Richards v Green National Pty Ltd
[2017] VCC 1222
•7 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No CI-15-05550 .
| GLEN TERRY RICHARDS | Plaintiff |
| v | |
| GREEN NATIONAL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2017 | |
DATE OF JUDGMENT: | 7 August 2017 | |
CASE MAY BE CITED AS: | Richards v Green National Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1222 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – injury to the back – application in respect of pain and suffering damages only – reliance upon paragraph (a) of the definition of serious injury – specific incident of injury – “range case” – disentanglement of psychological or psychiatric consequences – no dispute concerning occurrence of accident or payment of statutory benefits – whether consequences of injury satisfy the statutory test – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Adviceline Injury Lawyers |
| For the Defendant | Mr I McDonald with Ms E Tueno | Minter Ellison |
HIS HONOUR:
Background
1 This matter comes before me by way of an application pursuant to s134AB(17) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. In bringing the application for leave, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s134(37) of the Act. This application had been before me on a previous occasion when, essentially, there was an application for an adjournment. On that occasion, which was 18 October 2016, I was informed that the application was one where leave was sought in respect of pain and suffering only, and this was effectively confirmed – see Transcript (hereinafter referred to as “T”) 3. The injury in question is one to the lower back, which was suffered in a specific incident on 20 November 2009, when the plaintiff was using a piece of equipment called a plate compactor and the injury was allegedly exacerbated by further lifting done on that day – see T4. In any event, the occurrence of injury shall hereinafter be referred to as “the accident”. There is no real dispute concerning the occurrence of the accident or the payment of statutory benefits. Rather, the matter is a so-called “range case” – that is, whether the consequences of the injury satisfy the statutory test – and there is also an issue concerning the disentanglement of psychological or psychiatric consequences. I refer to T3 and 8-9.
2 Mr C O’Sullivan of counsel appeared on behalf of the plaintiff. Mr I McDonald of counsel, with Ms E Tueno of counsel, appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
General background
(a)The plaintiff’s education, training and employment prior to the accident
3 As leave is sought solely in relation to pain and suffering damages, a close examination of the plaintiff’s pre-injury employment, earnings and the like is not required. Suffice to say that the plaintiff is aged 41 years, he having been born in October 1975. He was born in New Zealand and was educated to Year 12 level, following which he did a two-year Diploma in Performing Arts and Arts Management. He also completed an Advanced Diploma in Music Composition. He moved from New Zealand to Melbourne in May 1996. He has a partner, but no children.
4 The plaintiff has had a variety of employments in Melbourne. He has worked as a part-time sales representative, a line chef, an assistant hotel manager, and “General Manager Operations”, with a hotel group. In 2004, he completed a Certificate V in Business Management. He travelled to the United Kingdom where he worked as an assistant manager. He was there from 2005 to 2007 before returning to Australia. In approximately August 2008, he commenced employment with the defendant as a landscape labourer, and was still engaged in that employment when he suffered the accident on 20 November 2009.
(b) The plaintiff as a witness
5 The plaintiff impressed me as a witness of truth. I consider him to be a reliable historian. I note that Dr Jennifer Flynn, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, in her report of 26 June 2017, described him as being pleasant and cooperative. Dr Justin Lewis, consultant psychiatrist, similarly examining on 6 April 2017, referred to the plaintiff as being an open, honest and candid historian. Mr Peter Scott, senior consultant surgeon, examining on behalf of the defendant, described him as pleasant and communicative. Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff at the request of his solicitors, but his report was in fact put in evidence by the defendant. In any event, he referred to the plaintiff as being a pleasant and cooperative man.
6 The overall impression created by the plaintiff with medical examiners coincides with that made in the witness box. He struck me as a pleasant, reliable witness and I do not consider his credit to have been damaged in any way. I disagree with the submissions made by Mr McDonald in his closing address that the plaintiff’s credit was damaged by reason of the failure to record in his affidavits his strong interest in music or because his description in his affidavit material as to how the injury occurred was “flowery” – see T54. I agree with Mr O’Sullivan that the plaintiff gave his evidence in a credible and forthright way, making concessions where appropriate and without exaggeration.
(c) The state of the plaintiff’s health prior to the accident
7 The plaintiff has sworn that , prior to the accident, he was healthy and active with no back problems or, indeed, mental health issues. I accept this. Indeed, the contrary was scarcely suggested, if at all.
