Semmler v P Pullar and Co (Cool Stores) Pty Limited
[2010] VCC 793
•16 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05104
| CLIFFORD JOHN SEMMLER | Plaintiff |
| v | |
| P PULLAR & CO (COOL STORES) PTY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 May and 1 June 2010 |
| DATE OF JUDGMENT: | 16 June 2010 |
| CASE MAY BE CITED AS: | Semmler v P Pullar & Co (Cool Stores) Pty Limited & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0793 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – plaintiff suffered injury to each level of his spine – causation – identification of the body function said to be impaired – whether the loss of earning consequences were at least very considerable – whether it is necessary to consider pain and suffering consequences separately when loss of earning capacity consequences meet the statutory test: section 134AB(37)(a), (c) and (38)(c), (d) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with | Slater & Gordon |
| Mr A McNab | ||
| For the Defendants | Mr A Moulds | Herbert Geer |
| HIS HONOUR: |
Background
1 Before the Court is an application brought by Originating Motion filed on 24 November 2008 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr T Tobin SC appeared with Mr A McNab of Counsel for the plaintiff, and Mr A Moulds of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the spine.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • Mr Wallace, neurosurgeon, gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 8-12 and 31-100: Exhibit A;
•
The plaintiff tendered the clinical notes of Dr Seager, general practitioner: Exhibit B;
•
The defendants tendered their Court Book ("DCB"), pages 15-27 and 55- 83: Exhibit 1;
• Film taken of the plaintiff on 6 September 2007: Exhibit 2; • Film taken of the plaintiff on 25 and 28 August 2008: Exhibit 3; • Clinical notes of the chiropractor: Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born on 41 August 1950. He is now fifty-nine years of age. He lives with his domestic partner. He was previously married.
10 The plaintiff was born in Wangaratta. He left school halfway through Grade 6, after which he commenced working as a timber carter. He left home at sixteen years of age. He commenced working as a truck driver after he obtained a driver's licence at eighteen years of age. The plaintiff is illiterate. He can neither read nor write.
The Plaintiff's Prior Injuries
11 Some time in the 1980s, the plaintiff was knocked down by a truck which subsequently drove over his stomach.[5]
[5] Transcript 12-13
12 The plaintiff was taken to a hospital in Brisbane which he described as the “QE2”. It would appear that he suffered abdominal injuries for which he required surgery. He was discharged from the hospital, but returned not more than a week later and underwent surgery to his lumbar spine. The plaintiff was unable to say what surgery was undertaken. No documents were produced by the plaintiff to explain what that surgery entailed.[6]
[6] PCB 33, and Transcript 13 and 77-78
13 The description given by the plaintiff left me the impression that the surgery, both to his stomach and his lumbar spine, were related to an abdominal injury. It would appear that is probably correct, because an x-ray taken of the plaintiff's lumbar spine and pelvic region on 15 April 1999 does not show any evidence of surgery to the lumbar or lumbo-sacral spine.[7]
[7] Transcript 39
14 The plaintiff suffered injury/pain to his lumbar spine as a result of a number of incidents which occurred in the course of his employment.
15 In about 1997, whilst the plaintiff was pulling on a rope on a load on a truck, the rope broke. He landed on his tailbone. He saw a chiropractor in Yarrawonga for treatment.[8]
[8] Transcript 17
16 In about July 2000, a plastic fruit bin fell on him, hitting him on the arm. The plaintiff saw a chiropractor for treatment. The chiropractor referred him to the Cobram Hospital to have an x-ray.[9]
[9] Transcript 21-22
17 On or about 1 March 2001, the plaintiff suffered pain in his lumbar spine whilst pulling on ropes. He saw a chiropractor for treatment.[10]
[10] Transcript 18
18 In late April 2001, the plaintiff fell off the back of a truck, resulting in injury to his lumbar spine. He saw a chiropractor for treatment.[11]
[11] Transcript 18
19 In about October 2003, the plaintiff suffered pain in his lumbar spine as he was getting out of a truck. He saw a chiropractor for treatment.[12]
[12] Transcript 19
20 Mr Moulds tendered the chiropractor's clinical notes.[13] The clinical notes demonstrate that the plaintiff was involved in a number of incidents which caused him injury for which he had chiropractic treatment.
