McKenna v Ballarat Concrete Products
[2014] VCC 774
•30 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04747
| TERRENCE McKENNA | Plaintiff |
| v | |
| BALLARAT CONCRETE PRODUCTS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2014 | |
DATE OF JUDGMENT: | 30 May 2014 | |
CASE MAY BE CITED AS: | McKenna v Ballarat Concrete Products | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 774 | |
REASONS FOR JUDGMENT
---
Subject: Accident Compensation
Catchwords: Accident Compensation Act 1985 – serious injury – lower back injury occurring the during the course of employment - 40 year old concrete finisher – leave sought for pain and suffering consequences only – extent of consequences – plaintiff’s credit.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292.
Judgment: Leave granted in respect of pain and suffering.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HIS HONOUR:
Introduction
1 This is an application for leave pursuant to the provisions of s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to commence a proceeding for common law damages limited to pain and suffering only in respect of a lower back injury sustained by the plaintiff during the course of his employment with the defendant. The plaintiff’s injury was the subject of a WorkCover claim made by him on 10 November 2009. The claim was accepted on behalf of the employer and no issue was raised in relation to its occurrence. The issues to be determined in this case are:
(i) whether the plaintiff has sustained consequences of his low back injury which satisfy the statutory test for leave to be granted; and
(ii) the extent to which I can accept the plaintiff as an accurate and reliable historian and witness before me in terms of his own description of the effects of consequences upon him.
2 Mr McKenna is currently 40 years of age and initially commenced work with the defendant for a short period in 1999. He had a background in labouring and process work in the Ballarat area since completing Year 11 at Ballarat North Technical School. He did not hold any formal trade qualifications. In approximately 2001, the plaintiff was re-employed by the defendant, this time on a more permanent basis and undertaking work described as “concrete polishing” or “concrete finishing”.
3 The defendant makes large concrete products for use in culverts and similar application in engineering projects and the plaintiff’s task on more or less a permanent basis was to use a slurry of concrete mixture to go over and fill in any air pockets or holes that had been left in the newly moulded product. This apparently required him to work in a bent posture for lengthy periods during the normal working day.
4 The plaintiff was very physically active prior to sustaining his injury and it was urged upon me that he had been a very physical man who had both played football on a regular basis and enjoyed a variety of outdoor activities, including camping, fishing and motorcycle riding. The plaintiff by no means conceded that this case was one that fell to be assessed as being on the “borderline” but ultimately urged me to find that the consequences flowing to the plaintiff easily satisfied the statutory test.
5 To the contrary, the defendant, while accepting the occurrence of injury and its general description as a “disc bulge with annular tear at the lumbosacral disc”[1] submitted that I should find that the consequences suffered by the plaintiff fell short of the statutory requirement. Whatever descriptor was applied to them, it fell short of the “very considerable” test. Emphasis was placed on the adjective “very”.
[1]Exhibit A, page 28
6 Additionally, the defendant raised the plaintiff’s credit as an issue for determination in this case.
The evidence
7 The plaintiff was the only witness who gave viva voce evidence in this application. He had sworn two affidavits in support, the first on 8 April 2013, and the second on 3 April 2014.[2] It is useful to set out in summary form the contents of the affidavits relied upon:
[2]Exhibit A, page 10-19
· The plaintiff is presently 40 years of age and has generally worked as a labourer after finishing school at Year 11 level.
· He lives alone in Linton (outside Ballarat) but has joint care and custody of his eight year old daughter.
· He started working for the defendant in 1999 but on a full-time basis from 2001 undertaking repair and finishing work on a variety of moulded concrete products that were used in engineering works. This involved considerable bending.
· The plaintiff developed pain over the years and attributes this back pain to his decision to give up football in 2008.
· He first saw his general practitioner concerning his back on 25 May 2009 and had physiotherapy and investigative tests. After a short time off work he returned to normal duties.
· He again attended the general practitioner on 20 October 2009 after a back flare-up and was put off work on painkillers. He submitted a WorkCover claim on 10 November 2009 which was accepted.
· The plaintiff returned to light duties shortly before Christmas 2009 and saw Mr Mitchell, an orthopaedic surgeon in March 2010. He was still on light duties. The light duties classified him as a “storeman” with a 10 kilogram restriction on lifting. Late in 2010, Mr Mitchell arranged for the plaintiff to have further investigative tests but surgery was not advised. He was given painkillers and, later, anti-inflammatories, which were of little assistance. He had physiotherapy and hydrotherapy and was instructed in exercise techniques.
· The back pain is constant but varies in intensity. The plaintiff goes for a walk or takes Panadol to ease the pain. He tries to be careful. The pain affects both legs and buttocks and usually interrupts his sleep, which requires him to get up and walk around.
