Tomlinson, Stephen Paul v Kilkenny Cleaning Services Pty
[2010] VCC 116
•1 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04398
| STEPHEN PAUL TOMLINSON | Plaintiff |
| v | |
| KILKENNY CLEANING SERVICES PTY LTD | Defendant |
| ACN 062 013 594 |
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| JUDGE: | HER HONOUR JUDGE MORRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16, 17, 18 and 19 February 2010 |
| DATE OF JUDGMENT: | 1 March 2010 |
| CASE MAY BE CITED AS: | Tomlinson, Stephen Paul v Kilkenny Cleaning Services Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0116 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury application – pain and suffering – injury to lower back – s.134AB(38)(c) – whether pain and suffering consequences of injury “serious” – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with | Robinson Gill |
| Ms F Ryan | ||
| For the Defendant | Mr W R Middleton SC with | Thomson Playford Cutlers |
| Ms H Donmez | ||
| HER HONOUR: |
Background
1 By Originating Motion filed 16 October 2008, the plaintiff, Stephen Paul Tomlinson, applies for leave pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) in relation to loss or impairment of his lower back. The prayer for relief is stated in simple terms: “Leave pursuant to s.134AB of the Accident Compensation Act”, however, in the hearing of the application, it was evident the plaintiff was seeking leave to bring proceedings to recover damages for injuries suffered by him during the course of his employment with the defendant, Kilkenny Cleaning Services Pty Ltd, on 26 July 2002 and 24 August 2002. It was argued that the major insult to the plaintiff’s lower back occurred on 26 July 2002 and that the condition was aggravated in a second episode on 24 August 2002.
2 The plaintiff’s application for leave is confined to pain and suffering. As I said before, the body function said to have been lost or impaired is the lower back.
3 Although initially the defendant identified seven areas upon which the application was contested,[1] all bar one were abandoned for the purposes of the hearing. The defendant did not dispute that the plaintiff suffered a permanent impairment as a consequence of the compensable injury arising out of either or both incidents, to which I have referred, in the course of his employment. The sole question before me was whether the pain and suffering consequence of the plaintiff’s injury is “serious” within the meaning of s.134AB(38)(c) of the Act?
[1] see contested particulars of injury
4 As was recently pointed out by the Court of Appeal in the case of Tatiara Meat Company Pty Ltd v Tyrone Kelso:[2]
“To make out a ‘serious injury’ within the meaning of s.134AB(37)(a), the worker must establish that he suffered a ‘permanent serious impairment or loss of body function’. The determination whether an injury is ‘serious’ is assessed solely by reference to the consequences to the particular worker of the relevant impairment or loss. Relevantly in the circumstances of this case, an impairment is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, ‘fairly described as being more than significant or marked and as being at least very considerable’ (s.134AB(38)(c)).”
[2] [2010] VSCA 12, at paragraph [11]
Has the Plaintiff Established Serious Injury?
5 For reasons I am about to explain, I find that he has.
The Hearing
6 Mr D Hore-Lacy SC, with Ms F Ryan, appeared on behalf of the plaintiff. Mr W R Middleton SC, with Ms H Donmez, appeared on behalf of the defendant.
7 The evidence comprised of the following:
• Only one witness gave viva voce evidence, namely the plaintiff; • The plaintiff tendered a number of exhibits, namely:
ƒ Letter from Mary Cidico, Impairment Benefits Specialist, for and on
behalf of the VWA, dated 5 December 2007: Exhibit P1ƒ Affidavit of the plaintiff sworn 30 May 2008 - Plaintiff’s Court Book
“PCB” pages 9-14: Exhibit P2ƒ Affidavit of the plaintiff sworn 7 May 2009 - PCB 41-44: Exhibit P3 ƒ The plaintiff’s Court Book: Exhibit P4 ƒ The plaintiff’s submissions: Exhibit P5.
• The defendant tendered the following Exhibits:
•
Copy of the plaintiff’s Claim Form as appears at PCB 105-108: Exhibit D1
•
Letter from CGU Workers Insurance to the plaintiff dated 3 January 2003: Exhibit D2
•
Surveillance videos of the plaintiff taken on 16 and 17 August 2008: Exhibit D3
•
The plaintiff’s statement made 23 December 2002 (PCB 19-25): Exhibit D4
•
Surveillance video of the plaintiff taken on 16, 17 and 31 May 2009: Exhibit D5
•
The Defendant’s Court Book (“DCB”) pages 1-4, 19-24, 26-30, 73- 80 and 93-119.
