Rice v Woodrowe Tree Technicians Pty Ltd
[2017] VCC 1863
•4 December 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01117
| COLIN ROBERT RICE | Plaintiff |
| v | |
| WOODROWE TREE TECHNICIANS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 27 November 2017 | |
DATE OF JUDGMENT: | 4 December 2017 | |
CASE MAY BE CITED AS: | Rice v Woodrowe Tree Technicians Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1863 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HER 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 injury suffered by the plaintiff during the course of his employment with the defendant on 19 September 2012 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff 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) serious long-term impairment or loss of a body function.”
4 The relevant body function in this application is the spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to 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 the hearing, as being “at least very considerable” and “more than significant or marked”.
9 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, mental or behavioural disturbances or disorders.
10 Section 38(h) provides the psychological/psychiatric consequences of a physical injury are only to be taken into account for the purposes of an application pursuant to clause (c).
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. He also relied on affidavits sworn by his partner, Cleoniki Leontiades, and his father, Robert Rice, on 8 November 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged thirty-eight, having been born in November 1979. He did not complete Year 10, and after leaving school, worked in a variety of roles until starting work with the defendant in 2010. Prior thereto, he had completed a three-year apprenticeship as an arborist.
14 The plaintiff’s job involved felling trees, working out of cherry-pickers at heights, and also some spotting work.[3]
[3]Transcript (“T”) 5
15 On the said date, whilst working in a cherry-picker, the arm thereof collapsed when the bolts holding it to the tray of the truck sheared off and the plaintiff fell in the bucket about five metres, landing on his feet therein, suffering injuries to his right leg and back (“the incident”).
16 The plaintiff was taken to Hamilton Base Hospital, where investigations were undertaken. He then saw his general practitioner, Dr McAllan, at Hamilton Medical Group. He also had physiotherapy for his injuries.
17 In cross-examination, the plaintiff agreed with Dr McAllan’s comments in his first report that over the next few months after the incident, the plaintiff’s back pain slowly improved as the fracture healed, and the right leg tingling slowly improved as well. Within six months, the plaintiff’s pain had improved to a level at which he could start returning to work, and he did so in February 2013 on restricted duties.
18 The plaintiff’s workplace was very cooperative, introducing him to work in a slow fashion, and his confidence level increased. By 19 August 2013, he had resumed full-time duties.[4]
[4]T4
19 On his return to full-time duties, the plaintiff continued to have difficulties in his job. Essentially, after the incident, he worked as a spotter on the ground, as he was fearful working in the cherry-picker and working near chainsaws. He struggled psychologically to return to work in the bucket of the cherry-picker, he never felt confident, and had to cling onto the side of it, which affected his ability to do his work. When he tried working in the cherry-picker, he got very very nervous, and he had to be brought down and taken away from work near large chainsaws.[5]
[5]T5
20 The plaintiff could now not say “yes” or “no” as to whether, if it was not for his fear of working in a cherry-picker, he would now be able to physically do his old job.[6]
[6]T22
21 Whilst working for the defendant in the financial year 2011-2012, the plaintiff grossed $47,830.
22 In December 2013, the plaintiff got a job with Southern Blue Forest Company, where he worked until March 2014, operating a Tigercat, which is basically a front-end loader, on an industrial scheme.[7] He moved that machine along at a very very slow speed to take care of the mulch from the pines after they had been harvested.[8]
[7]T5
[8]T6
23 The plaintiff then had a break from work until he commenced with his current employer, CW Pastoral Co, as a farm manager, in June 2014. Since then, his gross earnings have been approximately $43,000 per annum.
24 As of late 2015, at work, the plaintiff had to be careful lifting, and certainly could not do any prolonged heavy lifting without getting increased back pain. He could drive for probably an hour or so, but then had to get out and stretch, otherwise his back would play up. If he had to go over rough terrain, then his back became quite painful.
25 The plaintiff was able to cope with his employment as a farm manager, but he had to manage it very carefully and space out tasks so he did not have to do the heavier aspects of his job for prolonged periods.
