Robins v Craig Robins Pest Control
[2016] VCC 137
•25 February 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04605
| DARREN LEIGH ROBINS | Plaintiff |
| v | |
| CRAIG ROBINS PEST CONTROL | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 4 February 2016 | |
DATE OF JUDGMENT: | 25 February 2016 | |
CASE MAY BE CITED AS: | Robins v Craig Robins Pest Control | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 137 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment of the spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; State of Victoria v Glover [1998] VSCA 93
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh QC with Mr S Jurica | Nowicki Carbone |
| For the Defendant | Mr P Scanlon QC with Ms F Ryan | IDP Lawyers Pty Ltd |
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 16 April 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 primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the spine.
5 By s134AB(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”.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd[2] in reaching my conclusions.
[1](2005)14 VR 622
[2](2006)14 VR 602
7 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material that was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is presently aged thirty-seven, having been born in June 1978. He lives with his fiancée and her two teenage children.
9 Having completed Year 10, the plaintiff has worked mainly in retail, customer service and forklift driving, apart from his apprenticeship with the defendant.
10 Over the years, the plaintiff has suffered a number of injuries. He injured his back in lifting incidents in around 2004 and 2011. He had physiotherapy for both injuries and was able to return to work on his normal duties.
11 As at June 2015 when he swore his first affidavit, the plaintiff suffered from occasional bilateral knee pain that tended to flare up after excessive squatting and he also suffered from ongoing depression.
12 The plaintiff started working for the defendant in August 2011 as an apprentice pest controller. His brother and wife owned the defendant company. The plaintiff was then living in Swan Hill.
13 The plaintiff’s duties included inspecting houses for infestations of spiders and white ants, crawling under houses and in ceiling spaces, and also using spray equipment to kill the infestation.
14 On the said date, when in a client’s house fumigating, the plaintiff was in full protective gear with no peripheral vision. He began walking backwards towards the door as he was fumigating, and tripped over the electrical cord of the equipment behind him connected to the house’s main power outside.
15 The plaintiff landed heavily on his backside on a tiled floor, and immediately felt pain in the middle lower part of his back (“the incident”).
16 The plaintiff’s brother, who was outside at the time of the incident, took the plaintiff to the Emergency Department at Swan Hill Hospital, where he had an x‑ray and was told he had sustained a T12 fracture.
17 The plaintiff later consulted his general practitioner, Dr Zanker, who prescribed Tramadol for the pain. Despite two weeks of rest, the plaintiff’s pain did not improve, so he was referred for physiotherapy.
Work since the incident
18 The plaintiff could recall four weeks off work on WorkCover, then two weeks of light duties before undertaking full-time duties until Christmas 2012
19 The plaintiff’s brother and wife were unhappy he had lodged a WorkCover claim, and his relationship with them broke down. The plaintiff felt he had no other choice but to find alternative employment, and left to live in Mildura in about January 2013.
20 The plaintiff found a job with Global Rainwater Tanks (“the current employer”) making plastic rainwater tanks. Most of the work was done by cranes and a forklift. The plaintiff found frequently getting in and out of the forklift painful. He was often required to lift 25 kilograms of powder as part of the manufacturing process. Performing this task was very painful.
21 The plaintiff had to work to pay his bills, and although he enjoyed the job, he would have preferred to work in a less strenuous workplace.
22 As of June 2015, the plaintiff was attending Dr Baghbanian in Mildura. The plaintiff was then taking Tramadol Sandoz, 50 milligrams every two days, or daily if his pain was aggravated. He was also using Voltaren topical gel and Deep Heat. He took Imovane, 7.5 milligrams nightly, for sleep.
23 The plaintiff was having massages to help with his pain. He also did a stretching routine his physiotherapist had given him to help manage his back pain and stiffness.
24 Since the injury, the plaintiff had experienced ongoing back pain, although it varied from day to day. He was in pain at work, but he tried to get through the day with painkillers and rested when he arrived home.
25 The plaintiff tried to avoid long car travel, as that tended to aggravate his back pain. Prolonged standing also increased his pain, so he tried to move around. The plaintiff liked to walk a lot for his health, but he found walking long distances increased his pain.
26 The plaintiff had trouble doing some of the heavier cleaning and more fiddly tasks at home, especially bending to clean in tight corners or low down in the bathroom. He managed by taking his time and resting when he needed to. If his back pain was worse on a particular day, he avoided these activities.
