Skadric v Rentokil Initial Pty Ltd
[2014] VCC 152
•27 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00350
| GORDON SKADRIC | Plaintiff |
| v | |
| RENTOKIL INITIAL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 10 and 11 February 2014 | |
DATE OF JUDGMENT: | 27 February 2014 | |
CASE MAY BE CITED AS: | Skadric v Rentokil Initial Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 152 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to the low back – whether the consequences of such injury were “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave to the plaintiff to commence a proceeding claiming damages for pain and suffering and loss of earning capacity in respect of injuries suffered in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Shine Lawyers |
| For the Defendant | Mr P Hayes with Mr D Foy | Wisewould Mahoney |
HIS HONOUR:
1 Gordon Skadric alleges that he suffered injury to his lower back on or about 29 December 2009 in the course of his employment with the defendant. He seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Skadric’s spine and, in particular, his low back.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court unless Mr Skadric establishes, in addition to the requirements of s134AB(38)(c) that, at the date of the hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more when calculated in accordance with s38(e), (f) and (g).
8 Mr Skadric submits that the pain and suffering and loss of earning capacity consequences of his injury can fairly be described as being more than significant or marked and at least very considerable.
9 Whilst the defendant admits that Mr Skadric sustained an injury to his low back in the incident in December 2009, it denies that such injury is a “serious injury” as defined in the Act. It denies that the pain and suffering and loss of earnings consequences of that injury are at least very considerable or that he has suffered a loss of earning capacity of 40 per cent or more.
Background
10 Mr Skadric is aged 47. He was educated until the end of Year 10.
11 In 1984, when aged about 17, he was involved in two separate motor vehicle accidents – in January when, as a pedestrian, he was struck by a car, and in April, when he was a passenger in a two-car intersection collision. Following those accidents, he suffered from low back pain.
12 In September 1999, he was involved in a further car accident. He does not appear to have suffered any additional back injury at that time.
13 In October 2001, he was involved in an incident where he was shot in the face. There was no evidence that he suffered any back injury in or as a consequence of that incident.
14 Following the 1984 car accidents, he was employed in various capacities. He completed an apprenticeship as a pastry cook and worked in that capacity for about seven years. He then worked as a security guard for some years. He operated a fish and chip shop for about three years. He worked as a labourer for a carpet company for about one year. For a time he worked in an abattoir. Between about 2000 and 2005, he worked as a car salesman.
15 He completed a real estate course after finishing with car sales but has not worked as a real estate agent.
16 In 2006, he commenced full-time work for the defendant. For the first few months he did so as an employee of a labour-hire company but was then employed directly by the defendant. His duties included driving a truck, gardening, maintenance, rubbish pickups, the cleaning out of lakes, painting fences, and watering and planting trees.
17 On 29 December 2009, he was involved in an accident at work when, whilst dragging a 30 or 40-metre hose backwards, he trod on a brick, causing him to fall backwards onto a kerb, striking his low back or coccyx area. He alleges that he suffered from low back pain radiating into his left leg.
18 The state of Mr Skadric’s low back prior to the fall, the extent of the injury suffered in that fall, and the extent to which those injuries have resolved are principal issues here.
The state of Mr Skadric’s back before December 2009
19 Mr Skadric was cross-examined at length concerning his pre-accident low back pain.
20 In his affidavit sworn in September 2011, he made no reference to any earlier accidents, back injury or back pain. In his affidavit sworn in December 2013, he stated that he had been reminded about the 1984 car accidents and said that he had experienced lower back pain as a result. He said that he had made a good recovery from these injuries.
21 The defendant tendered reports of Dr Fred Ng and Mr Anthony Buzzard.
22 Dr Ng was, in 1986, Mr Skadric’s general practitioner. In February 1986, he took a history from him that his injuries had gradually improved after the 1984 car accidents and that, some six months previously, he had been certified as fit for light duties. He had worked as a pastry cook. When he saw Dr Ng initially, he said he had experienced further backache. There was no radiation of pain into the legs, although he did complain of some short, intermittent numbness in his legs. Dr Ng certified him unfit for work for the month of February 1986.
23 Dr Ng saw him again in March 1986, on three occasions in September 1986, and again in February 1987. He did not see him again for nearly three years.
