Singleton v Cornice Connection Pty Ltd

[2011] VCC 1480

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-10-04324

RUSSELL SINGLETON	Plaintiff
v
CORNICE CONNECTION PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2011
DATE OF JUDGMENT:	28 September 2011
CASE MAY BE CITED AS:	Singleton v Cornice Connection Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1480

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – pain and suffering damages only – causation – range case.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Blanden SC with	Maurice Blackburn
Mr M Cvjeticanin
For the Defendant	Mr D Churilov	Hall & Wilcox
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 24 September 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant. The plaintiff alleged the injury to his lower back occurred on or about 27 August 2007. The body function which the plaintiff says has been lost or impaired is his lower back with referred pain into his right leg.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering damages only. The plaintiff abandoned his application in respect of psychiatric injury and loss of earning capacity as a result of the injury to his back on 27 August 2007.[1]

[1]             Transcript (“T”) 3

3          Mr Blanden SC and Mr Cvjeticanin of Counsel appeared for the plaintiff and Mr D Churilov of Counsel appeared for the defendant.

4          At the commencement of the proceedings, Mr Churilov, on behalf of the defendant, stated that the issues in this application were:

(i)	whether the plaintiff satisfied the threshold for “serious injury” under the Act in the sense that the consequences flowing from the injury were “at least very considerable”. It was a range case;
(ii)	insofar as the plaintiff is alleging injury to his right leg, and/or right foot drop symptoms, that the issue of causation was in dispute;
(iii)	the plaintiff’s credit was in dispute.

5          The following evidence was adduced during the hearing:

•  The plaintiff gave evidence and was cross-examined.

•  The plaintiff tendered the following documents:

ƒ	Exhibit A – Plaintiff’s Court Book, pages 13-80.
ƒ	Exhibit B – Defendant’s Court Book, pages 19-24 and 31-41.

ƒ The defendant tendered the following documents:

ƒ	Exhibit 1 – Defendant’s Court Book, pages 3-18, 25-30, 42-45C and 46-65.
ƒ	Exhibit 2 – Two letters of Dr Widjaja to Dr Zhao dated 4 June 2008 and 10 October 2008.
ƒ	Exhibit 3 – Victorian Rehabilitation Centre Discharge Report dated 30 November 2008.

6          The matter that I have to consider is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of a body function to his lower back.

The Statutory Scheme

7 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

8          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.[2]
(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”.[3]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)	Sub-section (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)	Sub-section (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)	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 sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[2] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[3]             Barwon Spinners, at paragraph 33

9          I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court will give on a 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

10        The plaintiff was born in England on 18 October 1953 and is now aged fifty- seven years. The plaintiff migrated to Australia in 1974. He is married to his second wife. He has grown-up children from his previous marriage. The children live independently.[4]

[4]             PCB 14

11        The plaintiff has worked in many and varied sales type positions prior to commencing work with the defendant in 1998. His sales work involved on- the-road sales for hairdressing products, real estate agency work and building developer sales related employment.[5] In 1998, he commenced work with the defendant as a manufacturer of cornices. The nature of his work was such that he would be paid bonuses if his production was above a certain quota.

[5]             PCB 14

12        The plaintiff remained in employment with the defendant until he was terminated in September 2008.[6] Prior to his termination, he was injured on 27 August 2008 in the course of his employment with the defendant.[7] The plaintiff was injured whilst making a special cornice which weighed in excess of 50 kilograms. In the course of removing the cornice from the mould, he twisted his back and felt an immediate pain to his lower back and into his right buttock and thigh. The plaintiff reported the incident to Mr Waddington, a storeman at his place of work.[8]

[6]             PCB 20

[7]             PCB 15

[8]             PCB 16

13        He went home and used the following weekend to recuperate. By the Sunday, the pain was at such a level that he went to the Frankston Hospital where his back was x-rayed. He returned to work, but was unable to perform his duties. He then went to the Frankston Hospital where his leg collapsed underneath him. He subsequently went to see his general practitioner, Dr Zhao, and as a result of that, ended up in the Valley Private Hospital where he was transferred to the South Eastern Private Hospital.[9] He remained in the South Eastern Private Hospital for two weeks. He was then transferred to the Victorian Rehabilitation Centre, where he spent a further two weeks. He was discharged from the Victorian Rehabilitation Centre on 13 October 2007.[10]

