Ryan v Fonterra Australia Pty Ltd

[2016] VCC 771

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-00352

ANTHONY GERALD RYAN	Plaintiff
v
FONTERRA AUSTRALIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Warrnambool
DATE OF HEARING:	6 and 7 June 2016
DATE OF JUDGMENT:	9 June 2016
CASE MAY BE CITED AS:	Ryan v Fonterra Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 771

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – injury to lower spine – pre-existing lower back problems – pain and suffering consequences only – whether consequences “very considerable”

Legislation Cited:     Accident Compensation Act 1985, s134AB

Judgment:                 Leave to the plaintiff to issue proceedings claiming pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Fehring with Mr G Pierorazio	Stringer Clark
For the Defendant	Mr R Middleton QC with Ms D Manova	Thomson Geer

HIS HONOUR:

Preliminary

1       Mr Ryan suffered problems in his lower back from time to time in the course of his employment over a long period with the defendant (“Fonterra”).  On 9 January 2011, he says he suffered a significant back injury when he had to lift and carry a heavy folded cardboard box.  He was able to continue at work, although since 2014, has been working in a relieving capacity, standing in for other employees.

2       Mr Ryan has had conservative treatment, including physiotherapy.  He claims a range of recreational activities, in particular fishing, have been lost or curtailed.

3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Mr Ryan’s employment on 9 January 2011.

4       The body function said to be lost or impaired is the lower spine.

5 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.

6       Mr Ryan was the only witness called to give evidence and be cross-examined.  In addition, his affidavits and that of his partner, Ms Lake, various treating and consultant medical reports and radiological investigations were tendered into evidence.  I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. 

7 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.

Relevant background

8       Mr Ryan was born in 1963 and is fifty-two years old.  He lives with his partner, Ms Lake.

9       Mr Ryan started work with Nestlé in 1979 as a factory worker.  Eventually, Nestlé became the defendant, Fonterra.  He started work as a factory hand.  Eventually, he became a box fill operator.  The work was often heavy and he suffered problems in his lower back from time to time.  There was an incident in 1997, when he suffered some back pain and he filed a Claim for Compensation.[1]  Notwithstanding, he was able to continue his work.  There was a further incident in 2000, when he said he had pain not only in his lower back but down his left leg.  Again, he filed a Claim for Compensation.[2]

[1]Defendant’s Court Book (“DCB”) 1 – 2

[2]DCB 5 – 6

10      Mr Ryan has owned boats over the years and has been a keen fisherman.  He fished out of Warrnambool and would catch a range of fish. 

11      He is a supporter of the Carlton Football Club and would travel to Melbourne to watch them play from time to time.  He enjoyed a range of usual recreational and domestic activities.

The injury and its consequences

12      On 9 January 2011, Mr Ryan was working on a machine which assembled large cardboard boxes.  The machine was defective and at one point he had to pick up a large flat box.  In the course of twisting and manoeuvring the box, he felt pain in his lower back.  He lodged a Claim for Compensation a week or so later.[3]  The path of treatment which followed this injury is somewhat difficult to follow, although it would seem in January 2011, he went to see a physiotherapist, Mr B Hoekstra, who ordered an x-ray of the lower spine.[4]  This showed “suspicious degenerative changes” at the facet joints.  In evidence, he said he thought he had some time off work, but returned within a relatively short time to his normal duties.  According to his affidavit,[5] he continued to experience symptoms in his lower back.

[3]Plaintiff’s Court Book (“PCB”) 27 – 28

[4]PCB 23A

[5]PCB 4

13      On 31 August 2012, there was a further incident at work where he was making up smaller boxes and when he slid one off a pallet, there was an exacerbation of his back pain.  He lodged a further Claim Form.  Again, he does not appear to have seen a doctor but went for physiotherapy treatment with Mr Toby Pettigrew, who he first saw on 10 January 2012.[6]  He gave a history to Mr Pettigrew of the first incident of January 2011 where he said he had a few weeks off work and that the pain settled to some extent with some ongoing symptoms and stiffness.

[6]PCB 15

14      To Mr Pettigrew, he complained that standing or sitting in his boat aggravated the back pain.  He remained under Mr Pettigrew’s care on and off through 2013 and 2014.  Mr Pettigrew’s clinical notes indicated that he attended on about thirty-eight occasions over that period.[7]

[7]Exhibit C

15      In June 2013, Mr Pettigrew recorded that Mr Ryan said he was “feeling pretty good at the time” and was managing an exercise program at home, including walking.

