Meyer v Wesfarmers Limited
[2012] VCC 1851
•3 December 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06140
| ANDREW MARK MEYER | Plaintiff |
| v | |
| WESFARMERS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 8 and 12 November 2012 | |
DATE OF JUDGMENT: | 3 December 2012 | |
CASE MAY BE CITED AS: | Meyer v Wesfarmers Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1851 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the thoracic spine – pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260.
Judgment: Leave granted for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr K Mueller | Ryan Carlisle Thomas |
| For the Defendant | Mr I Gourlay with Mr P Jens | Wisewould Mahony Lawyers |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 19 December 2011.[1] The Originating Motion was amended by an Amended Originating Motion.[2] The effect of the amendment was to delete “Coles Group Limited” as the defendant and substitute “Wesfarmers Limited” as the defendant.
[1]PCB 1-4
[2]PCB 5-7
2 In the Originating Motion and the Amended Originating Motion, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendant.
3 The plaintiff’s case is that he suffered an injury arising out of, or in the course of, or due to the nature of his employment with the defendant on 26 July 2006.
4 There is no issue in this proceeding that on 26 July 2006, in the course of his employment by the defendant as a motor mechanic at the Kmart Tyre and Auto Service Centre in Wendouree, the plaintiff injured his back whilst removing the front wheel assembly of a vehicle. There is also no issue that the nature of the injury to the plaintiff’s back was a musculoligamentous strain or injury in the thoracic spine associated with aggravation of a pre-existing asymptomatic degenerative process in the thoracic and lumbar spine. Further, there is no issue in this proceeding that the plaintiff continues to suffer pain and suffering consequences as a result of sustaining the injury, or that those pain and suffering consequences are likely to be permanent.
5 The plaintiff claims that the injury he sustained to his back in the region of the thoracic spine has resulted in permanent serious impairment or loss of a body function of the thoracic spine, within the meaning of s134AB(37)(a) of the Act.
6 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering only.
7 The issue in dispute in this proceeding is limited to the question of whether or not the pain and suffering consequences of the plaintiff’s injury are “serious” within the meaning of s134AB(38)(c). This issue is to be determined having regard to all of the evidence.
8 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not serious unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
9 It is necessary, as in every application of this kind, to examine the evidence in order to decide what (if any) injury or injuries the plaintiff suffered during the course of his employment and what consequences (if any) were suffered and continue to be suffered by the plaintiff.
10 The plaintiff filed and served two affidavits sworn by himself in support of his application. Those affidavits were sworn on 17 August 2011 and 18 September 2012 respectively.[3]
[3]See PCB pages 18-20
11 In addition, the plaintiff was called for cross-examination and was extensively cross-examined by the defendant’s counsel.
12 The plaintiff also filed an affidavit of his wife, Tammy Louise Meyer, sworn 19 September 2012.[4] Mrs Meyer was not called for cross-examination and her affidavit was received on the basis that it was unchallenged.
[4]PCB 21-24
13 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as the Plaintiff’s Court Book (“PCB”) pages 8 to 67 inclusive and pages 70 to 102 inclusive.
14 The defendant filed a Court Book (“DCB”) and I admitted into evidence as Exhibit 6, pages 3 to 4, page 23 and pages 38 to 39 from the Defendant’s Court Book. In addition, the defendant tendered in evidence pages 68 to 69 of the Plaintiff’s Court Book, which I marked as Exhibit 5.
15 I also admitted into evidence four DVD discs recording video-surveillance of the plaintiff acquired by the defendant. The video-surveillance was taken on 4 October 2012, 7 April 2012, 10 March 2012, 11 March 2012, 8 October 2011 and 11 October 2011. I marked the various videos Exhibits 1 to 4 inclusive.
16 After considering all of the evidence and the various submissions made by counsel, and for the reasons which hereafter follow, I have concluded that the plaintiff must succeed on his Originating Motion.
