Spencer v Oz Watergardens Pty Ltd
[2013] VCC 1268
•3 October 2013
| 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-12-01286
| PAUL LINCOLN SPENCER | Plaintiff |
| v | |
| OZ WATERGARDENS PTY LTD (ACN 005 675 696) | First Defendant |
| MICKAID PTY LTD (ACN 100 375 620) | Second Defendant |
| GALLAGHER BASSETT SERVICES WORKERS COMPENSATION VIC PTY LTD (ACN 100 375 620) | Third Defendant |
| and | |
| CGU WORKERS COMPENSATION (VIC) LIMITED (ACN 005 297 781) | Fourth Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September and 1 October 2013 | |
DATE OF JUDGMENT: | 3 October 2013 | |
CASE MAY BE CITED AS: | Spencer v Oz Watergardens Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1268 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injuries to the cervico-thoracic spine – Chronic Pain Disorder
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Petkovski v Galletti [1994] 1 VR 436; Kocak v Wingfoot Australia Partners Pty Ltd & Ors [2012] VSCA 259 ; Transport Accident Commission v Florrimell [2013] VSCA 247; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment: Leave granted to the plaintiff to bring proceedings against the second defendant for pain and suffering and pecuniary loss damages. Application against the first defendant dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr E Makowski | Williams Winter Pty Ltd |
| For the First and Second Defendants | Ms A Sheehan | Hall & Wilcox |
HIS HONOUR:
1 In these proceedings the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings on account of a serious injury under paragraph (c) of s134AB(37). He seeks leave with respect to a compensable injury suffered on 27 September 2006 against the first defendant, Oz Watergardens Pty Ltd (“D1”), and on 9 April 2008 against the second defendant, Mickaid Pty Ltd (“D2”).
2 The injury relied on is described as a Chronic Pain Disorder flowing from initial physical injuries to the cervico-thoracic spine on those two dates. The plaintiff abandoned his claim under paragraph (a) for the physical injuries and proceeded solely with respect to paragraph (c).
3 Recent authority has set out the manner in which applications somewhat similar to this one have been determined.[1]
[1]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 at paragraphs [30] – [35]
4 The injuries must each satisfy the test of resulting in or materially contributing to consequences that qualify as “severe” in order to succeed against D1 and against D2. The second application is put to some extent on the basis of an aggravation of a vulnerability and it must, itself, qualify as a “serious injury” for the plaintiff to succeed against D2. This calls into play a “before” and “after” analysis.[2] Here, of course, “serious” means the stronger term “severe”.
[2] Petkovski v Galletti [1994] 1 VR 436
5 The principal consequence the plaintiff relies on is that he is totally and permanently incapacitated for all work as a result of the Chronic Pain Disorder.
6 This case has already been to this Court and was not reached. It was adjourned to 30 September 2013 with priority. On 22 April 2010, there was a relevant decision of the Magistrates’ Court. On 26 January 2013, a Medical Panel Opinion was handed down involving the same parties.
7 Both parties have raised the relevance of the recent Court of Appeal decision in Kocak v Wingfoot Australia Partners Pty Ltd & Ors.[3] A leave application to the High Court was heard in August 2013 and a decision has not yet been handed down. The weight of these applications in the County Court list means the parties would not get a fresh date for some twelve months if the case did not now proceed. Accordingly, I accepted the urging of both parties to hear the matter now in spite of the potential relevance of the High Court case with respect to estoppel.[4]
[3][2012] VSCA 259
[4]Transcript (“T”) 12, 28-30, 130
8 I was mindful that the medical material indicates the plaintiff has had suicidal ideation. Counsel for the defendants quite rightly called it a “sad and unusual case”.[5] It then became clear several times during this short trial that he is a visibly unwell man. In all the circumstances, the interests of justice demanded the application not be put off to a third date and judgment delivered expeditiously.
