Stupuras v Goodwin Transport Pty Ltd
[2013] VCC 1453
•25 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-11-04371
| JOHN STUPURAS | Plaintiff |
| v | |
| GOODWIN TRANSPORT PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2013 | |
DATE OF JUDGMENT: | 25 October 2013 | |
CASE MAY BE CITED AS: | Stupuras v Goodwin Transport Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1453 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to leg – whether the consequences of such injury are “very considerable” – whether the consequences were likely to be permanent
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to commence an action claiming damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon Ltd |
| For the Defendants | Mr D Oldfield | Herbert Geer Lawyers |
HIS HONOUR:
1 John Stupuras alleges that on 15 May 2009 he suffered injury to his left leg in the course of his employment with the first defendant. He seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement … .”
4 The body function relied upon by Mr Stupuras in this application is that of his left leg.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or pecuniary loss consequences are, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[3]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Mr Stupuras has suffered the loss of earning capacity required in s134AB(38)(b) unless he establishes, in addition to the requirements of s(38)(c), that at the date of the hearing of the application he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss(38)(e), (f) and (g).
8 Mr Stupuras submits that the pain and suffering and loss of earning capacity consequences of his injury can fairly be described as being “more than significant or marked and as being at least very considerable”. The defendants deny this is so.
9 Further, Mr Stupuras alleges that his injury involves permanent serious disfigurement. The defendants deny that this is so.
10 The matters in issue and to be determined in this application are:
(a) What injury has Mr Stupuras suffered to his left leg?
(b) Can the pain and suffering or loss of earning capacity consequences of his injury be fairly described as being “more than significant or marked and as being at least very considerable”?
(c) Has Mr Stupuras suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
(d) Has Mr Stupuras suffered a permanent serious disfigurement?
Background
11 Mr Stupuras is aged fifty-eight.
12 He attended Fawkner Technical School, leaving at the age of seventeen, having completed Year 10.
13 From that time he has been in virtually constant employment. He worked as an aircraft sheet metalist for ten years; drove taxis for five years; was an interstate truck driver for five years; was a self-employed semi-trailer truck driver for ten years, and was an employee truck driver for another ten years. He commenced with the first defendant as a truck driver in November 2007. On any view, he had an excellent employment record.
14 There was no suggestion that before May 2009 he had any injury to his left leg or any other injury that interfered with his daily activities of living or with his capacity to earn income.
15 On 15 May 2009, Mr Stupuras suffered injury whilst unloading reels of paper from a semitrailer in the course of his employment. He fell to the ground whilst descending from the vehicle. He fractured his left tibia and fibula. He was taken by ambulance to the Footscray Hospital where he had x-rays and underwent open reduction surgery with an internal fixation of the fracture of his tibia. The procedure was complex and recovery difficult.
16 Between 15 May 2009 and 15 May 2012, Mr Stupuras has undergone some twelve surgical procedures. These were:
(a)On 15 May 2009, an open reduction and internal fixation of the fracture of the left tibia using a 13-hole Liss plate and bone graft to the left tibial plateau, together with a fasciotomy of the anterior compartment;
(b)On 19 May 2009, the removal of the vac dressing under spinal anaesthetic, at which time the wound was extensively lavaged and the vac dressing re-applied. Primary wound closure was unable to be achieved;
(c)On 21 May 2009, under general anaesthetic, the wound was debrided, the medial head of the gastrocnemius was raised, the proximal tendon was detached, and a split skin graft was harvested from the right thigh and inset as an inlay. The knee was placed in a Zimmer splint;
(d)On 4 July 2009, an abscess over the tibial metalware was incised and drained, exposing the tibial plate;
(e)On 8 July 2009, under general anaesthetic, the plate and screws were removed. The wound around the plate was found to be purulent, and an external fixateur was applied with two proximal and two distal rings and four rods. A vac dressing was applied to the wound;
(f)On 10 July 2009, he underwent debridement of the left knee wound under general anaesthetic which was washed out and followed by the application of a vac dressing;
(g)On 12 July 2009, under general anaesthetic, there was further debridement and wash out of the wound and a split skin graft was harvested from the left thigh and applied to the wound;
(h)In July 2010, the lateral tibial plate and screws were removed with placement of a further brace and cage over the left leg;
(i)On 14 October 2010, the ILIZAROV frame was removed;
(j)On 20 June 2011, there was an excision of the osteomyelitic segment of the left tibia with application of an external fixator;
(k)On 30 June 2011, further skin grafting was undertaken at the site of the wound;
(l)On 15 May 2012, the external fixator was removed. The leg was placed in plaster, which was removed in July 2012.
