Sturni, Mark Rodney v Plinius Engineering and Wrought Iron; Pty Ltd and Anor
[2009] VCC 1232
•30 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-04057
| MARK RODNEY STURNI | Plaintiff |
| v | |
| PLINIUS ENGINEERING & WROUGHT | Defendant |
| IRON PTY LTD & ANOR |
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| JUDGE: | LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5-7 August 2009 |
| DATE OF JUDGMENT: | 30 September 2009 |
| CASE MAY BE CITED AS: | Sturni, Mark Rodney v Plinius Engineering & Wrought Iron Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1232 |
REASONS FOR JUDGMENT
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Catchwords: Injury to cervical spine and thoracic spine and lumbar spine – claimed impairment to whole of spine – whether injury in nature of aggravation of pre-existing injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. R McGarvie SC with Mr. | Winn Legal |
| M O’Brien of counsel | ||
| For the Defendant | Mr. G Moore QC with Ms. C | Herbert Geer |
| Boyle of Counsel | ||
| HIS HONOUR: |
Introduction
1. This is an application which relies on sub-paragraph (a) of the definition of "serious injury" in sub-section (37) of section 134AB of the Accident Compensation Act 1985 (“the Act”), that is a permanent serious impairment or loss of a body function.
2. The body function relied upon is the spine.
3. The claim by the plaintiff instituted by Notice of Motion, seeks a leave from the Court pursuant to sub section (16)(b) of the Act to commence a proceeding which will claim damages for both pain and suffering and loss of earnings and loss of earning capacity.
4. Particulars of Injury pleaded as at 22 October 2008 are at PCB 6.
5. Mr. McGarvie SC with Mr. M. O’Brien of counsel appeared on behalf of the plaintiff. Mr. Moore QC with Ms. Boyle of counsel appeared on behalf of the defendants.
6. The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave evidence and was cross- examined. The plaintiff’s first affidavit was sworn on 24 July 2006[1]. The second affidavit was sworn on 4 August 2009.
•
The plaintiff also relied on an affidavit sworn and filed by his former partner Anne Maree Fellows sworn 15 January 2009.[2] Ms. Fellows was not called as a witness for cross examination.
•
The plaintiff tendered the following evidence - the plaintiff's Court Book ("PCB") pages 1-187: Exhibit A
•
The defendant tendered the following evidence - the defendant's Court Book (“DCB”) pages 1-115: Exhibit 1
•
The DCB at pages 107 to 108 included an affidavit of Wayne Squire exhibiting a statement and at 109-110 an affidavit of Raymond Douglas exhibiting a statement dated 19 September 2000.
[1] PCB 9-19
[2] PCB 20-24
7. In giving consideration to this application I have considered all of the evidence adduced by the respective parties.
8. The plaintiff is 42 years of age. He was previously in a long term relationship with one Anne Fellows and has an 18 year old son from a previous relationship and a daughter from an even earlier relationship. She is married with a child.[3] He attended school to year 11 before undertaking a pre-employment course at the School of Mines in Ballarat. Between 1985 and 1989 he completed an apprenticeship as a body maker in chassis construction with the CFA at Ballarat.[4]
[3] Plaintiff’s affidavit sworn 24 July 2006 PCB 9 and Plaintiff’s affidavit sworn 4 August 2009 PCB 19b.
[4] Plaintiff’s affidavit sworn 24 July 2006 PCB 10.
9. The plaintiff is currently in receipt of a disability pension and a carer’s pension. He cares for his mother who has Parkinson’s disease. He receives about $325.00 per week in his pocket.[5]
[5] Transcript Page 50 xxn.
10.It is common ground between the parties that the plaintiff is not fit to return to his pre- accident employment. The Defendants contend he is nonetheless fit for light work.
The Statutory Scheme
11.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”.
12. 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.[6]
(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”.[7]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsections (19)(a) and subsection (19)(b). Subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
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”.
(e)
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.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in section 5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) etc etc”.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
[6] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[7] Barwon Spinners, at paragraph 33
(i) 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.[8]
[8] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd
(j) 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. (k) 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.[9] [9] (1994) 1 VR 436
13.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.
Work and Relevant Medical History
14.In 1985 the plaintiff was injured in a motor vehicle collision that occurred during the course of his employment. He sustained a soft tissue injury to the upper back and was treated by his general practitioner Dr. Cousins (now deceased) and a physiotherapist Mr. Crocker. Significantly he was off work because of the injury for a period of 12 months.[10] He received $6,000 in compensation for his injuries.[11]
[10] Plaintiff’s affidavit sworn 24 July 2006 PCB 10
[11] Plaintiff’s affidavit sworn 4 August 2009 PCB 19c
15.In cross examination the plaintiff said that he had led a very active life which included motor cross riding on a motor bike during which he had sustained a number of falls. He said he was told that the nature of his neck injury in the car accident in 1985 was of a “soft tissue” injury.[12]
[12] Transcript page 47 xxn.
16.A Work Care certificate from Dr. Cousins dated 27 November 1987 includes the words “soft tissue injury neck dorsal spine”. A similar certificate by the same doctor on 11 December 1987 includes the words “soft tissue injury to the dorsal spine”…”duties of a light nature”.[13]
[13] DCB 25 & 26
17.The plaintiff was assessed for insurance purposes by Mr. T.J. Russell on 26 May
1988. He reported, inter alia:
“This worker was completely and utterly normal. He had no tenderness, no deformity, no swelling of his neck or thoracic or lumbar spine. He had a full range of movements of the shoulders, neck and arms. He could push off the wall with full weight on his hands with no trouble”. [14]
[14] DCB 47
18.A Work Cover certificate dated 22 June 1989 completed by the plaintiff’s physiotherapist in relation to this injury records, “Chronic Pain Thoracic Spine may be due to his osteo arthritis”.[15]
[15] DCB 24
19.After completing work with the CFA in about 1989, the plaintiff worked for his father in Scarsdale in an earth moving business on an intermittent basis during which time he performed some welding work and mechanical work. There were periods of unemployment.[16]
[16] Plaintiff’s affidavit sworn 24 July 2006 PCB 10
20.Between 1990 and 1993 the plaintiff held various welding jobs. In 1993 he was a production line welder for Frontline Engineering during which time he suffered a “neck strain” which he said required a short period off work.[17] A Work Cover medical certificate was completed by Dr. Michael Bishop on 4 October 1994 records the plaintiff presented with “neck pain and headaches”. A diagnosis of “headaches secondary to neck irritation” was made which were said to be secondary to injuries suffered in a road traffic accident in 1987.[18]
[17] Plaintiff’s affidavit sworn 24 July 2006 PCB 10
[18] DCB 29
21.This was followed by a “back strain” with the same employer in August 1995 which required “about three days off work”.[19]
[19] Plaintiff’s affidavit sworn 24 July 2006 PCB 10
22.In 1995/6 whilst employed by Statewide Concrete and Constructions the plaintiff had an accident on a motor bike and suffered an injury to his elbow which required “some surgery to repair and cuts and abrasions to my arm”.[20] He was not working at the time of this accident. [21]
[20] Plaintiff’s affidavit sworn 24 July 2006 PCB 11
[21] Plaintiff’s affidavit sworn 4 August 2009 PCB 19c.
