Ott v East Gippsland Shire Council and Victorian WorkCover Authority
[2015] VCC 1564
•13 November 2015
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01615
| HANS OTT | Plaintiff |
| v | |
| EAST GIPPSLAND SHIRE COUNCIL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 21 October 2015 | |
DATE OF JUDGMENT: | 13 November 2015 | |
CASE MAY BE CITED AS: | Ott v East Gippsland Shire Council & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1564 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Low-back injury – (a) of the definition of “serious injury” – pain and suffering only – what is the “injury” said to give rise to the “serious injury” – whether such “injury” is a “serious injury”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd [2011] 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Altona Bus Lines v Lococo [2002] VSCA 159; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Grech v Orica Australia Pty Ltd& Anor (2006) 14 VR 602; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring common law proceedings to recover pain and suffering damages for an injury to his low back suffered by him during the course of his employment with the first defendant on or about 20 November 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G Wicks | Maurice Blackburn |
| For the Defendants | Mr P A Jewell QC with Ms M S Tait | Minter Ellison |
HIS HONOUR:
1 By way of Originating Motion dated 7 April 2015, Hans Ott (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his low back suffered by him during the course of his employment with East Gippsland Shire Council (“the defendant”)[1] on 20 November 2012 (“the injury”).
[1]East Gippsland Shire Council is named as the first defendant and the Victorian WorkCover Authority is named as the second defendant in the Originating Motion. For practical purposes, I shall refer to the East Gippsland Shire Council as the defendant.
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only, within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[2]
[2]See Annexure “A”
Relevant legal principles
4 The Court must not give leave, unless it is satisfied, on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“‘Serious injury’ means –
(a)permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of or due to the nature of his employment with the defendant on or after 24 October 1999;[4]
(b)“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)the “consequences” of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of a body function is, “when judged by 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”;[6]
This is sometimes referred to as the narrative test.
[4]See s134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622
[5]See Barwon Spinners Pty Ltd & Ors Podolak (op cit) at paragraph [33]
[6]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[9]
(d)must bear in mind that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(j) of the Act
[9]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23] – [36]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [628]; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
9 Senior Counsel for the defendant informed the Court that there was an issue of what he referred to as “aggravation”. He noted that the injury relied on by Senior Counsel for the plaintiff in his opening was said to have occurred on 20 November 2012 when the plaintiff was lifting a lawn mower from a vehicle. Senior Counsel for the defendant stated:
“Then there are two further episodes of jolting his back riding a mower. We apprehended it might be a course of employment case, but if that is not the way it is run, we just draw Your Honour’s attention to this issue, that the nature of the activity lifting a lawn mower from a vehicle is a different type of work from sitting on a mower cutting grass. And it will become a disentanglement episode of it is (sic) only in relation to the first and not the second.”[11]
[11]Transcript (“T”) 8, L31 – T9, L8
10 Senior Counsel for the defendant did state that there was no issue that the plaintiff suffered an injury arising out of or in the course of his employment on 20 November 2012. Furthermore, leaving aside as to what he referred to as the “disentanglement issue”, the issue was whether any impairment resulting from the compensable injury (whatever that may be) satisfied the narrative test – that is, what is commonly referred to as a “range case”.
The evidence of the Plaintiff
11 I was informed by Senior Counsel for the plaintiff that he sought to adduce further evidence beyond the affidavits in relation to pre-injury activities undertaken by the plaintiff and the impact that the injury has had on these activities. The defendant did not oppose such course. I ultimately allowed such a course of action.[12]
[12]I should add that although I consider it appropriate to permit so-called “catch up” evidence – for example evidence of ongoing medical treatment since the swearing of the last affidavit, the nature of an Originating Motion is based on the evidence set out in various affidavits. In a proceeding under s134AB of the Act, where a plaintiff seeks leave to bring a common law action, I consider it imperative that all parties should have all relevant material on affidavit in order to avoid any sense of “ambush” of the opposing party.
12 I refer to the evidence of the plaintiff set out in the affidavits sworn by him on 30 October 2014 (“the first affidavit”) and on 22 September 2015[13] (“the second affidavit”). The plaintiff gave evidence that the contents of such affidavits were “true and correct”.[14]
[13]See exhibit B at PCB 7 – 16
[14]T10, L10-11
13 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
·He is sixty-three years old, having been born in Germany in October 1952. He came to Australia with his parents in 1954 and has resided permanently in Australia since then.
·He is divorced and lives alone on a rural property in Swifts Creek in the Victorian High Country. He has two adult children.
·After completing primary school, he attended the Noble Park Technical School, where he completed Form 4, after which he engaged in the following employment:
(i)He commenced and completed a four-year apprenticeship as a sheet metal worker with Plessey Roller in Noble Park;
(ii)He was employed by Commonwealth Engineering, Dandenong, for about one year;
(iii)He was employed by Abraham Plastics as an extruder operator for about four years;
(iv)He was employed by Fine Wrap Plastics, Clayton, for about four years;
(v)He was employed by Debtmark Poly Bags, Dandenong, for about seven years.
·He had a lengthy period off work, undergoing treatment for throat cancer and, in 2000, sold his house in Melbourne and moved to Swifts Creek and purchased his present property. Over the next several years, he did odd jobs and firewood cutting.
·On 5 September 2011, he obtained employment with the defendant as a maintenance officer, and continues to be so employed. He describes his duties as a maintenance officer in the following terms:
“My duties as a maintenance officer involved attending to parks, gardens, nature reserves, and amenity blocks in the Omeo area. The duties involved mowing, general park and other cleaning duties, whipper snipping, tree maintenance, maintaining playgrounds and general revegetation work. I would estimate that about 5 hours each day was devoted to mowing both on a ride-on mower and the use of [a] hand mower. The ride-on mower is used to mow large areas of grass including ovals. The ride-on mower does not have any suspension and is a front deck mower. Several of the areas which required mowing were rough and uneven.”[15]
[15]See Exhibit B, paragraph [7] of the first affidavit
· The hand mower which he was required to use weighed approximately 35 to 40 kilograms and was petrol driven. It was transported to various sites either on a council truck or by the plaintiff’s utility vehicle.
· On 20 November 2012, he suffered injury to his low back when he was lifting the push mower from the back of his utility. The plaintiff deposes:
“… As I lifted the mower and twisted my body to place it on the ground, I felt a sudden onset of pain in my lower back. I was unable to continue working on that day, and after reporting the circumstances of my injury, I was off work for a period of 2 weeks. During that time I took pain killing medication, which had been prescribed for me at the Casualty Department of the Omeo Hospital.”[16]
[16]See Exhibit B, paragraph [9] of the first affidavit
· He returned to work on 4 December 2012 to his normal duties, including operating the ride-on mower. Six days after his return to work, he was operating the ride-on mower when, at one point, the mower dropped into a pothole. The plaintiff describes feeling “a jarring sensation in my lower back and a recurrence of my previous low back pain”.[17]
[17]See Exhibit B, paragraph [9] of the first affidavit
· He got down from the mower, but had difficulty walking, and he was driven to the Omeo Hospital.
· He underwent an assessment at the hospital, was prescribed Panadeine Forte and other anti-inflammatory medication and advised to rest. He returned to the hospital several times for review and was seen by different doctors. He also commenced physiotherapy at the Omeo District Health Physiotherapy on 7 February 2013 and continued to have intermittent physiotherapy through until 25 July 2013. He underwent a CT scan of his lumbar spine on 29 January 2013.
· As he was feeling some benefit from the physiotherapy treatment, he returned to work on 18 March 2013 on light duties and restricted hours. He describes that about two days after going back to work, when performing cleaning duties, he experienced an increase in the level of his low-back pain and his general practitioner, Dr Gwynn, certified him unfit for further work.
· Dr Gwynn arranged for him to undergo a CT-guided facet joint injection, after which his symptoms improved and he returned to work on 29 April 2013. Initially, he was on reduced shifts of two shifts of four hours each week, but over time, gradually increased his hours and duties so that by August 2013, he was working six hours on five days each week.
· On 28 August 2013, he experienced a further flare-up of low-back pain when attempting to perform ride-on mower duties. On that occasion, the mower again went into a pothole, causing him to be jolted in his seat. He was off work for several weeks before again returning on 30 hours, and was able to resume all his pre-injury duties save for the use of the ride-on mower.