The injury, its treatment and diagnosis
8 As stated, the injury occurred on 20 November 2009 when the plaintiff was using a piece of equipment called a plate compactor. It is also alleged that there may have been some exacerbation by his continuing to do some lifting work and the like thereafter on that day, but essentially it is the incident with the plate compactor that is the basis for the claim. The accident seems to have occurred on a Friday and the plaintiff took some medication, such as Panadol and Nurofen Extra, over the weekend, before seeing his general practitioner, Dr Greg Kuriata, on 23 November 2009. When seen by Dr Kuriata, the plaintiff was unable to bend over, sleep well or put on his socks and shoes without assistance. Dr Kuriata organised a CT scan of the lumbar spine that day. The conclusion of the radiologist was that there was a broad-based protrusion in the L5/S1 disc encroaching into the thecal sac, such protrusion being described in the body of the report as being “mild”. Dr Kuriata has referred to the CT scan as revealing an L5/S1 disc protrusion with impingement of the thecal sac, which was consistent with the clinical picture. The plaintiff’s treatment was by way of analgesia, anti-inflammatory medication and a referral for physiotherapy.
9 That physiotherapist was Ms Dana Berkovics, who first saw the plaintiff on 27 November 2009, when he was complaining of constant central low-back pain and intermittent pins and needles in the thighs. Ms Berkovics considered that the plaintiff showed signs and symptoms very typical of disc derangement. Extension exercises were performed, along with some hydrotherapy exercises and Pilates strengthening exercises. Ms Berkovics has recorded that the plaintiff ultimately returned to work two days per week for two hours on light duties, and those hours were increased slowly over the following weeks. By March 2010, the plaintiff was doing four days per week, five hours per day, and by April 2010 was back to full hours, but not full duties. Ms Berkovics last saw the plaintiff on 16 April 2010, at which time she referred him to an exercise physiology rehabilitation gymnasium for functional strengthening. When last seen, the plaintiff had no pain or stiffness in the lumbar spine, but had not returned to any lifting/flexion activities at work.
10 Returning to the treatment by Dr Kuriata, he organised a short course of Prednisolone in December 2009. He has referred to the plaintiff being able to make a gradual return to work by 11 January 2010. He also has recorded that the plaintiff had several “flares” of his back condition, including on 24 October 2011 following the use of a garden hoe and 18 May 2012 when moving a television set. Dr Kuriata said that each of these was similar to the original presentation, although not as severe, and were managed similarly. Each “flare” eventually settled down. The assessment of Dr Kuriata was that the plaintiff was most likely to have continuing episodes of back pain throughout his life. He thought that the plaintiff might benefit from a back muscle strengthening program. He also thought that, as at the time of writing his report, the plaintiff was not suited to manual labour.
11 The plaintiff had some stomach problems as a result of the use of Panadeine Forte and Valium. When not taking those medications, he took Nurofen Plus and Panamax, but found them to be largely ineffective.
12 As shall be discussed, in approximately mid-2013 the plaintiff moved back to New Zealand and has continued to live there, In New Zealand, his treating general practitioner has been Dr Heather Burling of the Dee Street Medical Centre in Mount Maunganui. He has also been seen by Dr Matilda Lawrence at that practice.
13 Dr Burling reported to the plaintiff’s medical practitioners on 2 March 2017, also including the clinical notes from the practice and a report from a radiologist. Dr Burling reported that she has seen the plaintiff sporadically over the past few years for a number of issues, including his back pain. She does add that, as she is not a specialist, she has not done a full assessment of his back. However, the history that she has is of a chronic L5/S1 disc injury with persisting back pain. This is managed with Norflex, Naproxen and Codeine. An MRI was performed on 29 August 2016. The radiologist reported degenerative disc disease changes present at L5/S1, with a shallow disc bulge noted, but no significant central canal stenosis or neural foraminal narrowing. Dr Burling commented that the diagnosis of an L5/S1 disc bulge was confirmed by that MRI. She also stated that the prognosis was that the pain levels were unlikely to change significantly, providing that there was no further injury. Because of the period for which the symptoms had persisted, Dr Burling doubted that the plaintiff would have further improvement. She did not believe that surgery would be a favoured option, because the symptoms, although not pleasant, were manageable and with surgery there was the risk of complications. Dr Burling also stated that the plaintiff will always have to look after his back, avoiding heavy physical work. She had no doubt but that the back injury impacted upon his everyday life and that his activities and enjoyment of life were curtailed by his injury. I note that when Dr Lawrence saw the plaintiff on 13 April 2015, she recorded that the plaintiff wanted an MRI, but not surgery. For his pain relief, he was taking codeine, one or two a day, and Valium. It is apparent that the doctor gave the plaintiff a somewhat lengthy lecture concerning the drug addiction risk with codeine and Valium. It is also noted by Dr Burling that the plaintiff now tries to absolutely minimise his medication intake.
