Spasovski v AAA Somerton Windows Pty Ltd
[2020] VCC 1077
•30 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-03039
| LJUBE SPASOVSKI | Plaintiff |
| v | |
| AAA SOMERTON WINDOWS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 June and 1 and 2 July 2020 | |
DATE OF JUDGMENT: | 30 July 2020 | |
CASE MAY BE CITED AS: | Spasovski v AAA Somerton Windows Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1077 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Plaintiff’s causes of action pleaded injury to the lower back and hips caused by a work process, and by a discrete lifting incident – admission of liability with respect to negligence and breach of statutory duty with respect to both causes of action – denial that the work process caused an injury to the lower back and the hips – admission that the incident caused injury to the lower back – denial that the incident caused an injury to the hips – assessment of damages for the acceleration of the underlying constitutional arthritic changes to the hips caused by the work process – assessment of damages for the injury to the lower back caused by the incident – consideration given to the contribution to the consequences of the lower back injury caused by the underlying constitutional arthritic changes to the hips – comorbid medical condition – serious heart condition developed by the plaintiff – whether the serious heart condition rendered the plaintiff incapacitated for his pre-injury work – assessment of the plaintiff’s damages for economic loss limited to past loss up to the occurrence of the serious heart condition
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety Regulations 2007; Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Philippiadis v Transport Accident Commission [2016] VSCA 1; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Ansett Australia Ltd v Taylor [2006] VSCA 171; Zumeris v Testa [1972] VR 839; Fox v Wood (1981) 148 CLR 438
Judgment: Judgment for the plaintiff in damages assessed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr M Nightingale | John Dellios & Associates Pty Ltd |
| For the Defendant | Mr A J McG Moulds QC with Mr R E L Lewis | Wisewould Mahony |
HIS HONOUR:
The pleaded case
The Statement of Claim
1 The plaintiff pleaded that he was employed by the defendant as a window assembler (later referred to as a glazier) from 6 April 2006 at the defendant’s premises at 6/22 Somerton Road, Somerton.
2 The plaintiff alleged that from 6 April 2006 to 27 October 2016, the work he performed as a glazier required him to engage in frequent heavy and awkward movements and operations which imposed considerable strain on his lower back and hips.
3 Furthermore, the plaintiff alleged that on 27 October 2016, he suffered injury to his lower back and hips when he was assisting another employee of the defendant to lift a pane of glass weighing about 30 kilograms.
4 The plaintiff described the work he performed between 6 April 2006 and 27 October 2007 as “the work process”. He described the incident on 27 October 2016 as “the incident”. With respect to both the work process and the incident, the plaintiff pleaded that the injury to his lower back and his hips was caused by the negligence of the defendant and its breach of the Occupational Health and Safety (Manual Handling) Regulations 1999, as they applied up to 30 June 2007, and thereafter, the Occupational Health and Safety Regulations 2007 and the Manual Handling Code of Practice.
The Amended Defence
5 At an early stage in the trial, the defendant admitted negligence and breach of statutory duty, both with respect to the work process and the incident; however, it denied that its admitted negligence and breach of statutory duty extended to any admission that the plaintiff suffered any injury resulting from the work process. Its admission of negligence and breach of statutory duty with respect to the incident extended to an admission that the breaches resulted in the plaintiff suffering an injury to his lower back; however, it denied that the breaches resulted in the plaintiff suffering an injury to his hips.
6 The defendant raised a number of other issues relevant to an assessment of the plaintiff’s damages. I will refer to each of those later in these reasons.
Appearances
7 Mr T Tobin SC appeared with Mr M Nightingale of counsel for the plaintiff. Mr A Moulds QC appeared with Mr R Lewis of counsel for the defendant.
8 The plaintiff and the defendant gave their consent that they appear, witnesses give evidence, and counsel make submissions by audio-visual link pursuant to the relevant provisions of the Evidence (Miscellaneous Provisions) Act 1958.
The Plaintiff’s work
The work process
9 The plaintiff worked as a glazier for a company known as Austral Aluminium prior to commencing work with the defendant. He worked for Austral Aluminium for ten or eleven years, before leaving to take up employment with the defendant. He worked with a man named Grant at Austral Aluminium. Grant left with another former employee named Nigel. Together they set up the defendant. It was in that setting that the plaintiff made the decision to follow them and to work for the defendant.
10 The plaintiff described the work he performed with the defendant as heavy work. He worked full time from 7.30am to 3.30pm five days per week. He described the work as follows:
Q:“You mentioned working with the defendant, that it became heavier with double glazed windows. What do you mean by that?---
A:It used to be 4 millimetres to 6 millimetres. With the double glazing the size became bigger and I have to lift these panels and glass and frame them, like put them into frames.
Q:Did you do any of that type of work before with Austral windows?---
A:Yes, I did, but it was much lighter because there was no double glaze and we were dealing with 3 millimetres in thickness or 4 millimetres in glass, which is not as heavy.
Q:Just comparing with Austral windows with AAA Somerton, what was the factory like at AAA Somerton compared with Austral windows, as to how many things were stored and the like?---
A:The Austral Aluminium factory had a much larger space and the storage was much better spread and at that time there wasn’t as much work, they weren’t as busy as when I transferred to this new place.
…
Q:You mentioned that in the previous job at Austral windows it was a larger factory compared with the factory at AAA Somerton?---
A:Yes. Nearly twice the size.
Q:Was there any difference in the positioning of panes of glass when they were stacked in storage at Austral compared to Somerton?---
A:There was a significant difference.
Q:What was it?---
A:The difference was in the new place they were ordering a lot of glass, glazed glass, and they would put it all over the factory floor.
Q:Right, and how would it be stacked at Austral?---
A:There was racks they were stacked in. Not as many orders were made and there was not glazed glass.
Q:When you say they were racks they were stacked in what, if any, difference did that make if they were stacked in a rack?---
A:It was in a better position and higher off the ground so that you were able to pick it up easier and not bend as much.
Q:When you were working at AAA Somerton, we’ll call it the defendant, on a day-to-day basis what weights were you lifting of glass on a day-to-day basis?---
A:Every day was different but – I’m not sure how to express it – it was heavy, but there was always heavy and heavier glass that was lifted.
Q:Right. And what if any cranes or gantries or anything like that were available to you at the defendant to do that lifting?---
A:No cranes or everything (sic), no mechanical assistance, everything was done manually.
Q:When you were doing things manually, what would be the weights that you would, up to which you would lift? What weight would you lift?---
A:On average about 30 kilograms, glazed, ones heavier, 50 kilos, and even more.”[1]
[1]Transcript 27-29
The hernia
11 Toward the end of 2015, the plaintiff became aware of the onset of a hernia. He saw Dr G Lamba, general practitioner, who referred him to have an ultrasound. The ultrasound demonstrated a hernia. Dr Lamba then referred the plaintiff to the Northern Hospital.[2] The plaintiff was placed on a waiting list. Eventually he underwent surgery in March 2016.[3]
[2]Later reference was made to the North Park Hospital, which the plaintiff initially attended, and then attendance at the Northern Hospital
[3]Transcript 31-32
12 The plaintiff recuperated from the surgery for about one month before returning to work with the defendant. He was provided with manual assistance. He experienced pain in the area of the hernia, which led him to go on holiday so that he could rest. He was absent from his employment with the defendant from late July to early September 2016. He travelled to Macedonia during that holiday period.[4]
[4]Transcript 32-33
13 Upon his return to work after holidaying, he performed the same work tasks he had previously performed. Despite being told that he would be provided with manual assistance, he said that was not practical because the person who was to provide him with that manual assistance had his own work to do. That meant that the plaintiff performed those work tasks with limited manual assistance. He continued doing that work in that way until the occurrence of the incident.
The incident
14 A fellow worker of the plaintiff named Ut asked the plaintiff to assist him in lifting a pane of glass. The pane of glass was about the size of a door and weighed about 30 kilograms. It was standing upright and resting on planks of wood. The plaintiff and Ut attacked that task by manually handling the pane of glass at different points. Ut placed one of his hands at the top of the pane of glass, which required the plaintiff to place one of his hands at the bottom end of the pane of glass.
15 The plaintiff placed his left hand under the bottom end of the pane of glass in order to lift it and then to grip it. It was in the course of lifting it with his left hand that he lost grip of the pane of glass. He reacted by quickly bending in order to take hold of the pane of glass to prevent it from falling. It was that event which caused him to suffer the weight of the pane of glass on his lower back, resulting in him experiencing sharp pain in his lower back.[5]
[5]Transcript 37-38 and 40-41
The incident injuries
16 The plaintiff described the sensation of pain that he experienced, and the distribution of the pain as follows:
Q:“You took the weight, it slipped and you took the weight. What if any effect did that taking of the weight have upon you in that position?---
A:I experience[d] a sharp pain in the lower back, in the middle of the back, and radiating into the left side of the back, into the buttock.
Q:Did that pain come on immediately?---
A:It felt as if somebody stabbed me from behind.
