Newman v National Foods Milk Limited and VWA

[2011] VCC 1479

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSAITON

SERIOUS INJURY DIVISION

Case No. CI-10-05286

CLIVE ROGER NEWMAN	Plaintiff
v
NATIONAL FOODS MILK LIMITED	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 and 21 September 2011
DATE OF JUDGMENT:	30 September 2011
CASE MAY BE CITED AS:	Newman v National Foods Milk Limited & VWA
MEDIUM NEUTRAL CITATION:	[2011] VCC 1479

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – Section

134AB(16)(b) – pain and suffering damages only

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Fehring	Ryan Carlisle Thomas
For the Defendants	Mr P Jens	Wisewould Mahony
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 18 November 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant. The plaintiff alleges that the injury to his left leg occurred on or about 9 September 2003.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering only.

3          At the commencement of the application, Mr Jens, on behalf of the defendants, stated that the issue in the case was whether or not the plaintiff satisfied the statutory test for serious injury in respect of leave for a claim for pain and suffering damages. In short, he said, it was a “range case”. The body function which the plaintiff says has been lost or impaired is to the left lower leg.

4          The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

• Exhibit A, the Plaintiff’s Court Book (“PCB”);

• Exhibit B1, medical notes from Civic Park Medical Centre, Drouin;

• Exhibit B2, medical notes from Frankston Hospital/Peninsular Health;

• Exhibit B3, medical notes Mirboo Street Medical Centre;

• Exhibit B4, medical notes, Duff Street Medical Clinic; and

• Exhibit 1, the Defendants’ Court Book (“DCB”).

The Statutory Scheme

5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

6          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)	Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

7          I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s Background

8          The plaintiff was born on 11 February 1970 and is now aged forty-one years. The plaintiff is a married man who separated from his wife in 2009. They have two children, who live with their mother. He presently lives with a friend, Ms Kerry Hatcher, and her child and two foster children in Drouin.

9          The plaintiff, after completing Year 10, commenced work as a storeman at McEwans. He then worked in a number of storeman and sales type positions until he commenced employment with the first defendant in 1996. The plaintiff remains employed by the first defendant in a full-time capacity at the Morwell plant of the first defendant. He works shiftwork which consists of four shifts of twelve hours’ duration. The rotation is four days on and four days off.

The Injury with the Defendant

10        The plaintiff sets out the circumstances in which he was injured in his affidavit dated 19 July 2010.[3] In the course of his employment, he was working in the production area of the factory when he slipped at the end of a pit and slipped off the edge of the pit and was struck by one of the trolleys running along the pit, catching his lower left leg between the wall of the pit and the trolley. The calf muscle was severely lacerated and cut to the bone of his left leg.

[3]             PCB 23-29 at pages 24, 25 and 26

11        The plaintiff was taken by ambulance to the Frankston Hospital and was operated on the next day. He remained in hospital for approximately four days. He was placed on light duties for a period of some fourteen weeks before eventually returning to normal duties. The normal duties at that time were the four shifts of twelve hours’ duration.

12        In his evidence, Mr Newman stated that he moved to the Morwell plant. The reason give for his transfer to Morwell was said to be that it was closer to where he then was living.[4] The plaintiff is undergoing training for one of the newly installed lines at the Morwell factory. Once the training period has been completed, he gave evidence that he would return to the shiftwork of four days on four days off, with twelve hours for each shift.

[4]             DCB 3

The Plaintiff’s Medical Treatment

13        The plaintiff was initially treated at the Frankston Hospital. He was in hospital for approximately four days receiving an operation and treatment for the injury to his left lower leg. On the evidence before the Court, the plaintiff did not seek any further treatment for his left leg injury from the time of his return to full-time work approximately fifteen weeks after the injury itself.

14        The first recorded medical treatment for the left lower leg was on 2 June 2010 by his current general practitioner, Dr Papa Atapattu. On 2 June 2010, Dr Atapattu prescribed Endone medication for the management of his pain.[5]

[5]             Exhibit B1

15        The plaintiff’s current treatment involves the taking of medication of Tramal slow release and Tramadol 20. He also takes Pramin for the management of stomach upset as a result of the medication. The plaintiff has been prescribed orthotics for wearing in his shoes. The orthotics are provided to him by a podiatrist. He does not receive any other treatment from medical practitioners, other than his general practitioner, Dr Atapattu.