14 It is apparent that the plaintiff was referred by his general practitioner to Mr David Ardern, orthopaedic surgeon, who saw him on 7 February 2017 in his rooms at Tauranga in New Zealand. The plaintiff underwent two cortisone facet joint injections on 28 February 2017. In his report of 5 March 2017, Mr Ardern stated that the most likely diagnosis is lumbar discopathy causing back pain. Mr Ardern expressed the view that the pain had been fairly longstanding; conservative management had not alleviated it thus far; but he did not believe that surgery would benefit the situation in the longer term. Accordingly, the prognosis was very guarded in relation to the pain resolving itself. Mr Ardern also quoted from a letter he had written to the plaintiff’s general practitioner in which the possibility of guided steroid injections was discussed. He stated that the plaintiff, in a more general sense, had learned to live around his lower back pain and was aware of the importance of not over-stressing his back. He described the plaintiff’s current restrictions as being related to back pain, which was significant and rated between 5/10 and 7/10 on a visual analogue scale. Further, it occurred on a regular basis. The plaintiff described not being able to perform any activities, because they provoked pain and accordingly his employment capacity is reduced. Mr Ardern concluded by saying that there were restrictions on the plaintiff’s domestic and recreational pursuits due to pain.
15 The plaintiff has also been seen for medico-legal purposes. Dr Jennifer Flynn, orthopaedic surgeon, saw the plaintiff at the request of his solicitors, reporting on 26 June 2017. The plaintiff’s current status when seeing Dr Flynn was that he was experiencing pain in his back and left leg. Whilst he had some left leg problems, including paresthesia, numbness and giving way of the leg, his low back pain was his most significant problem. The plaintiff’s sleep was disturbed and his low back pain worse with prolonged static positioning greater than 15 minutes of sitting or standing. There was also pain radiating to the left knee. He described how his life had altered dramatically since the accident, listing a large number of activities which he could no longer perform. The plaintiff had also recounted interference with his social life, his intimate life and his sleeping.
16 Dr Flynn noted that, for the purposes of an examination associated with the assessment, the plaintiff had difficulty dressing, undressing and was required to sit to remove and replace his shoes and socks. The diagnosis of Dr Flynn was of “L5/S1 degenerative disc disease with secondary facet arthropathy*. Whilst, as shall be discussed, he was now in full-time employment, he was not fit for pre-injury duties and was unlikely to be so. Dr Flynn thought that the plaintiff’s condition was likely to deteriorate over time, but that he was not presently a candidate for surgery. She felt that the plaintiff’s condition was directly attributable to the accident. No further treatment was required at the present time, although in the future further CT‑guided spinal injections and analgesia could be used. Hydrotherapy and physiotherapy might also be required. Dr Flynn regarded the prognosis as being guarded with the plaintiff likely to continue to experience the symptoms. Dr Flynn also thought that the plaintiff’s injury and subsequent degenerative disc disease was causing him significant pain and suffering, and that he had required significant modification of his domestic, social and recreational pursuits, an effect that was likely to be ongoing indefinitely.
