Sassine v Maribyrnong Superstore Pty Ltd
[2018] VCC 310
•23 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00771
| SIMON JOSEPH SASSINE | Plaintiff |
| v | |
| MARIBYRNONG SUPERSTORE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 March 2018 | |
DATE OF JUDGMENT: | 23 March 2018 | |
CASE MAY BE CITED AS: | Sassine v Maribyrnong Superstore Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 310 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages and pecuniary loss damages – concession in relation to pain and suffering – injury to the low back – reliance upon paragraph (a) of the definition of serious injury – specific injury on particular day – plaintiff under 26 years of age as at date of injury – s134AB(38)(e)(i) and (ii) – method of calculation in relation to economic loss – whether psychological or psychiatric consequences also present – whether of burden of proof discharged.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr J Valiotis | Antony, Sdrinis & Co |
| For the Defendant | Mr J Plunkett | Minter Ellison |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s138(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff is seeking leave to bring proceedings in respect of both pain and suffering damages and damages for loss of earning capacity, but, as shall be discussed, there was a development in this regard. In any event, the plaintiff relies upon sub-paragraph (a) of the definition of serious injury found in s134AB(37) of the Act. The injury is one to the low back and shall hereinafter be referred to as “the injury”. Whilst the draft Statement of Claim refers to repeated manual handling and a particular incident, the present application is effectively based solely on lifting on a particular day, namely 29 April 2014. It is not alleged that any further injury was suffered after that date or into the period covered by the Workplace Injury Rehabilitation and Compensation Act 2013. In any event, what occurred on 29 April 2014 shall henceforth be referred to as “the accident”.
2 A slightly unusual feature of this case is that the plaintiff was, as at the date of the accident, 25 years of age. Accordingly, and as shall be discussed, s134AB(38)(e)(i) and (ii) of the Act apply and consideration of the six year “window”, together with other concepts set out in s134AB(38)(f) of the Act, is not required in relation to pecuniary loss damages.
3 Shortly after the commencement of the case, it was made clear that the plaintiff’s entitlement to a certificate in respect of pain and suffering damages was conceded – see Transcript (hereinafter referred to as “T”) 11 and 12. Hence, it was conceded that the plaintiff had and continues to have pain and suffering physical or organic consequences of sufficient magnitude to be properly described as being more than significant or marked and as being at least “very considerable”. Such a concession carries with it a further concession that such consequences are permanent within the meaning of the Act in that they will persist for the foreseeable future. It was also conceded that the plaintiff’s organic injury has affected his earning capacity and that he could not go back to his pre-injury duties – again, see T11.
4 Mr A Ingram of counsel with Mr J Valiotis of counsel appeared on behalf of the plaintiff. Mr J Plunkett of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the contents of two affidavits as being true and correct. The balance of the evidence was documentary in nature and tendered either by consent or without objection.
Factual background
5 The plaintiff is now aged 25 years, he having been born in March 1992. He is a single man, but has been in a relationship with the same young woman for approximately six years. He was educated to Year 12 level, and then undertook a course at Broadmeadows TAFE College as a real estate agent representative. He subsequently obtained a licence in relation to that industry. He worked in a sales capacity for approximately six months, but did not greatly enjoy the work. Thereafter he worked in sales for Optus for a period of some three years, before making a return to the real estate field for another six months.
6 He then commenced operating his own commercial cleaning business, doing sub-contract work effectively obtained from a relative by marriage, Mr Raymond Eid. The plaintiff’s business obtained cleaning work at the Windsor Hotel (2.00am to 5.00am, 7 days per week) and the Royal Hotel, Essendon (7.00am to 9.50am, 7 days per week) – a total of 38.5 hours each week. The commencing date of this work would appear to be in late October 2013. It would further appear that, at the time of the accident, the plaintiff had ceased performing the contracts at the Windsor Hotel and the Royal Hotel, but Mr Eid was in the course of organising further cleaning contracts for him – see, for example, T38. In any event, while performing the cleaning work, the plaintiff had also obtained part-time work with the defendant, which traded as a Harvey Norman store in Maribyrnong. He worked there as a goods receivable clerk, which involved both desk work and some manual work involving the unloading of stock. Having commenced with the defendant on 28 February 2014, the plaintiff was injured on 29 April 2014 when lifting a heavy box from a trolley onto his workbench.
