Mylvaganam v Exedy Australia Pty Ltd
[2013] VCC 407
•14 March 2013
| 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-12-01550
| LOGARAJAN MYLVAGANAM | Plaintiff |
| v | |
| EXEDY AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 March 2013 | |
DATE OF JUDGMENT: | 14 March 2013 | |
CASE MAY BE CITED AS: | Mylvaganam v Exedy Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 407 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low-back
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Hawkins v DHL Express (Australia) P/L [2013] VSCA 26; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Fleming v Hutchinson (1992) 66 ALJR 211; Aburrow v Network Personnel & WorkSafe Victoria [2013] VSCA 46
Judgment: Leave granted to the plaintiff to commence proceedings for the recovery of damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr G Wicks | Ryan Carlisle Thomas |
| For the Defendant | Mr B McKenzie | Wisewould Mahony |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”); that is: “permanent serious impairment or loss of a body function”. The body function relied upon by the plaintiff was indicated to me to be the function of the low back. The application seeks leave to commence proceedings for pain and suffering damages only.
2 Section 134AB(38)(c) states:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
3 The plaintiff must prove he suffered a compensable injury on or after 20 October 1999 that meets the test of “serious injury”.
4 In my opinion, for reasons which follow, the plaintiff has satisfied me that he has suffered a serious injury.
5 It was conceded by the defendants that there was a compensable low-back injury suffered by the plaintiff[1] and the only issues for determination by me are the seriousness of the consequences of that low-back injury[2] and the question of permanence.[3]
[1]Transcript (“T”) 13
[2]T11
[3]T14
6 Accordingly, there is no requirement to give detailed references to the medical reports in this case and I will direct my comments to issues for determination by me in alluding to the doctors.
The plaintiff’s evidence
7 The plaintiff provided two affidavits sworn 7 November 2011 and 27 November 2012 and also an affidavit from a Michael Edward Gossip sworn 4 January 2013. The affidavits describe the plaintiff suffering his back injury on or about 14 September 2009 when he picked up a very heavy flywheel which comprised part of a clutch kit. The wheel weighed about 40 kilograms and the plaintiff, in lifting it, had to turn and place it in a box, when he suffered severe pain in the low back. He stopped work and saw his general practitioner, Dr Bob Haran the next day and after three or four days off work returned to work but describes difficulties with respect to that which would appear to have been unresponsively received by his employer.[4]
[4]Plaintiff’s Court Book (“PCB”) 26
8 His employment was terminated in February 2010, although there is no clear evidence before me that such termination was because of his injury and I do not find the injury has led to the termination of his employment.
9 The plaintiff was cross-examined and I found him to be a very straight forward, somewhat stoical man who is highly motivated to return to work but has not been able to find any employment over the last three years, in spite of over 100 job applications.
10 He describes in his affidavit his enjoyment of work,[5] and with respect to interests outside of work, he has clearly had a passion for playing and being involved in golf.[6] The evidence about his involvement in golf I accept without reservation as indicating a man who could be described as a golf fanatic. He has changed from one golf club to a second golf club in order to play regularly at an 18-hole course but his involvement goes much beyond that. He describes playing at courses around provincial Victoria and golfing trips away from his own club to pursue that interest.
[5]PCB 30
[6]PCB 28, 30, 32, T51-52
11 He describes also belonging to the Malaysian/Singaporean Golf Association in Australia and organising and being involved in activities both by way of golf events as well as social activities under the umbrella of that association.[7]
[7]T52, PCB28
12 In addition, he indicated that he would have gone on a golf trip to Thailand with his golfing friend, Mr Gossip, that is apparently taking place now. His interest in the game extends back 30 years or so.[8]
[8]T53
13 The plaintiff has indicated he has only tried one game since his injury and he has said that, “pivoting and swinging a golf club causes an immediate severe pain in my low back.”[9]
[9]PCB 48
14 The plaintiff described other interests that include dancing. However, his wife has suffered an injury and I do not consider that his dancing would have been a matter of great involvement these days.
15 Other factors relevant to the consequences of his low-back injury in terms of loss of enjoyment of life include his evidence about deprivation of sleep.[10] He alludes to the effect on the sexual side of his marriage as a result of the low-back injury.[11] The pain and the medication required for that is also a matter of some importance. His evidence is that he now has pain all the time[12] and this evidence is consistent with what he has told doctors in recent times, including Mr Roy Carey for the defendant.[13]
[10]PCB 33, T43-44
[11]PCB 29
[12]T40
[13]Defendant’s Court Book (‘DCB”) 69
16 Together with the impairment of his capacity to undertake unrestricted physical work, as he did over the years, these are the matters that the plaintiff essentially relies on as consequences that satisfy the “very considerable” test.
