitting down and getting up and walking around the house. He did not go out much over the weekend and avoided almost all vigorous activity and just tried to focus himself on getting back into shape in order to get to work on Monday morning. He had to take medication to help him get through a day at work.
32 That job recently ceased as there was not enough work available.
33 Since the incident, the plaintiff missed being able to work on an unrestricted basis. He had a pretty good work record and he enjoyed work and the camaraderie at the workplace. He particularly enjoyed things like smoko and chatting with workmates. He also enjoyed picking up different skills from time to time.
34 Whilst the plaintiff had done various jobs like spray painting, working as a fitter and turner, machine operator or excavator driver since the incident, he was now limited in all those activities.
35 Over the years, the plaintiff had built up experience in a number of different types of work and now realised he would never be able to do any of those heavier jobs or work with vibrating machinery on a full time or unrestricted basis and that situation depressed him.
36 The plaintiff had also been conscious that at work, co workers had to cover for him from time to time and that led to conflict and also contributed to his depression.
37 In cross-examination, the plaintiff agreed that he had been able to cope physically with some jobs since 2004 and not with others. In particular, he could cope with spray painting full time, if the work was all on a chain line
38 The plaintiff agreed that he recently told Mr Brearley that he was prepared to do virtually any work if he was given the chance. He agreed he was prepared to do any work within restriction. He is currently looking for jobs on a full time casual basis as an employee. He has not done any work on a subcontracting basis in the last two years. He would be capable of doing the jobs at Mono Pumps and Ballarat if they were still available.
39 In examination in chief, the plaintiff said a number of job offers were withdrawn when employers found out about his back injury.
Progress
40 As of February 2011, the plaintiff was taking Voltaren, Tramal, Panadeine Forte, Mobic and Zoloft. He was in pain all the time. It was like a dull ache in his low back. The pain seemed to run down both legs and was worse on the left. If he had a hard day at work, his level of pain increased dramatically to the point where it was almost unbearable.
41 With the assistance of medication, the plaintiff could get to sleep, but usually woke up in the early hours of the morning in pain. He usually had to get up and walk around the house and try to loosen up. He would then have a very restless night. He could not remember his last night of unbroken sleep.
42 The plaintiff was then single, but when he was last in a relationship, he and his partner found intimacy extremely difficult and painful because of his back pain.
43 The plaintiff could not sit for very long and he did not remember the last time he had watched a television program without standing up during it. He could not drive long distances and after forty five minutes had to get out and stretch.
44 The plaintiff had problems with small day to day activities, like putting on his shoes and socks, and he had to sit on the end of the bed to bend over and pull up his pants to get dressed. His constant pain got him down and for a while his doctor treated him for depression.
45 The plaintiff was then able to do very little in relation to recreational activities and was no longer the active person he was. That troubled him. At a relatively young age where there was a whole range of things available, he simply could not do these activities and he was severely restricted in his working life.
Activities
46 The plaintiff deposed in February 2011, that prior to the incident, he was active and enjoyed fishing, motorbike riding and four wheel driving. Since the incident, he had not been fishing for some time and did not go driving. He still had his motorbike, which he rode occasionally, but he found when he did so his back pain increased immediately.
47 In examination in chief, the plaintiff confirmed that prior to the incident, he was a keen motorbike rider. He had only ridden once in the last year and a half when he did the test to upgrade from a learner’s to a probationary licence as he hoped to ride on the road in the future.
48 The plaintiff still owns a dirt bike, which has been in pieces for over a year and a half. The plaintiff frequently went dirt bike riding with friends before the incident. The plaintiff had ridden a bike on and off over the last ten years, but prior to the incident, he had ridden his bike every two to three weeks.
49 In cross examination, the plaintiff agreed he fell off a motorbike in April 2009. He suffered a shoulder injury and attended his general practitioner. The plaintiff did not require any time off work
50 The plaintiff now goes four wheel driving maybe once a year but is restricted in his ability to participate in this activity with his friends. He used to drive all through the mountains, spending three or four days at a time, but now he is lucky to do an overnight trip. He cannot drive in any rough terrain because the jolting of the vehicle throws his back around and he ends up in pain for the next fortnight.