The plaintiff as a witness
7 I accept the plaintiff as a witness of truth. I note that Dr Nathan Serry, consultant psychiatrist, examining the plaintiff at the request of his solicitors, described the plaintiff as pleasant, cooperative and a reasonably clear and straightforward historian. Dr John Gill, consultant general and forensic psychiatrist, examining the plaintiff at the request of the defendant, also described him as very pleasant and cooperative. Mr Clive Jones, orthopaedic surgeon, also examining the plaintiff on behalf of the defendant, referred to him as being a genuine and agreeable young man. Professor Stephen Davis, consultant neurologist, seeing the plaintiff at the request of his solicitors, also referred to him as being pleasant and cooperative. Professor Geoffrey Littlejohn, rheumatologist, also examining the plaintiff at the request of his solicitors, stated that the plaintiff gave a clear history, exhibiting no abnormal pain behaviour. Dr David Middleton, occupational health consultant, who examined the plaintiff at the request of his solicitors, described him as a straightforward person who answered all questions honestly and exhibited no functional behaviour. I agree with all these observations. The impression created by the plaintiff in the witness box was also one of being pleasant, genuine and cooperative. I do not regard his credit as being in any way damaged. It is also to be remembered that it has been conceded that he has a permanent physical injury which satisfies the “very considerable” test and that the injury was of sufficient magnitude for the plaintiff to undergo back surgery at the age of 22 years. This shall be discussed shortly.
The state of the plaintiff’s health prior to the injury
8 An MRI scan of the plaintiff’s lumbosacral spine performed in October 2014 revealed the presence of degenerative disc disease. Thus, despite his young age, the plaintiff may have had some pre-existing degenerative changes in his lumbosacral spine. However, if that be so, I accept that such changes or disease were asymptomatic. In her report of 16 July 2015, the plaintiff’s treating general practitioner, Dr Shaheen Begum, stated that, from the plaintiff’s medical records, he has had no history of back pain prior to 29 April 2014. She noted that the plaintiff had been a regular patient at the clinic since 1999. I accept that he was in good health and had not previously suffered any symptoms associated with his lumbosacral spine or of any other injuries or illnesses of significance.
The injury, its treatment and diagnosis
9 The plaintiff suffered sharp pain in his lower back when lifting at work on 29 April 2014. He rested and it would seem from the history taken by Dr Begum that he then was off work for a couple of weeks and sought treatment from a physiotherapist. As the occurrence of injury and its serious nature are admitted facts, I will not go through the details of early treatment. Suffice to say that the plaintiff struggled on at work, taking pain relieving medication and performing light duties. Radiological examinations were carried out. The plaintiff ultimately ceased all work in September 2014.
10 Upon referral from Dr Tong Choon, from the same clinic as Dr Begum, the plaintiff was seen by Mr David de la Harpe, orthopaedic surgeon, on 9 October 2014. As I understand it, the plaintiff’s claim had been accepted and Mr de la Harpe was seeking the approval of the defendant in relation to the performance of an L5-S1 microdiscectomy. Approval of this was obviously forthcoming and on 7 January 2015 Mr de la Harpe performed a right L5-S1 microdiscectomy. All went well with the operation and the early indications in relation to pain relief were good.
11 However, as early as 23 February 2015 the plaintiff was concerned in relation to numbness in his right leg and the return of some symptoms. A report from Dr Begum of 16 July 2015 indicated that the plaintiff was still suffering from numbness, pain and stiffness and that he required ongoing physiotherapy and psychological support. A later report from Dr Begum of 17 May 2017 refers to the plaintiff’s reoccurring chronic back pain and numbness in the right leg. A letter of Dr Begum of 28 February 2018 refers to the fact that the plaintiff had been her regular patient since the injury. He had had physiotherapy and attended a pain management clinic regularly since 2014. However, his pain had not improved much and his back condition had deteriorated. He had pain radiating into the right side of the buttock area and leg, causing limping and numbness. He was also suffering from depression and anxiety. Dr Begum had referred the plaintiff back to Mr de la Harpe, who saw him again on 5 June 2017. In a brief report, Mr de la Harpe noted that the plaintiff was still getting some intermittent back pain and persisting numbness down the leg, but no sciatica. A further MRI scan was performed. This revealed post-operative changes at L5-S1 to the right of the mid line with low grade enhancement of the anterior epidural space. There was disc desiccation and a small residual disc protrusion resulting in contact with the right S1 nerve root.
