Simpson v G4S Custodial Services Pty Ltd
[2023] VCC 257
•1 March 2023
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISIONRevised
Not Restricted
Suitable for PublicationSerious Injury List Case No. CI-21-00947
PETER JAMES SIMPSON Plaintiff v G4S CUSTODIAL SERVICES PTY LTD
(ABN 37 050 069 255)
First Defendant and VICTORIAN WORKCOVER AUTHORITY Second Defendant ---
JUDGE:
HER HONOUR JUDGE MAGEE
WHERE HELD:
Melbourne
DATE OF HEARING:
17 November 2022
DATE OF JUDGMENT:
1 March 2023
CASE MAY BE CITED AS:
Simpson v G4S Custodial Services Pty Ltd and Anor
MEDIUM NEUTRAL CITATION:
[2023] VCC 257
REASONS FOR JUDGMENT
---Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – paragraph (a) of the definition of “serious injury” – causation – aggravation, acceleration – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Bedeux v Transport Accident Commission [2016] VSCA 127; Alcoa of Australia Ltd v McKenna [2003] VSCA 182; Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Maimonis v Mr John Bourke & Ors [2019] VSCA 302; Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Commonwealth of Australia v Beattie (1981) 35 ALR 369; Casarotto v Australian Postal Commission (1989) 86 ALR 399; Tippett v Australian Postal Corporation [1998] 27 AAR 40; Long v Kmart Australia Ltd [2016] TASSC 6; St Mary’s School v Askwith [2011] VSCA 90; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; APQ v Commonwealth Serum Laboratories Ltd and Anor [1999] 3 VR 633
Judgment: Application dismissed.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr R W McGarvie KC
Mr L PerilliRobinson Gill Lawyers For the Defendants Mr P B Jens KC
Ms K KaradimasMinterEllison HER HONOUR:
Introduction
1In this application, Mr Simpson claims that the pain and suffering consequences of an aggravation and/or acceleration of his recurrent kidney stones satisfies paragraph (a) of the definition of “serious injury” under s134AB(37) of the Accident Compensation Act 1985 (Vic) (“the Act”).
2The plaintiff initially claimed psychiatric impairment pursuant to paragraph (c) of the definition of “serious injury” but abandoned reliance on it at the commencement of the hearing.[1]
[1]Transcript (“T”) 2
3Mr Simpson was diagnosed with coeliac disease when he was very young and has followed a strict gluten-free diet for most of his life.
4Whilst working for the first defendant at Manus Island in July 2013, the plaintiff developed gastroenteritis and was placed in isolation for a number of days which was in accordance with standard operating procedures on Manus Island given the infectious nature of gastroenteritis.
5The plaintiff asserts that during the period of isolation, he was unable to follow his gluten-free diet and that he was also dehydrated (“the incident”).
6It is the plaintiff’s case that this incident led to the aggravation and/or acceleration of a pre-existing but quiescent condition of kidney stones.
7It is not in dispute that the plaintiff’s pre-existing but quiescent kidney stones became symptomatic after the incident.
8It is not in dispute that the plaintiff’s first episode of kidney stones (diagnosed in 2013) occurred in compensable circumstances in the course of his employment with the first defendant.
9The defendants however, dispute that Mr Simpson’s current condition is work related.
10The defendants also submit that if Mr Simpson’s current condition is work-related, the consequences of his current condition do not meet the “serious injury” test.
11The application proceeded in the “usual way”, in the sense that the plaintiff tendered affidavits, medical records and medico-legal reports, and other materials including the incident report made to his employer and some impairment benefit claim documentation.
12The defendants tendered medico-legal reports.
13Only the plaintiff gave viva voce evidence and was cross-examined.
14I have considered all the tendered evidence and the plaintiff’s viva voce evidence, but I shall only refer to the materials to the extent necessary in these reasons.
Questions to be determined
15The questions to be determined by the Court are:
(a) was Mr Simpson’s employment with the first defendant a cause of current kidney stones?
(b) if yes to the first question, are the pain and suffering consequences to Mr Simpson, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being “more than significant or marked” and as being “at least very considerable” in accordance with the narrative test in s134AB of the Act?