24 In October 1989, Dr Ng saw him on a number of occasions. At that time, Mr Skadric continued to complain of low back pain and Dr Ng referred him for a plain x-ray. He saw him on three further occasions in November 1989. Dr Ng considered that he had had exacerbations of his back pain from time to time requiring painkillers, anti-inflammatories and physiotherapy. He diagnosed a soft tissue injury with no neurological signs. There was no evidence of any further attendances on Dr Ng thereafter.
25 Mr Buzzard saw Mr Skadric on a medico-legal basis in March 1990. He reported that Mr Skadric had told him that he was then suffering from constant pain in the low back which had been so since the first car accident. The pain did not radiate. Straight leg raising tests were negative and there was a full range of movement of his back with some pain at the extremes. Mr Buzzard’s diagnosis was one of soft tissue injury to the low back – one from which he would have expected a full and rapid recovery unless there was some underlying abnormality of which he thought there was none.
26 Some sixteen years later, on 14 January 2006, Mr Skadric attended at Sunshine Hospital complaining of low back pain. The Emergency Department notes were tendered as part of Exhibit 1.[4] The notes consisted of a number of typed and handwritten entries, including:
[4]Defendant’s Court Book (“DCB”) 372-3.
“● Problem: pain – back (lower). Has had back problems for a long time. Worse after playing with child 2 days ago.
● Taking regular panadol, Walked in holding back at triage.
● Background – denies any significant medical background.
● Says he was knocked down as a pedestrian aged 17.
● Had had back pain for 20 years.”
27 Counsel for the defendant submitted that the reports of Dr Ng and Mr Buzzard, together with the hospital notes of January 2006, pointed to Mr Skadric having significant low back problems from 1984 until at least 2006 and in all likelihood, up to December 2009. I do not consider this is borne out by the evidence when looked at as a whole.
28 The history obtained by Dr Ng in February 1986 was that Mr Skadric had improved over the several months after the 1984 car accidents and returned to work by 1985. He had come to see Dr Ng as a result of increased backache in the preceding five or six weeks – that is, in early 1986. He then saw Dr Ng once again in connection with low back pain in mid-March 1986, and then on three occasions in September 1986. There was then a gap of some three years without an attendance. In October 1989, Mr Skadric attended upon Dr Ng on six occasions in relation to his back and then on a further occasion in mid-November of that year. On 30 November 1989, Mr Skadric had requested a clearance certificate from Dr Ng in order to enable him to return to work.
29 The plain x‑rays of Mr Skadric’s lumbar spine taken in October 1989 were reported as showing bilateral pars interarticularis defects at the L5 level without any significant forward slip of L5 on S1. Disc spaces were said to be well preserved. No other abnormalities were noted.[5]
[5]DCB 125
30 In the period of approximately sixteen years from early 1990 to early 2006, there was no evidence of any attendances on any medical practitioner in relation to his back.
31 Nevertheless, on 14 January 2006, a history was recorded at the Sunshine Hospital Emergency Department of Mr Skadric attending with the low back complaints set out previously. In his affidavit and oral evidence, Mr Skadric acknowledged that he had suffered some back pain after the 1984 car accidents but maintained that he had recovered from them reasonably soon afterwards. His recollection was that the more persistent injury following those accidents was to his wrist. The reports of Dr Ng and Mr Buzzard indicate that Mr Skadric was still suffering from symptoms of back pain which were not insignificant in 1986, in the latter part of 1989, and in early 1990. I find it likely that Mr Skadric’s low back symptoms continued to be experienced by him intermittently over that period. After 1990, I consider it likely that his back pain improved considerably. He was able to hold down a number of jobs without problems.
32 Mr Skadric’s evidence was that he could not recall attending at the Sunshine Hospital in January 2006. I consider that his lack of recollection, although perhaps surprising, was genuine. I accept that he did attend there on 14 January 2006 and did provide a history of previous low back pain. Although I accept, on the balance of probabilities, that he did tell the hospital medical staff that he had had back pain for twenty years, I do not accept that, by saying that, he was intending to indicate that he had had continuous back pain over that period. I consider it more likely that what he was indicating to the hospital staff was that he had had low back issues which went back twenty years to the time he was knocked over as a pedestrian.
