Stephenson v Bidvest (Victoria) Pty Ltd
[2009] VCC 297
•3 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-03585
| ALAN STEPHENSON | Plaintiff |
| v | |
| BIDVEST (VICTORIA) PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 March 2009 |
| DATE OF JUDGMENT: | 3 April 2009 |
| CASE MAY BE CITED AS: | Stephenson v Bidvest (Victoria) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0297 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the pain and suffering consequences were least very considerable – credit – need to consider the question of credit in the overall context of the evidence – Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104 – section 134AB (38)(c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendant | Mr P Elliott QC with | Lander & Rogers |
| Ms C Boyle | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 29 August 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant on 3 February 2006.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr G Chancellor of Counsel appeared for the plaintiff, and Mr P Elliott QC appeared with Ms C Boyle of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back. The only issue which I have been asked to consider is whether the impairment of the function of the plaintiff's lower back is at least very considerable when the relevant comparison is made as described below in my discussion of the statutory scheme. The plaintiff's claim for loss of earning capacity was abandoned during the trial.
5 The following evidence was adduced during the hearing:
• The plaintiff tendered his Court Book ("PCB") pages and11-48: Exhibit A • The defendant tendered its Court Book ("DCB") pages 1-3, 8-74 and 84- 88: Exhibit 1. 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the present case.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born he 1 April 68. He is now forty years of age. He lives in a domestic partnership with Ms Katrina Wenzler. They have two children who are eight and six years of age.
10 The plaintiff completed his VCE at Wodonga High School and subsequently obtained a Diploma of Education at the Bendigo CAE.
11 The plaintiff's past employment has largely been in the transport and logistics industry. He has worked as a truck driver, delivery driver and as a storeman.
12 The plaintiff commenced employment with the defendant as a delivery driver in 2004. His work involved delivering dry and frozen goods to various Kentucky Fried Chicken ("KFC") outlets across Melbourne.[5]
[5] PCB 11-12
The Incident Causing Injury
13 On 13 February 2006, the plaintiff made a delivery of goods to a KFC store located at Crown Casino. In the course of making that delivery, he slipped and fell on a wet and dirty floor in a cool room while attempting to place a 17 kilogram box onto a stack of boxes. He fell, landing on his back with the box coming down on top of him.
The Plaintiff's Medical Treatment
14 The plaintiff felt immediate pain in his lower back. He reported the incident to Mr Peter Neofytou, who was the restaurant manager of the KFC store. Mr Neofytou called an ambulance for the plaintiff and assisted him to a loading dock where they waited for the ambulance.[6]
[6] PCB 12-13 and DCB 84-85
15 The plaintiff was taken to the Alfred Hospital where an x-ray was taken. He was given pain relief and was advised to consult his usual medical practitioner.
16 The plaintiff next saw Dr Inness, general practitioner, who initially referred him to have physiotherapy and hydrotherapy and prescribed medication. She subsequently referred the plaintiff to have a CT scan on 20 February 2006,[7] and her colleague referred the plaintiff to have an MRI scan on 12 April 2006.[8]
[7] PCB 48
[8] PCB 47
17 According to the radiologist who took the CT scan, it showed a mild diffuse disc bulge at L5-S1. According to the radiologist who took the MRI scan, it showed that the two lower lumbar discs were desiccated and were bulging, extending into the exit foramina and there was degenerative gas within the L5- S1 disc, together with some endplate degenerative change.
18 Dr Inness diagnosed a significant L5-S1 disc injury with associated regional pain. She prescribed the plaintiff Mobic for pain relief and advised him to self- manage the injury with regular exercise and active pain management strategies.