17 Mr Rodney Simm, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 1 June 2016. His report was in fact placed in evidence by the defendant. I note that Mr Simm’s examination pre-dated the reports of Dr Burling and Mr Ardern, so that the only material from treaters he had provided to him was the reports of Dr Kuriata and Ms Berkovics, both of which had been compiled some three years earlier. In any event, Mr Simm recorded that the plaintiff was taking up to six tablets per day of codeine, being an opioid analgesic medication, in addition to various anti-inflammatories in large doses. Mr Simm thought that the plaintiff’s general clinical presentation was consistent with a chronic pain syndrome. Accordingly, that is what he diagnosed. He felt it difficult to reconcile the plaintiff’s clinical presentation with the physical effects of the previous back injury, feeling that it was chronic pain rather than an unidentifiable physical condition of the back which disabled the plaintiff. Mr Simm expressed the opinion that the plaintiff’s condition fell outside the scope of routine orthopaedics and was in the field of chronic pain and psychological medicine. Whether by that observation he meant to convey the opinion that chronic pain syndrome is not a physical condition is not entirely clear, it is certainly the impression created. Mr Simm thought the plaintiff had a poor prognosis and that he was experiencing severe, ongoing pain and suffering.
18 The plaintiff’s solicitors also arranged for him to be seen by Dr Justin Lewis, consultant psychiatrist, who reported on 6 April 2017. He noted that, at one stage since the accident, the plaintiff had been prescribed an anti-depressant briefly, but there had been intolerable side effects. Dr Lewis had been provided with the reports of Mr Simm, Mr Scott and Mr Michael Polke (orthopaedic surgeon, also examining on behalf of the defendant), apart from the early reports of Dr Kuriata and Ms Berkovics. As with Mr Simm, his report pre-dates those of the practitioners treating the plaintiff in New Zealand. Thus, it is probably no surprise that he made the observation that he had been supplied with various specialists’ report indicating features of the plaintiff’s clinical presentation that were now more in keeping with the development of a pain syndrome. His report also pre-dates that of Dr Flynn who, of course, made no such finding and diagnosed an organic injury in clear terms. In any event, Dr Lewis diagnosed a chronic adjustment disorder with some mild to moderate depressive features.
19 It is apparent that Dr Lewis was specifically asked to comment on whether the plaintiff has a chronic spinal pain syndrome. Despite the reports with which he had been provided and not having the benefit of those subsequently obtained, Dr Lewis commented that, purely from a psychiatric perspective, there were no clear risk factors as to why psychological factors may be relevant. He pointed out that the plaintiff had an unremarkable developmental history; was a high-functioning well-adjusted individual at the time of the injury; had no relevant personality vulnerabilities or substance use issues; and that there had been no history of early life abuse or trauma. He noted that the plaintiff’s response to treatment had been appropriate and adaptive. He had been “invested” in returning to work, as opposed to presenting in a sick role and, to the contrary, his mood had significantly improved since having secured full-time work. In short, he did not express an opinion as to whether the plaintiff had chronic pain syndrome, but pointed to a number of factors which would seem to point to the contrary. Dr Lewis thought that the plaintiff had an adjustment disorder, but noted sustained mood improvements, the plaintiff having secured full-time work and in the context of a stable relationship. He was at some risk if there were further flare-ups of pain symptoms, occupational incapacity or a relationship break-down. Dr Lewis thought that a further trial of anti-depressant medication was warranted, but noted that the plaintiff was quite averse to the prospect of considering such treatment. He also referred to the plaintiff’s lowered libido and a marked decrease in sexual relations.
20 The defendant has also had the plaintiff examined for medico-legal purposes. Mr Michael Polke, orthopaedic surgeon, has reported to the defendant on three occasions, although he would only appear to have seen the plaintiff once. That was on 28 June 2016. He seems only to have had a limited amount of material made available to him, but, given the timing of things, that is perhaps not surprising. In any event, he had an affidavit of the plaintiff; the CT scan of 23 November 2009; the report of Dr Kuriata of 3 June 2013; and the report of the physiotherapist, Ms Berkovics, of 19 June 2013. Mr Polke diagnosed a low back strain with a mild lumbosacral disc bulge, the condition being stabilised and the prognosis being reasonably good. Mr Polke thought the plaintiff fit for work that did not involve heavy lifting or repeated bending. He did not think surgery was required, and opined that the pain was best treated by mobilisation, rather than rest. Mr Polke thought that the plaintiff had some abnormal illness behaviour and that he was embellishing.
21 Mr Polke reported again on 18 October 2016, having been provided with a report of the MRI of 29 August 2016. He expressed the view that the MRI report did not cause him to change his opinion. He thought that there were insufficient changes when compared with the previous CT. He reported again on 7 July 2017, having been provided with “extensive enclosures”. Whatever they may have been, they did not cause Mr Polke to alter his opinion. He referred again to the CT scan and the MRI. He stated that the diagnosis remained that of chronic spinal pain syndrome with some abnormal illness behaviour. Further, he said that the plaintiff’s condition was no longer related to the circumstances at work in 2009. Why this was so is not set out.