51 In cross-examination, the plaintiff confirmed he owns a four wheel drive and goes driving from time to time with friends, usually at Mount Baw Baw, which is a three quarter hour drive from his house. They go away overnight and for a maximum of two days. These trips really involve just the drive to Mount Baw Baw and having a drink and socialising when they get there. Before the incident, the plaintiff could drive all day and went away for up to a week at times, camping and driving all around the country.
52 In cross examination, the plaintiff said he thought he last went fishing at about the start of last year. Before hurting his back, he used to fish from the pier or jetty every weekend. The casting action gave him most pain when he moved his lower back forward. The pain was mainly on his left but he did get pain down both legs at times.
53 Prior to the incident, the plaintiff enjoyed dancing at local clubs and pubs on a weekly basis but since the incident he has been unable to do so.
54 The plaintiff cannot run without pain. Before the incident, he was not a great runner but he used to go to the gym five days a week and do a bit of jogging to warm up. He has not gone since the incident because of his back pain.
55 The plaintiff can walk more or less unlimited during the day but he has to stop for breaks and just cannot keep walking. After about twenty to thirty minutes, his back just starts to get sore as does his left leg.
56 The plaintiff can climb a ladder if he needs to and he is able to kneel. However, getting up from the ground or climbing results in back pain. The plaintiff is able to do very limited gardening. Mowing is okay but he has problems weeding. The last time he did weeding for a couple of hours, he spent the next week in bed.
57 Before the incident, the plaintiff had a great interest in restoring old cars. He still attempts this activity but he struggles with back pain because of the awkward posture that is sometimes required. He has restored about three cars and is working on one at present about once a month, wet rubbing and sanding it to paint it.
Current Treatment
58 The plaintiff continues to see a general practitioner and is prescribed Tramal, Panadeine Forte, Voltaren and Zoloft, and he also takes various over the counter medications.
59 The plaintiff now sees Dr Pearce in Moe. The plaintiff saw a general practitioner once in the four months he was in Ballarat. The plaintiff agreed his main reason for attending the general practitioner was for prescriptions.
60 In examination in chief, the plaintiff confirmed his present dosage of Tramal is 150 to 200 milligrams a day. He took Tramal when working and could not manage without it. He took it in the morning before work and if his pain was bad during the day, he took a further dosage.
61 The plaintiff usually takes three Voltaren a day but comes off them at times on his doctor’s advice. On average, the plaintiff goes three or four days at a time without Voltaren. He also takes Panadeine or Nurofen Plus, six to eight tablets every day. He last took Panadeine Forte three to four weeks before the hearing. His doctor tries to discourage him from taking it unless he absolutely needs it. He took sleeping tablets for a while but he was worried about becoming addicted.
62 The plaintiff still has constant back pain. There have been days when he has tried to avoid taking medication, but then the pain becomes unbearable. Whether he takes medication or not, at the end of the day his pain is very bad and he usually just gets home, drops into a chair and tries to wind down. Sometimes he can barely get out of the chair.
63 In cross examination, the plaintiff initially agreed that he told Mr Jones that his sciatic symptoms appeared to have resolved since January 2012. The plaintiff then said he still gets leg pain but it comes and goes.
64 In re examination, the plaintiff said that he is always in pain but his leg pain comes and goes. His back always is in agony.
65 The plaintiff confirmed that he had had leg symptoms since he saw Mr Jones in 2012. Early on, he was getting pain down the back of both legs to his knees. This leg pain now varies. It comes and goes and about every two or three months, it really gets bad.
66 In examination in chief, the plaintiff described having on average four to six hours’ sleep a night. He finally gets to sleep after two or three hours of tossing and turning and his sleep is then interrupted.