[5]T21, T114
9 The defendants conceded that the plaintiff has suffered a compensable psychiatric injury diagnosed as Chronic Pain Disorder by the Medical Panel on 26 January 2013.[6] The parties are bound by this diagnosis.[7] I was informed by counsel that this opinion was with respect to applications under the Act with respect to employment with both defendants (D1 and D2). The Panel opinion does not assist with the task the Court now has to determine, whether the consequences of that condition resulted from or were materially contributed to by one or other or both employments with D1 and D2.
[6]Defendants’ Court Book (“DCB”) 81-82 and T32
[7]Kocak v Wingfoot Australia Partners Pty Ltd & Ors [2012] VSCA 259 at paragraph 28
10 Counsel agreed that the issues for my determination are whether the compensable psychiatric injury suffered by the plaintiff has resulted in severe consequences as against D1 or D2 or both.[8]
[8]T33
11 I found the plaintiff a troubled man in obvious distress who, both in the witness box and while in the body of the Court, demonstrated anxiety and a good deal of overt agitation.[9] Nevertheless, I found him to be an honest witness who at all times was attempting to give accurate answers. He was generally a reliable historian, although at times compliant to the point of answering questions of the cross-examiner without always fully comprehending them. There was no attack made on the plaintiff’s credit.[10] His affidavit material is very lengthy and I will not repeat it in any great detail as it occupies just under forty pages of the Plaintiff’s Court Book[11] and speaks for itself.
[9]T55, T62, T70, T71-72, T88
[10]T97
[11]Plaintiff’s Court Book (“PCB”) pages 17-53E
12 A large number of the medical reports, notes and other material have little or no relevance to this paragraph (c) application.[12] Some are so dated they do not assist, while others deal only with the physical spinal injuries. No disentangling issue has been raised in this case given the accepted Chronic Pain Disorder, so it is pointless referring to every report.
[12]T107-112
13 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that a serious injury application necessarily involves a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning as explicit. In large part it has been said that matters of value judgment, opinion or impression are involved. However, these comments are really related to consideration of whether consequences are “serious” as opposed to causation matters.[13]
[13] Transport Accident Commission v Florrimell [2013] VSCA 247
14 Referring briefly to some of those reports that do not really assist, the emergence of a psychiatric condition after the second accident is noted by a number of those doctors. The orthopaedic surgeon, Mr R Simm, saw non-organic features by August 2009 including emotional disturbance.[14] Mr M Dooley, another orthopaedic surgeon, commented on a psychological reaction by November 2009.[15] By March 2012, he is describing by name a “Chronic Pain Syndrome” being part of the picture.[16] Dr Gary Davison, physician, had noted the same diagnosis in October 2011.[17]
[14]DCB 21
[15]DCB 26
[16]DCB 29
[17]DCB 72, 73 and 77
15 The Epworth Rehabilitation documents include reference to psychological factors in April 2011.[18]
[18]DCB 182
16 The vocational assessor’s report tendered by the defendant is not helpful. It is too out of date. It also alludes to the deficiency in the medical material forwarded to the author.[19]
[19]DCB 91
17 The determination of whether employment with both defendants, D1 and D2, has resulted in or materially contributed to severe consequences from the Chronic Pain Disorder requires analysis of all the evidence. The doctors of most assistance are the general practitioner who knew the plaintiff best of all and those doctors with specialist expertise in psychiatry.
The Plaintiff’s evidence
18 The plaintiff’s three affidavits comprehensively describe some general health problems, injuries and his background prior to working with D1. He speaks of a cervicothoracic strain on 27 September 2006 (“the first accident”). He then had a minor transport accident on 12 February 2008. This accident caused some short-lived flare-up in the level of his spinal symptoms but nothing more. He then suffered a further aggravating spinal strain on 9 April 2008 when working with D2 (“the second accident”).