19 Dr Inness referred the plaintiff to Mr Pullar, neurosurgeon, who saw the plaintiff on one occasion in June 2006. Mr Pullar looked at the MRI scan. He did not give a specific diagnosis, save to say that he described the plaintiff's pain as being regional and referred from the lumbar spine. He suggested that the plaintiff undergo pain management treatment.[9]
[9] PCB 33
20 Dr Inness referred the plaintiff to Dr Palit, rehabilitation physician, who saw the plaintiff on one occasion in July 2006. He was of the opinion that the plaintiff was suffering from mechanical lower back pain. He did not think that the plaintiff was suffering from any nerve irritability emanating from his lower back. He prescribed him Prednisolone.
21 The plaintiff was then referred to the Epworth Rehabilitation Centre in Dandenong where he underwent a functional restoration programme between 30 October 2006 and 11 January 2007. The plaintiff admitted to improvement as a consequence of the program, and indeed, that was the opinion of the authors of the discharge report relevant to his treatment.[10]
[10] PCB 35-36
22 The plaintiff attended for what was described as a post-discharge review on 23 April 2007. The authors of the review report noted that the plaintiff admitted to positive gains made as a result of the programme and that he had achieved postural tolerances in relation to sitting, standing, walking and driving and was able to complete domestic daily living activities, such as cleaning, doing laundry and things of that kind.[11]
[11] PCB 38
23 Dr Williams, a colleague of Dr Inness, referred the plaintiff to Dr Lovell, physician, who saw the plaintiff on one occasion on 26 Newbery 2007. Dr Lovell recommended a left sacroiliac joint injection, and depending on the result, medial branch blocks to exclude the possibility of facet joint pain in the lower facet joints. The insurer rejected the application, based upon an opinion that it sought from Mr Kudelka, orthopaedic surgeon.[12]
[12] PCB 29-32
24 The plaintiff said that his treatment now involves home-based exercises which he undertakes twice a day and the use of medication which Dr Inness prescribes him.
The Medical Opinions
25 Apart from the medical practitioners whose opinions I have already dealt with above, there appears to be general agreement among the other medical practitioners who have examined the plaintiff on the identity of the plaintiff's injury and its consequences to him.
26 Dr Williams was of the opinion that the plaintiff was suffering chronic lower back pain with radiation of pain into his left buttock and the back of his left thigh to his knee which he described as sciatic pain.[13]
[13] PCB 38a
27 Mr O'Loughlin, orthopaedic surgeon, examined the plaintiff on 9 December 2008. He was of the opinion that the plaintiff suffered damage to his L4-5/L5- S1 discs which he considered were probably degenerate prior to the plaintiff suffering injury.[14] He considered that the pain experienced by the plaintiff was essentially discogenic, with some evidence of nerve root irritation, but with no evidence of radiculopathy.
[14] PCB 42 and 46
28 Mr Kudelka, orthopaedic surgeon, examined the plaintiff for the defendant on 12 April 2007[15] and 29 November 2007.[16] On both occasions he was of the opinion that the plaintiff was suffering back pain and left-sided sciatica due to injury to the two lower lumbar discs, that is, L4-5 and L5-S1. His reference to sciatica is consistent with nerve root compression.
[15] DCB 13-15
[16] DCB 16-17
29 Mr Moran, orthopaedic surgeon, examined the plaintiff for the defendant on 13 December 2007.[17] He was of the opinion that the plaintiff had aggravated L4- 5 and L5-S1 disc degeneration. His opinion is not overly helpful because it is clear that he examined the plaintiff for the purpose of making an assessment of the plaintiff’s permanent impairment under the AMA Guides.
[17] DCB 19-22
30 Dr Wyatt, occupational physician, examined the plaintiff for the defendant on 2 January 2008.[18] She did not offer an opinion of the specific identity of the plaintiff's injury, preferring to describe it as ongoing lower back pain with referred pain into the legs, and then described the degree of the problem as a moderate continuing lower back problem.
[18] DCB 23-26
31 The MRI scan demonstrates discal damage at L4-5 and L5-S1. Each of the medical practitioners whose opinions I have just reviewed had the MRI scan report available for their inspection.[19] It appears to me that it was the presence of the discal damage to those discs, together with their clinical examinations which led each to conclude that the plaintiff had suffered damage to those discs attributable to the incident.