33 I accept that following the incident on 14 January 2006, he is likely to have made a recovery from the back pain complained of at that time. Soon afterwards, he was able to commence employment through a labour-hire company with the defendant. His uncontested evidence was that after a few months, he became employed directly by the defendant. I am able to infer from this that the defendant was satisfied with his work in that period and elected to employ him on a full-time, direct basis. It continued to employ him for more than three years. His duties were physical ones, as previously described. There is no evidence that he experienced difficulties with his low back during the period between his commencement of work in 2006 and the subject accident in December 2009. He had no time off work on account of his back. He made no complaints concerning his back to anyone connected with the defendant. Further, there is no evidence from the defendant that he was limited or restricted in the way that he performed his physical duties over the three to four years leading up to December 2009. I consider that this is important evidence as to the state of Mr Skadric’s low back prior to the accident of December 2009. I find that, if indeed he was experiencing any symptoms of pain or discomfort in his low back, they were relatively minor.
34 Further, I note that before commencing work for the defendant in 2006, he underwent a medical examination arranged by the defendant. It seems this was conducted by Dr Malcolm Ong.[6] Later, following the December 2009 accident, Mr Skadric saw Dr Ong on the recommendation of the defendant. There is nothing in Dr Ong’s reports indicating problems pre-dating December 2009.
[6]PCB 47
Diagnosis of Injury
35 The parties tendered various medical reports containing differing opinions concerning the nature of Mr Skadric’s injury.[7]
[7]For the plaintiff: Dr Malcolm Ng, general practitioner; Mr Roy Carey, orthopaedic surgeon; Mr Kevin King, orthopaedic surgeon; Mr Kenneth Brearley, orthopaedic surgeon; Mr David Brownbill, neurosurgeon, and Dr David Middleton, occupational health and rehabilitation consultant. For the defendant: Mr Robin Williams, orthopaedic surgeon; Mr Robert Dickens, orthopaedic surgeon; Mr Peter Battlay, general surgeon, Associate Professor Brazenor, neurosurgeon; Dr Mary Wyatt, occupational physician; Mr Jonathon Hooper, general surgeon; Dr Malcolm Brown, occupational physician, and Mr Michael Dooley, orthopaedic surgeon.
36 Some of those reports referred to reports or notes of other doctors. A number of these documents were not tendered by either party and I assume that neither party considered those documents were of sufficient relevance to warrant tendering. [8]
[8]Reports of Dr Muniratna dated 3 January 1985 and 12 March 1986; Mr Steedman dated 15 December 1986; Mr Rustomjee dated 30 July 1987; St Mary’s Medical Centre Clinical file (“extensive documentation”), and clinical notes of a Dr Luu.
37 Radiology reports were tendered:
(a) The x-ray of October 1989 showed bilateral pars interarticularis defects (which, on the evidence of Mr Brownbill and Mr King, were likely to have been present since birth). No other abnormalities were identified.
(b) Plain x-rays on 29 December 2009 (the day of the subject accident at work) showed a 5-millimetre (grade 1) forward slip or anterolisthesis at L5-S1.
(c) A CT scan on 8 February 2010 also showed forward subluxation of L5-S1 (spondylolisthesis).
(d) An MRI scan on 6 March 2010 confirmed Grade 1 spondylolisthesis but was also reported as showing bilateral foraminal encroachment with moderate to severe compression on the exiting left L5 nerve root.
(e) An MRI scan on 13 December 2011, which again showed a compromised exiting L5 nerve root.
38 The medical evidence supports the conclusion that Mr Skadric’s condition of spondylolisthesis dated back to his birth and was not caused by the accident. I accept, however, that many people with that congenital condition suffer little or no symptoms of pain or restriction of activities as a consequence of it.
39 On the basis of Mr Skadric’s evidence, I find that he, whilst dragging a long and heavy hose full of water, tripped and fell backwards, striking his buttocks and lower back on the kerb of the gutter. I accept the evidence of Mr King that such a fall was likely to have caused damage to lumbar discs and associated ligamentous structures at various levels, but particularly at the lumbosacral (L5-S1) level. I accept that such falls are notorious for damage as a consequence of axial forces applied to the spine. On balance, I consider that the fall has caused or at least materially contributed to the generalised disc bulge at the L5-S1 level, resulting in bilateral foraminal stenosis at that level and compromise of the left exiting nerve root.
Consequences of Injury
40 That Mr Skadric had suffered an injury to his lumbar spine in the accident was not disputed by the defendant. It was the seriousness of consequences to him of the injury that were in issue. The submissions of the parties concerning consequences bore little resemblance.
41 For Mr Skadric, it was submitted that:
· He was an honest witness.