19 The plaintiff is now aged fifty-four years and has a good work record, generally in jobs involving a degree of physical labour. He had no history of physical or psychological problems prior to the subject incidents that were of any moment.[20]
[20]PCB 21-23
20 I accept that before the first accident there was no impairment of earning capacity due to any injury or health problems, physical or psychiatric.
21 The plaintiff ceased work around 2 February 2007 with D1 as he was unable to carry out the job he was employed to do because of his physical spinal condition.[21]
[21]PCB 26
22 The plaintiff obtained a short-term casual position at a nursery, before then starting the job with D2 that he gained through a personal contact. He worked there for some fourteen months in a full-time job until the second accident.
23 I find that up to the second accident, his problems, investigations and medical treatment were of a physical nature relating to the insult to his spine. There was no consequence to speak of that could be described as arising from any mental or behavioural disturbance or disorder.[22]
[22]PCB 25-48
24 After the second accident, the plaintiff re-attended his own general practitioner, Dr Cowell, and his treating rheumatologist, Dr Kostos. When he attended Dr Kostos on 5 June 2008, that practitioner thought then that the plaintiff was suffering from a significant non-organic problem and had developed a Chronic Pain Syndrome.[23] This is the first direct comment from a practitioner about the plaintiff having any problems that could be described as relevant to the plaintiff’s paragraph (c) claim.
[23]Dr Kostos at PCB 91
25 Dr Cowell knows him well. His notes show he has seen the plaintiff on many occasions since 1999.[24] He describes physical spinal problems with investigations and a treatment regime, including referrals to other treaters, that all point to organic spinal injury following the first accident. He notes, by the time he reports in July 2008, that a chronicity of back pain was developing.[25] Chronicity was also commented on in a report to the insurer in February 2009.[26] Further, in August 2009, there were comments that still focussed on essentially physical problems.[27]
[24]DCB 102-172
[25]PCB 70
[26]PCB 72
[27]PCB 74
26 This family doctor then comments on 30 August 2011 in quite different terms. These include reference to psychological function as well as physical. By now, Dr Cowell states:
“His prognosis for future work in my opinion is poor, limited by the physical problems and affected by psychological issues of depression, poor motivation and lack of confidence. He is, in my opinion, unlikely to return to work in the foreseeable future.”[28]
[28]PCB 86
27 I accept that by August 2011, there was a real psychiatric condition certainly resulting from workplace physical injury to the plaintiff’s spine and its effects from at least the employment with D2. He was by now unemployable, Dr Cowell thought.
28 The up-to-date report of Dr Cowell in August 2013 speaks of the extreme current situation involving suicidal ideation, chronic pain and disability syndrome. He sets out a number of issues in terms of lifestyle, home life, work and generally just coping with daily activities that are due to the Chronic Pain Syndrome.[29]
[29]PCB 86A
29 Dr Cowell is best placed of all to judge his patient over all these years. I accept his evidence that after the second injury, the plaintiff developed a work-related psychiatric injury, the consequences of which can be fairly described as “severe”. Put simply, the plaintiff can no longer do prolonged physical work without needing to rest and taking several days to recover. This amounts effectively to not being able to work. The psychological problems have not improved significantly despite rehabilitation which involved the psychological issues being addressed.[30] I accept these comments from his local practitioner.
[30]PCB 86A
First accident
30 Any analysis of the first accident before the second occurred indicates that no reference is made to any non-organic symptoms by any doctor. There is not even a suggestion of a psychiatric condition.
