Stijepic v One Force Group Aust. Pty Ltd and VWA
[2009] VCC 303
•24 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01743
| MARO STIJEPIC | Plaintiff |
| v | |
| ONE FORCE GROUP AUST. PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MORROW |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 March 2009 |
| DATE OF JUDGMENT: | 24 March 2009 |
| CASE MAY BE CITED AS: | Stijepic v One Force Group Aust. Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0303 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 –
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring | Ryan Carlisle Thomas |
| For the Defendants | Mr R Middleton SC and | Lander & Rogers |
| Ms B Knoester | ||
| HIS HONOUR: |
1 This is an application for leave to bring a proceeding for the recovery of damages in respect of injury pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). It is brought by Originating Motion dated the 1st May 2008.
2 In support of the Application, there were affidavits of Maro Stijepic, the plaintiff, sworn the 18th day of December 2007 and the 25th day of February 2008, and of Karen Stijepic, his mother, sworn on the 26th February 2008, and medical reports and other documents as listed in the Index to the Plaintiff’s Court Book (“PCB”).
3 In opposition, the defendants relied on various medical reports and other documents as listed in the Index to the Defendants’ Court Book (“DCB”).
4 Notice to attend for cross-examination was given to the plaintiff and oral evidence was given by him.
5 The plaintiff claims, that as a result of an incident which occurred on or about the 9th day of January 2006, he suffered a “serious injury” as that term is relevantly defined. Pursuant to s.134AB(37) of the Act, “serious injury” means – in this case:
“(a) permanent serious impairment or loss of a body function.”
6 The particular permanent impairment or loss of a body function relied on here is to the low-back.
7 For the assessment of “serious injury” in accordance with sub-sections (16) and (19) of s.134AB, the word “serious” is further defined in s.134AB(38) of the Act.
8 This application is to be determined on the evidence before the Court, to which I have referred, by applying the statutory definition set out above to that evidence. In interpreting that definition, I have directed myself in accordance with the deliberations of the Court of Appeal in a group of four cases decided by the Court on the 25th February 2005, and reported at Volume 14 VR 622. The first of these cases was Barwon Spinners Pty Ltd v Podolak, and I will, if necessary, refer to them as the “Barwon Spinners & Others” cases.
9 The plaintiff seeks leave to proceed at common law in respect of pain and suffering damages only.
10 The plaintiff in this case is a twenty-eight year old student who was born on the 20th April 1981.
11 In December 2004, the plaintiff commenced employment with the first defendant, a labour hire company, and on the 9th January 2006, he was directed to work as a storeman at the premises of the Purple Pig Pty Ltd company, and whilst unloading a container, injured his low-back.
12 In paragraph 3 of his affidavit of the 18th December 2007 (PCB 5), the plaintiff said that the injury occurred when he was helping lift a roll of rubber, weighing about 120 kilograms, from a container when his workmate dropped his end of the roll, leaving the plaintiff to take all of the weight. He said that he immediately felt a sharp pain in his low-back. He said that he stopped working, saw the manager of the premises, who gave him some Nurofen and asked him to see if he could complete the day’s work and get the container emptied. The plaintiff complied with this request but he said it was painful to do so and it got worse as the day went on.
13 The next day the plaintiff went to the Williamstown Hospital and he was told to rest and to see his general practitioner. He did this, and on the 17th January 2006, went to see his general practitioner, Dr Aufgang, and on the 23rd January 2006, he saw a chiropractor, Dr Resurreccion, who has provided a report, at PCB 25.
14 Dr Aufgang’s report, at PCB 16, disclosed that the plaintiff was tender over the erector spinae on the left side, and he referred the plaintiff to Mr Resurreccion. He noted that when he reviewed him on the 17th January, and later on the 7th February, that the plaintiff was making good progress, but on the 15th February, he noted there had been an exacerbation of pain, and Dr Aufgang advised the plaintiff not to work but to rest. On the 18th March 2006, the plaintiff resumed his studies, and it would appear that the chiropractic treatment ceased on the 27th February 2006 (PCB 29).
15 In evidence before me, the plaintiff said that he last saw Dr Aufgang in relation to his back on the 1st October 2007. In the meantime he had had physiotherapy, up to once a week, depending on the severity of his back pain. He said he started the physiotherapy in late 2006 and it went on during 2007 and 2008. The plaintiff said that when he was in pain he took Nurofen and Panadol and had taken a dose of these medications as recently as the day before the hearing.
16 In May 2006, the plaintiff did casual work for his parents who owned a rubber stamp business in Williamstown and the work he did was clerical. Other than that, in November 2008, the plaintiff obtained a part-time clerical job with the Australian Institute of Professional Photography, and on the 16th February of this year, the plaintiff commenced full-time studies at the Australian Catholic University, for a Diploma of Education. The plaintiff wants to be a secondary teacher and believes that he will be able to pursue this vocation despite the problems he says that he still has with his back.