· Whilst he had suffered an injury to his back in car accidents some twenty five years earlier, they were relatively minor and had not restricted him in relation to employment, sporting or recreational activities over many years.
· He had been employed by the defendant for three to four years prior to the December 2009 fall, performing reasonably heavy work without restriction, time off, or complaint.
· In contrast, he was now in constant pain, unable to work, and unable to engage in most recreational activities.
42 For the defendant, it was submitted that:
· Mr Skadric was an unreliable and dishonest witness.
· He had suffered from low back pain for more than twenty years before the subject fall.
· He currently had negligible physical disability.
43 On the one hand, the defendant submitted that Mr Skadric had significant low back problems for many years prior to the accident. On the other, it submitted he had no significant problems since the accident. I find both these propositions unlikely.
44 For the defendant, counsel submitted that there were five aspects of Mr Skadric’s evidence which lead to the conclusion that his evidence should not be accepted unless corroborated by independent witnesses.
45 Firstly, it was submitted he had displayed a lack of candour in his evidence to the Court and in histories provided by him to examining doctors. In summary, emphasis was placed upon the following:
(i) He had denied having prior back pain to many doctors who examined him;
(ii) He had made no reference to the 1984 car accidents in his first affidavit (although he did in his second);
(iii) He had not made reference in his affidavits or oral evidence-in-chief to his attendance at the Emergency Department of Sunshine Hospital in January 2006 (about four years before the subject fall);
(iv) His evidence in Court concerning these matters was unconvincing and unsatisfactory.
46 Secondly, it was submitted that his explanation of his visit to Sunshine Hospital in January 2006 (that is, although he could not recall it, such visit may have been due to kidney pain) was misleading and dishonest.
47 Thirdly, it was submitted that he was an admitted user of amphetamines between 2002 and 2005 and had smoked marijuana from 2002 until the present time, and that I should infer that by reason of these matters, that his evidence was less reliable.
48 Fourthly, it was submitted that DVD film of him showed he was exaggerating to the Court and to examining doctors in relation to his gait, range of movement and pain levels.
49 Fifthly, it was submitted that his demeanour in cross-examination was evasive and at times non-responsive and argumentative, hallmarked by poor recollection of events he ought to have been able to readily recall.
50 In his second affidavit and in oral evidence, Mr Skadric recalled that he had experienced some pain at the time of the car accidents in 1984. His recollection was that he recovered from such pain within a short time.
51 The evidence shows that he did not fully recover from that back pain within what I would describe as a short time. The history taken from him by Dr Ng on 4 February 1996 was that he had improved over several months following the car accidents but that in the five or six weeks leading up to that attendance, he had had more backache. On 13 March 1986, he told Dr Ng that he had improved but that he still had some backache. In September 1986, his back had been aching a fair bit for two weeks after working as a storeman. From there, he did not complain to Dr Ng about back pain for another three years. In October 1989, he told Dr Ng that he had had backache for a month. He saw him another five times that October and once more in November 1989. On one occasion, he described his back as “killing him”.[9] He told Dr Ng that, at that time, he was working in a job that required him to stand all day. He attended for physiotherapy at that time and had an x-ray of his lumbar spine to which I have previously referred. Shortly after, in March 1990, he complained to Mr Buzzard of “constant pain in the low back region has been so since the first accident”.
[9]DCB 124
52 Both Dr Ng and Mr Buzzard considered Mr Skadric had suffered a soft tissue injury to his low back. They each noted no neurological signs and a normal range of back movements. Straight leg raising tests were normal. Mr Buzzard noted that he had been in employment and considered that he was then fit for work.
53 There is no evidence that Mr Skadric attended any medical practitioner in relation to his back for the next sixteen years. During that period, I accept that he worked on a full-time basis in a number of active jobs as described earlier.
54 Some eight years ago, in January 2006, he attended at the Sunshine Hospital. The Emergency Department notes were summarised earlier. Counsel for the defendant described those notes as “the killer document”. In particular, he relied on the reference to twenty years of back pain.
55 Mr Skadric had no memory of the attendance at Sunshine. He did suggest that it may have related to a time when he had experienced some mid-back pain which had, after about a year, been diagnosed as kidney pain. It was treated appropriately and soon resolved. I do not accept that his visit to Sunshine related to that kidney pain. The references in the notes are clearly to the low back and not to the mid back.