31 The uncontested facts are the plaintiff obtained a brief casual job and he worked full time for over a year with D2. Apart from a week off following the transport accident flare-up, he does not miss any relevant time off work.[31]
[31]T81
32 The defendant essentially relies on the treaters and they are worth briefly commenting on further.[32] His general practitioner states regarding the first accident:
“I feel that at time it was made (which was before the pain was aggravated on 9/5/2008), the determination to cease weekly payments and continue to pay medical and physiotherapy fees was reasonable, as Mr Spencer had returned to full-time duties at this stage and it was not to be anticipated that he would have further problems.”[33]
[32]T114
[33]PCB 70
33 In his latest report, he thought:
“… the first accident initiated the condition which although it improved and the patient was able to return to work of his own volition, had not resolved by the time of the second accident, when it was exacerbated and progressed to a Chronic Pain Syndrome now complicated by psychological factors.”[34]
[34]PCB 86A
34 A little further he states that after the second accident:
“… the patient’s symptoms and disability were sufficient that he could not return to work and developed into a chronic pain and disability syndrome which was complicated by development of the psychological issues of anxiety and depression.”[35]
[35]PCB 86A
35 A contrast exists when one compares the heightened level and breadth of all sorts of complaints in the report of February 2009[36] with the earlier attendances on Dr Cowell.[37] The treating neurologist, Dr A Gilligan, is looking after musculoskeletal spinal injuries in 2007.[38] When the plaintiff returned in September 2008, there was then a discussion about a chronic pain service. Mood problems are also mentioned, together with rapid weight gain.[39]
[36]PCB 73
[37]PCB 68 and 71
[38]PCB 77, 79 and 80
[39]PCB 67
36 The general treatment regime and medications in the clinical notes[40] before the second accident compared with afterwards shows a further contrast,[41] leading to the conclusion that consequences are very different following the second accident.[42] He now requires several pain management courses that include psychological therapy.[43] The weight gain of itself is informative of a real difference, with comments directed to this change and the massive increase.[44]
[40]DCB 102-172
[41]T7, L20; T10, L18; T11, L1; T11, L12; T14, L16; T14, L17, L20-21, 30; T15, L29
[42]PCB 31, 53B and 53A
[43]PCB 33
[44]PCB 31, 53C, 67 and 185, DCB 72 and T152-153
37 I find the plaintiff was able to function both in full-time employment and outside his work in a fairly normal way while accommodating treatment for the physical spinal condition before the second accident. Up until the second insult, I find there was really no sign of any psychiatric condition or paragraph (c) disturbance or disorder. There was no such diagnosis. If there was then, it could not be said that it was productive of any severe consequences.
38 The plaintiff’s argument that a vulnerability arising from the first accident provided a causative link to later consequences raises appellate commentary on the relevance of vulnerability in certain circumstances where there are two accidents.[45] While there are several brief comments from doctors[46] on the topic of the vulnerability link to subsequent consequences, I do not find it persuasive. The doctors’ opinions, without hearing oral evidence, are not developed sufficiently to be clear. To some extent, the opinions are equivocal when linking an earlier organic spinal problem with a vulnerability to further spinal aggravation to a later developing paragraph (c) psychiatric injury.
[45]Altona Bus Lines vLococo [2002] VSCA 159, paragraphs [11] and [12]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (supra) at paragraph [43]
[46]Mr Brownbill at PCB 111A and Dr Cowell at PCB 86A
Second accident
39 There is a clear and important temporal link between this accident on 14 April 2008 with the plaintiff going off work immediately and the emergence of a Chronic Pain Disorder first noticed by a treater several months later.[47] I find there is a marked difference in the extent of the symptoms and complaints after the second accident as well as a difference in the type and extent of treatment. Medication changes and a multi-disciplinary Epworth Rehabilitation Program is undertaken firstly in 2010, and again in 2011 for several months. These include psychological interventions and individual sessions, as well as a group-based approach.[48]
[47]Dr Kostos at PCB 91
[48]PCB 147 and 151
40 I find that the Medical Panel diagnosis has certainly resulted from or been materially contributed to by the second accident.
