Pender v Nestlé Australia Limited
[2013] VCC 1994
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00911
| MLADEN PENDER | Plaintiff |
| v | |
| NESTLÉ AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 March 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
CASE MAY BE CITED AS: | Pender v Nestlé Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1994 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; 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; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment:Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to injury to the lumbar spine suffered by him on 11 May 2005 during the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Ms M Britbart | Wisewould Mahony Lawyers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the defendant on 11 May 2005.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. He brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon ultimately in this application is the lumbar spine.
4 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross‑examined. In addition, Dr Andrew Fiedler gave viva voce evidence and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
5 An impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. By ss(38)(c) of s134AB of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant or marked and as being at least very considerable”.
6 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
7 Subsection (38)(h) consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd and Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
8 The defendant concedes the plaintiff suffered an organic injury in the course of his employment as alleged and that the injury is probably rendering underlying degenerative change painful. However, the defendant alleges that after the injury, the plaintiff required little or no medication for a significant period of time, and this is consistent with substantial recovery from the injury. Further, the defendant’s primary submission is that the plaintiff is an unreliable witness who tried to “tailor his answers to a version of events which he considered most helpful to his case”. In this context, it is conceded that the radiological imaging of the plaintiff’s low back reveals widespread degenerative changes, and the plaintiff’s reports of unremitting pain are the basis for most of the medical diagnoses which support the plaintiff’s case. The defendant, therefore, calls into question whether the reports of pain are accurate with respect to their timing, extent and duration, and their subsequent effect on his activities.
9 With respect to the plaintiff’s reliability about complaints of symptoms from time to time, the defendant proffers the following analysis:
“Return to work period May 2005 – late August 2006
12The plaintiff performed light duties for approximately 15 months, and worked full time hours for most of that period.
13The plaintiff maintains that during the return to work period his low back pain was getting somewhat worse (T23.20). The defendant submits that the plaintiff should not be accepted. The contemporaneous evidence shows that the plaintiff’s condition gradually improved in the months after he returned to work, and that he was in fact not troubled by much back pain at all during most of the period that he was back at work:
(a)Dr David Vivian saw the plaintiff on 27 July 2005 on referral from Dr Salimi. Dr Vivian obtained a history that over time the plaintiff’s low back pain had reduced (PCB 38). At that time he could flex his back to 90 degrees without pain (PCB 39).
(b) Dr Salimi’s notes indicate that on 6 September 2005 the plaintiff told him he had been feeling ‘a lot better’, and that he had ceased taking Tramal and Mobic 3 weeks earlier (DCB 106).
(c) Over the following months Dr Salimi’s notes show (DCB 106 – 108) that the plaintiff never complained of increasing back pain, and in fact reported that his back pain reduced (eg. 4 April 2006). He was not prescribed any analgesic medication.
(d)In the months leading up to his cessation of work in late August 2006 the plaintiff did not see Dr Salimi at all (DCB 107 – 108). His last appointment before ceasing work was on 4 April 2006 (DCB 107) when he said his pain was reduced.
(e) The plaintiff was consulting the Victoria Medical Centre from 21 September 2005 (DCB 130) until he ceased work in August 2006 (and beyond). The notes from this clinic do not reveal any report of worsening back pain whilst on light duties, nor any prescription for analgesic medication. Although the plaintiff was being treated by Dr Salimi for his back symptoms at that time, in the context of the plaintiff saying he was hiding his pain from Dr Salimi, it does not follow that he would not have mentioned ongoing and increasing pain to Dr Nakovska of [skil or] Dr Fielder if that is in fact what he was experiencing.”
10 With respect to this submission, it should be noted as follows:
(a) When seen by Dr David Vivian on 27 July 2005, although he took a history that the low back pain had reduced, he also recorded:
“…The left buttock pain began about one to two weeks after the incident. It gradually increased. The buttock pain is the more prominent pain now; he describes it as being severe and constant. When he drives the car the pain increases. The low back ache is still present but it is tolerable. The buttock pain spreads from the left low back and sacroiliac joint more to the upper buttock.
