Taylor v Victorian WorkCover Authority
[2018] VCC 876
•21 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04762
| PETER CHARLES TAYLOR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 May 2018 | |
DATE OF JUDGMENT: | 21 June 2018 | |
CASE MAY BE CITED AS: | Taylor v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 876 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – damages – injury to the neck and right shoulder – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission and O’Dea v Dennis [1998] 1 VR 702; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Leave granted to the plaintiff to bring proceedings for pain and suffering damages in respect of his injury to the neck and right shoulder arising out of or in the course of his employment with the employer.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith with Ms M Tait | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G K Coldwell | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with Low Loader Services Pty Ltd (“the employer”) between February and June 2014.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the neck, including pain into the right shoulder.
6 The plaintiff relied on four affidavits, three affirmed by the plaintiff on 9 May 2017, 24 April 2018 and 1 May 2018, and an affidavit sworn by his partner, Aleisha Barrodeen, on 28 April 2018. I have not summarised the evidence, including the affidavits of the plaintiff and of Ms Barrodeen; however, I will refer to the relevant evidence of the plaintiff and Ms Barrodeen in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all tendered material.
Relevant legal principle
7 The Court must not give leave unless it is satisfied on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19) of the Act and Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of his employment with the employer;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the neck including pain into the right shoulder in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c) of the Act
9 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission and O’Dea v Dennis:[5]
“... many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. ...”
[5][1998] 1 VR 702
10 Consequently, the Court must consider the impairment of body function by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
11 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[6]
“The emphasis in s134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. ...”
[6]Supra
12 In assessing the consequences:
“…the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra)
13 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
[8]Section 134AB(38)(h) of the Act
(b) must make an assessment of “serious injury” at the time the application is heard;[9]
(c) notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9]Section 134AB(38)(j) of the Act
[10]See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628 and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
14 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti[11] and affirmed in Guppy v Victorian WorkCover Authority,[12] where the case is one of aggravation of a pre-existing condition, the application must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of, in this case, the neck and right shoulder injury, before or after the relevant injury, to determine whether the additional impairment involved, in this case, is a permanent serious impairment of the neck and right shoulder.
[11][1994] 1 VR 436
[12][2010] VSCA 164
The issue
15 Counsel for the defendant informed the Court that when consideration is given to the medical evidence of the treating doctors rather than the medico-legal witnesses, the plaintiff has retained the capacity to continue full-time work in his pre-injury employment as well as undertaking other lifestyle activities. Counsel for the defendant submitting that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Credit of the Plaintiff
16 From my observation of the plaintiff in Court, he was a man of few words. I formed the impression that if asked a question he answered it, and did not volunteer additional information. He did not elaborate on his answers. I note that Associate Professor Doherty described him as somewhat blunt but always pleasant and co-operative, attentive and to the point. That is how the plaintiff presented in Court. I gained the impression that he had difficulty in articulating his answers.
17 In Court, the plaintiff was not prone to exaggeration, and he gave his evidence in a most uncomplaining way and made appropriate concessions.
Surveillance
18 The plaintiff was under surveillance for 45 hours. He was sighted on three occasions: 15 March 2018 over a period of 47 minutes; 16 September 2017 over a period of 45 minutes; and on 8 March 2015 over a period of 1 hour and 28 minutes. Film was obtained on all sightings. I was shown 17 minutes and 23 seconds of film of 15 March 2018. Counsel for the defendant said the film was shown for the purposes of the level of activity the plaintiff engaged and to avoid an inference at the end of the proceeding that the film was referred to in the court book of the defendant which was not shown, the inference being that the film did not assist the defendant.
19 The film showed the plaintiff engaging in activity on his 15-acre property. The plaintiff was engaged in several activities including using his right arm to feed pigs; starting a whipper snipper or brush cutter with his right hand and using it to cut long grass in a paddock; threading a cutting wire into the whipper snipper; attending to some fencing problems, requiring him to have a look at the fence whilst on his knees and using both his hands to handle the fence; throwing treading for an electric fence with his right arm into the grass; and riding a quad bike at times reasonably fast.
