Swayn v Geschke Pty Ltd (ABN 27 518 578 611)
[2021] VCC 618
•20 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05573
| JUSTIN DANIEL SWAYN | Plaintiff |
| v | |
| GESCHKE PTY LTD (ABN 27 518 578 611) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 20 May 2021 | |
CASE MAY BE CITED AS: | Swayn v Geschke Pty Ltd (ABN 27 518 578 611) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 618 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Application successful – leave granted to the plaintiff to commence a proceeding for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms D Manova | Hall & Wilcox |
HIS HONOUR:
1The plaintiff, Mr Justin Swayn, is now 31 years of age. He left school at age 16 and commenced an apprenticeship as a plumber. He commenced working for the defendant in February 2009 as a plumber (or possibly while still an apprentice). The defendant’s business was mostly drainage and civil plumbing works. The plaintiff was performing those duties on or about 2 September 2010, when he developed pain in his back and right leg.[1]
[1]Affidavit of plaintiff sworn 1 September 2016 at paragraph 12, Plaintiff’s Court Book (“PCB”) 13
2Prior to commencing work with the defendant, the plaintiff had been a fit, healthy and active young man. His interests were largely sporting, in particular Australian Rules Football. He played football at a reasonably high level, including in the Victorian Amateur Football Association with St Bede’s. During 2007, St Bede’s won the B Grade premiership and the plaintiff was a part of that team. That team has also become better known in recent years as the first team that the current Western Bulldogs coach, Mr Luke Beveridge, coached as part of his pathway to the Australian Football League (“AFL”). Indeed, in this application, the plaintiff relies upon an affidavit of Mr Beveridge sworn 19 January 2018[2] as testimony of his prowess as a junior footballer.
[2]PCB 26
3In any event, subsequent to suffering injury with the defendant, the plaintiff has had fluctuating back and right leg pain. He claims that the symptoms restrict him in a range of domestic, social, sporting and recreational activities.
4This is a “serious injury” application in respect to a workplace injury. The principles in respect to such an application are well known and are not in dispute in this application. The plaintiff alleges that he has suffered a “permanent serious impairment or loss of a body function”, namely an injury to the lumbar spine.
5The plaintiff in this application was represented by Mr J J Fitzpatrick of counsel. The defendant was represented by Ms D Manova of counsel. The main issues to be decided in the application are as articulated by Ms Manova as follows:
· does the plaintiff have ongoing impairment and impairment consequences which meet the test of “very considerable” (this was described as the “range” issue)?
· the credit of the plaintiff; and
· the evidence about the plaintiff’s football career and the loss of it.[3]
[3] Transcript (“T”) 3, Lines (“L”) 21-26
Was Mr Swayn a credible witness?
6As has been said many times before, in “serious injury” applications the credit of the plaintiff will often be critically important.[4] In this case, the defendant submitted that there are “some credit issues”, namely that the plaintiff has attempted to attribute certain things to the injury that are not in fact consequences that should be fairly attributed to the injury. That submission, as I understood it, was particularly directed towards the issue of the plaintiff’s football career and also his employment aspirations and prospects before and after injury.
[4]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
7The plaintiff impressed me as a frank and honest witness. He gave answers in an appropriate manner and on my assessment, did not seek to embellish or exaggerate. I consider that I am able to rely on him. My assessment is that he is a credible witness and his credit was not impugned by cross-examination or other evidence.
8The other evidence in particular comprised the video surveillance[5] obtained of the plaintiff on several dates in February 2018. The video surveillance depicted the plaintiff driving a work ute and engaged in fairly innocuous activities at work. There was nothing in the video surveillance that is inconsistent with the plaintiff’s affidavit evidence.
[5]Exhibit D1
9The defendant also relies on two photographs taken in approximately March 2018 and posted by the plaintiff’s then employer to Facebook.[6] The first photograph shows him reaching into a pool of water. He said he thought that was to try and detect a burst pipe.[7] I accept his evidence that it is not demonstrative of his usual day-to-day activity. The second photograph depicted him standing and supervising a co-worker using a circular saw. Again, there is nothing inconsistent with his evidence of an ongoing largely supervisory job with what is shown in that photograph.