22 The defendant has obtained four reports from Mr Peter Scott, senior consultant surgeon. He first saw the plaintiff on 17 September 2014. By this time, the plaintiff had returned to New Zealand, where he had engaged in exercises and participated in a rehabilitation program. However, in the preceding 12 months, he had had no treatment. Mr Scott felt that an up‑to‑date MRI was needed. He also thought that the plaintiff had developed a chronic pain syndrome. His diagnosis was of chronic low back pain; aggravated mild degenerative changes to the lumbosacral spine without evidence of any lower lumbar radiculopathy; and development of what appeared to be a chronic pain syndrome, which required interpretation by a psychiatrist. As previously discussed, the plaintiff has since been seen by Dr Justin Lewis, consultant psychiatrist, who indicated a number of factors which seem to indicate that the plaintiff was not suffering from a chronic pain syndrome. In any event, Mr Scott considered the prognosis to be poor.
23 Mr Scott reported again on 29 June 2016, having seen the plaintiff on that day. Apart from his own report of 17 September 2014, the documentation forwarded to Mr Scott contained nothing more recent than the report of Ms Berkovics of 19 June 2013. The plaintiff told Mr Scott that, since he had last seen him, he had been prescribed Norflex, Naproxen, codeine phosphate and Viagra. On examination, Mr Scott could find no evidence of any neurological deficit over the peripheral distribution of the lumbosacral nerve roots above the left lower limb. Mr Scott felt that the plaintiff required up‑to‑date radiological studies. He diagnosed chronic pain syndrome, with ongoing mild discogenic disease of the lumbosacral spine without evidence of radiculopathy. Mr Scott thought that clarification and interpretation by a psychiatrist was required.
24 Mr Scott reported briefly on 11 October 2016, without having seen the plaintiff again. For the purposes of this report, he had been supplied with the MRI report of 29 August 2016. He felt that the MRI report showed no evidence of significant ongoing, underlying, work-related organic disability and believed that the plaintiff’s symptoms represented a chronic pain syndrome with possible features of anxiety and frustration. He thought that non-organic symptoms appeared to be the major component. Because of what he described as the mild changes noted at the L5/S1 level, Mr Scott was of the view that the plaintiff was fit to continue to work, provided he could avoid repetitive twisting and turning or lifting of weights in excess of 10 kg. Mr Scott again reported on 7 July 2017, having been forwarded further material, including the reports of Dr Burling and Mr Arhern, along with the plaintiff’s more recent affidavits. Mr Scott did not comment specifically on these, nor refer to the report of Dr Justin Lewis, although he records having been sent that document. Mr Scott stated that his opinion remained unchanged and that the plaintiff continued to be fit for light work with restrictions. However, he pointed out that he had not seen the plaintiff for 10 months and that it might be worthwhile reviewing him. As stated, he made no observations concerning the reports of those treating the plaintiff in New Zealand, nor the report from the psychiatrist. His report in this regard is somewhat inadequate and the only opinion expressed in even brief detail is that concerning fitness for work.
25 To some extent, this case again raises the vexed question of the nature of chronic pain syndrome and whether it is an organic condition or something more in the nature of a mental disturbance or disorder. Mr McDonald stated that this case would not require an investigation of that area of dispute, but rather that the preponderance of medical opinion is that the plaintiff’s complaints are not warranted by any organic disability and that the psychological consequences are to be disregarded. I think he is partly right, in that the issue of the nature of chronic pain syndrome is not something that will require a ruling, but it is not because of the reason advanced by Mr McDonald. It is simply that I prefer the opinions of those who have treated the plaintiff. Of course, as shall be discussed, any psychological or psychiatric consequences shall be disregarded, but I am of the view that essentially the plaintiff’s injury is an organic one, and accordingly the consequences from which he suffers are of an organic nature.