16      In May 2014, he attended again after another incident when he felt sharp pain getting off a bench.  There were symptoms into the legs.  Mr Ryan complained of constant backache aggravated by a range of factors, including sitting and bending.  He said he found fishing and vacuuming would aggravate his back pain.  Mr Pettigrew thought he had suffered a lumbar disc injury (probably L5‑S1) in the January 2011 incident which left him with chronic lumbar disc dysfunction.

17      At some time in 2012, Mr Ryan went to a general practitioner, Dr Nguyen, who arranged a CT scan of the lower spine in September 2012.[8]  That scan showed:

“At L4-5 a very small posterocentral and slightly right sided prolapse is present lying adjacent to the right L5 root.

The L5-S1 disc is degenerate but demonstrates a normal contour.  Canal diameter is normal.

Conclusion – a small posterocentral and right sided L4-5 prolapse is demonstrated.”[9]

[8]PCB 24

[9]PCB 24

18      Dr Nguyen referred Mr Ryan to Mr Roy Carey, orthopaedic surgeon, of Melbourne, who he saw on 20 September 2012.[10]  Mr Ryan complained of an episode of upper lumbar back pain ten years before, which had completely healed, and then the onset of lower back pain in the incident of January 2011.  He described pain going down the left leg to the knee.  He told Mr Carey that the pain had “settled to a great degree (never completely though) and he returned to full time normal work”.[11]  He described another incident in 2012 of dragging boxes with the onset of further pain.  At the time he was receiving physiotherapy treatment once a week but not taking medication.  He said his sleep was disturbed and that he was stiff in the mornings.  He noted the original x-ray and recent CT scan and said he thought that the recent episode of back pain would settle and suggested a strengthening exercise program.  Mr Carey said:

“If the situation does not settle within the next three or four months under the above regime then of course I am happy to see him again to go ahead with MR etc etc.”[12]

[10]DCB 16 – 17

[11]DCB 16

[12]DCB 17

19      It would seem Mr Ryan went to see Dr Baldam, general practitioner in December 2012[13]. The next consultation relating to his back at that doctor’s clinic was not until May 2014[14]. On that day he described the bench incident. Dr Baldam recorded he was restricted on examination. A workcover certificate was issued. In July 2014, another doctor at the same clinic arranged an MRI scan[15]. This noted “mild degenerative changes at the lumbar sacral spine most marked at L4-5 and L5-S1 levels”. The last consultation with Dr Baldam was in October 2014. Mr Ryan complained of ongoing pain in his lower back which affected his sleep[16].

[13]PCB 13

[14]PCB 13

[15]PCB 25-6

[16]PCB 14

20      Up until 2014, Mr Ryan remained at work on normal duties.  In that year, he took up a job as a “reliever”.  This was a full-time position where he would relieve staff who were sick or on holidays.  According to his affidavit, he took the job because he thought it would be easier on his back.  He says the work is not as strenuous and he is able to walk around the factory.  In the course of cross-examination, he described some of the duties he was now performing which included using a vacuum lift to raise and manoeuvre bags containing powder and weighing 25 kilograms. He would then tip them into a hopper.  He is able to do this, often emptying 20 or more bags at a time, but is also able to walk around and stretch. 

21      According to a Certificate of Capacity of Dr Baldam, he has been fit for normal duties since May 2014.[17]

[17]DCB 14

22      Mr Ryan’s treatment by doctors has been sparse.  He eventually came under the care of Dr Joanne Ryan who took over his management from Dr Baldam, whom he first saw in March 2015.  According to her report, only in February 2016 did he attend complaining of back pain.  She concluded he had longstanding lower back pain radiating into the buttock and at times, the leg.  She referred him in 2016 to Dr Murray Grave.

23      Mr Ryan has seen Dr Grave several times this year, described to him the January 2011 incident and the various other work-related incidents which have aggravated his back pain.  According to the history provided, he claimed to see a general practitioner the day after the incident and then had three or four months’ physiotherapy with Mr Hoekstra.  He complained to Dr Grave of ongoing back pain with pain extending into the buttock and thigh.  He said his leg felt like a “dead leg”.  The pain was aggravated by sitting, standing and twisting and his back was stiff in the morning until he had a shower.  He told Dr Grave he was taking Comferol Forte for pain and temazepam to assist with sleep.  In cross-examination, he accepted that he had been taking temazepam for a period, including before 2011, because he had problems with sleeping while on shift work.  He said that he enjoyed fishing but “if he does go fishing it may take him four days to recover from being in a boat due to a flair (sic) [up] in back pain”.[18]  He described the pain as 8 out of 10.  Dr Grave referred to the MRI scan of July 2014[19] which he said showed mild degenerative changes at L4-5 and L5-S1 with bulges at those levels and a small annular tear at L5-S1.  Physical examination showed a reasonable range of movement.  Dr Grave thought Mr Ryan would benefit from a comprehensive exercise program.

