Stanilovic v JV Marine World
[2016] VCC 857
•24 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-02786
| ALAN STANILOVIC | Plaintiff |
| v | |
| JV MARINE WORLD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2016 | |
DATE OF JUDGMENT: | 24 June 2016 | |
CASE MAY BE CITED AS: | Stanilovic v JV Marine World | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 857 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – whether pain and suffering consequences are “serious” – whether the loss of earning capacity consequences are “serious” – whether the plaintiff is fit for suitable alternative employment – whether the proposed types of alternative employment are “suitable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff has leave to bring a proceeding at common law to recover damages for both the pain and suffering consequences and loss of earning capacity consequences resulting from the injury he suffered in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr A Saunders | Slater & Gordon Ltd |
| For the Defendant | Mr P Scanlon QC with Mr L Allan | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-four-year-old married man who was born in December 1971. He suffered a compensable lower back injury on 14 November 2007.
2 The plaintiff’s claim is that he has suffered a serious permanent impairment or loss of the function of his lower back. He claims that the impairment consequences for both pain and suffering and loss of earning capacity are “serious”.
3 Mr J Mighell QC appeared with Mr Saunders of counsel for the plaintiff. Mr P Scanlon QC appeared with Mr L Allan for the defendant.
The issues
4 The defendant did not seriously challenge that the pain and suffering consequences of the impairment of the function of the plaintiff’s lower back are “serious”.
5 The real challenge was not that the plaintiff is unfit for his pre-injury work as a marine mechanic, but whether he has a retained residual capacity for suitable alternative employment, referred to in a report of Nabenet dated 31 May 2016.[1] The report was commented on by Associate Professor White, neurologist, in two reports dated 12 May 2015,[2] and 22 June 2016.[3]
[1]Defendant’s Court Book (“DCB”) 19-25
[2]DCB 1-5
[3]DCB 5a-5b
The Plaintiff’s injury
6 The plaintiff suffered the injury to his lower back on 14 November 2007 in the course of his employment with the defendant, while he was attempting to replace an exhaust manifold and riser.
7 None of the medical evidence tendered by the plaintiff and the defendant was controversial in any material respects, except for the opinion of Associate Professor White on the limited issue of the plaintiff’s capacity to return to suitable alternative employment.
8 The plaintiff initially saw Dr Tseng, general practitioner, who referred him to have a CT scan and then an MRI scan. The MRI scan demonstrated a posterior central disc protrusion at L5-S1 indenting the theca and contacting the S1 nerve root.[4]
[4]PCB 30
9 The plaintiff was referred to Associate Professor Brazenor, neurosurgeon, who he first saw on 25 February 2008 and last saw on 18 March 2009. Associate Professor Brazenor obtained a history from the plaintiff that he first suffered an injury to his lower back in 1999, which Associate Professor Brazenor considered to be a disc injury at L5-S1. However, counsel for the defendant submitted that the plaintiff’s earlier lower back problem was irrelevant to my consideration of the plaintiff’s application for serious injury.
10 Ultimately, Associate Professor Brazenor diagnosed the plaintiff as having suffered a disc injury at L5-S1. Accompanying his report dated 20 October 2013[5] are two pages comprising a handwritten diagram of the injury, in which he noted that the gravity of the disc injury deserved to be described as a “demolished disc” at L5-S1. The handwritten notes recommended the plaintiff avoid bending at the waist, twisting, back exercises, treatment in the form of physiotherapy, chiropractic and yoga, as well as sitting on a sofa, easy chair or a recliner. He also described surgery as an option, what it would involve and its rate of success.[6]
[5]PCB 59-61
[6]PCB 62-63
11 Associate Professor Brazenor considered that the plaintiff would “never again” engage in any work involving repeated bending at the waist or lifting objects to or from a level significantly below his waist. He considered that he could repair outboard motors on benches at or above waist height.[7]
[7]PCB 61 and 64
12 There was a subsequent hiatus in the plaintiff’s treatment. He was terminated by the defendant on 13 March 2009. He commenced business in his own right as a marine mechanic from April 2009 until late 2013. I accept his evidence that he was never pain free from the time when he first suffered the lower back injury.