Background
16Mr Simpson was born in July 1960 and is currently aged sixty-two. He is divorced. At the time of the hearing, he was temporarily living in Perth, Western Australia. He usually lives in Mildura with his son.
17Mr Simpson completed Year 12 in Sydney. He began his career in the army, before working in the police force, both domestically and in the United Kingdom. While in the United Kingdom, he moved to working in security for a number of organisations. Across the early 2000s, he worked in the United Kingdom, Australia and Canada for different periods in a number of different roles, including as a paralegal, store refurbishment subcontractor, in security and as a loss prevention contractor, as well as in retail work.
18In 2010, he returned to Australia and was unemployed for a period.
19Mr Simpson commenced work with the first defendant in 2012 as a Corrections officer at Port Philip Prison.
20In 2013, he became a shift officer for the first defendant at the Manus Island Offshore Asylum Seeker Processing Centre.
21In that role, Mr Simpson’s work involved escorting detainees and monitoring safety and security. He deposed that Manus Island has a hot and humid climate, and there were problems with hand hygiene. He also deposed that his workplace had difficulty catering to his gluten-free diet.
The incident
22In mid-July 2013, Mr Simpson developed gastroenteritis with diarrhoea symptoms whilst at work. He was placed in isolation, where he says he was not adequately fed or hydrated, which he asserts led to the development of kidney stones.
23For the dehydration, he was placed on an IV drip at the local medical centre. On 24 July 2013, he returned to work but still felt unwell. Later in the day, he noticed blood in his urine, and sought immediate medical attention.
24On 29 July 2013, Mr Simpson presented to the work clinic with cloudy dark urine and renal pain. He was sent to Australia for medical tests and treatment.
25On 5 August 2013, a CT scan of the abdomen and pelvis conducted in Ballarat detected kidney stones.
26Mr Simpson was referred to a urologist, Dr Lazaro. Dr Lazaro operated and removed left kidney stones on 14 August 2013 at Royal North Shore Private Hospital in Sydney.
Accepted WorkCover claim
27The plaintiff submitted a claim for compensation for kidney stones in January 2014 which was ultimately accepted.
28He made a more expansive claim for impairment benefits in November 2015.[2]
[2]Exhibit P13, Plaintiff’s Amended Court Book (“PCB”) 268-269
29Ultimately, in March 2020, Gallagher Bassett Services Pty Ltd accepted liability for the plaintiff’s kidney stones, gastroenteritis and psychiatric condition, in respect of the impairment benefit claim. Liability had been rejected for a number of unrelated conditions.[3]
[3]Exhibit P14, PCB 270-279
30Counsel made no submissions as to the relevance of the acceptance of various WorkCover claims, though Senior Counsel referred generally to the fact that an impairment benefit claim had been accepted for kidney stones.[4]
[4] T94, L5
31The acceptance of the initial compensation claim and the impairment benefits claim is of limited relevance in this case given the very limited medical opinions available at the time of acceptance.[5]
[5] Bedeux v Transport Accident Commission [2016] VSCA 127 at paragraph [73]
32It was not in dispute that the plaintiff suffered a compensable injury in 2013 with the onset of the first kidney stones.
33What is in dispute in this case is the relationship between the incident and his current condition.
Post-injury treatment and medical history
34Following the initial detection of kidney stones in August 2013, Mr Simpson had recurrences of kidney stones in February 2014, March 2014, September 2015 and mid 2017, each requiring operative treatment.
35The medical evidence is somewhat equivocal as to the date of initial diagnosis but it is clear that Mr Simpson was also diagnosed with a significant unrelated nephrotic syndrome in either September 2013 or September 2015.
36Mr Simpson has developed other health issues including: an episode of gallstones resulting in a laparoscopic cholecystectomy in September 2013; pulmonary emboli in 2016, treatment of which caused Mr Simpson to experience a bout of depressive mood and sleeping difficulties; diagnosis of lymphocytic colitis in January 2017; a diagnosis of medication induced Bipolar, Depressive Disorder and Anxiety Disorder in August 2018, and a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood in March 2020.
