Plowright v KCH Paver and Garden Supplies Pty Ltd
[2014] VCC 920
•24 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-03732
| IAN PLOWRIGHT | Plaintiff |
| v | |
| KCH PAVER & GARDEN SUPPLIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2014 | |
DATE OF JUDGMENT: | 24 June 2014 | |
CASE MAY BE CITED AS: | Plowright v KCH Paver & Garden Supplies Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 920 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Injury to lumbar spine conceded – leave sought to recover damages for pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Stijepic v One Force Group Pty Ltd [2009] VSCA 181
Judgment: The plaintiff’s application is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr A. Middleton | Hall & Willcox |
HER HONOUR:
Introduction
1 The plaintiff is 59 years of age. He is married with two adult children.
2 The plaintiff completed his formal education to Year 11 at a technical school. His employment history until 2000 involved either working as a storeman or driving taxis.
3 In 2000, the plaintiff commenced employment with the defendant, KCH Pavers & Garden Supplies Pty Ltd as a labourer and yard hand. His duties involved regular handling of heavy items such as bags of cement, wall units and loads of timber.
4 The plaintiff’s first affidavit, sworn on 6 March 2012, set out the circumstances in which he suffered injury to his lower back in the course of his employment as follows:[1]
“7. To the best of my recollection I began to suffer problems with the onset of lower back pain as a result of the duties I was performing at work during the latter part of 2007. I took some time off in September and October and anticipated that my symptoms would gradually settle down. I recall that I was using Deep Heat cream but that there was no lasting relief from the back pain. I continued to perform my normal duties and had a further period off work when I rested in about February, 2008. Thereafter when I returned to work I continued to have ongoing problems with my lower back. I believe that I received massage treatment over a period of some months before I sought medical treatment.
8. On 6 August, 2008 I was lifting firewood logs at work and when climbing into the bobcat late that afternoon felt pain in my left buttock and leg. Over the following days the pain increased and I had reasonably severe lower back pain. I sought further treatment from a masseur at Bendigo Therapies without benefit. On 11 August, 2008 I informed my employer… and he sent me to another masseur again with no improvement in my level of symptoms. By 13 August, 2008 I was forced to stop work by reason of the back pain which I was suffering (the work-related injury).”
[1] Exhibit P1, Plaintiff's Court Book (PCB) 3
5 The plaintiff attended his general practitioner, Dr Teasdale at the Bendigo Clinic on 18 August 2008. His clinical notes indicated, among other things, complaint of left leg soreness over a three month period which had flared up over the previous week. Clinical examination apparently revealed reduced straight leg raising on the left side, diminution of the left ankle reflex and reduced flexion in the lumbar spine.[2] Prednisolone was prescribed and CT scan arranged.
[2] Exhibit D2
6 The scan revealed significant degenerative change and a partly calcified left postero-lateral disc prolapse at the L5/S1 level.[3] OxyContin was prescribed. The plaintiff was put off work and he was referred to neurosurgeon, Mr Malham.
[3] PCB 18
7 Mr Malham examined the plaintiff once on 8 October 2008. His detailed report to the plaintiff’s solicitors is dated 28 January 2011.[4]
[4] PCB 26-37
8 Less than two months after the flare-up in lower back symptoms, the plaintiff apparently reported predominantly sciatic pain. He said that in the two weeks prior to the medical examination, pain had markedly improved on OxyContin, such that his pain levels had reduced from a previous VAS pain score of 8/10 to a score of 1/10.
9 On examination Mr Malham, nonetheless, found restricted straight leg raising on the left side secondary to nerve root tension signs, some altered sensation on the left dorsum of the foot and depressed left ankle jerks. Mr Malham ordered MRI investigation. The result of this scan on 4 November 2008[5], apparently confirmed the presence of a large posterior and left parasagittal disc prolapse compressing the left S1 nerve root, which in Mr Malham’s opinion, accounted for the plaintiff’s left S1 radicular pain.
[5] PCB 19
10 Given the plaintiff’s reported symptomatic improvement, Mr Malham recommended ongoing conservative treatment, walking exercises and avoidance of activities involving bending and twisting or lifting more than five kilograms. No arrangement was made to review the plaintiff’s condition. Evidently they also discussed a left S1 nerve root injection should the plaintiff’s pain recur and, as Mr Malham also noted, surgical intervention with left L5/S1 microdiscectomy would only be contemplated where the plaintiff presented with severe persistent sciatica or progressive motor weakness and neurological deficit.