26 The plaintiff continues to work as a farm manager on the large beef and sheep property at Coleraine of some 7,500 acres. There are about 800 breeding cows and 5,000 sheep on the property. It is fairly busy and heavy work.
27 In addition to the Coleraine property, there is a block at Heywood, about an hour’s drive away, where the plaintiff goes every second week to check the fences.
28 The plaintiff has to use tractors and carry out the usual farming activities on a large cattle and sheep property. He does not do feeding, as that is mechanised, but he certainly has to assist with shearing or crutching sheep and generally moving around the property looking after stock.
29 The plaintiff gets around the farm in a buggy or a quad bike. The buggy has an enclosed cage in which he is seated.[9]
[9]T8
30 The plaintiff finds if he drives up to an hour or more, particularly a tractor or across rough ground, his back pain will play up. If he has to keep going it will get worse, and eventually he will stop. He loves his job, and he just keeps going because he is not going to give it up.
31 The hay season, which is in November-December, involves quite a lot of tractor work and is extremely busy. There are periods when they are not flat out, and the plaintiff takes it easy whenever he can. When hay baling, he is in the tractor for about three or four hours to rake the hay. Contractors then do the baling, and “the boss” does the cutting.[10]
[10]T8
32 The plaintiff has continuous back pain, and over the course of a working day, he will regularly have to stop and lie down for half an hour, even an hour at times, because the back pain is too much.
33 The plaintiff often does not finish work when he should because he still has things to do, and keeps going until 7.00 or 8.00pm, because otherwise he just would not get the day’s work done.
34 The plaintiff agreed he could work up to twelve hours a day in high season. Some of the work is physical, bending over and picking up things constantly.[11] Physical work also includes driving around and opening gates.[12]
[11]T14
[12]T15
35 The plaintiff agreed he is like the owner’s representative on the farm. He does not do as much hands-on work as a normal farmhand would do. Contractors come in and do a lot of the heavy work, so there is no erecting of fences or similar tasks. The plaintiff does more of the logistics/paperwork side of the property.
36 The plaintiff is out of bed every morning at 5.30am regardless:
“I get up, I have my breakfast, work out the plan for the day which – most of it entails stock, so checking on all stock. So you just drive from paddock to paddock. You might be in one paddock for 10 minutes, in and out opening gates. Just basically stock maintenance and welfare. At the same time, you’re also looking at water, electric fences. If they are shorted out, we go along – we have kangaroo problems that short a fence out on a daily basis. It could be – we might go three or four days and there could be a short, so – feeding and rotation, so just managing the stock on what they’re eating, how much pasture you’ve got left, dry feed matter, yeah. And then we’ve just come out of our shearing – crutching and shearing which went over eight weeks this year. In that, there was – I was basically like a shed hand, just moving stock in and away from the shed, once they’re shorn, taking them away back to a paddock, making sure the shearers aren’t being too rough with our sheep. Yeah, basically more just an overseer’s role in a shearing shed. We’ve just done our hay, which is sort of – what did I do? Drop some hay with the tractor, in and out. It took four hours to do one paddock of hay. ... Now, we’ve come into our basically quiet time but it’s not so much quiet, it’s just not as full-on. All the sheep are shorn so now it’s just managing flystrike before we go into our cattle side of preg testing and weaning ... Mostly my role is stock movements, management of movements … .”[13]
[13]T6-7
37 The plaintiff was knocked over by a sheep in January 2016 and injured his right knee. He did not require surgery, and had a month off work thereafter.[14]
[14]T9
38 The plaintiff has a lot of numbness in his right foot. It comes on every day and can affect his walking and using equipment. On some days when his foot is bad he cannot even walk at all, because he gets no feeling in the lower part of his leg. On those occasions, he just has to lie down and rest until he gets some feeling back in the leg and can use it again. This does not happen every day but it does so very regularly. When it happens, he has to have a break. He thinks the numbness in his foot is getting worse, and it does happen more often than in the past.
39 By the end of the day, getting to sleep is difficult, although the plaintiff is tired because of the back pain. He still wakes a lot during the night because he cannot get comfortable, and then the pain just sets in. He uses a special pillow to try to support his back and give him more comfort at night. It helps a little bit, but it does not solve the problem.