17 It is necessary to start with the affidavit material filed by the plaintiff. The plaintiff is now thirty-six years of age. He was born in 1976 and he is a married man with three dependent children. He was educated in Queensland and in the Northern Territory, leaving school early in Year 12 to undertake and complete a four-year apprenticeship as a motor mechanic.[5]
[5]PCB 9
18 Shortly after completing his apprenticeship, the plaintiff moved with his family to Waubra, a small town about 20 kilometres from the centre of Ballarat. His parents acquired what was known as the “Waubra Garage” which consisted of a petrol station and attached workshop and residence. Thereafter, for about five years, the plaintiff ran a small garage business which consisted mainly of car repairs.[6]
[6]PCB 9
19 However, the business was not large enough to support the plaintiff and his family and he acquired a job for a short time at Burson Auto Parts in Ballarat, where he sold spare parts for motor vehicles. He was not happy in that job because he “loved working as a mechanic”.[7] In May 2005, he commenced working for the defendant at the K-Mart Tyre and Auto Service Centre in Wendouree as a motor mechanic.[8]
[7]PCB 9
[8]PCB 9
20 The plaintiff continues to live at Waubra at the Waubra Garage, which is closed. He deposed, and it is not in dispute, that prior to 26 July 2006, he had no complaint of back pain. However, on that day, he was required to replace the front shock absorbers of a car, and in order to do so, the car was placed on a hoist and raised to about chest level. He removed the front strut assembly so that he could gain access to the shock absorber, and in the process took the full weight of the front strut assembly. He said he felt a popping sensation, sudden pain and a burning sensation in the region of his middle-back, but had to continue holding the front strut assembly to prevent it falling to the ground and being damaged. Despite the pain, he carried the assembly to the workbench. He worked for the rest of the day.[9]
[9]PCB 10
21 The plaintiff reported the incident to his manager the following day. He continued to work for the next few days following the incident, expecting that the pain in his mid-back would go away, but when it did not do so, his employer arranged for the plaintiff to see the defendant’s doctor, a local Ballarat general practitioner, namely Dr Crouch. The plaintiff saw Dr Crouch for the first time five days after the injury, on 31 July 2006.[10]
[10]PCB 10
22 Dr Crouch prescribed anti-inflammatories and gave a certificate putting the plaintiff on light duties. The plaintiff deposed in his first affidavit that he next saw Dr Crouch on 8 August 2006 when the symptoms had not settled. Dr Crouch arranged for x-rays in late 2006 and a CT scan. The plaintiff also had some physiotherapy.[11]
[11]PCB 10
23 The plaintiff returned to Dr Crouch on 28 September 2006 and despite the fact that the pain was continuing and the symptoms had not settled, the plaintiff asked Dr Crouch for a full clearance because he was under pressure from the defendant to resume full duties. The plaintiff said, and I accept, that there was insufficient suitable light work available for him to perform alternate duties and it was a busy workshop with only one or two mechanics available to perform the work on hand. He therefore resumed full duties after 28 September 2006. He said that at that time:
“… I continued to suffer ongoing pain which was worse with a heavy workload.”[12]
[12]PCB 11
24 The plaintiff deposed that the problems with his back pain continued and he then consulted his own general practitioner in the Ballarat area, Dr Pickavance, and he saw him for the first time about his back problems on 17 November 2006. Dr Pickavance referred the plaintiff for acupuncture and to a chiropractor and a neurosurgeon, and he gave the plaintiff a WorkCover Certificate stating that he was only fit for non-manual work. The plaintiff said that he did not attend any of the referrals and nor did he hand in the Certificate to the defendant –
