Semmens v South Gippsland Shire Council
[2014] VCC 648
•16 May 2014
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-13-05654
| LEIGH SEMMENS | Plaintiff |
| v | |
| SOUTH GIPPSLAND SHIRE COUNCIL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 13 and 14 May 2014 | |
DATE OF JUDGMENT: | 16 May 2014 | |
CASE MAY BE CITED AS: | Semmens v South Gippsland Shire Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 648 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the low back – whether consequence of injury is “at least very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB.
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Watts v Rake (1960) 108 CLR 158.
Judgment: Leave granted to the plaintiff to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by him in the course of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr E Delany | Maurice Blackburn Lawyers |
| For the Defendants | Mr P Jewel SC with Ms M Tait | Minter Ellison |
HIS HONOUR:
1 Leigh Semmens alleges that he suffered injuries to his low back in the course of his employment with the first defendant in 2009. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in relation to that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Semmens’ lumbar spine.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequence of it is, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(b) of the Act
7 Mr Semmens submits that the pain and suffering consequence of his low back injury can fairly be described as being more than significant or marked, and as at least very considerable. The defendants deny this is so.
Background
8 Mr Semmens is aged sixty-nine. He turns seventy in October of this year.
9 At school he completed Year 12 and thereafter enjoyed a varied and full working life. He was employed as a bank officer in Victoria and in Papua New Guinea for about fourteen years and as a payroll manager with three different employers for approximately twenty five years. He appears to have been in constant employment since leaving school. On any view, he has an excellent work record.
10 In May 2007, he commenced employment with the first defendant as a member of its Parks and Gardens team. Prior to commencing that employment, he was required to undergo a medical examination by a Dr Ong. The doctor’s report was tendered.[4] It was reported that Mr Semmens had no problems with his thoracic/lumbar spine and that he was suitable to perform the duties specified on an attached job description. The job activities listed included regular manual handling up to 20 kilograms, occasional manual handling between 20 and 30 kilograms, repetitive manual work, regular bending/twisting, driving vehicles, bending, squatting, prolonged standing, stretching, reaching and pulling/pushing.
[4]Plaintiff’s Court Book (“PCB”) 42-3
11 Mr Semmens was initially employed as a casual, working full-time hours. In January 2008, he was employed on a permanent basis. His duties included performing routine maintenance on vehicles and equipment, cutting down trees, cutting back overhanging limbs, roadside maintenance and cleaning up storm and wind damaged trees. His work was relatively heavy and vigorous.
12 Over a two-week period during June and July of 2009, he experienced a gradual onset of low-back pain radiating into both thighs. He saw his general practitioner, Dr Hosseni, who prescribed analgesic medication and referred him for x-rays. He was referred for physiotherapy. Soon after, he ceased work and has not been able to resume work since.
13 In October 2009, he was referred to an orthopaedic surgeon, Mr Rehfisch.
14 Mr Semmens returned to work in early 2010 on light clerical duties, which he was able to perform adequately. Those duties involved him liaising with elderly citizens of the Shire and assisting them with various matters. Three weeks after his return to work, his employment was terminated. He was told there was no further work available.
15 In March 2010, he was referred to a neurosurgeon, Mr Han, who referred him for an MRI scan. Mr Han did not recommend surgery and advised continuation of conservative treatment, which included physiotherapy and hydrotherapy.
16 Mr Semmens has been prescribed powerful analgesic medication in the form of Panadeine Forte, Codalgin Forte and Durogesic patches. He continued to see Dr Hosseni until Dr Hosseni retired from practice and since has consulted with Dr Andrews at the Foster Medical Centre.
17 Mr Semmens intended to continue working until he was seventy years of age.
18 Mr Semmens has been referred by the defendants’ claims agent to Nabenet Workplace Services, vocational consultants, for assistance in his quest for alternative employment. Initially, he sent job applications to a number of potential employers but was unsuccessful in gaining employment. He believes that he would be able to cope with light clerical or administrative duties if he could find such a job. He would not be able to perform work involving physical duties such as those involved in his employment with the first defendant.
Diagnosis of injury
19 It was not disputed by the defendants that Mr Semmens had suffered an injury to his low back in the course of his employment with the first defendant. His claim for statutory benefits had been accepted.