· At the time of swearing his first affidavit, he continued to suffer from intermittent low-back pain but was still able to undertake all his duties apart from the ride-on mower. He describes having pain and ongoing stiffness in his low back, preventing him bending over very far. He no longer sleeps lying on his back and his pattern of sleep is interrupted by the need to move around in bed.
· A ramp has been provided by the defendant for unloading and loading the hand mower and he believes that if the ride-on mower was provided with suspension seating, he would be able to carry out ride-on mower duties.
· He does not take any current painkilling medication, as he prefers not to take such medication unless it is absolutely necessary.
· He has been advised by the defendant that his working days may be reduced from five days to three days a week in order that an additional worker can be employed as the substitute for him to work on the ride-on mower. He is keen to continue his job on a full-time basis, as he enjoys his work and believes he has always been a conscientious employee.
· Since December 2013, he has been working eight hours per day, five days a week.
· He describes his residential property as being surrounded by State forest, and prior to suffering his back injury, he was a keen bushwalker and enjoyed fishing and hunting in the forest. He enjoyed such activities and would shoot deer at various times. He is no longer able to shoot deer, as he can no longer carry out from the forest a 30-kilogram bag of butchered meat. He no longer goes bushwalking as often as he previously did and he really misses his bush activities. Furthermore, he can no longer use his own ride-on mower because he is concerned he may aggravate his back condition.
14 By way of his second affidavit, the plaintiff gives the following pertinent evidence:
·Since swearing his first affidavit, he has continued to be troubled by back pain which is constantly present but “not always severely so”. The pain is worsened by various activities, one of which was the use of the ride-on mower at work.
·Since swearing his first affidavit, he has been taken off the ride-on mower work at his place of his employment, causing his work time to be reduced from five days to three days per week.
·His back continues to be stiff and he is restricted in his capacity to bend. Washing dishes and putting on socks and shoes particularly causes increased back pain.
·If he attempts any gardening, he has to essentially get on his hands and knees to be comfortable, and also, he continues to have interrupted sleep because of his back pain.
·Although he continues to use the Whipper Snipper, brush cutter and chainsaw at work, he has to modify how he goes about using them and make sure that he keeps his back straight. Both the Whipper Snipper and brush cutter have harnesses which give the capacity to distribute the weight of such items evenly over his upper body. The chainsaw is only rarely used, perhaps once a month.
·He continues to use the push mower. If the handle is at the right height, he is able to support himself and keep his back straight. Although he does big areas like road reserves, he can push the mower in straight lines and there is little “push/pull”. He describes the worst problem as stepping into small holes which causes jarring to his back.
·Prior to the back injury, he ran his own firewood supply business and he would cut wood and deliver it to customers. Before he commenced with the defendant, he would deliver about three ton of wood each week. Whereas after he commenced with the defendant, he did perhaps a ton of wood per week. Since his injury, he found it impossible to maintain such a business.
·His recreational hobbies of bushwalking, hunting and fishing continue to be affected. He tries to walk every now and again but never with a heavy pack for camping, and chooses gentle terrain and short distances, rather than the challenging walks that he previously enjoyed.
·He avoids travelling over uneven ground or thick vegetation because, if he has to step over branches, he has worse back pain.
·He does some trout fishing but only at points in the river where he can get access by car. Prior to his injury, he loved to wade for kilometres up river – this activity is beyond him now.
·His hunting is very restricted and is limited to a bit of rabbit hunting. Previously hunting was an “adventure” and he loved deer hunting which involved a lot of hiking over hard terrain. It also meant that deer had to be carried back, often over a number of trips, and he could not manage that now.
·He sees his general practitioner, Dr Gwynn, about every month for certificates and does not take strong painkillers as he believes they just create “worse problems”, such as drowsiness and constipation. Instead, he tries to be vigilant and avoid actions which aggravate his pain.
15 In his further viva voce evidence, the plaintiff confirms he continues to be employed by the defendant three days a week as a maintenance worker performing the duties he described earlier in his first affidavit, save that he does not do any ride-on mowing. He noted that he needs to work and, save for this injury, he would have continued to work for as long as he could.
16 He moved to Swifts Creek in 1999 and his property consists of 470 acres, three-quarters of which is native bush and a small area of cleared land. His nearest neighbour is approximately 5 kilometres away.
17 There is a cabin and some shedding on the property and when he moved to the property, he renovated the cabin and introduced solar power. He relies on tank water and has a Coonara heater during winter which he describes as “very cold”.
18 He also has a vegetable garden which does not quite supply all his vegetables, as it is too cold in winter.
19 In particular, the plaintiff described himself as a “very keen hunter”, starting off with ferrets when he was either ten or eleven. He commenced shooting when he was eighteen and when living in the city, would go up to Country Victoria hunting pigs. The plaintiff described that there is a glut of deer in the high country and prior to his injury, he hunted “very regularly”. He noted that it was always his dream to have a property of his own where he could hunt. In particular, the following evidence was given:
HIS HONOUR:
Q:“Sorry to interrupt. Just prior to your injury as you’ve described you hunted regularly, what sort of guns did you have?---
A:What sort of guns?---
Q:Yes?---
A:Centrefire rifles, do you know anything about calibres?
Q:Slightly?---
A:I used 30.06 mostly which do you understand?
Q:I do and how frequently would you hunt prior to your injury?---
A:Look, it’d be five days a week easy, I’d hunt after work, on weekends. Like I said, I’m a very passionate hunter.
Q:When you went hunting, how did you go about it?---
A:Well I’m a stalker, on foot, backpack, rifle and you go out for the day but I’m a hunter, not just a shooter. There’s a big difference. When you hunt, you hunt for meat or you hunt for a trophy. You don’t shoot everything you see. A lot of it is hunting, exploring, observing and studying the animal.
Q:Just again, I generally know that area, Benambra that type of area?
A:Very steep country.
Q:That is what I was going to ask, it is steep country?---
A:Extremely steep, rugged country.
… ”
MR O’DWYER:
Q:“Also, do you take a camera?---
A:Yeah, I always carry a camera.
Q:What do you do with the camera?---
A:Well, you take photos, take photos of the animals, if you don’t want to shoot a deer you can take photos of the deer.
Q:What was the high point of your hunting?---
A:The meat.
Q:What particular hunt?---
A:What particular hunt?
Q:Yes, any particular animal?---
A:Sambar deer is my main deer, they’re the hardest to hunt.
Q:Can you describe the Sambar deer to us in relation to - - -?---
A:Yeah, Sambar deer, you’d probably all be familiar with the basic deer but they’re the biggest deer, stags can weigh anything up to 300 kilo. A hind would weigh two to 250 kilo so they’re a very big animal.
Q:Yes. Was this, did you have any particular objective in hunting and shooting Sambar deer?---
A:Yes, a collection of meat.
Q:Did you have a freezer?---
A:I do have a freezer.
Q:Did you have a restriction of how many you shot?---
A:Well Sambar deer, if you shoot a Sambar deer, you’re - you butcher that out, you’ll probably get 100 kilo of meat out of a good deer and that’s pretty close to filling the freezer.
Q:What did you do with that meat?---
A:You’d cart it out.
Q:Yes?---
A:And then you’d - you’d hang it because you always hang meat for about a week before you butcher it to let it cure and then you’d cut it up to steaks, mince, whatever - whatever the various cuts are.
Q:What would that meat do for you?---
A:That’d last me for six months that meat.”
HIS HONOUR:
Q:“Just when you put down a deer like a Sambar deer when you’re out, you’ve been hunting and you as you described you’d been out for quite large periods of time?---
A:Yeah.
Q:You shoot the deer, how do you get the deer back to your property, to your - - -?---
A:Well that’s it. If you shoot a deer out in the bush you may be three or four hours away from any sort of a track so you have to butcher the deer in the bush. I carry what we call meat bags, which are bag that folds up, a canvas bag. When they fold out they are about 50 litres, which is 50 kilo you can put in there. They have back traps on them and then you would carry that meat out but you may have to make three or four trips to get all the meat out.
Q:I see. Just more as a matter of interest, it is not particularly relevant to the case but how long can - the three or four trips have to in what sort of time?---
A:You have to do it that day.”[18]
[18]T13, L13 – T15, L18
20 In particular, the plaintiff described how he might be carrying the pack loaded with meat up to 50 kilograms for four or five days over steep rocky terrain. Beyond shooting Sambar deer, he also shot rabbits and foxes to control them on his property.