[13] Exhibit 4
21 It was not my impression that the incidents referred to above caused the plaintiff any lasting interference with his capacity to function. It was my strong impression that the plaintiff was able to continue working as a truck driver despite the occurrence of those occasional injuries.
The Incident
22 The manner in which the incident occurred became something of critical importance in the way in which both Mr Tobin and Mr Moulds characterised the injuries which are said to have resulted from the incident.
23 In his affidavit, the plaintiff described the occurrence of the incident as follows:
"On or about 22 July 2004 I needed to change the trailer of the Ford Louisville Prime Mover from a taut liner to a flat top. I managed to drop the taut liner but I was unable to connect the flat top as the turntable had twisted and jammed. I try (sic) to straighten the turntable by pulling on the lock pin handle. As I did so I experienced sudden and severe pain between my shoulder blades and the middle of my back. I was unable to move and I lost feeling in my legs. I was taken by ambulance to hospital."[14]
[14] PCB 33
24 During re-examination, the plaintiff described the occurrence of the incident as follows:
"Q:
My learned friend, Mr Moulds, asked you some questions about exactly how you hurt yourself pulling on the truck. Can you just explain to his Honour what you were doing and how hard you were pulling?---
A: Probably the best way I can explain it, if you had, you know, when
they got them skinny boats they row - - -Q: Rowing boats?--- A:
Yes, the racing, thin boats. I was sitting - like if you were sitting on one of them on the guard and then pushed the feet against the other guard at the back and pull at the same time.
Q: So you were bracing your feet against the other guard at the back,
sitting on one guard and bracing it?---A: Yes. Q: Is this a dual wheel---? A: Bogey drive. Q:
When you had your feet and [were] bracing yourself sitting on the other one, what were you pulling? What were you actually pulling on?---
A: Pulling the lock and bar for the turntable. Q: What amount of pressure were you using when you were pulling
that lock and bar for the turntable?---A: I don't know. Pretty strong. I used to half stand up and pull with
all my weight.Q: So when you say all your weight, were you pulling it as hard as
you could at the time?---A: Yes. Q: When you got the pain, were you still pulling or was it after you
were pulling?---A: It was when I was pulling. Q: You were up there braced at the time pulling with all your might
and you get the severe pain. What then happens?---A: I couldn't move. Q: What do you mean you couldn't move?--- A:
All I could do was let go [of] the bar and then I couldn't get off or that because my legs didn't want to even work and Ronnie was there and Wrangles was there and they lift[ed] me down off the truck."[15]
[15] Transcript 71-72
25 Mr Moulds ultimately submitted that the plaintiff had not suffered an hyperextension injury. He submitted that the plaintiff's own account of the movements of his body could not support such a conclusion. Furthermore, he submitted that central to the thesis of Mr Wallace was trauma to the cervical spine consequent upon hyperextension of it at the time the incident occurred.
The Causation Question
26 Both Mr Tobin and Mr Moulds submitted that the histories given to the medical practitioners and the chiropractor who treated the plaintiff following the occurrence of the incident were also of critical importance in determining whether the problems which the plaintiff experiences with his cervical spine are related to the incident.
27 The following is a summary of the evidence which both Mr Tobin and Mr Moulds took me to.
28 The ambulance records reveal that an ambulance officer obtained a history from the plaintiff that he experienced a sensation of a rod pushing up his back. On an outline of the human body, the ambulance officer made a sketch on it to illustrate the distribution of pain experienced by the plaintiff. He drew parallel lines down the plaintiff’s spine to show where the plaintiff was experiencing pain. The hatching in between the parallel lines encompasses the whole of the plaintiff’s spine. The notation beside the hatching refers to the rod sensation progressing up the plaintiff's back.[16]
[16] PCB 100
29 On 23 July 2004, the plaintiff saw Dr Garner, chiropractor, for treatment. The first record of any history of upper thoracic pain was on 24 November 2004. However, Dr Garner recorded on that occasion that the plaintiff claimed he had experienced pain in his upper thoracic spine since July and that it had not lessened in severity over the preceding four months.[17]
[17] PCB 99
30 On 24 July 2004, the plaintiff saw Dr Lew, general practitioner, for treatment. Dr Lew did not record any history of upper thoracic or cervical spine pain, but only lumbar pain.[18] The plaintiff left Dr Lew, preferring to do see another general practitioner.