23.In 1996 the plaintiff was employed by Ben Duka Constructions. During the course of that employment he suffered from “Further back pain” when jumping down from the back of a truck.[22]
[22] Plaintiff’s affidavit sworn 24 July 2006 PCB 11
24.Between 1997 and 1999 the plaintiff had various jobs as a welder. In 1998 or 1999 whilst working for Freighter Australia he apparently consulted his general practitioner Dr. Rose complaining of “some lower back pain”. The plaintiff is unable to recall the circumstances of that complaint.[23]
[23] Plaintiff’s affidavit sworn 24 July 2006 PCB 11
25.On 9 November 1999 the plaintiff commenced work with the first defendant as a structural steel fabricator[24]. The work involved the preparation of steel beams and columns for use in construction of buildings. It was heavy work and frequently involved the plaintiff with another employee lifting and turning lengthy steel beams on a trestle.[25]
[24] Plaintiff’s affidavit sworn 4 August 2009 PCB 19c
[25] Plaintiff’s affidavit sworn 24 July 2006 PCB 11
26.In describing his work with the first defendant the plaintiff says that “it was heavy and sometimes very awkward. It involved standing, bending, stooping, and lifting. It also involved working with and manipulating and moving steel beams mainly on trestles”. The work placed a lot of stress and physical strain on the plaintiff. The plaintiff says “as a consequence, I suffered aches and pains in various parts of my body including my shoulders, neck and lower back. My lower back hadn’t caused me any real problems before this work.”[26]
[26] Plaintiff’s affidavit sworn 4 August 2009 PCB 19d
27.The plaintiff said in his affidavit filed with the Originating Motion that soon after he began work with the first defendant he began to suffer aches and pains in various parts of his body but he carried on with his work notwithstanding. In cross examination he said that paraesthesia came on him in December 1999. He disagreed that he had given an incorrect history to Dr. Rose.[27] This is the plaintiff’s evidence on cross examination:
[27] Transcript Page 48 xxn.
“So the paraesthesia came on the day you started work or before you started work or when?---Not long after starting. December I think would be more accurate. December it came on.
You are saying you gave the wrong history to Dr Rose, are you?---I gave him a
thereabouts.
You should have said a month and not two months, is that what you say?---I am not
saying that at all.
You told him two months unless he wrote it down incorrectly?---About two months
I said to him.
Is about two months one month or - it can't be, can it?---No.
When you say about two months it is more likely two or three or thereabouts isn't
it?---I hadn't had any problem with it before I started working there.
No?---No.
Because of those aches and pains you would probably be seeing the odd chiropractor from time to time?---No, I've never - never - I've seen a chiropractor once in my life.
In relation to the neck, as I put to you yesterday, your history initially to Dr Rose was that you had an onset of left paraesthesia , left weakness and loss of feeling and sensation, I should say, in your left arm, and it came on about two months before when you saw him on the 20th or 18 January 2000?---That was approximate, yes.
1999?---No, not in my opinion.
In your opinion. You had had neck and shoulder problems before then, hadn't
you?---Nothing, nothing to speak of.
Tell me, had you had neck pain before 19 November 1999?---Yes.
Can you remember anything in particular that might have sponsored the onset of
that neck pain?---I was aluminium welding, Tig welding and it just required me look
down all day and I just got cramp in the neck or a stiff neck after doing it for weeks.
Who were you working with then?---Frontline. Frontline Australia.
That would be back in about 1995 if I remember correctly, wouldn’t it?---Yes,
somewhere around that.
1996?---Somewhere around that, yes.
And that affected your neck at work?---Yes.
Your shoulder?---Upper back, shoulder, yes, somewhere - - -
Upper back?---To a point.
Pardon?---To a point.
The upper back - can I put it this way - between the shoulderblades?---It was either
my upper back causing me neck pain or my neck pain causing the upper back pain.
It was all in the mix, so to speak?---It was just a stooping job, stand 24 hours
welding.
Were you getting symptoms into your shoulder and into your left arm?---Not that I
can recall.
And it could well have been a problem that had come on before 19 November my left arm.[28]
[28] Transcript pages 61-62 xxn.
28.The records of the plaintiff’s general practitioner Dr. Rose, record an attendance upon him on 18 January 2000 “with parasthesia for two months affecting left arm”.[29] The plaintiff says that at this time he was suffering from “left sided chest pain, neck pain, left shoulder pain and a severe ache, sometimes a pain, in the left arm.”[30] At the time the plaintiff thought he was having a heart attack. He did not cease work at this time.
[29] Plaintiff’s affidavit sworn 24 July 2006 PCB 12 and notes of Dr. Rose at PCB 37E
[30] Plaintiff’s affidavit sworn 4 August 2009 PCB 19d
29.On 31 March 2000 the plaintiff consulted Graeme Gracie a naturopath after he began to “suffer pains extending into my right leg and significant stiffness and loss of function in my spine overall”.[31] The plaintiff said he suffered these pains at work that day. He worked on regardless.