20 The precise nature of the low-back injury was not clear. The report from the Foster & Toora Medical Centres contained a diagnosis of a disc prolapse at the L3-4 level.[5]
[5]PCB 23
21 Mr Han reported that an MRI scan had shown severe canal stenosis at L2-3 and L3-4 levels. These were due to degenerative factors.[6]
[6]PCB 27
22 Mr Rehfisch considered that Mr Semmens had developed degenerative osteoarthritis in his lumbar spine.[7] He found it difficult to explain why changes on the X‑ray and the CT scan appeared to be longstanding whereas his symptoms had only been of a relatively short duration at the time that he first saw him in October 2009.
[7]PCB 30
23 Mr Hooper, general surgeon, considered that Mr Semmens had constitutional degenerative disc disease that was age-related. He thought that his work had aggravated the degenerative disc disease in his back.[8] He thought that the effects of this aggravation had long since ceased.
[8]DCB 9
24 Dr Elder, who is described on his letterhead as a consultant in the speciality of occupational and environment medicine, considered that the MRI scan of March 2010 showed canal stenosis without any frank neural involvement. In summary, he thought he had mechanical back pain with no evidence of radiculopathy.[9]
[9]DCB 14
25 Mr Gale, a general and trauma surgeon, considered that Mr Semmens had severe, widespread, age-related and constitutionally based degenerative change throughout his lumbar spine with significant spinal canal stenosis at least at two levels. He considered that the condition had been rendered symptomatic through his work with the first defendant.[10]
[10]DCB 33
26 Having looked at all of the medical evidence and taking Mr Semmens’ evidence into account, it is my view that Mr Gale’s assessment is likely to be correct. In short, Mr Semmens had extensive degeneration of his lumbar spine which, up until mid 2009, was asymptomatic. His work with the first defendant appears to have rendered him symptomatic.
27 I do not accept the view of Mr Hooper concerning the effects of the workplace aggravation having long since ceased. I accept that before mid 2009 Mr Semmens was fit and unrestricted at work. Senior Counsel for the defendants did not seek to argue that Mr Semmens would have reached his current state by now regardless of his workplace injury or that the development of his current severity of symptoms was inevitable. The defendants would have carried the onus of establishing these matters.[11] It was not suggested that they had discharged that onus.
[11]Watts v Rake (1960) 108 CLR 158
Consequence of injury
28 Senior Counsel for Mr Semmens submitted that there were five major consequences of his injury:
(a)He had, since mid 2009, suffered from significant levels of pain. In his affidavit sworn in March 2012, Mr Semmens deposed that he suffered from a dull, constant pain in his lower back and in the area of his buttocks. The pain only extended into his upper thighs occasionally. Since then, he has said that his leg pain has resolved and he is left only with his low-back pain. He describes the pain as constant. He requires significant analgesic medication. He wears Durogesic patches which, as I understand it, are strong narcotic medication. He is prescribed anti-inflammatory medication. In addition, when he suffers a flare up of his low back, he takes Codalgin Forte. Such flare ups are activity-related, often when he does something in the garden. On occasions, he can suffer a flare up of pain for no particular reason. The pain impedes his sleep. There has been some improvement in his sleep more recently but from time to time he still wakes with pain at night, but not as frequently as in the past.
(b)Prior to his injury, he was fit. The degenerative changes in his back were asymptomatic. There is no evidence that they would ever have become symptomatic. He lived a full and active life. He was engaged in full-time employment. He stated that he enjoyed his work and intended to continue working until the age of seventy. As a consequence of his injury, he is no longer able to work in any capacity other than light sedentary employment. Probably because of his age, he has been unsuccessful in obtaining such employment. It is relevant that the first defendant, one of the largest employees in South Gippsland, could not find a job for him. I consider it unlikely that he will find any suitable work.
(c)Prior to his injury, Mr Semmens was a keen fisherman. In particular, he enjoyed fishing in the Corner Inlet region, and did so regularly. He appears to have been a successful fisherman. Since his injury, he has attempted going out in a boat but, not surprisingly, found the unsteadiness of the boat caused him significant low-back pain. He is able to fish from a pier or a riverbank (depending on accessibility). However, I accept that river or sea fishing by boat was a style of fishing that he preferred.