Q:Did that pain start immediately?---
A:Immediately.”[6]
[6]Transcript 42
17 The plaintiff rested for about 10 minutes. He described his whole back as being stiff and swollen during that period of rest. He attempted to return to a work task. As he “moved a little bit”, he experienced significant pain and stopped working altogether. It was then that he reported the incident.[7]
[7]Transcript 42
18 The precise location of the pain suffered by the plaintiff resulting from the incident and its distribution became a major focus in the proceeding for reasons which will become apparent as I summarise the plaintiff’s evidence and the medical evidence.
19 Under examination-in-chief, the plaintiff said that he first saw Dr Mohan Singh, general practitioner, who practices at the same clinic as Dr G Lamba, general practitioner. He was referred to have an x-ray. He described the pain and the distribution of the pain he was experiencing at that time as follows:
Q:“Can you tell His Honour how you felt, what pain, if any, you felt by the time you went to see Dr Singh or by the time you had the x‑rays the next day, what pain were you feeling by that time?---
A:When I went to see Dr Singh I was all swollen and stiff in my lower back. Most of the pain was from the middle of the back, going into the left buttock and into the left hip. And after that it spread across both sides of the back and the buttocks.
Q:When you say it spread across both sides of the back and the buttocks, when did it spread, that day or later?---
A:By the next day. I felt the pain around the back from the incident but I wasn’t sure exactly where it was going and where it was because I was in so much pain and stiffness.”[8]
[8]Transcript 53
20 Subsequently, the plaintiff was asked about the consequences of the pain he was experiencing, and in the course of answering those questions, he was again asked to describe the location of the pain he was experiencing:
Q:“Where was the pain?---
A:In the lower back and into the left buttock and hip area.”[9]
[9]Transcript 54
21 Under cross-examination, the plaintiff was again asked about the location of the pain and its distribution. He was taken to the clinical notes of the general practice which he attended for treatment, and a number of medical reports, for the purpose of demonstrating that he made no complaint of hip pain for a significant period of time. Under cross-examination, he gave an answer which I think fairly captures his evidence relevant to the location of the pain and its distribution, and the additional evidence he gave that he also experienced hip pain:
Q:“You say that you suffered from, as I understand your evidence this afternoon, started suffering pain in both the left and right hips on 27 October 2016?---
A:Yes, initially it started in the back and went into there.
Q:On 27 October 2016 are you telling His Honour that you had pain in your left and right hips, or not?---
A:Yes, when I lifted without the gloves I developed severe pain in the back and spreading into that area, yes, as well.
Q:What area?---
A:The lower back. From the back, toward the left side of the buttock, and into the left hip area around the buttock area.
…
Q:Are you telling His Honour on your oath here that you remember having pain in your right hip as well at the time that this incident occurred?---
A:Initially it started in the left one when I first developed the pain, from the mid-back and into the left side of the back and into the buttock and hip area, and consequently within some period of time it spread to the right side of the back and buttock and hip area.
Q:I see. How long was it between the time that you got pain from the lower back into the left buttock area, as opposed to pain in your right buttock area?---
A:I would say there was some pain straight away, but not to the same level as it was on the left side. And then with the period of time it started getting stiffer and worse and worse.”[10]
[10]Transcript 74-75
22 Under further cross-examination on the same theme, the plaintiff was then pressed on the issue of hip pain:
“Q:I’m asking you, Mr Spasovski, is it your evidence that at the time you suffered – I’ll put it a different way – at the time you suffered the pain in your left and right hips, that you told Dr Lamba about it, is that what you’re telling His Honour?---
A:I didn’t specifically say the pain was in the left and the right hip. What I said to him was basically the pain was in the lower back, from the middle of the lower back, went into the left side of the back, into the left hip, and also on to the right side and around the right hip area.”[11]
[11]Transcript 76
23 The plaintiff was then taken through the clinical notes and some of the medical reports. I will summarise the entries he was taken to, and then his responses to cross-examination based upon those entries. He was first taken to a consultation on 27 October 2016 when he saw Dr Singh:
“History:
Came after back pain when lifting heavy glass at work.
Conflict at work.
Reason for contact:
Back pain-muscular.”[12]
[12]Transcript 77-78 - Exhibit 11, Defendant’s Court book (“DCB”) 67
24 Next, he was taken to a consultation on 28 October 2016 when he saw Dr Singh:
“Reason for contact:
? Back pain-muscular spasm.”[13]
[13]Transcript 78 - Exhibit 11, DCB 68
25 Next, he was taken to the consultation on 31 October 2016 when he saw Dr Lamba:
“History:
On 27/10/16 while lifting at work about 30kg twisted back. Pain lower back. On exam muscular spasm back tlted tort, Movements painful and restricted.”[14]
(sic)
[14]Transcript 78-80 - Exhibit 11, DCB 68
26 The plaintiff saw Dr Lamba on 8, 9, 14, 22 and 29 November 2016 and 5 and 9 December 2016. He was referred to those entries generally.[15] None of those entries contain a complaint of hip pain. He was then specifically referred to the entry dated 21 December 2016:
“Still complain pain back, movements painful.”[16]
(sic)
[15]Transcript 81-82 - Exhibit 11, DCB 68-70
[16]Transcript 82 - Exhibit 11, DCB 70
27 At this point in the cross-examination, the plaintiff was referred to the report of Mr Michael Johnson, orthopaedic surgeon, dated 2 June 2017.[17] The references made to the content of Mr Johnson’s report were relatively brief for the purpose of the defendant making the point that the plaintiff did not complain of hip pain when initially examined by Mr Johnson on 23 February 2017 nor when he reviewed him on 16 March 2017.
[17]Transcript 83-87 – Exhibit N, Plaintiff's Court Book (“PCB”) 174-176
28 Mr Johnson obtained the following history from the plaintiff:
“On the 27 October 2016, he developed left sided back pain when he lifted a large sheet of glass with a colleague in an awkward fashion.
He gradually developed pain in the left back and leg but he attempted to keep working for a short period. He was unable to cope and he had not worked since that time.
He had been treated with physiotherapy, hydrotherapy and medication.
At the time that I saw him he complained of continuous low back pain that was worse on the left side. There was some radiation to the upper thigh. The symptoms were worse with prolonged walking and standing and relieved by lying down. … .”[18]
[18]PCB 174
29 Mr Johnson examined the plaintiff, finding that his pain was localised to the “left low back”, and that his hip “movement was not irritable”. When he reviewed him on 16 March 2017, he recorded the following history:
“At that time he continued to complain of discomfort in the central lumbar region. He denied any discomfort in the groin or thigh region.
On re-examination I noted his hip flexion was good, although he seemed to have extremely limited rotation on both sides.
I arranged for him to have some plain X-rays performed and interestingly it demonstrated very severe radiological arthritis in both hips.”[19]
[19]PCB 175
30 Mr Johnson told the plaintiff and his son that whilst the x-rays demonstrated severe osteoarthritic change in his hips, he suspected that his presenting complaint was actually arising from his spine. Later, he added that he was uncertain of the anatomical origin of the plaintiff’s spinal complaint.
31 Next, the plaintiff was referred to a report of Mr Roy Carey, orthopaedic surgeon. dated 5 June 2017.[20] The references made to the content of Mr Carey’s report were relatively brief for the purpose of the defendant making the point that the plaintiff did not complain of hip pain when examined by Mr Carey on 1 May 2017.
[20]Transcript 89 - Exhibit M - PCB 171-173
32 Mr Carey obtained the following history from the plaintiff:
“… on 27.10.2016 he was lifting a heavy piece of glass (about 30kg) with a colleague. He sustained sudden and severe left-sided lumbosacral back pain.”[21]
[21]PCB 171
33 Mr Carey also noted that the plaintiff’s pain had “spread somewhat”, in that there was intermittent leg discomfort but no real sciatica. On examination, his findings were non-specific, without any evidence of nerve root irritation or conduction deficit in either limb. He also noted the imaging of the plaintiff’s lumbar spine showed multi-level degenerative changes. Mr Carey considered that the plaintiff had suffered acute back pain which comprised an aggravation of pre-existing spondylosis.
34 Under further cross-examination on the same theme that the plaintiff did not complain of hip pain for a significant period of time, the plaintiff was taken back to the clinical notes of Dr Lamba, commencing at a consultation on 27 April 2017,[22] and moving to the first occasion he saw Dr Nicholas Nassios on 2 March 2018.[23] The plaintiff commenced seeing Dr Nassios following Dr Lamba’s retirement. The entry of that date does not record anything relevant, but the next consultation of 29 March 2018 records the following:
“[O]ngoing back pain, from work related injury 27/10/2016 after lifting at work, noticed back pain since that date. hasn’t gone back to work since that date.”[24]
[22]Exhibit 11 - DCB 73
[23]Transcript 90-91 and 94 - Exhibit 12, DCB 83
[24]DCB 83
35 I have traced through the balance of the clinical notes of Dr Lamba from 27 April 2017, and the clinical notes of Dr Nassios from 2 March 2018 to 19 July 2018. There are no complaints of hip pain in any of the clinical notes between those dates.