67 In cross examination, the plaintiff agreed he had had some depression over the years after the incident because he could not get back to work. Before the incident, he had not had treatment or medication for depression. He now takes Zoloft daily, prescribed by his general practitioner. There are no side effects.
68 Initially, the plaintiff’s depression affected his social life because he did not want to go out, but that situation ceased a couple of months after the incident. He does not feel like that now. The depression had an impact on his de facto relationship, but not on his most recent relationship.
69 In cross examination, the plaintiff described his relationship with a woman in Ballarat until about two months ago when her daughter was diagnosed with leukaemia. They split up because it was all a bit stressful. In the past he has had a de facto relationship which came to an end just over two years ago because he “called it quits”.
70 The plaintiff continues to have trouble with simple day to day activities like getting in and out of the car or putting on his shoes and socks. His condition has continued unchanged in terms of sleep, problems with prolonged driving, not returning to sporting activity, the constant pressure of trying to stay in work and avoid activities that will aggravate his back. This situation continues to depress him and he still takes antidepressant medication.
Lay Evidence
71 The plaintiff’s mother, Robyn Carstein, swore an affidavit on 3 August 2012.
72 She confirmed that prior to the incident, the plaintiff was energetic, active and fit and also hardworking, with an active social life. She deposed he had quietened down a lot since the incident and was no longer the happy go lucky person he once was.
73 Ms Carstein believes the plaintiff suffers back pain every day but he is not the type of person who complains, so he does not say much about it. She has noticed the plaintiff finds it difficult to get comfortable as a result of pain and he has difficulty sitting for long periods watching television or sitting in the car.
74 Ms Carstein has observed the plaintiff taking a lot of painkilling medication and he has told her of his sleep problems. She confirmed that he had to put his foot up on a ledge to put on his shoes and socks because he could not bend down. She could not recall the last time the plaintiff told her that he had gone motorbike riding or fishing and he does not talk much any longer about heading out with his mates on the weekends.
75 Ms Carstein confirmed the plaintiff loved his job and that he was down because of ongoing problems trying to hold a job down.
76 The plaintiff’s father, Donald McCowat, swore an affidavit on 4 August 2012 in which he confirmed the plaintiff’s pre incident and post accident situation. His observations were similar to those of the plaintiff’s mother.
77 Further, Mr McCowat described the plaintiff’s difficulties working with him as a plumber’s assistant. Mr McCowat thought the plaintiff was not a bludger. In his view, the plaintiff struggled to try and get on with his work and enjoy his old activities, but he did not have much of a social life any more and he had difficulties holding a job, which really upset him.
The Plaintiff’s Medical Evidence
78 The plaintiff was under the long term care of the Lesdon Avenue Medical Centre in Cranbourne. Dr Ward was involved in the plaintiff’s care from 23 October 2004.
79 Dr Ward reported he had seen the plaintiff on multiple occasions with back related muscle spasm and ongoing pain issues which were treated with exercises and anti inflammatory medications. The plaintiff had advised during that time that he was significantly compromised because of his back.
80 Dr Ward confirmed the plaintiff had investigations of his back in 2004 and 2005.
81 Dr Ward noted the plaintiff thought his back problems had certainly been contributed to by his work. In the course of dealing with the plaintiff, Dr Ward reported the plaintiff had suffered significantly with depressive illness, and at times back pain. Dr Ward was sure depression exacerbated the plaintiff’s problems but he was equally sure the plaintiff suffered with ongoing back related disease, in particular, associated with spasm.
82 In his most recent report of late December 2010, Dr Ward confirmed he had first met the plaintiff on 23 October 2004 complaining of severe back pain after the incident. Dr Ward gave a more detailed history of the plaintiff’s return to work and noted he was cleared for work on 8 September 2005.
83 Since then, Dr Ward knew the plaintiff had been inconvenienced by his back, entertained a change of vocation, had participated in some retraining in crane driving, and had ongoing psychological features, partly related to his back condition.