[31] Plaintiff’s affidavit sworn 24 July 2006 PCB 12
30.A report from Graeme Gracie confirms the attendance and says, inter alia: “Mr. Sturni stated that he had turned at work and experienced acute pain in the lower back and down the right leg, and pains in the upper back as well”.[32]
[32] PCB 38
31.A subsequent report from Dr. Rose the general practitioner records, inter alia: “He had seen the Naturopath the day it happened”.[33]
[33] PCB 25
32.The plaintiff’s case is that he suffered injury during the course of his employment with the first defendant. The work which the plaintiff performed was very heavy work and because he was the strongest and fittest person working at the place of employment he was often called upon to carry out the heaviest tasks. Whilst he had experienced some short episodes of neck and back pain over the years, these were only in the nature of niggles associated with heavy manual work and that when he commenced work for the first defendant he was fit and asymptomatic. After commencing work with the first defendant in November 1999, by January he was feeling neck pain and later, on or about 31 March 2000, when he turned whilst moving in his work he suffered from an immediate onset of pain that day in his back and went to the naturopath that day.
| 33. | 2000 in the following way: |
In his second affidavit the plaintiff describes the event that occurred on 31 March a sharp, severe pain in my lower back going down into my right leg.”[34]
[34] Plaintiff’s affidavit sworn 4 August 2009 PCB 19d
34.The plaintiff said that he had complained about the heavy nature of the work to the first defendant’s foreman on 18 August 2000. At that time he said he told the foreman he had required treatment because of pain in his low back and spine that had “come on while working for the first defendant”.[35]
[35] Plaintiff’s affidavit sworn 4 August 2009 PCB 19e.
35.The plaintiff says he had leave at the insistence of the first defendant from 18 August to 28 August 2000.[36] There is a dispute between the parties on this issue. The first defendant denies it insisted on the plaintiff taking leave. It says the plaintiff wanted to take time off which was agreed to.[37] To decide this application I do not have to decide this factual dispute.
[36] Plaintiff’s affidavit sworn 4 August 2009 PCB 19e
[37] Transcript Page 69 xxn and DCB 107-110
36.The plaintiff says that he carried on with his work and did not consult a doctor about what occurred on 31 March 2000 until he consulted Dr. Rose on or about 23 August 2000 although he had seen Mr. Gracie a naturopath on 31 March 2000. He complained to Dr. Rose of “low backache which had subsequently spread to neck, shoulders and upper back. He told Dr. Rose that “2 or 3 months earlier, at work he had turned around to pick something up and suddenly suffered the pain above, and that this had progressively worsened over the next 2 months”. [38]
[38] PCB 25 39 PCB 25
37.Dr. Rose general practitioner saw the plaintiff on 23 August 2000. On examination he found that the lumbar 4-5 and lumbar sacral joints had blocks to the right side bending. His diagnosis was:
“initially mechanical disorder of the lumber(sic) spine, presumed to be due to over use when helping roll 18 metre steel beams and then precipitated by a simple twist. He had been seen 36 times over 11 years, prior to this, with only one visit mentioning any problem with his lumbar spine (over a year before this problem developed). His description of the job of rolling the 18 metre beams, indicated that the job was very heavy and fatiguing. My hypothesis is that he injured the joints while carrying out this work, but only became aware of the injury when he twisted.”39
38.The plaintiff was collected from his place of work by his wife on 28 August 2000 and taken to St. John of God hospital in Ballarat where X Rays performed demonstrated some degenerative changes in the cervical spine with disc narrowing at T5-6 level and secondary spondylosis as well as osteo arthritic changes at C3-4 and C5-6 levels with moderate narrowing of the right C3-4 exit foramen due to osteophytic encroachment. Moderate spondylosis was identified in the thoracic spine. In the lumbar spine there was disc narrowing extending from L1 to L5 with secondary spondylytic changes at all levels.
39.The plaintiff saw Dr. Rose the following day[40] and was prescribed Panadeine Forte, Brufen, Naprosyn, Tramal, Vioxx, Prednisolone, Cipramil, Luvox and Effexor. His symptoms persisted.
[40] Plaintiff’s affidavit sworn 4 August 2009 PCB 19f.
40.He was put off work and has not returned to any form of employment since 28 August 2000. In cross examination the plaintiff was asked if he was sure he had not worked since 28 August 2000. He said he was positive he had not.[41] There being no evidence to suggest the contrary I accept and act on the plaintiff’s evidence on this issue.
[41] Transcript page 45.
41.There is also a factual dispute between the parties as to the circumstances of the plaintiff ceasing work on 28 August 2000. To decide this application I do not have to decide this factual dispute.
42.The plaintiff saw the late Mr. James Pryor orthopaedic surgeon at Ballarat on 12 July 2001 for medico legal purposes arranged by his then solicitors. He reported to Mr. Pryor that “some few months before the end of March 2000 he started to experience some aching and discomfort in the lower back. The pain was located in the midline in the lower lumbar region”. [42] The report does not record complaint of pain in the neck or thoracic spines but does record X-ray assessments carried out to each of those areas of the spine recording degeneration at each level.[43]
[42] James Pryor Report PCB 40
[43] PCB 42
43. A claim report was submitted to the first defendant on 31 August 2000[44]. In that
[44] Exhibit MRS-1 to Plaintiff’s Affidavit sworn 24 July 2006.
form the plaintiff said he had suffered a “Back Injury” and added, inter alia:
“Over a number of weeks I was required to manually rotate heavy steel beams. Over course of time my back injury developed”…”Soft tissue injury to the upper spine but not to the lower back before above injury”.
44.The first defendant reported that the plaintiff had not sustained injury during the course of his employment with it.
45.The plaintiff says that he continued to suffer lower back pain with pain radiating into his right leg which he says started in March 2000. He says he also suffered pain in his neck that radiates into the left shoulder, left arm and hand.[45]
[45] Plaintiff’s affidavit sworn 4 August 2009 PCB 19f.
46.A CT scan was carried out on the plaintiff’s lumbar, thoracic and cervical spines on 17 October 2001. It showed minor degenerative changes at L1-2 and L2-3 levels with small traction osteophytes projecting anteriorly at all levels from L3 to L5.