13 The plaintiff returned to Dr Tseng in early 2013. Dt Tseng referred the plaintiff to Mr Timms, neurosurgeon, who the plaintiff first saw on 23 January 2013. Dr Tseng referred the plaintiff to have a further MRI scan, as did Mr Timms. There was no issue that what is demonstrated on the subsequent MRI scans is the same disc injury that the plaintiff initially suffered on 14 November 2007. That appears to have been accepted by all of the medical practitioners who have examined the plaintiff, including Dr Kam, consultant radiologist.[8]
[8]PCB 118-121
14 Mr Timms reviewed the plaintiff on a number of occasions, with the last review being on 7 March 2016. He diagnosed that the plaintiff had suffered an L5-S1 disc injury with a mild disc bulge causing neural compression. His prognosis was that the plaintiff was likely to have chronic back pain and sciatica. He was in no doubt that the plaintiff was incapacitated for work as a marine mechanic. He did not comment on the plaintiff’s capacity to engage in suitable alternative employment.[9]
[9]PCB 47-48
15 The plaintiff was subsequently examined by a number of medical practitioners, none of whom have given an opinion which is at significant variance to the opinions of Associate Professor Brazenor and Mr Timms. For the sake of completeness only, the following medical examiners were of much the same opinion: Mr Davie, orthopaedic surgeon;[10] Mr Carey, orthopaedic surgeon;[11] Mr Brownbill, neurosurgeon;[12] Associate Professor White;[13] Dr Slesenger, occupational physician;[14] Dr Baker, occupational physician,[15] and Dr Tseng.[16]
[10]DCB 16-17
[11]DCB 11-12
[12]PCB 82
[13]DCB 3-4
[14]PCB 94-95
[15]PCB 101-103
[16]PCB 39
The Plaintiff’s residual work capacity
16 Counsel for the defendant submitted that I should accept the opinion of Associate Professor White that the plaintiff has a retained a residual capacity for full-time work as an insurance consultant or optical sales assistant or appointment setter.[17]
[17]DCB 5A
17 The defendant engaged Nabenet to undertake a labour market analysis. The authors of the report are Ms Tran, psychologist, and Ms Jackman, occupational therapist. In the body of the report dated 31 May 2016, the authors stated that their focus was to provide suitable vocations for the plaintiff. They were provided with the plaintiff’s first affidavit reports of Dr Tseng up to 19 June 2013; the report of Associate Professor Brazenor dated 20 October 2013; reports of Mr Timms up to 23 January 2013, and a report of Mr Evans, physiotherapist, dated 12 June 2013. They were not provided with the medico-legal report of Mr Timms dated 1 June 2016, nor reports of any of the other medical examiners. In particular, they were not provided with the reports of Dr Slesenger and Dr Baker, who are the only occupational physicians who are engaged to examine the plaintiff.[18]
[18]I note that some of the reports postdate the report by the authors
18 In any event, the authors considered that the plaintiff was fit for work as a marine mechanic. This was also the view of Associate Professor White; however, counsel for the defendant conceded that the plaintiff was not fit for that work, and I think that was a proper concession for reasons I will return to shortly.
19 The authors referred to the plaintiff’s transferable skills in the body of their report. I do not propose to set these out here, but I have no doubt that he has some transferable skills. He completed an apprenticeship as an optical technician and then worked in that occupation as an employee for five years, and then on his own account for two years. He has not worked in that field for something over twenty-five years. He then worked as a boat builder for two years. He then did an apprenticeship as a marine mechanic and worked in that occupation as an employee of the defendant, and then in his own right until 2013. Working in those occupations must have exposed the plaintiff to what is involved in running a business.
20 In addition, the plaintiff enrolled in a course of training as a marine surveyor with the Australian Institute of Marine Surveyors. This course is partly undertaken online and partly in a practical environment. Under subpoena, the Institute provided a body of documents on which the plaintiff was cross-examined. The documents include an application and samples of the plaintiff’s marine surveying. The plaintiff described them as “dummy” marine surveys, because they were part of a module which he undertook which involved the examination of small boats and attention to the detail required of a marine survey.