84 Dr Ward last saw the plaintiff on 19 October 2010 and reported the plaintiff never would state his back was well, but it certainly was not the focus of the consultation.
85 The plaintiff saw Dr Wang at the Medical Centre in November 2010. The plaintiff then reported suffering further pain whilst gardening, consistent with the same area he had the original problem at L5-S1.
86 Dr Ward was sure there were some activities the plaintiff found difficult and he had had to compromise some of his social behaviour and recreational activities like motorbike riding, awkward positions repairing cars and even working about the house. Dr Ward did not visualise any surgery and hoped that the major management plan would be core strength activities, stretching, an exercise program and analgesia.
87 Dr Ward believed the plaintiff’s back had been something he suffered in a constant aggravated way but he had soldiered on and tolerated his pain. He knew that in 2010 there had been significant psychological and work related factors which had made the plaintiff’s work environment more difficult. He thought that the plaintiff’s back would percolate along and slowly degenerate, causing him more problems as he got older. Dr Ward expected that it would entertain changes and problems as the plaintiff got older, but whether that was made worse by the original incident or by natural degeneration, Dr Ward was not sure.
88 There were a number of reports from Luke Surkitt, physiotherapist, at Spinal Management Clinics in Victoria. The plaintiff was initially assessed by him in May 2005 and attended until August 2005.
89 Mr Surkitt believed, on the results of the plaintiff’s examination, he presented with signs consistent with lower lumbar discogenic pain with referred symptoms to the lower limbs. He thought the symptoms were emanating from a large central L5-S1 disc protrusion showed on CT in October 2004.
90 As of the last attendance, Mr Surkitt considered the plaintiff was unfit to undertake his pre injury duties for the foreseeable future due to his low back injury and at that stage Mr Surkitt thought it likely that the plaintiff would be unlikely to resume pre injury duties for at least the immediate term. He considered it possible the plaintiff would experience permanent restrictions, particularly undertaking heavy manual tasks and it was likely that he would need to avoid prolonged positions.
91 In Mr Surkitt’s view, the plaintiff then had significant restrictions undertaking typical social, domestic and recreational activities. He thought that a substantial amount of further rehabilitation was indicated in the form of a back strengthening program, later progressing to a gymnasium program.
Medico Legal Evidence
92 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in January 2011.
93 The plaintiff then reported he was coping with his job with difficulty and he had a considerate employer. The plaintiff described virtually all the time having low back pain of variable severity, worsened by bending, stooping, lifting, twisting and turning. He advised that a few weeks earlier, he was bedridden for a week with back pain. When his back pain was severe he had pain in the legs, particularly the left. The plaintiff was then taking Panadeine Forte, Voltaren and Tramal occasionally, and also taking Zoloft.
94 The plaintiff told Mr Brearley he was no longer able to ride his trail bike and go four wheel driving or fishing. He was unable to do any gardening but could mow the lawns.
95 On examination, the plaintiff walked normally. His presentation was direct and straightforward. He gave no sense at all of any exaggeration or any functional component to his symptoms.
96 There was no deformity or tenderness in the back. There was marked restriction of movements in all directions with flexion to thirty degrees, extension to five degrees, lateral flexion to both sides and rotation to ten degrees. Straight leg raising was to forty degrees on the left and fifty degrees on the right. All deep reflexes and sensation were normal.
97 There was some wasting of calf and thigh musculature. The left thigh measured forty eight centimetres in circumference, ten centimetres above the upper pole of the patella compared to forty nine and a half for the right. The left calf was thirty seven in circumference compared to thirty eight for the right. Mr Brearley noted the CT scan of the lumbar spine of October 2004 and the CT scan of the thoracic spine the following year.
98 Mr Brearley thought the plaintiff had mechanical lumbar pain with left leg referred pain resulting from intradisc injury of the L5-S1 intervertebral disc with acute protrusion or prolapse of the disc. He thought the plaintiff’s pain was organic and there was no significant psychological reaction or function component to his symptoms at all.