[18] PCB 58
31 On 13 October 2004, the plaintiff saw Dr Seager, general practitioner, for treatment. Dr Seager did not record any history of upper thoracic or cervical spine pain initially, but only lumbar spine pain. However, six weeks after Dr Seager first saw the plaintiff he told Dr Seager that he had suffered pain between his shoulder blades which he had noticed at the time of the incident.[19] Three months after the plaintiff first saw Dr Seager he told him was suffering pain in his right arm. The first entry in Dr Seager's clinical notes referring to a complaint of thoracic spine pain was on 16 November 2004.[20]
[19] PCB 56
[20] Exhibit B, at page 2
32 On 30 November 2004, Dr Seager obtained a history from the plaintiff that he suffered pain between his shoulder blades at the time of the incident, and that the pain was persistent.[21]
[21] Exhibit B, at page 3
33 On 5 August 2004, the plaintiff saw Mr Pullar, neurosurgeon, for treatment. Mr Puller did not record any history of upper thoracic or cervical pain. He recorded a history of pain at the thoraco-lumbar junction at a point where the plaintiff suffered a crush fracture at T12 as a result of the incident.[22]
[22] PCB 76-77
34 On 29 March 2005, the plaintiff saw Dr Todhunter, specialist in anaesthesia and pain medicine, for treatment. He obtained a history of worsening mid and upper thoracic pain radiating down the plaintiff’s left arm with a sensation of pins and needles. He considered that the onset of the upper thoracic pain was coincidental and unrelated to the incident.[23]
[23] PCB 68-69
35 On 20 July 2005, the plaintiff saw Mr Wallace, neurosurgeon, for treatment. Mr Wallace was of the opinion that the incident produced sudden and severe spine cord compression leading to a number of physical consequences. Mr Wallace was of the opinion that the interscapular pain experienced by the plaintiff was in fact an injury to the plaintiff's cervical spine.[24]
[24] PCB 62
36 Mr Wallace considered that this conclusion was supported by his clinical findings of reflex changes in the plaintiff's arms, which he related to pathological changes in the plaintiff’s cervical spine . He concluded from the history given to him by the plaintiff that the mechanism of the injury to the plaintiff's cervical spine was the hyperextension of the plaintiff’s cervical spine at the time the incident occurred.[25]
[25] Transcript 47-48
37 Mr Wallace referred the plaintiff to Dr King, neurologist, who saw the plaintiff on 12 August 2005. Essentially, Dr King agreed with the conclusions reached by Mr Wallace regarding the cause of the injury to the plaintiff's cervical spine and its diagnosis.[26]
[26] PCB 64-65
38 Mr Moulds submitted that the first recorded complaints of upper thoracic pain were made to Dr Seager and Dr Garner. Both complaints were made in late November 2004. Up until that time, the plaintiff was complaining of pain in his lumbar spine, and that was understandable, because the plaintiff had suffered a crush fracture at T12; perhaps a minor fracture at L2; degenerative changes in his lumbar and lumbo-sacral spine, and with what appeared to be an L5-S1 disc protrusion.[27]
[27] PCB 58 and a series of radiological studies at 42-49
39 Mr Moulds submitted that, in the absence of contemporaneous complaints by the plaintiff of pain in his upper thoracic spine, that I should not accept that the later complaints relate in any way to the occurrence of the incident. He submitted that Dr Todhunter had correctly analysed the relationship of the upper thoracic spine to the incident as being coincidental.
40 Furthermore, Mr Moulds submitted that, in the absence of evidence that the plaintiff had suffered hyperextension of his cervical spine, that the thesis developed by Mr Wallace had no foundation. Mr Wallace’s thesis was firmly rooted in there having been an hyperextension the plaintiff's cervical spine as the mechanism of the injury.
41 Mr Tobin submitted that I firstly needed to consider whether I accepted that the plaintiff was a simple, but truthful man. That submission was made in the setting of the plaintiff's evidence that when confronted with the medical chronology on which Mr Moulds relied, he said, on a number of occasions, that the medical practitioners were not listening to him when he told them he had upper thoracic spine pain.[28] The plaintiff said that the only one who listened to him was Mr Wallace.[29]
[28] Transcript 28
[29] Transcript 29
42 Mr Tobin submitted that there was a plausible explanation for Dr Lew, Dr Seager, Mr Seager and Mr Puller disregarding the plaintiff's complaints of upper thoracic spine pain, because the plaintiff potentially had a major spine fracture at T12 with other potentially major abnormalities in his lumbar and lumbo-sacral spine. Essentially, Mr Tobin submitted that those medical practitioners, on the plaintiff, were like ‘ships passing in the night’.