17 As far as orthopaedic opinion is concerned, the plaintiff’s solicitors had him examined by Mr Stephen Doig, whose reports are to be found at PCB 17 and 19. Apparently Mr Doig first examined the plaintiff on the 7th November 2007 and he notes that a CT scan of the plaintiff’s lumbar spine had been performed on the 20th September 2006 which showed a right far lateral L4-5 disc bulge and a left 2-3 and 3-4 disc bulge but apparently some osteophyte formation. He noted that at the time the plaintiff was suffering from some left leg pain which radiated down the back of his leg to the knee but that pain was not as bad as the back pain. Apparently a CT scan was performed on the 5th October 2006, again ordered by Dr Aufgang, and this showed some disc desiccation of L3-4 and some left-sided disc bulges at L2-3 and L3-4 and on the right at L4-5, but with no clear nerve root impingement. At the time the plaintiff saw Mr Doig he was complaining of a sore back, particularly on the left side, and some “funny feelings” down the left leg. At that stage the plaintiff was having physiotherapy and doing Pilates exercises some four times a week.
18 Mr Doig noted that the plaintiff had told him that he was fit and well before the subject accident and specifically had no troubles with his low-back. After examining the plaintiff, Mr Doig was of the view on that occasion that the plaintiff had suffered a disc injury at L2-3 and L3-4 and that the prognosis was “somewhat guarded”. Mr Doig was of the view on that occasion that there would be long-term consequences for the plaintiff, insofar as he would suffer from recurrent episodes of low-back pain. He said the plaintiff would have to restrict his activities as far as heavy lifting, pushing or pulling was concerned.
19 Mr Doig reviewed the plaintiff on the 11th December 2008 and he noted in his report of that date that there had not been a lot of difference, so the plaintiff said, as far as his back and legs were concerned. He noted that the plaintiff had not had any further investigations or treatment, despite the fact that Mr Doig had said in his first report that he thought the plaintiff may have benefitted from an epidural injection and treatment at the hands of an orthopaedic surgeon. He concluded, after examining the plaintiff again, that “my assessment of this gentleman is essentially unchanged”.
20 The defendants had the plaintiff examined by Mr Michael Dooley, orthopaedic surgeon, whose report of the 18th April 2008 is at DCB 14. At the time that the plaintiff saw Mr Dooley he was complaining of intermittent low-back pain but no sciatica. Mr Dooley also saw the MRI scan of October 2006 and after examining the plaintiff came to the view that the plaintiff suffered from a degenerative disc disease of the lumbar spine despite his relative youth, and he thought that the subject accident had aggravated this underlying condition and rendered it symptomatic. He said there was no evidence of any neurological deficit affecting the lower limbs and no evidence of a disc prolapse or of nerve root entrapment. He thought the plaintiff should, by way of treatment, do low-impact exercises and a fitness program with regular walking.
21 In conclusion, he said that the plaintiff’s employment had been a significant contributing factor to the aggravation of the underlying disc degenerative disease. He thought the plaintiff would continue to have some intermittent low-back pain but if he in fact exercised and modified his activities, then his symptoms would remain under control, and he did not expect the plaintiff’s condition to deteriorate over time.
22 The defendants also had the plaintiff examined by Dr David Elder, a consultant in occupational medicine, and his report of the 8th May 2007 is at DCB 9. He came to the same view as Mr Dooley, and in particular I refer to his comment at DCB 11, that the plaintiff suffers mechanical back pain due to an aggravation of multi-level degenerative disc disease with no clinical evidence of radiculopathy.
23 Mr Doig had been provided with Mr Dooley’s report at the time that he last saw the plaintiff and he commented on the fact that Mr Dooley:
“As indicated, that he felt there was degenerative change present in the disc. I am unable to state whether that is correct or not. It is possible that he had degenerative change in the disc but it is also possible the injury itself caused the degeneration in the disc.”
24 The sole issue to be decided in this case is whether or not, when making a comparison between the plaintiff’s situation and other similar cases, I find that the pain and suffering consequences to the plaintiff of the subject injury can fairly be described as being more than “significant” or “marked” and as being at least “very considerable”. The plaintiff must also satisfy me that the situation he is now in must be “permanent”, as that word has been defined in Barwon Spinners.
25 In his most recent affidavit of the 25th February of this year, at PCB 10, the plaintiff, at paragraph 4 thereof, says he continues to be restricted in all his activities, that he cannot lift more than 5 or 10 kilograms and walking for any prolonged period is difficult. He says he is always stiff in the morning and by the afternoon his back can be quite painful. He says he rests a lot and lies at home often because of back pain. The plaintiff has now moved out from his parents and for the last six months has been living with a friend in shared accommodation. He says his sleep is still affected by pain and he can have pins and needles in his left leg on a daily basis if he does too much. He says he continues to have physiotherapy on an approximately one to two weekly basis and he does his Pilates exercises once or twice a week. He continues to take the medication that I have already referred to.