[9]             PCB 17

[10]           PCB 17

14        Whilst the plaintiff was in South Eastern Private Hospital, he was examined by Dr Xun Li. He was then prescribed Panadol, Oxycontin and Voltaren, together with laxatives to assist with his symptoms. He was subsequently put on Endep and an MRI was arranged which showed a disc prolapse comprising the left L5 nerve root. He was reviewed by Mr Chris Xenos, neurosurgeon, as an inpatient. Mr Xenos was of the view that surgery was not indicated in this particular case. The plaintiff was then transferred from South Eastern Private Hospital to the Victorian Rehabilitation Centre on 2 October 2007.[11]

[11]           PCB 32

15        The plaintiff was treated by Dr Harry Widjaja. On examination, Dr Widjaja found that –

“His lower limbs showed weakness primarily in the left leg. There was some distal weakness in the right leg as well. There was some bilateral sensory loss in the L4/5 S1 dermatomes.”[12]

[12]           PCB 34

16        The plaintiff, whilst at the Victorian Rehabilitation Centre, progressed significantly in the sense that he had gone from initially using a walking frame to using crutches and then a single point walking stick. The major focus of the treatment at the Victorian Rehabilitation Centre was to control the plaintiff’s pain. Dr Widjaja’s opinion is stated as follows:

“In terms of the diagnosis, I believe that he did sustain a back injury. I am uncertain of the exact explanation of his pain. There are a number of changes in the MRI that may not necessarily explain all his symptoms. The fact remains that there were genuine physical signs consistent with some neurological disturbances affecting the right leg and left leg primarily.”[13]

[13]           PCB 37

17        The plaintiff complained of symptoms in his lower right leg and ankle. Dr Widjaja is of the opinion that the right ankle symptoms are primarily associated with a reduced sensation in the right L4.

18        Dr Widjaja referred to an incident which occurred in July 2008. On that occasion, the plaintiff is said to have taken an overdose of medication and he was admitted to the Berwick Emergency Department.[14] He was seen by a CAT team at that time. It was thought that the plaintiff was suffering from depression and should be treated for it. The plaintiff has elected not to receive any treatment for depression or any other psychological or psychiatric condition and makes no claim for it in this application.

[14]           PCB 19, paragraph 25

19        Dr Wen Zhao, general practitioner, in his latest report dated 10 May 2011 diagnosed the plaintiff with:

[15]           PCB 30

• chronic back pain following back strain injury;

• lumbar disc L4-5 bulging and compressing to the left L5 nerve root.[15]

20        The general practitioner, Dr Wen Zhao noted a previous history of sciatica relating to the plaintiff on 2 January 2000. Dr Zhao is the current treating general practitioner and has been managing the plaintiff’s treatment conservatively. The ongoing medication of Nurofen is the only medication taken by the plaintiff at this time. The plaintiff’s evidence is that he takes four to six Nurofen tablets five out of seven days per week.[16]

[16]           PCB 23

21        The plaintiff was examined by Dr Clayton Thomas, rehabilitation and pain medicine consultant, on 24 March 2011. Dr Thomas made the following findings:

“It would appear that he sustained a disc extrusion at L4/5 on the left hand side. … He does get some referred pain into the right more so than the left leg, but there is certainly no evidence for radiculopathy.

The disc has resorbed almost certainly. … Nonetheless, a resolution of a disc extrusion does not necessarily lead to a resolution of the condition. He has persistent symptoms across his lower back.”[17]

[17]           PCB 56

Dr Clayton Thomas was of the view that the prognosis for the plaintiff was one of persistent pain and disability.

22        Professor Richard Bittar, consultant neurosurgeon, examined the plaintiff on 29 June 2011. Professor Bittar found that the MRI of the lumbosacral spine performed on 18 September 2007 revealed a probable L4-5 disc extrusion with a compression of the left L5 nerve root.[18] Professor Bittar stated as follows:

“There was a mild disc bulge at L5/S1 making contact with the descending left S1 nerve root. There was bilateral facet joint degeneration changes at L5/S1.”[19]

[18]           PCB 59

[19]           PCB 60

He found that there was clinical evidence of lumbar radiculopathy. However, the radiological investigations in 2007 demonstrated neural compression on the left-hand side but not on the right-hand side (the side of the plaintiff’s neurological deficits). Professor Bittar was of the opinion that the injury which occurred on 27 August 2007 had been a significant contributing factor to the above diagnosis. Professor Bittar was of the view that the plaintiff was “likely to suffer from ongoing pain and numbness into the foreseeable future”.[20]