36 Essentially, it was put to the plaintiff that it was only at a consultation on 19 July 2018 that the plaintiff first complained of bilateral hip pain to Dr Nassios. The particular entry in the clinical notes is as follows:
“WORKCARE
not funding any wages, went to court on 2 july,, received back pay, and claim has been accepted.
patient has ongoing back pain and ps[y]chological problems associated with back injury.
needs a new cert, also complaining of bilateral hip pains which will need investigation.”[25]
(sic)
[25]DCB 84
37 The cross-examination based upon the clinical notes of Dr Lamba, the consultations with Mr Johnson and Mr Carey and the clinical notes of Dr Nassios were accompanied by a suggestion that the reason why there is no mention of hip pain is because the plaintiff did not suffer any hip pain until sometime in early 2018, culminating in the first complaint of hip pain to Dr Nassios on 19 July 2018. The plaintiff’s invariable answer to the suggestion that he was not suffering from hip pain until he complained of that pain to Dr Nassios on 19 July 2018 was consistent with what I quoted from his evidence in paragraph 22 above.
The hip surgery
38 Dr Nassios referred the plaintiff to Mr Russell Miller, orthopaedic surgeon, who first saw him on 12 November 2018. After reviewing relevant radiology and examining the plaintiff, he advised the plaintiff to have bilateral hip replacements. The plaintiff had a left total hip replacement on 22 May 2019, and then a right total hip replacement on 14 August 2019.
39 Mr Miller provided a report dated 31 January 2020[26] in which he outlined his treatment of the plaintiff, and also his opinion relevant to whether the plaintiff suffered an injury to his hips resulting from the incident, and whether the underlying constitutional arthritic changes in his hips were accelerated by the process of work.
[26]Exhibit T at PCB 190-198, and operation reports, Exhibit R at PCB 186-187 and Exhibit S at PCB 188-189
40 I will return to Mr Miller’s opinion, and also that of Mr Wilde, later in these reasons, but, firstly, I will shortly summarise the opinions of a number of medical practitioners whose reports were tendered into evidence, and who were not called to give evidence.
The other medical opinions
41 I will summarise the other medical opinions in chronological order, except for the evidence of two psychiatrists, who I will deal with later in these reasons, relevant to the date upon which they commenced treatment of the plaintiff or examined the plaintiff on a medico-legal basis.
42 The first in time would appear to be Ms Vanessa Lo Nigro, physiotherapist. The plaintiff was referred to her for treatment by Dr Lamba. She commenced treating the plaintiff on 18 November 2016. She provided two reports dated 7 June 2017[27] and 24 July 2017.[28] Ms Lo Nigro did not obtain a history from the plaintiff of hip pain nor did her examination of him reveal any hip deficit. Her treatment was directed solely to the plaintiff’s lower back.
[27]Exhibit O, PCB 177-181
[28]Exhibit P, PCB 182
43 Dr Majid Rahgozar, consultant occupational physician, examined the plaintiff on 21 February 2017. He provided a report dated 22 February 2017.[29] He did not obtain a history from the plaintiff of hip pain nor did his examination of him reveal any hip deficit. His opinion was directed solely to the plaintiff’s lower back condition.
[29]Exhibit 1, PCB 2-13
44 Dr David Kennedy, sports and industrial physician, examined the plaintiff on 11 December 2017. He provided a report dated 17 January 2018.[30] He did not obtain a history from the plaintiff of hip pain nor did his examination of him reveal any hip deficit. His opinion was directed solely to the plaintiff’s lower back condition.
[30]Exhibit X, PCB 206-211
45 Dr Andrew Miller, occupational health consultant, examined the plaintiff on 22 February 2018. He provided a report bearing the same date.[31] Dr Miller did not obtain a history from the plaintiff of hip pain nor did his examination of him reveal any hip deficit. His opinion was solely directed to the plaintiff’s lower back condition.
[31]Exhibit Y, PCB 212-218
46 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 14 March 2018. He provided a report bearing the same date.[32] The history recorded by Mr Jones focused on the plaintiff’s lower back; however, he examined the plaintiff’s hips and found fixed flexion deformity, with both lower limbs in a fixed externally rotated position, and some slight wasting of the left thigh muscles. On examination of the plaintiff’s hips, he noted the extent of reduction in motion, and added that flexion of the plaintiff’s hips appeared to aggravate his lower back pain. He reviewed x-rays of the plaintiff’s pelvis, noting severe chronic osteoarthritis in both hip joints.
[32]Exhibit 6, DCB 24-30
47 Mr Jones considered that the plaintiff was suffering from an aggravation of pre-existing degenerative disease of his lumbar spine, and that it was further aggravated by the severe osteoarthritis of the hip joints and the fixed flexion deformity. He added that the severe osteoarthritic condition of the plaintiff’s hips was placing increased demands on his lumbar spine, aggravating possible recovery from the lower back injury. He also added that the plaintiff’s lower back condition would not be improved without the plaintiff undergoing bilateral hip replacements which would then reduce the demands his hips were placing on his lumbar spine.
48 Associate Professor Bruce Love, orthopaedic surgeon, examined the plaintiff on 30 May 2018. He provided a report bearing the same date.[33] He reviewed x-rays, which he considered revealed full-thickness articular cartilage loss in both hips. He then observed that he was surprised that the plaintiff was not complaining of significant symptoms in his hips, given the severe osteoarthritis that was present. He considered that there was sufficient evidence in his possession based upon the history obtained, his examination and the radiology, to conclude that the plaintiff’s pain arose from his lumbar spine in the presence of multi-level degenerative changes.
[33]Exhibit 7, DCB 31-34
49 Mr Arun Ariyathurai, physiotherapist, saw the plaintiff on 22 August 2018. He provided a report dated 11 October 2018.[34] It is not clear to me whether he treated the plaintiff. In any event, he did not obtain a history from the plaintiff of hip pain nor did his examination of him reveal any hip deficit. He concentrated exclusively on the plaintiff’s lower back condition.
[34]Exhibit Q, PCB 183-185
50 Dr Amanda Sillcock, consultant occupational physician, examined the plaintiff on 19 December 2019. She provided a report dated 20 March 2020.[35] Dr Sillcock obtained a history from the plaintiff that he experienced pain in both his lower back and hips, which she was led to believe arose as a direct result of the incident. On the basis of that history, she considered that the incident resulted in an aggravation of the underlying degenerative changes in both the plaintiff’s lower back and hips. She then offered an opinion relevant to the plaintiff’s capacity for work without distinguishing between either injury.
[35]Exhibit CC, PCB 252-263
51 I should add at this point that neither the plaintiff nor the defendant spent much time nor effort addressing me on the medical reports I have briefly summarised above. It is for that reason I have chosen to follow suit by providing only a short summary of aspects of their reports which are relevant to the issues raised by the plaintiff and the defendant.
Mr Miller – the incident and the hips
52 Dr Nassios saw the plaintiff on 19 July 2018. It was on that occasion that the plaintiff complained of bilateral hip pain. The plaintiff saw Dr Nassios on 1 October 2018, which was when Dr Nassios wrote a letter of referral to Mr Miller.[36] Mr Miller then saw the plaintiff on 12 November 2018. Mr Miller provided a report dated 31 January 2020.[37] He examined the plaintiff and inspected x-rays, noting the following:
“Clinical examination on the 12/11/2018 revealed a man in significant distress. He walked with an antalgic gait. He had difficulty climbing up on and off the examination couch. Examination of the lumbar spine revealed a reduced range of motion and irritability. Examination of the hips revealed a markedly reduced range of motion and irritability.
I reviewed a number of investigations which revealed significant degenerative disease in the lumbar spine and severe arthritis in the hips. I thought this man was in a difficult situation and would require bilateral hip replacements.”
[36]Exhibit 11, DCB 85
[37]Exhibit T, PCB 190-198
53 Relevantly, Mr Miller obtained the following history of the incident:
“At today’s review (29/01/2020) I again obtained a further detailed description of the work injury. The client stated that he was at work on the 27/10/2016 having just returned to work following hernia surgery. He stated he was lifting a heavy sheet of glass which he estimated weighed approximately 30 kg with a work colleague. He states he was working at an awkward angle when the glass slipped causing him to severely jerk his back and this was followed by the sudden onset of severe pain in his back and thighs.”
54 Mr Miller then dealt with the question of causation with respect to both the work process and the incident, but for present purposes, it is his opinion relevant to the incident which is of importance:
“In relation to the lumbar spine and hips. This is a complex and multifactorial picture. It is likely this man had pre-existing disease in the lumbar spine and hips, although I note there were no pre-existing symptoms. It is likely, that the evolution of that disease has been influenced by his significant physical work over a protracted period of time. It is likely that that disease was aggravated, and symptoms were precipitated by the work injury in October 2016.
I therefore regard the current clinical status of the lumbar spine and hips as being substantially work related.”[38]
[38]PCB 196
55 Under cross-examination, Mr Miller was taken to the clinical notes of Dr Lamba and Dr Nassios and the reports of Mr Johnson and Mr Carey for the purpose of demonstrating that the plaintiff did not complain of any discrete hip pain until he saw Dr Nassios on 19 July 2018.