He has also had some left anterior thigh tingling. This began also soon after the onset of the back pain. It has reduced. It occasionally aches.”[2]
[2]Exhibit D, Plaintiff’s Court Book (“PCB”) 35
Further, Dr Vivian recorded:
“Current treatment consists of massage once a week and medication (Mobic 15 mg per day and Tramal 50 mg bd). … He tried going off the pills for a week but the pain increased and he had to go back on them. … .”[3]
[3]Exhibit D, Plaintiff’s Court Book (“PCB”) 35
And further:
“…The possible origins of pain would include one of the lumbar discs, a lower lumbar facet joint, and the left sacroiliac joint. The numbness in the left anterior thigh might suggest a nerve root injury … .”[4]
[4]Exhibit D, Plaintiff’s Court Book (“PCB”) 39
(b) Although Dr Salimi’s notes on 6 September 2005 note the plaintiff said he was feeling “a lot better”, it is to be noted that on 26 September 2005, the plaintiff gave a history that he was still seeing the physiotherapist regularly. Further, his normal treating general practitioner, Dr Nakovska, gave him a prescription for Mobic and Tramal tablets on 24 November 2005.[5] This prescription was repeated on 2 February 2006.[6]
[5]Exhibit 8, Defendant’s Court Book (“DCB”) 28
[6]Exhibit 8, DCB 128
(c) The plaintiff was examined on behalf of the defendant by Ms Judith McKenzie, orthopaedic surgeon, on 3 June 2005.[7] At that time, the plaintiff gave a history that he was using Mobic, Tramal and ongoing massage. He complained of midline back pain with pain in the central section of the left buttock “where it is now more pronounced”. He also had –
[7]Exhibit 1
“A tingling, numb feeling about the antero-lateral aspect of the middle third of the left thigh and a numb feeling that affects the left great toe. It is constantly present.”[8]
[8]Exhibit 1, DCB 2
Ms McKenzie also noted that the calf paraesthesia had resolved but it persisted in the thigh and there was persisting back pain, together with back stiffness, energy loss, some sleep disturbance and a reduced activity level.
Importantly, Ms McKenzie’s clinical assessment was as follows:
“Despite the basically normal CT scan findings I believe Mr. Pender has lumbar disc damage with involvement of what is probably the left 3rd sacral nerve root.”[9]
[9]Exhibit 1, DCB 4
Further, she stated:
“Any disc damage or disc degeneration at whatever level of the spine, any scarring in the associated soft tissues and any other degenerative changes are all permanent and could give rise to Mr. Pender experiencing recurrent incidents of low back pain. Such pain is mechanically caused and will not be prevented by any form of conservative care.”[10]
[10]Exhibit 1, DCB 5
Further, she noted:
“There did not appear to any functional overlay, conscious or unconscious exaggeration of symptoms or a deliberate attempt to feign injury.”[11]
[11]Exhibit 1, DCB 5
(d) Further, the plaintiff was referred to consultant physician and rheumatologist, Dr Frank Laska, on 14 February 2006. Dr Laska took a history that –
“… his dominant discomfort was in the left buttock region. Apparently this was particularly problematic when he was lying and his sleep could be disturbed since pain manifested overnight. … .”[12]
[12]Exhibit C, PCB 32
There was a further history taken that restrictions of movement of the lumbar spine meant the plaintiff had difficulty putting on socks, shoes et cetera, and although he was coping with eight hours of modified duties per day, he still needed significant rest periods in order to recover in between.[13]
[13]Exhibit C, PCB 32
Further, Dr Laska considered that x-rays of the lumbosacral spine showed –
“… vacuum phenomenon noted in the facet joints between L4 and S1 suggestive of early osteoarthritis.”[14]
[14]Exhibit C, PCB 33
He recommended that the plaintiff undertake a program of supervised mobilisation of his lumbar segments in association with a supervised program of retraining of muscular supports.[15]
[15]Exhibit C, PCB 34
(e) To this end, the plaintiff was assessed by Dr Matthew Richards of the Spinal Management Clinics of Victoria, who reported on 9 January 2006.[16]
[16]Exhibit E
He took a history of left-sided lumbar constant, aching pain radiating into the left buttock.
Functionally, the plaintiff was unable to participate in his usual recreation which included boat fishing and hunting. Further, the plaintiff reported increased difficulty transferring from lying to standing over a 10 to 15-minute period first thing in the morning. He also had varying difficulty getting to sleep at night and woke six to seven times per night when turning over.[17]
[17]Exhibit E, PCB 42
(f) Dr Richards’ diagnosis was one of –
“… significant generalised deconditioning with marked weakness in his lumbar spine stabilisation musculature. The radiological findings of marked spondylitic changes appear consistent with his presentation of general joint wear and tear including peripheral joint osteoarthritis. … .”[18]
[18]Exhibit C, PCB 44
A program consisting of muscle retraining and gym-based exercises was recommended. Apparently the plaintiff underwent same.