The application
11 The plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for injury to his lumbar spine arising out of or in the course of his employment with the defendant and in particular on 6 August 2008.
12 It was common ground that the work-related injury had involved disc prolapse at the L5/S1 level with compression of the left S1 nerve root. The defendant conceded compensable injury. Leave was sought under paragraph (a) of the definition of 'serious injury' to recover damages for pain and suffering only in relation to permanent serious impairment of the plaintiff's lumbar spine.
13 'Permanent' refers to impairment of the lumbar spine that is: "likely to last for the foreseeable future".[6]
[6]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
14 The determination of whether this injury is 'serious' is assessed by reference to the consequences to the plaintiff of impairment of the lumbar spine, which would not meet the test unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, 'fairly described as being more than significant or marked and as being at least very considerable'.[7]
[7] Section 134AB(38)(c)
15 The issue to be determined in this application was whether on all of the evidence the pain and suffering consequence met the test so described.
16 There was no serious challenge to the plaintiff’s credit. He presented as a straightforward witness. However, in some matters I found the evidence contained in documentary records or in doctors’ reports more reliable than the plaintiff’s recollection or subjective assessment of his circumstances.
17 The documents tendered at hearing included three affidavits sworn by the plaintiff on 6 March 2012, 21 February 2013 and 11 April 2014, two affidavits sworn by his wife, Kaye Plowright on 21 February 2012 and 11 April 2014, medical reports from treating and medico-legal doctors and extracts from the Bendigo Clinic’s records.[8]
[8] Exhibit P1 and Exhibits D1, D2 and D3
18 Mrs Plowright was not required for cross-examination.
19 In so far as the defendant has admitted obtaining surveillance material over which privilege was not waived, I infer that any surveillance undertaken other than a 15 to 20 minute episode of gardening, about which the plaintiff was cross-examined, if shown would not have advanced the defendant’s case.
Treatment and medication
20 According to the clinical notes, prescription of OxyContin ceased from 11 December 2008 and in January 2009 the plaintiff was referred for physiotherapy treatment.
21 The plaintiff underwent 18 sessions of physiotherapy treatment between 8 January 2009 and April 2009. It appears that the plaintiff was dissatisfied with the service received because what had commenced as hourly sessions had, he said, reduced to a 3 minute session.[9] In any event, the defendant relied on Mr Bray’s report dated 8 September 2010.[10] In this report, among other things, the physiotherapist advised that at the conclusion of his treatment:
· the plaintiff’s condition had stabilised and, whilst he was still suffering some leg/calf pain, this was not to the same level as before; and
· there was little impact on the plaintiff’s ability to perform activities of daily living such as dressing, self-care and home care.
[9] Transcript (TN) 20
[10] PCB 38-39
22 The plaintiff has not undergone any further investigations, physiotherapy treatment or been referred to other specialists for treatment, although he said he continued to attend his treating general practitioner, Dr Teasdale on an intermittent basis. The clinical notes tendered record attendances at the clinic between 5 March 2007 and 4 June 2010 and again between 30 January 2013 and 31 March 2014. If the plaintiff attended the clinic for treatment of his back condition between 5 June 2010 and 29 January 2013 there was no evidence before the Court that explained the absence of any clinical record for this period.
23 The plaintiff’s evidence was to the effect that he managed his condition and pain levels by avoiding activities he believed were likely to increase back or leg pain and by using the over-the-counter medication, Panadol.
24 Both the plaintiff and his wife indicated that, having previously suffered an adverse reaction to prescribed medication, the plaintiff restricted his use of medication. The clinical notes do record some adverse reaction to OxyContin during the period this was prescribed in 2008.
25 In his second affidavit, sworn on 21 March 2013, the plaintiff said he took Panadol as required,[11] whereas in his final affidavit the plaintiff deposed that he took up to 4 Panadol tablets daily depending on the severity of his pain and also took the anti-inflammatory medication, Mobic when required.