56 Mr Miller did not accept the proposition that the absence of complaint of hip pain was inconsistent with the plaintiff having suffered an aggravation of the constitutional arthritic changes in the incident. I think it is fairly captured in an early part of the cross-examination on that issue:
Q:“So you accept that the disease - let’s just - both the back and the hips, you accept there was a pre-existing disease in all those areas of the spine, of a degenerative nature, but you are of the view that there was no pre-existing symptoms of significance, is that fair?---
A:I think it’s, it’s highly there is pre-existing disease in the spine and back. It is probably partly degenerative in nature and probably partly other factors. There is a second subgroup of complexity following that.
Q:What about the hips?---
A:Same thing.
Q:And you say then it’s likely that the evolution that disease has been influenced by his significant physical work over a protracted period of time?---
A:Yes.
Q:You lump both the back of the hips into that analysis?---
A:Correct.
Q:And you say that it’s likely that that disease was aggravated and symptoms were precipitated by the work injury in October 2016. Am I right in saying you were of the view that symptoms in both the back and hips were precipitated by the incident of October 2016?---
A:Yes.”[39]
[39]Transcript 208-209
57 The foregoing was a prelude to the next part of the cross examination which explains the basis upon which Mr Miller considered that the constitutional arthritic changes in the plaintiff’s hips were aggravated in the incident:
Q:“Thank you, in both the back and the hips?---
A:I don’t fully separate them in that way because they interact and they merge, but as I understood it, he was coping quite well, doing his work, doing his other things and then following that day there is a marked deterioration from which he is not yet recovered.
Q:But you’re unable to say whether the deterioration was marked in relation to his back and/or his hips from that time?---
A:Probably both, but it’s hard to separate, it’s hard to separate the back and the hips. In fact it’s more than hard, you can’t fully separate the back and the hips because they merge and they interact with each other.
Q:The symptoms may be difficult or as far as your concern impossible I think you’re saying to separate?---
A:To fully separate, yes.
Q:You’ve got osteoarthritis in the hips?---
A:Correct.
Q:And you’ve got a degenerative condition in the back?---
A:Correct.
Q:They’re different conditions?---
A:Are they fully separate? I understood the question are they fully separate conditions that can be considered separately. No, they can’t, because they interact with one another so that in layman’s terms a crop back will affect a crook hip and the crook hip will affect a crook back.
Q:Because each one might make the other one sorer, create pain?---
A:Yes, it’s a little bit more complicated than that because if there is, for example, stiffness in the hip, that will affect the back and if there stiffness in the back - so there is one issue is trying to separate the symptoms, and the second issue is to do the mechanics, the biomechanics of the patient because an interaction, and that’s definitely the case and it’s widely understood by people who practice in the area.”[40]
[40]Transcript 209-210
58 I do not intend to turn to other parts of the cross-examination during which the examination and opinions of Mr Johnson and Mr Carey were put to Mr Miller. Clearly, he did not agree with the proposition, based upon their examination and opinions, that the constitutional arthritic changes in the plaintiff’s hips were not aggravated in the incident; however, near the conclusion of the cross-examination on this subject, Mr Miller was asked for his opinion on causation if the plaintiff was asymptomatic consistent with the primary position of the defendant on causation:
Q:“And if it be accepted as a fact by the court that that is accurate and that in fact he was essentially asymptomatic in his hips at that point, that would militate strongly against the work or the incident as being relevant to his subsequently emerging osteoarthritis, would it not?---
A:If that opinion is accepted that would be the case.”[41]
[41]Transcript 223
59 Under re-examination, a diagram was produced from the clinical records of Mr Carey and shown to Mr Miller. The diagram was a printed outline of a front view and a rear view of a body onto which the plaintiff was asked by Mr Carey to apply markings in accordance with the legend. The legend asked the plaintiff to note areas of numbness, pins and needles, ache and pain.[42] Mr Miller was asked to interpret the diagram, and in doing so, he said:
“… I would summarise that as saying that this diagram indicates that there are symptoms in the low back, buttocks, groin and thigh, more pronounced on the left side, and that those findings would fit with the typical presentation of a problem with back and hip pain and then it’s for the practitioner to try to disentangle those two entities, and I’ve previously remarked of the difficulties in trying to disentangle those.”[43]
[42]Exhibit JJ
[43]Transcript 233
Mr Wilde - the incident and the hips
60 Mr Peter Wilde, orthopaedic surgeon, examined the plaintiff on 9 December 2019. He provided a report dated 16 December 2019.[44] He noted the following relevant to the incident:
“On 27/10/2016 whilst working as a glazier at AA Somerton Windows Pty Ltd, he and a colleague were required to lift an awkward pane of glass weighing 30 kilogram[s]. As he lifted and felt a tearing in his back and into both buttocks, which made him feel sick and dizzy. He immediately reported the incident, went off work and saw a general practitioner. X-rays were performed and he was given time off work to rest at home. He has not been able to work since this injury.
He told me that the nature of the work was heavy and physical requiring frequent heavy lifting and awkward movements, which imposed considerable strain on his back, groins and hips. Leading to the incident on 27/10/2016, he was experiencing it did not require treatment and he did not take time off work.”[45]
[44]Exhibit Z, PCB 219-227
[45]PCB 221
61 In relation to the onset of symptoms of hip pain, Mr Wilde noted the following:
“With time the back pain seemed to improve slightly and he noted more difficulty with his hips. He was referred to Mr. Russell Miller who diagnosed bilateral osteoarthritis of the hips and surgery was recommended. Since then, he has had a left total hip replacement seven months previously and a right total hip replacement four months previously and is still recovering from these operations.”[46]
[46]PCB 221
62 Mr Wilde considered that the incident did not cause injury to the plaintiff’s hips. This was an opinion he repeated under examination-in-chief:
Q:“… Does the fact of that injury to the back and extending into that upper left leg indicate, sorry, have any influence on the progression of any underlying arthritic change?---
A:Probably not a great deal. I think the back injury was a discrete event, the back pain came on, you know, immediately afterwards and persisted. As the court probably is aware, back pain often refers into hips. It tends to refer more into the buttocks and the backs of the legs, the hamstring region rather than to the groin area. Hip arthritis is traditionally more in the front, in the groin area, anterior. And the hip - from memory this man mostly complained about pain referring from the back. Obviously then it becomes confused with the passage of time because he then gets symptoms in his hips. I don’t know that that lifting incident has contributed greatly to the development of pain in his hips the …
…
A:A specific event is not likely to significantly accelerate or aggravate a low grade or moderate arthritic hip. As opposed to what I said before, constant loading over a prolonged period of time probably does accelerate and promote arthritis. Does that help?[47]
[47]Transcript 170
63 Under cross-examination, Mr Wilde repeated his already stated opinion on whether the underlying constitutional arthritic changes in the plaintiff’s hips were aggravated in the incident. He said that he did not think that the incident had a significant impact on the plaintiff’s hips.
The incident – hips not aggravated
64 I do not accept that it is more probable than not that the underlying constitutional arthritic changes in the plaintiff’s hips were aggravated in the incident. My reasoning in reaching that conclusion is as follows.
65 The plaintiff did not make a complaint of hip pain until the occasion when he saw Dr Nassios on 19 July 2018.
66 Under cross-examination, the plaintiff was taken through the clinical notes of Dr Lamba, Dr Nassios and the histories recorded by Mr Johnson and Mr Carey, with the invitation to point out where it is that he made a complaint of hip pain. The plaintiff’s invariable answer was consistent with what I have quoted in paragraph 22 above.
67 I must pause here to observe that I am acutely aware of the shortcomings of clinical notes.[48] A warning has been sounded that it is for the trial judge to take into account the whole of the evidence. Clinical notes can be seductive, particularly, when they do not disclose that a particular medical complaint was recorded when compared to the sworn evidence of a plaintiff that it was;[49] however, in Philippiadis v Transport Accident Commission,[50] the Court of Appeal, while recognising the shortcomings of clinical notes, observed that where an injury is having serious adverse health consequences for a patient, it would be very unusual for the patient not to mention those consequences and for the treating medical practitioners’ clinical notes not to refer to them.
[48]Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [112]
[49]Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
[50][2016] VSCA 1 (“Philippiadis”)
68 I consider that what I should make of the absence of any complaint of hip pain until 19 July 2018 is more consistent with the observation made in Philippiadis.[51] If the plaintiff was having frank, and increasingly disabling pain in his hips, then it is very unusual that he did not complain of that to either Dr Lamba or Dr Nassios. I am fortified in reaching that conclusion because the plaintiff attended them regularly for his lower back injury, and for treatment of other medical conditions, so there was ample opportunity for him to make that complaint if he was in fact suffering any hip pain at an earlier point in time.
[51]ibid
69 The clinical notes are not the only reason for reaching the conclusion that the plaintiff’s underlying constitutional degenerative changes were not aggravated by the incident.
70 I do not accept the criticism made by Mr Miller of Mr Johnson and Mr Carey that their technique in taking a history, reviewing the radiology, examining the plaintiff and considering the source of the plaintiff’s pain was as flawed as he considered it to be. Neither Mr Johnson nor Mr Carey were called to give evidence by either party to test whether they turned their minds to whether the pain complained of by the plaintiff to them was coming from the plaintiff’s lower back and/or his hips.