20 The plaintiff agreed that the film showed him working on his 15 acre property after a full day’s work. He said that he was not restricted in completing this work. He said that the treading for the electric fence which he was observed throwing with his right arm was very light.
21 I formed the view that the level of activity the plaintiff was observed engaging in was limited and not inconsistent with his evidence.
Background
22 It was not in dispute that the plaintiff attended high school to Year 10 before leaving to work in landscape gardening for approximately ten years. During this time, he attained a Certificate III in Horticulture. From the age of about twenty-five he started driving trucks, and did so with a number of different companies prior to commencing work with the employer.
Other injuries
23 In 2000 or 2001, the plaintiff suffered a fractured right elbow in a motor vehicle accident. The injury resolved.
24 In 2006, the plaintiff suffered an injury to his low back while working for Fulton’s Garden Supplies. He returned to full-time employment after six to twelve months. Since this injury he has experienced occasional low-back pain but learnt to manage it. He attends a physiotherapist occasionally for treatment.
25 Prior to commencing work with the employer, he experienced mild stiffness or aching pain in his neck and shoulders occasionally, but it always resolved very quickly and he had no ongoing problems.
26 In February 2014, he commenced employment with the employer.
27 In April 2014, he hit his head on a doorframe of a truck cabin when getting into the truck at work. He felt dizzy and giddy, and had ringing sounds in his ears. He had pain in the head, and soreness in the neck. He had no symptoms in his right shoulder or right arm. He took one day off work, and then returned to work on full-time normal truck-driving duties. He did not experience ongoing neck pain following this incident.
28 In March 2018, he fractured the head of his left elbow when he fell off a truck. On 26 April 2018, he returned to modified duties. He is aiming to return to pre-injury work in May 2018.
The Plaintiff’s injury, the subject of this claim
29 In mid-May 2014, the plaintiff felt pain in his right shoulder and neck while removing a chain. He pushed on at work, despite experiencing ongoing pain.
30 On 5 June 2014, he experienced increased pain in his neck and right shoulder when removing a chain at work.
31 On 6 June 2014, he was unable to work due to pain. He attended physiotherapy.
32 On 10 June 2014, he attended his general practitioner in relation to the neck and right shoulder pain.
33 On 12 June 2014, he underwent ultrasound of the right shoulder.
34 On 1 July 2014, he underwent an MRI scan of the cervical spine. The MRI showed multi-level chronic degenerative disc disease. At C4‑5, a right paracentral disc extrusion producing marred impingement upon the right side of the cord without evidence of compressive myelomalacia. At C5‑6, a right paracentral disc extrusion on the background of a disc bulge contracts the anterior cord surface without evidence of significant compression. Multi-level foraminal stenosis was noted as described above, most marked on the right at C5‑6.
35 On 28 July 2014, the plaintiff was referred by his general practitioner to Dr Neels du Toit, sports and interventional pain physician at the Metropolitan Spinal Clinic. Dr du Toit recommended the plaintiff continue with conservative treatment, return to light duties, and imposed restrictions of no pushing or pulling or lifting weights of more than 5 kilograms.
36 In August 2014, the plaintiff was referred to Mr Craig Timms, neurosurgeon, for treatment. Mr Timms reviewed the recent cervical MRI scan, which he stated revealed neural compression and disc osteophyte formations in the plaintiff’s cervical spine at the levels of C4‑5 and C5‑6, which he believed was the cause of the plaintiff’s symptoms.
37 Mr Timms diagnosed a right arm radiculopathy secondary to disc osteophyte formations at the levels of C4‑5 and C5‑6.
38 Mr Timms said if his symptoms persisted and failed to respond, he may require surgical intervention in the form of an anterior cervical discectomy and fusion with partial vertebrectomy at the levels of C4‑5 and C5‑6. He was hopeful major surgery could be avoided. However, he provided the plaintiff with literature about the surgery.
39 The plaintiff returned to work on modified duties in August 2014. By October 2014, the plaintiff was made redundant by the employer.
40 In May 2015, the plaintiff returned to casual work driving trucks with a different employer. As of June 2015, he returned to full-time hours and is currently working with Vic Low Loaders on a full-time basis. He continues to experience pain in his right shoulder and tingling down his arm, as well as neck soreness. He pushes on, as he needs to work as a truck driver
41 In February 2018, he experienced a flare-up of neck pain and took the day off work. He attended his general practitioner and physiotherapist.
