Svajcer v Woolworths Limited
[2014] VCC 159
•27 February 2014
| 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-07-03521
| MARK SVAJCER | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 February 2014 | |
DATE OF JUDGMENT: | 27 February 2014 | |
CASE MAY BE CITED AS: | Svajcer v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 159 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Maurice Blackburn Lawyers |
| For the Defendant | Mr S Smith | Spark Helmore Lawyers |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages with respect to the pain and suffering and economic loss consequences to him of an injury to his lumbar spine suffered in the course of his employment with the defendant.
2 In the application, the plaintiff relies upon two affidavits, dated 7 May 2007 and 13 February 2014 respectively, together with a number of medical reports and medical records which he has tendered. In addition, the plaintiff gave viva voce evidence and was cross-examined.
3 The defendant relies upon concessions obtained from the plaintiff in the course of cross-examination, together with a number of medical reports which it has tendered.
4 There is no issue that the plaintiff suffered an injury to his lumbar spine in the course of his employment with the defendant, that he underwent surgery involving an L5-S1 instrumental decompression and fusion at the hands of Mr Michael Johnson on 17 November 2004 and that he has undertaken no employment for a period in the vicinity of ten years.
5 Having regard to the history referred to above, I find it convenient at this juncture to consider the evidence as to the extent of the plaintiff’s loss of earning capacity as, if I am satisfied that the plaintiff has permanently lost the capacity to earn income such that he is entitled to commence a proceeding claiming damages in respect of that loss, it follows that the plaintiff is entitled to the leave which he seeks with respect to the institution of a claim for damages for the pain and suffering consequences of his injury.
6 In his first affidavit, the plaintiff said that he had been unable to return to work following his operation and that he continued to suffer from significant lower back pain and pain and weakness into his left leg. He described these symptoms as being increased by sitting for long periods of time or standing for long periods, and by bending, twisting or lifting. He deposed to the fact that he had never undertaken office or clerical work and that after leaving school, having failed to complete his Year 9, he generally undertook work of an unskilled physical nature.
7 In his second affidavit, the plaintiff said that:
· He was imprisoned between August 2008 and July 2012, having been convicted of a number of offences involving a sexual relationship with a fifteen-year-old female.
· He continues to suffer from ongoing back pain, the level of which fluctuates and the symptoms of which extend into his left leg.
· He continued to take prescription medication as provided by his general practitioner, Dr Eastaugh, which involved Panadol Osteo, Tramadol and Panadeine Forte, and that he employed medication to help him sleep and for his anxiety and depression.
· He continued to be incapacitated for all forms of employment.
The Plaintiff’s reliability
8 The defendant raises issues as to the plaintiff’s reliability as a witness on the basis that:
(i) In the course of medical examinations undertaken by Dr Rose, a psychiatrist, on 6 September 2004, and Dr Honey, psychiatrist, on 26 April 2006, the plaintiff made no mention of presenting with a pre-accident psychiatric history of any significance, which is clearly not the case;[1]
[1]See the admissions made by the plaintiff at Transcript 6-13
(ii) The plaintiff gave viva voce evidence that his pre-accident psychiatric history was appropriately described as one involving “minor depression” which was disingenuous;
(iii) The plaintiff had misled the defendant’s solicitors in seeking to obtain a refund of travelling expenses, to which he was not entitled, associated with his need to attend a medico-legal appointment.[2]
[2]See the plaintiff’s evidence at Transcript 15-18
(iv) In a memorandum authored on behalf of the Sentence Managing Unit of Corrections Victoria, a statement was made that the Unit did not support “a LKK placement” for the plaintiff on the basis that the plaintiff “had attempted to fabricate information to manipulate his transfer to LKK”.
(v) That the plaintiff’s behaviour as set out above must be assessed in the context that the plaintiff has a significant history involving multiple prior convictions for offences of dishonesty, commencing in 1996 and continuing through to 2000.[3]
[3]See the evidence at Transcript 13-15
9 Whilst:
(i) The force of the defendant’s position as to the selective nature of the histories provided to Dr Rowe and Dr Honey is ameliorated to some extent by reason of the history provided by the plaintiff to Mr Shan, a psychiatrist, who examined him on behalf of the defendant in August 2007, in which the plaintiff described a pre-existing psychiatric history sufficiently serious to require a period of inpatient treatment;
(vi) I do not ignore the content of the memorandum from the Sentencing Management Unit, although I find the statement to be of minimal weight upon the issue of the plaintiff’s reliability, having regard to the vagueness of the comment made therein;
I nevertheless found the plaintiff’s viva voce evidence that he considered his pre-existing psychiatric condition to have been mild, to be disingenuous, and I largely accept the position put on behalf of the defendant that the issues to which I have referred in paragraph of these reasons do raise matters which call into question the plaintiff’s credibility and reliability.