99 In Mr Brearley’s view, the plaintiff was no longer able to do unrestricted manual work and was doing his present job with restrictions, but with variable and considerable discomfort and pain. Mr Brearley thought incapacity and necessity to work with restrictions would continue permanently. He also noted the plaintiff was subject to unforeseen exacerbations of his symptoms which required him to take some time off work and that made him somewhat unreliable.
100 Mr Brearley thought the plaintiff needed ongoing conservative treatment with medication, physiotherapy and hydrotherapy. In Mr Brearley’s view, a worsening of the plaintiff’s condition would also lead to consideration of discectomy at L5-S1 or further conservative treatment such as an epidural injection.
101 Mr Brearley thought the plaintiff’s prognosis was fair only and it was not possible to prognosticate definitely. He noted the L5-S1 disc was the seat of internal rupture and spontaneous worsening could occur with the development of more severe symptoms and consideration would be required with respect to surgery. He thought that was relatively unlikely but possible.
102 Mr Brearley re examined the plaintiff in July 2012. The plaintiff then reported he continued to have back pain and bilateral leg pain with no improvement and it was perhaps worse.
103 Noting the plaintiff’s work history since the earlier examination, Mr Brearley commented that the plaintiff had told him he was quite prepared to do virtually any job if he were given a chance, although he had to be careful which jobs he applied for as he has not been able to do any heavy lifting or repeated bending and stooping.
104 The plaintiff told Mr Brearley he took Tramal or Panadeine Forte when his pain was very severe, usually once every few weeks. He took four or five Panadeine a day, and continued to take Zoloft, which he found helpful, for his depression.
105 On examination, there was a slight increase in back movement with increased flexion to fifty degrees, lateral flexion to the right and left to twenty degrees and rotation to fifteen degrees. Straight leg raising was to forty degrees on both sides and reflexes and sensation remained normal.
106 Mr Brearley noted that since the earlier examination, there had been no improvement and the plaintiff continued to complain of low back pain with heavy lifting or much bending, stooping, twisting and turning.
107 The plaintiff reported bilateral leg pain when he had severe back pain and that he had to attend Ballarat Hospital in December 2011 for an injection of morphine because of the severity of his back pain.
108 Mr Brearley confirmed a diagnosis of acute prolapse of the L5-S1 intervertebral disc causing low back pain and referred leg pain and noted the plaintiff remained unable to do unrestricted manual work and was permanently unfit for the heaviest type of work. In Mr Brearley’s view, the plaintiff was certainly not fit for his pre injury duties as a sandblaster. Mr Brearley thought the plaintiff could do spray painting and other work where he did not have to do any lifting or repeated bending and stooping, but he could not do work involving long sitting, noting that the plaintiff said he could only sit for half an hour before having to walk around. Mr Brearley suggested a further MRI scan be undertaken.
109 Mr Roger Westh, orthopaedic surgeon, examined the plaintiff in March 2011.
110 The plaintiff then told him that his main trouble now was ongoing back pain which was present every day and he told Mr Westh of the flare up in November last year.
111 The plaintiff complained of bilateral posterior thigh and buttock pain which occurred on average twice a week. He felt the same as he had a year earlier.
112 On examination, spinal alignment was normal. The plaintiff was tender at the lumbosacral junction. He had a painful restricted range of movement in his spine. Flexion was to sixty degrees and extension to ten degrees. Right and left lateral flexion was to twenty degrees, as was right and left rotation. Straight leg raise testing was to sixty degrees bilaterally with resultant back pain.
113 The plaintiff had a pain free range of movement in his hips, although he was complaining of some back pain. There was no muscle wasting and no neurological deficit.
114 Mr Westh noted the CT scan of the lumbar spine of October 2004 and concluded the plaintiff had sustained a lumbar disc injury described on CT as a large disc protrusion at L4-5. Mr Westh thought the plaintiff now presented with features of chronic mechanical back pain post lumbar disc injury at L5-S1.