[18]PCB 17B

[19]PCB 25 – 26

24      On the last occasion he saw him in May 2016, Dr Grave increased the dosage of pain-relieving medication and suggested clinical Pilates with a physiotherapist.  That suggestion has not been taken up.

25      Aside from the physiotherapy treatment by Mr Pettigrew, Mr Ryan has been treated on a few occasions at work by another physiotherapist provided by his employer.  Further, there has been a dispute between Mr Ryan and the insurer as to payment of physiotherapy sessions and ongoing medication.  This was resolved at conciliation[20] in September 2014, although there is currently an application for questions to be referred to a Medical Panel in relation to the provision of physiotherapy and medication.

[20]Exhibit B

26      According to Mr Ryan’s affidavit, he complains of the following consequences of the spinal injury:

·        He has constant pain in the low back radiating down the left thigh to the knee.

·        The pain is aggravated by standing or sitting for longer periods.

·        His sleep is affected by pain and he takes medication to assist.

·        He takes over-the-counter pain-relieving medication and has taken Endone on occasions.

·        Dr Grave has prescribed amitriptyline.

·        He has owned boats and has been a keen fisherman over the years.  He has a smaller boat and another, 5.6 metres long.  Although he still owns both boats, he says he has only been out fishing on six or so occasions since the injury.

·        He and his partner would holiday in South Australia, but every time he drives any distance, he has to take significant rest breaks.

·        He finds it difficult to sit and stand when going to the football.

·        He cannot go to the cinemas as before.

·        He is restricted in being able to carry out a range of domestic duties, including mowing the lawn, general maintenance, vacuuming and mopping and lifting weights, including firewood.

·        He does a range of strengthening exercises at home twice a day, and has a roll pad.  Occasionally, he uses an exercise bike.

·        He says he is restricted in what he can do at work and has changed his job to that of a reliever.

·        His intimate relationship with his partner is affected.

27      His complaints of back pain and the effect upon his domestic activities is confirmed by his partner, Ms Lake.[21]

[21]PCB 11 – 12

Consultant medical opinions

28      Mr Ryan was examined by Mr Peter Scott, orthopaedic surgeon, in May 2015.  He received a history of the incident of January 2011, and of the subsequent further aggravating incidents at work.  He described the MRI of 2014 as showing multi-level degenerative disc bulges, particularly at L4-5 and L5-S1 without evidence of neural compromise.  Physical examination was relatively straightforward.  To Mr Scott, Mr Ryan said he was not taking any medication.  Mr Scott diagnosed:

“Recurring low back pain aggravated under the conditions detailed in the body of this report, with aggravation of multi-level disc degenerative processes of the lumbosacral spine with intermittent lumbosacral nerve root irritation.”[22]

[22]DCB 23

29      As to prognosis, Mr Scott said that he would likely experience recurring backache and left limb symptoms, in particular, if he was engaged in repetitive bending or lifting of more than 10 or 15 kilograms.

30      Mr Ryan was examined by Mr Thomas Kossmann, orthopaedic surgeon, in February 2016.[23]  Mr Kossmann noted a number of incidents producing back pain and, in particular, that of 8 January 2011.  Mr Ryan presented with ongoing lumbar back pain which affected his sleeping.  He said that the condition had a “temporary effect on his social, domestic and recreational activities.  He shares the household chores with his partner.  He enjoys going fishing.”[24]

[23]The report is dated 24 February 2015 which I accept is an error

[24]PCB 19

31      Mr Kossmann diagnosed Mr Ryan as suffering “discogenic and mechanical back pain on the basis of degenerative changes [lumbar spine] affecting the discs at the L3-4, L4-5 and L5-S1 levels, as well as the facet joints at the L5-S1 level”.[25]  He thought the prognosis was guarded and that he was likely to suffer from flare-ups of back pain from time to time.  He thought those flare-ups would require medication, physiotherapy, hydrotherapy and possibly acupuncture.  There was a risk of surgery if the pain became intractable.  He thought Mr Ryan had a work capacity as a factory hand, although “time will tell if he will be unable to continue with such work”.  He said Mr Ryan was restricted in relation to his employment and should avoid walking for long distances, going up and down stairs and inclines, kneeling, squatting or carrying items weighing more than 5 kilograms.

[25]PCB 20

Conclusions

32      In submissions, Mr Middleton, for the defendant, emphasized the modesty of attendances by Mr Ryan on doctors and the lack of any real medical treatment, aside from some physiotherapy.