43 Furthermore, Mr Tobin submitted that it is likely that the plaintiff's lower thoracic spine and his lumbar and lumbo-sacral spine were initially very painful and carried a potential for serious consequences for him given that following the occurrence of the incident, he was taken to the Golden Valley Base Hospital with severe pain in his lumbar spine and loss of feeling and function in his legs.
44 The plaintiff's description of the immediate aftermath of the incident is redolent with the seriousness of his lumbar spine injury at that early stage:
"8 …. I experienced sudden severe pain between my shoulder blades in the middle of my back. I was unable to move [and] lost feeling in my legs. I was taken by ambulance to hospital. 9 I underwent a range of radiological investigations at the hospital. I was given some pain relief medication. As time progressed I got use of my legs back, however I still struggled to stand or walk." [30]
[30] PCB 33
45 Mr Tobin also submitted that the ambulance records are a contemporaneous record of the plaintiff's complaints of pain in his upper thoracic spine. I am not entirely convinced that is so. I am not prepared to infer that the plaintiff's complaint of a rod pushing up his back is necessarily consistent with upper thoracic pain nor that the hatching on the diagram is necessarily consistent with the distribution of pain experienced by the plaintiff.
46 Furthermore, in the absence of evidence from the ambulance attendant to explain the notations on the ambulance records and what they mean, I think they are unconvincing and equivocal as evidence for preferring the plaintiff's account that he suffered upper thoracic pain at the time the incident occurred.
Causation or Coincidence?
47 There is no doubt that the plaintiff exerted a very considerable level of force at the time when he was pulling the lock and bar on the turntable.
48 There is equally no doubt that as a consequence of the force he applied, he suffered severe pain in his lumbar spine and was immediately incapacitated, so much so that he required hospitalisation and immediate treatment.
49 I think it is probable that the force applied to the plaintiff's upper body through his arms placed strain on his mid to upper spine consistent with an hyperextension of his cervical spine.
50 I am fortified in reaching that conclusion because Dr Garner, chiropractor, noted that when the plaintiff presented to her on 23 July 2004, it was after the plaintiff had suffered a flexion injury at work the previous day.[31]
[31] PCB 99
51 Mr Wallace obtained a history of the mechanism injury very much consistent with the evidence of the plaintiff. That description did not trouble Mr Wallace in arriving at the conclusion that the forces involved in that activity produced an hyperextension of the plaintiff’s cervical spine.[32]
[32] PCB 60 and Transcript 45-50, and in particular, at 60-61
52 Whilst it is true that the plaintiff did not make a complaint of upper thoracic spine pain until late November 2004, it is abundantly clear that by that time Dr Garner and Dr Seager were aware that the plaintiff was adamant that he had that pain from the time the incident occurred.
53 By late November 2004, the plaintiff’s lumbar spine injury was under a measure of control. It is probable that the concentration on treatment of his lumbar spine were beginning to reduce as the medical practitioners who were treating him were satisfied that the initial severity had reduced and that the injury was under control.
54 However, if the plaintiff was making loud noises about upper thoracic spine pain, it is difficult to understand why those complaints were ignored wholesale by all the medical practitioners who treated him prior to late November 2004.
55 In the end, I accept the plaintiff’s evidence that he was engaged in a very strenuous activity at the time when the incident occurred.
56 I accept the evidence of Mr Wallace that the incident was capable of causing injury to the plaintiff's upper thoracic spine and his cervical spine. I also accept the plaintiff’s evidence that he did complain of pain in his upper thoracic spine prior to late November 2004, however, I am not persuaded that he did so as vociferously as he described in his oral evidence.
57 The evidence which I think is compelling of the issue of causation is the evidence of Mr Wallace. He obtained a history which is consistent with the plaintiff's description of how the incident occurred. He considered that what he was told was consistent with an hyperextension injury. Accepting the plaintiff's evidence that he had suffered upper thoracic spine pain from the time when the incident occurred, he was of the opinion that the pain was more consistent with a cervical spine injury than a thoracic spine injury.