· The plaintiff can no longer engage in camping, fishing, riding motorbikes or playing football. It restricts his ability to socialise. He remains in employment but unable to return to unrestricted labouring work and is no longer offered overtime.
· He continues to attend his general practitioner but effectively to receive WorkCover Certificates. He cannot take strong painkillers or anti-inflammatories because of side effects and prefers to take Panadol and do exercises.
· Shortly before the application was heard the plaintiff deposed in his second affidavit that he experiences flare-ups when the pain becomes severe, about every couple of days or so, and a flare-up usually lasts until the end of the day but can last more than a day.
· Because of the interruption to his sleep he will sometimes get up and walk around or use a TENS machine and describes being “usually tired” and “under slept”.
· The plaintiff reaffirmed his restrictions in recreational activities, stating that he still rides a bicycle and goes for walks and can walk for around half an hour and drive for about the same period of time. He stresses that he tries to be as normal as he can around his eight year old daughter.
· The plaintiff is still engaged working as a storeman and receives assistance from co-workers when lifting something greater than 10 kilograms. Sometimes he will take a couple of days off because of back pain.
· The plaintiff is living on a property of .7 acres and must attend to activities such as bringing in pre-cut firewood in a wheelbarrow or mowing the grass, which is sometimes done by his father. He deposed to doing some activities such as putting in star picket fence posts where the fencing was loose.
· He has changed his preferred medication to Nurofen Plus and continues to do exercises either at home or travelling to Ballarat to use the hydrotherapy pool.
8 The plaintiff was cross-examined. I note the following matters emerged during cross-examination:
· The plaintiff had been treated over time at the same general practice clinic.[3]
[3]T16, L6-8
· He had not told the doctor specifically about flare-ups.[4]
[4]T17, L10-17
· The plaintiff was taking painkillers and “using home-based therapy”.[5]
[5]T18, L1-2
· In a worst case scenario, a flare-up would last two or three days.[6]
[6]T19, L24-26
· Nurofen takes the edge off the pain “because I just want to keep working”.[7]
[7]T19, L27-30
· The plaintiff played football up until 2008.[8]
[8]T21, L23-27
· The plaintiff still engaged in bicycle riding, travelling a couple of kilometres at the most.[9]
[9]T23, L2-4
· In relation to walking, there can be times when “I’ve gotten down to the letterbox and the leg pain’s too bad and I just turn around and go back”.[10]
[10]T23, L25-29
· On the property there were just trees and no garden.[11]
[11]T24, L27-30
· The plaintiff did not agree that walking and riding a pushbike was the same as camping, fishing and riding motorbikes.[12]
[12]T26, L13-21
· The plaintiff disagreed with propositions that he had gone camping or played football since 2008.[13]
[13]T29, L7-29
· When asked about a Facebook entry relating to a road trip uploaded on 19 April 2013, the plaintiff responded that a photo had been taken when “I stopped to have a stretch and was in front of the rocks and I took a picture between Stawell and Ballarat which was about a one hour drive during a work delivery”.[14]
[14]T31, L1-10
· The plaintiff denied this was a camping holiday.[15]
· The last active treatment the plaintiff had received was from a physiotherapist on 8 February 2010.[16]
[15]T31, L27-29
[16]T32, L5-13
9 In re-examination the plaintiff gave further evidence, including:
· The Nurofen Plus that he was presently taking contained Codeine.[17]
[17]T33, L6-8
· Flare-ups of pain occurred probably three or four days per week.[18]
[18]T33, L11-12
· He described the pain as follows, “Just the pain in the buttocks, the legs. The leg pain is probably more significant. That’s what seems to be getting worse. When I have a flare-up it’s really bad leg pain.”[19]
[19]T33, L15-18
· He last took time off work lasting two or three days, “about a week or two ago”.[20]
· When he had a bad flare-up of back pain he would take two Nurofen tablets in the morning and two at night.[21]
[20]T33, L25-28
[21]T35, L17-21
10 By leave, some further cross-examination was advanced in relation to entries on the plaintiff’s Facebook page from April 2013, which were later tendered in evidence. The plaintiff rejected suggestions put to him that he had been camping at or about the time of those entries.
11 Further evidence put before the court consisted of medical reports and various claim documents in the plaintiff’s court book and affidavits from Tricia Curran, the Administration Manager of the defendant company, Barry Mebbrey, the Production Manager of the defendant company, and a recent medical report from Mr Michael Shannon, orthopaedic surgeon, dated 23 August 2013. (Mr Shannon examined the plaintiff at the request of the defendant’s solicitors.)