71 Even if I accept Mr Miller’s thesis that I should be cautious about accepting what the defendant wants me to make of the absence of a complaint of hip pain in the reports of Mr Johnson and Mr Carey, there are then the opinions of Mr Jones, Associate Professor Love and Mr Wilde, who do not support an association between the incident and an aggravation of the underlying degenerative changes in the plaintiff’s hips.
72 It occurs to me that Mr Jones turned his attention specifically to the plaintiff’s hips. He conducted an extensive examination of the plaintiff’s hips. He was, therefore, in a position to consider whether the underlying constitutional arthritic changes in the plaintiff’s hips had been aggravated in the incident. Even if that might be said to be drawing something of a longbow, and I do not think it is, then there is the observation made by Associate Professor Love which I think is very telling. He was surprised that the plaintiff was not complaining of significant symptoms in his hips given the severe osteoarthritis that was present. Like Mr Jones, he was in a position to consider whether the underlying constitutional arthritic changes in the plaintiff’s hips had been aggravated in the incident.
73 Mr Wilde, of course, was called to give evidence. The issue of causation was put to him directly under examination-in-chief. He expressed doubt that the incident could have resulted in an aggravation of the underlying degenerative changes in the plaintiff’s hips. He repeated that under cross-examination. I should add here that Mr Miller, on an overall analysis of the orthopaedic evidence, was the only one proposing that causal connection.
74 Mr Miller accepted that a finding that the underlying constitutional arthritic changes were not aggravated in the incident would militate against the incident being “relevant to his [the plaintiff’s] subsequently emerging osteoarthritis”.[52] I should add at this point that I did not regard Mr Miller’s evidence on the issue of causation as being dogmatically held by him. He said candidly that he recognised the difficulty in disentangling the history and clinical presentation of the plaintiff in reaching a conclusion whether the underlying degenerative changes in the plaintiff’s hips was aggravated in the incident.[53]
[52]Transcript 223
[53]Transcript 230
The work process – hips aggravated
75 I deliberately set out the plaintiff’s account of the work process and the histories recorded by Mr Miller and Mr Wilde in that respect to avoid repetition. At this point, I incorporate into the consideration of whether the work process accelerated the underlying constitutional arthritic changes in the plaintiff’s hips, the plaintiff’s evidence in that respect in paragraph 10 above, and the histories recorded by Mr Miller at paragraph 53 above and Mr Wilde at paragraph 60 above.
76 Mr Wilde and Mr Miller were asked, both under examination-in-chief and cross-examination, for their opinions whether the work process could have, or indeed did, accelerate the underlying constitutional arthritic changes in the plaintiff’s hips.
77 Under examination-in-chief, Mr Wilde addressed the issue comprehensively:
Q:“The nature and nature of the client’s injury and you say that, ‘The aggravated spondylosis and osteoarthritis is both hips and the injury. The hip arthritis was aggravated by strains on the hip with the heavy lifting and bending at work over a period of time.’ Understanding what is shown on the radiology and understanding the symptoms the plaintiff complains of, what’s the involvement in your opinion of heavy manual work over a period of ten years before October of 2016 in the development and/or progression of the osteoarthritic hips?---
A:It’s a heavily debated topic whether or not sort of heavy loading of a joint promotes, aggravates the arthritis. The determinants of whether or not people get hip arthritis is multifactorial and more often than not it’s genetic in a familial background. Some people get hip arthritis for no apparent reason (indistinct) and others never get it, so the role of heavy loading in a manual worker is often debated. It’s my view, and I don’t think there’s any right or wrong answer here, that heavy loading might promote the onset of the arthritis. It certainly wouldn’t be considered to be the absolute and only cause. It might - so in other words it might bring the arthritis on at a younger age than if the man had worked in a sedentary capacity all his life he may not have got arthritis until 65 or 70. But I’ve listened to many debates on this score at various conferences I’ve attended and I don’t think anybody knows the right or wrong answer and especially not for a particular individual.”[54]
[54]Transcript 169
78 Under cross-examination, the subject was raised with Mr Wilde again:
Q:“So the question for you in relation to the hips as you - as you perceive your intellectual process here, if you don’t mind me putting it that way, is whether or not the work over time has accelerated the hip condition, that is to say the osteoarthritis of the hip, is that what was exercising your mind?---
A:That’s what I would argue, but that contribution is minimal.
Q:Yes?---
A:It’s not a significant contribution. It may have accelerated the process, maybe five years.
Q:Yes?---
A:Certainly not the complete cause for the development of the arthritis and the need for hip replacements.
Q:Do I take it from that that you would regard it as inevitable that this gentleman would have come to, regardless of his work, osteoarthritis in his hip, probably leading to hip replacements?---
A:Correct.”[55]
[55]Transcript 171-172
79 The cross-examination rounded off with Mr Wilde accepting that the totality of his evidence amounted to his opinion that there has been an acceleration of the progress of the arthritic changes by five years in a man who was facing bilateral hip replacements in any event.[56]
[56]Transcript 172
80 The examination-in-chief of Mr Miller was short. It incorporated an adoption by Mr Miller of the content of his report. His opinion relevant to the contribution of the work process to the acceleration of the underlying constitutional arthritic changes in his hips was tested during cross-examination. Mr Miller repeated the opinion he expressed in his report, which I referred to in paragraph 53 above. He acknowledged, in much the same way as did Mr Wilde, that there is debate in the orthopaedic community whether an underlying degenerative process (in this case, the hips) can be accelerated by heavy work.[57]
[57]Transcript 227
81 Mr Miller’s opinion did not change under cross-examination from the opinion expressed in his report. I think the following part of the cross-examination captures the expression of that opinion adequately:
Q:“Yes. Is it likely that absent the work, the clinical course of his conditions, bilaterally, would have been similar leading up to the bilateral hip replacements, later on though you say they would have been. Can I make that simpler for you if you’re having trouble? It’s one thing to say---?---
A:My position is that the work, this is the significant physical work over a protected period of time, has contributed to the evolution of the disease.
Q:Yes?---
A:That’s my position. I understand it’s a debatable position but it’s my position and therefore the work has influenced the timing of the hip surgery.
Q:Exactly? Take the work away, would the hip replacement be required at that time?---
A:No, in my opinion.
Q:Take the work away, the hip replacements would have been required at some stage all the same?---
A:Take all the work away, the injury, or the whole work?
Q:The whole work?---
A:The whole period of physical work, if he was working in sedentary work, would he have required hip replacement?
Q:Yes?---
A:I don’t think so.
Q:How do you know that?---
A:I don’t know that, I just said I don’t know. You want my best estimate.”[58]
[58]Transcript 228-229
82 My synthesis of the evidence of Mr Wilde and Mr Miller is that they both agree that there is debate within the orthopaedic community whether underlying constitutional arthritic changes can be accelerated by heavy work; however, both subscribe to the same opinion that it can. They chose to describe the extent of the acceleration differently. Mr Wilde quantified the acceleration as minimal,[59] whereas Mr Miller quantified it as a significant contribution. Their use of those expressions must be seen in the context of both acknowledging that the need for surgery has been brought forward. Mr Wilde offered the opinion that the need for surgery has been brought forward by about five years. Mr Miller did not offer an opinion in terms of years.
[59]Transcript 171-172
83 Furthermore, both Mr Wilde and Mr Miller were comfortable enough in accepting that if the plaintiff did not complain of hip pain for about eighteen months after the occurrence of the incident, that fact alone was not inconsistent with their opinions that the work process had accelerated the underlying constitutional arthritic changes in the plaintiff’s hips.[60]
[60]Mr Wilde at Transcript 182 and Mr Miller at Transcript 227
84 Despite the debate within the orthopaedic community, I heard evidence from two eminent orthopaedic surgeons who acknowledge the debate, but notwithstanding the content of that debate, they have expressed opinions that the work process probably accelerated the underlying constitutional arthritic changes in the plaintiff’s hips. I am satisfied on their evidence that it is more probable than not that the work process accelerated the underlying constitutional arthritic changes in the plaintiff’s hips by about five years.
The hip admissions
85 The plaintiff submitted a Worker’s Injury Claim Form dated 16 November 2016 claiming that on 27 October 2016, he suffered an injury to his lower and middle back, left leg, and from stress.[61] Gallagher Bassett Services Workers’ Compensation Vic Pty Ltd was appointed the claims agent. By letter dated 24 November 2016, it accepted the claim and liability for no fault payments.[62]
[61]Exhibit DD, PCB 275-276
[62]Exhibit FF, PCB 284-289
86 According to a letter of the claim’s agent dated 24 August 2018, the plaintiff lodged a new claim adding “hips” as an injury. A genuine dispute certificate was issued on 4 July 2017 relevant to the new claim.[63] The plaintiff filed a proceeding in the Magistrates’ Court which resulted in a settlement set out in handwritten terms of settlement dated 2 July 2018. Paragraph (b) of the terms of settlement provide that the defendant would pay “reasonable medical & like expenses from 3/5/17 to date & to continue in accord[ance] with the Act …”.[64]
[63]Exhibit 16
[64]Exhibit 15, PCB 300
87 Additionally, the decision contained in the claim’s agent’s letter dated 24 August 2018 was the subject of conciliation on 24 October 2018. The conciliation outcome certificate[65] refers to the decision and that all claimed injuries continue to be accepted relevant to a claim, including aggravation of osteoarthritis of the hips being a sequelae of the back injury.