58 On a close examination of the opinion of Mr Wallace, and in particular his cross-examination, it occurs to me that Mr Wallace was armed with all of the evidence necessary to make a considered analysis on causation.
59 It is for these reasons that I accept that the plaintiff probably suffered pain in his upper thoracic spine at the time of the occurrence of the incident which resulted in an injury to his cervical spine. I do not accept the opinion of Dr Todhunter that the emergence of pain in the upper thoracic spine was merely coincidental.
The Plaintiff's Injuries
60 It is clear from the evidence of the medical practitioners who treated the plaintiff that the plaintiff suffered a fracture at T12, and perhaps at L2, as a result of the strenuous effort which he engaged upon at the time the incident occurred.
61 It is also clear that between the date of the occurrence of the incident and late November 2004, the plaintiff had an actively symptomatic lumbar and lumbo- sacral spine. That is clearly evidenced by the fact that he underwent a number of radiological investigations and referral for specialist treatment.
62 As a consequence of the findings I have made that the plaintiff was suffering from upper thoracic pain from the time the incident occurred, consistent with an injury to his cervical spine, it is also clear that the plaintiff aggravated the pre-existing condition of his cervical spine.[33]
[33] PCB 62
63 I asked Mr Wallace a number questions regarding the mechanism which resulted in the injury to the plaintiff's cervical spine, and also the nature of that injury in order to clarify his evidence. He said:
"Q:
HIS HONOUR: I'm just thinking about whether I have got the picture, Mr Wallace. The lifting episode, it appears to you that it caused a hyperextension injury to this man's upper spine?---
A: Yes. Q: That's your starting point, is it?--- A: Yes. Q: His complaints of mid to upper-thoracic pain you say is more likely
than not to be cervical pain?---A: Yes, cervical in origin. Q: Cervical in origin?--- A: Yes. Q:
There are, as Mr Moulds pointed out, some disc changes in the cervical spine. I'm just concerned to know because it's a bit unclear in my mind, are you saying that there is a probability or an improbability that one or more of those disc changes occurred or was aggravated or in some way influenced by the hyperextension injury?---
A:
Yes. I think that the two places where the spine is tight is at C3-4 and C6-7, and I think when you have a hyperextension injury if those changes were already there, that's the point where you'll get maximal compression of the spine cord and signal change from injury. I think it's quite possible that had this man had an MRI scan for some other reason and it showed his cervical spine, that he had that pre-existing bulging disc at that point. It's possible that he had a disc rupture at the time of his injury but probably less likely, and he probably - these people have a spine canal that looks like a series of hourglasses and the narrowings are bulging discs in front.
Q:
You then conducted, as I understand it, a neurological examination, finding some retarded reflex. I don't think that's the word you used but - - -?
A: Altered reflex in the mid … . Q: What did you attribute that to?--- A: That's a picture of spine cord compression in the middle or upper
cervical spine. So communication … .Q: Compression is caused by what?--- A: Anything at all, but in this instance an injury associated with a
vulnerability due to a narrow spine canal."[34][34] Transcript 61-62
64 I accept Mr Wallace's evidence that the injury suffered by the plaintiff to his cervical spine comprised spinal cord compression, and probably aggravation of pre-existing degenerative changes in the plaintiff's cervical spine.
65 Dr King;[35] Mr Brownbill, neurosurgeon;[36] Dr Symington, neurologist,[37] and Mr Moran, orthopaedic surgeon[38] were of a similar opinion regarding the nature of the plaintiff’s cervical spine injury.
[35] PCB 64-65
[36] PCB 86-87. He examined the plaintiff on a medico-legal basis on 19 August 2009
[37] PCB 91. He examined the plaintiff on a medico-legal basis on 25 August 2005
[38] PCB 96. He examined the plaintiff on a medico-legal basis on 18 October 2005 and 24 January 2007
66 Mr Nye, neurosurgeon, accepted that the plaintiff probably aggravated degenerative changes in his cervical, thoracic and lumbar spine.[39]
[39] DCB 23. He examined the plaintiff for the defendant on a medico-legal basis on 28 November 2007
67 Mr Polke, orthopaedic surgeon, accepted that the plaintiff probably aggravated degenerative changes in his cervical, thoracic and lumbar spine, and also suffered an injury to his right shoulder. He considered that the contribution by the plaintiff's employment to the aggravation of those degenerative changes had ceased.[40]
[40] DCB 59. He examined the plaintiff for the defendant on a medico-legal basis on 17 October 2008
68 Mr Buzzard, general surgeon, accepted that the plaintiff probably aggravated degenerative changes in his cervical spine at the time the incident occurred. On examination, he found symptoms of a cervical nerve root lesion involving the right arm and the radial three digits of the plaintiff’s right hand. These findings are consistent with those of Mr Wallace and Dr King.[41]
[41] DCB 66-68
69 On the basis of this evidence, I find that the plaintiff did suffer an injury to his cervical spine, probably comprising compression of his spinal cord, aggravation of pre-existing degenerative changes in his cervical spine and the production of altered reflexes in his arms.