27 The plaintiff found bending and twisting aggravated his back pain and could cause spasms. He tried to avoid those activities, but sometimes he had no choice at work or when he was cleaning at home.
28 The plaintiff could dress and manage his own personal care; however, it was sometimes difficult to sit on the toilet and wipe himself properly because of pain and limited back movement.
29 The plaintiff’s sleep was often disturbed because of pain and he frequently woke up tired. As a result, he could be irritable with his partner and her children. His depression had increased since suffering the work injury, and he felt frustrated that he was in pain and could not move as freely as he used to.
30 The plaintiff swore a further affidavit on 25 January 2016. He continues to work as an oven operator.
31 The majority of the plaintiff’s duties involve forklift driving and some lifting. He has been with the current employer for three years save for the short period he spent elsewhere. He has not had any time off.
32 In late 2015, the plaintiff had a spine x‑ray which he understood showed little or no change to the fracture shown in an x-ray following the incident.
33 In late 2015, the plaintiff’s local general practitioner referred him to Dr Liebenson, an orthopaedic surgeon in Mildura, for advice as to his back condition. However, before he saw the plaintiff for his back, Dr Liebenson saw the plaintiff for a left knee injury suffered at work on 16 December 2015.
34 The plaintiff had arthroscopic surgery on 15 January 2016 and was hoping to return to work the week after the hearing. His progress has been really good and he had started doing physiotherapy at home. He was told by his specialist that if all went well, he could expect to work within two to four weeks.[3]
[3]Transcript (“T”) T5
35 Because of the plaintiff’s knee surgery, the first appointment in relation to his back had to be cancelled. Dr Liebenson advised the plaintiff he would give him a referral to a back specialist in Melbourne but that had not yet happened.[4]
[4]T6
Current condition
36 The plaintiff has constant lower back pain and pain in the mid-range of his back. It is an aching, annoying pain. He finds it more difficult bending with his back.
37 After sitting or standing for about an hour, the plaintiff’s back pain increases and he feels like he has to keep moving.
38 The plaintiff finds it difficult walking for more than about three-quarters of an hour to an hour. Most days, he gets two or three muscle spasms in the mid to low range of his back. Some of the time he feels depressed, as he struggles to get through his workload with his back pain.
39 Having moved to Mildura at the end of 2012, the plaintiff has attended the Tristar Clinic since February 2013. He sees general practitioners there about once every three weeks for prescriptions.
40 On examinations for unrelated conditions in November 2013, twice in March 2014, July 2014, and in September 2014, the plaintiff agreed he made no mention of any back complaint.[5]
[5]T13, T14
41 The first note in this regard was in October 2014 setting out a complaint of back pain and a T12 fracture at work, being under WorkCover and the bone density showed slight osteopenia.
42 The plaintiff agreed he was a bit down about something at work on 20 November 2014. He got a repeat for Tramadol on 15 December 2014.
43 In January 2015, there was a note of a past history of a T12 fracture and the plaintiff wanted more painkillers. He had slight limitation of movement. No radiation.[6]
[6]T14
44 Most days, the plaintiff takes two tablets of 50‑milligram Tramadol. He also takes a couple of Panadol about two or three times a week when his back pain is worse. He takes 50 milligrams of Pristiq a day for his depression. He takes half a tablet of Imovane each night to help him sleep.
45 The plaintiff initially took one or two Tramadol tablets per day.[7]
[7]T8
46 Cross-examination proceeded on the basis that there were not enough prescriptions of Tramadol in 2015 for the plaintiff to be taking them as regularly as he claimed.
47 When this was suggested to the plaintiff, he explained that some weekends he did not take Tramadol because he did not have much physical activity like he did at work. On average it probably worked out he took a tablet every few days.[8]
[8]T16
48 In re-examination, counsel for the plaintiff indicated there were in fact ten prescriptions of Tramadol during 2015. The plaintiff agreed that he would obtain 20 tablets, plus a repeat on each occasion.
49 The plaintiff recommenced taking Tramadol in October 2014 because Voltaren just was not working. The pain had increased and he needed something a little stronger and the Tramadol 50 made his pain a lot less.[9]
[9]T23
50 Since about May 2012, the plaintiff had tried not to take Tramadol on Dr Zanker’s advice. He had referred the plaintiff for physiotherapy at Mallee Physiotherapy in Swan Hill.[10]
[10]T22
51 The plaintiff’s fiancée rubs in some Voltaren Gel or Deep Heat on his back a couple of times a week. When he went to Mildura, the plaintiff organised massage. He now attends every four to six weeks at either Centrum Mildura or Endota Spa. He is massaged around the outside of his spine, around the middle at the fracture site.[11]
[11]T9
52 Most days, the plaintiff does exercises shown to him by his physiotherapist and swimming exercises and walking in the pool.