[65]Exhibit 16
88 Subsequently, the claims agent accepted liability for a left total hip replacement by letter dated 11 June 2019,[66] and for a right total hip replacement by letter dated 18 July 2019.
[66]Exhibit HH, PCB 310-311
89 The claims process is difficult to follow. I can see that there are likely to be many other documents which would more adequately set out the chronology of events explaining the decision; however, the plaintiff and the defendant considered that what I was provided was adequate for me to consider the relevance of the decision.
90 The plaintiff relied upon Sednaoui v Amac Corrosion Protection Pty Ltd[67] as authority for the proposition that the decision is admissible against the interests of the defendant, and is admissible not only in the context of a serious injury application, but also of common law damages claim. I have reviewed the relevant authorities, and I am satisfied that it is admissible in that way. I do not think any of this is controversial.
[67][2017] 52 VR 247 (“Sednaoui”)
91 What is controversial is what is to be made of the admission. In Sednaoui,[68] the Court of Appeal analysed Ansett v Taylor,[69] which is often relied upon as authority for a proposition which the Court of Appeal summarised as follows:
“Before leaving our analysis, we should observe that during the course of oral argument it appeared to be submitted by the applicant that Ansett v Taylor was to be understood as stating, as authoritative propositions of law, that:
(a)the acceptance of a claim form (and the payment of compensation subsequent thereto) was an admission that should ordinarily (and, perhaps, in all but exceptional circumstances) be regarded as very significant; and
(b)such an admission was to be regarded as very significant, albeit not conclusive, because an employer, in a particular case, might be able to satisfactorily explain its conduct.”[70]
[68]ibid
[69][2006] VSCA 171
[70]at paragraph [66]
92 The Court of Appeal considered that what underwrote that submission needed the following clarification:
“Ansett v Taylor is not authority for any such propositions of law. The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.
Similarly, while an employer/respondent may, in a particular case, be able to explain the circumstances of a particular admission so as to reduce the weight that might be given to it, the mere failure by such a party to call such evidence, without more, does not mandate a conclusion favourable to the claimant/worker. As with most questions of admissibility and weight, each case is dependent upon its own facts and circumstances.”[71]
[71]at paragraphs [67]-[68] (footnotes omitted)
93 It must be acknowledged that the defendant would not have made the admission without there being some reasonable basis in the evidence available to it at the time when it accepted liability; however, such a decision may be made in a range of circumstances where the evidence underwriting it might later be found to be wanting. For my own part, I am concerned here to critically analyse the actual evidence to determine a primary question of causation. The fact that such a decision was made cannot cure the absence of evidence supporting the acceptance of liability.
94 I think I am in a far better position than the decision-maker to determine the primary questions of whether the underlying constitutional arthritic changes in the plaintiff’s hips were aggravated in the incident. The fact of the decision does not change the conclusions I have reached that there was no aggravation. Nor does the decision influence the conclusions I have reached that the work process accelerated the progress of the underlying arthritic changes.
A comorbidity
95 In late 2018, the plaintiff said that he “started feeling bad”. He saw a medical practitioner, who referred him to the Northern Hospital. He underwent blood testing, which disclosed that he had a coronary infection. He was placed on antibiotics. He was an inpatient for about four days before he was transferred to St Vincent’s Hospital, where he was an inpatient for somewhere around forty to forty-two days. He was discharged in early 2019.[72]
[72]Transcript 67
96 Dr Khoa Phan, physician, provided a report described as a conference report dated 20 March 2019.[73] He described the plaintiff’s presenting complaint as a recent infective aortic valve endocarditis with moderate to severe aortic valve regurgitation. Much of his report is drafted in abbreviated medical terms which I have found difficult to follow; however, almost all of that is explained later by other specialists whose evidence I will refer to shortly.
[73]Exhibit V, PCB 201-204
97 Dr Phan considered that the plaintiff’s bicuspid aortic valve endocarditis had been successfully treated. He said that the plaintiff was suffering from severe aortic regurgitation, but with no symptoms of that disorder. He considered that his physical capacity was limited by severe osteoarthritis rather than the aortic regurgitation. At that stage, the medical practitioners at St Vincent’s Hospital had recommended to the plaintiff that he have the bicuspid aortic valve replaced with a prosthetic valve. The concern which Dr Phan appears then to have dealt with was whether that surgery should precede the total hip replacement surgery recommended by Mr Miller. Dr Phan concluded that the total hip replacement surgery should precede the aortic valve replacement surgery.
98 Mr Miller referred the plaintiff to Dr Steve Marasovic, cardiologist and specialist general physician and perioperative physician, to obtain his opinion of the risks to the plaintiff’s coronary condition by undergoing bilateral total hip replacement surgery. Dr Marasovic wrote to Mr Miller by letter dated 8 May 2019[74] in which he provided a preoperative assessment of the plaintiff. He provided a more extensive history of the plaintiff’s treatment at St Vincent’s Hospital – the plaintiff had been diagnosed with infective endocarditis with enterococcus faecalis, resulting in severe aortic regurgitation on the background of the bicuspid aortic valve. He was subsequently treated by the infectious diseases team and cardiologist at St Vincent’s Hospital. He referred to the plaintiff’s need for an aortic valve replacement, and the opinion of his treating specialists that he should undergo the bilateral total hip replacements before undergoing the aortic valve replacement surgery.
[74]Exhibit U, PCB 199-200
99 Dr Mark Laidlaw, physician with the Department of Cardiothoracic Surgery at St Vincent’s Hospital, provided a report dated 30 April 2020.[75] He referred to the plaintiff’s review by the Cardiac Surgery Clinic on 26 March 2020. He noted that the plaintiff was not suffering any shortness of breath, and otherwise reported stable symptoms from a cardiac perspective. In particular, he noted that the plaintiff did not report any angina, palpitations, orthopnoea, lower limb oedema or syncopal symptoms.
[75]Exhibit W, PCB 205
100 It would appear that Dr Laidlaw was asked to specifically address the plaintiff’s capacity for work. In response, he said:
“With regards to the effect of this on his ability to work, I have discussed with the surgical registrars and consultants who have been involved in Mr Spasovski’s outpatient management thus far. Given his stable cardiac symptoms, and that his infective endocarditis has been managed medically, it is the impression of the cardiothoracic team that Mr Spasovski’s aortic regurgitation would be unlikely to limit his ability to work. Mr Spasovski’s exercise tolerance is limited by his back injury, which is therefore far more likely to be the barrier to his ability to work.”
101 Associate Professor Hammond, physician, provided two reports dated 28 April 2020,[76] and a short undated supplementary report.[77] He did not examine the plaintiff. He was provided with extracts of the records of Dr Marasovic in the clinical records of the Rochdale Medical Centre.[78] He was asked to review the materials he was provided and to explain the plaintiff’s cardiac condition and, among other things, the plaintiff’s capacity to function in terms of capacity for work and generally.
[76]Exhibit 9, DCB 52-58
[77]Exhibit 10, DCB 117
[78]The medical centre where Dr Nassios works
102 Associate Professor Hammond’s outline of the diagnosis of the plaintiff’s coronary condition, treatment and residual consequences is significantly more detailed than what was referred to in the reports of Dr Phan, Dr Laidlaw and Dr Marasovic.
103 It was in December 2018 that the plaintiff presented with a febrile illness, later diagnosed as infective endocarditis. He was admitted to the North Park Hospital, and then the Northern Hospital, and then to St Vincent’s Hospital on 22 December 2018. He was discharged from St Vincent’s Hospital on 2 February 2019.
104 Associate Professor Hammond traced through the investigations into the plaintiff’s coronary condition, and the medical practitioners who played a role in the diagnosis and treatment of that condition. After reviewing the material he was provided, he concluded that the plaintiff had suffered from a congenital abnormality of the aortic valve, being that of a bicuspid aortic valve, which predisposed him to the development of infective endocarditis. The infection resulted in “[s]ignificant destruction of the aortic valve” which in turn led to “the development of aortic regurgitation, which has been assessed as being severe in nature”.[79]
[79]DCB 55
105 In answer to a question relevant to the impact of the plaintiff’s coronary condition on his social, domestic and occupational circumstances, Associate Professor Hammond said:
“However, in the absence of surgical intervention, I would expect Mr Spasovski to demonstrate a gradual reduction in exercise tolerance with symptoms of increasing shortness of breath on exertion, even if relatively asymptomatic at rest.
Therefore, his ability to perform domestic tasks would gradually be impaired such that activities such as gardening, household maintenance and repairs, hobbies and general housework would gradually become more and more restricted.”[80]
[80]DCB 56
106 Specifically, in relation to his capacity to undertake a similar occupation to that of a glazier, or in work requiring heavy physical activity, he said:
“I believe that Mr Spasovski is not suitable for occupations which involve heavy physical activity, or moderate physical activity on a regular basis.