(g) The plaintiff was also assessed on behalf of the defendant by occupational physician, Dr Gary Davison, on 28 February 2006.[19]
[19]Exhibit 2
He took a history of the plaintiff being referred to the Spinal Functional Restoration Program conducted by the Spinal Management Clinic referred to above. The plaintiff reported no substantial improvement despite attending the program since January of that year. Further, Dr Davison took a history of mainly left-sided pain radiating to the left buttock. He described the pain as “stabbing” in nature. He also recorded that pain radiated to the lateral and anterior aspects of the left thigh. At that time he was taking Panadol, perhaps once or twice a week for pain.[20] On examination, he recorded the plaintiff –
[20]Exhibit 2, DCB 9
“… was a pleasant and cooperative, but [an] injury focussed individual.
…
… There was a vague, patchy, subjective sensory deficit in the left thigh.”[21]
[21]Exhibit 2, DCB 10
His assessment was as follows:
“Clinical examination is consistent with left lumbar facet joint arthropathy/strain injury. The claimant is likely to be experiencing referred pain into the left lower limb. The sensory disturbance does not appear to have a dermatomal basis.”[22]
[22]Exhibit 2, DCB 11
As to work relationship, he stated:
“Clearly, radiological examination shows the presence of extensive pre-existing spondylosis in the thoracolumbar region. It is likely that the activity at work in May last year aggravated that pre-existing pathology. Given that the claimant was apparently asymptomatic prior to that time, it is reasonable to accept that employment continues to materially contribute to this man’s incapacity.”[23]
[23]Exhibit 2, DCB 11
When seen again by Dr Davison on 7 September 2006, he noted that the plaintiff was taking Panadol between one and three times per week for pain relief and was still performing 8 hours per day on alternate duties.[24] He again recorded that the plaintiff was –
[24]Exhibit 2, DCB 15
“… a pleasant and cooperative historian, who was well presented and punctual.”
On examination, he noted:
“…There was a vague alteration in sensation of the left leg over the L5 distribution.”[25]
[25]Exhibit 2, DCB 16
Further, Dr Davison quoted:
“The cause of the pain is likely to be degenerative facet joint arthropathy in the left lumbar region or degenerative pathology in the left lumbosacral joint.
…
… the claimant’s injury represents an aggravation of a pre-existing degenerative pathology. The claimant’s injury has worsened over the past 6 months despite appropriate management.”[26]
[26]Exhibit 2, DCB 17
At that time, as to treatment, he noted:
“The claimant is self managing his condition which is appropriate.”[27]
[27]Exhibit 2, DCB 17
(h) The plaintiff was assessed by Dr Salimi, general practitioner, on 4 September 2006, when he took the following history:
“[P]atient claims his condition has not changed. Still experiencing lower back pain. … .”[28]
[28]Exhibit 7, DCB 108
(i) Finally, when seen by his regular general practitioner, Dr Fiedler, on 16 October 2006, the history was as follows:
“18/12 [eighteen months] of worsening depression since losing his job after a back injury. Currently under Workcover elsewhere. Says he is a keen hunter and fisherman. One day he was all right, the next all of his work prospects and enjoyment disappeared.
Sits in his garage looking at his expensive equipment, feeling more and more despondent.”[29]
[29]Exhibit 2, DCB 127
Ongoing back pain and medication
11 The plaintiff submits that the notes of Dr Salimi/Dr Henderson show no pain-relieving medication being prescribed between July 2005 and July 2007. It is conceded that Dr Henderson prescribed Norspan patches between 26 September 2006 and 7 January 2009. Thereafter, it is submitted that the only prescription Dr Henderson gave to the plaintiff was for Panadeine Forte tablets on 12 June 2009 before he ceased to consult Dr Henderson in October 2009. The plaintiff explained that he stopped seeing Dr Henderson because WorkCover had stopped paying for his medication and therefore elected not to continue attending the defendant’s clinic.