“… because I was under pressure at work and anxious to retain my employment. My boss also told me that WorkCover would not pay for the cost of the chiropractor.”[13]
[13]PCB 11
25 Despite continuing pain, the plaintiff continued in the employment of the defendant until October of 2008, that is, about two-and-a-quarter years after the incident in which he was injured had occurred. He said that he continued to work and perform all the normal duties of a motor mechanic. He deposed:
“I was aware that even if I changed jobs that any alternative work as a motor mechanic would involve heavy lifting, bending and the like. I loved my work as a motor mechanic and was anxious to continue my trade.”[14]
[14]PCB 11
26 The plaintiff deposed that throughout his employment with the defendant he continued suffering ongoing pain in his middle-back and he consumed large doses of Panadol and, on occasions, Digesic and Panadeine Forte, which he was given by his wife.[15]
[15]PCB 11
27 The plaintiff resigned from his employment with the defendant in October 2008, and at that time he went back to Dr Crouch, who referred him for further scans and to a chiropractor, Dr David Riordan. The plaintiff deposed he attended Dr Riordan –
“… on a few occasions but I stopped because the defendant refused to pay the accounts.”[16]
[16]PCB 12
28 A few weeks after leaving the employment with the defendant, the plaintiff commenced employment with SEM Fire and Rescue in Ballarat on 10 November 2008. That company makes specialised vehicles in the emergency services area. The plaintiff is still employed in this job and his work involves fitting body mounts and relocating air lines, wires, fuel tanks and the like. The plaintiff deposed:
“There is little or no heavy lifting involved in this work and most of my jobs are performed in an upright position. The work, whilst manual, is much less strenuous than the work I was performing as a motor mechanic.”[17]
[17]PCB 12
29 The plaintiff deposed in his first affidavit that he is able to cope better with the work that he is presently performing than his previous work as a motor mechanic and he has had minimal time off work since commencing his new employment. He deposed:
“… However I continue to have daily back pain which usually increases over the course of the working day.”[18]
[18]PCB 12
30 The plaintiff attended the chiropractor, Dr Riordan, regularly for about three months in late 2009. However, he said that he got little or no relief from this treatment, and on 15 February 2010, he once again returned to Dr Pickavance, the general practitioner.[19] Dr Pickavance referred the plaintiff to Mr de la Harpe, an orthopaedic surgeon, who reported that the plaintiff’s condition was not suitable for surgical intervention and recommended that the plaintiff consider sedentary occupations in the future.
[19]PCB 13
31 In August 2010, Dr Pickavance referred the plaintiff to the Pain Clinic at the St John of God Hospital in Ballarat, where he saw Dr Debbie Kesper, a rehabilitation physician. She advised the plaintiff to take Panadol and Panadol Osteo three times a day. She also recommended Voltaren gel and heat packs regularly, with a stretching regime. The plaintiff also received some physiotherapy and hydrotherapy at that time.[20]
[20]PCB 13
32 At the time of swearing his first affidavit, the plaintiff was seeing Dr S Khan at the Pain Clinic at St John of God Hospital and was taking medication in the form of Tramadol, 100 milligrams twice a day and 50 milligrams up to three times per day, as well as Panadol four times a day. The plaintiff continues to see his general practitioner monthly for prescriptions and review but has been advised that there is little, if anything, by way of treatment that can be done for him.[21]
[21]PCB 13
33 As to other consequences, the plaintiff deposed that it was his lifelong ambition to set up and run his own business as a motor mechanic, and notwithstanding the fact that Waubra was a location that was unable to sustain a viable business, he still planned to open a business in Ballarat. Part of the plaintiff’s case is that that opportunity has been lost to him, that is, he can no longer pursue the career which he had chosen.