21 Since the accident, he has been unable to hunt and bring Sambar deer back home, and when asked how he felt about that, he responded, “Not very good”.[19] In particular, the plaintiff described such country as too steep and rough, making the risks of him aggravating his back that much higher.
[19]T16, L20
22 The plaintiff also described that he has about 20 acres cleared around his cabin which grows grass. He described how his property carries a trust for nature covenant to protect the vegetation which includes native white and yellow box gums which he described as “rare”. He does not run any stock, and considering it is a very bushfire prone area, it is necessary to slash the grass around the cabin area, which normally would involve him using a large ride-on mower. Whereas he was able to do that prior to his injury, he has been either required to get assistance from his son, who comes up from Melbourne or, alternatively, pay a third party to undertake the slashing of the grass.
23 In particular, the plaintiff described the difficulties of sitting on such a mower:
“Well, if I get on the ride on mower – because rider on mowers don’t have suspension as all the doctors have said. My back injury, if you get a sudden jar, it throws it out again, then I’m back to where I started from.”[20]
[20]T19, L15-19
24 The plaintiff confirmed that he had to cease his wood selling business because of his back injury but has to get wood for his own Coonara heater. Sometimes he does attempt to get wood himself but tries to rely on his son, who comes up to help him with the bulk of it. The plaintiff described himself as “not a big social person” and mainly mixes with his son, who comes up for long weekends from Melbourne, which may be three or four times a year now.
25 Prior to the injury, he described himself as largely self-sufficient, with him being capable of doing everything necessary to be done on the property. Now he finds it a lot more difficult and in particular, he cited the example of his vegetable garden, and gave the following evidence:
Q:“Before the accident were you inhibited in any way in relation
to [the vegetable garden] - - -?---A:None at all.
Q:What do you need to do now?---
A:Well, now I can’t stoop like I used to before. Now, if I have to weed or do anything in the garden I’ve got myself a mat which I put down. If I can kneel down and yes, I’ve just got to be careful because if I stoop I aggravate my injury.
Q:Does that happen from time to time that you aggravate your
injury?---A:It does.
Q:What do you do when that happens?---
A:Well, I have to stop what I'm doing and try to – well, sometimes it’s only a slight aggravation. If it’s only [a] slight aggravation usually if you just back off and as the physio explained to me, one of the best things you can do is just walk. Something about – no running, no (indistinct) but walking is a good activity for your back.
Q:Have you found that?---
A:I have found that, yes.
Q:What about if it’s not minimal. Do you have flare-ups where it lasts for some time?---
A:Well, then I just have to stop and rest. I don’t have a choice. And if it gets bad enough I have to go to the doctor.
Q:Does it happen from time to time?---
A:It does happen from time to time. Sometimes I just work through. I have no choice.”[21]
[21]T21, L26 – T22, L17
26 The plaintiff explained that he does much planning about how he goes about things to minimise any chance of his back injury flaring up. He does have concerns about how he is going to be able to continue looking after his property and it is only something that “time will only tell”.
27 The plaintiff also confirmed that he does not take medication at the present time, although he did take Panadeine Forte and a couple of other things when at the Omeo Hospital following his initial injury. He also described getting other pain medication on and off from his doctor. In particular, the following evidence was given:
Q:“But in any event, did the pain medication you were given have any effect on you?---
A:Yes, it made me drowsy and nauseous some of it, I wasn’t very – I mean I had to take it at the time.
Q:Did you come to any conclusion in relation to taking that
medication?---A:Yes, well I’ve never been one to take medication, I don’t like long-term medication because in the long term it also has so many effects.
Q:Did you come to some resolution in relation to taking pain medication?---
A:Well I would avoid it if I could.
Q:In recent time you’re avoiding it?---
A:I’m avoiding it, yes.”[22]
[22]T25, L12-22
28 The plaintiff was of the view it had probably been about twelve months since he had taken any medication, although he did have Panadeine Forte in the fridge but he would have to “be in a lot of pain before I take that”.[23] However, he did state that occasionally, he did take such medication.
[23]T26, L8
29 Under cross-examination, the plaintiff gave the following pertinent evidence.
·He gave evidence in relation to going back to work after the injury on 20 November 2012:
Q: “You went back straight to your normal duties doing everything?---
A: They put me straight back on normal duties, yes.
Q: Including riding on the mower?---
A: Including riding on the mower.
Q: You were not taking any medication then?---
A: I was not taking any medication then.
Q: You worked that way up until you had an exacerbation on the mower on 10 December 2012?---
A: That’s correct.
Q: I take it you having no issue with using the ride on mower until you hit this pot hole on 10 December?---
A: But I wasn’t using the ride on mower all the time. There’s other duties there as well. I wasn’t using the ride on mower for the five days, no.
Q: No?---
A: Yes.
Q: But in terms of using the ride on mower, there was no restriction at that point?---
A: No, not at that point, no.
Q: Really, it was only after the ride on mower episode on 10 December that you’ve had significant ongoing problems with your back?---
A: Yes.
Q: As you said, your back was extremely painful after that episode?---
A: Yes.
Q: You detail what has happened into your affidavit but gradually over time, you got back to full-time work?---
A: Yes.
Q: Then you had a third episode on 28 August 13?---
A: Yes.
Q: Again, you were reducing your hours and you were off for a number of weeks after that?---
A: Yes.
Q: But again you got back to full-time hours of work?---
A: That’s correct.
Q: I just want to ask you about a couple of matters in medical reports?”
HIS HONOUR:
Q: “Just before you go there, Mr Jewell. I just want to clarify one thing. You have answered Mr Jewell consistent with your affidavit. You hurt your back on 20 November 2012?---
A: That’s correct. That’s the initial injury, yep.
Q: As you have said, you went to the Omeo Hospital and then you were off work for a period of two weeks?---
A: That’s correct.
Q: You returned to work, you say in your affidavit, on 4 December which is two weeks?---
A: Yep.
Q: And returned to your normal duties?---
A: Correct.
Q: When you returned to work on 4 December 2012, were you suffering - before, leading up to when you returned to work, were you still suffering some back pain or had it gone?---
A: There was still some discomfort there, yes.
Q: Yes, thank you.”
MR JEWELL:
Q: “Was it less than when you went to the Omeo Hospital?---
A: Of course it was less.
Q: Insofar as there may have been any pattern to the way you were progressing from the time you had the injury in November until you had the episode on the mower on 10 December, were you just gradually getting better?---
A: Yes.”[24]
[24]T28, L20 – T30, L9
·When it was put to him that the clinical records of Dr Gwynn recorded that on 31 October 2013, he was suffering no pain and that on 24 December 2013, he had no symptoms, the plaintiff asserted that he did not recall saying he had no pain. In particular, the following evidence was given:
Q: “I’m just suggesting that in the period at least from October 2013 up until April 14 you were pretty free of symptoms of pain?---
A: Maybe on the day I saw the doctor I had a good day. I can’t remember those particular days.”[25]
[25]T32, L13-17
·The plaintiff accepted that he has gone, over time, to two medical practices – normally he goes to Paynesville – that is, Dr R Gwynn, who has been his long-term general practitioner – and on occasion, he has gone to Omeo because it is closer and more convenient. The plaintiff accepted that he has been to the Omeo Clinic in each of the years of 2012, 2013, 2014 and 2015 and that on occasions he has been to that clinic, he has not mentioned his back as a problem. In his response, the plaintiff stated:
A:“They weren’t visits for my back. I’ve been there for other reasons. Are they related to my back injury or are they other instances where I’ve gone because I’ve had the flu or something. Does it say that?
Q: I’m just suggesting to you that you haven’t complained to that clinic about your back, and what do you say?---
A: Well, when I’ve been there for my back, well, I had complained about my back. But I’ve been there for other reasons.”[26]
[26]T34, L11-18
·When queried about the history given to Mr Buzzard that “present back pain is static”, the plaintiff stated the pain varies but it is constant. Furthermore, he stated it does not go down his legs but is isolated to his low back.
·He accepted he does his own housework and drives a vehicle and he still does some bushwalking “to a degree”.
·He was queried about him driving down to see doctors in Melbourne and in particular, Mr Buzzard, to which the plaintiff stated that he has bought a lumbar support for when driving and that helps alleviate his back pain and, furthermore, he stops and has breaks.