12 Dr Salimi handed over to Dr Michael Henderson in February-March 2007. Dr Salimi’s last note on 13 February 2007 was:
“The patient’s condition is unchanged.”[30]
[30]Exhibit 7, DCB 109
13 He had earlier recorded, on 1 November 2006:
“Immobility had made his back pain worse”
and on 4 December 2006:
“His back condition is unchanged”
and thereafter, on 11 January 2007:
“A few weeks ago had a flare up, saw his GP who has organised an MRI scan of his back.”[31]
[31]Exhibit 7
14 When first seen by Dr Henderson on 14 March 2007, he recorded a history of lower back pain since May 2005.
15 On 23 March 2007, he queried whether he should prescribe Norspan, and on 13 April 2007, the history was:
“Says pain constant, right lower lumbar. Vague radiation to legs with numbness. Usually 4-5. Sometimes up to 7/10. Says interferes with sleep.
Has used Celebrex in [the] past with no great effect.
Has taken Tramal – may be beneficial.”[32]
[32]Exhibit 7, DCB 110
16 Thereafter, there is treatment for depression but also, on 25 July 2007, a history is taken:
“Panadol ~ 4 / day
…
Requests Panadeine forte for exacerbations.”[33]
[33]Exhibit 7, DCB 111
17 Further, on 26 September 2007, reason for visit is described as:
“Depression – Major.
…
chronic back pain.”[34]
[34]Exhibit 7, DCB 112
18 There was a prescription of Norspan patches to be applied weekly.[35]
[35]Exhibit 7, DCB 112
19 On 10 October 2007, Dr Henderson recorded:
“Tolerating Norspan. Says better though still ‘stiff’. However, overall very happy with result.
Asks about TENS, orthotics. His wife knows someone who got a good result from these. Approached case manager – John Cassar – frosty response.”[36]
[36]Exhibit 7, DCB 113
20 There was a further prescription for Norspan patches.[37]
[37]Exhibit 7, DCB 113
21 On 7 November 2007, Dr Henderson recorded that the pain was better with patches and the plaintiff had been using a TENS machine for three weeks. He was not sure whether it was helping.[38]
[38]Exhibit 7, DCB 113
22 On 5 December 2007, Dr Henderson recorded that the plaintiff was getting a good result from Norspan and was sleeping much better. However, he would like to increase the dose to 10 milligrams. The TENS machine was said to be ineffective. The reason for the visit was recorded as “chronic back pain”.[39]
[39]Exhibit 7, DCB 113
23 On 14 December 2007, Dr Henderson recorded that the WorkCover insurer was denying costs for further Norspan. Apparently this decision was reversed on 4 January 2008.[40]
[40]Exhibit 7, DCB 114
24 Norspan patches were then prescribed on 4 January 2008, 23 January 2008, 19 March 2008 and 18 April 2008.
25 On 14 May 2008, it was recorded:
“Pain ISQ
Paraesthesia persists and ? weakness in left leg.”[41]
[41]Exhibit 7, DCB 115
26 A Norspan patch was also prescribed.
27 On 4 July 2008, Dr Henderson recorded the MRI scan result as being:
“Multilevel facet joint arthritis and disc desiccation.”[42]
[42]Exhibit 7, DCB 116
28 On 16 July 2008, Dr Henderson further prescribed Norspan patches and Celebrex tablets for chronic back pain.[43]
[43]Exhibit 7, DCB 116
29 These prescriptions were repeated on 13 August 2008.
30 The condition was described as “ISQ” on 5 December 2008, with a further prescription for Norspan patch.[44]
[44]Exhibit 7, DCB 117
31 Apparently liability was denied from January 2009 for the Norspan patches but Dr Henderson recorded:
“Wishes to continue with Norspan patches at his own expense.”[45]
[45]Exhibit 7, DCB 118
32 Thereafter, on 12 June 2009, Dr Henderson records:
“Says back getting worse, maybe because of weather. Can’t afford Norspan. What can I do to help him?
Half hour or so spend (sic) on phone [to find] least expensive analgesia.