56 Mr Skadric did advise a number of examining doctors that he had had no previous back problems. In Court, he maintained that he did not consider the back pain he experienced after the car accidents in 1984 would be relevant to his claim. The gist of his evidence was that he had come to that conclusion, because he had returned to work many years before the subject fall and did not think those past injuries had anything to do with his current back injuries or claim.
57 Although it was, of course, possible that Mr Skadric set out to deceive doctors and the Court, as counsel for the defendant suggests, I have come to the conclusion that he did not. To a large extent I rely on my observations of him in the witness box. With respect, he struck me as a man of relatively low intellect and only basic education. It does not surprise me that he would have some difficulty coming to a conclusion as to which matters were relevant to his claim and which were not. Further, many of the matters about which he is now criticised occurred many years ago. I accept that some might think it puzzling that he would not recall an attendance at the Emergency Department at Sunshine some eight years ago; however, it would seem that he never re-attended there and there is no evidence that he was again troubled by back pain between that attendance in January 2006 and the fall in December 2009. In such circumstances, such an attendance might have been of little consequence or importance to him.
58 The history taken of twenty years of back pain is, I conclude, not as clear as counsel for the defendant sought to persuade me. The note, in an emergency department record, is unlikely to be word for word accurate. Notes taken in an emergency department of a busy hospital would rarely be so. What was written down by staff is likely to be a response to a question, the content of which is not known. In January 2006, there could be no doubt Mr Skadric did have a history of back pain going back twenty, or more accurately twenty five years, but it is another matter to interpret that entry as meaning that his back pain had been experienced by him continuously over that time.
59 Whilst I accept that from 1984 to about 1990, Mr Skadric did probably experience intermittent flare-ups of low back pain, I do not find they were continuous or long lasting.
60 In all of the circumstances, I am not persuaded by counsel’s submissions that Mr Skadric had displayed a lack of candour in his evidence and in histories provided by him to examining doctors. Whilst those earlier events may have been viewed as relevant by some (especially lawyers and doctors), I have come to the conclusion that Mr Skadric did not appreciate their relevance and that his failure to refer to them earlier did not display a lack of candour on his part.
61 Similarly, having seen Mr Skadric in the witness box, I accept that he genuinely could not recall his visit to the Sunshine Hospital in January 2006. Although inaccurate, I do not consider that his evidence that such a visit may have related to past kidney pain (for which he was later successfully treated), was indicative of dishonesty or of an attempt to mislead the Court.
62 In respect of his admitted drug use, I do not consider that such use makes it more or less likely that he would be dishonest or unreliable in his evidence to the Court. There was no evidence before me to that effect, and I consider that it is an inference that I should not draw.
63 Three DVD films were shown and tendered by the defendant. The first depicted the plaintiff on 26 November 2011 in a supermarket. That portion of the film lasted a little over a minute, during most of which Mr Skadric was not visible. Later on that date he was seen sitting outside his home for approximately two minutes smoking a cigarette. He stood and briefly bent forward to stub out a cigarette, before disappearing indoors. Counsel submitted that the bend to stub the cigarette was to 90 degrees and inconsistent with his restricted flexion as demonstrated to various doctors. I observed him to briefly bend slightly forward, well short of 90 degrees. I was unable to detect whether he bent at the hips or through the lumbar spine.
64 The second film was taken on 30 December 2011 and 3 January 2012. On the earlier date, Mr Skadric was observed sitting at a table for some 15 minutes and then walking a distance of approximately 10 metres without any apparent limp. Three hours later, he was shown entering the car without apparent difficulty and driving away. About 15 minutes later, brief glimpses of him were depicted in a street entering a shop.
65 On the film of 3 January 2012, a stationary car was depicted for about one minute. I assume Mr Skadric was seated inside but he was not shown. There was then a break in the film and he was next observed standing beside the driver’s door apparently locking the vehicle. He walked approximately 3 to 4 metres out of sight, without a noticeable limp.
66 The third DVD depicted Mr Skadric on 1 July 2012. He was shown walking for approximately two minutes in an indoor shopping mall. About 30 minutes later on the same day, he was seen walking for approximately 4 minutes in what appeared to be the same mall. During that film I found it difficult to determine whether or not he was walking with a limp. He did, in my opinion, display a somewhat unusual gait although any limp, as such, was certainly minor.