26 In the opinion of Mr Ardern, the only treating orthopaedic surgeon whom the plaintiff has had, the diagnosis is one of lumbar discopathy causing back pain. Mr Ardern has referred to the findings on the recent MRI scan. There is no suggestion in the report of Mr Ardern that the plaintiff’s problems are of a psychological or psychiatric nature. The plaintiff’s current treating general practitioner, Dr Burling, may not be a specialist, but has referred to a history of chronic L5/S1 disc injury with persisting back pain. She went on to say that the diagnosis of L5/S1 disc bulge was confirmed by the MRI of August 2016. In her report, there is no suggestion of any psychiatric or psychological condition of any significance, if at all. The same could be said of the report of the plaintiff’s original treating general practitioner, Dr Kuriata. He referred to the fact that the CT scan of the lumbar spine revealed an L5/S1 disc protrusion with impingement of the thecal sac, and this was consistent with the clinical picture. Again, there ts no mention of any psychological or psychiatric component. The findings of the physiotherapist, Ms Berkovics, were that, on palpation, the central L4/5 and L5/S1 intervertebral joints were very tender and created lumbar muscle spasm. This would appear to be an organic finding. Further, Ms Berkovics stated that the plaintiff had signs and symptoms very typical of disc derangement. Thus, as stated, none of the four practitioners who have treated the plaintiff and who have reported have raised any suggestion of psychological or psychiatric factors being involved and all have made comparatively consistent diagnoses on an organic basis.
27 This is also consistent with the diagnosis of Dr Flynn. There is basically no hint in her report of 8 March 2017 of any psychological or psychiatric factors being involved. Her diagnosis is L5/S1 degenerative disc disease with secondary facet arthropathy and she considers the plaintiff’s current condition to be directly attributable to his employment and the accident.
28 I would also point out the following. Mr Polke, examining on behalf of the defendant, diagnosed chronic spinal pain syndrome with some abnormal illness behaviour, but also stated that the plaintiff would probably benefit from a psychological assessment. Mr Simm diagnosed a chronic spinal pain syndrome, also stating that the plaintiff appeared to have an associated emotional disturbance, “but this would need to be confirmed by a psychiatrist”. Mr Peter Scott also diagnosed chronic pain syndrome “requiring clarification by a psychiatrist”. He also referred to psychosomatic factors magnifying the overall presentation “and requiring interpretation by a psychiatrist”. Thus, each is effectively suggesting that the views of a psychologist or a psychiatrist should be obtained. The only such report before me is that of Dr Lewis. He described the plaintiff as presenting as an individual who struggled with significant despondency and demoralisation in the context of chronic pain and physical restrictions. He diagnosed a chronic adjustment disorder with mild to moderate depressive features, but stated that the plaintiff’s adjustment disorder had been significantly contributed to by chronic pain and physical restrictions. In relation to whether the plaintiff has a chronic spinal pain syndrome, Dr Lewis expressed no final view, but stated that “Purely from a psychiatric perspective, there are no clear risk factors as to why psychological factors may be relevant”. He then listed a number of features of the plaintiff’s upbringing and earlier life which represented an unremarkable developmental history. He described the plaintiff not presenting as being “invested” in a sick role, but, to the contrary, the plaintiff’s mood had significantly improved since having secured full-time work. Whilst Dr Lewis comes to no firm conclusion, he seems to have considerable doubts as to whether the plaintiff does have a spinal pain syndrome, suggesting that the opinion of a pain physician might be of value in helping to clarify whether such a syndrome is present. There is no opinion from a pain physician before me.
29 The opinions of those who have treated the plaintiff and of Dr Flynn seem to me to be clear and persuasive and without reservation. I accept them. For what it is worth, I might add that the impression created by the plaintiff in the witness box was not one of a person suffering from any marked psychological or psychiatric disorder.
30 I accept the diagnosis of Dr Flynn that the plaintiff suffers from L5/S1 degenerative disc disease and facet joint symptoms secondary to this, a diagnosis which fits with that of the treating orthopaedic surgeon, Mr Arhern, of lumbar discopathy causing pain.