10 In the circumstances I am satisfied that the approach which I should adopt in considering the plaintiff’s evidence as to the extent of his incapacity for remunerative employment is to carefully scrutinise that evidence and to adopt a reluctance to rely upon such evidence if it is inconsistent with the medical evidence and other evidence which I find to be persuasive as to the nature of the plaintiff’s ongoing symptoms and his capacity for employment.
11 Whilst it is clear that in certain circumstances medical practitioners are wholly dependent upon the accuracy and reliability of the history provided to them by their presenting patient, I am satisfied that in the present instance, the starting point for my consideration as to whether I find the opinion expressed by any medical practitioner to be persuasive, should commence with:
(i) The fact that, other than upon the issues identified by the defendant to which I have previously referred above, I did not find the plaintiff’s viva voce evidence to be inconsistent or unreliable. Rather, the plaintiff readily made admissions to his detriment. See, for example, his evidence at Transcript 16, Line 27 to Transcript 17, Line 3; Transcript 13, Line 26 to Transcript 15, Line 28. Nor did I find any evidence given by the plaintiff to be such that it undermined the basis of the opinions expressed by the medical experts who have opined in this matter;
(ii) The undisputed fact that the plaintiff suffered an injury which:
§ was assessed in August 2004 by Mr Roy Carey, an orthopaedic surgeon of considerable experience as involving signs of nerve root irritation and as justifying surgery in the form of a fusion;
§ Was treated by the performance of an L5-S1 instrumental decompression and fusion undertaken by Mr Michael Johnson in November 2004;
§ Involves a long history of repeated complaints by the plaintiff of significant post-operative symptoms similar to those which were present pre operatively;
§ Is totally consistent, given the chronic nature of the plaintiff’s condition (should the plaintiff’s complaints be justified), with being responsible for the physical changes detected by Dr James Rowe, a specialist occupational physician, who examined the plaintiff on 29 August 2012 on behalf of the defendant. On that occasion, Dr Rowe reported that the plaintiff presented with diminished left knee and ankle jerks; wasting of the left calf when compared to the right; weakness of movement of the left foot and ankle, and a change in sensation about the lateral toes of the left foot, all of which Dr Rowe opined were consistent with an S1 nerve root distribution and irritation, and in respect of which Dr Rowe commented:
“He is not in any way voluntarily exaggerating his symptoms or signs, there is no involuntary exaggeration. The signs in the left leg are not able to be exaggerated or contrived.”
12 Each of the matters to which I have referred above support the position that the plaintiff is a reliable historian upon the issue as to the extent of the organic back and leg pain from which he suffers.
13 Further, given:
(i) The plaintiff’s continuing history of presenting with symptoms of back pain and leg pain following his surgery, which were accepted by those managing him as justifying his post-operative admission to hospital on:
§ three occasions during 2006
§ one occasion in 2007
§ and one occasion in 2008;
(ii) The absence of any suggestion by the various doctors who have both treated the plaintiff or examined him for the purpose of this proceeding, that the plaintiff presents as an unreliable historian in describing the level of the symptoms or his associated incapacity;[4]
[4]Whilst it is put on behalf of the defendant that Mr Kevin Fraser, in the course of his report, calls into question the plaintiff’s reliability, the comment by Mr Fraser as to the plaintiff’s presentation:
“His clinical course is not inconsistent with such an injury, but the overreaction on physical examination suggests that he may be exaggerating his symptoms and signs somewhat”;
in my opinion, involves a statement, the persuasive force of which is questionable, having regard to the words employed by Mr Fraser and becomes totally unpersuasive when considered in the context of the largely unanimous medical opinion which does not question the reliability of the plaintiff’s presentation expresses or a contrary view to that of Mr Fraser.
(iii) The longstanding and continued use by the plaintiff of significant amounts of prescribed medication to manage his pain levels;
(iv) The absence of any surveillance evidence produced by the defendant which calls into question the extent of the plaintiff’s incapacity in the context of the admission elicited on behalf of the plaintiff from the defendant as to the existence of such surveillance;
(iv) The matters to which I have referred in paragraphs 15 to 17 of these reasons;
I am satisfied that the opinions expressed by the various medical experts who have opined as to the plaintiff’s capacity for employment are based upon a sound foundation.