70 There is little doubt that the plaintiff's treating medical practitioners concentrated their attention on the plaintiff’s lumbar spine until late November 2004 when the plaintiff's complaints of upper thoracic pain were heeded more seriously.
71 Dr Seager provided four medical reports which demonstrate that when he first began treating the plaintiff he was of the opinion that the plaintiff had suffered multi-level degenerative disease in his lumbar spine with disc prolapses and spinal canal stenosis at L2-3 and L5-S1.[42] Dr Seager appears to be alone in diagnosing disc prolapses and spinal canal stenosis at L2-3 and L5-S1.
[42] PCB 54, 56, 57A and 57B
72 Mr Brownbill concentrated more on the plaintiff's cervical spine injury, only referring to the plaintiff’s lumbar spine in passing. Mr Moran was of the opinion that the plaintiff had suffered an aggravation of disc degeneration in his lumbar spine.[43] Mr Polke was of a similar opinion, except that he was of the opinion that the contribution to the plaintiff’s symptoms in his lumbar spine caused by the incident had ceased.[44]
[43] PCB 96
[44] DCB 59
73 On the other hand, Mr Buzzard was of the opinion that the plaintiff suffered an aggravation of pre-existing degenerative changes in his lumbar spine. He considered that it was reasonable to accept that in the absence of any pain experienced by the plaintiff prior to the incident, that the continuation of symptoms complained of by the plaintiff were related to injuries suffered by him as a result of the incident.[45]
[45] DCB 66 and 67
74 On examination, Mr Buzzard found an absence of left knee jerk which suggested to him that the plaintiff had suffered a nerve root lesion in his lumbar spine which he considered might have been related to previous surgery. He observed that there was no radiological evidence to support there ever having been any previous surgery of that kind.
75 Mr Moulds submitted that I should not accept the plaintiff's evidence that he has any persisting symptoms in his lumbar spine because of the history taken by Mr Buzzard that the plaintiff no longer has any lumbar spine pain.[46] However, that must be read in the light of the assessment made by Mr Buzzard, to which I have already referred, where he found pathology in the plaintiff’s lumbar spine which he considered to be consistent with his overall opinion of the incident causing an aggravation of pre-existing spinal pathology.[47]
[46] DCB 64
[47] DCB 67
76 In addition to the finding that I have already made in relation to the plaintiff's cervical spine, I also find that the plaintiff suffered crush fractures in his lower thoracic spine, and an aggravation of pre-existing degenerative changes in his lumbar spine. In that regard, I accept the plaintiff’s evidence, and the evidence of Dr Seager, Mr Moran, Mr Polke and Mr Buzzard.
The Body Function
77 Mr Tobin submitted that I should find that the plaintiff suffered injury at each level of his spine. Furthermore, he submitted that I should, therefore, find that the body function that has been impaired is the function of the spine.
78 A finding of the body function which has been impaired is a question of fact to be determined by the evidence of the plaintiff and from the medical evidence. So much is trite and obvious.
79 I cannot see that there can be any controversy that the spine is a single structure which, for the convenience of the medical fraternity, is described as cervical, thoracic, lumbar and lumbo-sacral. The fact that it is so described does not mean that each level is discrete and separate and comprises separate body functions distinguishable from each other.
80 It is not uncommon to see an application for serious injury based upon, for instance, a knee injury which impairs the function of the knee, but in my opinion, there is nothing to prevent that injury being characterised as an impairment of the function of the leg because inevitably a knee injury will impair the function of the whole leg.
81 Common sense and experience, in addition to an analysis of the evidence, is the key to determining what body function has been impaired.