47. There was no abnormality detected in the thoracic spine.
48.There was degenerative disc disease and osteophyte formation at C5-6 level indenting theca. There was some mild foraminal narrowing on the right of C3-4 level as well as osteophytic growths at C6-7 level.
49.It was not until 13 May 2002 that the plaintiff was referred to Orthopaedic surgeon Mr. Peter Moran. [46] The plaintiff presented for “assessment of symptoms arising from the back and neck. The plaintiff told Mr. Moran that he had been performing his duties with the first defendant “for months, until he experienced gradually increasing back pain over several weeks”. Mr. Moran added “I was not particularly involved with assessment of his neck but did note that extension of the neck provoked pain radiating down the left arm”. The plaintiff complained to Mr. Moran about his neck. Mr. Moran records “In addition he indicated that he experienced neck and left arm pain and numbness in the left arm, these symptoms developing at about the same time as his back injury".47
[46] Report of Peter Moran PCB 44
50.An MRI scan was undertaken on 31 May 2002 at the direction of Mr. Moran which demonstrated a prominent central disc protrusion causing central canal stenosis at C5-6 level compressing the anterior part of the spinal chord centrally and to the right.
51.At C6-7 level there was a broad based disc protrusion touching the anterior part of the spinal chord and causing central canal stenosis as well as minimal compression to the anterior part of the cord generally. There was also narrowing of the exit canal on the left side affecting the left C7 nerve root.
52.At C7-T1 level there was a minimal annular bulge but also narrowing of the exit canal on the left side affecting the left C8 nerve root. This was the first time that there was imaging evidence of disc prolapse in the cervical spine.
53.In the lumbar spine the MRI demonstrated loss of signal due to disc degeneration and desiccation at L2-3 and L3-4 levels but the nerve roots did not appear to be affected.
54.The last report from Mr. Moran is dated 21 July 2006.48 In cross examination the plaintiff agreed that he had not seen Mr. Moran again since that time although he had tried to get a referral.49
55.A neurosurgical assessment was performed at St. Vincent’s Hospital on 22 October 2002 and the plaintiff was advised against surgery.50 After advising that surgery to the lumbar spine was not advisable Dr. Han dealt with the cervical spine saying, inter alia: ”with his fairly impressive cervical spine imaging, I feel that a surgical option is possible in the cervical spine should the pain become severe. At the moment he feels that this is only a minor problem and surgery is therefore not warranted”
56.In a further claim form submitted by the plaintiff dated 15 July 2004 the plaintiff was asked what his injury was. He answered “spinal injury”. Asked what part of his body was affected he said “Back, neck, headache, arms, Legs”. Asked how the injury occurred he said “manual handling steel beams & steel off cuts”.51
57.By the latter part of 2004 the symptoms from the cervical spine condition persisted with the plaintiff suffering from on going pain in the neck radiating into the left arm and hand52.
47 PCB 45
48 PCB 51
49 Transcript 45.
50 There is a report from Mr. Tiew Han neurosurgeon at PCB 52.
51 Exhibit MRS-2 to the Plaintiff’s affidavit sworn 24 July 2006
52 See the report from Dr. Martin Wood Neurosurgery Registrar St Vincent’s Hospital 28 January 2003 PCB
54-57
58.On 9 March 2005 he underwent anterior cervical diskectomy fusion secured by plates and bolts at C6-7 level[53].
[53] See St Vincent’s Hospital Report at PCB 58
59.The plaintiff initially found significant improvement but over time the symptoms with pain into his left arm and hand have re-emerged although not as severe as pre- operation.[54] He says he continues to suffer from headaches once or twice per week and from aches and pains in and about his neck all of the time which get worse if he is confined in one position such as watching television. He says he continues to suffer aches and pains in the left shoulder with pins and needles radiating down the left arm from time to time. Working on a computer he says is difficult.[55]
[54] Plaintiff’s affidavit sworn 24 July 2006 PCB 16
[55] Plaintiff’s affidavit sworn 4 August 2009 PCB 19g.
60.The plaintiff said that he had been back to St. Vincent’s Hospital in the last twelve months on two occasions. He said he was supposed to have a follow up MRI but that was never done.[56]
[56] Transcript page 45 xxn.
61.The plaintiff was referred to Dr. Robyn Horsley for medico-legal assessment in April 2005. Because this was soon after the plaintiff’s surgery and she declined to give an opinion at that time.[57]
[57] PCB 61
62.The plaintiff claims to continue to have symptoms from the lumbar spine with referred pain into both the right and left lower legs[58]. A second MRI scan of the lumbar spine was performed on 18 February 2006 which demonstrated significant dessication with bulging at L2-3 and L3-4 levels and osteoarthritis of the lower lumbar facet joints. At L5/6 level there was a small disc protrusion but the nerve roots did not appear to be affected.
[58] Plaintiff’s affidavit sworn 4 August 2009 PCB 19g.
63.When the plaintiff swore his first affidavit on 24 July 2006 he was taking up to four panadeine forte per day.[59] He said that his pain was constant and chronic. It has affected most aspects of his life and placed strains on his relationships with others.
[59] Plaintiff’s affidavit sworn 24 July 2006 PCB 16
64.The plaintiff commenced a certificate in Auto Assisted Drafting which he has found difficult because of his injuries. Other than that, the plaintiff is untrained for other forms of light work. In cross examination he agreed that he had not sought a light work job.[60] The defendant’s position on the claim for loss of earnings capacity was in part put on cross examination of the plaintiff by Mr. Moore:
[60] Transcript pages 85-86 xxn.
You have been told you shouldn't really go back to that?---True.
And you're not really interested in anything else because that was a good way of
life?---I consider myself to be pretty clever at it.
Pretty what?---Pretty clever at it.
At what?---Bodymaking particularly.
Yes, exactly. That was something that you enjoyed?---That was my trade. Yes.
And because you can't do that, you're not really interested, I take it, in doing much
else?---I'm interested in doing anything I can.
Can you tell us how your interest has been developed?---Well, like I just said, I just -
just the other two - within the last two weeks, got the TAFE website up and further
investigated this drafting. It's not actually the same but yes. It's the physical
components of it that I'm not real sure on which I've got to look into because there's
mechanical, civil, you know, like drainage, road making.