The medical evidence as to the Plaintiff’s capacity for employment
14 In a series of reports, Dr Ken Eastaugh, the plaintiff’s treating general practitioner, describes the plaintiff’s history following his presentation to him in August 2002 and September 2003 with work-related back pain.
15 It is to be noted that in September 2002, the plaintiff presented to Dr Eastaugh with pain shooting into his left leg, that he was certified as being unfit for work and that he subsequently returned to work in February 2003.
16 Thereafter, the plaintiff re-presented to Dr Eastaugh in September 2003 with an aggravation of that pain.
17 In my opinion, the consistency in the plaintiff’s presentation to Dr Eastaugh in September 2002 and September 2003, when considered in the context of the plaintiff’s return to unrestricted work in the meantime, is a further factor which speaks positively to the plaintiff’s credit and, accordingly, as to his reliability an historian with respect to symptoms.
18 In his report dated 25 February 2013, Dr Eastaugh:
· describes the history of the plaintiff’s symptoms between August 2002 and April 2008:
· opines that as at 2006, the plaintiff was unfit for any work and that, as at February 2013, this incapacity persisted.
19 In a further report dated January 2014, Dr Eastaugh opined that the plaintiff remained incapacitated for any form of return to work, that his condition was stable and that he was unable to see the prospect of any improvement in the foreseeable future.
20 In July 2006, Mr Robert Marshall, a consulting surgeon, examined the plaintiff on behalf of the defendant, at which time he opined that the plaintiff’s employment must be regarded as a continuing contributing factor to his presenting symptoms, commenting that the plaintiff is “certainly incapacitated at present and, in my opinion, has no current work capacity”. At the same time however, Mr Marshall recognised the likelihood of the plaintiff’s symptoms improving “but only if he loses a great deal of weight and exercises regularly”.
21 In a report dated 4 August 2006, Mr Michael Johnson the plaintiff’s treating surgeon, opined:
· that the plaintiff’s post-operative symptoms were not greatly different to those with which the plaintiff originally presented on 27 November 2003;
· that the result of the plaintiff’s lumbosacral decompression and fusion, although technically satisfactory, “has been of only limited benefit”;
· that the only option for the plaintiff was to be treated conservatively with analgesics and supportive therapies;
· that the plaintiff had undergone a rehabilitation program at the Victorian Rehabilitation Centre and that he considered that further treatment of this type would be of no benefit.
22 In his report dated 23 July 2008, Mr Johnson expressed a similar opinion, opining that the plaintiff’s condition was stabilised and that Dr Clayton Thomas, the plaintiff’s treating rehabilitation specialist, was in a better position to opine as to the plaintiff’s level of employability.
23 In a series of medical reports, Dr Harry Widjaja, a consultant in rehabilitation medicine, documented his treatment of the plaintiff between November 2004 and December 2007, opining:
“The diagnosis was that he had chronic back pain requiring spinal fusion. Of recent he had had a further exacerbation. He reported to me that the investigations appeared to show degenerative changes above the surgery. … As at my last contact with him, I do not believe that he could return to work to his original duties. At that point in time I do not believe he could return to any form of duties. This may change if the pain settles.”
24 In May 2008, Dr Thomas opined that whilst the plaintiff at that stage had no work capacity, he expected that the plaintiff would develop a limited work capacity in the future but that such capacity would be limited to a light forms of work.
25 In a report dated 30 October 2013, Dr Thomas retracted his earlier opinion and opined that, in reality, the plaintiff “has no work capacity and this will be indefinite”, commenting:
“I think he does not have a work capacity and I think his work incapacity is an indefinite situation here. He has basic secondary education to Year 9 only. He has worked in security. I do not think the nature of his residual work capacity is consistent with mainstream employment and overall I think he does not have a work capacity and this will be indefinite. …
The prognosis is poor with respect to return to work. The prognosis from the lumbar spine point of view also remains poor insomuch as he has persistent symptoms with associated disability. There is a small chance that the level above will become symptomatic in due course, being the L4-5 level. There is no suggestion on symptoms complaints at examination that this is occurring at the present stage.”
26 In a medical report dated 2 December 2013, Professor Richard Bittar, a neurosurgeon, opined as follows:
“Taking into account his back injury, it is my opinion that he has no realistic capacity for work in a reliable, permanent and consistent basis.”
27 In asserting that the plaintiff has a current work capacity, the defendant relies upon the opinions expressed by Dr James Rowe and Mr Kevin Fraser.
28 In his report of August 2012, Dr Rowe opines, as to the plaintiff’s work capacity, in the following terms:
“He might be able to work part time, say 4 hours a day x four to five days a week. He has had these restrictions now for a number of years. … He might be able to work as a traffic controller, stop/go person or work in a warehouse where heavy lifting is not required. He may be able to drive a forklift part time but once again not full time.”