Treatment
40 As of the end of 2015, the plaintiff’s back was constantly painful. The more he did, the more the pain increased. He got a cold feeling and numbness in his right foot that could last from 10 to 30 minutes nearly every day. He experienced numbness down the outside of his right thigh regularly, which became more frequent if he walked or stood for prolonged periods.
41 The plaintiff was then having physiotherapy from Mr Webb when required, and he saw Dr McAllan when he needed medication. He was then taking Nurofen Plus daily, Panadeine Forte twice a week, and Tramadol if he had a particularly bad day, which was probably every fortnight.
42 The plaintiff had two back braces which he wore daily, which helped him get through the working day and supported his back.
43 In the warmer months, the plaintiff found swimming helped to strengthen his back. He did exercises which he had been shown by his physiotherapist, three times a day for about ten minutes, to keep his back flexible and in reasonable condition.[15]
[15]T12
44 The plaintiff continues to do these exercises. He last had physiotherapy about four months ago from Ms Sebastian at Physio Freedom. Physiotherapy helps him carry out his employment, which is heavy work.
45 The plaintiff has submitted physiotherapy accounts to WorkCover, but has not been reimbursed. Ms Sebastian told him to pay for the treatment but he cannot afford paying $68 per week for a consultation, so he finds alternative ways and means to get around his pain.[16]
[16]T12
46 The plaintiff denied that, save for that visit four months ago, he had virtually had no treatment since the middle of 2013. He has maybe gone twenty times since then to either Physio Freedom or to Ray Potter, who gives him a massage.[17] To get around the pain, in addition to the exercises to try to strengthen his core muscles, the plaintiff swims in the pool. He wears a back brace but does not wear it every day. It just depends on the job he is doing.[18]
[17]T13
[18]T14
47 The plaintiff agreed when he last saw Dr McAllan in August 2013, specifically for his back, things were going well. Since then, he has not seen a doctor, and tries to avoid going to doctors, because they have told him there is nothing they can do, and he just has to manage his ongoing pain and restrictions. He has not been referred to a spinal specialist in relation to his back problem.[19]
[19]T10
48 The plaintiff takes two of either Panadol, Nurofen or Advil on a daily basis in the morning, and then it depends on how the day goes as to what he takes after that. Very rarely is there a day he does not take any medication. He is in constant pain. “They say” he is over the intense pain.[20]
[20]T15
49 The plaintiff agreed he had not sought any further investigations or specialist referral. His lawyers might have told him that such investigations and referrals could be made through WorkCover, but he “may not have actually registered it in [his] head that what was actually being said”.[21]
[21]T15
50 The plaintiff did raise with a doctor where he should go next and what he should be looking at:
“A lot of people were whispering in my ears about fusing my spine and it will take it away ..., the pain that is actually there.”[22]
[22]T16
51 The plaintiff was “not 100 per cent confident with doctors with screws” around his spine.[23]
[23]T16
52 Prior to the incident, the plaintiff played competition football in the local league, and was playing up until the week before the incident. As of late 2015, he would still be playing if he had not had his back problem and had to stop. He then did not even go to games, because it was frustrating not being able to participate as he would like.
53 The plaintiff has been a physically active person all his life, and enjoyed playing football. He would definitely still be playing now except for his back injury. Earlier this year, he was approached by the local coach to go back to playing, but told he him it is just impossible because of his back problems. He did not want to go through the pain of having another injury in his back.[24]
[24]T19
54 The plaintiff agreed he had not tried playing football. He did not think he had spoken to any doctors about resuming playing. He agreed he had not sought a specialist opinion about whether he was physically able to play football without compromising his back.[25]
[25]T18
55 The plaintiff misses the football and the friends he had around the Club. It is a personal matter for him. If he goes to the football, they try and talk him into something that he is not capable of.[26]
[26]T19
56 The plaintiff disagreed that at the age of thirty-two in 2012, he was getting towards the twilight period of his football career. He was playing regularly, though not eighteen games every year for work reasons and the odd injury.[27]
[27]T17
57 The plaintiff agreed, as the records indicated, that in 2009 and 2010, he played fourteen matches for Dartmoor. He played ten matches in 2011.