From a cardiac standpoint, he would be suitable to undertake occupations that are considered light in nature or those that are sedentary or desk based.
As noted above, certain occupations will be precluded if they pose an increased risk of cuts or abrasions, or an increased risk of exposure to infective organisms, due to a potential increase in risk of development of a further episode of infective endocarditis.”[81]
(emphasis in original)
[81]DCB 57
107 The plaintiff said that following his discharge from St Vincent’s Hospital, the only treatment he presently has is the prescription of medication for control of his blood pressure.[82] He said he is not having any problems with his heart at the moment.[83] He is currently on a waiting list to have the surgery. His coronary condition has been categorised as a category 2, which Dr Nassios said means that the plaintiff’s need for surgery is semi urgent.[84] Under cross-examination, the plaintiff said that it was his belief that the aortic valve replacement surgery is not urgent, and that he has been told that he can function as he is for the next ten to fifteen years.[85]
[82]Transcript 72
[83]Transcript 159
[84]Transcript 245
[85]Transcript 156-157
108 The plaintiff submitted that his coronary condition is of little relevance in the assessment of his past and future loss of earnings and earning capacity. He submitted that his past loss of earnings should be reduced by four months to accommodate convalescence following the clearing of the endocarditis, which should be reduced to two months because the plaintiff would be in receipt of holiday pay and sick pay. Furthermore, the plaintiff’s future loss of earnings and earning capacity should be reduced by a period of four months to accommodate his period of convalescence following the aortic valve replacement surgery.
109 Otherwise, the plaintiff submitted that he is entitled to recover the whole of his past loss of earnings, including superannuation, from 26 October 2016 and to date, and future loss of earnings, including superannuation, for a period of four years into the future set out in the plaintiff’s special damages dated 30 June 2020.
110 The defendant submitted that the plaintiff’s coronary condition effectively ended his capacity for employment as a glazier from December 2018. That would limit the plaintiff to the loss of earnings for the past from 26 October 2016 to December 2018, when the plaintiff suffered the onset of the endocarditis.
111 The conclusion I have reached is that I think it is more probable than not that the plaintiff’s working life as a glazier came to an end when he suffered the onset of the endocarditis in December 2018. My reasoning in reaching that conclusion is as follows.
112 I do not accept the plaintiff’s evidence that he was effectively given a clean bill of health by the medical practitioners who treated him for the endocarditis, meaning that he suffered no impairment of his earning capacity, and could have returned to full-time work as a glazier but for the incapacitating nature of the injury to his lower back and hips.
113 The plaintiff’s evidence is altogether contrary to the medical evidence, that he has suffered serious damage to his aortic valve and a significant impairment in its functioning. I do not think there is any controversy in the following – the plaintiff has a congenital defect of a bicuspid valve. He suffered the onset of infective endocarditis. Associate Professor Hammond described the damage to the aortic valve as significant destruction of the aortic valve, which in turn led to the development of severe aortic regurgitation. The severity of the plaintiff’s coronary condition can be measured by the fact that he has been categorised as category 2 in a surgical context, which means the need for the surgery is semi urgent.
114 The plaintiff relies on the opinion of Dr Laidlaw that his coronary condition is unlikely to limit his ability to work. The vice in that opinion is that it lacks a proper analysis of the plaintiff’s vocational history, and whether he could return to work as a glazier or in some other much lighter category of work, or somewhere in between. This is of critical importance, because the plaintiff’s claim for past and future loss of earnings and earning capacity is based upon his pre-injury work as a glazier. It is not put on any alternative basis. Dr Laidlaw should have been provided with a description of the plaintiff’s work as a glazier consistent with the evidence given by the plaintiff and as summarised by Mr Wilde and Mr Miller. He should have been asked whether the plaintiff would be capable of doing that work with such a serious coronary condition, and what capacity for that work he would have after having the surgery.
115 Associate Professor Hammond did precisely what the plaintiff failed to ask Dr Laidlaw to do. He described an expected deterioration in the plaintiff’s exercise tolerance, capacity to engage in domestic activities, and given his accurate understanding of the heavy nature of the work of a glazier, that it would be unsuitable. Furthermore, it is apparent that he considered that it would be inadvisable for the plaintiff to pursue work as a glazier because it would put him at increased risk of infection should he suffer cuts and scratches which may allow the entry of organisms which would have the potentiality to cause prosthetic valve endocarditis.
Pain and suffering/loss of enjoyment of life
Creditworthiness and reliability
116 The plaintiff admitted that in paragraph 35 of his serious injury affidavit sworn 12 September 2018,[86] he set out the income which he earned for the financial years ending 30 June 2011 to 30 June 2016. It became abundantly clear that what he admitted for taxation purposes was a wrongful understatement of his income. He admitted that he was paid sums of cash given to him in an envelope by the defendant. Initially he was given $200 cash per week, which increased to $250, and then $300 per week.[87]
[86]Exhibit 14, PCB 264-274
[87]Transcript 128-142
117 The attack on the plaintiff’s creditworthiness and reliability was almost entirely based upon the cross-examination of the plaintiff about his taxation returns and receipt of cash from the defendant.
118 The defendant submitted that the plaintiff’s understatement of his income significantly undermined his creditworthiness and reliability to the extent that it infected the whole of his evidence, with the result that I should not accept certain aspects of his evidence in the absence of corroborative evidence. The particular aspects which I was invited to be cautious about were when the plaintiff first developed hip pain; his need for walking sticks and walking aids and when that arose; the extent to which his current lower back pain, as opposed to hip pain, affect his activities of daily living, and whether he is on a waiting list for aortic valve replacement surgery and the necessity for it.
119 Whilst I consider the plaintiff’s evidence to demonstrate clearly that he wrongly understated his income, I am not persuaded that it undermines the plaintiff’s creditworthiness and reliability as broadly as submitted by the defendant.
Background evidence
120 The plaintiff was born in Macedonia in February 1955. After finishing secondary school at the equivalent of Year 11, he entered the workforce, undertook his military service, and then returned to the workforce, before migrating to Australia when he was thirty-three years of age.
121 The plaintiff has an excellent work history in Australia. He worked for Bertocchi Smallgoods, and then the Ford Motor Company until 1996, when the factory where he worked closed. He then worked with Austral Aluminium in the construction of domestic windows. He worked there for about ten to eleven years, before going to work for the defendant in the circumstances which I described earlier in these reasons. I accept that the plaintiff worked full time from 7.30am to 3.30pm.
122 The immediate consequences of the incident resulted in the plaintiff suffering pain and the distribution of pain which are summarised in paragraphs 19 and 20 above. My analysis of the evidence of the treatment provided to the plaintiff is that he complained of the same distribution of pain from the first occasion he sought medical treatment, and continued to complain of that pain up to the present time. Additionally, and consistent with the conclusions I reached relevant to the acceleration of the underlying arthritic changes in the plaintiff’s hips, he has suffered hip pain due to that acceleration to the extent opined by Mr Wilde and Mr Miller.
The medical evidence
123 Dr Lamba referred the plaintiff to Mr Johnson for a surgical opinion in February 2017, and then to Mr Carey in May 2017. Both noted that the radiology demonstrated multi-level degeneration in his lower back. Although, Mr Johnson was uncertain of the anatomical origin of the plaintiff’s pain, both he and Mr Carey noted a significant reduction in his physical movements on examination. Mr Johnson considered that the plaintiff needed to undergo treatment through a multidisciplinary rehabilitation program, and Mr Carey expressed a similar opinion.
124 The plaintiff’s medical treatment is managed by Dr Nassios, who prescribed, and continues to prescribe, him relevant medication to treat his pain. He initially prescribed him Mobic, then Tramal and then Targin. Later, and at around the time he saw Mr Carey, he prescribed him Voltaren and Valium.
125 Dr Nassios referred the plaintiff to Ms L Nigro for physiotherapy treatment from November 2016. In addition to that treatment, the plaintiff undertook a course of hydrotherapy and also gym exercises. It would appear that he continued with physiotherapy treatment during 2017.
126 In addition to the physical consequences of the plaintiff’s injuries, he has suffered an Adjustment Disorder with Depressed and Anxious Mood. He was examined on a medico-legal basis by Dr Louise Seward, psychiatrist, on 20 March 2018 and 3 December 2019. She provided two reports dated 20 March 2018[88] and 3 December 2019.[89] On each occasion that Dr Seward examined the plaintiff, she took an extensive history of his background, injuries and the treatment he has undergone for his injuries, and the consequences which he says have plagued him due to the nature and extent of his injuries.
[88]Exhibit AA, PCB 228-239
[89]Exhibit BB, PCB 240-251
127 After examining the plaintiff on both occasions, Dr Seward specifically noted that the plaintiff’s mood had deteriorated significantly as a result of persistent pain, disability and inability to work. She also noted his symptoms of depression, anxiety, anxious and irritable mood, insomnia, impaired memory and concentration, reduced motivation, social withdrawal, anhedonia and loss of confidence and self-esteem. It was on the basis of the foregoing that she concluded he had suffered an Adjustment Disorder with Depressed and Anxious Mood, was totally incapacitated for work, and needed referral for treatment, including the prescription of antidepressants, and referral for pain management. Her opinion was not challenged by the defendant. It is a very strongly worded and compelling opinion of the man who is labouring under a significant psychiatric impairment who will probably continue to labour under that level of impairment for the foreseeable future.