53 The plaintiff works nine hour days and there is some physical work. He has periods when he has a chance to have a stretch, sit down and take a bit of pressure off.[12] He agreed his days are relatively busy.[13]
[12]T16
[13]T17
54 The plaintiff manages his work the best he can – during the day doing exercises when he gets a chance and taking Tramadol when required. He also has the assistance of a co-worker.
55 At the end of a day’s work the plaintiff feels “sore and buggered, absolutely stuffed”.
56 After a day at work, the plaintiff is physically exhausted with back pain. When he comes home, he tries to have a rest and take it easy. He usually then has a hot shower and tries to do some pool exercise. He walks in the pool because if he gets lazy, his back is going to get a lot worse so he would like to keep fit and active.[14]
[14]T24
57 The plaintiff tries to walk up to three quarters of an hour a day to keep himself active and fit and he also does some walking in the pool.
58 On Saturday mornings, the plaintiff usually wakes up a little bit worse. As he has no activities on a Saturday, he generally feels alright, but he experiences a constant ache in his back. He does a few stretches and goes to the pool and relaxes and does some walking to get himself ready for Monday.[15]
[15]T24
59 The plaintiff “felt great, come the weekend” when he had the chance to relax and do things with the kids and his fiancée. They could go to the river and “have a look.” He has not been to the football for a while, so he has “forgotten what it feels like.[16]
[16]T25
60 Before the injury, the plaintiff had no sleep problems. Since the injury, he finds it hard getting to sleep because of back pain and he generally wakes a couple of times during the night.
61 Since the injury, the plaintiff’s concentration and memory are reduced. He is not sure whether that is a result of the back pain or medication.
62 Before the injury, the plaintiff was living alone. He was doing all the housework and cleaning. Now living with his fiancée, she does most of the cleaning, because he finds the housework, especially heavy things like vacuuming and cleaning the bathroom, hard with his back pain.
63 Before the injury, the plaintiff lived in a unit and did not have a garden. There is a garden at his fiancée’s house but she mostly looks after it due to his back pain. He finds it a bit hard to do a lot of the gardening.[17]
[17]T10
64 Before his injury, the plaintiff played nine holes of golf every couple of months. Now, he finds it difficult to play any golf because of his back pain.
65 Before the injury, the plaintiff enjoyed going trailbike riding approximately once per month. He sold his bike not long before his injury to go overseas. He was planning to buy a new one, but has now decided against doing so because of his back pain.
66 Before the injury, during summer, on occasion, the plaintiff went wake-boarding and knee-boarding and went out on a biscuit behind a boat. Since his injury, he has found it difficult doing any of these activities with his back pain and he cannot go on a biscuit behind a boat.[18]
[18]T10
67 Before the injury, the plaintiff used to enjoy occasionally watching the local football, perhaps once every few weeks. Since his injury, he would only go a couple of times each season as he finds it is hard standing and sitting for long periods of time.
68 The plaintiff ultimately agreed that really, he did not have that much difficulty attending the local football. When it was suggested he could work pretty well for long periods, he said he had to work to make a living and have a roof over his head. He agreed it did not make sense to say that he could not go to the football when he indeed worked for 9 hours a day.[19]
[19]T18
69 After driving for about three-quarters of an hour to an hour, the plaintiff’s back pain gets worse. He therefore tries to avoid driving for long distances whenever he can because of his back pain.
70 The plaintiff barracks for Collingwood. Before his injury, he travelled to Melbourne to watch AFL games every two or three weeks. Since his injury, however, he has only been to a handful of games because he finds it really hard travelling down in the car with back pain.
71 The plaintiff explained that he had difficulties when travelling to Melbourne by train. He had to sit down and stand for a long time and could still end up with back pain.[20]
[20]T20
72 Before the injury, the plaintiff often socialised on the weekend. He now does not socialise as much because of his back pain.
73 Before the injury, the plaintiff had a good sex life. Thereafter, his fiancée has had to do “most of the work”. He also finds it difficult doing certain positions because of his back pain.