42 In March 2018, he fractured the radial head of his left elbow when he fell off a truck at work.
43 On 26 April 2018, he returned to work on modified duties following the left elbow injury, and intends to return to normal duties and hours.
The current medical evidence
44 It was not in dispute between the parties that the plaintiff suffered a work-related injury to his neck and symptoms down the right arm. The current medical evidence is as follows.
45 In 2018, Dr Win Naing, treating general practitioner, diagnosed chronic pain with underlying cervical spondylosis. He was aware the plaintiff had returned to pre-injury employment as a heavy commercial truck driver, although his symptoms were not completely resolved. Dr Naing said, given the degenerative nature of cervical spondylosis, he may require review by specialists, including a musculoskeletal physician, neurosurgeon, and/or pain specialist, in the future, depending on the severity of his symptoms. He believed that the long-term prognosis is guarded, with possible exacerbation and deterioration.
46 In February 2018, the plaintiff was medically examined by Mr Mohammed Awad, neurosurgeon and spinal surgeon, at the request of the plaintiff’s solicitors. He diagnosed aggravation of cervical spondylosis. The plaintiff reported neck pain, which comes and goes on a good day between 1–2 out of 10, and during exacerbations can be as bad as 9 out of 10.
47 Mr Awad said the plaintiff has a work capacity to perform his duties as a truck driver, which he is just managing at present. He said it remains to be seen as to how long he will continue to manage his work reliably and consistently. It was his opinion that the plaintiff is likely to require surgical intervention in the form of an anterior cervical decompression and fusion in the future. He said while he was currently managing his pre-injury employment as a truck driver, it is unlikely that he will be able to manage this into the foreseeable future, and it is likely that he is going to require surgical intervention for his ongoing pain.
48 In August 2017, the plaintiff was medically examined by Mr Paul Kierce, orthopaedic surgeon, at the request of the defendant’s solicitor. It was his opinion that the plaintiff had suffered disc prolapses at C4‑5 and C5‑6 in the course of his work with the employer starting in April 2014 which became worse in June 2014. He has a definite radiculopathy as a result, which is causing his right arm pain.
49 Mr Kierce said while it is theoretically possible that the plaintiff may be helped by surgical excision of the C4‑5 and C5‑6 discs, together with a fusion at these levels, there is certainly a risk that he would suffer decreased movement, and such surgery would increase stress on the remainder of his cervical spine, preventing him from resuming work as a truck driver and labourer.
50 On neurological examination, Mr Kierce found that the plaintiff had an absent right biceps jerk. He noted that it had not been recorded to date, but said it is a significant finding. He said the plaintiff has a definite radiculopathy and an absent right biceps jerk.
51 He said that the plaintiff had a loss of body function and impairment resulting from the compensable injury, which is likely to continue for the foreseeable future.
52 Mr Daniel Elton, treating physiotherapist, reported that he had been treating the plaintiff since June 2014 for his right neck and shoulder injury and exacerbations of his work-related condition. In April 2018, the plaintiff reported an exacerbation of his neck pain and stiffness following an increase in his truck driving. It was Mr Elton’s view the plaintiff would be able to continue with full work duties and hours in his current role for the foreseeable future, and will not currently require alternate duties.
Analysis
53 While the plaintiff said prior to his employment with the employer he experienced mild stiffness or aching pain in his neck and shoulder, it always resolved quickly and he had no ongoing problems. There was no evidence that the plaintiff was seeking medical treatment for his neck and right shoulder prior to the injury at work, with the employer. Accordingly, on a Petkovski v Galletti[13] analysis, I accept that the injury at work with the employer is the cause of his current medical condition.
[13]Supra
54 I accept that the current medical evidence is that as a result of the plaintiff’s employment with the employer, the plaintiff suffered disc prolapses at C4-5 and C5-6, with a definite radiculopathy identified by Mr Kierce and Mr Timms.