[6] Defendant’s Supplementary Court Book (“DSCB”) 6 and 7
[7] T18, L3-4
The issue of football
10As mentioned, the plaintiff played football at a young age at a reasonably high level. Mr Beveridge says in his affidavit that had the plaintiff continued to play football, “it is quite possible that he would have had a future with the AFL and I certainly saw that in him”.[8]
[8]PCB 27
11In his first affidavit, the plaintiff sets out how he had played football up until the time of injury and how, apart from one training session post injury, he had given up football. In his second affidavit,[9] he said:
“... I wish to add that the last time I played football for St Bede’s was either in 2008 or 2009. I was not playing football for St Bede’s when I started working for the Defendant. Prior to commencing my work for the Defendant I was approached by the AFL to join on a professional level. I wanted to be a plumber and decided to focus on my job instead.”[10]
[9]PCB 16
[10] PCB 16
12The plaintiff expanded upon football in his most recent affidavit sworn 7 May 2020.[11] In that affidavit, he said:
“Whilst I was doing my apprenticeship I had to concentrate on that and footy took a back seat momentarily. My clear intention was to return to footy and give it a go. I had played at a high level and I believe that I could have played in the AFL. My coaches thought I had realistic potential to advance my football. I remain devastated at the fact that this opportunity is forever lost by reason of my injury. My initial intention was for the plumbing qualification to be a fall-back career option which is why I temporarily put footy on hold. My plan had always been to give football a serious go, but this aspiration was cut short by my back injury. Due to my ongoing chronic back pain and leg symptoms (which I understand a Medical Panel determined to be L5 radicular symptoms) would prevent me from returning to my football life.”[12]
[11]PCB 20
[12] PCB 22
13The oral evidence of the plaintiff confirmed that he may have played one game of football in 2009 but had otherwise ceased playing football so that he could concentrate on his apprenticeship. He said, about football, in response to a questions from me:
Q:“So does concentrate on football mean you go back and play in the amateurs, or the northern districts, or something like that and see how it went, or - - -?
A: Yeah, yep.
Q:All right. So if it went blindingly well, maybe you get onto an AFL club as a rookie or something. If it doesn’t go so well, you just play a decent standard of suburban footy. Is that really what you’re---?
A: Yeah, yeah.”[13]
[13]T32, L17-23
14The defendant submitted that, effectively, the plaintiff had overstated his football ambitions but for injury. I accept that the evidence does not enable it to be said conclusively that this young man would have gone on to be a professional AFL footballer; however, I accept his affidavit and oral evidence that he was a very good junior footballer. He had put his football career on hold to obtain a trade but I accept his evidence that at some point he intended to return to football.[14] Whether or not that would have led to a professional career is impossible to say. But equally, it can be said that he now has a back injury which prevents him from playing football, and it was not put to him that he could now play football. Accordingly, I am prepared to accept the loss of football as a pain and suffering consequence to him, bearing in mind that he is still a relatively young man of only 31 years of age.
[14] T52, L20
The balance of the evidence – does the compensable injury meet the test of “very considerable”?
15The real issue in this application is a narrow but important issue, namely whether the plaintiff’s back injury meets the statutory test of “very considerable”.
16The starting point, in my view, is the plaintiff’s age. As mentioned, he is still only 31 years of age and the injury was suffered over 10 years ago. The fact that he has had ongoing fluctuating pain for so long and will, on the evidence, continue to have symptoms through for the balance of his life is, in my view, a highly relevant factor.
17Next, dealing with the medical evidence, as mentioned, the defendant accepts that the plaintiff suffered injury and has ongoing symptoms. That sensible concession enables the medical material to be dealt with very briefly.