58 In 2009 and 2010, the plaintiff played in both the seniors and seconds. In 2011, his ten matches were all in the seconds. In 2012, he played nine matches: six in the seniors, and three in the seconds. Football was a very big part of his life. He did not get back to playing because he was scared of re‑injury. His back condition was different to his knee injuries in the past, after which he had continued playing.[28]
[28]T17
59 Before the incident, the plaintiff was a captain in the CFA, which was an activity he enjoyed and had been involved in for many years. After the incident, he had to be very careful about his involvement, and certainly did not go out when there was major firefighting to do. He was conscious of safety issues, and would not want to let other people down if there was a crisis or something that required urgent activity.
60 As of late 2015, the plaintiff went out in the fire truck for training purposes or if there was a mop-up operation, but not if there was a major firefight. He could no longer do so because of his back problems.
61 The plaintiff has now given up the captain’s role in the CFA, in part because he cannot do the operational activities and in part because of management issues with the service.[29]
[29]T29
62 Post incident, the plaintiff still operated as a captain in a logistics role. He was like an incident controller doing radio work, running a fire, not so much “the end of the hose stuff”. He did the technical side of things.[30]
[30]T20
63 Before the incident, when the plaintiff was the captain, he was fully involved and attended every fire. He would be the first one up the ladder. However, with his injury, this became a safety issue. If he did something wrong, like slipped over due to the numbness in his foot, he might put his crew and friends in a spot where they were jeopardised by his actions, so he resigned as captain in early 2015.[31]
[31]T20
64 The plaintiff denied that the political situation had a fair bit to do with him ceasing the captaincy. If that resolved, he would go into an IMT role, which is in radio communication. Although not captain, he still does some work on the logistics side and radio work.[32]
[32]T21
65 The plaintiff enjoyed deer hunting before the incident, but was unable to continue thereafter because of his back condition. On occasion he goes fox hunting, which is not as difficult. He certainly cannot do as much hunting as he would like because of his back injury.
66 There was no re‑examination.
Lay evidence
67 The plaintiff’s father, Robert, swore an affidavit on 8 November 2017. He probably sees the plaintiff every three months, and they talk on the phone most days.
68 Immediately after the incident, the plaintiff had a lot of problems with his back. He used to do quite a lot of home kills of beef, sheep and pigs, but could not after his injury. Mr Rice did them for him for a while.
69 Things have improved over the years, but the plaintiff regularly mentions tingling into his right foot. When he visits the plaintiff, Mr Rice usually goes on a Friday to make a long weekend of it. The plaintiff generally comes home during the day and lies down for 30 minutes to an hour, just to ease his back pain.
70 Mr Rice often has to help the plaintiff with some of the chores or farm duties. He may mow the plaintiff’s lawn or cut a load of firewood.
71 The plaintiff often talks to him about increasing back pain after having to travel for medical appointments required for his claim. On a recent drive to Coleraine, they had to stop once on the way for the plaintiff to have a stretch and ease his back pain. This was also the situation on the return trip.
72 The plaintiff is not a complainer, and gets on with things as best he can. His employer has been very good to him, and provided machinery that makes his job easier.
73 Pre incident, the plaintiff was active in the CFA and had been for many years. He was often required to travel all over the state to fight fires. He is now more involved in the organisational side of the CFA rather than firefighting. Mr Rice knows the plaintiff does not enjoy that role as much as the physical side of it, but he is grateful to still be involved.
74 The plaintiff was a keen fox hunter prior to the incident but does not hunt now because of the walking required.
75 Pre incident, the plaintiff was also a keen footballer, and, due to his height, was often in demand to play in the ruck for Dartmoor. He has not been able to play football since the incident. This situation upsets him.
76 Mr Rice has also noticed the plaintiff is a bit scared of heights, and is not comfortable on ladders doing jobs around the house.
77 The plaintiff’s partner, Cleoniki Leontiades, swore an affidavit on 8 November. They have been in a relationship for a bit over four years.