·He was queried as to whether or not Dr Gwynn knew about his hobbies, to which the plaintiff replied, “Yes”. In particular, the following evidence was given:
Q: “Does he know you go hunting and fishing and bushwalking?---
A: He knows – well, we don’t – he’s not into that. We don’t talk about it a lot but he knows I’m an outdoor type person, yes.
Q: Does he know the specific things that you’ve done in the past such as hunting and bushwalking and fishing---?---
A: I don’t think I’ve gone into great detail with him, no. He probably has an idea of some of the activities I do.”[27]
[27]T38, L10-17
30 By way of re-examination, the plaintiff gave the following pertinent evidence:
·He described that prior to his back injury, he enjoyed fishing and in particular, spin fishing for trout. He described that you place a little lure on the rod which is cast up river and you walk up the river and find holes and cast into those holes. His favourite fishing places involved four-wheel drive access and would involve walking up through a river with waders on. Sometimes he would go for kilometres, and he described such activity as “magic” and performed it approximately three times a year. He still does some trout fishing but only close to where he can get with a vehicle and from the bank of the river.
·He drives a manual Toyota Land Cruiser and any long distance driving requires him to stop to take breaks to rest his back. In particular, he described that when driving from Swifts Creek to Morwell on the day of him giving evidence, he had to stop about three times for about 10 minutes to walk round and rest his back.
·Prior to his back injury, he had no inhibitions in being able to perform physical activities but now experiences difficulties with a range of things including putting on his shoes and socks in the morning and the need to take care with all activities.
31 After the close of each party’s case, I ultimately allowed the plaintiff to be recalled for further re-examination, at which time the following evidence was given:
Q:“Mr Ott, in your affidavit and in the course of cross-examination, you were asked questions about an incident which occurred on 10 December 2012, some six days after you returned to work, after the incident involving your back and loading the mower into the truck?---
A:Yeah.
Q:You said that in the course of your work on 10 December 2012, your ride-on mower encountered a pothole and there was a jarring and you aggravated your back. Now are you able to tells whether or not that type of incident had occurred in the normal course of your work prior to the lifting episode, the lifting incident, in November 2012?---
A:Before the initial injury?
Q:Yes?---
A:Yes.
Q:And are you able to say how often that occurred?---
A:On a – unless you know the area, it’s not like lawns around here, it’s all like paddocks, there’s potholes everywhere.
Q:Did you ever have any back symptoms as a consequence of encountering these potholes?---
A:Prior?
Q:Prior to the injury in - - - ?---
A:No, not prior.”[28]
[28]T51, L11-27
Medical evidence relied on by the Plaintiff
32 The plaintiff relies on the medical reports of Dr Ronald Gwynn dated 15 April 2014 and 1 October 2015.[29] The clinical notes of Dr Gwynn were also tendered.[30] In his first report, Dr Gwynn noted that the plaintiff presented on 13 March 2013, at which time he stated that he had suffered left lower lumbar back pain on 10 November 2012[31] when he lifted a mower out of a utility.
[29]See exhibit C, PCB 17-18a, 22-23
[30]See exhibit A
[31]No issue was raised that the initial injury occurred on 20 November 2012
33 The plaintiff gave a further history to Dr Gwynn that he returned to work on 4 December 2012 and that when operating a ride-on mower, the mower dropped into a hole, jolting his back, resulting in “a return of his lumbar back pain”.
34 When initially seen on 13 March 2013, there was no radiation of pain to the buttocks or his lower limbs and the pain was worse after prolonged sitting and after being in bed. Dr Gwynn noted that at that time, he had been receiving treatment from a physiotherapist.
35 Dr Gwynn had available a CT examination of the lumbar spine undertaken by a Dr Sewell (probably a doctor at the Omeo Hospital) dated 29 January 2013.[32] The conclusion of the radiologist who undertook the CT scan was:
“Minor degenerative changes as described. No notable central canal narrowing. Multi-level minor foraminal narrowing. Likely impingement bilaterally at L3 and L4 levels.”[33]
[32]See exhibit D at page 19 PCB
[33]See exhibit D at page 19 PCB
36 Examination on that day revealed that lumbar spine movements were reduced by pain but the plaintiff had normal straight leg raising and normal lower limb reflexes. Dr Gwynn arranged for the plaintiff to undergo a facet joint injection under CC control, which occurred on 8 April 2013.
37 When reviewed on 27 March 2013, the plaintiff had returned to restricted work duties and was complaining of the return of symptoms, causing him to be unable to sit for the long periods and giving rise to disturbed sleep. Examination at that time revealed restricted movements of the lumbar spine. Dr Gwynn arranged for a further CT-guided steroid injection into the L4-5 facet joints which resulted in increased lumbar movement and decreased pain. Dr Gwynn notes that the plaintiff continued to improve and was eventually able to return to full duties provided the ride-on mower for work he used had a suspension seat.
38 In his report dated 15 April 2014, Dr Gwynn states:
“In summary Mr. Ott suffered lumbar back pain resulting from a jolting injury sustained on a ride on mower.
…
I believed his injuries are compatible with his stated cause.
Because he has facet joint degeneration he may experience further episodes of back pain.
Currently he is symptomless and is capable of performing his full time duties. However it has been brought to the employer[’]s attention it would be prudent to provide a suspension seat on the ride on mower.”[34]
[34]Exhibit C at page 18 PCB
39 In a later report dated 1 October 2015, Dr Gwynn notes that the plaintiff was still receiving treatment for his low-back injury, with the only restriction being that he was advised not to use a non-sprung ride-on mower and avoid heavy lifting. Dr Gwynn considered these restrictions to be permanent. He was of the opinion that he would be “fully able to continue full time in his current employment with the above restrictions”. Furthermore, in his opinion, the “injury would not impede him pursuing hobbies or recreational activities …”.[35]
[35]See exhibit C at page 18A PCB
40 I also refer to the clinical notes of Dr Gwynn[36] and, in particular, refer to some of the notations recorded therein:
[36]See exhibit F
(a) On 13 March 2013 (when Dr Gwynn first consulted with the plaintiff in relation to his back problems), he obtained the history that the plaintiff had “minimal” pain when he returned to work after the incident on “4th December 2012” and that the ride-on mower incident gave rise to pain in the “same area”;
(b) On 27 March 2013, Dr Gwynn obtained a history that the plaintiff had a return of low-back pain when returning to light duties, was getting spasms, and disturbed sleep and was unable to sit longer than a few minutes;
(c) When seen on 5 August 2013 and 19 September 2013 when he continued to complain of pain but was slowly “improving”;
(d) On 3 October 2013, Dr Gwynn records –
“Free of pain. Can therefore return to normal working hours. Should not use Rider Mower unless suspension to protect against shock seeing return to its usage caused back to reoccur.”
(e) On 31 October 2013, the plaintiff reported “no pain” and on the latter date, there was full spinal movement;
(f) On 1 October 2014, Dr Gwynn records:
“Needs tabs. Manageing (sic) his back pain. No other issues.”
(g) On 13 May 2015, Dr Gwynn records:
“Discussion re back pain. Worse at nights. No radiation to buttocks or legs.”
41 The plaintiff also relies on a report from the physiotherapist, Ms Jillian Hill, dated 6 May 2014.[37] Ms Hill notes that she did not treat the plaintiff personally but prepared the report on the basis of the notes available at the Omeo District Health and in particular, from the then treating physiotherapist.
[37]See exhibit C at page 22 PCB
42 Ms Hill records that the plaintiff attended the Omeo District Health Physiotherapy on 7 February 2013 with a history that he hurt his back on 28 November 2012 lifting a mower off a ute, whereafter he had one week off work and re-injured his back when mowing when the mower tilted to the side. The plaintiff was treated with physiotherapy on various occasions to 25 July 2013 and was advised about walking programs and activity modification programs. He was discharged from care on 25 July 2013.