115 As a consequence of the physical injury and impairment to his back and legs, Mr Westh thought the plaintiff was significantly restricted in relation to employment or related activities and that incapacity would continue for the foreseeable future.
116 Mr Westh thought the plaintiff did not have the capacity to perform his pre injury duties as he was unable to do any work involving heavy lifting or repetitive bending and he would only be able to work in a very light capacity in the future on a permanent basis. He thought ideally, given his young age, the plaintiff should be considered for job retraining and, from a long term point of view, he would need a lot of flexibility in any job which would allow him to sit and stand as required.
117 Mr Westh concluded, as a result of the plaintiff’s back injury, the plaintiff was also significantly restricted in relation to social, recreational and domestic activities. Given the duration of pain, namely six years, Mr Westh would be guarded about the plaintiff’s long term prognosis, particularly his poor response to treatment to date. He considered it would be important for the plaintiff to exercise on a regular basis and try to improve his general fitness. He noted almost certainly the plaintiff had developed lumbar disc degenerative changes as a result of the back injury. At that stage, Mr Westh considered there was no indication for any surgical treatment though that may need to be considered in the future if the plaintiff’s condition was to deteriorate significantly.
Investigations
118 The CT scan of the lumbar spine organised by Dr Ward in October 2004 showed a large disc protrusion at the L5-S1 level.
119 The CT scan of the thoracic spine organised by Dr Ward in September 2005 was normal.
The Defendants’ Medical Evidence
120 Mr Battlay examined the plaintiff in July 2010 and provided a supplementary report in September 2010.
121 On examination, the plaintiff held his spine in the normal position but performed only half the expected range of back movement with all movements reproducing his pain. There was a negative slump sciatic nerve stretch test and relatively good flexion of the back when tested on the couch. There was no objective neurological loss but the plaintiff did have one centimetre of left calf muscle wasting and there was a partial left foot drop when he tried to walk on his heels.
122 Mr Battlay noted the CT scan showing a large L5-S1 disc protrusion which he thought would suggest right sided rather than left sided foraminal encroachment but the plaintiff was adamant most of his symptoms had been on the left all along.
123 Mr Battlay thought the plaintiff had a permanent impairment because of his accepted back injury. Having noted the presence of a large disc prolapse at L5-S1, although there was some calf muscle wasting on the left, Mr Battlay found there were normal reflexes and no radiculopathy. Mr Battlay thought the plaintiff’s impairment had stabilised.
124 Having been provided with Dr Ward’s April 2010 report and also having looked through the plaintiff’s medical history, Mr Battlay noted it was clear that multiple presentations had been made for depression and prescription of analgesia. This was consistent with the history given to him that the plaintiff had recurrent symptoms since the incident.
125 Based on the available evidence, Mr Battlay concluded there was no indication there was a pre existing back injury to cause a large disc prolapse in 2004.
126 Mr Battlay commented that a disc does not recover even if a patient is able to resume pre injury duties and the information forwarded to him had not highlighted any further back injury that caused a further injury to the L5-S1 disc.
127 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 2 May 2012.
128 The plaintiff then reported symptoms of constant low back pain aggravated by any physical activity but sometimes by very simple actions. He reported his leg symptoms had resolved since January 2012.
129 The plaintiff advised his walking capacity was virtually unlimited. He found it difficult to stand in one place for long periods of time because of backache. He could drive continuously, but not for more than an hour. He could climb a ladder and kneel. He had given up trail bike riding and undertook limited four wheel driving. He was able to mow his lawn and perform limited gardening and weeding in short bursts.
130 On examination, the plaintiff indicated pain at the L4-5 level of his lumbar spine. He had flexion to thirty degrees with extension to twenty degrees. Straight leg raising on the left was forty five degrees and on the right, sixty degrees. Knee and ankle joint reflexes were present and equal. Sensory testing in both lower limbs was normal. Subjectively, there appeared to be some slight weakness of the left extensor tendon of the great toe.