[19] The way in which each medical practitioner has referred to the MRI scan has left me with the impression that each had the actual scan, but it may be that they only had the report of the radiologist.
32 I prefer the opinions of Mr O'Loughlin and Mr Kudelka, that the plaintiff suffered actual discal damage at those levels, rather than the opinion of Mr Moran, whose attention was directed to assessing the plaintiff on an entirely different basis to that relevant to an application under section 134AB, and in the case of Dr Wyatt, the diagnosis is general, but at the same time not inconsistent with the opinions of Mr O'Loughlin, Mr Kudelka and also Mr Moran.
33 The significant difference between Mr O'Loughlin and Mr Kudelka is that Mr O'Loughlin did not consider that there was any radiculopathy, that is, nerve root compression resulting in sciatica, whereas Mr Kudelka did.
34 Whether the pain experienced by the plaintiff in his legs is derived from nerve root compression or is referred pain probably is neither here nor there when it comes to determining the consequences to the plaintiff of suffering injuries to those discs because he has undoubtedly suffered pain in his lower back and pain in both legs, particularly left leg pain.
35 Overall the preponderance of the medical evidence is that the plaintiff is probably unfit for his pre-injury employment, but is fit for alternative suitable employment, and indeed, that was at the heart of the concession made by the plaintiff which led to his abandonment of his claim for loss of earning capacity.
The Attack on the Plaintiff's Credit
36 Mr Elliott cross-examined the plaintiff about his driving record. The plaintiff eventually admitted that on 19 November 2005, he was found guilty of refusing to accompany a police officer to a station for a breath test and, among other things, had his licence cancelled for four years.[20]
[20] DCB 87
37 The plaintiff admitted that he had been previously convicted of driving with a blood alcohol content which exceeded the legal limit. He was convicted, fined and disqualified from obtaining a driving licence for a period of four years effective from 2 February 2006.
38 Mr Elliott cross-examined the plaintiff about not disclosing the disqualification in either of his affidavits nor had he disclosed that fact to Mr O'Loughlin;[21] Mr Kudelka;[22] Dr Wyatt[23] or Ms Palmer.[24] The plaintiff admitted essentially that he had not disclosed the disqualification in his affidavits or to the medical practitioners I have just referred to.
[21] PCB 40
[22] DCB 14 and 17
[23] DCB 26
[24] DCB 40-50
39 The plaintiff said that he did not make reference to the disqualification because he did not think it was relevant.[25] I took him to mean that the disqualification was irrelevant because, in his view, he was unfit to drive a commercial vehicle, such as a truck.[26]
[25] Transcript 8
[26] Transcript 4-5 and 21
40 It is obvious that the plaintiff lacked candour in not disclosing his disqualification in either of his affidavits. I do not accept his explanation that the reason for the non-disclosure was a lack of relevance. His inability to drive due to the disqualification is highly relevant to whether he could obtain and hold down a job which would involve him getting to and from that job by public transport in the absence of being able to drive lawfully.
41 I do not accept the fact that the plaintiff did not admit to the disqualification to the medical practitioners, as referred to in paragraph 38 above, is as damning as Mr Elliott submitted because he was asked whether he could drive a car, that is, physically engage in all of the aspects of being able to drive. He was not asked if he had a licence and was lawfully able to drive, which is another matter altogether.
42 The lack of candour on the part of the plaintiff, however, does not go as far as Mr Elliott submitted it should, that is, that I should not accept his evidence of the consequences of the injury. In Cakir v Arnott's Biscuits Pty Ltd;[27] Allsmanti Pty Ltd v Ernikiolis;[28] and Forder v Hutchinson,[29] the Court of Appeal has said on a number of occasions that a trial judge must consider all the evidence when determining the ultimate issue.