Negotiated Panadeine Forte generic x 100 for $20, at My Chemist, Edwards St, Reservoir.”[46]
[46]Exhibit 7, DCB 118
33 A prescription for Panadeine Forte was repeated on 9 September 2009[47] with a recording on 9 October 2009 of “ISQ”.[48]
[47]Exhibit 7, DCB 118
[48]Exhibit 7, DCB 119
34 The plaintiff thereafter ceased treatment with Dr Henderson as recorded.
35 Dr Henderson summarised his treatment in a report dated 25 March 2009.[49] Upon recording that an MRI scan in July 2008 showed multi-level facet joint arthritis and disc desiccation, he recorded that he then reviewed the plaintiff on a monthly basis thereafter. He also recorded that it was a great concern to him that the insurer was ceasing to pay for medical and like expenses as the plaintiff would not be able to afford the medication which he requires.[50] Dr Henderson considered that his employment was the principal contributing factor to his current condition and that his injury rendered him permanently unfit for employment on the open market.[51] He also recorded:
“The only treatment which has proved beneficial to Mr Pender, in terms of symptom relief and improvement of quality of life, has been the Norspan. … Since liability for ongoing medical treatment and like expenses has been denied, I am not sure that Mr Pender will be able to afford this medication.”[52]
[49]Exhibit F
[50]Exhibit C , PCB 54
[51]Exhibit C, PCB 55
[52]Exhibit C, PCB 55
36 The defendant’s submission is that thereafter the medical treatment from the plaintiff’s own general practitioner with respect to the lumbar spine, appears to be sparse.
37 On 7 September 2011, Norspan patches were prescribed by Dr Nakovska, and on 15 December 2011, the history taken included:
“Reported that he has had back problems since a factory accident in 2005. Says that since then he has had a numbness in the anterior left thigh.”[53]
[53]Exhibit 8, DCB 123
38 The Norspan patches were again prescribed on 9 May 2012 and 12 March 2013. On the latter date, the history recorded was:
“Reported that the Norspan in dosage he is on currently is insufficient.”[54]
[54]Exhibit 8, DCB 121
Causation
39 In my view, despite the lack of recourse to his GP in 2010 and 2011, the plaintiff has established that there has not been a period of recovery in the symptoms he has suffered as a result of the work injury on 11 May 2005. It is clear that the paucity of medical treatment by way of Norspan patches since October 2009 is more a function of its affordability rather than the absence of symptoms. There is also the opinion of Dr Davison that the work relationship of the injury and the ongoing pain probably ceases after two years. There is no basis provided for this time limit and, in any event, I am not persuaded on the evidence that there is a particular time when it could be said that the plaintiff has recovered from the injury. In this regard, I consider that the opinion provided by specialist orthopaedic surgeon, Mr Rodney Simm, on 18 December 2012 probably synthesises the evidence and the diagnosis.[55] His diagnosis was as follows:
“… The back strain injury was probably responsible for internal disc disruption of the degenerate L4-5 intervertebral disc without disc protrusion. Stimulation of nerve fibres in the annulus of a particular lumbar intervertebral disc may produce radicular like symptoms in the distribution of the nerve root that exists (sic) in the spinal canal at the level of that segment.”[56]
[55]Exhibit O
[56]Exhibit C, PCB 104
40 Mr Simm provided a further supplementary report dated 12 March 2013. He noted some non-organic findings; however, he stated:
“I remain of the opinion that your client has suffered a physical injury to the lumbar spine, from which he has not recovered. The injury is responsible for ongoing impairment, loss of function of the back and associated disability which would prevent your client from returning to physically demanding activities and, in particular, physical forms of employment.”[57]
[57]Exhibit C, PCB 106a
41 In accepting that the plaintiff had constantly reported pain without any period of remission from the time of the work injury, he stated:
“… Under these circumstances it is always extremely difficult, if not impossible, to determine when the work-related influence on the degenerative pathology ceases and the condition remains solely due to the degenerative pathology. It is usually accepted that if there is no period of recovery then it is not possible to determine if and when the transition from work-related symptoms to non-work-related symptoms occurs, and therefore it is usually accepted that the work injury has an ongoing contribution to the clinical condition. … .”[58]
[58]Exhibit C, PCB 106b
42 As to the defendant’s submission that the physical injury has to be disentangled from any subsequent functional overlay, it can be accepted that in a situation where the physical injury can explain the persistence of symptoms on a permanent basis, and where those physical symptoms can meet the threshold laid down by the legislation, then a superimposed functional overlay does not operate to disentitle the plaintiff.[59]
[59]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201
43 In my view, this analysis is best assessed by the defendant’s neurosurgeon, Mr Peter Dohrmann, in his report dated 7 May 2012.[60] He reported:
“… the diagnosis is chronic low back pain with referred leg pain, without radiculopathy, due to an aggravation of pre-existing lumbar spondylosis.
