Turan v Toyota Motor Corporation Australia Ltd
[2016] VCC 35
•8 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03925
| BAHRI TURAN | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2016 and 29 January 2016 | |
DATE OF JUDGMENT: | 8 February 2016 | |
CASE MAY BE CITED AS: | Turan v Toyota Motor Corporation Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 35 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Economic loss –Current capacity for work – Suitable employment.
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited: Advanced Wire and Cable Pty Ltd v Abdulle [2009]
VSCA 170
Judgment: Leave granted in respect of economic loss and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr G Lewis QC with Ms S De Guio | Minter Ellison Lawyers |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) by the Plaintiff for leave to commence a proceeding for damages in respect of the economic loss consequences and pain and suffering consequences of an injury suffered by him whilst employed in the logistics department at Toyota Motor Corporation Australia in Altona North (“Toyota”) on 18 June 2013. The injury relied upon by the Plaintiff is an aggravation to pre-existing asymptomatic degenerative change with intervertebral disc derangement and prolapse at L5‑S1 of the Plaintiff’s lumbar spine. The body function relied upon by the Plaintiff is his spine.
2 It is not in issue in the proceeding that the Plaintiff suffered the injury whilst manoeuvring a heavy trolley containing motor vehicle parts in the logistics department at Toyota.
3 The Plaintiff commenced employment with the Defendant on or about 27 October 2006, and during the course of that employment he was required to carry out frequent heavy, awkward and repetitive duties, including moving heavy trolleys and lifting car parts.
4 In support of the application, the Plaintiff filed two affidavits sworn by him on 20 April 2015 and 8 January 2016 respectively. In addition, the Plaintiff attended the hearing of the matter, gave evidence, and was cross-examined. Otherwise the parties relied upon the medical and vocational material tendered by each of them.
5 The Plaintiff was born on 11 September 1967 in Turkey and was educated to Year 11 level. He completed a short period of time as an apprentice fitter and turner, and then worked in a car factory in Turkey prior to migrating to Australia in 1985. After arriving in Australia he worked for the Ford Motor Company on the assembly line for a period of three years.
6 The Plaintiff’s first wife died in 1990, and after spending a period of time in Turkey he returned to Australia in 1993. Between 1995 and 2005 the Plaintiff was unemployed, and remained at home caring for his children. The Plaintiff remarried in 1992.
7 In 2005 the Plaintiff commenced work as a factory worker at Schiavello Plaster, and then at a printing company called Franklin, prior to commencing employment at Toyota. I am satisfied that prior to his injury the Plaintiff had been employed in labouring occupations involving limited skills and training. Furthermore, I am satisfied that the Plaintiff’s educational training may also properly be described as limited.
8 I am satisfied that the Plaintiff experienced pain after manoeuvring a trolley on 18 June 2013, and the following day he experienced extensive pain in his lower back. On 19 June 2013 the Plaintiff reported to his general practitioner, Dr Tadros, that he had experienced back pain at work. Following this the Plaintiff continued to perform his normal duties at Toyota, whilst experiencing continuing lower back pain.
9 On 25 June 2013 he reported the injury to Toyota, and an injury management plan was prepared. He also attended at the Toyota Medical Centre on that day, and was certified by Dr Al-Asaad as fit for light duties. The light duties involved movements that caused the Plaintiff to experience increased pain. The Plaintiff reported his increased pain to Dr Al-Asaad, who directed that a CT scan of the Plaintiff’s lower back be conducted. On 15 July 2013 a CT scan revealed:
“Severe degenerative facet joint disease at L4/5 results in mild anterolisthesis at this level with only mild spinal canal narrowing. No definite nerve root compression seen at this level.
At L5/S1, there is a left paracentral posterior disc protrusion abutting the left S1 nerve root sheath origin.”[1]
[1]Fourth amended Plaintiff’s Court Book (“PCB”), page 123
10 In September 2013, after a holiday in Turkey, the Plaintiff returned to light duties at Toyota. His lower back pain and associated pain worsened, and on 12 September 2013 the Plaintiff submitted to his employer an application for workers’ compensation. The application was accepted by Toyota on 26 September 2013.
11 Prior to the Plaintiff suffering the injury, his wife had also suffered injury during the course of her employment, and for the purposes of a workers’ compensation claim she consulted Dr Hakan Baglar, a medical practitioner with some experience in work-related injury.
12 The Plaintiff first consulted Dr Baglar on 3 October 2013, at which time Dr Baglar certified that the Plaintiff was unfit for any form of work and directed that an MRI scan be obtained of the Plaintiff’s lumbar spine. That MRI scan was conducted on 21 October 2013, and revealed:
“1. Large, left sided L5‑S1 disc extrusion impinging upon the left S1 nerve root as described.