131 Mr Jones had available Dr Ward’s December 2010 report and also Mr Brearley’s report.
132 Mr Jones thought the prognosis was likely to be one of continuing lumbar back pain and stiffness with the possible recurrences of severe episodes of back pain and possible sciatica in the future. He thought the long term prognosis was likely to be one of gradual stabilisation of the back condition but likely one of residual complaint of stiffness and lumbar back pain. Mr Jones thought the plaintiff did not have a capacity to return to pre injury employment and was unfit for work requiring repeated bending or heavy lifting.
133 Dr Ward’s notes between October 2004 and November 2010 were relied upon by the defendants.
134 Panadeine Forte, Voltaren and Ducene were prescribed in October 2004 and a CT scan was organised. There were further prescriptions of Panadeine Forte in November 2004, with Voltaren being added at that time. The plaintiff attended in January and March 2005 for prescriptions.
135 Tramal was prescribed on 11 March 2009. It was noted on 23 March 2009, that the plaintiff was angry and irritated at work and felt they did not listen. He was given a certificate in relation to his migraines and behaviour.
136 It was noted on 29 April 2009, that the plaintiff fell off a motorbike (“will not stop despite back”). Tramal and Panadeine Forte were prescribed. There was a crush injury to the left thenar eminence reported on 19 May 2009. The plaintiff’s general management was discussed on 25 May 2009 and Panadeine Forte, Tramal and Voltaren were prescribed.
137 There were similar discussions on 29 March 2010. Tramal was prescribed and it was noted there were issues with work and harassment by a colleague at the plaintiff’s house about overtime. On 6 April 2010, it was noted the issues at work had got worse and the plaintiff felt intimidated and physically threatened.
138 The plaintiff attended for an unrelated matter on 12 June 2010 and Panadeine Forte, Tramal and Voltaren were prescribed. A further prescription was given on 23 November 2010, when it was noted there was a sudden onset of back pain when the plaintiff was doing some gardening at home (had chronic back pain), pain radiated to both legs. On 4 March 2011, Voltaren and Panadeine Forte were prescribed.
The Transport Accident
139 The plaintiff attended Dandenong Hospital Emergency Department in August 2005 following a transport accident. It was noted a lumbar spine x‑ray was normal. However, there was slight wedging anteriorly of the mid-thoracic vertebrae.
140 On 7 October 2005, the plaintiff lodged a Claim for Compensation in relation to the transport accident. His claim for income benefits in relation to that accident was accepted in November 2005.
Overview
141 There is no dispute in this case that the plaintiff suffered a prolapse of the L5‑S1 intervertebral disc in the incident as shown on the 2004 CT scan. Objective findings of foot drop and calf wasting on clinical examination are also supportive of this diagnosis.
142 Whilst the plaintiff has experienced some depression as a result of his incident injury and continues to take antidepressant medication, his present back condition is organically based. There is no suggestion by any examining medical practitioner of the presence of any functional overlay or exaggeration by the plaintiff on examination.
143 Further, there is no evidence that the plaintiff, who was aged only twenty three at the time of the incident, had any problems with his back prior thereto.
144 The issue for determination in this application is whether the organically based impairment the plaintiff presently suffers in relation to his lumbar spine injury is serious and permanent. Counsel for the defendants conceded whilst the plaintiff experiences some pain and restriction, the level thereof did not meet the statutory definition of serious.
145 Taking into account all the evidence, I am satisfied the plaintiff does have a serious injury.
146 I found the plaintiff to be a truthful, credible witness who did not overstate the level of his pain and disability. There was no evidence challenging the genuineness of his complaints. Further, the affidavit evidence from both his parents, confirming the plaintiff’s level of pain and difficulties, was not challenged.
147 I accept that since the incident, the plaintiff has suffered ongoing, constant low back pain which at times is severe and subject to flare ups, such as occurred in late 2011 when he attended Ballarat Hospital and required an injection into his back. Whilst his sciatica may have improved somewhat, I accept that the plaintiff has leg pain which comes and goes and is of some severity every two or three months.