55 The issue is whether the consequences of the injury satisfy the statutory test. I must make the assessment of the plaintiff at the time of hearing the application. I must decide whether the impact of the plaintiff’s pain and suffering on his life was “when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than ‘significant’ or ‘marked’, and as being at least very considerable.”[14]
[14]Section 134AB(38)(c) of the Act
56 Accordingly, I will examine the consequences to this plaintiff, in turn.
Pain and flare-ups
57 The plaintiff’s evidence is that he experiences almost daily pain in his neck and right shoulder, which often fluctuates in intensity depending on the level of activity. He occasionally has a day without any pain, but usually experiences severe pain in his neck and shoulder the following day. He thinks this is because, when he has a pain-free day, he pushes his body more than he usually would, because the pain is not there to tell him to stop. He said the type of pain and intensity of the pain in his neck and right shoulder varies. Sometimes the pain is a dull aching pain, sometimes it is a burning pain, and sometimes it is a sharp stabbing pain. At best, the pain is about 1 or 2 out of 10. At its worst, it can be 10 out of 10. The plaintiff’s evidence is that he manages to do his job but in pain.[15]
[15]Transcript (“T”) 39, Lines (“L”) 10-11
58 The intensity of the pain depends on the activities that he has done. For example if he completes a long and busy shift at work, or a shift that has involved a lot of overhead work such as the chaining-down of machinery, then the pain in his neck and right shoulder becomes very intense.
59 Most weeks, as the working week progresses, his neck and right shoulder pain becomes gradually worse by the end of the week. He does not do as much now at weekends as he used to do, as he needs to make the most of his time off work to rest.
60 When the pain in his neck and shoulder is particularly bad, the pain travels down the outside of his right arm. He also suffers numbness and pins and needles in his fingers and thumb of his right hand.
61 The plaintiff’s evidence was that he has been off work for five weeks with the left arm injury. As a result, the neck and shoulder pain improved.[16]
[16]T67, L22-24
62 He has a 15‑acre property, and any overhead work on the property aggravates his neck and right-shoulder pain.
63 Further, in re-examination, the plaintiff said he experiences pain up to seven days per week. He experiences pain on each of the days he drives his truck. He said the pain he experiences varies as the week progresses. He said:[17]
[17]T71, L9-21
Q: “You were asked questions about the pain, and it was put to you that it comes and goes. How many days of the week will you have pain?---
A: Yeah, six. Six to seven days.
Q:On a day that you work, that is that you’re driving the
truck?---
A:Yep.
Q:--- will you feel pain on each of those days?---
A:Yes.
Q:The pain that you have – so at the beginning of a working day, will you be experiencing pain in your neck and shoulder? Or I should say how often will you be experiencing pain in your neck and shoulder at the beginning of the day?---
A:--- Yeah, sort of every day varies. Towards later in the week I sort of wake up in pain, and go to work in pain, and then – yeah.”
64 The plaintiff’s evidence is that he works Monday to Saturday. He said he wakes up Monday usually pretty good. By the end of Monday after work, he can feel the pain. By Wednesday night, he is really feeling the pain. The pain increases, and by Saturday morning, he struggles to get out of bed. By Saturday night, depending on whether he has worked a full day and whether he has washed the truck, the pain can be really bad, he estimates at 8 out of 10.[18]
[18]T72, L1-30
65 The plaintiff reported to the medical witnesses the pain he suffers.
66 In 2017, Mr Kierce obtained a history of bilateral neck pain with referral into both shoulders, particularly the right, with referral of pain down the right outer arm into the fingers and thumb with numbness and pins and needles. His neck and arm pain becoming more painful as the week goes on, with recovery over the weekend.
67 The plaintiff reported that he was getting worse and realised that his current job was going to be short term. Mr Kierce said the plaintiff’s reported pain was consistent with his clinical course, when taken into account with the fact he has returned to similar type of work, which, it would appear, has resulted in worsening of the physical signs, in that he now has radiculopathy and an absent right biceps reflex. He said the plaintiff will continue to suffer with neck and right arm pain and limitation of movement for the foreseeable future.
68 In 2018, the plaintiff reported to Mr Awad, that on a good day, the pain comes and goes, and can be between 1–2 out of 10, and during exacerbation, it can be as bad as 9 out of 10. Exacerbations are as frequent as every second week. They can be associated with headaches, pins and needles, and pain down the arm. He reported ongoing weakness in the right arm, with sensory disturbances. He gets tingling and numbness down the arm into the fingertips. Mr Awad anticipated the plaintiff would suffer worsening pain.