16        The plaintiff deposed in his affidavit that he had not seen his general practitioner, Dr Soon in Mentone, for a period of three to four years prior to swearing his affidavit in July of 2010. There was no report from Dr Soon tendered on behalf of the plaintiff. The conclusion I have drawn in relation to the treatment of the plaintiff for his injuries to his left lower leg is that after the initial treatment and rehabilitation at the time of injury, the plaintiff has not sought any further treatment or medical attention for his injury to the left lower leg until June of 2010.

17        Mr Jens, on behalf of the defendants, challenged the plaintiff about the reporting of his injury to the left lower leg in June of 2010 on the basis that he, Mr Newman, had gone to see solicitors about an employment-related matter first and had, subsequent to that time, gone off to see his general practitioner. The employment-related issue has nothing to do with this application. The solicitors for the plaintiff had organised an appointment with Dr Roger Westh, orthopaedic surgeon, for medical examination prior to the plaintiff attending his general practitioner on 2 June 2010.[6]

[6]             T 51, L 8-11

18        Mr Jens commented, fairly in my view, that it was unusual for someone to go to their solicitor first and their doctor second, if the injury was such a problem for him.

19        In any event, Mr Newman still attends his general practitioner and receives the medication referred to earlier in these reasons. In the course of cross- examination of the plaintiff, it became clear that the medication was prescribed in the following manner:

(1)	Tramal capsules, 50 milligrams, one daily; and
(2)	Tramal SR, 100 milligrams 12 hours, twice daily.

20        The evidence of the plaintiff suggests that he does not take a great deal of medication. In respect of the Tramal SR, he gave evidence of taking fifteen of these tablets in a five-month period.[7] In respect of the Tramadol 20, he gave evidence that he has taken eleven of the tablets in a six-week period.[8] Of the Pramin medication, the plaintiff gave evidence that he had taken twelve or thirteen tablets in the last year approximately.[9] The conclusion I draw from this is that the medication part of the plaintiff’s ongoing treatment is not significant or consistent.

[7]             T 76-77

[8]             T 77

[9]             T 78, L14 – 17

21        In the period between the injury in 2003 and his attendance on Dr Atapattu in June 2010, the plaintiff had had a number of other injuries and treatment for them by various medical practitioners. A brief summary of those medical issues is as follows:

(a)  Left shoulder: 

• In March of 2004, the plaintiff attended the Emergency Department of the Frankston Hospital following a spontaneously reduced dislocation of the left shoulder.[10]

• On 5 May 2007, he returned to the Frankston Hospital after dislocating his left shoulder whilst playing dodge ball. I note in the hospital records that at the time the plaintiff was not taking any medication. This is indicative that at least at that time he had not been receiving any medication for his left lower leg or any other condition.[11]

[10]           Exhibit B2

[11]           Exhibit B2

(b)	Lower back. The plaintiff has had two occasions of attending for medical treatment in respect of his lower back.
• On 21 November 2005, the plaintiff attended Dr Mendis, his general practitioner, for a back injury resulting from an impact from an alpaca. He was prescribed Panadeine Forte tablets for pain to be taken two, four times daily, with a maximum of eight tablets per day.[12] • On 23 February 2009, the plaintiff attended Dr Mendis for right lower back pain. He was prescribed Panadeine Forte tablets to a maximum of eight per day, again.[13] [12]           Exhibit B3 [13]           Exhibit B3
(c)	Headaches. The plaintiff had attended his general practitioner, Dr Shirani Gunawardana, for severe headaches. He was prescribed Panadeine Forte to a maximum of eight tablets per day.
(d)	Sleep apnoea/sinus. The evidence is that the plaintiff had suffered from sinus and snoring difficulties from 10 October 2008 onwards.[14] The plaintiff gave evidence of having a sleep test at the Monash Medical Centre. He was ultimately operated on by Dr Chu in Warragul earlier in 2011.[15] The plaintiff gave evidence that he continues to use the CPAP machine which had been prescribed for him earlier. He said that he only uses the CPAP machine occasionally now.[16]

[14]           Exhibit B3

[15]           T 56, L 3-12

[16]           T 69, L23-24

22        During the course of all these medical consultations for the various complaints referred to above, the plaintiff has not complained of difficulties with his left lower leg until June of 2010.