17 Mr Stupuras went off work at the time of the accident. He returned to work in May 2010 for approximately six weeks. He was unable to continue due to pain and the development of infection which resulted in further surgery in July of that year.
18 He again returned to work in January 2011. Initially he coped as a truck driver but soon after experienced swelling of his left leg and noted a change in colour of it. He experienced flu-like symptoms. He was admitted to Kilmore Hospital. There was a re-occurrence of the infection in his leg. He remained in hospital for eight days. He has not worked since.
19 Mr Stupuras is and has been keen to return to employment if possible. The claims agent referred him to a rehabilitation consultant, Workstreams. That firm assisted him in the preparation of a curriculum vitae but did not refer him to any particular job vacancies.
20 In the latter part of 2012 and through 2013, Mr Stupuras has looked at advertisements for job vacancies but had been unable to identify any as suitable.
Diagnosis of injury
21 The defendants concede that Mr Stupuras suffered a fracture of his left tibia and fibula in the course of his employment with the first defendant and that the recovery of such injury was complicated significantly by infection requiring extensive treatment.
22 His treating surgeon, Mr Harris, describes his initial injury as a closed fracture of the left proximal tibia and fibula. The tibial component involved both condyles (lateral and medial plateaux) and the shaft. Extensive problems were encountered in achieving wound closure and combating infection. Mr Stupuras has undergone extensive surgical treatment including bone grafting and skin grafting.
23 The evidence of Dr Hormiz, Professor Brand, Dr Stapleton, Mr Miller, Dr Middleton, Mr Harris and Professor Behan was consistent with this.
Disfigurement
24 During the course of the hearing, the plaintiff displayed to the Court his left lower leg. Extensive scarring was evident. This is, only to an extent, captured in photographs taken by Prof. Behan in October 2012.[4] Having viewed Mr Stupuras’s left leg, it is my view that the photographs displayed in the Court Book do not capture the true extent of his disfigurement. The scarring is best depicted in image number 7.[5] It is my view that the disfigurement is properly described as “serious”. There was no suggestion that such disfigurement was anything other than permanent. I consider that Mr Stupuras has suffered a “serious injury” as that term is defined in part (c) of the definition of that term in s134AB(37) of the Act.
[4]Images 6A to 14 at Plaintiff’s Court Book (“PCB”) 170 – 179
[5]PCB 171
Consequences of injury
25 In his affidavits sworn in support of this application, Mr Stupuras referred to a number of consequences of his injury. These include the following:
(a)He suffers from a constant ache in the left leg, especially around the knee and down into the ankle;
(b)He has episodes of acute discomfort and pain in his leg which are unpredictable and can occur without warning. That pain is made worse by activities including walking, moving about and weight bearing on his left leg. The more time he spends performing such activities, the greater the level of his pain;
(c)His ability to stand, walk and sit is limited by pain. He can walk up to a kilometre, which apparently takes him some 20 minutes or so. If he stands for too long or sits for lengthy periods, his pain worsens;
(d)There is weakness and instability in his left leg. In his oral evidence, he stated that he found it easier to walk if he tried to keep his left knee straight and that if he put weight on his left leg whilst his knee was bent, it tended to collapse;
(e)As a consequence of the various surgical procedures performed on his leg, his left leg is somewhat shorter than the right. This results in him limping and it affects his balance;
(f)He still uses a single walking crutch or single point stick to assist with his mobility. He can do without such assistance around his home and around places with which he is familiar. Generally, when outdoors, he is required to use a stick to assist with mobility and balance. On a recent holiday at Torquay, he struggled to walk on the beach, on sloping walkways and on wooden steps. This was very difficult for him, even with the use of a walking stick;
(g)He is unable to engage in bushwalking, a pastime that he and his partner did regularly before his injury. He is unable to drive a manual motor vehicle, although he has been able to drive an automatic vehicle. His driving is limited by the amount of time that he can remain in a seated position;
(h)Although he can bend his left knee almost fully, he cannot maintain it in that position for long before it becomes very painful;
(i)He is unable to mow the lawn or attend to splitting wood or stacking wood;
(m)His left leg is swollen. He is unable to wear normal trousers or jeans and generally wears tracksuit pants instead. In Court, I noted that he was wearing proper trousers but these were of generous dimensions;
(n)Prior to his injury, he often played social cricket and football but is unable to do so now;
(o)Prior to his injury, he enjoyed camping and dancing but is now greatly restricted in these activities;
(p)Prior to the accident, he enjoyed riding a bicycle but now cannot do that;
(q)On any view, his capacity for employment has been reduced. The defendants conceded that he would no longer be able to drive a vehicle for a living or engage in activities that required him to be on his feet for much of the working day.