Applicable Principles
8 The plaintiff bears the onus of proof. The standard of proof is on the balance of probabilities.
9 Although this case was run as a single issue hearing, I must nevertheless be satisfied that various elements are established before the plaintiff can succeed. The plaintiff must establish that he has suffered a “permanent serious impairment or loss of a body function.”[3]
[3] see s.37(a) of the Act
10 As I said before, the body function involved is the lower back. I am satisfied on the balance of probabilities that the plaintiff has suffered a permanent serious impairment or loss of that body function.
11 The plaintiff must prove that he has suffered a compensable injury arising out of the course of his employment on or after 20 October 1991.[4] I am satisfied on the balance of probabilities that he has.
[4] see s.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
12 The injury and the impairment must be permanent, in that it is “likely to last for the foreseeable future”.[5] I am satisfied on the balance of probabilities that this is made out.
[5] Barwon Spinners (supra), at paragraph [33]
13 The critical issue in this case, as I have said, relates to the extent of the pain and suffering consequences to the plaintiff. The defendant acknowledges the injury suffered by the plaintiff may be described as “significant” or “marked” but argued that it falls short of the description “very considerable”.
14 The assessment of serious injury is to be judged as at the date of hearing the application.[6]
[6] see s.38(j) of the Act
15 I am obliged to disclose my pathway of reasoning so that my determination of the facts and the issues raised by the application are transparent. In setting out my reasons, in view of the appropriate concessions made by the defendant, I will focus on the evidence and arguments relevant to the live issue.
The Plaintiff’s Background and the Two Incidents
16 The plaintiff is forty-eight years of age, having been born on 13 June 1961. He lives alone. He left school after Year 10 and holds no professional or academic qualifications. He has mainly worked as a truck driver, although he has had various other manual and labouring jobs. He was involved in a truck accident in 1987 but it is not suggested that this has any relevance to these proceedings. Despite the nature of his work over many years, he has not suffered any serious or significant problems with his back, although he has suffered from the odd ache and pain.
17 On 28 May 2001, the plaintiff commenced work with the defendant as a cleaner. The plaintiff’s brother-in-law runs and operates the defendant company. That company holds a number of contracts with various organisations. One of the contracts involved cleaning at a hostel in Kew. On 26 July 2002, whilst working at the Kew hostel, the plaintiff used a piece of equipment described as a “buffer” to polish the floor. In his affidavit sworn 30 May 2008,[7] the plaintiff said:
“I was using a very old buffer to polish the floor at the hostel. Modern and appropriate buffers are fitted with a guard. The buffer I was using I believe can be described as ‘an antique’. It was difficult to use. It did not have a guard fitted to it. The pad on the buffer would come into contact with skirting boards and other items whilst the buffer was being used. That made the buffer difficult to use and also meant that the buffer could damage the premises where it was being used. On 26 July 2002, whilst using the buffer, it became caught in the leg of a table and the operation of the machine pulled me around, jerking my back and causing me to develop back pain.”[8]
[7] Exhibit P2 - PCB 9-14
[8] see paragraph 5
18 In cross-examination, the plaintiff said that after the incident he felt pain and stopped working. He said:
“[I] sat down for half an hour or something, had a cuppa just to let it settle
down, and I just went back to work again.”[9]
[9] Transcript “T” 40, L21-24
19 He then completed his day’s work.
20 Following this incident, the plaintiff told his brother-in-law what had happened. It was not disputed that his brother-in-law informed the plaintiff that he was not covered by WorkCover and that he should just continue working.[10] Thereafter, the plaintiff continued with his duties for several weeks.
[10] see paragraph 6 – Exhibit P2
21 On 24 August 2002, a further incident occurred. The plaintiff said:
“I was moving cleaning equipment used as part of my work for the defendant. I was at home. I opened the boot of my car and reached in to lift some cleaning equipment. As I reached in I developed sudden and severe pain in my back and pain into my right leg.”[11]
[11] see paragraph 7 – Exhibit P2
22 The plaintiff maintained that between the two incidents, he suffered continuous pain in his back, but he said the pain became more severe on 24 August 2002. In cross-examination, the plaintiff agreed that after this incident he was in excruciating pain and went to the ground, where he remained for some considerable time before he could get himself into his house.[12] Once inside the house he was able to telephone his sister and brother-in-law, who came to his house and assisted him as best they could.
[12] see T 42, L13-20
The Plaintiff’s Medical Treatment
23 The day after the second incident, namely on 25 August 2002, the plaintiff was taken to Dr Peter Werth at Occupational Health-Australia where he presented in obvious difficulty. The medical evidence notes that the plaintiff was assisted from the car into the clinic and that the plaintiff –
“shuffled with a stooped and an antalgic posture into the examination
room.”[13]
[13] PCB 60
24 The next day the plaintiff returned to the clinic, where he saw Dr David Williams, chiropractor. He presented with –
“a marked debilitating pain and limited mobility. … He was in obvious discomfort when attempting to undress or attempting to sit. He presented as a patient in considerable and genuine difficulty.”[14]
[14] PCB 60
25 In the following weeks the plaintiff was treated conservatively, including with physiotherapy, analgesic, antipyretic medication for pain-relief and mobilisation, and while certified unfit for work.[15] The plaintiff was unable to return to work with the defendant.