Medico-legal material relied on by the Plaintiff
43 The plaintiff relies on the medico-legal report of the orthopaedic surgeon, Mr Thomas Kossmann, who examined the plaintiff on or about 13 August 2015. At that time, he obtained a history from the plaintiff that:
(a) On 20 November 2012, during the course of employment, the plaintiff was lifting a push lawnmower from a ute, and in the process of such lifting, twisted his back and felt “a sharp pain in his back”. Although able to complete the day’s work, the following morning, he attended the Omeo Hospital, where he was given time off work and some treatment;
(b) On 10 December 2012, the plaintiff suffered a recurrence of his back pain in the course of his employment when the ride-on mower that he was driving hit a pothole. He again attended the Omeo Hospital, where he was given time off work;
(c) The plaintiff returned to work on 18 March 2013 on a gradual return to work program but again, was off work after another episode on 27 March 2013 when the ride-on lawnmower dipped into a pothole and caused “a recurrence of back pain”. The plaintiff underwent a CT-guided L4-5 facet joint injection performed on 8 April 2013 which gave him approximately two weeks’ relief from symptoms, before symptoms returned. He was certified unfit for employment duties until 24 April 2013;
(d) On returning to light duties work on 29 April 2013, the plaintiff gradually increased his hours, excluding using the ride-on mower. At one stage, he was cleared to use the mower and on 27 August 2013, experienced a further flare-up of back pain when he was riding on such mower. After that, the plaintiff returned to restricted duties and hours from 9 September 2013.
44 Mr Kossmann also obtained the history that the plaintiff, although working, was working on reduced hours and a reduced capacity. He obtained the history that the plaintiff had difficulty with self-care (for example cutting toenails and doing up shoelaces) and has difficulties enjoying his previous activities of hunting and hiking, as well as fishing. Mr Kossmann examined the plaintiff and also had available the x-ray of the lumbosacral spine dated 11 January 2013, the CT scan of the lumbosacral spine dated 29 January 2013 and the CT-guided bilateral facet joint injections dated 8 April 2013.[38]
[38]See exhibit D
45 Mr Kossmann made a diagnosis of spondylosis of the lumbar spine and in particular, stated:
“I believe that the original injury sustained on 20 November 2013 made Mr Ott more susceptible to further incidents, which he experienced on or about 10 December 2012, 18 March 2013 and 28 August 2013.”[39]
[39]Exhibit E at page 23D PCB. The reference to “28 August 2013” contained in the quote almost certainly refers to the incident recorded in the history; that is, 27 August 2013. No party raised anything exceptional about the slight variation.
46 Mr Kossmann was also of the opinion that the plaintiff should avoid lifting objects greater than 15 kilograms and should not bend, squat or twist his body. He was also of the opinion that the restrictions suffered by the plaintiff affected his ability to pursue hobbies and recreational activities such as hunting and fishing in remote parts of Victoria. He considered the prognosis of the plaintiff to be guarded and that continuation of his physical employment would put him at risk of further injury.
47 The plaintiff also relies on the report of the general surgeon, Associate Professor Anthony J Buzzard, who examined the plaintiff on 11 June 2014 at the request of the solicitors for the defendant. Seemingly, the examination was primarily to assess any permanent impairment pursuant to the AMA Guidelines for the evaluation of permanent impairment.[40] I note that the nominated date for the back injury giving rise to the assessment was said to be 20 November 2012.
[40]See exhibit E at page 24 PCB
48 Mr Buzzard also obtained a history of an initial incident on 20 November 2012 when the plaintiff was lifting a push mower from the back of a utility. When performing a twisting movement, he had a “sharp stabbing pain in his low back”. Furthermore, Mr Buzzard obtained a history of various other incidents of when driving the ride-on mower caused the plaintiff to experience low-back pain as “he had previously had”.
49 At the time of that examination, he described he still did a bit of bushwalking “to a degree” and with a four-wheel drive, does “a bit of hunting and fishing”.
50 Mr Buzzard considered that the plaintiff had widespread degenerative disease in his spine and in particular, he stated:
“… I think that the initial claimed injury caused an aggravation of that pre-existing degenerative disease and rendered it symptomatic. He subsequently had two further injuries which were similar.
As far as his ongoing troubles now are concerned, I think that these are due to the degenerative disease which he has in his spine. The degenerative disease is also involving the upper spine and neck region albeit that that is asymptomatic.”[41]
[41]See exhibit E at page 27 PCB
51 Mr Buzzard was of the opinion that the plaintiff should not be carrying out work involving very heavy lifting nor work involving sitting on the ride-on mower – aside from that, he was of the view that the plaintiff was capable of full activities. He considered that the condition of the plaintiff was stable.
Medico-legal material relied on by the Defendant
52 Those acting for the defendant arranged for the plaintiff to be medico-legally examined by the orthopaedic surgeon, Mr Michael J Dooley, on 20 February 2014.[42]
[42]See report dated 25 November 2014 – exhibit 1 at page 1 DCB
53 Mr Dooley also obtained the history that on 20 November 2012, the plaintiff was lifting a lawnmower off the back of his utility when he twisted and noticed a sharp pain in his low lumbar region. He also obtained a history of the subsequent incidents involving the potholes.
54 After an examination and an inspection of the various radiological reports, Mr Dooley was of the opinion that the plaintiff has naturally occurring and aged-related degenerative disc disease in his lumbar spine. In particular, he states:
“… He describes an episode during the course of his employment in November of 2012 when, whilst lifting a lawnmower from the back of a utility, he twisted. He noted the onset of acute low back pain. This pain gradually improved and Mr Ott returned to work after a two week period. In December of 2012, while operating a ride on mower, a wheel dropped into a pot hole, causing Mr Ott to move upwards and downwards in his seat. He reported that his symptoms returned to square one. A further similar episode in terms of operating a ride on mower occurred in August of 2013. I believe that in these episodes, Mr Ott sustained a soft tissue injury to the lumbar spine that involved aggravation of his underlying degenerative disc disease.”[43]
[43]See report dated 25 November 2014 – exhibit 1 at page 1 DCB
55 Mr Dooley considered that the plaintiff could continue with his present employment (save for the ride-on mower) subject to “sensible modification”. Furthermore, the plaintiff should also “sensibly modify his activity” with respect to any recreational and outdoors activity.
Analysis of the evidence
56 There is no dispute between the parties that the plaintiff suffered an incident of low-back injury during the course of his employment on or about 20 November 2012 when the plaintiff was lifting a mower off the back of a utility. At that time, he twisted his body and experienced a sudden onset of pain in his lower back. Furthermore, there is no issue between the parties that on his various returns to work, the plaintiff suffered recurring and/or increased back pain when driving the ride-on mower over rough ground.
57 Those acting for the plaintiff opened and ran the case on the basis that the plaintiff had suffered a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” when he suffered the incident of injury on or about 20 November 2012.[44] The defendant submits that:
“… the evidence doesn’t sufficiently delineate Your Honour to conclude what the consequences are stemming from this initiating episode, if I could put it that way and certainly, it doesn’t enable Your Honour to conclude what the consequences would have been, absent the two mower episodes that have been described in the affidavit.”[45]
[44]Senior Counsel for the plaintiff submitted in his final address that if he be wrong about that proposition “there is no reason why we could not rely on the second incident”. At that time, I raised concerns that the case hitherto had been run wholly on the basis that the serious injury resulted from the compensable injury on 20 November 2012.
[45]T52, L2-8
58 In what I would refer to as a fair and proportionate submission, Senior Counsel for the defendant submitted that the principles enunciated in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[46] have application. In that matter, Filipowicz sought to commence common law proceedings against his former employers, Arnold Ribbon Co Pty Ltd (“Arnold”) and AG Staff Pty Ltd (“AG”). He alleged that he had suffered a right shoulder injury during the course of his employment with Arnold on 26 August 2003 and that such shoulder condition had been aggravated during the course of his employment with AG in July 2006.
[46](2012) 34 VR 309
59 There was no dispute that Filipowicz suffered compensable injuries to his right shoulder in the course of his employment with Arnold and AG respectively. The issue was as to whether Filipowicz had suffered a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act. In this sense, Filipowicz relied on paragraph (a) of the definition of “serious injury” – to wit “permanent serious impairment or loss of a body function”.
60 The trial judge, applying the decision of Grech v Orica Australia Pty Ltd & Anor,[47] found that each of the respective injuries “materially contributed to the ultimate consequences” and Filipowicz was entitled to commence common law proceedings against Arnold and AG for both pain and suffering and pecuniary loss.
[47](2006) 14 VR 602
61 The Court of Appeal held that the trial judge applied the wrong test. In particular, the Court held that the decision of Grech dealt with causation issues in the context of a single ongoing condition (in that case, bilateral carpal tunnel syndrome which commenced prior to 20 October 1999 and continued after that date), rather than two separate injuries arising out of two discrete incidents where the subsequent injury aggravated the earlier injury.