78 Cleoniki works in Lorne, where she spends Thursday to Monday. She stays Monday nights to Thursday at the plaintiff’s place. While she is there, he generally comes home and lies down on his bed to have a rest most days. He often complains about his back pain, and has told her there are activities on the farm that make it worse. He has also told her he needs help from other farm workers with some of these activities when it is busy.
79 If the plaintiff is required to do a lot of driving of vehicles on the farm he has to stop and rest due to his increased back pain. It is the same when they go for a drive for over an hour, having to take a break at least once from Coleraine to Lorne.
80 The plaintiff has advised her that he has numbness in his right foot and on the outside of his right leg virtually all the time. When his back pain is bad, this numbness seems to be worse and can even make walking difficult for him.
81 The plaintiff tosses and turns at night, and often wakes her because he is changing position all the time. When his back is bad, it affects their intimate relationship, as he is tired and sore.
The Plaintiff’s medical evidence
82 General practitioner, Dr McAllan from Hamilton Medical Group, reported in April 2014.
83 Dr McAllan noted the incident, following which the plaintiff had a CT scan and was found to have an acute L4 fracture, which Dr McAllan thought was clearly related to the incident.
84 Dr McAllan noted the plaintiff had back pain with right leg tingling. Over the next few months, the back pain slowly improved as the fracture healed, and the right leg tingling also slowly improved.
85 Within six months post incident, the plaintiff’s pain had improved to a level that he could start returning to work. His workplace was very cooperative in introducing him slowly into work. As the pain improved and his confidence level increased, the plaintiff was finally able to return to full duties on 19 August 2013, eleven months after the incident.
86 Dr McAllan noted that it was clear that over the period of time the plaintiff had a great deal of pain to start off with, and certainly struggled a bit with his anxieties and concerns about fully returning to work. As the cherry-picker collapsed, the plaintiff was, not unreasonably, apprehensive about getting back to working in the cherry-picker. He was now able to do so; however, it was clear he had been quite traumatised by the whole event. Fortunately for the plaintiff, things ended up well, despite the long recuperation period.
87 Dr McAllan provided a further report in April 2016 in which he noted the last time he saw the plaintiff specifically for his back was 16 August 2013, and things had been going well. He had last seen the plaintiff on 18 March 2014 when he attended for a respiratory tract infection.
88 The plaintiff had been seen at the practice by Dr Renfrey for a right knee injury at work in early 2016. The plaintiff had been returned to full duties as of 8 February that year.
89 Ms Tryzah Sebastian, physiotherapist, from Physio Freedom, reported in October 2017.
90 Ms Sebastian noted that Mr Webb had initially treated the plaintiff at that practice and that she had continued managing his physiotherapy in 2017.
91 Ms Sebastian noted the plaintiff had a fall at work that caused a fracture on his L4 vertebra and a haematoma on his right upper leg.
92 Manual therapy was given as management, mainly focused on soft-tissue massage and gentle spine mobilisation. A hydrotherapy program was also provided. Stretching and strengthening exercises, especially core exercises, were given so the plaintiff could self-manage any aggravation of symptoms.
93 Ms Sebastian noted the plaintiff had recovered his overall function from the low-back injury, given he had been able to return to work. However, she thought the aftermath of the biomechanical changes in his spine may occasionally elicit symptoms such as low-back pain and grabbing when doing strenuous work. The said symptoms may be provoked by repetitive stress on the lumbar spine and prolonged static postural positions.
94 Given that the plaintiff continuously does the stretching and strengthening exercises and observes appropriate low-back postures, Ms Sebastian thought he has a good prognosis in managing the symptoms brought about by his physical injuries.
The Plaintiff’s medico-legal evidence
95 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in January 2016.
96 On examination, the plaintiff complained of pain in the cervical spine.[33] He said he had difficulty sleeping as he could not find a comfortable position in bed. He was able to walk, but could not sit for longer than an hour and a half, and he had to stop on a long drive.