12 The plaintiff has also been a patient of Dr Christopher Woodgate, consultant in rehabilitation and pain medicine and a member of the Melbourne Pain Group. Dr Woodgate has reported to Dr Begum on four occasions, the earliest being on 9 June 2017. The diagnosis of Dr Woodgate was of persistent back and lumbar pain in the setting of a workplace injury and prior surgery. He was referring the plaintiff to a pain management program at Dorset Rehabilitation Centre. He also felt that the plaintiff needed some further psychological input. Dr Woodgate reported to Dr Begum again on 13 July 2017. Dr Woodgate had placed the plaintiff on Amitriptyline, to which he seemed to have responded well. He was feeling more positive and sleeping better, but his pain remained largely unchanged. There was a change to his medication. The plaintiff was to see a psychiatrist at the Melbourne Pain Group and be assessed for a pain management program. When Dr Woodgate saw the plaintiff again on 20 September 2017, he was significantly better. He had been attending the pain management program and enjoying it. He was to be reviewed in a further three months. The next brief report from Dr Woodgate is that of 7 December 2017. The plaintiff was making further progress, although getting dry mouth and nausea from his medication. He had started to look for work, but was having difficulties in that regard.
13 The plaintiff was also being treated in relation to psychological or psychiatric problems, but I will refer to that when considering any consequences of that kind, which are not to be taken into account.
14 The plaintiff has also been seen for medico-legal purposes. Professor Geoffrey Littlejohn, rheumatologist, saw the plaintiff at the request of his solicitors on 13 July 2016, reporting six days later. Professor Littlejohn diagnosed an injury to the lumbar spine in the context of the work activity, this resulting in surgery. He also felt that clinically the plaintiff had features of a chronic pain syndrome characterised by emotional distress, poor quality sleep, high levels of fatigue and intermittent cognitive dysfunction. He had sensory symptoms in the right leg consistent with referred pain and sensitisation emanating from the lumbar spine. Part of Professor Littlejohn’s report was directed towards an assessment of permanent impairment. Overall he was of the view that the plaintiff now had a mechanically stable lumbar spine not requiring further surgical intervention, but was suffering from chronic pain syndrome. He thought that the plaintiff could perform a number of employment activities that did not cause excessive strain to the lumbar spine, agreeing with Mr de la Harpe’s comment that the plaintiff had a present and future capacity for work that did not involve manual labour, but was confined to sedentary duties. Professor Littlejohn thought that the plaintiff’s former skills in the sales area should be the focus of his re-employment.
15 Professor Littlejohn saw the plaintiff again for a further report on 19 July 2017. The plaintiff was complaining of ongoing low back pain, mainly in the right side of the low lumbar area and into the right buttock and outer leg. The pain was described as being sharp and heavy and rating about 7 out of 10. More severe pain was radiating further down into the right leg and lasting up to 30 minutes, this occurring approximately daily. There was also persisting right leg numbness. The plaintiff had also had psychological issues over the year since Professor Littlejohn had last seen him. By way of medication, the plaintiff was taking Endone, Nurofen Zavance, Panadol Osteo, Endep and Kalma. The plaintiff indicated that he was leading a fairly sedentary life. He exhibited no abnormal pain behaviour. Professor Littlejohn thought that the plaintiff had a persisting chronic pain syndrome which was quite severe and which had disabled him from work. He felt that the plaintiff’s current symptoms precluded him from doing a wide range of activities which he had been trained to do. He also thought that, as at the date of examination, the plaintiff would find it difficult to perform most routine work activity. His future capacity would be confined to sedentary duties. Given that the plaintiff was about to commence a pain management program, Professor Littlejohn found it difficult to be specific about the long term prognosis.
16 Professor Littlejohn reported for the final time on 17 January 2018, having examined the plaintiff on that day. The plaintiff complained that his back pain had gradually worsened and was now severe and similar to when it first occurred. There were frequent flare-ups. There was also persisting numbness in the right buttock and outer aspect of the right upper and lower leg down to the outer foot. He continued to have high levels of anxiety. Since last seen, he had completed the pain management course, but there had been no change in his pain. Whilst he had developed some better ways to manage flare-ups, overall he felt that the program did not really influence his current problem. He was seeing a psychologist, Ms Dayana Noor. He was taking Kalma, Endone, Nortriptyline and Nurofen. He was trying to exercise daily. Professor Littlejohn expressed the opinion that the plaintiff had clinical features very similar to those previously noted, but increased pain in the right buttock and posterior leg area. He thought that the plaintiff had very significant pain and dysfunction in the right low lumbar and buttock region, as well as in the right leg, and segmental dysaesthesia in the right lateral leg and foot region, but no objective evidence of right S1 radiculopathy. Professor Littlejohn thought that the plaintiff’s most significant problem was that which related to his chronic pain syndrome, which was severe. He was of the view that the plaintiff’s current symptoms continued to preclude him from doing a wide range of activities. He did not believe that the plaintiff could be engaged in gainful employment, given his injuries and subsequent chronic pain syndrome. He thought that psychological factors were playing a significant role in that syndrome.