[27] [2007] VSCA 104
[28] [2007] VSCA 17
[29] [2005] VSCA 281
43 I do not accept that the plaintiff's lack of candour means that I should not accept the other evidence which supports the conclusion that he has suffered an impairment of function of his lower back which is at least very considerable. To reach such conclusion based upon that level of lack of candour on an isolated issue of his lawful capacity to drive would be contrary to the plaintiff’s evidence that an incident occurred which caused him injury to his lower back, and that of medical practitioners whose evidence I have reviewed above.
Serious injury
44 Apart from the issue of the plaintiff's credit which I have dealt with, the only other issue which arises for my consideration is whether the consequences to the plaintiff are at least very considerable when the relevant comparison is made as I have referred to it in my discussion of the statutory scheme.
45 In the plaintiff's first affidavit sworn 22 April 2008,[30] the plaintiff described aching in his lower back towards the left side which when aggravated becomes sharp and shoots down his left leg. The pain is worse in cold weather. He is restricted in his capacity to move his back, finding it difficult to bend and twist. He is unable to remain in one posture for a prolonged period of time, estimating that he can sit for 40 minutes and stand for no more than an hour. He finds walking on uneven ground, crouching, squatting or kneeling difficult and he finds it difficult to lift and carry objects of more than 8 to 10 kilograms.
[30] PCB 11-18
46 He also finds that after a shower his lower back loosens up, but becomes progressively worse over the course of the day with activity and by the end of the day, and he is in significant pain, requiring rest in order to alleviate the pain. The pain interferes with his sleep. His partner, Katrina, has had to take over a lot of the activities around the home of a domestic nature. The plaintiff said that he is able to do some domestic tasks, such as vacuuming, and has attempted to mow the lawns, but the impression I obtained from his evidence was that he is able to do very little.[31]
[31] Transcript 18
47 The plaintiff’s social life has also been affected, as has his capacity to engage in playful activities with his children and to return to playing cricket and volleyball.[32]
[32] Transcript 20-22
48 In his second affidavit sworn 18 March 2009, the plaintiff said that his physical condition has not changed and that he continues to experience the pain and difficulty described in his first affidavit.[33]
[33] PCB 17-18
49 Ms Katrina Wenzler, the plaintiff's domestic partner, swore an affidavit on 3 March 2009[34] in which she described her observations of the plaintiff before he was injured and the extent to which she is now affected by the injury to his lower back.
[34] PCB 19-23
50 Ms Wenzler now works with Symbion Health as a credit clerk full-time. The plaintiff now stays at home and looks after their children. It is an arrangement which both the plaintiff and Ms Wenzler arrived at as a consequence of the plaintiff's inability to work.
51 The plaintiff is a young man. He is forty years of age. Ms Wenzler is thirty- three years of age. Their children are very young. They are eight and six years of age. The plaintiff now has a two-level disc injury which has produced pain in his lower back and pain which radiates into both his legs, but affects his left leg more than his right leg. The picture painted by the plaintiff in both his affidavits and in his evidence is one of dramatic consequences to him in nearly every aspect of his life. He is no longer able to move freely or engage in domestic, social and recreational activities which a young man of forty years of age should still be able to engage in to the fullest extent.
52 Although the plaintiff has worked as a forklift driver and probably could pursue that employment,[35] it is obvious to me that he would need to do so with restrictions relevant to his lower back and referred to by the medical practitioners, as referred to in paragraph 38 above.
[35] Transcript 2-3
53 I accept the plaintiff’s evidence as I have summarised it above and I have no hesitation in concluding that the plaintiff has suffered a major injury to his lower back which has impaired the function of his lower back permanently and to the extent that he now has consequences which I consider deserve the description “at the least very considerable” after making the relevant comparison which I have referred to in my discussion of the statutory scheme.
Conclusion
54 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant on 3 February 2006.
55 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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