[11] PCB 14
26 Under cross-examination, the plaintiff agreed that on some days he might take up to 6 Panadol and on others he took no medication.[12]
[12] TN 14
27 Based on the record, prescription of the strong painkilling medication, Oxycontin ceased in December 2008 and no further pain killing or anti-inflammatory medication was prescribed in the treatment of any condition until 28 May 2009.[13] On this occasion, the plaintiff reported a flare-up in back pain caused by a long driving holiday to Bright (“now settled”[14]) and, having commenced gym work with the physiotherapist, he presented for treatment of an injured right shoulder. Later imaging suggests that the right shoulder injury probably involved bursitis and a minimal supraspinatus tear. In any event, the notes show that the plaintiff attended for treatment of the shoulder injury between 28 May 2009 and 17 September 2009, during which period the anti-inflammatory, Feldene was prescribed on 28 May 2009 and 25 June 2009. Another anti-inflammatory medication, Mobic, was prescribed on 17 September 2009.
[13] Exhibit D2
[14] Exhibit D2
28 On balance, I was not satisfied that the anti-inflammatory medication prescribed on each of the occasions recorded was prescribed in the treatment of the lower back condition. This is not to deny that during this period the clinical notes also contained references to the plaintiff’s lower back condition.
29 The plaintiff deposed that, over an eight month period he worked some 18 to 20 hours per week as a barman in a sports club, but gave up this job because it was too physically demanding. The clinical notes suggest that this return to alternative employment lasted throughout the latter part of 2009 until June 2010.
30 For the period up to and including 4 June 2010, the records show attendances for treatment of an occasional flare-up of back and/or leg pain associated with work activities. These attendances did not, however, also involve prescription of painkilling or anti-inflammatory medication.
31 In a report dated 26 June 2010, Dr Teasdale indicated that the plaintiff’s condition had by then stabilised and, whilst the plaintiff suffered “some chronic pain in his back” and could suffer “some leg pain after certain activities”, the performance of basic activities of daily living were causing him less discomfort.[15]
[15] PCB 20-21
32 The next and only additional presentation recorded for review of the plaintiff’s back condition was on 30 January 2013 (“ongoing left calf soreness. worse when standing for prolonged period. settles with resting/walking. back soreness often but mild. back pain worse with prolonged sitting. no numbness. avoiding heavy physical work as this worsens back. taking panadol intermittently. coping ok with security work but occasional discomfort with prolonged standing etc.”[16]). Notably, in his final report dated 12 April 2013, Dr Teasdale advised, among other things that the plaintiff was not undergoing treatment: “as his condition has stabilised and is unlikely to respond to any specific therapy”.[17]
[16] Exhibit D3
[17] PCB 22
33 The only further attendance at the clinic prior to 31 March 2014 was preparatory to travelling to Canada for two months. On 22 April 2013, Dr Teasdale administered a flu vaccination and provided a single prescription for Mobic medication to be taken: “if back flares”.[18]
[18] Exhibit D3
34 On the evidence summarised above, the plaintiff had not received prescriptions for medication in the treatment of his back condition in the 12 months before the hearing and this had probably been the case over some years. My conclusion in this regard also allowed for the medico-legal evidence, namely:
· the report of occupational physician, Dr Davidson in October 2010 in which he noted that the plaintiff was not taking any medication but was exercising and occasionally using hot packs;[19]
[19] Exhibit D1, PCB 63
· the report of general surgeon, Associate Professor Buzzard in June 2011 in which he noted that the plaintiff was not on medication or any other treatment;[20]
[20] PCB 70
· the first report of orthopaedic surgeon, Mr Kossmann in November 2012 in which he noted that the plaintiff was not taking any medication or undergoing any specific treatment;[21]
· the report of neurosurgeon, Mr Brownbill in March 2013 in which he noted that the plaintiff was not receiving any physical treatment, he walked five kilometres a day and took two tablets of Panadol daily “but no other medication”;[22] and
· the report of orthopaedic surgeon, Mr Michael Dooley in April 2013 in which he noted that the plaintiff used analgesics for around four months but began to suffer side-effects and then took Panadol at night to assist sleep.[23]
[21] PCB 108
[22] PCB 21
[23] PCB 79
35 Accordingly, whilst I accept that the plaintiff may have used or still be using the Mobic medication prescribed on the one occasion in April 2013, there is no indication in the medical evidence that this is a long-standing or an ongoing circumstance or that the plaintiff’s condition has deteriorated such that the prescription of anti-inflammatory medication was warranted. There was certainly no documentary evidence to support the plaintiff’s assertion during re-examination that he occasionally attended the doctor to obtain another script.[24] Rather, the evidence all pointed to infrequent attendances on the general practitioner and intermittent and sparing use of the over-the-counter painkilling medication, Panadol.