33      Mr Middleton said Mr Ryan was very vague in the histories that he provided to doctors and in his evidence to the Court.  He was confused and uncertain about the episodes of back pain prior to 2011, and remained so in relation to the progress of his lower back after that date.

34      Mr Middleton emphasised that Mr Ryan has worked in the same employment, on a full-time basis, working long shifts through to the present time, although in a different capacity to the work he was undertaking when he sustained the injury.

35      He submitted I should not accept Mr Ryan’s complaints of being unable to go fishing.  That complaint was inconsistent with the history to Mr Kossmann, and in the event he was so passionate about fishing, he would have sought out some additional treatment so as to improve his back to enable him to resume that activity.  Mr Middleton said that it was difficult to accept the need for physiotherapy when, according to Mr Ryan’s evidence, it gave him little relief.

36      Mr Middleton said the radiology was only modest and the physical examination by most doctors revealed little restriction.  His complaints of sleep disturbance were more related to his shift work and he had been taking medication before 2011 to assist in that regard.  He said I should reject the comments of Mr Kossmann as to the risk of surgery or reduction in work activities as there was no basis to suggest either eventuality was likely to occur.

37      Of significance, he said that it was only when Mr Ryan was referred to Dr Grave this year that there had been any real treatment and medication.  He described this as the commencement of a “flurry of activity” which was related to the forthcoming court case. He said it was unusual given the modest radiology, limited treatment in the past and the fact that he had been able to remain in full-time work.

38      In summary, said Mr Middleton, the consequences to the plaintiff did not meet the “very considerable” test.

39      In this, as with many leave applications, much depends upon the veracity of the evidence, both in affidavit form and in cross-examination, of the plaintiff.  When he was asked about dates and times, Mr Ryan was frequently vague and uncertain.  He could not remember details of the treatment which had been provided, modest as it has been, and was unreliable about the extent to which he had been prescribed and taken medication.

40      However, I am of the view Mr Ryan was an honest witness doing the best he could.  He is a man of limited education and not particularly sophisticated.  He found the atmosphere of the Court in cross-examination difficult. I assessed him as doing his best to honestly answer questions but at times became confused and was uncertain.   Overall, I find I am able to rely upon his claims, in particular, of ongoing low-back pain since January 2011 and a restriction on a range of activities.  I did not detect any evidence of exaggeration and nor did any of the doctors who have examined and treated him.

41      I accept that the pathology is modest and the various scans show moderate disc degeneration at the lower two levels, without neural compromise.  However, radiology is only one tool to assess the significance of a lower spinal injury.

42      As Mr Middleton submitted, Mr Ryan has had little in the way of treatment over the years, in particular, from doctors.  It was put to him that if his back pain had been so significant, he would have sought further and better treatment, in particular given his claim that the physiotherapy was not of much assistance. However, he is, in my view, the type of person who would not actively seek out alternative forms of treatment, or other doctors.  He was simply compliant with the physiotherapy and the exercise regime although it was not providing any great benefit.

43      True it is that he has remained in full-time employment, often working long hours for Fonterra.  However, I accept that his job as a reliever is less strenuous as his previous work.  I further accept his explanation that his employer is sympathetic and made concessions to enable him to stay in his job.  He says, and I accept, that if he lost his job he would have very real problems obtaining other work given his back pain, and limited work experience outside factory or manual jobs.

44      I accept the opinions of most of the doctors that he has suffered an aggravation of pre-exiting degenerative disease in the lower spine at L4-5 and L5-S1. This is evident on the radiology. There is bulging at these two levels and an annular tear. I accept the opinion of Mr Scott of an aggravation of multi-level disc degenerative process of the lumbosacral spine with intermittent lumbosacral nerve root irritation. I further accept his prognosis that the back pain and left leg symptoms are likely to continue and that he should avoid repetitive activities in particular lifting and bending, and carrying weights of more than 15kgm.

45      It is clear Mr Ryan suffered back pain in a number of incidents in the past, and I should therefore assess the aggravation in the 2011 incident and determine whether the consequences arising alone from that incident meet the statutory test.

46      I accept his complaints that he had ongoing lower back pain which became significant after the January 2011 event.  I accept his complaints that fishing was a passion for him and he is very limited in being able to pursue that activity at the present time.  Likewise, his difficulties with travelling long distances.  These were important pastimes to him, and their loss is significant.  I am satisfied that the condition is permanent, in that the symptoms will last for the foreseeable future.

47      In these circumstances, I am satisfied that the consequences to Mr Ryan, when viewed objectively, do meet the “very considerable” test that the legislation requires.

48      I shall make consequent orders.

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