26 The plaintiff’s evidence concerning such consequences was not challenged during the hearing. I accept that they are consequences of his injury. The defendants did not submit that they were not very considerable consequences or that they were merely marked or significant consequences.
27 Rather, the defendants submitted that Mr Stupuras had not established that those consequences were likely to be permanent. By this, I understood that the defendants were submitting that the evidence did not establish that those consequences were likely to continue for the foreseeable future. It argues that the permanency of his condition cannot be determined at the present time.
28 The basis for those submissions appears to be based upon the views of some medical practitioners that, with ongoing physiotherapy treatment, Mr Stupuras’s condition is likely to improve.
29 In his most recent affidavit, Mr Stupuras deposed that, since about mid-2012, the WorkCover claims agent had declined to fund physiotherapy treatment. He stated that, only recently, the claims agent had agreed to fund further physiotherapy which had commenced in early September 2013. He has, since that time, attended twice weekly. In his oral evidence, he indicated that he had noted no improvement since that treatment commenced.
30 The defendants did not seek to lead evidence from the claims agent disputing those matters, and I accept Mr Stupuras’ evidence concerning them.
31 Mr Stupuras conceded that there had been some improvement in his ability to sit, stand and walk since mid 2012, which is not surprising considering his surgical procedures extended until May of that year.
32 The medical evidence concerning the issue of permanence or stabilisation of injury can be summarised as follows.
33 On 13 September 2013, Mr Stupuras’ general practitioner, Dr Hormiz, described his condition as “currently stable”.[6]
[6]PCB 84
34 In September 2012, Mr Russell Miller, orthopaedic surgeon, considered that Mr Stupuras’ injuries had “substantially stabilised”.[7]
[7]PCB 117
35 In October 2012, Mr Peter Harris, the treating orthopaedic surgeon, considered that the leg “seems to have stabilised”.[8]
[8]PCB 127
36 In October 2012, Mr Felix Behan, plastic surgeon, considered that Mr Stupuras’ recovery appeared to have reached a plateau.[9] He considered that the prognosis would be dominated by ongoing orthopaedic issues which were outside his speciality.
[9]PCB 153
37 In mid-July 2013, Mr Stanley O’Loughlin, orthopaedic surgeon, examined Mr Stupuras at the request of the defendants. He opined that his condition had not yet stabilised and that it was likely that he would develop further strength and further movement in his knee and ankle with physiotherapy. He thought he would need further physiotherapy before his condition had stabilised.[10]
[10]Defendant’s Court Book (“DCB”) 11f and 11g
38 In September 2012, Mr Jonathon Hooper examined Mr Stupuras at the request of the defendants. He considered that at that time, the infection had healed and bony union had been achieved, although Mr Stupuras still needed to rehabilitate his leg somewhat to regain muscle strength. He considered that his condition was then stable. He thought that he would need some help with rehabilitating the knee.[11]
[11]DCB 13-14
39 In August 2013, Mr Barclay Reid, general surgeon, examined Mr Stupuras at the request of the defendants. He considered that Mr Stupuras should be reviewed in six months, because his capacity ought to have improved by then after a course of physiotherapy and strengthening of his leg.[12]
[12]DCB 14j
40 I accept that Mr Stupuras sought funding for physiotherapy treatment from mid 2012 and made contact with the claims agent in respect of that application on many occasions before funding was finally granted shortly prior to September 2013. In the period of approximately one month, there have been eight to nine treatments. Mr Stupuras reports no improvement in his condition.