[24] TN 19-20
Ongoing employment
36 As to ongoing employment, having completed certificates in security, the plaintiff has worked in the security industry since April 2011. He is still employed by North State Security as a casual security guard. The hours worked have varied between 20 and 70 hours per week, although when he swore his final affidavit in April 2014, the plaintiff deposed to working 35 hours per week on average.[25] As his affidavit evidence demonstrated, depending on the hours worked, work-related activities can aggravate back and leg pain:[26]
[25] PCB 95
[26] PCB 10 and 95
In March 2012 –
“16.… I find 3 hour shifts manageable but shifts of 5 hours or more cause me significant discomfort, particularly when they involve prolonged sitting or standing. In particular the pain in my left calf becomes significantly worse after a long shift and this usually precedes an increase in back pain. I take Panadol before the start of the shift as a preventative measure.
17. I am managing to maintain my employment and am very keen to continue to work in this role as I fear that I would have great difficulty finding another job given my restrictions, age, skills and experience. However the work does cause me significant discomfort and I am very concerned that there will come point in the future when I can no longer manage it. For instance, if I was required to restrain a drunken patron at the pokies venue, there is a strong likelihood that my back would be aggravated, perhaps permanently. This risk is a constant source of anxiety for me.”
and in April 2013 –
“2.…. I do find that my back pain is aggravated in that work, for example if I am standing for lengthy periods of time I suffer increased spinal pain and left leg symptoms particularly tightening of symptoms in the calf….”
and in April 2014 –
“4.…. If I am able to sit or stand as required then I find it’s more easy for me to cope with this work. If I have to sit or stand for extended periods then that leads to increased symptoms in my spine. I would not have the capacity to engage in physical encounters in the sort of work that I perform. I usually undertake supermarket work or overnight security work. I have worked in some pokies venues but the difficulties associated with such environments are much greater for me.”
37 At hearing, the plaintiff told the Court that taking Panadol prior to commencing his work shift helped “a little bit, but not much” and “seems” to take care of pain over the first half of the shift before pain started to return.[27]
[27] TN 13 and 19
The medico-legal evidence
38 I have mentioned some of the medico-legal evidence in passing. The consensus was that low back pain and leg pain were caused by work-related injury to the L5/S1 disc. There was some argument during final submissions about whether there was evidence of ongoing compression. On balance, I was satisfied there was. Notwithstanding the absence of any up-to-date radiological investigations, in addition to the plaintiff’s complaint of left calf pain, particularly after prolonged standing or sitting, recent specialist examinations have continued to report clinical findings suggestive of ongoing radiculopathy, such as depressed left ankle reflexes.[28]
[28] See the reports of Mr Brownbill, PCB 43, Mr Dooley, PCB 80 and Mr Kossmann, PCB 101-102
39 Whilst the plaintiff’s condition has stabilised, expert opinion confirms that he is permanently incapacitated for his pre-injury employment or for any other type of manual employment and must now avoid activities involving heavy lifting, forced spinal movement repeated bending or prolonged standing or sitting. These restrictions necessarily impact on the plaintiff’s activities of daily living and on his domestic, social and recreational activities.
The pain and suffering consequence
40 Evaluation of the pain and suffering consequence required consideration of the plaintiff’s experience of pain and the disabling effect of pain on his physical capabilities (including his capacity for work) and enjoyment of life.[29]
[29] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[17], applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
41 Evidence of the intensity and frequency of pain (in this case given by the plaintiff and his wife and recorded by the doctors), the treatment received or recommended and any objective evidence as to the disabling effect of pain, was important to any proper evaluation of the plaintiff’s experience of pain. The evaluation of the disabling effect of pain called for consideration of the extent to which pain continued to limit this plaintiff’s activities and interfere with his enjoyment of life.