…
… In my opinion, there is a clear relationship between Mr Pender’s current condition and the work injury, particularly as there were no prior symptoms and the current symptoms have persisted largely unchanged from the date of injury.
There may be a functional component, which is suggested by the physical finding of global sensory impairment in the left leg and by a physically impoverished lifestyle which may be out of proportion to the objective evidence of injury. An assessment by a psychiatrist may be appropriate.”[61]
[60]Exhibit 6
[61]Exhibit 8, DCB 98
Pain and suffering consequences – principles
44 As has been set out on a number of occasions, but particularly in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd:[62]
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life. … .”
[62] (2011) 31 VR 100 at paragraph [46]
45 The Court of Appeal recited with approval the dicta of Maxwell P in Haden Engineering Pty Ltd v McKinnon,[63] where his Honour recorded:
[63](2010) 31 VR 1
“[9]… [T]he ‘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 (including capacity for work) and enjoyment of life. …
[10] As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
[11] The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
46 Relevantly to the issues in this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of the plaintiff’s credit. He said, at paragraph [12]:
“[12]As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff's credibility if she gives evidence and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
47 An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2)[64] by Nettle JA, Maxwell P observed:
“[13]As to paragraph (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injuries suffered by the ‘stoical’ plaintiff is not to be viewed as an (sic) any less serious merely because she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[64][2008] VSCA 260 at paragraph [13]
48 To identify the disabling effect of pain requires an understanding both of the plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison.
49 As Maxwell P explained:
“[15]The disabling effect of pain: 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), ‘Impairment is concerned with what has been lost. But the significance of what has been lost may be informed, to an extent, by what is retained.’ As to capacity for work, it is necessary to identify whether and to what extent a plaintiff is prevented by the pain from performing the duties of her previous employment. The fact that the plaintiff has been unable to return to full‑time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which the plaintiff enjoyed has been closed off to her’.”
50 Assessing loss of enjoyment of life in a broad sense requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
“[16]Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s: sleep; mobility; cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication); capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life. Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
Pain and suffering consequences of compensable physical injury
51 The defendant takes issue with the plaintiff’s evidence about hunting and fishing being affected by his back injury insofar as Ms Judith McKenzie, in 2005, takes a history that the plaintiff ceased hunting because of foot pain relating to arthritis. The plaintiff, for his own part, denies that that is so. Although he was taking Celebrex for some three years prior to seeing Dr Salimi for arthritis in his feet, Ms McKenzie noted:
“Mr Pender’s gait was unimpaired, he could walk on his toes and heels, experiencing pain when on his toes, marked time evenly and squat fully.”[65]
[65]Exhibit 8, DCB 3
52 Although Ms McKenzie noted an incidental finding of osteoarthritis affecting the first metatarsophalangeal joint of both feet, with the changes being more marked on the left, there does not appear to be an opinion that this has resulted in any significant functional disability.
53 In any event, the plaintiff has sworn, and I accept, as follows:
“Since being injured at work, my previously undisturbed sleep is now broken several times throughout the night due to the pain in my back. I also find it difficult to find a comfortable position to sleep in and often get up in the middle of the night and watch television, read or do a crossword. As a result, I am tired throughout the day and I find that the lack of sleep also affects my mood.”[66]
[66]Exhibit A, PCB 20, plaintiff’s affidavit sworn 27 October 2011 at paragraph 30
54 Further, it is common ground that the plaintiff has lost the capacity to perform his pre-injury occupation as a result of the physical injury. At best he would be fit for some form of light duty and may be more seriously impaired, as per the opinion of Dr Henderson referred to above.
55 In his supplementary affidavit sworn 8 March 2013, the plaintiff attests to suffering numbness or pins and needles in his left buttock, left thigh and left foot. He further swears that he takes Panadol almost every day, anywhere from two to eight. I consider that this is consistent with the evidence that he has been unable to afford the more expensive medication he was accessing prior to the withdrawal of medical expenses.
56 In all the circumstances, I consider that the plaintiff has discharged the onus of proof by establishing that the impairment of the function of his low back leads to consequences which are “at least very considerable” and certainly “more than significant or marked”.
57 Leave will be granted for the plaintiff to issue proceedings at common law for pain and suffering damages arising out of the injury on 11 May 2005.
58 I will hear the parties as to consequential orders.
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