62 In particular, Kyrou AJA (with whom Mandie and Bongiorno JJA agreed), stated:
“Section 134AB was enacted against a background of similar schemes in s 135A of the Act and s 93 of the Transport Accident Act 1986 (‘TA Act’). Section 134AB(38)(b) and (c) essentially codified Humphries v Poljak,[16] which concerned s 93 of the TA Act.
Petkovski also concerned s 93 of the TA Act. The Appeal Division held that, in the case of a pre-existing condition, ‘an analysis must be made of the extent of impairment of a body function before and after the relevant injury’, and the claimed aggravation must itself be a ‘serious injury’. The Appeal Division confirmed the clear intention of Parliament not to permit minor aggravations to attract a grant of leave.
Petkovski has been applied by this Court to s 135A of the Act. Petkovski, and its application to s 134AB, were affirmed in Guppy.
Grech dealt with causation issues in the context of a single ongoing condition (bilateral carpal tunnel syndrome) which commenced prior to 20 October 1999 and continued after that date. The question for determination was whether the worker had suffered identifiable compensable injury to his wrists and hands on or after 20 October 1999, which resulted in or materially contributed to the consequences that he claimed constituted serious injury. The case did not involve two separate injuries arising out of two discrete incidents, where the subsequent injury aggravated the earlier injury. There is nothing in Grech which detracts from the principles in Petkovski.
Accordingly, for the purposes of s 134AB of the Act, an aggravating injury must itself qualify as a serious injury.
As it was common ground that Mr Filipowicz had suffered two separate compensable injuries on or after 20 October 1999, the trial judge should have determined the applications for leave to commence common law proceedings against Arnold and AG in the following manner.
First, his Honour should have identified each injury.
Secondly, his Honour should have delineated the impairment consequences of each injury.
Thirdly, in the case of the AG injury, which, although an aggravation of the Arnold injury, was a separate injury, his Honour should have determined whether the injury qualified as a serious injury under s 134AB(37) of the Act as amplified by s 134AB(38).
Fourthly, in determining whether Mr Filipowicz had discharged the onus of establishing that the AG injury was a serious injury, his Honour should have made a comparison between Mr Filipowicz’s condition before the AG injury and his condition after the AG injury, and should then have made an assessment of the additional impairment.
Fifthly, as the two injuries arose from separate incidents, they could not be accumulated. The AG injury had to satisfy the requirements of a ‘serious injury’ in its own right rather than in combination with the Arnold injury.”[48]
[48]See Filipowicz (op cit) at paragraphs [25] – [35]; see also Guppy v Victorian WorkCover Authority [2010] VSCA 164
63 Senior Counsel for the defendant also referred to the Court of Appeal decision of Altona Bus Lines v Lococo.[49] In that case, the worker, Lococo, was employed as a bus driver and suffered the following injuries:
[49][2002[ VSCA 159
(a) On 3 July 1995, in the course of his employment, he was alighting from a bus when he slipped and fell and, as a result, suffered a low-back injury for which he was treated with analgesia and anti-inflammatory medication. He was off work for about three weeks and returned to light duties and remained on light duties for a number of months, before resuming full-time work as a bus driver, experiencing intermittent pain;
(b) On 3 December 1998, the worker rose from his seat on the bus, forgetting to disengage his seatbelt, and suffered severe pain in his lower back which gradually worsened, and radiological studies revealed that he had suffered a disc extrusion compressing the L5 nerve root. He returned to work on light duties but did not resume his bus driving.
64 The plaintiff applied, pursuant to the provisions of s135A(4) of the Act, to bring proceedings for the recovery of damages in respect of the injury which he suffered on 3 July 1995 (the first injury). Because of the provisions of s134A of the Act, the worker could not recover any damages in respect of the injury he suffered on 3 December 1998 (the second injury).
65 In order to obtain leave, the worker was required to establish that the injury on 3 July 1995 (the first injury) was a “serious injury” within the meaning of s135A(19) of the Act, to wit, the injury had to fall within paragraph (a) of the definition, in that he had sustained a “serious long-term impairment … of a body function”.
66 Buchanan JA (with whom Chernov and Eames JJA agreed), stated:
“The County Court judge held that the respondent was suffering a serious long-term impairment of his spine. He said:
‘He asserts, without challenge, that he has continuous pain in his low back and legs. His right leg goes numb if he sits too long. He has pins and needles in his right foot: the foot is painful. His social life has been restricted. He is taking strong analgesic medication and sleeping tablets. At the relatively young age of 46 he has a significant long-term impairment of his earning capacity. He has no tertiary or trade skills to fall back on.’
The question to which his Honour then turned was whether the respondent had established on the balance of probabilities that there was a causal connection between the 1995 incident and the respondent's current level of impairment. He said:
‘I am satisfied that it is more probable than not that the 1995 incident has made a contribution to the plaintiff's level of impairment. Put another way, I think it improbable that an incident which made his previously asymptomatic degenerative condition symptomatic and which, in his own words, left him with back pain and referred pain to his legs ever since is unconnected to his present complaints of back and leg pain. In other words, I am satisfied that the 1995 accident and the 1998 accident are links in the chain which has led to his present level of impairment.’
The trial judge thought that it was mere speculation whether the respondent would have suffered injury in 1998 if he had not injured his back in 1995, but was prepared to conclude that the results of the 1998 accident were substantially more severe because the respondent’s back had been reduced to a weakened state by the 1995 accident. Accordingly he was ‘satisfied on the balance of probabilities that the 1995 injury has made a significant contribution so as to enable that contribution to be regarded as ‘serious’ in the relevant sense’.
Whether an injury is ‘serious’ depends upon the extent of the impairment or loss of a body function resulting from the injury. Where separate injuries resulting from separate incidents impair one body function it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury. Each injury and the impairment of a body function resulting from it must be considered separately. See Lu v Mediterranean Shoes Pty Ltd. The respondent can only recover damages in respect of the injury that was caused by the 1995 incident. Accordingly, it is the impairment to the function of the spine caused by the injury the respondent suffered in that incident which must answer the description of a serious injury.
The thrust of the appellant’s case is that the trial judge failed to separately assess the effects of the injuries. His Honour spoke of the 1995 incident making ‘a contribution to the plaintiff's level of impairment’ and both incidents being ‘links in a chain which led to his present level of impairment’. The trial judge's ultimate finding was that the 1995 incident had made a ‘significant contribution’ to the impairment suffered by the respondent.
The trial judge did not state the degree of impairment which the respondent had sustained before the 1998 injury and was likely to have sustained even if the 1998 injury had not occurred. He did not expressly evaluate the significance of the contribution to the ultimate impairment suffered by the respondent by separately assessing the impairment that resulted from each incident. In my view it is a pity that his Honour did not in terms make such an assessment.
Nonetheless, when the reasons are read as a whole it does appear in my view that the trial judge concluded that the effect of the 1995 injury considered alone was to produce a serious long-term impairment of a body function, albeit he expressed that conclusion in a somewhat elliptical manner.
His Honour referred to Lu v Mediterranean Shoes Pty Ltd as standing for the proposition that injuries cannot be combined. He next said:
‘But if it can be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof (as the case may be) are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long-term impairment of the body function.’
His Honour then referred to the evidence of medical specialists who all said that in 1995 the respondent sustained an injury with immediate ongoing effects, and that injury played a part in the incapacity that occurred after the 1998 incident.
At the conclusion of his reasons the trial judge said that the first of the two ways of demonstrating serious injury which he had earlier referred to, namely, that the subsequent injury would not have occurred but for the first injury, was speculative in this case. When he then went on to say that the 1995 injury made a ‘sufficient contribution’ to enable that contribution to be regarded as serious, I consider that his Honour was stating that the second way of showing the first injury was serious which he had identified earlier in his reasons had in fact been established. In other words, ‘the additional effects [those which became manifest in 1998] are consequences of the original injury’ and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced a ‘severe long-term impairment of a body function’. It was not contended that the evidence was incapable of leading to that result. . …[50]
[50]Altona Bus Lines (op cit) paragraphs [5] – [12]
67 Senior Counsel for the defendant submitted that on the evidence, it was inappropriate to aggregate the initial incident and the subsequent “aggravations” when the plaintiff suffered further back pain as a result of being jolted when sitting on the ride-on mower. Consistent with the principles enunciated in Filipowicz, each of these incidents, and in particular, the incident of injury on 20 November 2000, has to be assessed independently as to the extent of any impairment and consequences resulting from that impairment.