67 Mr Skadric alleges that he has had significant low back pain since the subject accident in December 2009, a little over four years ago. The films showed and tendered depict Mr Skadric walking for a total time of about 5 minutes over short distances. Whilst I could not detect any limp of significance, I do not conclude that this is evidence that he never limps.
68 A number of doctors who saw him described his limp as a slight one. Mr Brazenor described him limping somewhat theatrically on the one occasion that he saw him on 18 November 2011. Dr Wyatt examined Mr Skadric on 21 December 2011 and reported that he walked with a limp, partly walking on the ball of his left foot rather than having a normal heel/toe action. Dr Wyatt was shown what I assume is the surveillance film of 30 December 2011 and 3 January 2012, and merely commented that the film showed him generally being active but not doing anything remarkable in terms of thoracolumbar spine activity. She did not suggest that the film showed anything of significance or anything contradictory to his presentation.
69 Mr Brownbill and Mr King were shown the films, or at least part of the films depicting him walking, and both considered that it showed little of significance. Dr Brown examined Mr Skadric in June 2013 and noted that he walked with a limp. He had been shown the video surveillance, apparently of December 2011 and January 2012, and thought that there was likely to be some functional component based on the physical examination, with no limp being seen on the videos. Mr Dooley examined Mr Skadric in January 2014 but does not appear to have been shown the video surveillance. Dr Ong was shown the video surveillance (although he does not identify the relevant dates). He did not consider that it alone incriminated Mr Skadric of any wrongdoing in relation to his injury. Mr Brearley viewed surveillance footage (30 December 2011 and 3 January 2012). Having viewed that footage, it did not cause him to alter the opinions expressed by him in his report.
70 Having viewed the video surveillance again, I conclude that Mr Skadric, although having a slightly unusual gait, could not be said to be limping to any degree in the very limited periods captured by the films. I think there is force in the comments of Dr Wyatt that the films do not depict him doing anything remarkable in terms of thoracolumbar spine activity.
71 I do not accept the submission that the film demonstrates that Mr Skadric has dishonestly exaggerated his condition to the Court or to examining doctors.
72 Finally, I did not form the view that the manner and demeanour in which Mr Skadric gave his evidence was evasive, non-responsive or argumentative. Rather, I considered that a number of his responses reflected his frustration about being asked repeatedly about matters the relevance of which he was unable to grasp. This, I consider reflected his limited understanding of the relevance to his claim of these historical matters.
73 The defendant relied heavily on the reports of Associate Professor Brazenor. In his initial report of November 2011, he stated that Mr Skadric had given a plausible history of the injury and that the MRI scan at that time showed a longstanding condition of lytic spondylolisthesis at the L5-S1 level. He noted significant narrowing of the left intervertebral foramen at that level and considered that he may indeed have bruised the exiting nerve in the fall. He considered that, to complete his assessment, a further MRI scan was required. Having seen the MRI scan of 6 March 2010, he concluded that there was “nothing in this scan to support a contention of pressure on nerve roots at any level”.[10] In contrast, I note the radiologist had reported that there was “moderate to severe compression on the exiting left L5 nerve root”.[11] Associate Professor Brazenor arranged for a further MRI scan on 13 December 2011 and reported that it was very similar to that conducted on 6 March 2010. He noted, however, that there was a moderate left-sided foraminal stenosis at L5-S1 in the later scan, which he opined could cause some intermittent sciatica, particularly with bending at the waist.[12] Notwithstanding, he reported that Mr Skadric:
“… had no residual injuries from pulling the hose backwards across the nature strip on 29/12/2009, as the evidence of history, examination findings, video footage and radiological investigation all argue against any persistent symptoms from such injury, which would have been a trivial insult to his low back when compared with his two motor vehicle accidents and being shot in the face.”[13]
[10]DCB 208
[11]PCB 24
[12]DCB 209
[13]DCB 213
74 Some aspects of Associate Professor Brazenor’s reports warrant comment. As set out above, in his report of 28 May 2012, he describes the accident as merely involving “pulling the hose backwards across the nature strip”. In his report of 18 November 2011, he described the accident occurring whilst “pulling a hose backwards across a nature strip, when he tripped over a half brick”.[14]
[14]DCB 203
75 Prior to writing those reports, he had been provided with Mr Skadric’s affidavit of 20 September 2011. In that affidavit, Mr Skadric clearly described tripping over the brick, falling in the gutter with his back hitting the kerb as he went down. He described it as a heavy impact, following which he immediately felt pain in his lower back and left upper leg.[15] He had also been provided with a copy of Mr Carey’s report of 5 May 2010 where a similar and consistent description of the accident was set out. Associate Professor Brazenor appears to have specifically omitted reference to the nature of the fall and in particular, the description of the fall being a heavy one, and a fall in which his low back struck the kerb. I accept the evidence of Mr King and Mr Brownbill that such a fall would be of a type likely to expose the spine to axial forces and which was a common cause of low back injury. I can only conclude that Associate Professor Brazenor deliberately omitted any reference to that aspect of the fall in an attempt to portray the accident in a trivial light. I conclude, on the basis of all of the evidence, that Mr Skadric’s fall and associated impact was anything but trivial.