[15] PCB 60
26 On 23 November 2002, the plaintiff lodged his WorkCover Worker’s Claim Form.[16]
[16] PCB 105-109
27 On 29 November 2002, Dr Williams referred the plaintiff to Dr P Malcolm. The plaintiff complained of being unable to stand for “very long” and that his pain was of such intensity that he woke every hour during the night because of it.[17] Examination revealed tenderness consistent with his complaint. He continued with his chiropractic treatment from Dr Williams.
[17] PCB 69
28 On 10 January 2003, the plaintiff had a CT scan of the lumbosacral spine which showed minimal central bulging of the L5-S1 disc. A later MRI scan conducted on 17 June 2003 revealed disc desiccation and disc bulging at L4- L5 and L5-S1 levels.[18]
[18] PCB 69 and 46
29 Dr Anna Davis reported on the MRI scan result. She said, of L5-S1:
“Broadbased disc bulging with right lateral small disc protrusion is demonstrated, and this does not appear to be neurocompressive. The disc bulging does extend into the inferior recesses of the L4 neural exit foramina bilaterally causing mild to moderate stenosis.
Impression:
1. Mild L1-2 disc bulge.
2. L4-5 disc bulge extends into the inferior recesses of the neural exit
foramina resulting in mild to moderate bilateral foraminal narrowing.
3. L5-S1 disc bulging and small right lateral protrusion. Bilateral mild to moderate foraminal narrowing.”[19]
[19] PCB 46
30 The plaintiff first saw Dr William Stone, rehabilitation physician, at Cedar Court Rehabilitation Hospital on 10 July 2003. Dr Stone recommended that the plaintiff participate in a Chronic Pain Program.[20] Dr Stone reported that the plaintiff had: “significant physical difficulties” and was “not able to return to full time unrestricted duties”. Nor was he considered to be able to “return to full time alterative duties” in that condition. Dr Stone’s opinion was qualified on the question of prognosis. He said:
“It is not possible for me to be more precise at this stage because of the associated factors impinging upon my assessment and because we have not yet been able to fully assess him and begin treatment in a Chronic Pain Management setting.”[21]
[20] PCB 47
[21] PCB 50
31 An x-ray of the plaintiff’s spine conducted on 9 September 2004 was unremarkable.[22] However, an MRI scan of the plaintiff’s lumbar spine a week later, on 16 September 2004, revealed:
“Severe compression of the traversing right S1 nerve, moderate compression of the thecal sac, as well as displacement of the existing right L5 nerve, all due to a large degenerative disc protrusion at L5- S1.”[23]
[22] PCB 51
[23] PCB 52
32 The plaintiff was then referred to Mr de la Harpe, orthopaedic surgeon, upon referral from Dr Williams. The plaintiff complained of having extreme difficulty coping with housework because such physical activity caused him extreme pain down the right leg. He had been trying to work from home and had been taking intermittent anti-inflammatories. Mr de la Harpe noted that there had been much conservative treatment to date but, unfortunately, the plaintiff’s sciatica was persisting. On examination, Mr de la Harpe found there were positive tension signs in the right leg. He reported:
“There was a decreased ankle jerk on the right hand side. His MRI scan that had been done showed a very significant right L5-S1 disc prolapse which was significantly neurocompressive.”[24]
[24] PCB 53
33 Mr de la Harpe reported:
“I felt at that stage as he had failed to settle after 2 years of treatment that we needed to proceed to a microdiscectomy but I was concerned that having the sciatica for 2 years that there was a possibility of permanent nerve damage.”[25]
[25] PCB 53
34 WorkCover funding was sought and approved for that surgery.
35 Mr de la Harpe further reported:
“Operation was performed on 13/11/2004 and at surgery a microdiscectomy was performed. A contained disc lesion was removed and the S1 nerve root completely rhizolysed and made free.
He was reviewed on the 24/11/2004 after surgery at which stage it was noted that he had had a successful decompression of his nerve root. The leg pain was much improved and the wound had healed. He was indeed very happy to be relieved of his problems. I asked him to take life a little quiet for the next month or so while things gradually healed inside and I asked him to do a little bit of walking and some pool work at that stage. …
. . .
In summary I believe that this man has suffered an acute lumbar sacral disc prolapse which was essentially untreated and ignored for some time causing him great distress and a long period away from work. It has been dealt with successfully surgically but there will be a period of rehabilitation and recovery. I am unaware of any lifestyle or hereditary factors that have contributed to this and it would seem that his work was directly related to his problems.