18It is also perhaps convenient to begin with an analysis of some of the medical evidence tendered on behalf of the defendant. In particular, Professor Gavin Davis, neurosurgeon, who examined the plaintiff on 19 April 2021 at the request of the defendant, and produced a report of that date.[15] Professor Davis was provided with considerable background material. Having reviewed all of that material, Professor Davis provided a diagnosis as follows:
“The current diagnosis is lumbar spondylosis with mechanical low back pain with mild residual chronic pain. In addition, it is noted that the patient has an incidental right L5 nerve sheath tumour unrelated to the injury.”[16]
[15]Defendant’s Court Book (“DCB”) 40
[16] DCB 46
19He said further:
“… I consider that the said incident is a cause of the worker’s current condition. As described above, it is evident that the patient has a degree of mild residual chronic pain subsequent to the original mechanical injury.”[17]
[17]DCB 46
20Professor Davis further recommended that the plaintiff be referred for a multidisciplinary pain management and rehabilitation program with a view to weaning him off the requirement for long-term anti-inflammatory medication.[18]
[18]DCB 47
21I was taken in submissions to the report of Dr David Barton, consultant occupational physician, dated 22 May 2012, obtained at the request of the Allianz Australian Worker’s Compensation (Victoria) Ltd.[19] Dr Barton ultimately opined that the plaintiff had developed “a mild mechanical lower back problem that has persisted for no clear reason”. He stated that the plaintiff had leg symptoms that, in his words, “seem somewhat unusual particularly those around the right knee and right ankle. He certainly does not present with a typical or classic history of sciatica.”[20]
[19]DCB 15
[20] DCB 17
22The defendant submitted that Dr Barton supports a conclusion that the plaintiff does not have a radiculopathy that would explain his right leg symptoms. I accept that submission; however, that does not mean that the plaintiff does not have right leg symptoms even if, in the words of Dr Barton, the distribution of those symptoms is “somewhat unusual”.
23I will not refer to the other reports tendered by the defendant other than to say I have read them and taken them into account, save to specifically mention the reports from Dr Anthony Menz, orthopaedic surgeon. Dr Menz stated that the plaintiff had lumbar spondylosis dating back to 2020 when he first injured his back. He said that he considered the small nerve tumour an incidental finding. Relevantly, he said:
“I believe his ongoing pain is related to the fact he has significant degeneration in his lumbar spine and not specifically the injury of September 2010.”[21]
[21]DCB 33
24I reject Dr Menz’s opinion that the plaintiff’s symptoms are currently caused by underlying degeneration unrelated to the work injury. That opinion is inconsistent with the balance of medical opinion and also inconsistent with the sensible concession made by the defendant, namely that the plaintiff does have ongoing work-related symptoms.
25Turning briefly to the medico-legal material relied upon by the plaintiff, Professor Richard Bittar, neurosurgeon, has seen the plaintiff in his capacity as a treating practitioner. He first saw the plaintiff on 14 September 2011.[22] In a report of 21 July 2017, Professor Bittar opined that the plaintiff had suffered the “aggravation of lumbar spondylosis with L5 radicular pain” and that “his employment was mostly likely a significant contributing factor”.[23]
[22]PCB 81
[23]PCB 82
26Next, Professor Bittar provided a report dated 5 April 2020.[24] At that time, he noted that the plaintiff’s symptoms “were well controlled, although they did have a significant impact on all aspects of his life including his personal and recreational life as well as the ability of his work life”.[25] In respect to diagnosis, he repeated his earlier opinion of aggravation of lumbar spondylosis with L5 radicular pain and that employment was most likely a significant contributing factor. He said that –
“There is no evidence of him making a substantial recovery from the acute injury nine years ago and it is therefore my opinion that the acute injury nine years ago is the most likely cause of his ongoing pain and disability.”[26]
[24]PCB 88
[25]PCB 89
[26]PCB 91
27In that report, Professor Bittar also placed a number of restrictions in relation to employment or activities involving bending, lifting, twisting, stooping and the like, and that those restrictions were likely to persist into the foreseeable future.[27]
[27]PCB 92
28The plaintiff has been referred to Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist. Dr Sullivan first saw the plaintiff on 12 December 2011 at the referral of Professor Bittar. In a report dated 15 June 2017,[28] he sets out the presenting history and treatment including a right-sided L5 transforaminal epidural injection that the plaintiff had on 12 December 2011. As at 30 January 2012, Dr Sullivan notes that procedure had by then caused “60 per cent improvement at the time of review”. A discussion was then had about further treatment, including a radiofrequency of the L5 nerve root.