Analysis
12 The defendant has quite properly accepted liability in respect of the plaintiff’s claim, and noting Mr Shannon’s analysis, the injury affecting the lower back could be described as “mechanical back pain associated with facet joint arthritis and lumbar disc degeneration”.[22]
[22]Exhibit 2, page 9
13 The description of injury related by Mr David Mitchell, the plaintiff’s treating orthopaedic surgeon, was “disc bulge and annular tear at the lumbosacral disc”.[23]
[23]Exhibit A, page 28
14 Mr Gourlay did not quibble with this description and it would seem that both Mr Shannon and Mr Mitchell are in general agreement that there is an organic injury producing mechanical back pain in the plaintiff, most probably related to underlying degenerative changes in the spine.
15 The most recent MRI of the plaintiff’s back was performed in November 2010 and reported to Mr Mitchell. The conclusion in this report was:
“At L5-S1 there is a small disc protrusion causing slight displacement to the left S1 nerve root in the central canal and the annular bulging is affecting the L5 nerve roots bilaterally in the exit canals.”
16 The radiologist had commented earlier in the report, “There is no sign of any syrinx in the cord or mass lesion, and no cord compression”. It is appropriate to make reference to this, as an earlier MRI taken in April 2010 had referred to, “Prominence of the central canal, suggesting a small syrinx”.
17 I note that in this proceeding no issue was raised by the defendant in relation to the causation of the spinal symptoms which undoubtedly would have been disputed had the syrinx been diagnosed.
18 Given that the injury has been accepted and described in similar terms by Mr Mitchell and Mr Shannon, it is appropriate to consider the extent to which that injury impacts upon the plaintiff in order to come to a concluded view as to the outcome of this application. I note Mr Shannon commented in his report, “It is consistent that he would be limited not only in work involving bending and lifting, but also in other activities such as camping, fishing and riding motorbikes”.[24]
[24]Exhibit 2, page 9
19 There is little by way of opinion expressed by the treating orthopaedic surgeon, although Mr Mitchell does comment, “Specifically answering your questions, disc bulge and annular tear at the lumbosacral disc. This is one of the many ways workers experience spinal pain.”
20 Mr Mitchell states that he has a conservative approach to surgery but also comments, “There may be some enthusiast of spinal fusion or a variety of other modalities, none of which I believe will be particularly beneficial to him.”[25]
[25]Exhibit A, page 28
21 The general practitioner, Dr Sanderson, reported most recently to the plaintiff’s solicitors on 4 April 2014. He had only seen the plaintiff on one occasion in February of this year to provide him with a three month certificate certifying his restricted capacity. In terms of employability, Dr Sanderson commented, “I believe he would be suitable for non-repetitive duties which do not involve lifting more than 10kg, frequent bending, twisting, stooping or reaching above shoulder height. I believe his ultimate prognosis is that he will be prone to remission and relapse of symptoms for the foreseeable future.”[26]
[26]Exhibit A, page 22A
22 Earlier reports from doctors at the general practice are consistent with the occurrence of injury and the progress of symptoms described by the plaintiff and not challenged in cross-examination.
23 I had the opportunity to observe the plaintiff in cross-examination and I accept his evidence as truthful and reliable. I note in particular that he was cross-examined by Mr Gourlay on the basis of entries shown on his Facebook page[27] relating to postings that were made on 19 and 27 April 2013.
[27]Exhibit 1
24 The plaintiff responded to the Facebook entries in a manner that I regarded as truthful, denying the suggestion that he had been camping in April 2013. The plaintiff responded promptly and without prevarication that he had been at the next door neighbours and had stayed there pretty much all night.[28]
[28]T38, L10-L27
25 It is not uncommon in applications of this type to have affidavit material which sets out a litany of lost social activity which, on a fair assessment turns out to be vastly overstated. In Mr McKenna’s case I do not believe this to be the situation. He has lived for many years in a country environment and deposed to being an outdoors type of person. It is common ground that he had played football in a club environment up until the age of 35 years. He made concessions in cross-examination about some of his activities which strengthened my impression of him as a truthful and reliable witness. When asked about his previous activity of motorbike riding, he stated that he did not have a motorbike but just rode his friends’ bikes. His description of fishing and camping left me to conclude that these activities had played a major role in his social and recreational activity.
“Q: How often would you have gone fishing?---
A:Pretty much every major holiday, Christmas, Easter, go up with me dad, me dad’s a big fisherman, pretty much just the major holidays, occasionally weekends and stuff.