The Medical Opinions

23        The relevant medical opinions relating to the left lower leg injury in this application are:

(a)	Dr Papa Atapattu;
(b)	Mr Roger Westh; and
(c)	Dr Murray Stapleton.

24        Dr Atapattu is the plaintiff’s current general practitioner. In her report dated 3 June 2011, Dr Atapattu diagnoses the plaintiff as suffering from chronic left ankle and calf pain. In answer to a specific question asked of her, Dr Atapattu states:

“Mr Newman continues to suffer chronic pain but I am uncertain of the
impact that this has on his social, domestic and/or recreational activities.

Mr Newman will possibly require ongoing pain management. He may require physiotherapy from time to time. I am uncertain of any likely orthopaedic management strategies.”[17]

[17]           PCB 40-41

The report from Dr Atapattu does not set out an extensive or significant medical problem and treatment regime.

25        Mr Roger Westh, orthopaedic surgeon, reported on the plaintiff dated 30 July 2010. I note that the concessions made that the appointment for Roger Westh was made by the solicitors for the plaintiff prior to the plaintiff going to see his general practitioner, Dr Atapattu about his left leg problem. Mr Westh took a history that the plaintiff had been to his general practitioner in February of 2010 and had been prescribed Endone pain tablets. This is not supported by other evidence in this case. The plaintiff was prescribed Endone pain tablets in June of 2010. Mr Westh took a history from the plaintiff that the pain keeps him awake with intense pain and as a result he has to take Endone on average four per week. Mr Westh’s examination revealed that there was a slight swelling above the left ankle; there was also a minor increase in the size of the left calf compared to the right. He noted that there was no pain or irritability in the ankle. Mr Westh noted that the main complaint is pain in his left lower leg and calf, particularly after prolonged weight bearing and he does experience some night discomfort.[18]

Mr Westh concludes:

“As a consequence of the physical injury and the impairment of his left lower leg, Mr Newman is restricted in relation to his employment, experiencing pain with prolonged standing and he is restricted in doing a lot of walking because of the muscle pain. This incapacity will continue for the foreseeable future.”[19]

[18]           PCB 62

[19]           PCB 62

In summary, Mr Westh says that the plaintiff is best if he avoids excessive standing and excessive walking. He notes that the plaintiff is slightly restricted in playing golf because of the walking involved.[20]

I find that Mr Westh’s opinion in relation to the lower left leg injury for the plaintiff is not a significant injury when considered with a range of other injuries applicable to a serious injury application.

[20]           PCB 63

26        Mr Murray Stapleton, plastic and hand surgeon, reported on plaintiff on 8 November 2010.[21] He described the scarring aspects of the plaintiff’s leg as follows:

[21]           DCB 7

“He has on the inner aspect of the left ankle a 4 x 2 centimetre vertical scar and on the outer aspect of the left calf he has an angulated scar of 13 centimetres long and below that he has a traverse scar 5 centimetres stretched to 1.5 centimetres.”

Mr Stapleton did not think that the plaintiff required any further treatment in respect of his scar. He noted that the plaintiff should be careful not to bump the scar either at work or in his social and recreational activities. In a later report dated 1 September 2011, Mr Stapleton gave the opinion that he did not think that the plaintiff required a spread of analgesics of Tramadol, Pramin and Endone in respect of his calf problem. Mr Stapleton went on to say:

“I am satisfied that he has, and will have, a permanent tenderness of the scar and I am satisfied that his disfigurement has now reached maximum medical improvement.”[22]

In summary, Mr Stapleton’s opinion is that the plaintiff does not require medication as far as the scarring aspects of the lower left leg are concerned. He notes that the scarring site is sensitive and tender and that it will remain so for the foreseeable future.

[22]           DCB 12

The Consequences

27        I have read the affidavits of Clive Newman dated 19 July 2010 and 12 August 2011. I have also read the affidavit of Kerry Hatcher sworn on 29 November 2010.