[33]This seems to be a typographical error as all other references in this report are to the lumbar spine
97 Mr Kossmann diagnosed an L4 fracture.
98 Mr Kossmann thought the prognosis regarding the plaintiff’s lumbar spine condition was guarded, and that he would require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy, and possibly acupuncture. He recommended the plaintiff undergo x-rays and an MRI scan of his lumbar spine, and, depending on the outcome, he may have to undergo further treatment, either conservatively or, in a worst case scenario, operatively.
99 Mr Kossmann thought the plaintiff was restricted in relation to employment and related activities, and considered this incapacity would continue for the foreseeable future. He recommended the plaintiff not walk for long distances, on uneven ground, up and down stairs, on inclines-declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than five kilograms.
100 Mr Kossmann considered the plaintiff had only a very limited capacity to perform his pre-injury duties, noting the ongoing pain in his lumbar spine.
101 Mr Kossmann thought the plaintiff’s social, domestic and recreational activities had been impacted by the incident injury, noting he had formerly played football and was also in the CFA. He had not been able to return to these activities since the incident or, if so, only at a much reduced level. Mr Kossmann considered this incapacity would continue for the foreseeable future.
102 Mr Bruce Love, orthopaedic surgeon, examined the plaintiff in September 2017.
103 The plaintiff then advised his symptoms had eased, but he medicated with Nurofen and Voltaren and had physiotherapy once every three to four weeks. His back had gradually improved and he had not found any particular aggravating factors, but rest would relieve the symptoms when they were present.
104 Mr Love thought it appeared there had been a wedge compression fracture of approximately ten degrees at L4 as a consequence of the high energy impact when falling from a collapsing cherry picker.
105 Mr Love thought the plaintiff would almost certainly be precluded from working in any occupation that involved repeated bending and stooping, heavy lifting or standing, and walking over long periods of time. This condition was permanent. Mr Love considered the plaintiff’s impairment was of moderate severity.
106 Mr Love thought the plaintiff did not have the capacity to perform pre-injury duties either on a part-time or full-time basis, and this situation was permanent.
107 Mr Love considered the plaintiff had a capacity to perform suitable employment and his current job seemed quite suitable for him, and he appeared able to work in it in a full-time capacity.
108 Mr Love thought the restrictions on the plaintiff’s social, domestic and recreational activities were minor.
109 Mr Love then considered it unlikely any future treatment would be necessary in terms of surgery, but if the plaintiff’s symptoms deteriorated, then there was a possibility of considering spinal fusion surgery. However, he believed that was a low probability. He considered the plaintiff’s current condition was static, and there was unlikely to be any change in the near future.
The Defendant’s medico-legal evidence
110 Dr Boys, consultant orthopaedic surgeon, examined the plaintiff on 24 February 2017.
111 On examination, the plaintiff described daily discomfort in the mid lumbar region. On occasion, there was discomfort in the lumbosacral region extending to the right buttock and proximal thigh, occurring a few times a week. On occasion, he experienced paraesthesia of the right foot which was episodic.
112 The plaintiff described ongoing intermittent use of Panadeine Forte, Nurofen Plus or Panadol Rapid, taken most days. He maintained his contact with the physiotherapist.
113 Dr Boys noted the plaintiff worked on a station doing stock work with cattle and sheep. The plaintiff related no formal restrictions on his work activities or imposed by his general practitioner. He experienced discomfort with repetitious bending, and tended to sit or squat as required. He maintained use of equipment including a tractor, bobcat, four-wheel drive and quad bike.
114 On this first examination, radiological investigations were not available. The plaintiff described chronic mechanical low-back pain, secondary to a claimed injury in the incident.
115 Dr Boys then thought the plaintiff’s complaints would appear to be stable with no potential for deterioration. In his view, there was no surgically remediable lesion evident and that intermittent use of anti-inflammatory or simple analgesic medication could then be reasonably maintained.
116 Dr Boys noted the primary focus of the plaintiff’s treatment should involve a self-directed program of exercises to maintain strength of the core stabilising muscles of the lower back and abdomen. He did not think physiotherapy would offer further material benefit.
117 In Dr Boys’ view, the plaintiff maintained his capacities for employment as a full-time farmworker. There was a propensity to low-back strain in the course of activities requiring protracted seated employment or with bending and lifting activities.