Treating doctors
74 Dr Zanker in Swan Hill reported in December 2014. He also provided answers to a treatment questionnaire in April 2013.
75 Dr Zanker confirmed the initial presentation on 20 April 2012 after the incident in which the plaintiff described having developed sudden pain in his lower thoracic to upper lumbar region.
76 Dr Zanker noted the attendance at Swan Hill Hospital on the day of the incident and subsequent investigations.
77 Reviews continued in May and June 2012. During that time, the plaintiff’s pain was continuing to improve. He was certified fit for alternative duties on 28 May 2012.
78 On review in September 2012, the plaintiff described a relapse of depression secondary to his injury, and tension with the defendant. Counselling was recommended.
79 In late 2012, the plaintiff’s subjective pain score was 85 to 90 per cent towards normal, and he was keen to go back to unrestricted duties. There was still tenderness in the lower thoracic spine in the midline. The plaintiff was then requiring minimal pain medication.
80 In December 2012, a bone density scan revealed osteopenia, and vitamin supplements were advised.
81 Dr Zanker last saw the plaintiff on 7 January 2013.
82 Dr Zanker noted the plaintiff had had two previous work-related back injuries and also had had Major Depression.
83 Dr Zanker thought the plaintiff suffered an acute T12 vertebral crush fracture in the incident. Whilst the x‑ray taken at Swan Hill could not differentiate an old from a new injury, Dr Zanker considered the sudden onset of pain in combination with localised tenderness in the lower thoracic spine was consistent with an acute fracture of T12.
84 Dr Zanker noted the plaintiff suffered a relapse of his Major Depression secondary to his physical injury and deterioration in his relationship with the defendant.
85 The plaintiff told Dr Zanker in late 2012 he had found a new job in Mildura and was leaving Swan Hill. Prior to that, he had returned to unrestricted work duties. Dr Zanker was unaware of the plaintiff’s current work capacity.
86 Dr Zanker would expect, in the long term, the plaintiff may experience chronic intermittent lower backache or pain resulting from the fracture and resultant alteration in the biomechanical load of the lower thoracic/upper lumbar spine.
87 In the medical practitioner questionnaire of 30 April 2013, Dr Zanker repeated some of the matters set out in his medical report. He noted that the plaintiff had moved to another location and “made a near complete recovery when last seen.”
88 Dr Zanker’s clinical notes set out the following-
89 In May 2012, Dr Zanker noted that the plaintiff had a worsening of depression and he had a few issues with his sister-in-law.
90 On 13 July 2012, Dr Zanker noted the plaintiff had a car accident in which he bruised his sternum from the seatbelt. He was seen in Emergency. He lodged a TAC claim.
91 On 3 September 2012, a WorkCover Certificate was discussed and the plaintiff was noted to be a bit teary. On 10 September 2012, the plaintiff was prescribed Ibuprofen for back-related pain.
92 Dr Zanker requested bone scans in late 2012 and last saw the plaintiff in January 2013.
93 On 26 March 2015, Dr Baghbanian from Tristar Medical Group in Mildura reported.
94 Dr Baghbanian diagnosed a possible wedge compression fracture at T12 from the incident.
95 Dr Baghbanian noted the plaintiff had undergone physiotherapy, analgesics and review with doctors had been provided and a referral to a neurosurgeon may be considered in the future.
96 Dr Baghbanian was uncertain whether the plaintiff’s condition would preclude or restrict him in relation to his earning capacity. He noted the plaintiff had been working full time at the pre-injury duties level for a long time. He was uncertain whether the plaintiff’s condition would preclude or restrict him in relation to certain domestic or recreational activities, but the plaintiff thought it had.
97 Dr Baghbanian concluded that the plaintiff’s condition was more likely to remain unchanged, because the signs and symptoms had been the same in the past three years, and the radiology report had stayed the same.
Medico-legal examiners
98 Dr Elder, consultant in occupational and environmental medicine, examined the plaintiff on behalf of CGU in September 2014 for the purposes of an AMA assessment.
99 At that stage, the plaintiff complained of ongoing mechanical back pain, and actually pointed to the thoracolumbar junction when asked to demonstrate the site of the pain.
100 The plaintiff described his pain as being 5 to 6 out of 10 in winter, and a little bit better during summer, depending on the level of work he did. Overall, the plaintiff estimated he was about 60 per cent improved. He had no radicular symptoms.