(d)Prior to his injury, Mr Semmens played golf fortnightly and enjoyed that game. I accept that since, he has been unable to partake in the sport and the social interaction that is involved with it.
(e)Prior to the injury, Mr Semmens had a passion for gardening. He had a large property where he lived at Port Franklin. He looked after some sixty fruit trees. On occasions he would spend the entire weekend in the garden. After his injury, he was unable to cope with gardening. At the suggestion of his family, he has moved from Port Franklin to his wife’s residence in Foster. They had been separated for some time before. On moving to her home, they continued to lead separate lives. Although he was able to buy the next door vacant block when he sold the Port Franklin property, his garden activities are a far cry from those in which he engaged and enjoyed prior to his injury. Many of his flare ups seem to occur as a result of his continuing garden activities and he might well be better off if he ceased those activities completely. However, they continue to give him some satisfaction and he continues with them with difficulty.
29 Senior Counsel for the defendants submitted that the pain suffered by Mr Semmens was of a fluctuating nature. On occasions he was pain free. On other occasions he was in severe pain. He had good and bad days. I note the nature of the prescription medication taken by Mr Semmens and am of the view that he is only able to manage his pain as a result of the regular, strong medication taken by him.
30 I accept that Mr Semmens has been able to cope with his pain to the extent that he has travelled on a number of different holidays since his injury developed. He has had a tour of the North Island of New Zealand. He has been on a number of caravan holidays. He intends, finances permitting, to return to tour the South Island of New Zealand. He intends to undertake further caravan holidays in the future.
31 The defendants point out that prior to his injury, Mr Semmens had a housekeeper who did most of the housework. He did not enjoy doing such work and was happy to pay someone to do it for him. Likewise, he paid someone to come in and mow the lawns regularly because it was something that he did not enjoy doing. He is restricted in housework activities and lawn mowing at present. He continues to have outside help in these areas. Counsel submits, and I accept, this should not be seen as a significant loss, in that it was the pre-accident state of affairs.
32 Mr Semmens’ treatment in respect of his low-back injury has been modest. He attends his general practitioner in order to obtain prescriptions for analgesia. I think it likely that the general practitioner monitors his condition in a general way. He has had no other active treatment for his low back. There has been no ongoing physiotherapy, no further reviews by any specialist and no suggestion that he should involve himself in pain management treatment. There is no suggestion that he requires or would benefit from surgery.
33 The defendants concede that he is unable to play golf and that his gardening is significantly restricted. However, they point out that he now has a much smaller garden than that of his previous residence. In any case, they submit Mr Semmens is nearly seventy years old and was likely to have reduced his involvement in such activities in any event as he aged.
34 The defendants submit that his ability to go on the holidays previously referred to is indicative that the level of pain that he suffers is such that it does not unduly interfere with his recreational life.
35 In respect of work, the defendants submit that Mr Semmens was nearly sixty‑five years old at the time he suffered the injury and that retirement, in any event, would have occurred reasonably soon thereafter.
36 Mr Semmens’ credit was not challenged during the course of hearing. I found him to be a witness who did not attempt at any time to exaggerate his problems and presented his evidence in a frank and patently honest manner.
37 It is, of course, correct that he has entered into his senior years. Notwithstanding, the parties are in agreement that he probably had a further life expectancy of some fifteen to twenty years. Most persons would hope to spend their twilight years in an active and enjoyable manner. His later years have, and are likely to be spent, to a large degree, in pain to an extent that he requires substantial analgesic medication. He is a man with a very good work record and who obviously enjoyed his work. His injury has resulted in him losing that employment. By reason of his age, he has found it impossible to secure any form of alternative employment.
38 Senior Counsel for the defendants did not seek to argue that Mr Semmens’ age and life expectancy should be a basis for discounting the severity of the consequence of his injury. It would be an error to apply any such discount.[12]
[12]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at [76]
39 Looking at the evidence as a whole, and the various consequences of injury collectively, I am satisfied that the consequence of his back injury, when judged by comparison with other cases in the range of possible impairments or losses, is fairly described as being more than significant or marked, and as being at least very considerable.
40 It follows that I am satisfied that Mr Semmens, in the course of his employment, suffered a “serious injury” as that term is defined in the Act.
Conclusion
41 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Semmens to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by him in the course of his employment with the first defendant.
42 I shall hear the parties in respect of costs.- - -
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