31 Of course, as required by s134AB(38)(h), psychological and psychiatric consequences shall not be taken into account. I accept that the plaintiff was, at one stage, depressed and was briefly on medication in this regard. I accept that there may have been some form of adjustment disorder significantly contributed to by chronic pain, as diagnosed by Dr Lewis, but that psychiatrist also points to sustained mood improvement since the plaintiff secured full-time work and in the context of his present stable relationship. He points to risks that materialise if either of those situations might alter. He also believes that the plaintiff will always struggle with some lowering in mood and feelings of despondency in the context of chronic pain. It might also be that, as suggested by Dr Lewis, at some stage a further trial of anti-depressant medication might be warranted, particularly as the one recommended by him is also useful for neuropathic pain. In short, there may have been some psychological or psychiatric consequences of the physical injury. They shall not be taken account, but I am far from persuaded that they are of great magnitude. Certainly, they do not seem to have been of sufficient magnitude to attract any significant attention from those who have treated the plaintiff.
32 Insofar as the injury may be in the nature of an aggravation, being the aggravation of underlying degenerative disease of the lumbar spine, only the effects of such aggravation shall be taken into account. However, I accept that, prior to the accident, the plaintiff was completely symptom free in relation to his low back, and always had been. Accordingly, the symptoms and consequences from which he now suffers result directly from the accident and, if there has been aggravation of a pre-existing condition, that condition was, until the accident, completely asymptomatic.
33 I am also satisfied that the injury and its consequences are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Burling has stated as follows:
“His prognosis is that his pain levels are unlikely to change significantly provided he does not injure his back further. Symptoms usually ease with time but it is now a number of years since Glen’s injury and I doubt he will have further improvement”.
Mr Ardern has made the following comment:
“The prognosis therefore that the pain resolves is very guarded. It is more likely he will continue as he has done over the past several years”.
Dr Flynn stated the prognosis for the plaintiff is guarded and that he is likely to continue to experience symptoms of the low back with progression of the disease over time. She also observed that the plaintiff’s degenerative disc disease is progressive and likely to deteriorate in the future.
Whilst he was commenting on the situation in June 2013, the assessment of Dr Kuriata was that it was most likely that the plaintiff would have continuing episodes of back pain through his life.
Bearing all of the above in mind, I am of the view that the plaintiff has satisfied the requirement of permanence.
Other developments since the injury
34 Following the accident, the plaintiff was absent from work until 11 January 2010, returning to perform modified duties on the following day. He then worked two hours per day, two days per week, with restrictions upon the work which he could perform. Gradually, his working hours increased, so that he was certified fit to return to full-time duties by April 2010, but in reality was not able to return to such duties. He could not manage working full-time. In approximately mid-2010, he ceased work with the defendant, as he could no longer cope with that work.
35 The next full-time work obtained by the plaintiff was in July 2012, when he obtained work with an entity called Stage One Productions. He claims that he had filled in many job applications during the two-year period prior to commencing work for Stage One Productions and had also at times assisted a friend who had a hotel. The plaintiff went on a trip with friends to America in approximately mid-2011, this involving a car being driven from San Francisco to Las Vegas. The plaintiff said that he was not doing any of the driving – see T27.
36 The work with Stage One Productions involved some light machines, the sculpting of puppets and various other tasks. The plaintiff referred to it as being light manual work, but it was effectively full-time. That work lasted for approximately eight months. The plaintiff has sworn that he had to cease this work eventually because it was causing him too much pain. He attempted to study a Bachelor of Communication course at Griffiths University Online, but only managed to complete two out of 24 units before withdrawing from the course. He claims that a combination of the pain and the painkillers was affecting his capacity to concentrate.
37 In mid-2013, the plaintiff moved back to New Zealand on a permanent basis. He has since made a considerable number of trips to Australia, some in relation to the conduct of this case and others to attend functions involving former friends and to catch up with such people.
38 Commencing in approximately August 2013, the plaintiff worked “on and off” for his parents on their orchard, where, kiwi fruit is grown. He has sworn that his work there did not require him to do heavy lifting. He could work at his own pace, taking breaks or lying down when necessary, in addition to sitting or standing as required. In his affidavit of 29 May 2015, the plaintiff stated that he was currently looking at enrolling at a local TAFE in order to complete a Level 4 in Horticulture, this being something that he thought would take one day a week. However, in his second affidavit of 18 October 2016, he stated that he did not ultimately so enrol. He did not believe he would be able to sit for two consecutive hours at a time, three days a week.