42 The plaintiff was a fit and active man in his early 50s when he suffered work-related injury to his lumbar spine. Whilst the plaintiff has retained the capacity to undertake suitable employment, based on his evidence, pre-injury the plaintiff had enjoyed recreational and domestic activities such as rock ‘n’ roll dancing, lawn bowls and gardening.
43 None of the doctors have questioned the genuineness of the symptoms and limitations reported to them by the plaintiff and they have not ruled out the possibility of surgery should the plaintiff’s condition deteriorate in the future. I note, however, that as recently as April 2014, Mr Kossmann considered the risk of the plaintiff having to undergo surgery as “slim”.[30]
The experience of pain
[30] PCB 104
44 As to the plaintiff’s evidence of his experience of pain, I have already extracted those parts of the affidavit evidence relating to the plaintiff’s experience of pain and the impact of his condition in his workplace. In his affidavits sworn in 2013 and in 2014, this was further explained in relation to the impact of pain and disability on the plaintiff’s activities of daily living and on his domestic and recreational pursuits in the following terms:[31]
[31] PCB 13-14 and 95-96
In March 2012 –
“3. My back pain has continued to cause me ongoing problems. The back pain is reasonably constant and variable in its severity. I find that the greater the level of physical activities in which I engage the greater the level of pain that I suffer. I suffer referred pain into my left leg on a daily basis and I particularly notice this in terms of tightening of my calf. My symptoms of pain are aggravated by sitting for extended periods of standing.
4. I continue to be restricted in recreational activities which I used to enjoy. I no longer go rock and roll dancing. I have been unable to resume my involvement in lawn bowls. I find it difficult to bend to tie shoe laces. Activities generally requiring bending, lifting, stooping or twisting cause me to suffer increased symptoms. I find that driving the car causes me to suffer increased symptoms and that I have to take breaks from time to time to try and relieve the pain.
5. My sleep has been affected and I find it difficult to get to sleep and frequently wake in pain during the night. We bought a new bed, mattress and pillows to try and assist with these problems but that has not been achieved with the results we hoped for. My personal relations with my wife has been affected and our sexual relationship restricted by back spasm and leg cramps both of which significantly impede my libido.
6. I used to enjoy gardening but find that I am greatly restricted in that activity. Activities such as kneeling down and weeding cause increased levels of symptoms if attempted. I have two very young grandchildren but am finding it increasingly difficult to handle them physically because of the increased back pain even though they are only presently three and two years of age respectively.”
and in April 2014 –
“5. I continue to be restricted in a very wide range of activities as referred to in my earlier affidavits. My capacity to enjoy my grandchildren remains restricted and they are presently approximately 5 and 4 years of age. My ability to go rock ‘n roll dancing has been severely precluded to the point that I no longer attend that activity. I have been unable to resume my involvement in lawn bowls which I used to enjoy. I find it difficult to bend in order to tie up my shoelaces. I find that any activity of bending, lifting, stooping or twisting continues to cause me increased spinal symptoms. So too does driving for long distances in the car at which times I find that I need to stop the car and take breaks on regular occasions. My sleep remains affected and I wake nightly and find it difficult to sleep. My chronic impaired sleep patterns leave me feeling tired and lethargic. My intimate relations with my wife have been adversely affected and my libido has also been adversely affected. My activities in the garden remain considerably restricted. If I try to kneel down and weed then I suffer increased pain. If I try to dig with a shovel then I place undue strain upon my back. Around the house I am heavily reliant upon my wife to undertake many of the domestic cleaning and related chores.”
45 Through her affidavit evidence the plaintiff’s wife largely confirmed that:[32]
[32] PCB 15-16 and 97-98
· the plaintiff has restricted his lifestyle and activities such as playing with their grandchildren and gardening to help control his levels of pain;
· the plaintiff regularly complained of pain affecting his spine and left leg;
· the plaintiff’s sleep was disturbed by pain and left him tired and lethargic;
· the pain suffered by the plaintiff had affected their sexual relations;
· the plaintiff appeared tired and in pain on his return from work.
46 The broad thrust of the plaintiff’s evidence was that he suffers pain into his left leg on a daily basis and suffers intermittent lower back pain of varying severity according to the activities undertaken. However, whilst I accept that the plaintiff is a person who prefers to use painkilling medication sparingly, I was not satisfied from all of the evidence before me that the intensity of his pain experience was such that he required medication other than over-the-counter medication on an intermittent basis.