[28]PCB 96
29The plaintiff was seemingly lost from active treatment from approximately mid 2012 through until some time in November 2017, when he returned to Professor Bittar. There was then a referral back to Dr Sullivan. By August 2018, Dr Sullivan had again recommended a trial of neuromodulation and was working with the plaintiff with various medications.[29] Dr Sullivan recommended that the plaintiff undergo a right L5 dorsal root ganglion pulse radiofrequency treatment. Unfortunately, due to some dispute with funding, there was a delay in having that treatment. By 14 May 2019, Dr Sullivan was noting ongoing problematic intractable, function limiting, neuropathic lower limb pain consistent with an L5 distribution and introduced Endep.[30] Further reviews occurred with Dr Sullivan throughout 2019. Then, by report dated 11 May 2020,[31] Dr Sullivan set out the history to that point in time, including the need for ongoing treatment. Amongst other things, Dr Sullivan opined that a trial of spinal cord stimulation was warranted.[32]
[29]PCB 99
[30]PCB 103
[31]PCB 106
[32]PCB 109
30There were then further attendances with Dr Sullivan throughout 2020 culminating in the eventual acceptance of funding for the right L5 radiofrequency treatment which was ultimately performed by Dr Sullivan on 1 December 2020. In a report of 21 March 2021,[33] Dr Sullivan provides a review of the history and treatment provided by him. In that report, he states his opinion that the work the plaintiff is currently undertaking cannot be sustained indefinitely and that the plaintiff was better suited to sedentary work. He described the plaintiff’s prognosis as poor and that the work-related injury continues to plague him, and would continue to restrict his functional capacity and his capacity to engage in unrestricted employment in his profession as a plumber.[34]
[33]PCB 115
[34]PCB 118
31Finally, in respect to Dr Sullivan, he has provided a report dated 7 May 2021[35] effectively setting out his rationale as to why a pain management program is not appropriate for the plaintiff. I accept his explanation, for the reasons given, that pain management is not a reasonable form of treatment for the plaintiff.
[35]PCB 119
32Pausing there, the defendant submitted that the reports of Dr Sullivan should be taken with a grain of salt as he has become an advocate for his patient. To some extent I accept that he has become an advocate for his patient, but clearly that occurred in circumstances where his treatment recommendation was not accepted and there was a delay in approval of funding for the radiofrequency treatment that ultimately was approved and was performed on 1 December 2020. I consider that it was reasonable for Dr Sullivan to advocate on behalf of his patient to get necessary treatment. I do not accept that he has become an advocate for the purposes of this application. In any event, his reports are, broadly speaking, consistent with Professor Bittar and Professor Davis, which opinions I accept.
33The defendant cross-examined the plaintiff about the lack of treatment for a period of time between 2012 and 2017. Ultimately, I conclude that nothing turns on that gap in treatment. The plaintiff’s evidence was effectively that he was disillusioned at the unsuccessful nature of treatment provided to him up to 2012 and he tried to get on with things as best he could, until he accepted his situation and again pursued referrals to Professor Bittar and Dr Sullivan in 2017. This is not an application in which the defendant suggests that some other event is now contributing to the plaintiff’s symptoms. He ultimately ended up having the radiofrequency treatment that had first been mooted by Dr Sullivan in 2012. There is no suggestion of some unreasonable delay on his part. Of course, the seriousness of the plaintiff’s condition is to be determined as at today’s date and therefore I ultimately take into account that he has required ongoing treatment by way of radiofrequency, and that such treatment may ameliorate his symptoms but is not designed to cure them.
34At the risk of repetition, the plaintiff is a young man with an accepted injury. He has required an epidural injection and a radiofrequency treatment. He has required physiotherapy. He has required considerable use of prescription medication and currently takes Panadeine Forte from time to time, as well as over-the-counter painkillers. I accept his evidence about having to modify his employment. I accept his evidence about difficulties sitting to study to obtain his plumber’s licence.[36] The material tends to the conclusion that this is a young man for whom sport was a very important part of his life and is now significantly restricted. Those consequences, together with the ongoing pain, are such that the plaintiff clearly has a “very considerable” pain and suffering consequence.
[36] T76, L11-12
35Accordingly, leave shall be granted to the plaintiff to commence a common law proceeding for pain and suffering damages.
36I shall hear from the parties as to the question of costs.
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