I think my progress for him overall is quite good and I feel that he will make a return to full-time employment in the future, although I would have to recommend that he now stays away from heavy manual labour such as cleaning duties.
I have not seen him since but hope that he continues to do well. I believe the long-term need for any chiropractic treatment will be minimal.”[26]
(emphasis added)
[26] PCB 54
36 Within three months the plaintiff had obtained a job driving trucks. He has not been able to work full-time and although there was dispute as to the precise number of hours he is able to work each week, it would appear he averages 25 hours per week, although on occasions it may be slightly more or slightly less.[27]
[27] PCB 12 – paragraph 17 of Exhibit P2, and see T 81, L11-16 and T199, L8-15
37 The plaintiff first consulted Dr David Vivian, pain management specialist, on 30 August 2005. The plaintiff told Dr Vivian that the operation performed by Mr de la Harpe had helped the leg pains “a lot”. He complained, however, that::
“The back pain has not changed much.”
38 He told Dr Vivian that he:
“gets a muscular mid back ache. The low back is the main problem. He gets a lot of burning stinging pain in the back. He sometimes has a shooting pain down the back of the legs. He has a lot of headaches; present in the last 6 months or so. Manipulation helps temporarily.”[28]
[28] PCB 56
39 On examination, Dr Vivian noted the plaintiff had pain when he moved out of his chair and that his capacity for movement was variable. Dr Vivian found no neurological abnormalities, however, his diagnosis was:
“He has chronic back pain with some neuropathic features, and at times some left pain that may or may not be radicular. Certainly there is no evidence of significant disc prolapse now. He has also developed more chronic widespread pain, including neck pain, headaches and arm symptoms. It would appear that all these problems emanate from the initial incident when he was using the buffing machine and he probably injured a lumbo-sacral disc prior to it eventually prolapsing.”[29]
[29] PCB 57
40 Significantly, Dr Vivian observed, of the plaintiff:
“He strikes me as a very reasonable man, with a genuine condition, who has persisting disability that relates to the initial incident. It is quite likely that he will not recover completely, and indeed, he may not recover from what he is like now. However, I think some other managements are worthwhile considering.”[30]
[30] PCB 58
41 The same day, Dr Vivian wrote to the defendant’s insurers seeking approval for the plaintiff to undergo eight sessions of ultrasound retraining of deep abdominal stability muscles with a physiotherapist as part of his rehabilitation.[31] In that letter, Dr Vivian noted, of the plaintiff:
“He is a man who has a significant persisting back problem, which has been treated with discectomy for the leg pain, but the back pain remains. He strikes me as a genuine man with a significant disability.”[32]
[31] PCB 55
[32] PCB 55
42 In his report dated 12 June 2007, Dr Williams stated:
“Clinical examination revealed consistent and marked low back pain and
restricted range of movement. ”[33]
[33] PCB 60
43 As to the then “Current Position”, Dr Williams noted:
“● Marked low back pain subject to exacerbation and increasing
disability.● Frequent flare-ups of right sciatic pain post-operatively. ● Frequent sleeplessness secondary to pain. ● Intermittent right foot numbness. ● Limited and unprovoked flare-ups of low back and right leg pain. ● Both domestic and lifestyle tasks and responsibilities either limited
or curtained.”[34][34] PCB 62
44 Dr Williams noted that the plaintiff’s recovery and rehabilitation progress was most promising as he had adhered to each progressive stage co-operatively and enthusiastically, with increasing mobility, strength and agility:
“Nevertheless his lower back pain persisted with a restricted range and spasm of the surrounding musculature consistent with the initial clinical signs. Currently, he describes the pain as a burning, stinging pain at the midline radiating into the right buttock invariably with abrupt unprovoked radiation into the legs. Although medication notably Tramal, provides some relief he is resistant to take it in the long-term due to his concern of its side effects, including gastro-intestinal implications.”
45 Further, Dr Williams noted:
“functional restoration is progressing as he measurably meets the goals set, although the spate of flare-ups do cause concern. There can be no doubt that he is most genuine and his symptoms regarding to his low back cause him considerable difficulties. Nevertheless the likelihood that he will recover completely is remote however with time adherence to his current program and recovery is not an unreasonable expectation.”[35]
[35] PCB 63
46 See also further report of Dr Williams dated 20 August 2007.[36]
[36] PCB 64
47 As is evident from the history I have referred to thus far, the plaintiff had been taking prescription medication to relieve the pain, including Tramal (50 milligrams). These were prescribed by Dr Malcolm.[37] It is likely that the pain- relief medication has caused gastric problems for the plaintiff.