[20]           PCB 60

23        Mr Peter Battlay, orthopaedic surgeon, assessed the plaintiff on behalf of the defendant. In his report dated 17 December 2007, under the heading “Discussion”, Mr Battlay stated as follows:

“The L4/L5 disc extrusion appears to have affected both legs, and this is somewhat puzzling, but clinically, there is no doubt that the right leg has been more severely affected than the left. He still has a significant foot drop there.”[21]

In a later report dated 29 July 2008, Mr Battlay stated:

“His disc extrusion has resolved, but he still has a vulnerable disc, hence,

the restrictions on his physical activities.[22]

[21]           DCB 5

[22]           DCB 10

24        On 17 August 2009, Dr Chris Baker, occupational physician, assessed the plaintiff on behalf of the defendant. In his report, he found that the plaintiff had suffered a discal injury with right-sided symptoms, but had improved. He did not consider that the plaintiff could return to his pre-injury employment. Dr Baker concluded that the plaintiff will always have a vulnerable back due to the weakened disc and therefore should work within restrictions; that is, he is restricted from undertaking certain occupations such as his pre-injury duties. However, working as a real estate agent would be within his capabilities.[23] In a later report dated 10 November 2009, Dr Baker stated:

“I considered he had pre-existing degenerative changes and a damaged disc at the L4-5 level which was aggravated by work activities and he will always have a vulnerable back and will need to move about and change his position during his working day. … I also consider that he has a limited driving tolerance and as a sales representative he could be expected to cover a large number of kilometres each week.”[24]

[23]           DCB 16

[24]           DCB 17

25        Mr Brian Davie, orthopaedic surgeon, examined the plaintiff on 8 July 2010. In his report, Mr Davie took a history from the plaintiff that he was having intermittent low back pain which could be severe and cause difficulty associated with bending. At that time, the plaintiff was taking Panadeine Forte occasionally. In his opinion, Mr Davie stated that the diagnosis would be that of an L4/5 disc injury which was sustained on 27 August 2007. He went on to say that he believed the plaintiff was not capable of carrying on his pre-injury duties at Cornice Connection. He described the plaintiff’s problems as moderate.[25] In a later report dated 14 July 2011, Mr Davie noted that the plaintiff was suffering from persisting back pain extending into his right leg, together with numbness and restricted movement around the right ankle. Mr Davie, on the second occasion, found that Mr Singleton had sustained an L4-5 disc protrusion which continues to trouble him to a moderate degree. He stated that Mr Singleton was capable of employment, but not able to do heavy manual work.[26]

[25]           DCB 44

[26]           DCB 45B

26        The preponderance of the medical evidence was that the plaintiff suffered a disc injury to his lower back. The symptoms of pain to his lower back and into his right leg have been constant and persistent from the date of the injury to the present time. All of the medical opinions are consistent in their diagnosis and determination of the cause of the injury.

27        The one medical opinion that is different is from Dr Simon Bower, neurologist. Dr Bower, in his report dated 2 November 2007, expressed the opinion that he suspected that the plaintiff had an alcoholic peripheral neuropathy. Dr Bower stated that the MRI findings showed a sequestered disc compromise in the left L5 nerve root. He was of the view that not all of the plaintiff’s symptoms and signs are related to that imaging abnormality.[27]

[27]           PCB 38

28        Dr Bower has not seen the plaintiff since 6 March 2008. At that time, he diagnosed an L4-L5 left disc protrusion with chronic neurogenic changes in L4-S1 innervated muscles. He also diagnosed peripheral neuropathy, possibly related to excess alcohol intake. Dr Bower diagnosed moderate central canal stenosis at L4-L5.[28] Dr Bower is the only doctor that has made a finding of another possible cause for the symptomology to the plaintiff’s right leg. I do not accept Dr Bower’s speculation in this regard and prefer the medical opinions of the orthopaedic surgeons that have seen the plaintiff.

[28]           PCB 41

Consequences for the Plaintiff

29        I accept on the evidence that the plaintiff has suffered injury to his back with its consequential symptoms which continue to the current time. He has pain and restriction of movement in his lower back. He has pain and numbness in his lower right leg.

30        I have carefully considered the evidence of the plaintiff and also his oral evidence. He was cross-examined by Mr Churilov for the defendant. I formed the view that the plaintiff gave his evidence in a straightforward manner. He did not exaggerate his symptoms or attempt to embellish his case in any way. I accept him as a witness of truth. I also formed the view that he was a person who displayed a stoical disposition.