29 Having regard to the prefacing by Dr Rowe of each of his statements with the words “may” or “might” when commenting upon the plaintiff’s retained capacity for work, I do not interpret Dr Rowe as expressing a conclusive or persuasive opinion that the plaintiff possesses the actual capacity to undertake the tasks referred to by Dr Rowe.
30 For these reasons, I do not accept the position put by the defendant that Dr Rowe opines in any persuasive sense that the plaintiff possesses any true capacity for employment.
31 As I have commented earlier, none of the medical experts referred to above call into question the reliability of the plaintiff’s history or his presentation. For the reasons I have set out, I find the basis on which these experts have formulated their opinions to be soundly based, notwithstanding the issues raised by the defendant as to the plaintiff’s reliability or credibility.
32 I accept the submission on behalf of the defendant that the opinion of Mr Fraser in his report of 25 September 2103 expressed in the following terms:
“I do not consider he will ever be able to resume his pre-injury duties as a storeman or any other form of strenuous manual work.
He is, however, fit for alternative employment, not requiring bending or heavy lifting (greater than 5 kilograms) or any prolonged standing or walking. He does have the capacity to participate in occupational retraining if required”
is evidence which unequivocally asserts that the plaintiff has a retained capacity for employment.
33 I find, however, the opinion expressed by Mr Fraser not to be persuasive having regard to the body of medical evidence to the contrary, the major source of that evidence coming from the plaintiff’s treating doctors who have had the opportunity to consider the plaintiff’s presentation over a considerable period of time when expressing their opinion.
34 The defendant relies upon a report authored by Ms Leonie Schneider in a dated 10 September 2012 as expressing a reliable opinion that the plaintiff has a true capacity for retained employment. I note that in expressing that opinion, Ms Schneider relied upon largely outdated medical evidence, the most recent being a medical certificate dated 10 July 2011 which imposed the following caveat as to the duties which the plaintiff was fit to perform:
· No prolonged standing/sitting
· No lifting more than 10 kilograms
· No repeated bending/squatting
· Varied tasks
· Short rest breaks as required
· No carrying greater than 5 kilograms;
35 I find the opinion by Ms Schneider to be unpersuasive in that she asserts:
(i) On the basis of the medical certificate to which I have referred, that the plaintiff had a capacity to perform all of the occupations listed on page 89, paragraph 1 of her report (which I am of the opinion is, on first impression, most unlikely), without justifying her position in any way by undertaking an analysis of the activities involved in those occupations;
(ii) That the plaintiff had a capacity to complete a Certificate III or IV in Business Administration or a Certificate IV in Business Studies, notwithstanding his limited education and his work history;
In my opinion Ms Schneider’s report is rendered additionally unpersuasive given:
· The up-to-date medical evidence which she did not see as to the plaintiff’s capacity for work from the plaintiff’s treating general practitioner and an expert in the field, Dr Thomas;
· The position put convincingly by Senior Counsel for the plaintiff that the plaintiff’s history of prior convictions for dishonesty most probably had the effect of precluding him from employment in each of the administrative type occupations identified by Ms Schneider in any event.
36 Contrary to the view I have expressed as to Ms Schneider’s evidence, I am satisfied that Katrine Green, a psychologist and holder of a Graduate Diploma in Applied Psychiatry (Organisational) is well qualified to express the opinion set out in her report of 22 January 2014, that the plaintiff was not a suitable candidate for retraining, and I find that opinion persuasive, having regard to its consistency with the opinion expressed by Dr Clayton Thomas.
37 For the reasons set out above, notwithstanding the issues which arise as to the plaintiff’s reliability, after having applied cautious scrutiny:
· to the evidence relied upon by the plaintiff; and
· the consistency between the plaintiff’s evidence, his presentation to doctors over the long period since he suffered his injury and the recent objective findings reported by Mr Rowe which unequivocally support the presence of ongoing sciatic symptoms compromising the function of the plaintiff’s left leg;
I am satisfied not only as to the validity of the plaintiff’s reported symptoms and but also that the injury to his lumbar spine has resulted in his losing the capacity to engage in any form of suitable employment having regard to the chronicity of the plaintiff’s symptoms.
38 For these reasons, I am satisfied that the plaintiff has established that he has suffered economic loss consequences which meet the definition of “serious” within the provisions of the Accident Compensation Act 1985 and, accordingly, that the plaintiff is entitled to the leave which he seeks in this application.
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