[37] see, for example, PCB 94
48 On 5 November 2007, the plaintiff attended Dr John Coleman, gastroenterologist, who opined that:
“The ‘gastric condition’ from which he suffers is likely to have been related to medications which he was given for the relief of his back pain.”[38]
[38] PCB 72
49 On 9 November 2007, the plaintiff was examined by Mr Peter Battlay, orthopaedic surgeon, at the request of the defendant’s insurer. Mr Battlay’s report was included in the PCB, pages 73-75. In his report, Mr Battlay said:
“Mr Tomlinson has an accepted claim for a back injury and there is evidence that pre-operatively he had an impaired right ankle jerk, although the ankle jerk has returned to normal postoperatively. He still has a 1cm relative right calf girth wasting, consistent with an S1 radiculopathy, but insufficient in itself to establish the presence of radiculopathy as assessed at present.”
50 In answer to the question:
“What is the nature of the worker’s spinal condition?”
Mr Battlay said:
“L5/S1decrompressed disc prolapse with S1 radiculopathy pre-
operatively, but no present S1 radiculopathy on the right side.”[39]
[39] PCB 75
51 The plaintiff also underwent a number of examinations in relation to his mental wellbeing, but since this aspect of his pain and suffering claim was not pressed, I shall not refer to any of the evidence on that point.
52 On 18 March 2009, at the request of the defendant’s insurer, Dr Philip Mutton, consultant occupational physician, examined the plaintiff. Under the heading “Current Symptoms”, Dr Mutton observed that the plaintiff had deteriorated over time:
“He has constant low back pain. He has pain into the right buttock and through the right lower limb particularly with sitting and bending. The pain extends through to the back of the knee. There is a variable degree of paraesthesia through the right foot but this is intermittent lasting fifteen to twenty minutes at a time.”[40]
[40] PCB 84
53 The plaintiff told Dr Mutton that he slept poorly and was unable to lie on his back. He said he generally slept with a pillow between his legs and felt quite stiff in the mornings. He reported waking at least three times during the night.[41] Significantly, Dr Mutton conceded that fifteen to twenty hours per week of work in his current employment –
“are his maximum hours of attendance although he has increased up to twenty-five hours per week. The fact that he continues to have symptoms by about lunchtime tends to indicate that he is working at the limit of his capacity at this time. In view of the surgery undertaken and the known pathology in his back, he certainly needs to protect the back and should not be doing manually intensive work. He is doing very well to continue to work as a truck driver in my opinion.”[42]
[41] PCB 85
[42] PCB 87
54 Turning to the question of alternative forms of “suitable employment”, Dr Mutton opined that this would:
“include work where there is less physical demand and a greater capacity to be able to get up and move about and therefore rotate between standing and sitting functions. By reference to his occupational history, he has little in the way of transferrable skills. He has worked in fairly intensive fields in the past such as in brake service and also in a printing business. Certainly I would not recommend that he should return to a cleaning function with its inherent demands and stresses upon the lower back. If Mr Tomlinson were not able to continue with the truck driving, he would need to undertake extensive retraining into a field with restrictions of a 10 kg weight limitation and avoidance of pushing, pulling and twisting motions. I note that he has had a limited secondary school education having left school at age 15 years and retraining may therefore pose some difficulties.
It is likely that Mr Tomlinson would have extreme difficulty finding alternative employment if he were not able to continue as a truck driver. He has had a long history in relation to chronic low back pain. There would be a reluctance for employers to take him on. As stated above, he has little in the way of transferrable skills that can be utilised given his current symptom complex and known pathology in the lower back.
As stated above, Mr Tomlinson has done extremely well to maintain his employment as a truck driver in my viewpoint. I would suggest that he is working at the limits of his capacity at this time.”[43]
[43] PCB 87
55 On 24 April 2009, Dr Williams provided a further updated report. In it he opined:
“Gradual resumption of a maximum of four hours per days work is certainly encouraging but beyond that would be a presumption at his current status. With clinical evidence suggesting a discogenic condition with neurological symptoms, the likelihood of a full recovery with the absence of any level of disability would be remote. Prospects for further work activities beyond truck driving which may fluctuate between 3 to 7 hours per day depending on his flare-ups and disability status is questionable.”[44]
[44] PCB 97
56 Professor Kenneth Myers, Clinical Associate Professor of Surgery and consultant general surgeon, examined the plaintiff. Following a detailed report on examination and assessment, including comments on previous medical reports, Professor Myers answered specific questions. He considered that the plaintiff’s condition in the low back was entirely due to work-related injuries.