I see?---I'd like to do design but - - -
So there has been sort of a further spurt in the last couple of weeks in this
area?---I've looked at it on and off for the last - well, since I went and done the
course, started the course.
Is your position this, you love the sort of work you used to be doing?---Yes. in light work or other work?---No, not at all.[61]
[61] Transcript page 88 xxn.
65.He can no longer play golf or carry out work to cars[62]. He owns three cars which are collectors items he having a long interest in cars. His sleep is affected by on going pain. He is limited in carrying out house duties. His long term relationship with Anne Fellows ended. His activities with his son are restricted. He cannot lift heavy objects repetitively or bend. In cross examination the plaintiff told me:
[62] Plaintiff’s affidavit sworn 4 August 2009 PCB 19g.
Your Honour, I've never said that I'm paralysed, you know, I've never said I couldn't do anything but the way things are, I don't - it doesn't have to be bending over to pick anything up. It can be just anything. I walked a dog one time and it pulled my arm. By the time I got home I had to curl up in a ball on the ground just so I could cough. It's just that simple. It's just a jerk like that and I thought, I don't know, and by the time - I went for a walk through the Botanical Gardens with my ex-partner one time, ended up on my knees on the ground so I could breathe for no reason, just my whole back will go out. That's it.[63]
[63] Transcript page 89 xxn.
66. I accept the plaintiff’s evidence.
67.Dr Horsley saw the plaintiff on a second occasion on 28 July 2008. Her report
identified the plaintiff had:
"Widespread degenerative change throughout the cervical, thoracic and lumbar spine….On a background of degenerative changes in the cervical spine, narrowing at the C6 level is exacerbated." "Exacerbated by a large C6-7 prolapse which required surgical intervention for C6-7 radiculopathy. He had an anterior C6-7 discectomy and fusion. He still has persistent absent triceps reflex, on the left side and a reduction of muscle bulk in the forearm.”[64]
[64] PCB 67
68.On 23 October 2008 the plaintiff saw Mr. Thomas Kossmann Orthopaedic surgeon for medico legal purposes. He told Mr. Kossmann, inter alia, he had suffered pain in his neck in December 1999 with pain radiating into his left arm.[65]
[65] PCB 80
Attack on Credit
69.The defendants attempted to attack the plaintiff’s credit in a number of ways. Firstly, it was implied that because both he and his former partner were each in receipt of Commonwealth pensions and living across the road from each other that they were motivated to receive benefits which they were not otherwise entitled to. There is not sufficient evidence to enable me to draw such a conclusion.[66]
[66] Transcript generally at Pages 50 to 53 xxn
70.Secondly it was put that the plaintiff abused alcohol and drugs and that he has had a series of driving offences.[67] Again, there is not sufficient or any proper evidence to enable me to draw a conclusion adverse to the plaintiff’s credit.
[67] Transcript generally at Pages 50 to 53 xxn
71.Thirdly it seemed to be suggested that because the plaintiff has a number of cars that he must be working either on them or to earn money to keep them. The suggestion went nowhere.
72.I had the opportunity to view the plaintiff both in the courtroom and in the witness box. He struck me as a person who was generally playing down his physical problems. His work history suggests he liked his work and he was the one that did the heavier aspects of it. He was quite frank in his approach to giving his evidence. He conceded points at times against interest and I formed the impression that he gave a frank and truthful account of himself. I accept his evidence and for the purposes of this application I act on his evidence. I note in argument I made the comment to senior counsel for the defendants that he (the plaintiff) struck me as genuine.[68] After having given the matter considerable thought nothing has occurred to change my view.
[68] Transcript page 137
Defendant’s Case
73.Mr. Moore asked me to look at the injuries to the neck and the lower back and perhaps the mid back separately.[69]
[69] Transcript page 103
74.Dealing with the neck injury first Mr. Moore submitted the plaintiff had a history of prior neck problems which he agrees to now.
75.When Dr. Rose saw the plaintiff in January 2000 there was a history of an onset of pain over a couple of months. That would take the history of the onset of pain back to the time or shortly after the plaintiff commenced work with the first defendant.
76.The first defendant submitted that when the plaintiff attended upon Mr. Gracie on 31 March he complained only of back pain not of neck pain
77.The first defendant submits there is evidence of pre-existing neck injury, which is not admitted to, dating back to the motor vehicle accident in 1986 when the plaintiff had more than a year off work. The first defendant submits this was a significant injury.
78.If I accept that the plaintiff had a pre-existing neck injury which has been aggravated by the employment the question then becomes is it an aggravation that can, on the evidence, fairly be related to or associated with the work activity of the plaintiff in the context of this early history of onset soon after employment commenced.
79.Mr. Moore submits there was no complaint and no treatment for the neck subsequent to employment commencing. There was a complaint to Dr. Rose on 23 August 2000 of "Low back, neck shoulders, upper back”[70] but Mr. Moore submits there was no complaint of neck injury in the context of the plaintiff’s work with the first defendant until several months after the plaintiff ceasing work in August 2000. That complaint came sometime in early 2001 raising the question as to whether there is a causal link between work and the neck complaint.
[70] Notes of Dr. Rose PCB 37E
80.The plaintiff did say in evidence before me that he had complained to Dr. Rose of neck pain on 18 January 2000.
81.Mr. Moore pointed to the examination of the plaintiff by Mr. Pryor in July of 2001 and noted that the report did not record complaint of neck pain by the plaintiff although he conceded it was unclear for what purpose Mr. Pryor had seen the plaintiff. Mr. Moore pointed to the x-ray assessments as recorded by Dr. Pryor in his report noting that the plaintiff has got pre-existing degenerative process in the lumbar, thoracic and cervical spines and he was very young (32) at that stage to have had it.
82.Mr. Pryor did comment upon the plaintiff’s complaint of pain in the left arm saying “In relation to the left arm, he had an acute exacerbation of arm pain, which has since largely settled. The precise cause of this is unclear. At this stage it does not constitute a major disability”. Mr. Moore submitted that so far as the plaintiff’s neck was concerned on the evidence of Mr. Pryor, the neck alone could not constitute a serious injury.