69 In March 2018, Dr Win Naing, the plaintiff’s general practitioner, said, in February 2018, the plaintiff reported intermittent but longer episodes of flare-ups with increased neck symptoms. The plaintiff’s evidence was that he was prescribed Panadeine Forte. He noted that the plaintiff suffered chronic pain with underlying cervical spondylosis. He believed the plaintiff’s long-term prognosis was guarded, with possible exacerbations and deterioration.
70 All medical witnesses accepted the plaintiff’s complaint of pain and said that he will continue to suffer pain into the future.
71 The plaintiff’s partner said the plaintiff is not the type of person to complain about things but she can tell when he is in pain as he looks uncomfortable or is having difficulty washing his truck or doing maintenance around the property.
72 The plaintiff’s evidence was that he suffers flare-ups of neck and right shoulder pain from time to time. He said the flare-ups are very severe, which stop him doing his usual activities, rather than the usual pain, when he can manage to push through. The flare-ups seem to be increasing in frequency, and lasting longer in time. In February of this year, he had a flare-up of pain in his neck and right shoulder, which was so bad he had to take a day off work.
73 In late February 2018, the plaintiff reported intermittent and longer episodes of flare-ups to his general practitioner who recommended he continue with oral anti-inflammatory medications and physiotherapy. The plaintiff’s evidence was that he was prescribed Panadeine Forte, which he took on the day it was prescribed and the following day. Further, that he took the Panadeine Forte after the left arm injury on 22 March 2018 for the left arm injury.
74 I accept that the plaintiff suffers pain and flare-ups which are increasing from time to time as a result of the injuries suffered at work. There is no suggestion by the medical witnesses that the pain and flare ups will improve.
75 I accept the plaintiff suffers daily pain which increases as the week progresses. I accept that the pain and flare ups are a consequence I can take into consideration.
Treatment
76 The plaintiff’s evidence is that he continues to attend his physiotherapist and general practitioner for his neck, right shoulder and right arm symptoms, whenever required. He attends the gym and does exercises that his physiotherapist has taught him. He infrequently sees his local general practitioner. Initially, he took stronger medication, including Lyrica, but did not like the side-effects, so stopped it after a short time. He now takes limited medication, Voltaren about two or three days per week, and Panadol and Celebrex occasionally. He tries to avoid taking medication for his pain because he does not want to become reliant on medication, and because of the side-effects that come with taking medication. Further, because of his job as a truck driver, he is required to be alert and focussed.
77 The medical evidence as to treatment is as follows.
78 Dr Naing said the plaintiff will require ongoing treatment of regular or intermittent physiotherapy with oral anti-inflammatory medication. He will be able to manage with self-managed exercises and analgesia. Given the degenerative nature of his condition, he may require review by specialists including a musculoskeletal physician, neurosurgeon and/or pain specialist. The plaintiff will continue to suffer for the foreseeable future with neck and right arm pain.
79 Mr Awad obtained a history of self exercises, twice per week, formal physiotherapy every six to eight weeks and Voltaren gel and oral analgesia in the form of Panadol tablets. He recommended the plaintiff continue with his current treatment.
80 Mr Kierce obtained a similar history of treatment of self exercises with rubber bands as demonstrated by his physiotherapist, using light weights on machinery to exercise his upper limbs, random visits to the physiotherapist and general practitioner and medication of Voltaren, 25 milligrams, as required, an average of twelve per week. If Voltaren is not giving relief, he will take 200 milligrams of Celebrex which is more effective, and Panadol, four per week. Mr Kierce said the plaintiff needs to take time off work to rest his cervical spine and increase his physical fitness.
81 The evidence was that on occasions he consulted the physiotherapist for his low-back pain and received medication for his left arm injury. In considering the pain, flare-ups and treatment, I have considered those consequences as they relate to the neck and right shoulder alone.