68 Senior Counsel for the defendant accepted that consistent with the Altona Bus Lines decision, subsequent events “can be implicated or regarded as causally related” by one of two possible ways:
(a) If the second incident (or for that matter any subsequent incident) occurred as a result of the disability or vulnerability from the first incident, then the whole of the second incident is related to the first;[51]
(b) The second incident may be causally related to the first incident where there is some “sort of overhang of vulnerability” that makes a person more liable to suffer greater consequences because of the first injury.
[51]T55, L11 – 21
69 Again, Senior Counsel for the defendant submitted that the first scenario was not open on the evidence – for example this is not a case where someone has a knee injury and, as a result of that knee injury, collapses onto the knee and suffers further damage to the knee. However, appropriately and fairly, Senior Counsel for the defendant accepted that it was open on the evidence that the second scenario may be applicable.[52] Of course, he submitted that the evidence should be construed in such a way that the principles enunciated in Filipowicz are applicable.
[52]T64, L13 – 15
70 Senior Counsel for the defendant submitted that after a perusal of all of the evidence, the plaintiff had not discharged his onus of establishing the appropriate causal relationship between the first incident of injury and the subsequent aggravations to take it out of the circumstances where the principles of Filipowicz apply. In particular, he referred to the following matters:
(a) It was common ground between the medical specialists that the plaintiff suffers degenerative changes in his low back, described by Mr Kossmann as spondylosis of the lumbar spine, and by Mr Buzzard and Mr Dooley as degenerative disc disease;
(b) In his first affidavit, the plaintiff describes the first incident of injury on 20 November 2012 in what was submitted to be a “confined chronological sense without deposing at that point to there being any ongoing sequelae leading up to the motor incident”. The plaintiff was off work for two weeks, during which time he took painkilling medication and then returned to work on 4 December 2012, returning to his “normal duties including operating the ride-on mower”. It was submitted that the “injury” was most probably an aggravation of the underlying degenerative changes;
(c) Paragraph 10 of the first affidavit refers to a “recurrence” of his previous lower back pain as a result of a jarring sensation when the ride-on motor mower dropped into a pothole. Nothing relates that incident to the incident which occurred on 20 November 2012. Furthermore, Senior Counsel for the defendant submitted that each of the recurrences were brought about by an event – the driving of the ride-on mower over potholes;
(d) The opinion of Dr Glynn expressed in his report dated 15 April 2014[53] that the plaintiff suffered lumbar back pain resulting from the jolting incident sustained on a ride-on mower. (In this sense, so it was submitted, Dr Glynn seems to be distinguishing a specific incident of injury giving rise to the symptoms and any incapacity that the plaintiff was suffering when examined by that doctor);
[53]See exhibit C at page 18
(e) Senior Counsel for the plaintiff also referred to part of his cross-examination of the plaintiff and in particular, at Transcript 28, line 8 to Transcript 29, line 15, and in particular, highlighted that after the incident of back injury on 20 November 2012, the plaintiff returned to work on 4 December 2012, resumed his normal duties, including riding on the ride-on mower, without medication until “an exacerbation on 10 December 2012”. In particular, he refers to this evidence:
Q:“But in terms of using the ride on mower, there was no restriction at that point?---
A:No, not at that point, no.
Q:Really, it was only after the ride on mower episode on 10 December that you’ve had significant ongoing problems with your back?---
A:Yes.
Q:As you said, your back was extremely painful after that episode?---
A:Yes.”[54]
Mr Jewell accepted that the plaintiff did say in answer to a question from the Court, after his return to work from the incident on 20 November 2012, there was “still some discomfort” in the low back.[55]
[54]T29, L3 – 9
[55]T29, L19 – T30, L2
71 After a careful consideration of the evidence, I reject the submission of the defendant that the initial incident of the injury on 20 November 2012 and the subsequent aggravations of back pain should be assessed as independent injuries and evaluated consistent with the principles enunciated in Filipowicz. Rather, I have come to the view, as a matter of probability, that the incident on 20 November 2012 was causally related to the subsequent aggravations. Such aggravations must be viewed as consequences or sequelae of the incident of injury on 20 November 2012. I have come to such view for the following reasons:
(a) As I have already recorded, the plaintiff gave evidence, which I accept, that he was not completely pain free during his return to work after the incident on 20 November 2012;
(b) As is recorded by Dr Gwynn in his notes, the pain which recurred after the initial incident of injury was in the “same area” of the spine;
(c) The plaintiff gave evidence that prior to 20 November 2012, he had driven the ride-on mower on many occasions, which involved going over potholes and the like, which caused no difficulty. The fact that the pain recurred in a dramatic way shortly after his return to work after the first incident, and that such pain was in the same area and brought about by an activity which hitherto had caused no problems, is suggestive of some relationship;
(d) Although Dr Gwynn asserts in one of his reports that the plaintiff suffered lumbar back pain resulting from the jolting injury sustained on a ride-on mower, it must be noted that Dr Gwynn, although obtaining the history of an earlier event in December 2012, did not commence to treat the plaintiff in relation to any back condition until 13 March 2013 when the plaintiff presented with an aggravation of such back pain. Of course, Dr Gwynn has not been asked to give any opinion as to causation. This must be compared to the report of the orthopaedic surgeon, Mr Kossmann, who expressly states:
“I believe that the original injury sustained on 20 November 2013 made Mr Ott more susceptible to further incidents, which he experienced on or about 10 December 2012, 18 March 2013 and 28 August 2013.”[56]
[56]Exhibit E at page 23D PCB. The reference to “28 August 2013” contained in the quote almost certainly refers to the incident recorded in the history; that is, 27 August 2013.
I accept such opinion of Mr Kossmann;
(e) I also note in passing, that in the course of oral submissions, the defendant accepted that in relation to the assessment by Mr Buzzard of impairment of the back, the nominated injury was that which occurred on 20 November 2012 without any suggestion that there should be some attempt to delineate between that incident of injury and the subsequent aggravations brought about by the ride-on mower;
72 Accordingly, I do find that the plaintiff has suffered a compensable injury to his low back on 20 November 2012 which has given rise to permanent impairment and organic consequences, including the various aggravations that the plaintiff has suffered subsequently in the course of his employment. The nature of the injury giving rise to such impairment has been an aggravation of pre-existing degenerative change in the low back which hitherto had been asymptomatic. Such conclusion is essentially based on the opinions of the orthopaedic specialists, Mr Kossmann and Mr Dooley, together with that of the general surgeon, Mr Buzzard. The issue becomes whether or not the plaintiff has discharged his onus in discharging the narrative test.
73 As I have already recorded in this judgment, the question whether an injury satisfies the definition of “serious injury” is largely a question of impression and value judgment.
74 It is perhaps apposite to comment on the credibility of the plaintiff. I found the plaintiff to be a straightforward and credible witness. I gained the impression that he was somewhat of a “loner” and somewhat of a stoical disposition. Senior Counsel for the defendant, when queried about any issue as to credibility, fairly, and, in my view, appropriately, indicated that credibility was not an issue.