37Mr Simpson did not return to work until October 2013. He was off work again in February 2014 for left-loin pain attributed to the February 2014 kidney stone, then commenced an alternative job at the Hobart Casino in April 2014.
38In about 2015, he switched to a new employer and worked at the Acacia Prison in Perth. He finished there in about July 2015 and has been unemployed since.
Causation – the First Question
Was Mr Simpson’s employment with the First Defendant a cause of current kidney stones?
39The primary issue in this case is causation. It was accepted by Senior Counsel for the plaintiff that if the plaintiff fails to meet the causation test, then the proceeding fails in its entirety.[6]
[6]T102, L30-31; T103, L1
40I find that the plaintiff fails on the causation issue.
Relevant legal principles in aggravation/acceleration cases
41In an application under s134AB of the Act, the initial focus must be upon the compensable injury claimed.[7]
[7]Alcoa of Australia Ltd v McKenna [2003] VSCA 182 per Ashley JA at paragraphs [35]-[55]
42If there was no compensable injury, then the question of whether there was serious injury does not arise.[8]
[8]Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183 per Ashley JA at paragraph [38]
43Here the claimed injury is allegedly an aggravation or acceleration of a pre-existing condition.
44The relevant definitions of “injury” and “disease” are now found in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013:
“injury” includes –
“(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;”
“disease” is defined, inter alia, as:
“(b)the aggravation, acceleration, exacerbation or recurrence of any pre-existing disease.”[9]
[9]For the present purposes, there is no material difference between the Act and the Workplace Injury Rehabilitation and Compensation Act 2013
45The High Court, in Federal Broom Co Pty Ltd v Semlitch,[10] has directed that the words “aggravation, acceleration, exacerbation or deterioration” are not synonymous with each other.
[10]Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (“Federal Broom”) per Kitto J at 634
46“Acceleration” was described by Windeyer J in Federal Broom as:
“… a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. … .”[11]
[11] Ibid per Windeyer J at 639-640
47In Maimonis v Mr John Bourke & Ors,[12] the Court was taken to the suite of cases commencing with Federal Broom;[13] Darling Island Stevedoring and Lighterage Co Ltd v Hankinson;[14] Commonwealth of Australia v Beattie;[15] Casarotto v Australian Postal Commission;[16] Tippett v Australian Postal Corporation[17] and Long v Kmart Australia Ltd.[18]
48I have considered those cases, as well as the case of St Mary’s School v Askwith,[19] when considering the meaning of the words “aggravation” and “acceleration”.
49For the reasons that follow, I find:
(a) the kidney stones would have developed as part of the natural progression of the kidney stone disease if the employment (incident) had not taken place;
(b) the plaintiff has not established the necessary causal link; and
(c) there is no current work-related aggravation or acceleration of the plaintiff’s pre-existing kidney stones.
Submissions on causation
46Counsel for the plaintiff relied upon the opinion of Associate Professor Anthony Buzzard, general surgeon, contained in a report dated 26 June 2014,[20] to support a causal link, and then relied upon the opinion of Associate Professor Paul Champion de Crespigny, nephrologist, that the plaintiff’s kidney stone disease may have been exacerbated by the work incident.
47The defendants submitted that the high point of the plaintiff’s case was the opinion of Associate Professor de Crespigny that the plaintiff developed symptoms of kidney stone disease up to two to three years earlier than he would have otherwise absent the incident.[21] The defendants relied upon the opinion of Mr Ross Snow, urologist, that any work-related aggravation of the kidney stones was temporary.[22]
Commentary on experts on causation
[12][2019] VSCA 302 (“Maimonis”)
[13] Supra
[14] (1967) 117 CLR 19
[15](1981) 35 ALR 369
[16](1989) 86 ALR 399
[17][1998] 27 AAR 40
[18][2016] TASSC 6
[19][2011] VSCA 90
[20]Exhibit D3, DCB 65-72
[21] T85, L17-21
[22] T87, L9-16
50All the relevant experts agree that the kidney stones which first manifested in mid 2013 were not caused by the incident.
51I have placed little weight on Associate Professor Anthony Buzzard’s opinion and no weight on the opinion of Associate Professor Paoletti, psychiatrist, for the reasons set out below.