The disabling effect of pain
47 It is convenient to discuss the disabling effect of pain and the extent to which it interferes with the plaintiff’s ordinary activities and enjoyment of life together. I have already summarised the affidavit evidence of the plaintiff and his wife concerning specific activities impacted by pain and disability. As previously mentioned, permanent impairment-related constraints on bending, lifting, stooping or twisting and activities such as sitting and standing will likely bear upon the plaintiff’s activities of daily living, his domestic and recreational pursuits and on his enjoyment of life.
48 In addition to cautioning against any return to manual/physical occupations, where they have been asked to address this issue, at different times all of the doctors have commented, albeit in a limited fashion, on the impact of the plaintiff’s condition on his non-employment activities in the following terms:
· treating general practitioner, Dr Teasdale on 26 June 2010 – “Ian’s recreational activities and household duties have been affected by his back injury. He is unable to perform heavy work around the home”;[33]
· Associate Professor Buzzard on 23 June 2011 – “He has not played active sport over the last six or seven years aside from lawn bowls which he has not done since he has been working as a security guard because ‘I work through the night’. Prior to that he was playing lawn bowls once every week or two. (I) specifically asked him about his activities of daily living, namely dressing, washing, feeding and toileting himself. He is able to do all of these things”;[34]
· Mr Kossmann on 28 November 2012 – “Mr Plowright told me that his lumbar spine condition had an impact on his social, domestic and recreational activities. His wife runs the household. He does not undertake any gardening, recreational or sporting activities” and “Mr Plowright did not mention to me any secondary injury as a result of his workplace injuries such as anxiety and depression, sexual problems or digestive problems” and “Mr Plowright’s lumbar spine condition had an impact on his social, domestic, recreational and sporting activities. In my opinion his condition has improved throughout the months and years after his initial injury and I believe that his recreational and social activities are only affected to a minor effect.”[35] On 23 April 2014, Mr Kossmann repeated his earlier advice to the effect that the plaintiff’s lumbar spine condition had impacted on the plaintiff’s social, domestic, recreational and sporting activities. However, improvement in the plaintiff condition in previous years had been such that, Mr Kossmann now considered its impact on plaintiff’s recreational and social activities was only “to a certain degree” and no longer caused difficulties with the plaintiff’s activities of daily living.[36]
[33] PCB 22
[34] PCB 71
[35] PCB 107, 110 and 111
[36] PCB 104
49 The question to which Mr Kossmann responded in his final report was: “To what extent, if any, has our client’s capability to complete or take part in his activities or daily living (egg household chores and selfcare) and enjoy recreational/social activities been affected by the injuries (sic)”.
50 I note that in his affidavit sworn in February 2013, the plaintiff reiterated that his capacity to bend to tie shoelaces and to kneel and weed in his garden had been affected by the injury. Apart from recreational activities, sleep disturbance and difficulties handling his young grandchildren, these were the only activities of daily living, namely household chores and activities relating to self-care mentioned by the plaintiff in this affidavit.
51 Having read Mr Kossmann’s reports and the affidavit evidence, I was satisfied that the opinions expressed by him in the April 2014 report were probably based on his understanding of the plaintiff’s circumstances.