57 Professor Myers further considered that the plaintiff’s condition is likely to deteriorate in the future.
58 On the question as to whether the plaintiff is totally or partially incapacitated from his previous employment, or may possibly become so incapacitated at any time in the future, Professor Myers responded:
“I believe that he is totally and permanently incapacitated for work as a cleaner. I share the opinion that it is surprising that he is coping with work as a truck driver at the present time and somewhat dubious as to whether he will be able to continue to do so long-term. If not, then I think that he will be totally unemployable due to his vocational and educational background.”[45]
[45] PCB 102
59 A further report was obtained from Professor Myers once the defendant disclosed it had possession of surveillance footage of the plaintiff, and that material was made available for inspection. Professor Myers viewed the surveillance footage which depicted the plaintiff pursuing his hobby of go- karting. Professor Myers said:
“If I were your client’s treating doctor, I would encourage him to continue with activities such as this, in an endeavour to maintain mobility as best as possible, even though it might inevitably be associated with aggravation of his symptoms. I do not think that this type of activity is sufficient to markedly aggravate the underlying disease to make his symptoms worse. Accordingly, I would certainly not prohibit him from engaging in such activities.
Your client had made this quite clear to me that this was his intention to maintain as normal a lifestyle as possible, and since I would encourage such an attitude, I see nothing in these surveillance tapes that would alter any of the opinions expressed in my previous report.”[46]
[46] PCB 103b
60 The final medical reports tendered on behalf of the plaintiff were from Mr M A Kahn, orthopaedic surgeon, who first examined the plaintiff on 15 December 2009. Under the heading of “Prognosis”, Mr Kahn opined:
“Mr Tomlinson’s condition has now stabilised and he did not require further surgery to his back at the time of my examination. However he will require continuation of pain management and regular follow up by his general practitioner and chiropractor, and can continue with a home based exercise program.
I consider that he has a genuine problem with his back and he was not overreacting or malingering at the time of my examination.
It has affected not only his working aspect of living but also his domestic life, leisure activities and recreational pursuits.
Apparently his only pleasure has been tinkering with go karts and he still likes to go to sales, look for parts to dabble in go karting now and then in a limited way. It causes him some pain and discomfort but he seating arrangements in the karts, as described by him and of the photographs I have seen, are within his capacity, to manage for short periods. He states that sometimes when he overindulges in this hobby for a longer period he ‘pays for it’ as he is in a fair amount of pain and has stiffness in his spine afterwards.
He still has to rely on pain killing medication.
. . .
I consider that in a man of 48 years of age who has worked as a Truck Driver most of his life and done heavy physical type of work as a Labourer/Cleaner, as he has been left with partial/permanent impairment of function with the restrictions of duties imposed by it, he will find it difficult to find suitable work within his restrictions. I consider that he is fortunate enough to obtain employment with his present employer and is able to drive trucks for 25 hours per week or so avoiding heavy lifting and excessive, strenuous labouring type of duties. He uses a palletiser/jack mainly to unload the pallets, delivering to various addresses with relatively limited driving distances within his reach. … ”[47]
[47] PCB 103j
61 In answer to a series of specific questions, Mr Kahn considered that the injury on 26 July 2002 had been the main contributing cause to the plaintiff’s present condition and that the injury had stabilised. He opined that the plaintiff is not likely to deteriorate or improve to a significant extent, nor did he consider that the plaintiff required surgical treatment at present. Significantly, he considered the plaintiff to be totally incapacitated from his previous employment on a permanent basis and that his injuries have compromised his person and recreational pursuits to a significant extent.[48]
[48] PCB 103k
62 Mr Kahn prepared an updated report after viewing the surveillance footage to which I have earlier referred. His opinion was essentially unaltered as the result of viewing that evidence.
The Defendant’s Medical Evidence
63 I have already referred to the report prepared at the request of the defendant’s insurer which was included in the plaintiff’s material. The medical reports relied upon by the defendant included two reports of Mr Michael Troy, general surgeon, dated 20 December 2002[49] and 11 March 2003[50] respectively. In his first report, Mr Troy conceded he had limited available evidence upon which to form his opinion. He dismissed the likelihood of surgery and explained the plaintiff’s symptoms due to “an undiagnosed reason”.[51]
[49] DCB 73-77
[50] DCB 78-79
[51] DCB 77
64 As Mr Hore-Lacy pointed out, Mr Troy’s opinion that there was no likelihood of surgery as a consequence of the plaintiff’s injury was proven incorrect. Indeed, as I have indicated above, it is beyond doubt that the plaintiff underwent significant spinal surgery as described and performed by Mr de la Harpe. In fairness to Mr Troy, his opinion was not sought following these later important events.
65 The defendant also included a report from Dr William Stone, rehabilitation physician, in its Court Book.[52] I have earlier referred to the report of Dr Stone included in the PCB.