Medical Evidence
17 The general practitioner, Dr Bob Haran, provided three reports and gave viva voce evidence before me. In spite of there being some equivocation about what the precise diagnosis is with respect to this man’s back, the general practitioner found that he had a condition he describes as “an uncomplicated lower back pain resulting from musculoligamentous injury”[14] and that the plaintiff was “partially incapacitated and could be trained in an alternative employment which does not involve repetitive bending or heavy lifting.”[15]
[14]PCB 39
[15]PCB 40
18 In terms of permanence, the general practitioner said that there ought to be “slow but steady recovery over a period of time”. This report in 2010 was followed by two later reports and moving to the most up to date material, the report of 16 February 2013, he thought that the puzzling diagnosis remained and he thought at that stage that the “degenerative disease of the spine is prolonging the recovery of his injury”.[16] He felt that the plaintiff “could return to modified duties without heavy lifting, repetitive bending or twisting of the body.”[17] The opinion about twisting of the body is, in my opinion, very relevant to the plaintiff’s complaints about inability to pivot when swinging a golf club without incurring severe pain.
[16]PCB 47
[17]PCB 48
19 The doctor’s viva voce evidence did not lead me to have any reservations about accepting what the general practitioner said and it is worth noting that, after an application to re-open the plaintiff’s case, the evidence showed the doctor prescribed a narcotic pain relief medication of Panadeine Forte for this man’s low back pain late last year. I take this as an indication, after ceasing the prescription of serious narcotic pain relief medication in 2010, that the level of symptomology in recent times has increased significantly.
20 Mr Thomas Kossmann, orthopaedic surgeon, who was engaged to examine the plaintiff by his solicitors, was the subject of tender by the defendant. Mr Kossmann generally describes a pattern of intermittent back problems and describes the pain in the low back as occasional, when he was asked to provide a prognosis of the plaintiff’s condition.[18] It is to the point, however, that he does indicate that “he should not lift items weighing more than 10 kg or bend or twist his body continuously”.[19] Again, this is a very pertinent comment to a competitive golfer.
[18]PCB 53
[19]PCB 52
21 As to permanence, Mr Kossmann gave a prognosis that generally was described as “a good prognosis”. He does give those restrictions that I have already referred to and I read his report as indicating they are likely to remain.
22 Mr Brearley reported on 24 February 2012 on behalf of the plaintiff and he thought that the plaintiff suffered a mechanical lumbar back pain due to musculoligamentous strain of the lumbar spine and while there is some doubt about any significant disc injury, he felt that the leg pain was “presumably due to some nerve root irritation but there is no clinical evidence of radiculopathy”.[20] He thought that the plaintiff had a capacity for part time work but with restrictions in place: “Namely the avoidance of lifting beyond 10 kg and also repetitive lifting and the avoidance of much stooping and bending. The necessity for light work with restrictions was permanent.”[21] He thought the prognosis was fair and he thought with respect to his sport that, “He cannot play golf which he did regularly nor can he go dancing. These restrictions will continue for the foreseeable future.”[22]
[20]PCB 57
[21]PCB 58
[22]PCB 58
23 Dr Robyn Horsley reported on 16 May 2012 and that report was tendered by the defendant. Dr Horsley thought that the plaintiff suffered from “mechanical back pain” and “given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist.”[23] She described that the plaintiff’s work restrictions were given in six dot points that included, “avoidance of repetitive bending and lifting” and avoidance of “repetitive truncal rotation”. These are not only relevant to a man who worked in manual employment over the course of his life, but to a person who is involved in competitive golf.
[23]PCB 66
24 Mr Brownbill, consultant neurosurgeon, also reported to the plaintiff’s solicitors on 11 October 2013 that “The exact basis for this man’s described ongoing back and leg pain has not been identified.”[24] However, he thought that “He has sustained a mechanical injury to the lower back probably involving soft tissue.” He felt in terms of restrictions that “It would be prudent for him to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.” He stated as follows: “I accept his pain as representing an organic mechanical pain.”[25]
[24]PCB 71
[25]PCB 71
25 He offered a number of comments on permanence. He described that the incapacity was permanent [26], and stated further that it would continue for the foreseeable future. He then further commented that the pain would “continue indefinitely.”[27]
[26]PCB 72
[27]PCB 71
26 In another comment on the question of permanence, Mr Brownbill stated: “With the pain having continued now for some three years, it is likely that it will continue indefinitely.”[28]
[28]PCB 71
27 The defendant’s medical reports included five reports from a Dr Malcolm Brown, occupational physician. However, the last of those is in August 2011 and in view of my requirement to judge the plaintiff now, in terms of whether or not his injury is a serious injury, I am really not assisted by those reports of Dr Brown. I do not rely on them.
28 Mr Brendon Dooley, orthopaedic surgeon, reported on 17 May 2011 and, again, that is a little dated to assist me and his report is essentially an AMA percentage assessment. However, he is required to look at those impairments from a point of view of permanence and in his findings, a 5 per cent whole person impairment, I accept that he considers the plaintiff’s symptoms would continue at least for the foreseeable future.