83.In dealing with the plaintiff’s neck condition Mr. Moore submitted that the report from St Vincent’s Hospital did not demonstrate that at least in October 2002 the neck condition was a serious injury.[71]
[71] There is a report from Mr. Tiew Han neurosurgeon at PCB 52.
84.Mr. Moore went to the second report of Dr. Horsley and noted that there was no attempt to causally link work with the cervical disk prolapse experience by the plaintiff.
85.Mr. Moore relied upon Lu v. Mediterranean Shoes Pty Ltd & Ors (2000) 1 V.R. 511 in submitting that it is impermissible for the plaintiff to aggregate a number of injuries which have occurred at different times to claim impairment of one body function. Put another way, is there evidence here of one relevant incident and is there evidence or sufficient evidence to say that there is one body function namely the whole spine? If not one is forced to look at each level of the spine separately.
86.Here, Mr. Moore submitted that I must first identify the nature and extent of the injury and then look to the consequences of it in terms of impairment of the body function and the extent of pain and suffering involved in order to determine whether the injury was a serious injury.
87.Mr. Moore referred me to R J Gilbertsons Pty Ltd v. Skorsis [2000] VSCA 51 at
paragraph 2 where Winneke P said, inter alia:
“It is, of course, true that where a Plaintiff is contending that the injury constituted by an aggravation of a pre-existing condition is itself a “serious injury”, in the sense of a serious long term impairment of a body function, it is for the Plaintiff to prove that the aggravation meets that description. In determining whether the Plaintiff has discharged the onus the court must make a comparison of the Plaintiff’s condition before the supervention of the Defendant’s negligent conduct, with his condition thereafter and make an assessment of the additional impairment (Petkovski v Galleti [1994 1 V.R. 436 at 443).”
He also relied upon Angelatos v. Museum of Victoria [1999] 3 V.R. 157.
88.Mr. Moore submitted that here there was no evidence of any event giving rise to injury to the plaintiff’s neck or cervical spine rather, the evidence was of a history pre-existing injury and degeneration in the cervical spine which had at times been symptomatic but in respect of which the plaintiff made no complaint here until well after he had stopped working. So he argued, the case in relation to any claimed injury to the neck must be put on an aggravation basis and there is no evidence from which I can conclude either the extent of the aggravation said to constitute the impairment or what were the consequences of it. Mr. Moore referred me to the decision in Dalton v. Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183 a case factually not unlike this case except in Dalton there was a “frank” injury” suffered in non compensable circumstances. In this case Mr. Moore submitted there was no frank injury and no compensable circumstances.
89.Mr. Moore then turned his submissions to the plaintiff’s back. He submitted that in relation to the back injuries once again the plaintiff’s case was an aggravation case. He argued that if I treat the neck and back separately (which he said I should) then even if the plaintiff did injure his back and the injury caused impairment and pain and suffering there was a problem here disentangling the impairment and consequences of it from those related to the neck condition.
Plaintiff’s Case
90.The plaintiff’s case is that the body function impaired is the whole of the spine. Alternatively, the plaintiff argues that if I am not satisfied that the injury to the cervical spine occurred during the course of the plaintiff’s employment by the first defendant then I should be satisfied that the plaintiff injured his lumbar spine in the incident said to have occurred on 31 March 2000 with pain and employment consequences.[72] He submitted:
“Your Honour, as stated in opening and as repeated in the statement of issues the permanent serious impairment or loss of body function relied upon by the plaintiff in this case is the spine as a whole, and as my learned friend has so fairly conceded, the more general approach in this court is to treat the spine as a whole as one body function rather than to break it down into the way the medical practitioners do into cervical, thoracic and lumbar”.
[72] Transcript page 103
91.It can be seen that Mr. McGarvie contends it is the practice of a number of judges in this court to combine the functions of the cervical, thoracic and lumber spines into one body function, namely, the spine. By way of example, he relied upon a decision of Judge Dyett in this Court in Santuefemia V. Trevena & Anor [2006] VCC 1782.
92.The plaintiff’s case as submitted by Mr. McGarvie is that although the plaintiff has a history of incidents in which part of his back was involved, particularly the thoracic spine, nevertheless he had been able to work for many years thereafter without anything more than “niggles” as he said the plaintiff described his injuries. He described the plaintiff as being “effectively asymptomatic”. He said:
“Your Honour, our primary position is that this is not an aggravation case. This arises out of injury in the course of employment to an asymptomatic spine or previously effectively asymptomatic apart from niggles here we have described.
In the alternative if Your Honour accepted my learned friend's submission that this is an Angelatos type spine which was an accident ready to happen, and that it was only the straw that broke the camel's back, we say that the - we nonetheless say that the consequences of the aggravation, acceleration, exacerbation or deterioration do amount to a serious injury within the terms of the cases that have considered what is required in that regard.” So this is not a case where someone with a bad back had been managing to get by for many years since a motor vehicle accident and was able to cope with assistance of workmates. This is a case where this man was, as he describes in his affidavit - he was given the heaviest jobs in this factory because he was the biggest and the strongest fellow in the factory in essence. This is someone who had an essentially unimpaired spinal capacity. Certainly he would occasionally go along to the doctor about a niggle here or a niggle there but we say the evidence in this case really doesn't support the proposition that his spine was a wreck albeit that there were no symptoms before he went to work there. He was a 32 year old man who might have done some motor cross riding and might have worked in heavy industry but we say that this is a case of someone who had an essentially good back prior to going to work for the defendant. [73]
[73] Transcript page 153-154.
93.Mr. McGarvie relied upon the fact that the plaintiff had attended upon his general practitioner Dr. Rose on 18 January 2000 as the plaintiff said in evidence and complained of neck pain. That was corroborated by the notes of Dr. Rose.[74] He argued it was therefore incorrect to say, as the first defendant contends that there was no evidence of injury to the neck or cervical spine area.
[74] PCB 37e at top of page.