118 On re-examination in October 2017, the plaintiff advised his complaints were ongoing and there had been no recent change in his pattern of the use of medication. He related no change in his level of complaints, and confirmed central low-back pain and related persistent sensory disturbance of the right foot. He described paraesthesia and numbness of the lateral foot.
119 Dr Boys noted the plaintiff experienced increased levels of low-back pain with protracted sitting, and had to move frequently or sit at an incline to maintain comfort. He would generally get out of his vehicle after periods of about an hour. A static stance was also uncomfortable, but his comfort was maintained with movement.
120 Dr Boys noted the plaintiff was generally comfortable walking at his own pace, and could walk in sheds on the property. He was not obliged to walk around the property, and had a motorised ATV to get around the farm. That vehicle had suspension, and the plaintiff stated it was much more comfortable driving it when compared to previous use of a quad bike.
121 Dr Boys thought the plaintiff experienced chronic mechanical low-back and sensory disturbance of the right foot. He considered the condition would appear to have reached maximum medical improvement. The plaintiff continued to self-manage, and did not describe any specific change in his capacities to work or engage in recreational activities since previously seen.
Investigations
122 A CT scan of the lumbar spine was organised at Hamilton Hospital in September 2012.
123 It was reported there was mild anterior wedging of L1 and L2 with loss of no more than 20 per cent of vertebral body height. However, that appeared longstanding. There was mild superior endplate compression of L4 with loss of about 10 per cent of vertebral body height. That appeared acute. There was no retropulsion of material into the spinal canal. No other acute injury was seen, and there were mild lumbar degenerative changes noted. It was concluded there was a likely acute superior endplate compression of fracture at L4.
124 There was a further CT scan in November 2012 organised for Dr McAllan to compare with the previous CT scan.
125 It was reported there was now sclerosis seen around the right side of the superior endplate fracture at L4. There was now a relatively well-corticated rim around this fracture, compatible with evolution of the fracture. No new fracture was identified. Bony alignment was maintained. There was lower lumbar spine degenerative facet joint disease also unchanged.
126 It was concluded there was evolution of right L4 superior endplate fracture and no acute finding.
127 Mr Boys organised a lumbar x‑ray in February 2017.
128 It was reported alignment was anatomical. It was noted there was perhaps very mild wedging of the L1 and L2 vertebral bodies, which may be due to old trauma or old Scheuermann’s disease, although the endplates were fairly regular. There was mild anterior endplate spondylotic lipping at L1‑2. The remaining vertebral bodies were normal. The disc spaces were of normal height throughout. The sacroiliac joints were normal.
Overview
129 There is no dispute the plaintiff suffered a compensable injury to his spine in the incident which was one of high energy impact,[34] with a wedged compression fracture at L4 confirmed on CT scan in 2012.
[34]Mr Love’s description
130 The defendant accepted liability for the payment of weekly payments and medical expenses. Liability was also accepted pursuant to s98C of the Act for a permanent impairment.
Credit
131 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[35]
“… 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.”
[35](2010) 31 VR 1 at paragraph [12]
132 Counsel for the plaintiff submitted in opening that the plaintiff is very straightforward, and is someone who would “probably only give up working if he was hit with a sledgehammer”.[36]
[36]T2
133 Counsel for the defendant made no criticism of the plaintiff’s credibility or reliability, describing him as a “very decent man”, but submitted “he simply doesn’t meet the test”.[37]
[37]T22
134 I totally agree with these descriptions of the plaintiff. I thought he was a very straightforward, honest witness who did not overstate or exaggerate the problems he has experienced as a result of this traumatic injury, and he had done his best to get on with his life.
Pain
135 As Maxwell P said in Haden Engineering Pty Ltd [38] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.
[38](2010) 31 VR 1 at paragraph [11]
136 I accept that the plaintiff has had ongoing lower back pain and right leg numbness since the incident, although not as intense as in the early months thereafter, as he conceded.
137 As Mr Love reported in October this year, the plaintiff experiences central low-back pain which extends to the right thigh and right proximal buttocks on occasion, together with persistent sensory disturbance in his right foot.