29 Mr Ian Jones, orthopaedic surgeon, reported on 1 March 2012 and 17 December 2012, so his last report has the advantage of being contemporaneous. He discusses also diagnoses and the radiology in somewhat equivocal terms. However, he does not question the man’s genuineness as I read his reports and he describes a deterioration in the level of back pain the plaintiff reports to him in the ten months or so between the first and second reports.[29] Probably the closest Mr Jones comes to a firm diagnosis is that “He might have some degenerative disc and joint disease affecting the lumbar spine. This is supported clinically on formal testing by moderately severe restriction of spinal movement.”[30]
[29]DCB 44
[30]DCB 41
30 Nevertheless, there is no suggestion from Mr Jones that the plaintiff’s low back symptoms are not genuine in spite of the fact that the diagnosis is not totally straightforward. His report is consistent with a picture of worsening pain that required narcotic pain relief late last year.
31 Professor Vernon Marshall, Professor of Surgery, reports on 18 May 2012 and he describes the diagnosis as, “Mechanical low back pain work strain injury” but does not really elucidate any further other than describing it as a strain injury.[31] He puts some restrictions on his work capacity but really does not say anything that assists me in terms of loss of enjoyment of life aspects.
[31]DCB 49
32 Two reports that are more up to date are from Mr Roy Carey, orthopaedic surgeon, on 29 January 2013 and 19 February 2013. He notes a history of the low back pain radiating into the left leg as being worse over the last 12 months and being described by the plaintiff as constant.[32] While he does not specifically allude to the question of permanence, he suggests some further investigations which might delineate the cause of the pain followed by an appropriate simple management program and I take it from that, that Mr Carey is of the view there may be some further improvement.[33]
[32]DCB 69
[33]DCB 78
33 He does, however, describe that the plaintiff’s condition involves, “chronic low back pain”[34] and I conclude from that it is settled and of long standing. He is asked to comment on the reports of Mr David Brownbill and Mr Thomas Kossmann that have been sent to him after his first report. He would appear to adopt a number of suggestions of Mr Brownbill’s and of Mr Kossmann’s as being consistent with his own views and while he does not specifically say as much, I take him to be agreeing with Mr Brownbill when he quotes that this opinion, “I do not consider he has a capacity to perform his full pre-injury duties and I regard that incapacity as being permanent” from the body of Mr Brownbill’s report.[35] I read Mr Carey’s letter as indicating an adoption of that opinion with respect to permanence.
[34]DCB 77
[35]DCB 79
34 As was adopted by the High Court in Fleming v Hutchinson,[36] in the comparison with other impairments: “Elements of fact, degree and value judgment are involved.”
[36](1992) 66 ALJR 211
35 This is not a case that involves much in the way of controversy between the parties. It is agreed that the plaintiff has in effect what used to be termed a “light work back” and in other words, a capacity for work that encompasses permanent restrictions as set out in the various medical reports.
36 The plaintiff describes that he enjoyed work and he says that “He loved the routine of getting out of bed early, going to work five days a week.”[37] He also says he was good at his work and had some friends in the workplace, although there has been some dispute about the circumstances pertaining to how he got on with workmates in the course of this application. Nevertheless I find that he was a very good worker and was motivated to continue work and had always worked from the time he left school.[38]
[37]PCB 30
[38]PCB 30
37 He has lost the enjoyment that work can provide. However, I am unable to find that he is not working at the present time on account of his low-back injury. It is clear that he has tried to get work in a reduced physical capacity. However, I cannot reach a definitive conclusion that the reason he cannot work at the moment is the result of the restrictions, rather than a reflection of the marketplace. I accept that he enjoyed working and would be working now in light work if he could find a job. I am not persuaded that the impaired earning capacity amounts to a serious injury in terms of loss of enjoyment of life.
38 I find that the loss of his capacity to play golf is a serious consequence for the plaintiff. His involvement in the sport was extensive and for him it was his major interest after his work.
39 There are other consequences that satisfy the test of very considerable. I find that while the medication he has been on and the conservative treatment that he has undertaken has not been as consistent and intense as in other cases. However, his pain has increased, is now constant and he has recently required again narcotic medication. I am mindful of the passages that have been referred to in the cases of Aburrow,[39] Hawkins,[40] and the earlier cases of Haden[41] and Sutton,[42] and I find that the plaintiff in this case is suffering constant pain. In my view, that is a serious consequence for this man.
[39] Aburrow v Network Personnel & WorkSafe Victoria [2013] VSCA 46
[40]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
[41]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
[42]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
40 There is no treatment on the material that is really open to him, other than sensibly trying to compromise his activities around the limitation that that pain provides.
41 It is a consequential loss to him to not be able to enjoy a restful night’s sleep. This has been commented on by Appellate Courts on several occasions and, in my view, what he describes in terms of interference with sleep[43] is very considerable in terms of disrupting his enjoyment of life.[44] For a man to be woken up after two or three hours’ sleep because of back pain is indeed a serious loss and, when combined with the fact that he has to walk around the house and stretch and toss and turn in bed for the rest of the night, effectively means he gets little or no restful sleep at all.
[43]PCB 33
[44]T43-44
42 I am required in pain and suffering cases such as this to judge this application by comparison with other cases in the range of possible impairments or losses of body function and I find in this case, that for the reasons mentioned above, the consequences in terms of loss of enjoyment of life are certainly very considerable.
43 Accordingly, I grant leave to the plaintiff to recover damages for pain and suffering.
44 I will hear the parties as to the appropriate orders.
- - -
0
5
0