94.Mr. McGarvie relied upon the report of Dr. Rose and his diagnosis after attendance of the plaintiff on 23 August 2000 to evidence injury to the lumbar spine consequent upon an incident of twisting at work in March 2000.[75]
95.Mr. McGarvie relied upon the history of treatment as reported by Dr. Rose in his report dated 18 March 2003.[76] Because of the complaint of neck pain in January 2000 and of back pain in March of 2000 and subsequently, Mr. McGarvie submitted that evidence, coinciding as it does with the commencement of his extremely heavy work of moving the bars, does enable me to conclude that the cervical spine along with the lumbar spine was involved in being aggravated by the work system.
96.Mr. McGravie argued that the principles in Lu did not apply in this case which he contends is distinguishable. This case he argued in not a case of either two different injuries or indeed two different incidents. The plaintiff does not seek to aggregate anything. There was no particular accident or no particular incident which can be said as the commencement of the injury. These were injuries of slow development during the nine or ten months of extremely heavy work carried out with this defendant and in those circumstances it is not a case of having to aggregate separate injuries. Mr. McGarvie submits these are injuries arising out of in effect the one incident, that is the employment commencing in November 1999 and concluding in August 2000. Mr. McGarvie submitted that although there were symptoms apparent both of the neck and of the lower back as early as March 2000 there is no particular day on which it can be said that the cervical spine was injured or a particular day on which the lumbar spine was injured.[77]
97.He referred me to Target Australia v. Moloney (2000) VSCA 124 which he argues stands for the proposition that two or more injuries arising from one incident may contribute to the one impairment. The plaintiff’s case is that here, in essence, there was one incident, albeit one over a protracted period, giving rise to impairment to one body function namely the spine as a whole. Put another way, one incident being several months of hard physical work brought to a head underlying previously asymptomatic symptoms at each level of the spine.
98.Mr. McGarvie relied upon evidence of the imaging of the plaintiff’s cervical spine carried out on 28 August 2000 the report of which is at PCB 71. He also relies on the CT scan carried out on 17 October 2001 the report of which is found at PCB 73. The conclusion of that report relating to the cervical spine was:
“There is some degenerative disc disease present, mainly at the C5-6 level with end plate osteophytes present on the right side indenting the theca anteriorly and causing mild foraminal narrowing on the right side at that level.”
99.An MRI performed on the Plaintiff on 31 May 2002 reported:[78]
Referring to C5-6 level “C5-6, there is a prominent central disc protrusion which is causing a central canal stenosis. It is compressing the anterior part of the cord centrally and to the right. However, there is no abnormal signal intensity within the cord to suggest myelomalacia. The exit foramina and canals at this level are unremarkable.”
And referring to C6-7 level:
“there is a broad-based disc protrusion which is touching the anterior part of the cord causing a central canal stenosis. It is causing minimal compression to the anterior part of the cord generally but again there is no evidence of myelomalacia within the cord. There is however narrowing to the exit canal on the left side affecting the C7 nerve root.”
[75] PCB 25
[76] PCB 28.
[77] Transcript page 149
[78] PCB 75
100. The development of the various levels of imaging Mr. McGarvie argued showed that the plaintiff’s complaints relating to his neck eventually showed disc prolapse in the cervical spine which was the cause of the problem which was eventually treated operatively. Unfortunately despite Dr. Rose’s best efforts at treating the plaintiff conservatively the real problem was not diagnosed until the plaintiff was referred to Mr. Moran who ordered the MRI in May 2002.
101. Mr. Moore had submitted that Mr. Moran, according to his report, did not play much part in assessing the plaintiff for his neck problems. Mr. McGarvie on the other
hand relied upon a passage in Mr. Moran’s report worth repeating:
"In addition he indicated that he experienced neck and left arm pain and numbness in the left arm, these symptoms developing at about the same time as his back injury"[79].
[79] PCB 45
102. The significance argues Mr. McGarvie is that the plaintiff had complained of the neck pain and symptoms developing at about the same time as the back injury. That he says is consistent with the way in which the plaintiff puts his case.
| 103. |
[80] PCB 45-46 |
104. Mr. McGarvie submits this is clear opinion that the plaintiff suffers from nerve root irritation at L5 level not picked up by MRI but demonstrated by evidence of muscle spasm.
Capacity to Work
105. As I indicated earlier, there is no dispute that the plaintiff is unfit to resume his former work as a welder and metal fabricator.
106. The plaintiff relies upon various medical opinions that suggest the plaintiff is totally incapacitated for work.
107. On 16 July 2001 the late Mr. J.H Pryor said that the plaintiff was totally incapacitated for work at that time[81].
[81] PCB 39-43 at paragraph 7.
108. On 11 July 2006 Mr. Peter Moran opined that the plaintiff was totally incapacitated for work as a structural steel fabricator.[82]
[82] PCB 50 at paragraph 2.
109. On 28 July 2008 Dr. Robyn Horsley opined that the prognosis for a return to work was poor. She regarded the plaintiff’s “transferrable skills” as low and his 8 years out of the workforce had resulted in significant de-conditioning imposing a barrier to return to work. She thought at best that the plaintiff’s capacity to work was likely to be part time in the vicinity of 15 to 20 hours per week.[83]
[83] PCB 69.
110. Other doctors agreed the plaintiff cannot return to pre accident employment and without retraining will find it hard to get work in lighter duties.[84]
[84] See Mr. Kossman PCB 84. Mr. Clive Jones PCB 67D. Mr. John Bourke PCB 77
111. The defendants’ evidence is that at the present time were the plaintiff to be still employed by the first defendant his earnings would be $29,684 gross per annum.
112. The plaintiff’s figure is slightly higher at $30,147 gross per annum. 60% of this figure is $18,088.20.
113. The plaintiff’s case is that if I accept the evidence of Dr. Horsley that the plaintiff at best is only capable of work on a part time basis of 15 to 20 hours per week then even using figures submitted by the defendants his loss of income will exceed 40% of his pre-injury earnings.
114. The defendants contend that the evidence is that the plaintiff is fit for light work and that he could perform work as a bicycle repairer at an expected gross annual salary of $35,750 or as an optical mechanic at an expected gross annual salary of $34,060 or as a tool maker at an expected gross annual salary of $38,636. Therefore, the defendant’s argue, there is no basis for a claim based on loss of earning capacity. The defendants in this regard rely upon the evidence from Konekt at DCB 81 and Mr. John Bourke Orthopaedic Surgeon at DCB 78.