128 The plaintiff was also examined by Dr Nitin Dharwadkar, psychiatrist, on 19 October 2018. He provided a report bearing the same date.[90] The history he recorded, the symptoms elicited through examination and the results of his examination are similar to those of Dr Seward. He also diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that the plaintiff could return to modified duties, from a psychiatric perspective, if his physical injuries permitted him to do so.
[90]Exhibit 8, DCB 35-51
Consequences
129 Despite treatment, the plaintiff has not experienced any significant relief from the pain he initially experienced in his lower back nor from the areas affected by the radiation of pain from his lower back. He was absent from his employment from the day of the occurrence of the incident and has been absent since that time up to the present. He has not felt capable of returning to any work. The preponderance of the medical evidence is consistent with the plaintiff being totally incapacitated for work.
130 The pain the plaintiff has experienced interferes with his sleep. He is still having a lot of problems sleeping due to lower back pain. Sometimes when he rolls over, he will experience sharp pain in his lower back, which results in him waking up.
131 The plaintiff’s enjoyment of simple domestic, social and recreational pursuits which were part of his life before he was injured, have essentially been lost to him.
132 The plaintiff has not been able to continue gardening. He had a small garden which included a vegetable patch. He has difficulty bending, lifting and squatting.
133 The plaintiff’s mobility became so affected that by the middle of 2018, he began using a walking stick as a walking aid. I think it is more probable than not that a proportion of his limitation of mobility is contributed to by the underlying constitutional degenerative changes in his hips.
134 The plaintiff pursued a number of hobbies. One of those was playing social games of soccer with friends and his children, and the children of friends. He was not doing that as much at around the time of the occurrence of the incident, but he was still doing it to some extent.
135 The plaintiff enjoyed fishing. It was largely fishing on inland water systems. He fished for trout and carp. He has made attempts to return to fishing, but not often. On the occasions that he has, his friends have picked him up and taken him fishing. He said it was basically just to get him out of the house. He would sit in a chair on a riverbank basically enjoying the view. Fishing was something he enjoyed. Previously, he would walk around riverbanks and to different localities when fishing.
136 The plaintiff did most of his own home maintenance with assistance from his sons. He did not give much evidence about what home maintenance he did. That evidence was given by his wife, whose evidence I will turn to shortly.
137 The plaintiff and his wife enjoyed driving all around Victoria. He referred to driving to Bendigo and other sites on weekends. They would drive to a regional Victorian town and stay overnight. They had also driven to Sydney, and to the Gold Coast about ten times. His wife now does all of the driving when they go on driving trips. They tend not to go on long driving trips anymore. They tend to stop along the way so that the plaintiff can gain relief from lower back pain.
138 The plaintiff goes on shopping trips with his wife to relax and get out of the house and have a change of scenery. He uses a walking frame when he goes out shopping with her.
The Plaintiff’s wife
139 The plaintiff’s wife, Olga Spasovska, gave evidence. She and the plaintiff have known each other for forty-two years. They have been married for thirty-seven to thirty-eight years. They have two adult sons and one grandchild.
140 Mrs Spasovska described the plaintiff as someone who enjoyed working, and who had been working for most of their married life. She described him as being an active man when he was not working. She referred to him working in the garden, building a gazebo, undertaking mechanical repairs and servicing of the family car.
141 Mrs Spasovska said the plaintiff complains of pain. She notices that when he sits, he is restless and gets up from his sitting position. He has difficulty sleeping. He turns over and wakes up complaining of pain. He has difficulty washing and keeping himself clean, needing her assistance to do that. She described needing to help him bathe, particularly, his lower legs and feet. She described needing to help him dress, for example helping him pull on socks and taking off his pants or jeans.
142 Mrs Spasovska described that she now does the gardening. The plaintiff tends to stand beside her giving her instructions about what to do in the garden. She now mows the lawns. He does some watering of the lawn.
143 Mrs Spasovska described that if there was work to be done around the house, for example changing a light globe or fixing a leaky tap, that the plaintiff would do those things and was proud of the fact that he could do them. He does not do them now. If that work is needed, they now call in a tradesman.
144 Mrs Spasovska described that she and the plaintiff do not go out that much anymore. The occasions when they did have significantly reduced. She encourages him to go out, but he appears to be depressed. She described previously travelling on cruises, and visiting Macedonia, parts of Australia, New Zealand and Tasmania. She said that he enjoyed those trips.
145 Mrs Spasovska described that the plaintiff does not work on cars anymore. He tells her how to put oil in the car. She stated that their son-in-law[91] now helps servicing their cars.
[91]This appears to be an error in the Transcript (T199) and should read “son” not “son-in-law” because the plaintiff and his wife only have two sons, not a daughter
146 Mrs Spasovska described modifications that have been made to their house. A railing has been installed in the laundry so that the plaintiff can get down the three steps from the laundry to the backyard. He had a special chair made so that he can toilet. He has a special recliner chair that he considered to be more comfortable. He has a hand frame which helps him to walk inside the home and outside.
147 Under cross-examination, Mrs Spasovska said that the gazebo was constructed about fifteen years ago. The landscaping was undertaken when they first moved into their present house, which was about thirty-two years ago. She believes that the chair for the toilet and the recliner chair were purchased at around the time of the hip surgery. She believed the railing on the laundry was installed before the hip surgery. She and the plaintiff have a good relationship with their sons. She has noticed that the plaintiff is very sad because he cannot enjoy interaction with his grandchild.
Conclusions
148 The attack on the plaintiff’s creditworthiness and reliability has not impacted much on my impression of the plaintiff’s evidence and that of his wife relevant to the pain and suffering the loss of enjoyment of life consequences of the lower back injury and the acceleration of the underlying constitutional arthritic changes in the plaintiff’s hips.
149 I think it is more probable than not that the plaintiff has suffered the pain and suffering and loss of enjoyment of life consequences which I have summarised from his evidence and that of his wife. I am fortified in reaching that conclusion because, on my analysis of the medical evidence, there appears to be an overall acceptance that the plaintiff is a reasonable historian and has given a reasonable and acceptable account of the consequences of his lower back injury and acceleration of underlying degenerative changes in his hips.
150 The defendant submitted that if I was satisfied that the plaintiff had only suffered an acceleration of the underlying arthritic changes in his hips consistent with the evidence of Mr Wilde and Mr Miller, then I should pay regard to what the Full Court said in Zumeris v Testa.[92] The Full Court examined, among other things, an accident which brings on earlier a condition which would have come about in any event. It referred to two classes of cases, with the second of those two classes being relevant to the defendant’s submission. That second class involves a consideration of disablement which has been brought forward in point of time because of the accelerating effects of a tortious act where the disablement is capable of cure or correction by medical measures which might be successful in the amelioration of symptoms due to the acceleration.[93] The plaintiff did not cavil with the correctness of that submission, nor that the additional assessment of the damages for the consequences of the acceleration should be modest.
[92][1972] VR 839
[93]Zumeris (ibid) at 843
151 I accept the overall thrust of the plaintiff’s evidence that he was previously an active man in both his working and non-working life to the extent described by him and confirmed by his wife’s evidence. I accept that he has suffered an injury to his lower back, with pain radiating from his lower back which has left him with constant pain which has not been ameliorated, nor capable of amelioration, by the available conservative treatment which he has undergone, and continues to undergo. I accept that the acceleration has had an impact upon the plaintiff, but in a limited way.
152 I think there is some substance in the submissions made by the defendant that the underlying constitutional arthritic changes in the plaintiff’s hips plays some part in contributing to the plaintiff’s reduction in the overall quality of his life. For example, even though the plaintiff has had a reasonable result from the bilateral hip placement surgery, his mobility is affected to some degree, and that probably plays some role in his capacity to undertake domestic, social and recreational pursuits. It is difficult to quantify the extent to which that has occurred, but notwithstanding the difficulty, I think it needs to be considered when an assessment of the global pain and suffering and loss of enjoyment of life consequences contended for by the plaintiff are evaluated.
Damages
153 I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life at $200,000 which includes a relatively modest sum for the acceleration relevant to his hips of about $15,000.
154 I assess the plaintiff’s damages for economic loss limited to the past from the date of the occurrence of the incident to December 2018. Arbitrarily I have seized upon 1 December 2018 as the endpoint of that calculation. On my calculations, the past mounts to 111 weeks.
155 The plaintiff’s special damages filed on 30 June 2020 estimate the plaintiff’s net earnings for various periods of time based upon the earnings of the comparable employee in calculating past loss, and past loss of superannuation. I will ask the parties to re-calculate the past loss of earnings in accordance with the conclusions I have reached. I will also ask the parties to calculate the Fox v Wood[94] component.
[94](1981) 148 CLR 438
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