34 The plaintiff had a hobby restoring old motor vehicles and at the time that he suffered the injury to his middle-back area, he was in the process of restoring a vehicle which he was unable to complete and was forced to sell the vehicle. He deposed that restoring motor vehicles was his main hobby. Part of the plaintiff’s case is that this has been lost to him.[22]
[22]PCB 14
35 The plaintiff deposed that he is still able to carry out minor repairs on his own car and his wife’s car and occasionally for family and friends, but he can no longer pursue work as a motor mechanic on a full-time basis.[23]
[23]PCB 14
36 The plaintiff deposed that prior to suffering the injury to his thoracic spine, he used to enjoy off-road trailbike riding, but because of the injury he sustained, he has not been able to pursue this hobby.[24] In addition, the plaintiff deposed that prior to the injury, he used to enjoy keeping physically fit and would exercise in the form of running, skipping and using a punching bag at home. He says that those activities now exacerbate his pain.[25]
[24]PCB 14
[25]PCB 14
37 The plaintiff deposed in his first affidavit that he now has trouble sleeping at night, and most nights he has a broken night’s sleep. He said:
“… I regularly get up in the middle of the night and go for a walk for up to ten minutes or so to try and ease the pain.”[26]
[26]PCB 14
38 The plaintiff deposed in his first affidavit that he is restricted in playing and doing physical things with his children. He is a tall man and he says that he struggles to play on the floor with the children and can no longer use a trampoline, which he did with them prior to the injury.[27] The plaintiff deposes that his intimate relations with his wife have been reduced and he finds sexual activity painful and no longer as enjoyable.[28] Little things such as putting on his shoes and socks, he says, can be difficult and awkward for him. He deposed that he has become short-tempered with his family, gets irritable and is now unable to do as much work around the home, which is located on a 2.5-acre block. He deposed that prior to the injury, he would mow the lawns and do gardening, and clean the leaves out of the guttering and perform general household maintenance, and those jobs are now difficult for him and, if he does them, he suffers an increased level of pain.[29]
[27]PCB 15
[28]PCB 15
[29]PCB 15
39 The plaintiff deposed that he suffers pain and stiffness if travelling long distances in a car. This is something that affects him on a daily basis because he is required to travel 20 kilometres to and from work each day.[30]
[30]PCB 15
40 When the plaintiff swore his supplementary affidavit on 18 September 2012, he deposed that he continues to suffer the pain and disability and the consequences that he outlined in his first affidavit. He deposed:
“If anything the pain in my middle back is getting worse.”[31]
[31]PCB 17
41 He says his pain is constant and he described it at best as being –
“… mild to moderate and is often severe”.[32]
[32]PCB 17
42 The plaintiff deposed in his supplementary affidavit that as a result of his increasing pain level, his general practitioner, Dr Pickavance, has increased the dosage of Tramadol which he now takes. In his supplementary affidavit, the plaintiff deposed that he now takes 150 milligrams of Tramadol first thing in the morning and 200 milligrams in the evening. In addition, he takes two tablets of Panadol four times a day and despite this level of medication, he deposed:
“… I continue to suffer frequent severe pain.”[33]
[33]PCB 18
43 The plaintiff deposed that he suffers some pain in the lower back but this is not severe. He says that he often gets his wife to rub Voltaren gel into his spine between, and just below, the shoulder blades. This, he says, gives him some relief for a short time.[34]
[34]PCB 18
44 The plaintiff continues to work at SEM Fire and Rescue but he says that by the time he finishes work in the evening –
“… I am in a good deal of discomfort and I am glad to finish. The pain usually gets worse over the course of the day. … .”[35]
[35]PCB 18
45 The plaintiff deposed that when he gets home from work he does not usually feel like playing or generally engaging with his three children and this may be contrasted with his level of activity before he was injured, when he says he liked playing with them and generally engaging with them, especially riding motorbikes around the family property. He says he can no longer do this activity because it increases his level of pain.[36]
[36]PCB 18
46 The plaintiff concedes that he spends some time in his garage doing light tasks, such as maintaining the children’s motorbikes or doing a little bit of woodwork. He deposed that he is now only able to do little tasks around the property and he relies heavily on his wife to do many of the tasks, including collecting and cutting the firewood with a chainsaw.[37]
[37]PCB 19
47 The plaintiff’s wife, Tammy Louise Meyer, has also sworn an affidavit in support of the plaintiff’s application. In many respects her affidavit corroborates that which the plaintiff has deposed to. Importantly, she deposed that before the plaintiff was injured he was fit and healthy and had no back problems and he prided himself in his physical condition, keeping fit using an exercise machine. Mrs Meyer deposes that the plaintiff is in frequent, if not constant, middle-back pain. She confirms that the plaintiff’s great passion has always been working on motor vehicles, and she confirms the fact that at the time of the injury, he was in the process of restoring two motor vehicles. She also confirmed the other aspects of the plaintiff’s life which have been affected.[38] The evidence from the plaintiff’s wife was not challenged.