41 The major consequence for the plaintiff is that he has lost permanently his earning capacity for any suitable employment. His family doctor reaches this gloomy opinion by 2011.[49] By August 2013, it is re-stated in more detail:
“I believe all these issues (sic) [including inability to work] are due to his chronic pain syndrome, psychological issues arising from it … .”[50]
[49]PCB 86
[50]PCB 86A
42 Specialist psychiatrists are qualified to comment in particular on a paragraph (c) injury and its consequences. The Court must judge the plaintiff now, and the defendants engaged Dr H Das to see the plaintiff in 2010 and again in September 2011. This does not assist me to evaluate the plaintiff’s condition now some two years later. No explanation was given as to why there was no later psychiatric examination.[51] In any event, he has not diagnosed the Chronic Pain Disorder the binding Medical Panel’s opinion establishes.
[51]T112-113
43 His opinion is thus of very limited, if any relevance. He diagnosed there was a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and thought the plaintiff could work in his old job from the psychiatric viewpoint. The overall evidence indicates the plaintiff’s condition has worsened since Dr Das saw him last in September 2011. Accepting, as I do the plaintiff’s evidence in his affidavits of November 2011 and August 2013, it is clear that Dr Das does not have a full history of the plaintiff’s complaints, problems and treatment. The last enclosure he has is from Dr Davison, for the defendant, dated 18 October 2011.[52] As well as the plaintiff’s detailed affidavits, the parties have tendered at least eight medical reports that postdate 18 October 2011, as well as a number of other documents. [53] Dr Das has none of these.
[52]DCB 54
[53]See exhibit A, 1 and 2 indexes
44 Dr N Strauss, consultant and occupational psychiatrist, provides four reports[54] over four years. He commenced in 2009 with a guarded prognosis and found no evidence of deliberate exaggeration by this “rather inadequate individual”.[55] By 2011, he thought the condition was stable and that the plaintiff was “totally and permanently incapacitated” and unfortunately the pain management did not assist greatly. He also said in 2011:
“He is unable to work in my opinion and this is a permanent situation due to his injuries”.
[54]PCB 137
[55]PCB 126
45 Further, he said:
“He will not work again and I would not recommend rehabilitation.”[56]
[56]PCB 126
46 In 2012, he repeated the same pessimistic views about a man with permanent psychiatric problems who will never work again due to his chronic psychiatric condition.[57]
[57]PCB 143-4
47 Then, 2013 saw further enclosures sent to him that did not add anything to the clear opinions already described.[58] His specialist reports are comprehensive and the reasoning clear.
[58]PCB 144A
48 I accept Dr Strauss’s up-to-date evidence that the plaintiff has suffered a total and permanent loss of earning capacity due to the subject psychiatric injury. That is a severe consequence that results from or was contributed to by the second accident.
49 On all the evidence I do not accept as realistic the suggestion that the plaintiff has any retraining or other employment options mentioned by resolutions RTK in its report.
50 The defendants’ argument that a lack of treatment for the psychiatric condition should lead to a conclusion that it is not “severe” is not convincing. Evidence, which I accept, points to the real problems with the effects of anti-depressant medication and why he ceased it. His wife threatened him with a divorce; such was its effects on his behaviour.[59] Further, the psychology treatment did not assist.[60] Also, there is no clear evidence dealing with the question of whether treatment would have the plaintiff in any better psychiatric condition now anyway. By 2011 and 2012, the views of Dr Strauss do not include any optimism that treatment would alter anything.[61] Even Dr Das, with his different psychiatric diagnosis, which I do not accept, saw no need for any treatment for the psychiatric co-morbidity.[62]
[59]T56
[60]T61, PCB 86A
[61]PCB 126 and 144
[62]DCB 48
51 The plaintiff having failed to prove he suffered a “serious” injury under paragraph (c) as a result of the first accident, the application against D1 fails and is dismissed.
52 For the reasons mentioned, the plaintiff has satisfied the Court of his loss of earning capacity. I give leave to bring proceedings against D2 for pecuniary loss damages. It follows, in accordance with accepted law, that I give leave also to bring proceedings for pain and suffering damages against D2.[63]
[63]T133
53 I will hear the parties as to costs.
- - -
0
4
0