138 As a result of his pain, the plaintiff generally has to lie down and rest during his work days, as his partner and father confirmed.
139 Further, the plaintiff’s partner confirmed the ongoing problems he has sleeping due to his back pain and also the detrimental effect of that pain on their intimate relationship.
140 Save for the initial hospital attendance when the fracture was confirmed and attendances with Dr Callan until August 2013, the plaintiff has sought no further treatment for his back, save for physiotherapy.
141 Whilst these attendances are limited and the plaintiff has not been referred for specialist opinion, as the plaintiff deposed, there is nothing further that can help him. Significantly, orthopaedic surgeon, Dr Boys, confirmed there is no surgically remediable lesion evident.
142 Whilst the plaintiff does not require high-level painkilling medication like OxyContin, he continues to take lower-level painkillers such as Nurofen or Panadeine Forte at least twice daily, depending on his pain levels.
143 The plaintiff receives an ongoing benefit from physiotherapy which helps him get through his work duties, and I accept he would attend Ms Sebastian more frequently if there was not an issue with funding, as he described.
144 The plaintiff also self manages his spinal condition to a large extent, undertaking an exercise regime daily, and also swimming to strengthen his core.
145 Counsel for the defendant submitted the plaintiff had not suffered a serious injury as he continues to work on the property, at times working very long hours.[39]
[39]per Chernov J Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]
146 However, in my view, the plaintiff has difficulty with various tasks in his current employment as a result of his back injury and is unable to engage in physical work freely as he did before the incident.
147 In Stijepic v One Force Group Australia Pty Ltd & Anor,[40] Ashley JA and Beach AJA noted that it was plain that Sumbul[41] 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 they took Chernov JA to have been saying, was 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.
[40]Supra
[41]Supra
148 It was not submitted on the plaintiff’s behalf that he could no longer work as an arborist as the plaintiff could not say whether or not physically he could now cope with that job.
149 It was submitted, and I accept that plaintiff has ongoing problems with prolonged sitting, standing and walking. He has difficulty bending and lifting and is limited in the amount of physical work he can do having to space out his tasks during the day.
150 Whilst the plaintiff has been able to return to full-time work, it is clear from the medical evidence that there are some restrictions on the type of work he is able to perform comfortably.
151 As Mr Love commented, as a result of his injury, the plaintiff is precluded from working in occupations that involve repeated bending, heavy stooping, standing or walking over long periods of time on a permanent basis. Mr Kossman listed a range of similar restrictions on the plaintiffs work capacity.[42]
[42]paragraph [99] of this judgement
152 Further, whilst doing a range of physical activities in his present job, the plaintiff has the assistance of fellow workers and motorised vehicles. His current employer has been good to the plaintiff, as Mr Rice confirmed.
153 As well as work consequences, I accept that as a result of his back condition, the plaintiff is prevented from engaging in activities which to him have been very important, namely his sporting activities, football in particular, and also the CFA.
154 I accept that the plaintiff had intended to continue playing for Dartmoor into his late 30s and would be doing so now but for his back injury. I accept his fear of reinjuring his back if playing and that this injury is of a different nature to a knee injury after which he would have resumed playing. He has also lost the social contact he enjoyed at the Club because of his inability to resume playing.
155 Further, the plaintiff is unable to enjoy hunting to the level he did before the incident because of his back condition.
156 Pre incident, the plaintiff was very involved with the CFA, holding the position of brigade captain. He is now unable to participate fully in the physical aspects of that role because of his injury related physical restrictions. He would not be reliable if there was a fire. Whilst the plaintiff is not completely out of that activity, he is not able to participate in it in the full physical way that he would like.[43]
[43]T2
157 These matters were all confirmed by the plaintiff’s father and his partner, who were not cross-examined.
158 I accept, as counsel for the plaintiff submitted, the plaintiff’s condition has not resolved. The plaintiff has however got on with his life and does everything he can. He is determined to keep working but pays the price for doing so.[44]
[44]T23
159 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s back impairment are serious and permanent.
160 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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