31        I find the consequences, which I am satisfied the plaintiff has suffered as a result of the injury to his lower back, are as follows:

• The plaintiff suffered pain and limitation of movement to his back as a result of the injury in August 2007. He continues to suffer from limitation of movement and pain in his lower back. The medical treatment has not progressed to surgery. He has been managed conservatively and now suffers from pain and limitation of movement.

• The plaintiff has suffered the consequence where he can no longer continue in his pre-injury employment. All of the medical opinion supports this conclusion. Added to that is the fact that he was unable to work for a period of one year because of the injuries and pain as a sequel to the injury. The plaintiff set out the loss of his work as a cornice maker in his affidavit and its impact on him.[29]

• The plaintiff complains that he has symptoms in his right leg which are as a result of the injury to his back. Over the course of his rehabilitation, the leg symptoms have decreased markedly from the initial injury event. The plaintiff still continues to suffer some pain and disability in the sense of a right foot drop at the present time and this is a significant consequence for him.

• The plaintiff has obtained alternative employment as a sales representative in a stoneware premises. He works longer hours in order to maintain an appropriate level of income. The fact that he works 46 hours per week does not reduce the pain and suffering consequences for him. The consequence is that he has to work longer hours in order to maintain the position he was in financially prior to the injury.

• The plaintiff can no longer walk his dog, an activity he once enjoyed. He states that, because of his difficulty with walking and general mobility, the pleasure of walking his dog has now been handed over to his wife and he can no longer do it.[30]

• The plaintiff was someone who enjoyed playing golf prior to his injury. He was able to play golf after his work hours at Cornice Connection during the week and also on one or two occasions on the weekend. As a result of his injuries, he is unable to play golf at all. The removal of this sporting activity and the associated social contact with his brother and golf partners is a significant consequence for him.[31]

• The plaintiff, prior to injury, enjoyed visiting his sister-in-law’s farm. On the farm, he would ride around on a motorcycle and do other activities generally of pleasure and enjoyment to him. Due to the injury to his back as a result of the accident, he is unable to engage in any of those activities and has now stopped doing them.[32]

• Gardening activities have ceased. The plaintiff was cross-examined about this issue and, on each occasion, he just said he does not do gardening any more.[33] The fact that the plaintiff has lost the enjoyment of gardening around his home is a significant consequence for him.

• In his affidavit material, the plaintiff complained that the effect of the injuries on him has reduced his intimate relations with his wife. He was not cross-examined about this issue and I accept that that is a matter of some significance for him.[34]

• Significantly, the plaintiff has an interrupted sleep pattern. The cause of the interruption to his sleep is back pain and, despite the fact that he has attempted to get a new bed to alleviate this problem, he still suffers from sleep interruption. It is significant that a person’s ability to get proper rest would impact, and does impact, on his enjoyment of life.[35]

• The plaintiff takes medication. He takes over-the-counter medication of Nurofen. His evidence is that he takes four to six Nurofen a day on five out of seven days a week. Whilst this medication is not prescribed medication, it is significant ongoing pain medication. The fact that he has to continue to take that medication in order to perform his work activities and normal daily life is a significant consequence for him.[36]

[29]           PCB 19, paragraph 24

[30]           PCB 19

[31]           PCB 19

[32]           PCB 19

[33]           T 43-44

[34]           PCB 21

[35]           PCB 23

[36]           PCB 23

Credit of the Plaintiff

32        At the commencement of the proceeding, counsel for the defendant indicated that credit was an issue in this application. At the end of the evidence and during the course of his submissions, counsel for the defendant stated that credit was not an issue in this case. I accept that concession and note that the plaintiff is a witness of truth who was doing his best to accurately describe what the difficulties and symptoms he suffers.

33 I have disregarded the psychological and psychiatric impact on the plaintiff as a result of his physical injuries. The reports of Mr Stephen Stern and Dr Paul Kornan were tendered by the plaintiff and a submission was made on his behalf about the psychological impact on him of the injuries. I have complied with s.134AB(38)(h) and disregarded the impact of any psychological or psychiatric sequelae on the plaintiff when making an assessment of the consequences of the injuries to him.

Conclusion

34        After consideration of all the evidence and taking into account all the consequences suffered by the plaintiff as a result of his lower back injury and referred pain to his leg, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”. The plaintiff has satisfied the statutory test for serious injury for pain and suffering.

35 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages arising out of a low back injury suffered by him in the course of his employment on 27 August 2007.

- - -