28        I have carefully considered the evidence of the plaintiff and also his oral evidence given and tested by Mr Jens during cross-examination of the plaintiff.

29        The plaintiff struck me as a straightforward person who made appropriate concessions to Mr Jens when challenged about certain aspects of his evidence contained in the affidavits. I do not accept that the plaintiff is a stoical person as he has appropriately attended doctors on many occasions over the period from 2003 until the current time for many and varied medical difficulties that he has suffered in that period.

30        The consequences said to be suffered by the plaintiff as a result of his left lower leg injury are as follows:

•  The plaintiff states that his sleep has been interrupted by the left lower leg injury. It is clear from an overall assessment of the evidence that the serious and more predominant issue in respect of sleep disturbance to the plaintiff is his sleep apnoea and sinus issues. He has had surgery for the sinus difficulties in the early part of 2011 by Dr Chu. After the surgery, he continues to use, on an infrequent basis, his CPAP machine. The CPAP machine is to assist with his sleep apnoea difficulty. I do not find that the injury to the left lower leg and its sensitivity is the cause of his sleep disturbance.

•  Scarring is not claimed to be under part (b) of the definition for serious injury, but as a consequence of the injury. Obviously, the plaintiff has suffered a scar to his leg as a result of the accident. I have referred to the opinion of Mr Stapleton in respect of the scar. I accept that the plaintiff has to be careful not to bump the scar and that he will continue to suffer permanent tenderness in that scarring site. I accept that the sensitivity to his lower leg is significant for him, but I do not find that consequence to be of a level of being very considerable as required under the statutory test for serious injury.

•  The plaintiff complains of pain in his left lower leg. I accept that the plaintiff may experience pain in his left lower leg from time to time. The assessment of pain in his left lower leg relies on:

(a)	what he says about it;
(b)	what he does about it;
(c)	what the doctors say about his pain; and
(d)	what the objective evidence about the disabling affect of his pain is.[23]

[23]           Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [10]

•	The plaintiff has given evidence that he has pain in his left lower leg. Whilst he has attended numerous doctors on numerous occasions between 2003 and June 2010, he has not made any complaint of pain in his left lower leg to them. It is not until after he has seen his solicitors that he consults his general practitioner concerning the pain to his left lower leg. The plaintiff takes a moderate amount of analgesia for the pain and does not seek any other treatment other than the use of orthotics. The plaintiff does not have strong support from his general practitioner or Mr Westh concerning the extent and intensity of his pain. The plaintiff continues to work full time in rotating shifts of 4 x 12 hours at a time. He also then continues to play golf, his main passion in sport and recreational activity.
I find that the level of pain experienced by the plaintiff does not satisfy the statutory test of being very considerable.
•	The plaintiff claimed his left leg injury had the consequences for his enjoyment of sporting activities. Mr Fehring, on behalf of the plaintiff, conceded that the consequences set out in the affidavit relating to cricket, cycling and ten pin bowling were of no real consequence. That was a proper concession made by Mr Fehring on the basis of the evidence in this application. The plaintiff says, and it was put on his behalf, that he enjoys golf less because of the injury to his left lower leg. I do not accept that the plaintiff’s enjoyment of golf has been reduced by the impact of the left lower leg at this time. The evidence is that he is currently playing more golf now than he had ever played. At least he plays fortnightly, 18 holes of golf in a competitive way.[24] In his evidence, the plaintiff stated that this has been his best year for golf.[25] The plaintiff conceded in cross-examination that he played nine holes of golf after coming off four days shift of 12 hours per shift.[26] I find that the plaintiff’s enjoyment of golf has not been reduced by the injury to his left lower leg.

[24]           T 13, L5

[25]           T 13, L20-21, T 36, L30-31

[26]           T 38, L12, L17

Conclusion

31        After consideration of all the evidence, I am of the view that this is a finely balanced case but, taking into account all the consequences suffered by the plaintiff as a result of his left lower leg injury, I am not satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked and as being at lease very considerable. Accordingly, the plaintiff’s application fails.

32 I dismiss the plaintiff’s application for serious injury pursuant to s.134AB(16) of the Act.

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