148 Although the plaintiff has worked full time in various jobs since the incident, I accept that he has done so in the face of ongoing back pain and the requirement for significant medication.
149 As Nettle JA commented in Dwyer v Calco Timbers No 2 (2008) VSCA 260 at paragraph 64, that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim… but it would be unfortunate and in my view wrongheaded, if in future such an applicant were treated less favourably than another who being of less strength of character, simply resigned himself to his injury.”
150 In my view, the plaintiff’s stoicism cannot hide the fact that back pain has been a major component in his life since the incident: see Buchanan JA in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 47.
151 Whilst the plaintiff has been able to work full time in a number of jobs with the assistance of medication since the incident, other jobs have caused him greater difficulty, leading to a cessation of employment or absences which have caused him to be laid off, such as was the situation with the Carolyn Nominees’ job. I also accept that the disclosure of his back condition has led to the plaintiff being knocked back by potential employers.
152 Since the incident, the plaintiff has been limited permanently in his ability to perform unrestricted heavy work, a matter of particular significance for a young man with no particular skills or training and limited education. The consensus of medical opinion is to this effect.
153 In terms of the plaintiff’s employment capacity, there is also his father’s unchallenged evidence of the plaintiff’s problems working with him in his plumbing business and his struggles generally to stay in the workforce.
154 At the age of thirty one, the plaintiff is still a very young man. He suffered injury at the age of twenty three, at a time when he was starting his working life.
155 As Beach JA and Ashley JA said in Stijepic v One Force Group Aust Pty Ltd (2009) VSCA 181 at paragraph 43:
“... when considering the pain and suffering consequences for the appellant by comparison with other cases, we consider it is relevant to look at the likely period for which those consequences will be experienced. All things being equal impairment consequences which a man or woman will have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.”
156 As a result of his back condition, the plaintiff continues to require ongoing strong painkilling medication regularly prescribed by his general practitioner.
157 The plaintiff continues to wake every night with back pain and has difficulty going to sleep. He is reluctant to take medication to help him sleep for fear of addiction.
158 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:
“It is in my view a matter of great significance for a person to be denied seemingly for the rest of his life the ability to enjoy uninterrupted sleep… the plaintiff often experiences painful awakenings in the course of a single night … that is properly to be regarded as constituting a very considerable diminution in … the plaintiff’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
159 The plaintiff has difficulty sitting for prolonged periods and has to take frequent breaks when driving longer distances.
160 Minor activities of daily living such as putting on his socks are difficult for the plaintiff because of his back pain, a situation confirmed by his mother.
161 The plaintiff is restricted in his ability to perform home maintenance tasks and gardening because of back pain. Even weeding for a couple of hours recently put the plaintiff in bed for a week.
162 There has been a significant interference in the plaintiff’s sporting and recreational activities as a result of his back condition. The plaintiff is only able to go four wheel driving on a very limited basis. Fishing is difficult because of back pain when casting and the plaintiff last went fishing over a year ago.
163 The plaintiff is no longer able to enjoy riding dirt bikes although he hopes to get a road licence in the future. Whilst he is still able to restore his cars, the plaintiff spends much less time on this activity than he did prior to the incident and experiences back pain when adopting awkward postures whilst doing so.
164 Prior to the incident, the plaintiff frequently attended the gym and ran to warm up before exercising. The plaintiff is unable to run because of back pain and he no longer attends the gym.
165 Taking into account all the evidence, I am satisfied this young man has an impairment to his back which meets the statutory test of serious.
166 As the plaintiff’s back pain and restrictions have persisted for over eight years with little improvement, I am satisfied his impairment is permanent. As Mr Battlay conceded, things are not likely to get better and in all likelihood they will get worse. The plaintiff has suffered a large disc prolapse that will not repair itself.
167 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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