75 I make the following findings of fact:
(a) The plaintiff is a sixty-three-year-old divorced man who, since 2000, has lived on a remote rural property in Swifts Creek in the Victorian High Country. His property consists of 470 acres, three-quarters of which is native bush over the Victorian High Country and a small area of cleared land around his cabin. His nearest neighbour is approximately 5 kilometres away;
(b) When purchased, there was a small cabin which he has renovated to some extent and introduced solar power. He relies on tank water, has a Coonara heater during winter and has a vegetable garden which supplies some of his vegetables;
(c) At all material times, he has been employed by the defendant as a maintenance officer, having commenced on 5 September 2011. The duties of a maintenance officer can be strenuous and involve mowing, general park and other cleaning duties, Whipper Snipping, tree maintenance, maintaining playgrounds and general revegetation work. When he initially commenced, he was required to ride on a ride-on mower and use a hand mower. Although not clear as to the precise date, some time in 2014, his hours of employment reduced from five days a week to three days a week because he was certified to be unfit to sit on the ride-on mower;
(d) I do find, consistent with the evidence of the plaintiff, that he is able to perform his duties as a maintenance worker, and probably would be able to perform such duties for a full-time week (absent riding on the ride-on mower). However, he is particularly careful how he goes about such work and uses harnesses to hold any equipment (for example a Whipper Snipper) and if using the hand-held motor mower, he adjusts the height of the handle and tends to work in straight lines and avoiding twisting and turning. In general, he plans his activities in such a way to put minimal stress on his back;
(e) I do find that, consistent with his evidence, the plaintiff does have some degree of back pain at all times but experiences “flare ups” of pain following any strenuous activity, bending, twisting or travelling over rough ground for any extended periods;
(f) In this sense, I consider that the evidence of Dr Gwynn, when he reported that the plaintiff had no symptoms, must be seen in a context where the plaintiff has some degree of underlying back pain but has only sought treatment where flare-ups occur;
(g) I also find that the plaintiff has only had intermittent attendances on his general practitioner, and other than acute periods of back pain where he has taken medication, he tends to avoid medication, in part because he is concerned about long-term effects of such medication. He does have Panadeine Forte at his premises to be taken when the back pain is acute;
(h) Prior to the injury, the plaintiff:
(i) had conducted a firewood business which would involve him going out into the High Country, cutting up wood with a chainsaw, carting it back to his premises and later, selling it to various neighbours. He also cut wood for his own use in the Coonara heater. Since his injury, such activities have come to an end because of the increased back pain that he suffers when performing such activity. He now has his son helping obtain firewood for his own use;
(ii) that at all times, he has had a vegetable garden at his premises which supplies much of his vegetables. He has great difficulty in now servicing the vegetable garden, in that he has trouble bending down or kneeling to perform work in that area;
(iii) mainly to avoid the risk of bushfires to his cabin, it is necessary to cut the grass around the cabin area and, prior to the injury, he did his own slashing over a number of acres. Since the injury, he has required an outsider to undertake such task or on occasion, his son, as he is unable to perform the work because of the jolting of the machine;
(iv) prior to the injury, his great passion was to go what he referred to as “hunting” of Sambar deer – sometimes such hunting was to kill deer to supply his meat requirements throughout the year. Otherwise, he obtained enjoyment stalking and following deer through the High Country and sometimes taking photographs of them. He undertook such activity several times a week and over the weekend. When hunting a deer for meat, it was necessary to take the meat off the deer and he would carry bags loaded up with about 50 kilograms of meat to be taken back to his hut where the meat was deep frozen. On any particular occasion, the journey back to his hut over the High Country might involve many kilometres over rough ground and involve several trips on one day to gather and bring all of the meat back to his hut. Such activity has come to an end, as he finds moving over the High Country with its potholes and the like, causes him too many difficulties with his back and gives rise to significant pain;
(v) in a similar way, he enjoyed bushwalking “off the beaten track” and travelling through the High Country throughout the year. Sometimes this would also involve the hunting of foxes but more often just the pleasure of the bushwalk. This activity has also been significantly reduced because of his injury and he avoids any rough country for any walking activity.
(vi) Prior to the injury, he enjoyed trout fishing deep in the High Country where he would perform spin fishing which involves him being in the streams in waders and moving through the streams. He would travel over rough terrain to get to various parts of streams and then walk through such streams in waders, performing his fishing activities. Although he still continues to perform some fishing on a very limited basis, it is only in situations where he can drive to the edge of the stream and fish at that point.
76 Senior Counsel for the defendant submitted that the plaintiff had not discharged his onus in satisfying the narrative test for the following reasons:
(a) The intake of medication is one indicia as to the significance of any particular condition and in the present case, the plaintiff takes very little medication for his condition;
(b) Counsel refers to the notes of the general practitioner and particularly over the period from late 2013 up to April 2014, the reports of the plaintiff being asymptomatic. Counsel noted that such a report may reflect to a degree a modified lifestyle, but “nonetheless, it is also indicative of the nature of the impairment”;
(c) That most of the time, the plaintiff is symptomless or suffers very low-grade periodic symptoms and is able to pursue his chosen vocation; that is, working as a maintenance officer with the defendant, albeit with the inability to use the ride-on mower. In this respect, counsel also noted that the plaintiff has made clear that if the ride-on motor mower was sprung with suspension, he would be able to use it. Consistent with my finding, Counsel for the defendant submitted that it is probable the plaintiff would be capable of doing five days’ work as a maintenance worker (save for the ride-on mowing work).
Conclusion
77 I refer to the following Court of Appeal decisions, which gives some guidance:
(a) Stijepic v One Force Group Aust Pty Ltd,[57] wherein the Court of Appeal (consisting of Ashley JA and Beach AJA) commenting on the decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd,[58] stated:
[57][2009] VSCA 181
[58][2006] VSCA 292
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”[59]
[59]Stijepic (op cit) at paragraph [47]
(b) Haden Engineering Pty Ltd v McKinnon,[60] wherein the Court of Appeal (Maxwell P, Buchanan and Nettle JJA) stated that the –
[60](2010) 31 VR 1
“… interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities … and enjoyment of life”
and as part of that process, it is for the Court to assess the intensity of the pain which the plaintiff experiences, together with frequency and duration of pain episodes.
The Court of Appeal made reference to the Court of Appeal decision in Dwyer v Calco Timbers Pty Ltd (No 2),[61] and thereafter stated:
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment 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.’”[62]
[61][2008] VSCA 260
[62]Haden (op cit) at paragraph [14]
78 In my view, it is important to bear in mind that the plaintiff has seen fit to live in a remote part of the High Country Victoria and live what could only be described as in many ways a lonely existence. As he said in evidence, he does not mix much with other people other than his son, and probably to some extent, with workmates. I gained the impression that such a lifestyle had given him great pleasure and in particular, much pleasure had been obtained from his ability to enjoy the High Country through walking, fishing and in particular, hunting activities which involve not only killing deer for his own use, but the ability to stalk deer through the High Country and sometimes take photographs of them. I accept the evidence of the plaintiff that he has always had a love of hunting, commencing in his teenage years, and that a loss of such activity makes him feel “not very good”.
79 Of course, the consequences of any impairment vary from one person to another. For example a pianist who suffers the amputation of a tip of a finger may suffer dramatic consequences as the ability to play a piano would be significantly reduced or lost, whereas a similar injury to a timber mill worker may well be seen no more than an occupational hazard.
80 I gained the impression, both through the evidence given by the plaintiff and his demeanour in Court, that the losses suffered by him which I have found to exist, and in particular, the loss of being able to perform the various activities on or around his property in Swifts Creek, are significant for him. True it is that some of these activities have not been obliterated and he is able to do some fishing when he can drive to a stream, and obviously does some walking in the vicinity of his cabin. However, taking everything into account, I am satisfied the plaintiff has discharged the narrative test
81 I grant leave to the plaintiff to bring common law proceedings to recover pain and suffering damages for an injury to his low back suffered by him during the course of his employment with the first defendant on or about 20 November 2012.
82 I will hear the parties on the issue of costs.
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83
ANNEXURE “A”
1 The plaintiff tendered the following material:
Exhibit A
·Bundle of notes from the treating general practitioner, Dr R Gwynn
Exhibit B
·Two affidavits of the plaintiff sworn on 30 October 2014 and 22 September 2015 (such affidavits found at pages 7 – 16 Plaintiff’s Court Book (“PCB”))
Exhibit C
·Medical reports of Dr R Gwynn dated 15 April 2014 and the 1 October 2014 (pages 16-18A PCB)
·Physiotherapy report of Ms J Hill dated 6 May 2014 (pages 22 – 23 PCB)
Exhibit D
·CT scan of lumbar spine undertaken on 29 January 2013 (page 19 PCB)
·X-ray of the lumbosacral spine undertaken 11 January 2013 (page 20 PCB)
·CT-guided injection undertaken on 13 March 2013 (page 21 PCB)
Exhibit E
·Report of the orthopaedic surgeon, Mr T Kossman, dated 13 August 2005 (pages 23A – 23E PCB)
·Report of general surgeon, Associate Professor A Buzzard, dated 14 June 2014 (pages 24 – 29 PCB).
2 The defendant tendered the following material:
Exhibit 1
·Report of the orthopaedic surgeon, Mr M Dooley, dated 25 February 2014 (found at pages 1 – 4 Defendant’s Court Book (“DCB”)).
0
14
0