52In order to resolve the causation issue, I have placed a great deal of weight on the opinions of Associate Professor de Crespigny and Mr Snow.
53These two experts are in substantial agreement on most matters of importance although when expressing their opinions, they have used somewhat differing language.
54The differences in opinion were not clarified in viva voce evidence as neither expert was called to give evidence.
55Associate Professor de Crespigny and Mr Snow agreed on a number of important points:
(a) the incident may have exacerbated or aggravated the quiescent stones;
(b) the plaintiff did develop further kidney stones in 2014, 2015 and 2017; and
(c) it is likely that he will develop further kidney stones in the future.
56The experts disagree on the important question of the extent of the incident aggravation or acceleration (discussed in more detail below).
The Plaintiff’s treating doctors on causation
57The plaintiff has not produced any contemporaneous medical material from any current treating doctors.
58The only treating doctor who commented on causation was Dr Harry Moody, nephrologist, who treated the plaintiff at the Sir Charles Gairdner Hospital, Western Australia, on 12 September 2015. In a letter to the plaintiff’s former solicitors, Shine Lawyers Pty Ltd, dated 31 October 2016, Dr Moody stated that he had not been consulted in relation to any injuries sustained in the course of the plaintiff’s employment with G4S Australia while based at Manus Island, and said: “As a physician and nephrologist, physical injuries were not part of, nor, as far as I am aware, contributing to the medical issues for which I provided medical care to Mr Simpson.”[23] Dr Moody was treating the plaintiff for his unrelated nephrotic condition. This report did not support a causal link.
[23]PCB 179
The Plaintiff’s medico-legal material on causation
59Associate Professor Anthony Buzzard’s report is dated 26 June 2014.[24] Associate Professor Buzzard is a general surgeon. In his report, he noted that many of the conditions suffered by the plaintiff were technically outside the field of a general surgeon and therefore he provided a qualified opinion as he was asked to prepare an urgent report. In that regard, his opinion in 2014 as to the causal relationship between the employment and the development of kidney stones has to be treated with a degree of caution. He said the plaintiff was “probably suffering from some degree of dehydration at the time of onset of the symptoms. In other words there probably was a relationship between the fact that his gluten intolerance problem was associated with dietary restrictions in turn being associated with the development of kidney stones.”[25]
[24]Exhibit D3, DCB 65 (which is referred to in further detail below at paragraph 101)
[25] Exhibit D3, DCB 71
60Given the qualified opinion provided by Associate Professor Buzzard and given that it was a report dated 26 June 2014, his opinion does not assist me in reaching a conclusion as to the current link (if any) between the incident and the plaintiff’s position as at the time of the hearing of this application.
61The late Dr Rodney Syme, urological surgeon, was commissioned in 2017 to conduct an impairment assessment of the plaintiff. In a report dated 18 August 2017,[26] he noted that the plaintiff had an accepted claim for kidney stones. Dr Syme did not address the question of causation. Dr Syme noted that the plaintiff had intermittent symptoms of kidney stone disease which did not require continuous treatment, but required surveillance and that, as at August 2017, the plaintiff’s latest urinary imaging studies revealed only tiny remaining stones in the left kidney. Dr Syme considered that, on the plaintiff’s past medical history, it was likely, but not certain, that he would develop further kidney stones requiring intermittent treatment. Dr Syme did not make any direct comment in his report as to the ongoing relationship between the incident and the tiny remaining stones in the left kidney.
[26] Exhibit P 12, PCB 252-253
62The plaintiff also relied, in part, on reports from Associate Professor Nick Paoletti, dated 23 August 2018 and 8 February 2022 “(finalised 22 March 2022)” (sic).[27] Associate Professor Paoletti, a psychiatrist, is not qualified to comment on any causal link between the plaintiff’s physical condition and his employment. Associate Professor Paoletti’s opinions do not assist in resolving the causation issue.