115. The plaintiff argues that the he is not able to perform the occupations posited by Konekt. Further, the plaintiff questions the value of the Konekt report given the qualification self imposed upon the use of the figures contained in it by Konekt itself at DCB 97, namely, that the figures cannot be used in determining a particular wage rate or as an indication of what a person will earn in a particular job.
Findings
116. I accept the plaintiff’s evidence that when he commenced employment with the first defendant on or about 19 November 1999 he was fully fit and was not then suffering from pain, disability or limitation of movement in his spine at any level.
117. I accept that he was injured in a motor vehicle collision in 1985 or thereabouts and at that time suffered a soft tissue injury to his neck area and as a result he was off work for a period exceeding twelve months. There is no evidence that the plaintiff then suffered from other than a soft tissue injury. I accept the plaintiff made a full recovery from that soft tissue injury as set out in the report of Dr. T.J. Russell.[85]
118. I accept that over a number of years the plaintiff has periodically, but for short
[85] DCB 47
periods of time, suffered from episodes of back and neck pain for which he has received conservative treatment when required. None of these episodes resulted in the plaintiff suffering an injury which prevented him from working for other than a very short period and on an intermittent basis.
119. I also accept that the work engaged in by the plaintiff whilst employed by the first defendant involved him in a large amount of repeated heavy lifting, bending and twisting. The plaintiff’s evidence was that he began to suffer from neck pain and paraesthesia in December 1999 within about 4 to 6 weeks of commencing his employment and in January of 2000 within about 10 weeks of commencing his employment with the first defendant. That evidence is confirmed by the reports and notes of Dr. Rose. The plaintiff was treated conservatively and continued working notwithstanding.
120. I accept that an incident occurred on or about 31 March 2000 when the plaintiff turned to pick up chalk off a trestle which brought on back pain for which the plaintiff was again treated conservatively. The plaintiff again returned to work and worked continuously through to around 20 August 2000 at which time he was unable to continue working.
121. I accept that the plaintiff had investigations performed to his spine in the form of X-Ray on 28 August 2000 which did not image disc prolapse at C5/6 and C6/7 levels but the plaintiff was nonetheless complaining of paraesthesia into the left arm. Similarly, CT imaging on 17 October 2001 did not image disc prolapse in the cervical spine. However the plaintiff continued to complain.
122. I accept that when the plaintiff conferred with Mr. Peter Moran on 13 May 2002 he told him that he experienced neck and left arm pain and numbness in the left arm, these symptoms developing at about the same time as his back injury" and that by “back injury” Mr. Moran was referring to the incident that occurred on 31 March 2000.[86]
[86] PCB 45
123. I accept that Mr. Moran referred the plaintiff for an MRI and that this was not performed until 31 May 2002. That MRI imaging confirmed the presence of cervical disc prolapse at C5/6 and C6/7 levels and degeneration and desiccation in the lumbar spine at L2/3 and L4/4 levels. I accept the evidence of Mr. Moran in his report where he finds that there is a likelihood the plaintiff suffered nerve root compression at L5/S1 level.
124. In my judgment the probability is that the plaintiff injured his spine at the cervical and lumbar levels during the course of his work with the first defendant and whilst carrying out very heavy work. The strong probability is that he did so within the first two months of his employment and then his condition worsened as his on going heavy work continued. Had he been investigated with more sophisticated imaging techniques such as MRI before 31 May 2002 in my judgment having regard to the evidence I have heard that the probability is the cervical disc prolapses would have been detected earlier. That is especially so when one considers that, work aside, there is no evidence of any other incident causing the cervical prolapses from the time the plaintiff commenced employment until the time of the MRI.
125. I accept the plaintiff’s case that as a result of his employment with the first defendant the plaintiff has suffered a serious injury to the whole of his spine resulting in permanent impairment or loss of body function to the whole of the spine. That injury was suffered during the whole course of employment by the plaintiff with the first defendant, a period of about 9 or 10 months. In my judgment the nature of the injury and the consequences of it for the plaintiff can be described as “very considerable” and more than “significant” or “marked”.
126. If I am in error in combining the injury to each of the cervical spine and the lumbar spine then treating each separately in my judgment the plaintiff has suffered a serious injury to the cervical spine resulting in permanent impairment or loss of body function to the cervical spine. In my judgement the nature of the injury to the cervical spine and the consequences of it for the plaintiff can be described as “very considerable” and more than “significant” or “marked”.
127. Further, in my judgment the plaintiff has suffered a serious injury to the lumbar spine resulting in permanent impairment or loss of body function to the lumbar spine. In my judgement the nature of the injury to the lumbar spine and the consequences of it for the plaintiff can be described as “very considerable” and more than “significant” or “marked”.
128. Again, even if I am in error and the injury to the plaintiff’s cervical spine and lumbar spine had been suffered pre his employment by the first defendant (which I specifically do not find) and each was aggravated by his employment with the first defendant then, in my judgment, the aggravation of any pre-existing injury to the cervical spine and/or of the lumbar spine was of itself a serious injury. The aggravation in each instance resulting in permanent impairment or loss of body function to each of the cervical spine and the lumbar spine. The aggravation to each separate component of the spine can be described as “very considerable” and more than “significant” or “marked”.
129. I accept the plaintiff’s evidence referred to above where he speaks of his ongoing permanent disability. I also accept and act upon the affidavit of his former partner Anne Maree Fellows which was not challenged.[87]
[87] PCB 20-24
130. As to the application for leave to institute proceedings to claim loss of earning capacity, I accept and act on the evidence of Dr. Horsley that the reality is that the plaintiff is only fit for light work and probably only on a part time basis. I accept that the plaintiff has established on the balance of probabilities that he suffers loss of at least 40% of his pre injury earning capacity.
Conclusion
131. The plaintiff’s application to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant is granted.
132. After discussion with counsel I will pronounce formal orders and will hear the parties on the question of costs.
[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.
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