82 In this case, I find that the plaintiff has suffered injury to his cervical, thoracic and lumbar spine. There seems to be no good reason why they should be treated discretely and separately rather than, as Mr Buzzard put it, that the incident caused an aggravation of pre-existing spinal pathology.[48]
[48] DCB 67
83 Therefore, on my assessment of the plaintiff’s evidence and the whole of the medical evidence, I find that the body function which has been impaired is the spine.
Serious Injury
84 I propose to deal with loss of earning capacity first.
85 The medical evidence appears to me to almost inevitably lead to the conclusion that the plaintiff has no capacity for suitable employment.
86 Such a finding in favour of the plaintiff does not then necessitate making a separate finding with respect to pain and suffering: see Advanced Wire & Cable Pty Ltd v Abdulle (supra).
87 Except for Mr Nye, the preponderance of the medical evidence supports the conclusion that the plaintiff currently has no capacity for any suitable employment: Dr Seager;[49] Mr Brownbill;[50] Mr Polke[51] and Mr Buzzard, who emphatically stated that the plaintiff is totally and permanently incapable of working.52
[49] PCB 57A
[50] PCB 87, however, he based his opinion upon the plaintiff's incapacity to perform his pre-injury duties rather than all employment
[51] PCB 50, however, like Mr Brownbill, he based his opinion upon the plaintiff’s incapacity to perform his
88 Mr Tobin submitted that because the plaintiff has been in receipt of weekly payments of compensation, I could use that as evidence that the plaintiff is incapacitated for not only his pre-injury employment but for suitable employment. He relied upon Ansett Australia Ltd & Anor v Taylor,53 and in particular, the observation made by Ashley JA that the payment of compensation can stand as an admission that a plaintiff has suffered a compensable injury is a matter of significance, but that the conduct of the authority in paying compensation, then standing as an admission, might be capable of a satisfactory explanation.54
89 However, the fact of payment of compensation as an admission that the plaintiff suffered a compensable injury is no longer an issue given the findings I have made on that subject.
90 Mr Tobin then submitted that the fact that payments have been made, and have continued to be made, can also be relied upon by the plaintiff that he has no capacity for suitable employment. I do not accept that submission. It would lead to an extraordinary and indefensible result.
91 For example, if a plaintiff suffered a compensable injury and received weekly payments of compensation, but was later found through surveillance to have a full capacity to function consistent with a capacity for suitable employment that the receipt of weekly payments created some sort of estoppel.
92 I now turn to the plaintiff’s evidence. I accept his evidence that the incident was a dramatic one which resulted in him suffering a spinal injury. I accept that he has not been able to work as a truck driver since the incident occurred.
pre-injury duties rather than all employment
DCB 68
[2006] VSCA 171
paragraph 40
93
In his affidavit sworn 15 July 2008, the plaintiff stated that the impairment of the function of his spine has resulted in major impediments to him in being able to function in a domestic, social and recreational sense, and also with respect to his capacity to successfully undergo rehabilitation and retraining in an attempt to return to a capacity for suitable employment which he can exercise.[55]
94
The plaintiff describes suffering persisting pain in his spine. He uses a cervical spine brace and a walking stick. His mobility is restricted. He is concerned about being bumped in crowded places. His ability to bend, lift or twist is now restricted, as is his capacity to sit, stand and walk for lengthy periods of time. He is restricted in undertaking domestic chores. He is no longer able to chop firewood and go fishing. He has difficulty sleeping. His physical relationship with his female partner is all but over. He is not able to return to work as a truck driver.
95
Mr Moulds submitted that I should not accept the plaintiff’s evidence that he is as incapacitated as he described in his affidavit and in his oral evidence.
96
Mr Moulds submitted that the films taken of the plaintiff on 6 September 2007, 25 August 2008 and 27 August 2008 demonstrate significantly greater physical effort than the plaintiff was prepared to admit to.
97
The film taken on 6 September 2007[56] showed the plaintiff undertaking the following:
[55] subsection (38)(g) of the Act
[56] Exhibit 2
•
at between about 9:28 and 10:19 am - driving a car; driving a car to a service station where he sat in the car; parking a car and then walking with a female companion.
•
at about 10:49 am - pushing a supermarket type trolley which appeared to contain a quantity of goods. He unloaded the goods from the trolley into the boot of a car over some minutes.