[15]PCB 10
76 Associate Professor Brazenor went further, opining that the Mr Skadric’s injury “would have been a trivial insult to his low back when compared with his two motor vehicle accidents and being shot in the face”.[16] As regards the insult caused by the two car accidents, I fail to comprehend how such a comparison could be drawn without knowledge of the circumstances of those accidents, details of what happened to Mr Skadric’s body in them, details of findings on examination following those accident and details of treatment that followed. As to the shooting incident, the basis for the suggestion that this involved any insult at all to Mr Skadric’s low back is unknown.
[16]DCB 213
77 These matters cause me to have little confidence in Associate Professor Brazenor’s evidence in this case.
78 In my assessment of the pain and suffering consequences of Mr Skadric’s injury, it is obvious that I rely heavily on his evidence concerning those consequences. I saw no reason to doubt his honesty in his description of them.
79 I accept that the consequences of his injury are:
(a) He has, since the accident, experienced persistent ongoing pain and discomfort with radiation into his left leg, at times extending as far as his calf and foot.
(b) His level of pain fluctuates from time to time but is generally aggravated by activity.
(c) Pain is exacerbated by sitting for more than about 15 minutes.
(d) Pain is exacerbated by standing for more than about 15 minutes. He has to constantly move position.
(e) He has difficulty sleeping at night because of back pain. He rarely gets a full night’s sleep and commences each day feeling tired.
(f) Whilst he can drive a motor vehicle, he cannot drive for long distances.
(g) He is limited in what household chores and gardening he can perform. An example was that his mother has had to mow the lawn which embarrasses him.
(h) His ability to partake in play activities with his young son has been limited. He is not able to engage in activities such as playing soccer, skateboarding and bicycle riding.
(i) He is unable to engage in recreational activities as he did before the accident. This included the playing of indoor soccer with friends, playing ball sports at the beach and jogging to keep fit.
(j) His ability to engage in employment of his choice has been significantly impaired. I shall return to this aspect of the claim later in these reasons.
(k) He has put on weight largely as a consequence of reduced activity.
(l) He needs to take regular analgesic medication in order to cope with his pain.
80 Mr Skadric gave evidence that he regularly smoked marijuana as a means of assisting with his back pain. Whilst I accept that he may well be assisted in coping with that pain by such activity, I do not include, in the list of consequences of injury, the fact that he requires marijuana. I accept that he had smoked marijuana regularly for a number of years prior to the accident for general recreational purposes and did not commence the use of marijuana as a consequence of the injuries sustained in the work accident.
81 I am satisfied that those consequences for Mr Skadric are, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than significant or marked and as being at least very considerable.
82 Insofar as Mr Skadric’s injury might be considered to be an aggravation of a pre-existing back injury, I am satisfied that an analysis of his condition before and after the relevant accident establishes that the extent of the aggravation of his low back injury has, in itself, resulted in a serious and permanent impairment of his lumbar spine.[17]
[17]Petkovski v Galletti [1994] 1 VR 436 at 444
83 With respect to loss of earning capacity, the medical evidence was not consistent.
84 Dr Ong considered that Mr Skadric had a capacity to work some 4 hours per day, three days per week, with restrictions that he not lift more than 7.5 kilograms, avoid manual/repetitive duties involving his back and avoid prolonged standing and walking.
85 Mr King considered that Mr Skadric was chronically and severely disabled and unlikely to return to the moderately heavy unskilled work he has done over the years. He concluded that he had been left with a long-term serious impairment of low back function and of his capacity to work.
86 Mr Brearley considered that, realistically, Mr Skadric had no capacity for work in the foreseeable future. Any work he was able to perform would necessarily have restrictions: namely; avoidance of long standing and walking, bending, stooping and lifting. He would only be able to work part time.