[27]Exhibit P16, PCB 99-113; 123-140
63As previously discussed, the plaintiff relied heavily on the opinions of Associate Professor de Crespigny contained in three reports dated 26 August 2018, 9 October 2021 and 2 June 2022.[28]
[28] Exhibit P3, PCB 114-122; 141-143; 280-283
64In his first report, Associate Professor de Crespigny expressed the opinion that kidney stones can be associated with volume depletion in association with exposure to hot weather, either in the tropics or related to acute gastroenteritis and secondary volume depletion. On that basis, Associate Professor de Crespigny said that the kidney stone disease “may” have been exacerbated by his work incident. Given that there were multiple stones in the initial CT scan undertaken on 5 August 2013, it was his opinion that it was likely that at least some of the stones pre-dated his gastrointestinal illness and therefore the illness on Manus Island was a contributing factor rather than a causative factor. He expressed the opinion that it was likely that the plaintiff would develop further stones and may well need intervention to remove those stones.
65In his second report of 9 October 2021, Associate Professor de Crespigny was asked to consider Mr Ross Snow’s views expressed in a report dated 22 July 2021.[29] He stated that Mr Snow’s opinion did not cause him to alter his earlier opinion, and maintained the view that the plaintiff’s dehydration and diet were not causative of his kidney stone condition, but it contributed to his condition and, as a result, “aggravated his condition”.[30]
[29]Exhibit D1, DCB 30-34
[30]Exhibit P3, PCB 142
66Associate Professor de Crespigny agreed with Mr Snow that the plaintiff’s coeliac disease may have predisposed the plaintiff to the development of kidney stones. He agreed with Mr Snow’s opinion that it was more likely than not that the plaintiff was suffering from kidney stones prior to the episode of dehydration on Manus Island. Associate Professor de Crespigny maintained the opinion that while dehydration and diet were not causative of the kidney stone condition, they contributed to, and therefore aggravated, his condition.
67In his final report of 2 June 2022, Associate Professor de Crespigny was asked to clarify his opinion in relation to aggravation, and he used the words aggravation/exacerbation interchangeably. He expressed the view that the plaintiff developed symptoms of kidney stone disease earlier than he would have otherwise developed. He stated the following:
“… This exacerbation could have been months or years prior to when the stone-related symptoms would have developed. Whilst I do not consider it likely that he developed symptoms related to kidney stones as long as 10 years prior to when the symptoms would otherwise have developed, I do consider they could have developed up to two or three years earlier. That therefore exposes him to an earlier sequalae and therefore in my opinion, an earlier risk of a substantial adverse outcome. The difficulty is that kidney stones can develop rapidly in some individuals and it is difficult to predict the rate of development of stones in any individual.”[31]
[31] Exhibit P3, PCB 282
68Associate Professor de Crespigny then expressed the view that “any aggravation was permanent”. It is not clear what he means by this expression, but it would appear, consistent with his earlier opinion in his report, that it was his view that the first kidney stone symptoms developed up to two to three years earlier than they would have had the incident not occurred.
69According to Associate Professor de Crespigny, “his cycle of recurrent symptomatic kidney (renal) stones more likely than not began earlier than would have otherwise have occurred”.[32]
[32]Ibid at PCB 283
70On this analysis, I am satisfied that the plaintiff would have developed kidney stone symptoms by 2015 or 2016 if the incident had not occurred.
The Defendant’s medico-legal material on causation
71Dr Andrew Jakobovits is a gastroenterologist. He prepared a report dated 17 August 2017[33] which mainly dealt with the episode of gastroenteritis suffered by the plaintiff in July 2013. He expressed the view that the plaintiff’s prognosis was excellent from the point of view of gastroenteritis. Dr Jakobovits’ opinion does not take the causation issue any further.
[33]Exhibit D3, DCB 51-56
72Mr Ross Snow, urologist, prepared two reports dated 22 July 2021 and 12 July 2022.[34] In his first report, Mr Snow expressed the opinion that the plaintiff was a recurrent kidney stone former on a background of coeliac disease. He considered the prognosis should be fairly good, but given the events since 2013, it could be expected that the plaintiff would form further kidney stones in due course, which may require treatment. (Associate Professor de Crespigny agreed with this.) As noted earlier, both Associate Professor de Crespigny and Mr Snow did not believe that the incident caused the development of kidney stones. Mr Snow thought the longstanding coeliac disease may have contributed to the formation of kidney stones over a period of years. He accepted that a chronic bad diet or poor fluid intake could exacerbate a situation and predispose a person to kidney stones and that being in an environment where his diet was not gluten free and the weather was hot, would increase the risk of kidney stone formation. Mr Snow accepted that the 2013 presentation of kidney stones may have been exacerbated by the incident, but did not accept that the subsequent kidney stone episodes of 2014, 2015 and 2017 were a direct result of the incident. It was his view that the stones could form in the absence of any other medical issue.