17 Professor Stephen Davis, neurologist, has reported to the plaintiff’s solicitors on two occasions. The earlier was on 12 July 2016. Professor Davis took a comprehensive history. As at this time, the plaintiff commented upon some of the successful aspects of the surgery, but stated that his main concern was persisting numbness over the back of the right leg, including the right thigh, calf and outer aspect of the right foot. He was also depressed. Professor Davis was also focussing some attention on a permanent impairment assessment. The plaintiff needed to be strongly encouraged and reassured that he had made an excellent recovery from the surgery. He was certainly employable, but with reservations about heavy manual work. Professor Davis thought that some form of office work would be appropriate.
18 Professor Davis saw the plaintiff again, reporting to the plaintiff’s solicitors on 23 June 2017. The plaintiff had suffered recurrence of back and right leg pain and felt as if he was “going back to square one”. Professor Davis noted the recent MRI scan of 18 June 2017, which indicated the post-operative changes at L5-S1, disc desiccation and a small residual disc protrusion resulting in contact with the right S1 nerve root. Professor Davis commented that the plaintiff was symptomatically much worse than when he had previously been seen. However, there was no evidence of wasting or weakness of the calf muscles and the like. Professor Davis thought that the plaintiff fell into the category of “failed back surgery”. He stated that this was not to say that there was not a genuine pain syndrome. He thought that the plaintiff had an ongoing pain syndrome involving both physical and psychological factors. He also thought that the plaintiff was employable, and would be capable of working in a light duties capacity “from the neurological viewpoint”.
19 Dr David Middleton, occupational health and rehabilitation consultant, provided an extremely lengthy report to the plaintiff’s solicitors on 26 February 2018. The conclusion of Dr Middleton, who was essentially directing his report towards the plaintiff’s capacity for employment, was that theoretically he had some capacity to perform sedentary work. However, taking into account a large number of factors such as his incapacity, age, education, experience and the like, the plaintiff’s capacity to procure and maintain such employment was negligible. It was also the opinion of Dr Middleton that the plaintiff’s work-related injuries were currently precluding him from engaging in gainful employment. He has no current work capacity.
20 Mr Thomas Kossmann, orthopaedic surgeon, has seen the plaintiff at the request of his solicitors on three occasions. He first reported on 24 August 2016. He diagnosed discogenic mechanical back pain at L3-4 and L5-S1, with post-operative numbness in the right leg along the L5-S1 dermatome. He considered the plaintiff’s prognosis to be poor, and that he would continue to suffer from pain. He would also experience numbness from the L5-S1 dermatome for the rest of his life. Further surgery might be required. In the opinion of Mr Kossmann, the plaintiff had no work capacity for any employment which was physically demanding, which required him to walk long distances or on uneven ground, or up and down stairs and the like. The plaintiff was precluded from employment involving kneeling, squatting or carrying heavy items weighing more than 5 kilograms. He had a work capacity for sedentary employment only. He would not be able to return to the type of work that he had been doing, either with the defendant or in his own cleaning business.
21 Mr Kossmann reported again on 19 June 2017. He had access to the MRI of 18 June of that year. His diagnosis on this occasion was of failed back surgery syndrome, along with pain and movement restrictions of the right hip, most likely caused by the lumbar spine condition. He considered that the recent MRI showed that the plaintiff was suffering from post-operative changes at L5-S1 to the right of the mid line with low-grade enhancement of the anterior epidural space. There was also disc desiccation and a small residual disc protrusion contacting the right S1 nerve root. He was of the view that the plaintiff’s prognosis was poor and that he would continue to suffer from pain in the lumbar spine. He required a range of further treatments. Mr Kossmann felt that the plaintiff had a moderate to high risk that he would have to undergo further surgery if he continued to suffer from incapacitating pain, but that even with an operation there was no guarantee that the pain issues would resolve. He considered that the plaintiff had no work capacity for as long as he suffered from pain, and there was a possibility that he may never return to any employment.
22 Mr Kossmann reported for a third time on 8 January 2018, having seen the plaintiff again. He was informed by the plaintiff of his participation in the pain management course. The plaintiff was again complaining of pain in the lumbar spine radiating into the right buttock, along with numbness in the right leg. His impression was that his condition was worsening. The diagnosis of Mr Kossmann was of discogenic and mechanical back pain, with pain in the right buttock and post-operative numbness in the right leg. He continued to be of the opinion that the plaintiff’s prognosis was poor and that he will continue to suffer from pain. He remained of the view that the plaintiff had a work capacity for sedentary employment only.