Q:Again, is that something which because of your injury you had to give up completely?---
A:Yes, for sure.”[29]
[29]T22, L6-L21
26 The plaintiff had also described difficulties with taking the stronger analgesic medication that was initially prescribed to him and had recently changed the medication being taken to ease his symptoms. The fact that the plaintiff has changed medication suggests to me that the symptoms are not well controlled and I accept the plaintiff’s evidence that he does suffer severe flare-ups of symptoms on the basis of at least more than once per week. I also accept that the plaintiff engages in doing exercises at home, including walking at night after a day’s work to relieve his symptoms.
27 On the basis of the above, I am satisfied that the plaintiff experiences pain which is at a level that requires medication, an exercise regime, and the avoidance of aggravating factors in order to control it. The frequency of these symptoms is such that it could properly be described as approaching constant pain, albeit in varying degrees.
28 The plaintiff has deposed to regularly interrupted sleep in terms which persuade me that he properly describes his condition as feeling “usually tired” and “under slept”.
29 There is no dispute that the plaintiff has modified his duties in employment and it is to the credit of the defendant that the storeman role has been made available to the plaintiff to allow him to return to full-time work. The affidavit material provided from Trisha Curran, the defendant’s administration manager, and Barry Mebbrey, its production manager, was not challenged by the plaintiff’s counsel and I accept it as being accurate. Nevertheless, the medical evidence satisfies me that the plaintiff will have a permanent restriction for heavier activity which is a direct consequence of his spinal injury. Whilst the economic consequences cannot be taken into account, I am satisfied that the pain and limitation of use of the lumbar spine impacts upon the plaintiff in his working day to much the same extent as it does in other aspects of his life.
30 The plaintiff is currently aged 40 years and has experienced pain and suffering consequences since at least 2008 and at the very latest early 2009. There is no suggestion that the plaintiff will have anything other than a normal life expectancy. I must therefore consider his relative youth as a factor relevant to my consideration as to the qualitative assessment of his pain and suffering consequences. I am assisted in making an assessment in this case by the matters referred to, particularly in paragraphs 16 and 17, of Haden Engineering Pty Ltd v McKinnon.[30] I also believe that the plaintiff should be regarded as a person of considerable stoicism, noting the persistence with his employment and his evidence highlighting his wish to downplay his symptoms in the presence of his eight year old daughter. Once again, the authority in Haden Engineering Pty Ltd v McKinnon[31] is of assistance. I make a similar finding to Buchanan JA in Haden, that the plaintiff’s stoicism cannot hide the fact that pain is a major component in his life.
[30][2010] VSCA 69
[31]Ibid., paragraph 47
31 I am by no means critical of the submissions advanced by Mr Gourlay of counsel, who appeared for the defendant in this matter. I was referred in addresses to decisions of Stijepic v One Force Group Australia Pty Ltd & Anor[32] and Sumbul v Melbourne All Toya Wreckers Pty Ltd.[33] Each of these cases is concerned very much with credit issues tainting the evidence given by a plaintiff. I can well understand that the material put to the plaintiff, concerning the Facebook entries in Exhibit 1, may be seen as a “smoking gun” by those representing the defendant. In Stijepic, the Court noted that cross-examination had revealed “mainly by reference to the appellant’s Facebook site – that he has had, since the accident, a not inconsequential social life; and that he has travelled overseas on extended holidays without any great apparent difficulty. Perhaps some of the written entries on the site were, as the judge suggested, “A bit of hype”. Even so, the various photographs of the appellant in the company of friends suggested that this was a young man well able to enjoy himself”.[34]
[32][2009] VSCA 181
[33][2006] VSCA 292
[34]Stijepic, op. cit., paragraph [40]
32 Given the findings that I have made, as to the plaintiff’s credibility and reliability, and particularly noting the responses he gave when cross-examined about the Facebook entries, I do not regard Mr McKenna’s circumstances as being properly compared with those which were found in Stijepic’s case.
33 Similarly, Mr Gourlay referred me to the observation made in Sumbul. That case had been relied upon as authority for a proposition that a return to alternative employment would ordinarily make it difficult for a court to conclude that the pain and suffering consequences experienced satisfied the statutory threshold. The comments made in Stijepic relevant to Sumbul are sufficient to satisfy me that the ability of an injured worker to return to alternative duties is a factor that should be taken into account as part of the totality of the evidence in an application of this type. Indeed, I do take that matter into account but, on the whole of the evidence, I am satisfied that the consequences of the plaintiff’s low back injury are properly assessed as being not less than at least very considerable to him.
Conclusion
34 I propose to grant leave to the plaintiff to claim damages for pain and suffering in respect of an injury to his lower back sustained in the course of his employment with the defendant.
35 I will hear the parties in relation to the form of orders and the question of costs.
- - -
0
3
0