[52] DCB 80
66 On 2 June 2004, the plaintiff was examined by Mr John Drinkwater, chiropractic consultant, at the request of the defendant’s insurer. Dr Drinkwater said, of the plaintiff:
“He is a decent and pleasant man in my view and whilst I do have sympathy for his situation, the examination and imaging findings do not explain, nor are they consistent with, his ongoing pain reports.”[53]
[53] DCB 98
67 It must be observed that this observation was also made prior to the plaintiff undergoing the surgery to which I have referred. There is no evidence to suggest that Dr Drinkwater was ever asked to re-assess the plaintiff following his surgery.
68 On 24 November 2005, Mr Stanley Innes, chiropractor, examined the plaintiff.[54]
[54] DCB 99
69 Mr Innes reported:
“[The plaintiff] is unsure of which activities aggravate his pain condition. While he can ride go-karts, he cannot mow the lawns. There are times when he can perform the necessary domestic duties, such as ironing, but at other times it will markedly aggravated (sic) his pain levels. In general, he has considerable difficulty managing home activities.”[55]
[55] DCB 100
Responding to the question:
“ Are ongoing chiropractic services reasonable?”
Mr Innes said:
“His current chiropractic services are primarily passive and palliative in
nature and therefore not reasonable.”[56][56] DCB 103
70 Finally, the defendant relied on a report prepared by Mr Rodney Simm, orthopaedic surgeon, dated 8 July 2003. Mr Simm concluded:
“This man has degenerative intervertebral disc disease. I am quite prepared to accept that the cleaning duties aggravated the condition and triggered the onset of symptoms. It is a matter of record that he worked for some time after the work related aggravation and it was not until an incident at home occurred that he was really eventually incapacitated for work. I am afraid it will be a legal rather than a medical decision as to whether weekly benefits are awarded.”[57]
[57] DCB 116
71 There is no further updated information from Mr Simm.
Non-Medical Evidence
72 I have referred to surveillance footage that was taken of the plaintiff in the pursuit of his hobby of go-karting. Such footage was taken on 16 and 17 August 2008 and was disclosed to the plaintiff, as I have said. As I have also said, that footage was shown to a number of the plaintiff’s experts.
73 Further surveillance footage was taken of the plaintiff on 16, 17 and 31 May 2009.[58] Privilege was claimed over this footage, it was not disclosed to the plaintiff until he was under cross-examination. Initially objection was taken to the admission of that evidence, but the objection was ultimately withdrawn. The plaintiff was denied any opportunity of presenting that footage to any of his experts for opinion. Significantly, the defendant has never subjected any of its surveillance evidence to its own experts. All of the surveillance evidence was played in open court and defendant’s counsel was given the opportunity to point out any part of that footage that supported the defendant’s case or undermined the plaintiff’s evidence or credibility. At no stage was any passage identified. This was not a case where the video footage proved a demonstrable lie. There was no evidence showing the plaintiff to be doing anything that he claimed to be unable to do. Rather, the plaintiff was depicted doing things he said he could do.
[58] Exhibit D5
74 In addition, there are four affidavits included in the PCB that shed light on the plaintiff’s go-karting activities. In his affidavit sworn 31 March 2009, Peter Colosimo deposes that the plaintiff’s back problems are well-known in his go- karting club. It is for that reason that the plaintiff obtains assistance with lifting his go-kart on and off its trolley. He further deposes as to the protective measures taken by all go-kart riders to support their necks and backs.[59]
[59] See PCB 31-34
75 The plaintiff’s father, George Tomlinson, in his affidavit sworn 15 April 2009,[60] refers to the plaintiff’s interests in go-karting, the protective measures he takes when pursuing that hobby and the assistance he receives from others.
[60] PCB 35-36
76 In his affidavit sworn 5 May 2009, Frank Falla also deposes to the protective measures taken by riders in go-karting events.[61]
[61] PCB 38-39
77 In his affidavit sworn 18 May 2009, John Skinner deposes that the plaintiff has withdrawn from races due to back pain. He recalls seeing the plaintiff lying flat on his back in his trailer after qualifying heats.[62]
[62] PCB 43-44
78 These four affidavits were admitted into evidence without objection. The evidence answers the suggestion made by Mr. Middleton that the surveillance footage shows a man apparently unaffected by injury. Although it is not obvious from the surveillance footage, I accept that the plaintiff most likely wears rib and kidney protection that supports his body and prevents occasional bumps affecting him. I also accept his seat in the go-kart is designed to keep his body tight and prevent movement while riding. I also accept that the plaintiff pursues his hobby despite the pain it causes him and that he does this in an attempt to lead as normal a life as possible.
The Plaintiff’s Credibility
79 I accept the plaintiff as a witness of truth and accuracy. It was not suggested to him that he was lying, exaggerating, malingering or distorting the true facts, although I have said Mr Middleton complained the plaintiff did seek to put a particular gloss on the extent to which he was able to engage in his hobby of go-karting.[63]
[63] T 226, L11 to T 230, L1
80 It was also suggested in cross-examination that the plaintiff was inconsistent on the question of whether he was injured in the first incident by mopping or buffing. Taking into account all of the evidence, I do not consider any such inconsistency to be significant or sinister.