39 In approximately October 2016, the plaintiff started work in a customer service role for a kiwi fruit packing company. It is full time work involving no lifting, and he can sit, stand or walk as required. He can also work from home if his back is too sore. His work essentially involves him in liaising between kiwi fruit growers and what are described as pack-houses. His work recently involved him in travelling to China, as a considerable amount of kiwi fruit is apparently sent there. It would seem that he also had some international travel to Europe in 2015, this being unrelated to his employment, but in order to meet his partner’s parents. The plaintiff gave evidence that, when on planes, he walks around a lot and takes a lot of painkillers.
40 In any event, his employment in the kiwi fruit industry is continuing and seems to be suitable for him.
Ruling
41 I am satisfied that the plaintiff has discharged the burden of proof. He is entitled to leave to pursue damages for pain and suffering. I have come to this conclusion for the following reasons, which are not set out in order of importance or significance.
(i) In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439 at 448.
“Moreover, in "serious injury" applications the credit of the applicant is of great importance …”
This observation has been referred to in recent decisions of the Court of Appeal.
In the present case, I find the plaintiff to be a truthful and reliable witness. This is also the impression which he has created with a number of medical examiners for both sides. I have no hesitation in accepting that he gave true and accurate evidence to the best of his ability and I have no reason to question that ability.
(ii) The age of the plaintiff is a factor of some importance. He is now 41 years of age. There is no reason to anticipate that he will have anything other than a normal life expectancy. The pain and suffering consequences from which he suffers could well persist for many decades to come. In this regard, I would refer to the observations of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
(iii) As sworn to by him in most recent affidavit, the plaintiff continues to experience ongoing, and variable pain in his back, which pain is always there. As was said by Dodds-Street JA in Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
(iv)The back pain interferes with the plaintiff’s sleep. He has sworn in his first affidavit that he often wakes from his sleep in pain or with muscle spasms. In his affidavit of 18 October 2016, he described how his sleep was disrupted every night, a good night being when he manages to get three consecutive hours of sleep. In his most recent affidavit, he has confirmed that his sleep is often disturbed and, in her affidavit, his partner, Ms Minja Van Der Paard, has sworn that the plaintiff has disrupted sleep and moves around in bed a lot throughout the course of each night. Ms Van Der Paard was not required for cross-examination. Interference with sleep is another important factor. In addition the plaintiff described to Dr Lewis how he had very disturbed sleep secondary to pain symptoms.In this regard, I would refer to what was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
This seems to me to be applicable to the situation of the plaintiff in the present case.
(v)The plaintiff has been on quite a high level of medication, but, because of stomach problems, he has attempted to reduce that level. He still takes medications most days and these include Naproxen, Norflex and Codeine.
(vi)There is also interference with the plaintiff’s libido. He is now reliant on Viagra. As he related to Dr Lewis, he is anxious that his partner will tire of his pain symptoms and lowered libido and return to her native Germany. Interference with sexual function is also a factor of importance.
(vii)The plaintiff really enjoyed the building aspects of his pre-injury employment. He had moved from the hospitality industry to working with the defendant, where he participated in the building of decks, fences, stairs and the like. He had hopes that he might become a carpenter and build his own house. I accept that his back pain will not permit him to engage in such activities. In addition, I accept what he told Dr Flynn to the effect that he used to enjoy such things as running, tennis, rugby, bike riding, skateboarding and the like and is no longer able to perform such activities. These matters are also referred to in his affidavits and confirmed in his most recent affidavit of 16 June 2017.
(viii)I appreciate that this is not an application in which leave is sought in relation to economic loss, but the effect of the injury upon a plaintiff’s employment situation is a consequence that has been considered in many cases and can be taken into account in the present one. The plaintiff has been fortunate in that he has been able to find suitable employment, firstly with his parents, and then, flowing from that, in the kiwi fruit industry generally. He now has a decided lack of flexibility insofar as being able to find work on the open labour market. I would refer to the observations of Ormiston JA in State of Victoria v Glover [1998] VSCA 93 and his conclusion that an impairment may be “serious” although it does not presently result in any substantial loss of income.
42 When all of the above is considered, it seems to me that the plaintiff has discharged the burden of proof in relation to the pain and suffering consequences of the injury. I am satisfied that the consequences of the plaintiff’s impairment or loss of a body function could, when the relevant comparison is made with other cases in the range of possible impairments or losses of a body function, be fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
43 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to brings proceedings for pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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