23 The defendant has also had the plaintiff examined. The report of Dr Jagdish Pathak of 27 September 2014 is now clearly outdated, as it precedes the surgery. Mr Clive Jones, orthopaedic surgeon, reported to the defendant on 27 April 2015. At that time, the outcome from the surgery was seen as successful. Mr Jones considered the plaintiff to have a light work capacity, with clerical type employment appearing appropriate.
24 Dr Graeme Doig, who specialises in general orthopaedics and trauma, reported to the defendant on 29 July 2015. By this time, whilst the plaintiff considered that he had improved following surgery, he was still experiencing some ongoing and unusual nerve symptoms in his right leg and with activity-related lower back pain. Dr Doig did not recommend any change to the plaintiff’s current treatment and thought it unwise for him to return to his pre-injury duties. He thought that the plaintiff had a work capacity for a job with limited lifting to 10 kilograms, including pushing and pulling. He thought that the plaintiff was also restricted in relation to bending, twisting and squatting. The plaintiff would be required to have regular breaks from prolonged standing and sitting.
25 Mr Gerald Moran, orthopaedic surgeon, saw the plaintiff on 10 December 2015, reporting to the defendant on 21 December. He stated that the plaintiff had suffered a right-sided L5-S1 disc prolapse and that his impairment had stabilised. Mr Moran seems to have been directing his attention primarily to an assessment pursuant to the AMA Guides.
26 Dr Gale Curtis, orthopaedic surgeon, saw the plaintiff at the request of the defendant on two occasions. The earlier of these was on 29 June 2016, Dr Curtis reporting on the same day. At this time, the plaintiff was complaining more of left leg numbness (Dr Curtis seems to have made at least a typographical error in this regard, as, in the same sentence, she goes on to refer to heaviness and numbness following the anatomical pathway of the right S1 nerve root). She was of the view that the plaintiff was fit to consider alternative employment, finding no objection to the possible areas of employment set out in a document from WorkStreams. I would point out that this document is not in the material put before me, as the rehabilitation documents supplied were two reports from Healthe.Work, both of which are dated long after the report of Dr Curtis. In any event, she believed that the plaintiff was capable of returning to work and largely to pre-injury duties and hours, provided he could avoid the repetitive lifting and twisting under load. She also commented that he had an unrealistic expectation that his numbness would disappear, as it was very likely that it would not.
27 Dr Curtis reported again to the defendant on 8 January 2018. On this occasion, she diagnosed post-discectomy syndrome – that is, the right operation was done for the right reason, but there was a sub-optimal outcome. She believed that, in general, the plaintiff’s condition had deteriorated since the earlier occasion on which she had seen him. She considered the prognosis for improvement not to be good. Dr Curtis stated that the plaintiff did have a work capacity for suitable duties, making a comment that some might consider contentious, namely “Pain is not an excuse not to work”. In any event, she also thought that work in real estate would be the plaintiff’s best option, where he would have the freedom to come and go as he wished, to work or not work as he wished and to largely work at his own pace. Whether or not that is an accurate description of the usual work of a real estate agent, and particularly an employee real estate agent, is perhaps a matter of debate.
28 Dr Dominic Yong, specialist occupational physician, examined the plaintiff at the request of the defendant, reporting on 10 January 2018. A large number of documents had been forwarded to him, including the reports of WorkStreams of 2015 and the report of Healthe.Work of 5 December 2017. Not surprisingly, he does not seem to have had the later report from that entity, which is also dated 10 January 2018. His diagnosis was that the plaintiff had undergone surgery for a neuro-compressive lumbosacral disc injury, and had lumbar dysfunction with persisting radicular symptoms. Dr Yong also observed that the plaintiff’s condition had been complicated by a psychological comorbidity and referred to evidence of pain avoidance behaviour. He did not expand upon the nature of this last mentioned condition. He also noted that a multidisciplinary pain management program had not led to any improvement. Dr Yong suggested activities such as a daily walking program.
29 As stated, Dr Yong is an occupational physician. His assessment of the plaintiff was that he could do tasks within the following restrictions:
·Avoiding repeated bending and twisting of the back.
·Avoiding repeated firm pushing and pulling tasks.
·Avoiding lifting more than 3 kilograms on a repeated basis.
·Varying posture regularly between sitting, standing and walking.
·Reduction in working hours.