26 On 10th February this year the plaintiff was involved in a minor road traffic accident when his car was hit on the left side by another vehicle. He said that he was jolted around in the car and suffered a temporary increase in back pain. This does not seem to be in dispute, nor the fact that he suffered a neck strain in that accident.
27 The plaintiff conceded in cross-examination that he had last played serious cricket, football and soccer in 1999 whilst he was still at school and he said that in 2004 or 2005 he had played these sports on a social basis. The plaintiff had complained that due to his low-back injury he could not carry his guitar and musical equipment in relation to a band he had played in prior to the accident and he gave evidence to the effect that he had last played in that band in 2004 and it was disbanded in 2006. The plaintiff conceded that at the end of 2007 he had had three months overseas and had travelled around Croatia, as well as Spain, Holland and the United Kingdom. He said that whilst he was away he had had back massages from time to time. He said that as far as his social life is concerned, he was naturally constrained as far as finances went but he did go out once or twice a week.
28 By and large the plaintiff is able to get on with his life, despite his injury, and I accept Mr Middleton’s submission that the plaintiff now suffers little interference with his career, social life or sporting activities. Further, the plaintiff’s ongoing treatment does not represent a serious intrusion into his life.
29 The medical evidence, from the orthopaedic surgeons, is to the effect that the plaintiff did suffer an injury to his discs in the lumbar spine, superimposed on degenerative changes. Fortunately, the affected discs have not prolapsed and hence there is no nerve root entrapment. This opinion is confirmed by Dr Matkovic, neurologist, who saw the plaintiff at the request of Dr Aufgang on the 8th September 2006. His report is at DCB 35. Nevertheless, it appears from the opinions of Mr Doig and Mr Dooley that the plaintiff’s intermittent low- back pain will continue for the foreseeable future and will continue to intrude on the plaintiff’s life, as I have referred to above. The question is, does this constitute a “serious” injury?
30 In order to satisfy that definition, s.134AB(38)(b)(i) requires me to compare this case with other similar cases, and as far as pain and suffering is concerned, subsection (c) prevents a finding that the impairment or loss of a body function caused by the injury to the plaintiff’s lower back shall not be serious unless the consequences may be “fairly described as being more than significant or marked” and as being at least “very considerable”.
31 Mr Middleton referred me to two of the cases dealt with by the Court of Appeal in Humphries v Poljak [1992] 2 VR 129, the first of those cases relied upon by Mr Middleton was Maloney v Muling at page 148 of the report. The plaintiff in that case was a twenty-two year old carpenter who was injured in a motor vehicle accident where he suffered multiple injuries but the most serious being an injury of the disc at the L4-5 level which was found to be either a prolapse or a disruption of the normal stability of the disc. That injury caused pain running down the plaintiff’s left leg. The medical evidence was to the point that there was no evidence of an intervertebral disc prolapse as such and no nerve root irritation and the plaintiff continued to work as a carpenter but his capacity to do so was impaired by his injuries. The plaintiff in that case also had some interference with his social life and sporting activities. The Court noted, at the foot of page 151, that:
“If upon the evidence it could be concluded that the applicant in the long term would probably suffer considerable difficulty with his back and left leg, so as to interfere with his working capacity, then a finding of ‘serious injury’ could well be made.”
32 The Court decided that that evidence did not exist and the Court concluded that the plaintiff had failed to establish the probable course of future events nor the degree of risk of future impairment and the claim was denied.
33 The next case that Mr Middleton relies upon is that of Veit v Conroy at page 152 of the report. The plaintiff in that case was a fifty-six year old widow who suffered injuries in a motor vehicle accident when she was thrown forward even though restrained by a seatbelt and hurt her neck. She was complaining of pain from the neck down into the shoulder under the left arm down to the fingers. The plaintiff came to surgery where the right sixth cervical nerve was decompressed, which improved her condition, but the injury rendered her permanently more prone to neck and arm pain and intermittent sensory disturbance than otherwise would have been the case. This was the opinion of her treating surgeon, Mr Wallace, who said that the injury had predisposed the plaintiff to an earlier onset than usual of degenerative changes in the cervical spine and that the injury would lead to a significant impairment of her ability to undertake a normal domestic and recreational life, as well as impairing her ability to undertake normal employment. After reviewing other medical evidence, the Court came to the view that the applicant had not established that her impairment was properly describable as “long-term”. Further, the Court said that notwithstanding the significant problems the plaintiff had suffered following the accident, as at the time of the hearing, the plaintiff’s degree of impairment could not be regarded as “serious” nor did it show that it was likely to become so in the future (page 155).
34 Whilst every case must be judged on its own merits, the cases referred to by Mr Middleton do give some insight into the standard that the plaintiff must reach under this legislation.
35 Unfortunately for the plaintiff in this case, whilst I find that the consequences to the plaintiff could be said to be significant, I am not satisfied that they are “very considerable” and the application is dismissed.
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