82 The level of medication the plaintiff takes is a consequence I can take into account, which was opined by Dodds-Streeton JA in Kelso,[19] where her Honour said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[19](supra) at paragraph [199]
83 This proposition was endorsed by Tate JA in Sutton v Laminex Group Pty Ltd.[20]
[20](2011) 31 VR 100 at paragraph [91]
84 I accept that the plaintiff continues to suffer pain as a result of the injuries he suffered at work and takes an appropriate level of medication. There is no suggestion by the doctors that his treatment will vary. I accept that the treatment and medication the plaintiff takes is a consequence I can take into account. Applying the comments made by the Court of Appeal in Kelso[21] as to pain for this plaintiff, I accept the consequence of pain and treatment is in the mid to high end of the range.
[21]Ibid
Surgery
85 The evidence of the medical witnesses is that it is possible that the plaintiff will require surgery. Mr Kierce said that theoretically, the plaintiff could be successfully treated with an anterior cervical fusion at C4-5 and C5-6. However, such surgery could make him worse. Mr Awad said the plaintiff is going to require surgery in the form of an anterior cervical decompression and fusion. The surgery would result in decreased movements and increased stress on the remainder of his cervical spine, preventing him from resuming work as a truck driver and labourer.
86 The plaintiff’s evidence as to surgery is that he will only have surgery on his neck as a last resort. Currently, he does not have plans to have surgery.
87 The medical evidence is that it is more than likely the plaintiff will require surgical intervention in the form of an anterior cervical decompression fusion, most likely at two levels.[22]
[22]Mr Awad PCB 60; Mr P Kierce PCB 73
88 I further take into account that in 2014, the plaintiff was referred to Mr Craig Timms, neurosurgeon. Mr Timms was hopeful the plaintiff would be able to avoid surgery, but said if his symptoms persisted and failed to respond, he may require surgery – a cervical discectomy and fusion at C4-5 and C5-6 levels. I accept that Mr Timms did not recommend surgery in 2014, it was contingent on him improving and his pain not worsening.
89 Given the medical evidence as to the surgery in light of the plaintiff’s age and its nature, I accept that this is a consequence which I can take into account. Given the nature of the surgery and the plaintiff’s age, I accept that this is a consequence at the high end of the range.
Future family
90 The plaintiff’s evidence is that he and his partner plan to start a family within the next couple of years. Because of his symptoms he is concerned as to how he will cope with being an active father to his children. He is concerned that he will have difficulty lifting his children and participating in activities such as camping that he would want to do.
91 I accept that this is a consequence that I can take into account.
Household duties
92 The plaintiff said he still helps around the house but find tasks like hanging out the washing causes an increase in pain as it requires repetitive above shoulder work.[23]
[23]PCB 4, paragraph 26
93 I accept this is a consequence I can take into account, which I accept is at the low end of the range.
Maintenance and upkeep of property
94 The plaintiff’s evidence is that he lives on a 15-acre property which requires maintenance and upkeep. He can perform most tasks but at a slower pace and with significant pain. He struggles with tasks which require overhead movement or significant force like stacking small square bales of hay, trimming trees and fencing. He now engages contractors to perform fencing work, which is hard work.[24] He said reversing the tractor, looking over his shoulder, results in pain to his neck.[25]
[24]T69, L31 -70
[25]T70, L13-18
95 I accept that the activities he performs on his property are limited by the pain he suffers. On occasions he is reliant on others to perform activities which normally he would perform. I accept this is a consequence which I can take into account which I assess at the middle of the range.
Recreational activities
96 The plaintiff said that his hobbies and activities are affected. Before his injury he would go deep sea fishing on a boat and surf fishing using a 12 to 15-foot rod, looking for big recreational fish once every couple of months, including a fortnight each Easter to Merimbula. He has attempted fishing but finds holding a rod for any length of time increases the pain in his neck and arm. He has only fished off a jetty with a rod 5 to 6-feet long. He went fishing with friends but because of the pain in his shoulders, he could only do bits and pieces.[26]
[26]T74 and T75
97 He enjoyed four-wheel driving and camping once every couple of months before the injury. He finds that when he goes camping, setting up the site and collecting firewood causes pain. As a result, he has limited his activities of camping, four-wheel driving and deep sea fishing.