101 The plaintiff was then self-funding physiotherapy, and bought Voltaren over the counter.
102 Having flown to Melbourne, the plaintiff stated he did not think he could have driven six hours in the car to the appointment. He found heavy housework difficult. He was able to do his own household chores, and avoided heavy lifting. He did not describe any sitting, standing or walking restriction.
103 On examination, there was no muscular spasm. Power, sensation and reflexes were all normal, and there was no wasting.
104 Dr Elder thought the plaintiff had mechanical thoracolumbar spine pain with no clinical evidence of radiculopathy.
105 Dr David Kennedy, sports and industrial physician, examined the plaintiff in November 2015. He had available the bone density test, the x‑rays of the lumbar spine of April 2012 and January 2015, together with the plaintiff’s affidavit.
106 After noting the plaintiff’s post-incident treatment, Dr Kennedy reported that the plaintiff was able to gain employment at Mildura working for the current employer in a rotary mould processing plant, working as an oven operator.
107 Dr Kennedy noted that in December 2014, the plaintiff decided to change jobs and work for Integrated Recycling in Mildura, but that was very heavy work, and the plaintiff found it very difficult with the heavy lifting, and lasted only two or three weeks before going back to the current employer, where he continues to work full time.
108 As of November 2015, the plaintiff was having physiotherapy every four weeks, self-funded, and also used Voltaren Gel and Tramal. Dr Kennedy noted the plaintiff’s depression had improved with the change in his environment.
109 The plaintiff’s current complaint was persistent mid to low back pain with a constant pain level of 6 out of 10 on average. There was no radiation of pain or paraesthesia. There were restricted sitting and standing tolerances, with problems with long driving. There was stiffness and discomfort in the lower back, worse in colder weather.
110 Dr Kennedy noted the plaintiff no longer played AFL or golf or water sports or other activities such as boating or going to the movies. There were some restrictions with domestic activities, but the plaintiff tried to help around the house.
111 With the plaintiff’s work, some of the manual handling was difficult, and occasionally he had to use a forklift, which would aggravate his back pain, particularly with the bouncing. He also had some restrictions with bending, twisting or turning under load or stress.
112 The plaintiff was working with a 10 to 15-kilogram weight limit, and avoided moving 25‑kilogram bags at work, which had to be done manually. He had help from co‑workers, and his employer was very understanding.
113 On examination, there was tightness and tenderness in the lower thoracic and upper lumbar region and tenderness around the level from T11 to L2.
114 There was tightness and pain on flexion, with restricted extension. Lateral flexion was tight, as was lateral rotation, but less significant than lateral flexion. Straight leg raising was tight, but peripheral reflexes were equal, albeit sluggish. There were no other neurological signs.
115 Dr Kennedy noted the x‑ray of 16 April 2012.
116 Dr Kennedy thought that in the incident, the plaintiff had injuries to the myofascial structure supporting his thoracolumbar spine and specifically a compression fracture.
117 Dr Kennedy thought the plaintiff should continue with a core stretching and strengthening exercise program to increase the functional stability and control of his thoracolumbar spine.
118 In Dr Kennedy’s view, the plaintiff was currently fit to engage in full-time occupational duties but with restrictions in relation to manual handling of loads greater than 15 kilograms or performing repetitive bending, twisting or turning activities under load or stress. This limit restricted the plaintiff’s work capacities and capabilities on the open labour market.
119 On balance, Dr Kennedy thought the plaintiff was likely to have a permanent restriction in relation to the function of his thoracolumbar spine which would affect not only occupational capabilities unrestricted on the open labour market, but the restrictions would also relate to some social, domestic and recreational activities. These restrictions were likely to be permanent and involved repetitive bending, twisting and turning of the thoracolumbar spine under load or stress.
120 Dr Kennedy thought the plaintiff’s prognosis was good, provided he avoided further load or stress on his lumbar spine with any manual handling of loads greater than 15 kilograms, particularly below waist height, or lifting loads greater than 15 kilograms above waist height. He thought the plaintiff’s condition had stabilised.
Investigations
121 A bone density test was carried out on 7 December 2012. Measurements reflected osteopenia and some elevation in fracture risk.
122 There was an x‑ray of the lumbar spine organised by Mr Tamangani in April 2012. The clinical notes set out “? Fall onto back, severe pain, acute injury?”