[38]PCB 21-24
48 Dr Crouch was the first general practitioner to see the plaintiff after he suffered his injury. Dr Crouch provided a medical report to the defendant on 15 December 2006, and confirmed that he was consulted by the plaintiff on 31 July 2006.[39] Dr Crouch reported that clinical examination at the time revealed significant tenderness in the plaintiff’s lower dorsal spine but with a good range of movement. He prescribed anti-inflammatories and rest and light duties. He also reported that when reviewed one week later, the plaintiff’s pain had essentially settled into his interscapular area, and in particular the left side, with Voltaren making no difference to his pain level. Dr Crouch prescribed physiotherapy and a further clinical assessment on 8 August 2006 indicated the plaintiff’s position to be essentially unchanged. He then arranged for radiological assessment and later, a CT scan, and he went on to say:
“It was fortunate that by mid late September the patient was feeling significantly improved and clinical assessment was essentially normal with full range of movement of his cerebral column. On the 28th of September 2006 he was keen to continue to his normal duties and appropriate certification has been provided. I have not seen the patient further and therefore assume that he has made a recovery from his soft tissue injury. … .”[40]
[39]PCB 61
[40]PCB 61
49 Dr Pickavance has provided a number of medical reports. Dr Pickavance first saw the plaintiff on 17 November 2006 when, on examination, the plaintiff had a full range of movement of his back, but there was tenderness over the paravertebral soft tissues either side of the mid upper mid thoracic spine. He diagnosed a thoracic facet joint dysfunction. Imaging provided to Dr Pickavance at that time revealed that the plaintiff, at that time, suffered –
“… multilevel intervertebral disc desiccation with minor intervertebral disc narrowing demonstrated. There is effacement of the anterior aspect of the thecal sac with mild indentation of the anterior aspect of the cord at the T7/8, T8/9, and T9/10 levels resulting from broad based central paracentral disc protrusion. The cord however returns normal signal intensity throughout, with no features of cord oedema or myelomalacia present. There is no impingement on any of the emerging thoracic spinal nerves at any level on either side.”[41]
[41]PCB 43
50 Dr Pickavance referred the plaintiff for chiropractic treatment, acupuncture and to Mr David Wallace, a neurosurgeon, but the plaintiff did not follow up on those referrals.[42]
[42]PCB 44
51 Dr Pickavance saw the plaintiff again on 19 March 2010 and he recorded as follows:
“Over the years by this time he had received chiropractic care, physiotherapy, massage, acupuncture. None of these things had produced any substantial improvement in his symptoms. Noting the findings on MRI, he was referred for further assessment to Dr David De la Harpe, Orthopaedic Surgeon. … .”[43]
[43]PCB 44
52 Dr Pickavance reported that he next saw the plaintiff on 11 June 2010, by which time he had seen Mr de la Harpe, who had advised that surgery was not needed for the plaintiff’s condition. However, due to persisting pain, the plaintiff was then referred to Dr Bruce Shirazi, a pain specialist. The plaintiff instead saw Dr Debbie Kesper, also a pain specialist, and she reported later to Mr de la Harpe. Mr de la Harpe thought that the plaintiff’s condition had stabilised and was permanent in the form of ongoing pain and therefore restriction of activity such as heavy lifting.[44] Dr Pickavance opined:
“He will continue to suffer from a variable degree of back pain. Until he starts the exercise program it is difficult to know how much pain and the full extent of the ongoing limitation. Review in this regard after completion of 6 months rehabilitation is recommended therefore.”[45]
[44]PCB 44
[45]PCB 45
53 On 17 August 2010, Dr Kesper, the pain specialist from the St John of God Hospital, reported to Dr Pickavance, inter alia, as follows:
“I talked to him about taking regular Panadol and have prescribed Panadol osteo 3 times a day, using Voltaren gel and heat packs regularly with a stretching regime. I will also ask Workcover to fund a targeted exercise regime incorporating hydrotherapy, gym and occupational therapy to provide Mr. Meyer with a fitness regime to improve his management for his back and continue a home exercise program. He may require intermittent use of another analgesic but we see how he goes when he starts to exercise.”[46]
[46]PCB 37
54 At this point it is important to note that when Dr Kesper reported to Dr Pickavance, it was more than four years after the plaintiff sustained his injury and he was still obviously sustaining a fairly high level of pain.