98 The plaintiff’s evidence is that he enjoyed working in his shed, servicing cars, metal fabricating and carpentry work. He would make trailers, metal frames and stock crates. As the work required prolonged use of his arms and bending of his neck, which is now painful, he has restricted those activities.[27] The plaintiff was not cross-examined about the activities he undertook in his shed.
[27]PCB 23.6, paragraph 6
99 I accept that the plaintiff’s recreational activities have been affected by his injuries. I accept that these are consequences which I can take into account. I assess them at the medium to high end of the range.
Relationships
100 The plaintiff’s evidence is that he is bad tempered and irritable due to the pain in his neck and right shoulder which affects his relationship with his partner. His libido is diminished significantly.
101 I accept that the plaintiff’s relationship with his partner, including his intimate relationship, has been affected. I accept that this is a consequence which I can take into account.
Sleep
102 The plaintiff’s evidence as to sleep is that three to four times per week his sleep is affected. His partner, Ms Barrodeen, deposed that the plaintiff tosses and turns in bed a lot and when she asks him why he is tossing and turning he says that he cannot get comfortable and fall asleep because of pain in his neck or right shoulder.[28]
[28]PCB 23.3
103 The plaintiff was examined by Professor Peter Doherty, consultant psychiatrist. He told Professor Doherty, in relation to his quality of sleep, that he sometimes gets discomfort with pain running down his right arm, sometimes his arm is just dead and that he wakes up and goes back to sleep during the night.[29]
[29]DCB 22
104 I accept that the plaintiff’s sleep is affected and this is a consequence I can take into account.
Stoical
105 Counsel for the plaintiff submitted that the plaintiff was stoical.
106 The plaintiff’s evidence was that he suffered a back injury in 2006, which gradually improved. He returned to work, performing physical work. In March 2018, he fractured his left radial head and has returned to work within about four to five weeks, on some restrictions.
107 The plaintiff’s evidence is that he suffers pain which is of some significance, yet is working 70 hours per week, performing physical work. He is working these hours to establish himself financially.
108 In 2017, Mr Kierce described the plaintiff as highly motivated.
109 The plaintiff impressed me as a man who was prepared to endure a fair amount of pain as he went about his work and everyday activities. I rely upon his evidence that his entire working life has been in heavy manual work. He said he was trying to establish himself financially as he knew he would not be able to continue the work he was doing indefinitely due to the pain. The plaintiff’s partner said the plaintiff is not the type of person to complain about things.
110 In Haden Engineering Pty Ltd v McKinnon,[30] at paragraph 13, Maxwell P said:
“As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[31] In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[30](2010) 31 VR 1
[31]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [3]
111 I accept the plaintiff was stoical. Accordingly, I accept that his injury should not be viewed any less seriously merely because he manages to remain more active than might have been expected given his level of pain.
Work
112 The defendant’s submission was that the plaintiff continues to work, working 70 hours per week in physical work.
113 The plaintiff told Professor Doherty that he could perform his work. In cross-examination, the plaintiff said he was examined by Professor Doherty for his mental health condition. In answering questions asked by Professor Doherty, he answered in reference to his mental condition alone.
114 The plaintiff’s evidence is that he has been performing physical work, albeit in a different fashion to previously. It causes him pain and, as the week progresses, the pain increases. The plaintiff’s evidence is that recently, doctors have told him that he should reduce the hours he works. The plaintiff was not cross-examined on this point.
115 The medical evidence is that the plaintiff will more than likely require surgery – a fusion at two levels – which, according to Mr Kierce, would increase stress on the remainder of his cervical spine, preventing him from returning to his current work, work which he is suited to having regard to his educational and past experience, namely heavy manual labour work. Mr Kierce addressed his current work and said surgery would put an end to truck driving.
116 Mr Awad said it is unlikely that he will be able to continue this work into the foreseeable future. His general practitioner supported this view.
117 I accept, based on the medical evidence, that the plaintiff’s capacity to continue work in his current employment, which is heavy manual work, is unlikely. I accept this is a consequence I can take into account. Given his level of education, namely leaving school at Year 10, his experience of heavy manual work and his age, namely thirty-seven, I accept this is a consequence at the high end of the scale.