41 The issue of permanence of injury or consequences of injury is, as with all issues in an application such as this, to be determined on the balance of probabilities. Plainly, when considering the prognosis for improvement in symptoms or otherwise, there can be no certainty. I have come to the conclusion, based largely on the gross nature of the injuries concerned and my acceptance of the plaintiff’s evidence as to his current level of symptoms that, on the balance of probabilities, the consequences referred to above are likely to continue for the foreseeable future. It may be that ongoing physiotherapy, delayed by the claims agent without explanation, may possibly result in some improvement; however, I consider that any such improvement is likely to be marginal.
42 Accordingly, I am satisfied that the consequences of the injury to Mr Stupuras, as outlined above, are permanent.
Loss of earning capacity
43 It was not in dispute that Mr Stupuras, as a consequence of his injuries, was unable to return to his pre-injury employment as a truck driver. Rather, the defendants submitted that he was able to undertake sedentary employment and could not establish that he had suffered a loss of earning capacity of more than 40 per cent, when assessed in accordance with the relevant sub-sections of s134AB(38).
44 There was a body of evidence indicating that, notwithstanding his leg injuries, Mr Stupuras was fit for sedentary work.[13]
[13]Dr Hormiz - PCB 26b, 83; Professor Behan; Mr O’Loughlin - DCB 11g; Mr Hooper - DCB 14b; Mr Reid - DCB 14h, 14i
45 The defendants conceded that Mr Stupuras was unable to return to work as a truck driver or in any heavy labouring capacity, they submitted that he was fit to work as a stock clerk or an order clerk.
46 The origin of the suggestion that Mr Stupuras was fit to work as an order clerk or as a stock clerk appears to be the report of Mr Germantis, a vocational consultant of Workstreams, dated 16 October 2012.[14] He also identified as suitable employment the positions of delivery driver and courier. His report dated August 2013 identifies the same positions as being suitable for him.[15] In the latter report, Mr Germantis refers to “job seeking completed by Workstreams” and refers to positions of customer service attendant, price checker, mystery shopper, farm hand, part-time cleaner and courier.
[14]DCB 35-47
[15]DCB 59-63
47 It is not entirely clear what is meant by these references. Insofar as Mr Germantis was suggesting that Mr Stupuras might have been fit to work as a farmhand or a part-time cleaner, the suggestion, in my view, borders on the ludicrous. It would be difficult to think of an occupation less appropriate for him than that of a farm hand or farm labourer. In any event, the suggestions that Mr Stupuras is fit for a sedentary occupation such as a stock clerk or an order clerk appears to me to assume that he is capable of working at a desk for most if not all of the working day on a full-time, five days per week basis. This, I consider, ignores the fact that he has difficulty sitting for more than a relatively short time as a consequence of pain in his leg and knee. No doctor disputed this. Mr Stupuras’ evidence concerning this was not challenged.
48 I accept the evidence of Mr Stupuras that if he remains in a seated position for more than 20 to 30 minutes, he suffers from considerable pain in his left leg and would be unable to remain in such a position. I do not accept that employment requiring him to be seated for much of the day would be suitable for him.
49 Further, Mr Stupuras’ work history is of a very limited scope. He has extensive experience as a truck driver, but little else. He has no experience in any administrative or office role. He has no computer skills. He has only Year 10 education. He is fifty-eight years of age.
50 The reality is, in my view, that he is most unlikely to find employment in any sedentary, office or administrative role and I consider that this is likely to remain the case for the foreseeable future and, in that sense, is a permanent loss.