87 Dr Brownbill considered that Mr Skadric suffered from an incapacity for manual type employment. He thought he may not be able to pursue any employment for which he was suited in an ongoing or reliable fashion.
88 An occupational health and rehabilitation consultant, Dr Middleton, considered that Mr Skadric no longer had the capacity to work on a full-time basis. His current capacity was unreliable and varied from day to day. He thought that any attendance at work should be limited to between two and four hours in any one shift, two to three non-consecutive days in any one week and a maximum attendance at work of 12 hours per week.
89 An occupational therapist, Ms Adamson, thought Mr Skadric was unlikely to be capable of undertaking employment and considered that any employment undertaken would be subject to restrictions of avoiding rotating and twisting his spine, avoiding repetitive tasks, avoiding repetitive bending, avoiding lifting more than 5 kilograms, taking regular rest breaks and avoiding prolonged standing and sitting. She anticipated that he would be unable to work or undertake physical activity for more than 2 hours per day, two to three days per week initially.
90 An occupational physician, Dr Wyatt, examined Mr Skadric in December 2011 and May 2012. On the earlier occasion, she thought that work in car sales was the most sensible option for him because it was not a physically taxing job and allowed the person to stand at times and sit at others. She also thought he was capable of working as a pathology courier but that he may struggle doing courier deliveries. She considered he was fit to work as a sales assistant and to do a range of driving duties such as a valet driver.
91 In September 2011, Mr Battlay considered that Mr Skadric was fit for his pre-injury duties. I note that opinion was expressed prior to him seeing the results of MRI scans. In June 2012, he agreed with Dr Wyatt that employment with the defendant was no longer materially contributing to his reported incapacity for work.
92 In April 2011, Mr Dickens reported that there were objective clinical findings of loss of mobility of the lumbar spine, asymmetry of the loss of movement and muscle spasm, but no hard neurological signs of radiculopathy. He was not asked to advise about capacity for work.
93 Mr Hooper, in August 2012, thought that Mr Skadric was capable of doing light work if such a job could be found for him, but that he would be unable to return to his pre-injury duties.
94 In June 2013, Dr Malcolm Brown considered that Mr Skadric had a capacity for work not involving constant standing in the one position, frequent bending or heavy lifting. He thought he was likely to have difficulty with jobs involving sitting in the one position or as a driver or valet driver, or in retail sales jobs. He thought he might be suitable for driving a forklift or reach truck, provided he could get on and off frequently. He thought process work would not be suitable if it involved standing, but was suitable if he could sit and stand at will. He thought he could work as a courier.
95 Mr Dooley, in January 2014, considered that Mr Skadric had a capacity to carry out light physical activities and clerical duties.
96 In July 2010 (some three and a half years ago), Mr Williams considered that Mr Skadric had a capacity to undertake a return to work plan which was said to be attached. No such plan was tendered into evidence. His report was of little assistance to me.
97 Associate Professor Brazenor considered that Mr Skadric had no residual injuries at all and, unsurprisingly, considered he had a full capacity for all employment.
98 The views of Associate Professor Brazenor are based on his opinion that Mr Skadric has no residual disability at all. I have previously rejected that view and have accepted the evidence that he suffers from persistent and debilitating pain. Those doctors who have indicated that suitable employment for Mr Skadric would be light physical duties where he was able to stand and sit at will or to regularly alight from a motor vehicle or forklift at will are, in my view, adopting an unrealistic stance. There would be few, if any, positions which would enable a person to behave in employment in that manner. Further, I note that Mr Skadric has a Year 10 education and is most unlikely to be suitable for clerical or administrative duties.
99 I am satisfied, on the balance of probabilities, that there is no employment which is suitable for Mr Skadric having regard to the nature of his injuries, his pre-injury employment, his age, education, skills and work experience. I consider it unlikely that there is any suitable employment for which he could be trained in the future. I am satisfied that his incapacity is likely to continue for the foreseeable future.
Conclusion
100 For the reasons set out above, I am satisfied that Mr Skadric has suffered a serious injury as defined in the Act.
101 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for him to commence a proceeding to recover pain and suffering damages and loss of earnings damages in respect of injuries suffered by him in the course of his employment with the defendant on or about 29 December 2009.
102 I shall hear the parties in respect of consequential orders sought.
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