55 As indicated earlier, Dr Pickavance also referred the plaintiff to Mr David de la Harpe, an orthopaedic surgeon, who saw the plaintiff in March of 2010. At that time, the plaintiff complained to Mr de le Harpe of thoracic burning pain which had persisted. Dr de la Harpe diagnosed that the plaintiff was suffering from a degenerative mechanical mid thoracic back pain and that he required conservative management and not surgical intervention.[47]
[47]PCB 38-39
56 Mr de la Harpe reported to Mr Pickavance in like terms on 2 June 2010.[48]
[48]PCB 40
57 The plaintiff also saw another pain physician at the St John of God Hospital in 2011. A report from Dr Saleem Kahn dated 16 September 2011 was tendered in evidence.[49] Dr Kahn opined that the plaintiff is likely to require long-term follow up in the Pain Management Clinic and may require short periods of outpatient rehabilitation at times. He described the plaintiff’s pain as chronic, and that there will be long periods of stability interspersed with episodes of exacerbation which cannot be accurately predicted.[50]
[49]PCB 63
[50]PCB 63
58 In a report to Dr Pickavance on 22 March 2011, Dr Kahn opined, inter alia, as follows:
“On examination his lower limbs neurologically was unremarkable. There was only mild tenderness in his lower thoracic spine on deep palpation. The impression is of axial pain, which is likely discogenic. Such pain is difficult to manage with oral medication and usually poorly responds to oral Opioids. There may be a component of central sensitisation resulting in neuropathic component of pain due to the chronicity of symptoms. There may also be intermittent L4 nerve root irritation which causes his periodic leg pain. I have recommended that he wean the Kapanol over a period of one week by omitting the morning dose. I have then suggested a trial of Tramadol 100mg bd sustained release. He may use normal release Tramadol 50mg qid prn during the day. Tramadol is known to have antineuropathic pain effect.”[51]
[51]PCB 67
59 The plaintiff was seen for medico-legal purposes by Mr Michael Dooley, orthopaedic surgeon, arranged by the defendant. In his first report dated 1 December 2011, Mr Dooley opined, inter alia, as follows:
“Mr Meyer describes the onset of acute thoracic spine pain during the course of his work in July of 2006 when he suddenly and unexpectedly took a heavy load with his outstretched left upper limb. I believe that in this episode Mr Meyer sustained a soft tissue injury to the thoracic spine region, the exact nature of which is not clear. It is possible that the injury involved musculoligamentous damage and some aggravation of underlying degenerative disc disease of the thoracic spine. The anatomy in relation to the attachment of ribs to the thoracic spine is complex and injuries can occur to this area, the nature of which are on understood. Some patients following these types of injuries do report persisting pain that either does not respond fully to conservative treatments or does not settle fully in the passage of time. I do not believe that there are any additional treatments that will help Mr Meyer. It is important that he maintains a general exercise and fitness programme and does not become physiologically unfit in time. It is important, as he already does, that he continues to sensibly modify his activity. His current work is appropriate for him.”[52]
[52]PCB 77
60 The defendant also referred the plaintiff for medico-legal opinion to Mr Darrell Nye, neurosurgeon, who reported on 19 October 2010, inter alia, as follows:
“Following my examination of the above I concluded that the subject suffered an injury in the described circumstances, in all probability of a soft tissue type, with experience of pain and continuing with subsequent demonstration of mild thoracic degenerative disease, unassociated with any neurological sequelae.
A nexus between injury and the subsequently identified degenerative change with continuing symptoms could not be denied.