[34]Exhibit D1, DCB 30-34; DCB 35-36
73In his supplementary report of 12 July 2022, Mr Snow agreed with most of Associate Professor de Crespigny’s opinions. He described Associate Professor de Crespigny’s reports as “excellent”. Mr Snow accepted the analysis that the incident may have contributed or aggravated the first instance of kidney stones (that is, in July 2013). He noted that both experts agreed that it was more likely than not that the plaintiff suffered from kidney stones for at least several months prior to July 2013 and, as mentioned earlier, he accepted that the relative dehydration may have accelerated or aggravated the stone production as at that time. Effectively, Mr Snow’s opinion is that the incident led to a temporary aggravation of the plaintiff’s kidney stone production.
Findings on causation
74I find that the plaintiff has not established the necessary causal link between the incident and his current situation.
75Taken at its best, on the medical material, I find that there was temporary aggravation of his underlying kidney stones as a result of the incident in June 2013.
76The high point of the plaintiff’s case is, on the de Crespigny analysis, that the incident brought on the symptoms of kidney stones up to two to three years earlier than had the incident not occurred.
77In other words, the evidence is that the plaintiff was always going to develop kidney stones, and that such stones were in existence but asymptomatic prior to the incident.
78Adopting the de Crespigny analysis, the plaintiff would have developed kidney stone symptoms by 2015 or 2016 if the incident had not occurred.
79To that end, I prefer the opinion of Mr Snow that any aggravation to the plaintiff’s kidney stones which was related to the incident in 2013 at Manus Island was temporary and short-lived and I reject Associate Professor de Crespigny’s opinion that there remains a permanent aggravation from the incident.
80I find that the plaintiff had undergone treatment for subsequent kidney stones in 2014, 2015 and 2017 in the form of operative intervention including laser surgery.
81I find that there is no causal link between the plaintiff’s current quiescent kidney stone disease and the incident.
82The conclusion I have reached on causation means that the plaintiff fails.
The Second Question – “serious injury”
83Even if it was assumed that the plaintiff continues to suffer from an incident related aggravation or acceleration of his kidney stone disease, I am not satisfied that any additional impairment resulting from such aggravation or acceleration qualifies as a “serious injury”.
Submissions on “serious injury”
84The plaintiff submitted that there was no attack on credit in this case.[35]
[35] T91, L22-23
85It was submitted that the range of potential consequences identified by Associate Professor De Crespigny might, in a general sense, found a finding of serious injury but this submission was not really pressed, rather, the real nub of the submission was that Associate Professor De Crespigny was of the view that it was more likely than not that the plaintiff would suffer from further episodes of kidney stones in the future.
86Senior Counsel for the plaintiff appropriately accepted that the only currently identified consequence was ongoing pain, and the use of ongoing medication.[36]
[36] T99, L2-5; T100, L30-T101, L2
87The defendants submitted:
(a) that there was no evidence that the plaintiff had had any formal medical treatment for kidney stones since 2017 (when he last had laser surgery);
(b) that his evidence as to the occasional use of Tramadol and Panadol was vague in the extreme;[37] and
(c) that evidence was not sufficient to meet the “serious injury” test.
[37] T66 L17-21
88Further, it was put that an inference ought to be drawn that the requirement for Tramadol does not trouble him to the extent that he needs to attend a general practitioner or specialist.[38] Having considered the evidence as a whole, I am prepared to draw that inference.
[38] T66, L27-31; T67 L1-2.