30 Dr Yong was of the view that the plaintiff could not perform his pre-injury duties, such incapacity being contributed to by the back condition. He then turned to four employment options suggested by Healthe.Work. The first of these was that of a sales consultant. Dr Yong noted that, apparently based on the description provided by Healthe.Work, this could involve handling bulk goods which would exceed the recommended restrictions and is a position that would require individual assessment. The second was real estate sales. Dr Yong thought that, from a physical perspective, this role was likely to comply with restrictions. However, in relation to working hours, the plaintiff would initially be recommended to work reduced hours, such as nine hours per week. He then made the following comment:
“The aim would be to return back to the pre-injury hours of 5-hour shifts for 5 days a week, totalling 25 hours per week, over a 3 to 4-month period.”
31 Whilst it is not entirely clear, Dr Yong’s conclusion seems to be that the plaintiff could have a graduated return over a three to four month period in order to achieve the aim of working 25 hours per week, this apparently being Dr Yong’s understanding of the working hours involved with the defendant. It should be said that the plaintiff appears to have given Dr Yong a comparatively comprehensive outline of the cleaning work which he was also performing, but Dr Yong has not commented in relation to this in his conclusions.
32 The third position considered by Dr Yong was that of a security/concierge at a luxury apartment complex. He considered that role was unlikely to comply with the recommended restrictions and would not be suitable for the plaintiff. The final role was that of a sales clerk/customer service representative. Dr Yong expected that there would be minimal manual handling in this role and it was likely to comply with the restrictions that he had mentioned. However, his opinion in relation to working hours remained that which had been set out in relation to the position of real estate sales and which I have mentioned above – that is, aiming at working up to a 25 hour working week. It is to be remembered that, as previously stated, a restriction advised by the plaintiff was the reduction in working hours.
33 That concludes my summary of the various medical opinions. The diagnosis seems reasonably clear, at least up until and immediately after the performance of the surgery. As set out in the radiological examinations and the opinion of the operating surgeon, Mr de la Harpe, the plaintiff suffered a right L5-S1 disc prolapse resulting in the performance of a microdiscectomy. The prolapse involved the right S1 nerve root. Whilst the surgery may have been a technical success, the plaintiff’s symptoms have returned and persisted.
34 Dr Curtis has referred to the plaintiff as having “post-discectomy syndrome”, explaining this to be where the right operation was done for the right reason, but where there is a sub-optimal outcome. Professor Davis has described the plaintiff’s condition as falling into the category of “failed back surgery”. He added that this is not to say that there is not a genuine pain syndrome. Whether, when someone has the re-emergence of pain after surgery that has been technically without fault, ongoing symptoms represent a behavioural disturbance or disorder as opposed to a loss of body function could well be an area of debate. Professor Davis, when commenting that the plaintiff falls into the category of “failed back surgery”, referred to an ongoing pain syndrome with both physical and psychological factors. The operating surgeon, Mr de la Harpe, makes no reference to psychological factors in his reports. Mr Kossmann has referred to the plaintiff as having failed back surgery syndrome and seems to distinguish between pain management in relation to that and the development of some anxiety and depression. The plaintiff’s treating general practitioner, Dr Begum, in her most recent report, referred to the deterioration of the plaintiff’s back condition, with pain radiating to the right side and leg, causing limping, numbness and the like. She also referred to the plaintiff suffering from depression and anxiety from chronic pain.
35 The overall impression which I have gained is that, whether it be referred to as post-discectomy syndrome or “failed back surgery”, the pain and restrictions suffered by the plaintiff emanate from the loss of a body function in accordance with paragraph (a) of the definition. In this regard, I would also point to the following. The plaintiff’s case, from the outset, has been based upon paragraph (a) of the definition – see, for example, the Particulars of Injury supplied on 19 July 2017 and the opening of the case – see T1. Further, in his opening remarks, Mr Plunkett, on behalf of the defendant, stated that “… we concede that the plaintiff certainly has suffered an organic injury and it has affected his earning capacity”. He also stated “… we do concede that on the evidence the plaintiff will get over the pain and suffering component of the serious injury test”. Of course, whether the organically based pain and suffering is also sufficient to result in the required loss of earning capacity is another matter, but the concessions made in the context of the manner in which the case is presented seem to me to go a considerable distance towards the conclusion that the plaintiff has a permanent organic back injury productive of consequences that are more than significant or marked and are at least very considerable. This is also consistent with some of the observations referred to in the previous paragraph.
36 I am also satisfied that the physical restrictions which the plaintiff has are permanent within the meaning of the Act in that they will persist for the foreseeable future. Apart from anything else, that also seems to me to flow from the concession that has been made. Of course, it can be argued that the plaintiff’s ability to deal with those restrictions and to re-enter the workforce in some capacity is not necessarily confined permanently to his present situation. However, the establishment of a permanent physical base which impacts upon his capacity for suitable employment seems to me to have been established.