In response to specific queries raised I would comment as follows:
…
I consider the worker has recovered from any soft tissue injury consequent upon the identified incident, but not from sequelae and particularly degenerative change in the mid thoracic spine.”[53]
[53]PCB 83
61 The plaintiff’s solicitors arranged for a medico-legal assessment by Mr Thomas Kossmann, orthopaedic surgeon, who reported on 24 July 2012. Neither party relied upon that report and it is unnecessary that I refer to it.[54]
[54]PCB 25-33
62 In a helpful written submission, Mr Gourlay, who appeared with Mr Jens for the defendant, identified, in paragraph 2, that the central issue in this application was whether the consequences to the plaintiff of any impairment of his thoracic spine with respect to pain and suffering, when judged by a comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
63 Mr Gourlay conceded that there was not a great deal of difference in this case between the various medical opinions, and that the focus of the hearing was upon the consequences for the plaintiff. The defendant points to the fact that the plaintiff has been able to obtain and continue in alternative full-time employment of a reasonably satisfying nature. The defendant concedes that the plaintiff has not been able to work as a motor mechanic per se, but nevertheless argues that he is able to perform related work and retains at least some capacity to engage in vehicle related activity and it could not be said the plaintiff has lost his life’s vocation, comparing his situation with that of a nurse or the like. However, I have concluded that having regard to the plaintiff’s background and the clear evidence that he was working as a motor mechanic at the time of the accident and before, running his own business, that the plaintiff has made out a strong case for his love of working with motor vehicles as a motor mechanic and this has been deprived of him as a consequence of the injuries which he sustained in the course of his employment with the defendant.
64 Mr Gourlay argues that the description of the plaintiff’s pain by him of being ongoing severe pain is not borne out by the evidence. I disagree, and I here refer to some of the plaintiff’s evidence as to his level of pain:
Q:“Can you tell us a bit more about the pain? Pain, of course, is an individual thing and it is often difficult to describe but do you have constant pain in your middle back?‑‑‑
A:Constant pain and it is a sharp pain, sometimes it gets to the point where it is just a massive burning sensation, otherwise, yeah, I could imagine just feeling like someone was sticking a knife in your back.
Q:How often would you have those sharp pains that you have just described or the massive pains like somebody sticking a knife in your back?‑‑‑
A:Every day.
Q:How long does that last for?‑‑‑
A:It is there every day, all day.
Q:All day, every day?‑‑‑
A:Yeah.
Q:Are there times when the pain is of a lesser nature or lesser severity?‑‑‑
A:There is.
Q:Is the sharp pain there all the time every day or is it sometimes less?‑‑‑
A:The pain is there all day, every day, sometimes it is just the severity that varies.
Q:It is ever not there?‑‑‑
A:I can't remember a day that I have had without pain.
Q:You can't remember a day that you have had without pain all day?‑‑‑
A:Yes.[55]
[55]Transcript 24, L11-31
65 It is true that the plaintiff now has limited treatment and that that treatment is confined to regular visits to his doctor for renewal of prescriptions. Nevertheless, that must be seen in a situation where the plaintiff has been told, and it appears to be the medical fact, that very little further can be done for the plaintiff other than provide him with medication to control his pain level. In my view, that is a serious consequence for this plaintiff, who is now thirty-six years of age with a life expectancy of around eighty. It is common ground in this application that the injury suffered by the plaintiff is permanent.
66 Mr Gourlay, on page 7 and following from his written submission, lists the various activities which the plaintiff is still able to partake in. That is true, but there have also been a number of matters which are now deprived of him, for example, working on motor vehicles and restoring them.
67 Mr Gourlay refers to the video evidence which he tendered. I observed the video evidence in the hearing and I have looked at it again post hearing and I have observed the plaintiff’s reaction to it. In Exhibit 1, which is video-surveillance taken on 4 October 2012, the plaintiff is observed performing the mundane activity of getting into his motor vehicle and later of carrying two small shopping bags and placing them into the luggage compartment of the vehicle and then later filling the vehicle up with petrol. Also in the same exhibit, on 13 October 2012, he is observed pushing a supermarket trolley and placing the items into the rear of the vehicle. At 1.56 pm on the video, the plaintiff is observed leaving his home with his family and getting into his motor vehicle. Looking at the video closely, it can be seen that even performing the task of opening the door and getting into the vehicle, the plaintiff moves in a restricted way as if he is getting into the vehicle in a way to protect himself from pain. In my opinion the plaintiff is depicted as moving cautiously in this video.