21 The plaintiff has not completed that course. To complete the course would involve undertaking marine surveys of ships, and not just boats. He described having to get into confined spaces within ships which, after hearing his evidence on that score, I have no doubt that he could not enter a small space which would involve getting down onto his hands and knees and probably crawling and otherwise getting into positions and adopting postures which his lower back cannot tolerate.
22 The plaintiff also undertook a course in general insurance online. There was little evidence about what that course involved, but the world of general insurance is no mystery to me, nor I suspect to any other judge of this Court. It is likely to be an occupation which involves understanding the insurance products to be sold; training in sales and administration, and no doubt conversance with computer systems. No doubt it would involve sitting for extensive periods of time.
23 Counsel for the defendant cross-examined the plaintiff about the online courses he has undertaken; his work history and his transferable skills, and why he could not undertake work as an insurance consultant, an optical sales assistant and an appointment setter. Furthermore, counsel cross-examined the plaintiff that he has been out of work for in excess of two years, and whether the plaintiff had formed the opinion that he is, in effect, unable to perform any work. In answer, the plaintiff said that in his own opinion, he is not fit for any work.
24 In the course of counsel for the defendant’s address, I asked whether the defendant’s position would be any different if I were to find that the plaintiff needs to lie down for in excess of one hour each day to obtain relief from the pain, and needs to consume sometimes as many as 6 to 7 Endone tablets per day for pain relief which makes him “groggy”, and which have such an effect upon him that his medical advice is that he should not drive a car if he is taking that medication. Counsel responded by submitting that if I were to find that the plaintiff’s capacity to work will suffer the interference caused by each of those factors, then it would be open to me to find that none of the forms of alleged suitable alternative employment would be suitable.
25 Having considered the plaintiff’s evidence carefully; his affidavits; all of the medical reports; the vocational material, and the helpful addresses of counsel, the conclusion I have reached is that none of the forms of alleged suitable alternative employment are suitable. My reasons for reaching that conclusion are as follows.
26 Firstly, the plaintiff has suffered a major injury to his lower back. I think that conclusion resonates loudly in all of the medical opinions.
27 Secondly, there is almost the universal view of the medical examiners that the plaintiff is not fit for his pre-injury work as a marine mechanic. Additionally, he is unfit for all alternative employment which contravenes the restrictions which the medical examiners considered to be appropriate to place upon the plaintiff given the major injury he suffered to his lower back.
28 Thirdly, the plaintiff struck me as being an entirely honest, straightforward and reliable witness. I am fortified in reaching that conclusion because, after suffering that major injury, the plaintiff attempted to return to work, but his injury prevented him from doing so. He attempted to undertake self-employment to accommodate the restrictions which his injury brought to him, but that endeavour failed. He attempted to educate himself through online courses, but there seems to me to be a real futility in him doing so. These are steps taken by someone who is a stoic and who has attempted to press ahead in the face of real adversity.
29 Fourthly, I accept the plaintiff’s evidence that he has constant pain which has rendered him disabled to a very significant degree in almost all aspects of his social, domestic and recreational existence, as it was before he was injured.
30 Fifthly, his reliance on such a heavy load of strong medication is demonstrative of his difficulty in controlling the pain. The fact that he has been prescribed Endone of itself speaks of the degree of pain he has if it needs that sort of control. He takes so many that he runs out before he is entitled to a fresh prescription. He is then reliant on Tramadol which is not as effective as Endone.
31 Sixthly, the fact that he needs to lie down each day for significant periods of time demonstrates that he would be so unreliable to an employer that he could not possibly obtain and retain employment in any of the jobs which are said to be suitable alternative forms of employment. That difficulty is compounded by the impact upon his mental state by the use of Endone.
Conclusion
32 A conclusion that the plaintiff has satisfied the statutory test relevant to a claim for loss of earning capacity does not require a separate assessment of whether the pain and suffering consequences also meet the statutory test.[19]
[19]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
33 I grant the plaintiff leave to bring a proceeding at common law to recover damages for both the pain and suffering consequences and loss of earning capacity consequences resulting from the injury he suffered in the course of his employment with the defendant.
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