37 I am not satisfied that the injury represents the aggravation of a pre-existing condition. I appreciate that Dr Curtis, examining the plaintiff on behalf of the defendant, has stated that it is likely he may have had pre-existing degenerative change at the relevant level. In essence, that is not a suggestion found elsewhere. In any event, Dr Curtis has recorded that the plaintiff had suffered no previous back problems, a proposition which is consistent with other medical histories obtained and with the evidence of the plaintiff. If the injury suffered is in the nature of an aggravation, and I am far from satisfied that it is, the plaintiff suffered from no previous back complaints or restrictions and was able to engage in quite demanding work and work for long hours. In short, the symptoms, restrictions and incapacity from which the plaintiff now suffers result from the injury.
The state of the plaintiff’s mental health and its impact upon the issue of work capacity
38 There is no argument but that the plaintiff has had treatment for some problems which could be described as psychological or psychiatric in nature. Dr Begum referred the plaintiff to Dr Ganesan Duraiswamy, consultant psychiatrist, who saw him on 17 July 2017. The plaintiff had been taking some antidepressant medication for a period of months. In addition, he had seen a psychologist at the same surgery over the preceding two years. Dr Duraiswamy diagnosed major depression in the context of chronic pain. He advised the plaintiff to continue with the antidepressant medication which he had been taking, but also encouraged him to try mindfulness strategies daily and to attend psychological counselling, if this was approved. There is no further report from Dr Duraiswamy.
39 The psychologist whom the plaintiff has seen is Ms Dayana Noor, who, as stated, would appear to be in the same clinic as Dr Begum. She first saw the plaintiff on 6 May 2016 and saw him on a total of 10 occasions during that year. She also saw him on six occasions in 2017. The plaintiff’s main presenting problems were of chronic pain following a work injury and an adjustment disorder due to anxiety and stress, with a reference to financial difficulty due to unemployment. Reporting on 11 August 2016, Ms Noor stated that the plaintiff was experiencing high levels of stress provoked by his current physical limitation and experience of pain. He had a low sense of self-worth because of his physical injury and his limited capacity to return to employment. In her report of 14 August 2016, she noted that his psychiatric symptoms appeared to have reduced in severity and he appeared motivated to return to employment as soon as he was physically able so to do. She suggested he might benefit from some further counselling. The most recent report of Ms Noor is that of 30 January 2018. She referred to the plaintiff showing a high level of distress when seen on 23 January 2018, concluding that he had made fluctuating progress with regards to lowering the levels of his depression, anxiety and stress and that he may benefit from further counselling. She then stated that his low sense of self-worth was related to his current physical injury and limited capacity in relation to employment. His psychiatric symptoms appeared to have reduced in severity. It is to be remembered that Ms Noor referred to the plaintiff experiencing high levels of stress provoked by his physical limitation and experience of pain.
40 Dr John Gill, consultant in general and forensic psychiatry, reported to the defendant on 28 June 2016. Effectively, the mental state examination carried out by Dr Gill essentially revealed very little abnormality. Dr Gill stated that the plaintiff’s affect was somewhat anxious, but he was not overtly depressed. He noted that the plaintiff was currently seeing a psychologist and gaining some benefit from this. Dr Gill diagnosed an adjustment disorder with anxiety and depressed mood. However, he also stated that the plaintiff was not precluded from doing his pre-injury work on psychiatric grounds and that, from a purely psychiatric perspective, the plaintiff had a current work capacity for suitable employment. The plaintiff would have a capacity to return to work when he was physically able so to do.
41 The most recent report to the plaintiff’s solicitors from Dr Nathan Serry, consultant psychiatrist, is that of 24 January 2018. Whilst Dr Serry reported that the plaintiff had ongoing high levels of anxiety and not insignificant levels of depression and considerable frustration, and continued to present with symptoms and features of a major depression with some anxiety, Dr Serry also made the following observation:
“Absent his physical injury, your client’s psychiatric condition would not in and of itself preclude your client from engaging in gainful employment …”
42 Thus, there is considerable similarity in the opinions of Dr Serry, reporting to the plaintiff’s solicitors, and Dr Gill, reporting to the defendant. When these are combined with the most recent observation of the treating psychologist, Ms Noor, to the effect that the plaintiff’s psychiatric symptoms appear to have reduced in severity, and with the concessions that the plaintiff has suffered a physical injury the consequences of which satisfy the statutory test and that such physical injury would preclude him from carrying out his pre-injury employment, it seems to me that the role played by psychological or psychiatric consequences in relation to loss of earning capacity is not great. I might add that this coincides with the impression which I formed of the plaintiff in the witness box.