98 The film taken on 25 August 2008[57] showed the plaintiff undertaking the following:
[57] Exhibit 3
• at about 9:55 am - holding a small watering can which he raised above shoulder level to water a hanging basket. • at about 9:57 am - bending on a number of occasions to about 45 to– 60 degrees at a tap, refilling the watering can and then watering plants in his garden. • at between about 10:15 am and 10.22 am – using a petrol driven tiller to break up ground in his vegetable patch. On a number of occasions he bent forward to about 45 degrees. He held onto the handles of the tiller as he moved it forward, and when he turned it. At one point he concentrated the tiller on one spot while appearing to exert force while holding onto the handles of the tiller. 99 The film taken on 27 August 2008[58] showed the plaintiff undertaking the following:
[58] Part of Exhibit 3
• at about 10:42 am - alighting from a car holding a walking stick, and then returning to the car. • at about 12:11 pm - holding onto and pulling an empty wheelie bin into a property. 100 Mr Moulds showed the films to the plaintiff and cross-examined him on their content.[59] Essentially, the plaintiff said that none of the activities shown on the film involved any particular or significant physical exertion.
[59] Transcript 34-34 and 62-67
101 Mr Moulds submitted that the plaintiff's denial of what the films showed should be seen in the context of the opinion of Mr Nye, who saw the film taken on 6 September 2007. Mr Nye was of the opinion that it was in stark contrast to the product of his physical examination of the plaintiff on 28 November 2007.
102 As a result, Mr Nye was of the opinion that there was a functional component in the plaintiff’s presentation and possibly deliberate exaggeration of the nature and extent of his physical problems.
103 Dr Seager saw the films taken on 25 and 27 August 2008. He did not consider that they showed anything which contradicted his understanding of the nature and extent of the plaintiff's physical problems.
104 The film which Mr Nye saw was taken from a vantage point which mostly obscured the plaintiff from view. There was a very short passage where the plaintiff was shown pushing the trolley, and a very short passage where the plaintiff was shown removing goods from the trolley and placing them into the boot of the car, however, it was very difficult to discern what he was actually doing and, most importantly, how he was doing it.
105 A medical practitioner will be able to judge whether movement shown on film is of any clinical significance. To that extent, I am slow to discount the opinion of Mr Nye, however, what I saw on the film has not enabled me to come to any conclusion one way or the other as to whether the plaintiff was undertaking any physical movements of any real significance.
106 The only medical practitioner who commented on the film taken on 25 and 27 August 2008 was Dr Seager. Mr Moulds submitted that the use of the tiller was in stark contrast to the plaintiff’s evidence. However, Dr Seager disagreed, and considered that what the plaintiff was doing was within his residual capacity and not inconsistent with someone who was incapacitated.
107 I have weighed up the evidence and have reached the following conclusions. I do not consider that the films are of any real consequence. I am not persuaded that what Mr Nye saw, and indeed what I saw, is capable of giving foundation to a conclusion that the plaintiff is significantly more capable than he says he is. Furthermore, I accept the evidence of Dr Seager that the use of the tiller is of little significance in the overall context of the injuries suffered by the plaintiff.
108 Therefore, I accept the evidence given by the plaintiff, both in his affidavits and given orally, of the extent to which he is troubled by his injuries, and in particular, the extent to which he is incapacitated for suitable employment.
109 I also accept the plaintiff’s evidence that he is, in all probability, unfit for alternative employment. I am fortified in reaching that conclusion not just by the plaintiff's evidence and the medical evidence, but also by reason of the fact that he is a man of fifty-nine years with very modest education who has no reading and writing skills. It is difficult to imagine what work the plaintiff could do which would be suitable given both his physical impairments and his intellectual impediments.
110 I do not accept that the plaintiff can undergo any rehabilitation or retraining which will return him to a capacity which he can exercise in suitable employment. The plaintiff has had a veritable wealth of medical attention which has not been successful in returning him to any capacity for any employment. It is difficult to see how any level of rehabilitation or retraining has any real prospect of returning him to any capacity for any employment.
111 For the foregoing reasons, I am of the opinion that the plaintiff is not only unfit for his pre-injury work as a truck driver, but for all employment. Therefore, I find that the plaintiff has suffered a spinal injury which has resulted in him suffering a loss of earning capacity consequences which are permanent and which may fairly be described as more than significant or marked and as being at least very considerable.
Conclusion
112 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
113 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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