68 In Exhibit 2, which is a video taken of the plaintiff interacting with his children on 7 April 2012, the plaintiff is observed in a parkland kicking a plastic football with the children. At 2.41 pm on that video, he may be observed bending to pick up the football, but when he does so he bends with his knees as if being cautious. Again, in my opinion the plaintiff is depicted as moving cautiously in this video.
69 My impression observing the plaintiff in the videos is that whilst he was endeavouring to partake in normal activities, he was doing so cautiously. In my view, the video evidence assists the plaintiff in his case, because it shows that he, being a rather large, tall man, moves with caution and, in my view, in a restricted way. His movements are not natural but cautious.
70 The defendant submits that after the plaintiff’s injury is identified and the consequences to the plaintiff are analysed, that his application falls short of the statutory threshold and that the application should be rejected. The defendant relies upon Haden Engineering Pty Ltd v McKinnon.[56] The defendant submits, correctly, that the pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life. The defendant also relies upon Sutton v Laminex Group Pty Ltd,[57] where the Court refers to the fact that in examining the experience of pain suffered by a plaintiff, the Court must assess the intensity of pain. The defendant submits that the evidentiary basis of pain assessment would ordinarily comprise four matters: namely, what the plaintiff says, both in court and to doctors; what is done about the pain in terms of medication, rest and treatment; and what the doctors say about the extent and intensity of the pain and what the objective evidence shows about the disabling effect of the pain.
[56][2010] VSCA 69, at paragraph [9] and following
[57][2011] VSCA 52
71 I observed the plaintiff closely in giving his evidence. He presented as a witness who was not given to overstating his case. If anything he tended to understate his problems. There was no real attack on his credit. I accept him as a witness of truth and I accept the evidence he has given in his affidavits and before me in this court and I act on it.
72 I accept what the plaintiff says as to his level of pain in his affidavit material and in his evidence. I accept that at times the plaintiff has constant severe pain in the thoracic region of his back. Mr Gourlay submits that in approaching this matter I should have regard to what his Honour Justice Ashley said in Dwyer v Calco Timbers Pty Ltd No 2,[58] where his Honour said, inter alia:
“… impairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.”
[58][2008] VSCA 260 at paragraph [27]
73 The defendant submits that on a full analysis of the retained capacity of the plaintiff in the present case, that his day-to-day life and activities demonstrate a retention of a significant number of the facets of his life.
74 That submission is true, but only to a limited extent. The plaintiff has lost, in my view, the ability to work as a motor mechanic, which was not only a means of earning income but was a great passion in his life, including the restoration of motor vehicles. He is no longer able to do that. The plaintiff is restricted in what he can do around the home. True it is that he was observed on the video cutting the grass, but that was on a ride-on mower. I accept the plaintiff’s evidence as to his limitations and the way his activities have been curtailed as described in his affidavits before me and in his evidence. I also accept the unchallenged evidence of his wife as to his level of pain and as to the restrictions in activities for him.
75 I accept that as a result of the injury to the thoracic region of his back during the course of his employment with the defendant suffers constant back pain. I accept that the level of pain can be properly described as being severe at times. I accept the plaintiff’s evidence that he attempts to control the pain by daily dosages of Tramadol, Panadol and Panadol Osteo. I accept the plaintiff’s evidence that the activities which he is able to engage in invariably increase his level of pain. I accept the plaintiff suffers sleep disturbance on a regular basis because of his constant back pain.
76 I am satisfied the plaintiff’s back injury has left him with pain and suffering consequences which, when judged by other cases in the range of possible impairments can fairly be described as being more than significant or marked and as being at least very considerable. I am satisfied the pain and suffering consequences being suffered by the plaintiff are permanent. The plaintiff has suffered a serious injury to his thoracic spine which is a serious injury within the meaning of the Act.
77 The plaintiff will have leave pursuant to s134AB(16)(b) of the Act to commence a proceeding to recover damages for pain and suffering.
78 I will hear the parties on the question of costs.
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