52 Dealing with each area of activity impacted by pain and disability, I note as follows:
· Employment. On the assumption that the plaintiff had intended to work to the age of retirement, the likely endurance of work-related lower back and leg pain either intermittently or daily at any level is a relevant factor in the assessment of the pain and suffering and loss of enjoyment of life consequence;
· Sleep. The evidence pertaining to sleep disturbance was not challenged. Nevertheless, if, as claimed by the plaintiff at hearing this problem was mentioned to Dr Teasdale, this consequence was not such as to require medication or to prevent the plaintiff’s regular attendance at work;
· Domestic activities. As I understood the plaintiff’s case, his wife was primarily responsible for household tasks before and since the work-related injury. Nevertheless, in assessing the consequences of ongoing impairment of the plaintiff’s lumbar spine, I have allowed for the plaintiff’s inability to assist his wife with heavy tasks around the home including the task of putting out the rubbish bins;
· Gardening. I have also allowed for the unchallenged evidence that impairment of the plaintiff’s lumbar spine and pain had impacted on his ability to garden, an activity previously undertaken by the plaintiff. Having read the affidavit evidence of both the plaintiff and his wife, I was left with the impression that this activity had been restricted, rather than precluded by his condition (“I am greatly restricted in that activity” and “(m)y activities in the garden remain considerably restricted”.[37] Under cross-examination the plaintiff told the Court that, having tried to garden, he had since left this activity to his wife. He thought he had attempted gardening for up to one year. However, in response to the suggestion that he had gardened right up to 2011 when he had been observed over a 15 to 20 minute period kneeling and weeding in his garden, the plaintiff recalled he was weeding on his knees because it was “too hard to bend” but then sought to distinguish this activity from gardening (“And it wasn’t actually gardening, as I say it was trying to help out (sic)”).[38] In re-examination the plaintiff explained that, he no longer weeded the garden and, when observed working in the garden in 2011, he had been weeding a small patch of weeds but had taken eight hours to do the whole yard (“so it got too much”).[39] On balance, I was not satisfied that the plaintiff no longer gardened, although I accept that his condition probably restricts this activity and precludes particularly any heavy physical work, such as digging with a shovel;
[37] PCB 13 and 96 and 16 and 98
[38] TN 17-18
[39] TN 19
· Social activities. I have no doubt that the plaintiff’s inability to lift or play with active young grandchildren is a source of considerable frustration and is relevant to my assessment of his loss of enjoyment of life;
· Recreational activities. The plaintiff has given up rock ‘n’ roll due to his condition. He has also ceased playing lawn bowls, due to increased levels of pain after working during the day. This was a game the plaintiff said, he played until he commenced working in security.[40] Under cross-examination, the plaintiff said that he had persisted with lawn bowls, albeit unsuccessfully, because his doctor had encouraged him to pursue exercise. There was some suggestion in Associate Professor Buzzard’s report that the plaintiff had ceased playing bowls once every week or two because he worked through the night as a security guard.[41] The plaintiff was, however, adamant that he stopped because playing bowls hurt his back, not because his work precluded this activity. The plaintiff’s wife did not mention this activity in her affidavits. On balance, it is likely that both his work commitment and pain were factors in the decision to finally give up this sport;
[40] PCB 11
[41] PCB 71
· Driving. The plaintiff has retained the ability to drive, although he requires regular breaks when driving long distances;
· Self-care. All of the recent evidence suggests that, other than difficulty in bending to tie shoe laces, the impact on self-care issues is probably negligible; and
· Impact on intimacy with wife. Both the plaintiff and his wife attested that pain had adversely affected their sexual relationship. This is also a factor in assessing the loss of enjoyment of life.
Conclusions
53 To summarise, I was satisfied that:
· the plaintiff suffered compensable injury to the L5/S1 disc with evidence of ongoing back and left leg pain; and
· the impairment consequences of the injury were as described above.
54 In assessing whether the pain and suffering consequence of the compensable right knee injury met the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which this injury materially contributed.[42]
[42]Sutton op. cit. at [114]
55 The evidence relating to the impact of impairment of the plaintiff’s lumbar spine on his day-to-day activities and enjoyment of life has been summarised. I have also summarised the evidence which suggests that the plaintiff limits his activities to forestall pain and he tolerates a level of pain/discomfort rather than seek prescription medication. Allowing for the medical evidence, I did not, however, form the view that the plaintiff’s level of activity in his work was somehow greater than might have been expected given the assessment of the level of his pain and disability or, the fact that he had returned to employment was evidence of a willingness to endure a high degree of pain in order to keep working.
56 The test is whether the plaintiff has established that the pain and suffering consequence of the injury to his lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained in the past, applying this test involves a value judgment in which matters of fact and degree and of impression all play a role.[43]
[43]Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41]
57 Section 134AB(38)(c) requires the Court to consider where, on its facts, the present case sits when compared with other cases in the range of possible impairments or losses of body function.
58 My summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff has lost was informed to some extent by what he had retained) was in my view consistent with a finding that the consequence in respect to the injury was aptly characterised as significant or marked. I was not, however, persuaded that by comparison with other cases in the range of possible impairments, the consequence so described could be fairly characterised as ‘at least very considerable’. In these circumstances, the plaintiff has not met the requirements of the narrative test.
59 I propose to make an order dismissing this application.
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