123 It was reported that there was anterior wedging of the T12 vertebral body with loss of 25 per cent of vertebral body height anteriorly in keeping with a compression fracture. The reporter noted it was difficult to be certain whether that was acute or chronic. There was no sacroiliac abnormality identified.
124 There was a further x‑ray arranged by the plaintiff’s current general practitioner in January 2015.
125 It was reported that there was an anterior wedge compression fracture of T12. There were no significant degenerative changes noted. There was minor intervertebral disc-height narrowing at L5‑S1. There was no abnormal paraspinal soft tissue, and the S1 joints were unremarkable.
126 There was an x‑ray of the thoracic spine in November 2015 organised by Dr Selbas in Mildura.
127 An anterior wedge compression fracture of T12 vertebra was again noted. There was no significant integral change since the prior radiograph from January 2015. Other thoracic vertebral body heights were relatively preserved. There were no significant degenerative changes seen, and no abnormal paraspinal soft tissue.
Overview
128 There is no dispute the plaintiff injured his lower back in the incident, suffering a wedge fracture at T12.
129 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[21] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[21][2006] VSCA 171
Credit
130 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[22]
“… 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.”
[22](2010) 31 VR 1
131 I accept the plaintiff was a witness of truth who presented in a straightforward fashion and was quite prepared to acknowledge improvement in his back condition.[23]
[23]T36
132 There was no criticism of the plaintiff by the defendant save in relation to his evidence that he had difficulty attending the local football because of his back condition when he was able to work long hours.[24]
[24]T33
133 There was no surveillance film of any activity inconsistent with the plaintiff’s evidence and no medical examiner considered he was exaggerating or embellishing his complaints.
134 The real issue in this case is one of range. Whilst it was conceded that there is a discrete locational injury in the mid spine that causes the plaintiff some pain, counsel for the defendant submitted the plaintiff’s application was not even borderline, it was desperately below.[25] It was submitted that it simply did not meet the test.[26]
[25]T4
[26]T32
135 Counsel for the defendant relied on Ashley JA’s comments in Dwyer v Calco Timbers Pty Ltd (No 2)[27] as to what had been retained.
[27][2008] VSCA 260
136 His Honour stated:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[28]
[28](ibid) at paragraph [27]
137 It was submitted the plaintiff clearly had the capacity for full-time unrestricted employment. Further, he had retained the ability to exercise for relatively long periods of walking and swimming and a capacity to watch the football.[29]
[29]T27
138 Counsel for the plaintiff submitted the narrative test had been met. The plaintiff had a chronic pain condition which would impact him permanently and he required ongoing painkilling medication.
139 It was submitted the plaintiff’s relatively young age of thirty-seven was a relevant consideration when assessing his pain and suffering consequences.
140 Reliance was placed on the comments of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd[30] in this regard.[31]
[30][2009] VSCA 181 at paragraph [43]
[31]T34
141 In that case, Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
142 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
143 The Court of Appeal in Haden Engineering Pty Ltd v McKinnon[32] considered what was involved in a serious injury from a pain and suffering perspective.
[32]Supra
144 Maxwell P described the evidentiary basis of the pain assessment will ordinarily comprise the following:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
· (a) what the plaintiff says about the pain (both in court and to doctors);
·(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
·(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
·(d) what the objective evidence shows about the disabling effect of the pain”[33]
[33](ibid) at paragraph [11]
145 The plaintiff describes an annoying, aching, constant lower back pain and pain in the mid-range of his back, with spasms two to three times per day. He has difficulty with prolonged postures and bending.
146 The plaintiff’s treating doctors provide little assistance when assessing the level of the plaintiff’s pain complaints.
147 During 2012, Dr Zanker noted a progressive improvement in the plaintiff’s subjective pain rating. There was subjective score on 26 June 2012 of 85 to 90 per cent normal. It was noted the plaintiff was then keen to return to unrestricted duties. He was still tender in the lower thoracic spine and the midline and was requiring minimal medication for pain.[34]
[34]T29
148 When he last saw the plaintiff in January 2013, Dr Zanker thought he had nearly made a full recovery.[35] He expected in the long term, the plaintiff may experience chronic intermittent low back pain or ache.
[35]T30
149 The plaintiff’s next attendance on a general practitioner for his back was at Tristar nearly two years later.
150 In his March 2015 report, Dr Mohammed noted he was uncertain about the plaintiff’s prognosis and any restrictions, noting the plaintiff had been working full time in his pre-injury duty levels for a long time. This would seem to indicate Dr Mohammed did not think work was a problem for the plaintiff.