Retained capacity
118 Counsel for the defendant submitted that the plaintiff has retained the capacity to continue to work greater than full-time work, in his pre-injury employment, working 70 hours per week, as well as undertake other physical lifestyle activities. Counsel relied upon the medical evidence of his treating practitioners, in particular his general practitioner, Dr Naing, Mr Timms, neurosurgeon, and Mr Elton, physiotherapist. The current medical opinion of Dr Naing is that he is currently fit for pre-injury employment but that his symptoms are very likely to exacerbate during the natural course of the degenerative condition. His long-term prognosis is guarded.
119 Mr Timms, treating neurosurgeon, expressed a view in 2014. At that time, he diagnosed right arm radiculopathy, secondary to disc osteophyte formations at the levels of C4-5 and C5-6. At the time he examined the plaintiff, the condition had improved with physiotherapy, massage and analgesia. However, Mr Timms said if his symptoms fail to fully resolve or worsen, he may require a cervical discectomy and fusion and partial vertebrectomy at the levels C4-5 and C5-6. I accept that Mr Timms predicted accurately the position the plaintiff now finds himself in.
120 Mr Elton, physiotherapist, is not a medical practitioner. I give more weight to the evidence of Mr Timms. He is a specialist in the field of neurosurgery and his evidence is consistent with that of both Mr Awad and Mr Kierce.
121 The current neurosurgical view expressed by both Mr Awad and Mr Kierce is that this plaintiff, on one view, is just managing his work duties and on another view, needs time off work, combined with cessation of care for his animals in order to promote a situation where the disc prolapses would shrink to no longer cause the right arm pain. Both surgeons consider the plaintiff will require surgery, a cervical fusion at two levels C4-5 and C5-6. Mr Kierce said the surgery would result in decreased movements and increased stress on the remaining joints of the cervical spine, and such surgery could make him worse. Mr Kierce said his current job is short term. Mr Awad said he is just managing his current job and it is unlikely to manage this into the foreseeable future.
122 Accordingly, I accept that the plaintiff has retained the capacity to work long hours which is not sustainable in the foreseeable future and is at the expense of his physical condition. There is no suggestion that the plaintiff will be able to continue the work he performs or the hours he currently works. The plaintiff’s evidence was that his capacity to earn would be reduced substantially if he ceased his current employment. I accept the plaintiff has lost the capacity to perform his pre-injury recreational activities.
Holidays
123 The plaintiff’s evidence is that he and his partner travelled to Hawaii and Phuket via Hong Kong and Fiji. Counsel for the defendant submitted that the plaintiff has retained capacity to holiday. I accept that the plaintiff can holiday. However, I accept that prior to his injuries, his holidays involved physical activities which he can no longer pursue.
124 I accept the plaintiff has retained the capacity to be independent in respect to his personal care of showering, toileting and dressing himself. I also accept that he can socialise with his partner and friends. I accept the plaintiff’s retained capacity is at the lower end of the scale. However, I do not accept that the plaintiff has retained the capacity to work long hours and the capacity to perform his pre-injury recreational activities. Overall, the level of retained capacity is at the low end of the range.
Conclusion
125 I accept that the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, the evidence of his partner and the medical evidence. I accept that the plaintiff had a physically active life, his employment has been heavy manual work, and to all intents and purposes, the plaintiff lives with his injury and gets on with it. I accept that he has continued working, and worked 70-hour weeks, but, as a result, his pain levels have increased and his work is not sustainable.
126 I am satisfied that the plaintiff was involved in a work incident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his neck and shoulder injury have impacted upon his life as he knew it before the work accident. He has suffered for four years and the medical evidence is guarded as to the future. I accept that the plaintiff’s neck and shoulder injury are permanent. Given the plaintiff’s age of thirty-seven, and the fact that surgery is anticipated, which will affect the type of work he is likely to undertake in the future, I consider that important. I take into account that the plaintiff is stoical.
127 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff may measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of the evidence.
128 I accept the neck and right shoulder injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[32] In making this assessment, I have looked at the consequences to the neck and shoulder injury alone.
[32]Humphries & Anor v Poljak [1992] 2 VR 129
129 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident.
130 I will hear the parties on costs.
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