89The defendants also submitted that there was a real question as to how often the plaintiff needed treatment for the kidney stones and how frequently the stones developed.[39]
[39] T68, L12-15
90The defendants noted that the majority of consequences claimed by the plaintiff were a result of his unrelated nephrotic condition and were thereby excluded from consideration.[40] This was conceded by the plaintiff in cross-examination and therefore could not be relied upon by the plaintiff to establish that any consequences properly attributable to his incident (employment) related condition failed to meet the statutory test.
[40] Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
91The defendants referred to the case of APQ v Commonwealth Serum Laboratories Ltd and Anor[41] to rebut the proposition that a fear of what might happen in the future can be factored into consequences. The plaintiff did not give evidence that he feared the potential consequences, so there is no need to decide this point.
[41] [1999] 3 VR 633
The Plaintiff’s evidence regarding consequences
92The plaintiff swore two affidavits; the first affidavit was sworn on 28 September 2020 and the second affidavit on 20 April 2022.[42]
[42] Exhibit P2, PCB 85-93 and PCB 94-98
93In his first affidavit, the plaintiff said he was suffering from the following consequences related to his kidney stones:
·“I currently suffer from constant left kidney pain with flare ups. The pain is in the left kidney area and back and belly. I experience cramping, diarrhea, and burning pain on urination. I have occasional blood in my urine. I suffer from feelings of nausea, reflux, sweats and shivers. An attack of pain can happen out of the blue and is very debilitating and tends to wipe me out.”
·“I suffer from a variety of physical restrictions and symptoms. I have difficulty walking for longer periods, kneeling, and squatting. I struggle to sit comfortably or get in and out of chairs. I have low energy. I have put on weight and have slowed my activity.”
·“I suffer from sleep disturbance, and I often have to wake in the night to urinate.”
·“I previously enjoyed many hobbies and pastimes such as pushbike riding, walking, searching for antiques and collectibles, visiting heritage buildings, tennis, and ballroom dancing which have been impacted by reason of my serious injuries. I am less outgoing, and I tend to avoid crowds.”[43]
[43]Exhibit P2, PCB 85-93, paragraphs 47-50
94In his second affidavit sworn on 20 April 2022, the plaintiff said the following:
·“I continue to suffer from debilitating symptoms generated by my kidney stones. Namely, frequent and debilitating left sided kidney pain with flare ups of pain, cramping, diarrhea, and burning on urination with occasional blood, nausea, reflux, sweats and shivers. The attacks of pain remain relatively common and are very debilitating.”
·“I continue to suffer from a variety of physical restrictions and symptoms due to my kidney stones. I continue to have difficulty walking for longer periods, kneeling, and squatting. I still struggle to sit comfortably or transfer in and out of chairs.”
·“I continue to suffer from sleep disturbance, and I often have to wake in the night to urinate. My hobbies and pastimes remain impacted by my serious injuries as deposed of in my earlier affidavit. I continue to suffer from household and domestic restrictions as deposed of in my earlier affidavit.”
·“I continue to have problems with my nephrotic syndrome, but even if it were not for this condition, I would still be in strife due to my kidney stones alone.”[44]
[44]Exhibit P2, PCB 96-97, paragraphs 22-25
95In cross-examination, the plaintiff made significant concessions in relation to these consequences:
(a) other than the use of prescription medication, he had not had any treatment for his kidney stones for a number of years;[45]
[45] T35, L25-31; T36, L1-7; T36, L21-26
(b) he had one single prescription for Tramadol in 2022 but he took the medication sparingly;[46]
[46] T40, L16-21.
(c) when he used medication, he took one Tramadol tablet and two Panadol tablets;[47]
(d) blood in his urine was related to his nephrotic condition;[48]
(e) fluid retention was his biggest problem and that this was related to his nephrotic condition;[49]
(f) fluid retention in itself caused significant consequences including:
§weight gain to well over 100 kilograms[50]
§caused him to struggle walking[51]
§interfered with kneeling and squatting[52]
§interfered with getting in and out of chairs[53]
§significantly interfered with sleep due to having to urinate frequently at night.[54]
[47] T40, L27-30
[48] T27 L 22-26
[49] T27, L27-31; T28, L1-8; T28, L27-30; T25, L25-28
[50] T25, L24-28
[51] T25, L24-28; T28, L2-5
[52] T28, L2-5
[53] T28, L11-13
[54] T28, L23-30
Comment on the Plaintiff’s evidence
96The plaintiff presented as a straightforward honest witness who made fair and appropriate concessions in cross-examination, even where such concessions were against his interests.