51 In order to establish a loss of earning capacity of 40 per cent or more, I am required to compare:
(i)firstly, Mr Stupuras’ gross income from personal exertion that he is earning or capable of earning in suitable employment at the current time; and
(ii)secondly, the gross income that he was earning or capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred. The parties were in agreement that I should adopt the sum of $73,000 as that sum.
52 Accordingly, by reason of s134AB(38)(e) of the Act, Mr Stupuras is required to establish that he is unable to earn $43,800 per annum (being 60 per cent of $73,000) in suitable employment. On a weekly basis, this equates to $842.30.
53 It was accepted that, at the current time, Mr Stupuras was not earning any income. The defendants provided a written submission which adopted the earnings of a stock clerk and office clerk contained in the reports of Workstreams. This indicated that Mr Stupuras would currently earn $1,163 per week if employed full time as a stock clerk and $963 per week if employed full time as an order clerk. If he was only able to work some 35 hours per week, this would translate to $1,018 as a stock clerk and $842 per week as an order clerk. These figures were not disputed.
54 It followed, pursuant to the defendants’ submissions, that if he had such earning capacity, he would earn more than $43,800 per annum (or $842.30 per week). Accordingly, it submitted I could not be satisfied he had demonstrated a loss of earning capacity of more than 40 per cent. However, this submission assumed that Mr Stupuras has the capacity to work as an order clerk or a stock clerk on a full-time basis.
55 For the reasons set out above, I am not satisfied that he has that capacity. Firstly, I consider that he has established that he was not capable of working in a position that required him to be seated for much if not all of the working day on a full-time basis. Secondly, taking into account his age, his education and his work experience, I am not satisfied that work as an order clerk or stock clerk as defined in Mr Germantis’ report, was suitable employment for him.
56 Further, I note the comments of his treating surgeon, Mr Harris, as regards work capacity. He stated that Mr Stupuras’s ability to perform work was best assessed by someone with specific experience/qualification in this area.[16] Counsel for the parties agreed that this was a reference to a medically qualified occupational health and rehabilitation consultant.
[16]PCB 127
57 There was evidence from only one such consultant, Dr David Middleton. He had been asked to examine Mr Stupuras at the request of his solicitors in January 2013. He opined that Mr Stupuras might have been able to attend work for two to four hours in any one day on two to four non-consecutive days per week, and that his maximum weekly attendance should not exceed 12 hours.[17] Dr Middleton considered the definition of “suitable employment” in s5(1) of the Act and noted that Mr Stupuras had no realistic transferrable skills to support his significantly restricted physical capacity. It was his opinion that Mr Stupuras had no realistic prospects of being able to find employment in the current labour market, given his incapacity for employment as a result of the work-related injury which occurred on 15 May 2009.[18] I accept Dr Middleton’s evidence.
[17]PCB 142
[18]PCB 144
58 For each of the reasons outlined above, I am satisfied that Mr Stupuras has established that he has suffered a loss of earning capacity of 40 per cent or more when calculated in accordance with the provisions of s134AB(38) of the Act.
59 Insofar as there were medical practitioners whose evidence was that he was capable of sedentary work, I do not consider that they have properly taken into account problems that are currently encountered by Mr Stupuras and are likely to be encountered by him in the foreseeable future. In particular, these include his inability to remain seated for long periods of time. I consider that such a problem would be inevitable in most if not all sedentary positions.
60 Accordingly, I am satisfied that Mr Stupuras has established a loss of earning capacity exceeding 40 per cent and that such loss is permanent.
Conclusion
61 For the reasons expressed above, I am satisfied that Mr Stupuras has suffered a “serious injury” as that term is defined in both parts (a) and (b) of the definition of “serious injury” in s134AB(37) of the Act.
62 Further, I am satisfied that Mr Stupuras has established a permanent loss of earning capacity of 40 per cent or more when calculated in accordance with the provisions of ss134AB(38) of the Act.
63 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act to Mr Stupuras to commence a proceeding to recover pain and suffering damages and loss of earning capacity damages in respect of injuries suffered by him in the course of his employment with the first defendant on or about 15 May 2009.
64 I shall hear the parties in respect of any consequential orders sought.
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