Other developments since the injury
43 The plaintiff has not engaged in any employment since approximately September 2014. He has continued to suffer from physical consequences of injury that satisfy the statutory test. The plaintiff has made some enquiries as to work. However, he gave evidence that he did not feel well enough to work, but was interested in getting “a bit of feedback” and the like – see T51, 52 and 81 and following pages.
Ruling
44 I am of the view that the plaintiff has discharged the burden of proof in relation to pecuniary loss. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) In order to satisfy the burden which he bears, the plaintiff must establish that the consequences of his permanent loss of earning capacity will be productive of a financial loss of 40 per centum or more. I have already discussed the issues of physical injuries and permanence. In my view, the consequences will result in the required loss.
(b) As stated, the financial loss required is one of 40 per centum or more. This necessarily involves a comparison of the plaintiff’s pre-injury earning capacity and his post-injury capacity. As stated in the Second Reading Speech in relation to the relevant enactments and quoted by his Honour Judge O’Neill in Berthelot v Fleetweld Pty Ltd [2015] VCC 1453, essentially the common law position prevails.
(c) In relation to the plaintiff’s pre-injury earning capacity, I am satisfied that this is not constituted solely by the amount earned when working for the defendant. His earning capacity extends to what he had demonstrated he could earn as a cleaner. With the defendant, he was working 25 hours per week. It was conceded by the defendant that the matter could basically be approached on the basis of hours worked and that, if the plaintiff was working 63 or 63.5 hours per week prior to the accident but had been reduced to a capacity of 25 hours, the plaintiff must succeed. In other words, it was effectively agreed and conceded that the actual dollars earned not be the benchmark, but that, if the plaintiff had the capacity to work 63.5 hours before the accident and that was now reduced to 25 hours per week, the plaintiff would succeed – see T92. Bearing in mind that the provisions of s134AB(38)(f) do not apply and that something in the nature of a common law approach is to be adopted, an agreed position of a comparison of hours worked constitutes the test which seems to me to be unobjectionable and appropriate.
(d) If the above be so, it seems to me that the plaintiff must succeed. I accept that, prior to the injury, the plaintiff had displayed the capacity to work both with the defendant and as a cleaner for the hours specified. It may be that, as at the time of the injury, the plaintiff’s work as a cleaner at the Windsor Hotel and the Royal Hotel had come to an end and that Mr Eid was organising other cleaning work. However, the vital question concerns capacity. I accept that, prior to the injury, the plaintiff had displayed the capacity to work 63.5 hours per week. I am not satisfied that, following the injury, he has the capacity to work any hours per week, much less 38.1 hours, which would be 60 per cent of the pre-injury total.
(e) Indeed, Professor Littlejohn, in his most recent report of 17 January 2018, expressed the view that the plaintiff could not be engaged in gainful employment. In her report of 28 February 2018, the plaintiff’s treating general practitioner, Dr Begum, has stated that the plaintiff will never return to gainful employment in the future because of his physical condition. Dr Middleton, an occupational physician, has concluded that the plaintiff’s injury currently precludes him from being engaged in gainful employment. In relation to the word “currently”, it is to be remembered that I have previously found that the relevant consequences of the plaintiff’s injury are permanent within the meaning of the Act.
(f) The occupational physician engaged by the defendant, Dr Yong, has expressed a somewhat complicated opinion, but has stated that the aim would be to return the plaintiff to working 25 hours per week, which is patently less than 60 per cent of the pre-injury number of hours worked and indeed falls a considerable distance short of that figure.
(g) On balance, I prefer the opinions to which I have referred to that of examiners such as Dr Curtis. I prefer the opinions of Professor Littlejohn, Dr Begum and Dr Middleton as set out above. I am of the view that the plaintiff has no capacity for employment and this will continue to be the situation for the foreseeable future. In any event, whilst theoretically the plaintiff may be capable of some forms of restricted employment for a limited number of hours, as posited by some examiners, it seems to me that the overwhelming weight of medical opinion would not support the proposition that he is fit for work for 38.1 hours per week in the type of work which has been suggested. I would again refer to the opinions obtained by the occupational physicians, Dr Middleton and Dr Yong.
(h) In summary, I find that the plaintiff has discharged the burden of proof in relation to pecuniary loss. I am satisfied that he will continue to permanently have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more. Had he been able to continue with his cleaning work and if the evidence of Mr Eid, which was not challenged, is accepted, it may be that his future earnings would have carried him far beyond the type of hours or figures that have been considered.
Conclusion
45 The plaintiff is successful. It has been conceded that he should have leave to commence proceedings for pain and suffering damages. I find that he is entitled to such leave in respect to pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.