97This is not a credit case.
98The issues in this case do not rest on the plaintiff’s veracity but rather on a detailed analysis of the medical evidence.
The Plaintiff’s treating doctors on consequences
99As noted above, the plaintiff has not produced any contemporaneous medical material from any current treating doctors.
100The medical reports from treating doctors above are old reports. The last report in time is dated August 2018. These reports are of limited assistance.
The Plaintiff’s medico-legal material on consequences
101Associate Professor Anthony Buzzard’s report is dated 26 June 2014.[55] At the time of his examination, Associate Professor Buzzard found that the plaintiff was suffering “no symptoms now”.[56]
[55]Exhibit D3, DCB 65
[56] Exhibit D3, DCB 69
102The late Dr Rodney Syme, urological surgeon, in August 2017, noted that the plaintiff had intermittent symptoms of kidney stone disease without describing the symptoms.[57]
[57] Exhibit P12, PCB 253
103In August 2018, the plaintiff, when describing physical symptoms, told Associate Professor Nick Paoletti that he would retain fluid and swell up “like the Michelin man,” that his weight fluctuated when he had fluid retention and that his sleep was affected.[58] On review in February 2022,[59] the plaintiff told Associate Professor Paoletti that on some nights he would have reasonable sleep but on other nights he would be up and down with his kidney function. He again referred to the fluid retention and fluctuating weight.
[58] Exhibit P16, PCB 103, 105
[59]Exhibit P16, PCB 123-131
104Associate Professor de Crespigny examined the plaintiff on one occasion on 9 August 2018. Whilst he prepared three reports dated 26 August 2018, 9 October 2021 and 2 June 2022, the latter two reports were supplementary reports.
105In his first report, Associate Professor de Crespigny said that the plaintiff had residual left renal calculi[60] but did not set out any of the plaintiff’s contemporaneous complaints or symptoms as at the time of the examination and he noted no renal masses on clinical examination.
[60] Exhibit P3, PCB 120
106In his third report, Associate Professor de Crespigny set out the potential consequences of kidney stones as follows :
“The consequences of kidney stones can be serious as kidney stones can result in multiple sequelae including, but not limited to, blockage of a kidney, decline in kidney function, loss of a kidney, ongoing pain and stone associated urinary tract infections.”[61]
[61] Exhibit P3, PCB 281
107Associate Professor de Crespigny did not say that the plaintiff had suffered, or was suffering, from any of these potential consequences.
108None of the above reports assist me in reaching a conclusion as to the plaintiff’s position as at the time of the hearing of this application.
The Defendant’s medico-legal material on consequences
109Dr Jakobovits was told in mid 2017 that the plaintiff could not get out of bed on some days because of kidney stone pain and that he was taking a variety of medications for his numerous conditions including Tramadol and Panamax.[62]
[62] Exhibit D2, DCB 53
110Mr Ross Snow, urologist, prepared two reports on the papers dated 22 July 2021 and 12 July 2022.[63] He did not examine the plaintiff.
[63]Exhibit D1, DCB 30-34; DCB 35-36
111These reports do not assist me in reaching a conclusion as to the plaintiff’s position as at the time of the hearing of this application.
Findings on Second Question
112Insofar as the plaintiff’s current kidney stone condition is concerned, I am unable to reach any definitive findings due to the lack of any current medical material. No evidence has been produced of any clinical examination of the plaintiff by any medical practitioner after August 2018.
113I accept the plaintiff’s evidence and his concessions in cross-examination that the bulk of his ongoing physical complaints are due to his unrelated nephrotic condition.
114The plaintiff’s account of ongoing intermittent left kidney pain requiring the use of medication was so vague, imprecise and unreliable that it does not satisfy the serious injury test.
Disposition
115The plaintiff has not established the necessary causal link and therefore fails on the first question.
116He has also failed to establish that he has sustained a “serious injury” as defined.
117The plaintiff has not discharged his onus on either question one or question two.
118The application is therefore dismissed.
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