151 Further, Dr Mohammed was uncertain as to whether there was any interference with the plaintiff’s domestic and social activities as a result of his back condition.[36]
[36]T30
152 In November 2014, the plaintiff complained to Dr Kennedy of pain 6 out of 10 on average. On examination, Dr Kennedy found no radiation or paraesthesia. He noted there were some restricted sitting and standing tolerances.[37]
[37]T30
153 The plaintiff’s complaints to Dr Elder in September 2014 were in similar terms.
154 Whilst I accept the plaintiff has ongoing back pain and difficulty sleeping as a result, his level of complaint is not to the higher end of the range.
Treatment
155 The plaintiff has limited treatment from general practitioners for his back complaint. Early on, he had physiotherapy treatment. Until recently, there has been no referral to an orthopaedic surgeon.
156 Medication, massage, walking and pool exercise form the plaintiff’s present treatment regime.
157 The plaintiff has been taking Tramadol regularly since October 2014. It was submitted this was a serious consequence in the terms Dodds Streeton JA described in Kelso v Tatiara Meat Company Pty Ltd. [38]
[38][2007] VSCA 267; T33
158 In that case, Her Hounour stated that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[39]
[39](ibid) at paragraph [199]
159 However, I do not consider that the present case is one where the plaintiff is endures pain at the level Her Honour described.
Work
160 Counsel for the plaintiff submitted there were serious consequences in terms of employment.
161 Whilst the plaintiff was able to work full time, he was doing so with difficulty – having problems with prolonged postures, having to take breaks, needing to stretch, having to rest when he arrived home and exercise and have massage in his spare time to increase his spinal mobility.
162 Reliance was placed on Dr Kennedy’s view that the plaintiff would be restricted in his occupational capacities on the open market.[40]
[40]T37; State of Victoria v Glover [1998] VSCA 93
163 In my view, however, any employment consequences are not more than significant or marked.
164 There is no suggestion the plaintiff left work with the defendant because of any back injury. He worked full time on normal duties after a short time off work until he had a dispute with his sister-in-law. As a result thereof, he decided to leave Swan Hill and take up another job in Mildura.
165 The plaintiff did not take up the Mildura job with the current employer because it involved lighter work. It suited him to have a career change and a job which provided a car. Save for three weeks where he worked elsewhere in a a very heavy job where he could not cope, the plaintiff has been able to continue with his current employer performing his normal duties, currently working nine hours per day.
166 Since being cleared for unrestricted full-time duties in September 2012, the plaintiff has not worked under any medical restrictions in terms of the duties he is able to perform. Further, the plaintiff has not required any time off work since that time because of back pain.
167 The plaintiff’s present general practitioner does not consider there are any work difficulties, noting in March 2015 that the plaintiff had been working full time at pre-injury duty levels for a long time which would seem to indicate that that it is not a problem for him.[41]
[41]T30
168 It appears from Dr Kennedy’s report that he considers the plaintiff is able to cope with his job with the current employer, with a 15-kilogram lifting restriction, and he does not mention any expected deterioration in the plaintiff’s condition.[42]
[42]T32
169 Whilst Dr Kennedy imposed some restriction on the plaintiff’s work, the lifting of 15 kilograms is not a significant one.
Other activities
170 Counsel for the plaintiff submitted that there were very considerable consequences in terms of the various activities and hobbies described by the plaintiff in his affidavits.
171 Those consequences included difficulty sleeping, the inability to go on long drives, restricted ability to do housework and gardening, difficulty playing golf, riding a trail bike and engaging in water sports.
172 I accept that with his back pain, the plaintiff may have difficulty performing heavy housework and gardening tasks. At times, he may have pain when socialising.
173 Whilst he may have difficulty on long drives, the plaintiff is still able to drive from Mildura to Melbourne, taking breaks on the way.
174 It is not suggested the plaintiff participated in the sporting activities on other than a casual basis. He is still able to regularly go for long walks and also exercise in the pool.
175 In my view, these consequences in terms of the plaintiff’s social, domestic and sporting life are not such that collectively or alone could be described as “serious”.
176 Taking into account all the evidence, I am not satisfied the plaintiff’s spinal impairment has consequences which, considered as a whole, satisfy the statutory test of seriousness.
177 Accordingly, the plaintiff’s application is dismissed.
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