81 I found the plaintiff to be an impressive witness.
Serious Injury
82 The plaintiff identifies the following facts in support of a finding that his pain and suffering consequences are “very considerable” or more than “significant” or “marked”:
• The plaintiff underwent surgery as described, which relieved some leg pain. He has nevertheless been left with constant back pain, as well as pain in his right leg which is present about 80 per cent of the time.[64] This was not challenged. • The plaintiff suffers from “massive pain” in his back and down his leg[65] and tries to manage his pain by lying down at home for at least a couple of hours after work.[66] • The plaintiff continues to rely on Tramal despite its side-effects.[67] • The plaintiff continues to receive weekly chiropractic treatment from Dr Williams,[68] who has been treating him without charge since WorkCover ceased funding the treatment six months ago.[69] • The plaintiff has been unable to return to full-time employment as a result of his back injury.[70] [64] PCB 13
[65] T 199, L24-25
[66] T 198, L20-27
[67] T 33, L14-22
[68] T 69, L18
[69] T 200, L16-29
[70] T 199, L8-12 and PCB 12
83 On the other hand, the defendant argues that because the plaintiff has returned to work and is earning more than he was before the accident, and because he is still able to pursue his go-karting, the pain and suffering consequences could not be described as “very considerable”.
84 Mr Middleton referred to a number of authorities, including Maro Stijepic v One Force Group Aust Pty Ltd & Victorian WorkCover Authority [2009] VSCA 181; Tatiara Meat Company Pty Ltd v Kelso (supra); and Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. Those cases do not compel the conclusion that the plaintiff’s injury is not “serious”.
85 True it is that the plaintiff’s income has increased, but that is not determinative. The other evidence before me, all the unchallenged evidence about the pain and suffering consequences he suffers, rebuts any prima facie position that an increase in pay may indicate that the injury is not serious. The fact is, before the injury, the plaintiff was able to do a very physically demanding job that involved bending, twisting, lifting, reaching and manoeuvring equipment for many hours in the day, many days of the week. Now the plaintiff is restricted to limited hours of driving for an employer who has made allowances for his disability. His future in that type of work is dubious. He has restrictions on lifting and any future employment will require manual lifting restrictions of around 10 kilograms. He will also need to be protected from bending, twisting and the like.
86 Before the injury, the plaintiff worked pain-free. Now he has ongoing pain. Before the injury, the plaintiff was free to pursue his hobbies without physical restriction. Now he pursues that activity despite pain, and is limited by the restrictions imposed on him. He usually requires assistance to help lift his go- kart. Before the injury, the plaintiff was able to do his domestic chores without pain. Now he does them but the activity is not pain-free. Before the injury, the plaintiff did not require surgery. As a result of the injury, he required surgery. Although it has been successful in part, it has not solved all of his problems.
87 I agree with the expert evidence already referred to, to the effect that the plaintiff, in all probability, will not be able to return to full-time work.
Conclusion
88 Taking all of these matters into account, I am satisfied on the balance of probabilities that the pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments, can fairly be described as being more than “significant” or “marked”. I am satisfied that the plaintiff’s injury qualifies as a “serious injury” within the meaning of s.135AB(37)(a) of the Act.
Which Incident Caused the Serious Injury?
89 As I said earlier, the defendant accepted, for the sake of argument, that the plaintiff was injured in the course of his employment. Therefore it is not critical to these proceedings to make a determination as to which episode caused the plaintiff’s serious injury. However, Mr Hore-Lacy urged me to make a finding that it was the first rather than the second incident which caused the plaintiff’s serious injury. He relied on the following pieces of evidence to support such a finding:
•
Dr Mutton’s view that the contributing factors to the plaintiff’s condition are the initial workplace incident in 2002;[71]
• Mr de la Harpe, at PCB 54; • Dr Vivian, at PCB 56 and 57; • Dr Williams, at PCB 59; • Dr Mutton, at PCB 87 and 90; • Professor Myers, at PCB 102; • Mr Kahn, at PCB 103i; • Mr Rodney Simm, at DCB 116; • Compare and contrast Mr Troy, at DCB 76. [71] DCB 110
90 Although not required to make a positive finding on this question, I am inclined to uphold Mr Hore-Lacy’s submission.
Orders 91
I therefore propose to grant leave pursuant to s.134AB of the Act for the plaintiff to commence proceedings for pain and suffering damages against the defendant for injury to his lower back sustained during the course of his employment with the defendant, Kilkenny Cleaning Services Pty Ltd, on 26 July 2002 and 24 August 2002.
92 I will hear counsel as to the precise wording of the order.
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