2. Left sided L4‑5 annular disruption.
3. Small L4 vertebral body haemangioma adjacent to what is probably an atypical vertebral body haemangioma.”[2]
[2]PCB 122
13 On 21 May 2014 the Plaintiff was examined by Professor Richard Bittar, neurosurgeon, who directed that a SPECT scan be conducted of the Plaintiff’s lumbar spine. That scan was conducted on 24 June 2014 and revealed:
“The SPECT images show definite increase in uptake of tracer in the left and right L4/L5 facet joints when compared with other regions in the lumbar spine. The most likely cause is degenerative facet disease. The uptake of tracer in the left L4/L5 facet joint is a little greater than its right counterpart.”[3]
[3]PCB 124
14 A further MRI scan conducted at Professor Bittar’s direction on 1 July 2014 revealed:
“Prominent facet arthropathy at L4/5 associated with a slight anterolisthesis but only minimal disc bulge and no convincing evidence of significant exiting nerve root impingement. The disc at most just contacts both budding L5 nerve roots without distortion or displacement. The other levels are relatively unremarkable.”[4]
[4]PCB 126
15 Professor Bittar further directed that spine flexion and extension x‑rays be conducted, and on 22 July 2014 they revealed:
“A Grade 1 spondylolisthesis is seen at L4/5 without any demonstrable instability between flexion and extension views. Joint space narrowing is noted at L5/S1 without any further spondylolisthesis. Intervertebral disc height is well preserved at the other levels with some mild lower thoracic and upper lumbar degenerative changes.”[5]
[5]PCB 126.1
16 On 26 August 2015 a further MRI scan of the Plaintiff’s lumbar spine was conducted, which revealed that the findings were unchanged when compared to the examination conducted on 1 July 2014.
17 The radiological evidence establishes that the Plaintiff had suffered a lumbar spine disc prolapse and the aggravation of previously asymptomatic lumbar spondylosis and spondylolisthesis.
18 As I have already observed, the Plaintiff’s general practitioner referred him to Professor Richard Bittar for the purpose of the provision of a neurosurgical opinion and treatment. On 27 June 2014 Professor Bittar concluded that the Plaintiff was currently unfit for both pre-injury employment and alternate duties. After further investigation and a referral to Dr Symon McCallum, a specialist pain physician, Professor Bittar concluded on 21 July 2015:
“In my opinion he can never return to his usual occupation.
In my opinion it is unlikely that he would be a suitable candidate for retraining in a new occupation.
In my opinion he will never be able to perform a job for which he is reasonably suited by education, training and experience. The reason for this opinion is that he has sustained a very serious injury to his lumbar spine, and his work background is that of labouring-type work. He does not have any significant skills that would allow him to work in another very sedentary role.
In my opinion it is very unlikely that he will be able to return to any gainful employment. The reason for this is that his symptoms are likely to persist into the foreseeable future and are associated with very significant disability. For a factory worker, this type of injury is extremely significant and career ending.”[6]
[6]PCB 64
19 It is clear from the content of Professor Bittar’s curriculum vitae that he is a highly qualified consultant neurosurgeon, and considerable weight ought to be given to medical opinions expressed by him.
20 The Plaintiff was also examined, on 1 October 2014, by Mr David Brownbill, a consultant neurosurgeon, who concluded:
“He is not fit for his pre injury employment.
He should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
With ongoing fluctuating back and leg pain with activity exacerbation I consider on probability he would have difficulty performing any employment for which he is suited in an ongoing or reliable fashion.”[7]
[7]PCB 90
21 And further:
“I anticipate that pain will continue in a fluctuating manner.”[8]
[8]PCB 90
22 Mr Brownbill reviewed the Plaintiff on 16 June 2015 and concluded:
“He continues to describe fluctuating back and leg pain and noting his previous work experience had involved heavy physical activity I still consider that on probability he would have difficulty performing any employment for which he is suited in an ongoing or reliable fashion.”[9]
[9]PCB 94
23 Mr Brownbill further confirmed the opinion he had expressed following his examination of the Plaintiff on 1 October 2014. I note that Mr Brownbill is also a highly qualified and experienced consultant neurosurgeon.
24 The Plaintiff was examined by Dr Chris Baker, a specialist in occupational medicine, on behalf of the Defendant. Dr Baker also examined the available radiological evidence, and concluded in a report dated 26 August 2014:
“I consider his symptoms have been caused by the facet joint arthropathy and the bulging disc in the lower back. Based on his statements, I consider there was a work-related aggravation.”[10]
[10]Defendant’s Court Book (“DCB”), page 8
25 And further:
“I do not consider he is capable of returning to his pre-injury duties, but is capable of participating in a graduated programme.”[11]
[11]DCB 8
26 Further, Dr Baker concluded:
“I consider he has a current work capacity. I consider he has a capacity for suitable employment.”[12]
[12]DCB 9
27 Dr Baker also concluded:
“He should undertake work which does not require repeated bending or twisting and should not be lifting weights of more than 5 kg. He should participate in a graduated return to work programme.”[13]
[13]DCB 9
28 In a further report dated 16 December 2015, Dr Baker concluded that the Plaintiff “has a capacity to work half time hours”, and that “with time and work hardening” he should be able to increase his hours.[14]
[14]DCB 13
29 The Plaintiff was also examined on behalf of the Defendant by Mr Philip Sharp, a senior consultant surgeon, who concluded on 11 December 2015 that the Plaintiff:
“[S]hould therefore have a graded return to work, working perhaps 3–4 hours per day, three days per week. His hours could be monitored by his nominated treating doctor.”[15]
[15]DCB 33
30 Finally, the Plaintiff was examined by Dr Dominic Yong, a specialist occupational physician, who reviewed the available medical material, including medical reports of the Plaintiff’s treating medical practitioner and the report of Professor Bittar dated 27 June 2014 and the report of Mr Brownbill dated 16 June 2015, together with the radiological evidence. Following his examination, Dr Yong concluded that the Plaintiff was magnifying the symptoms of his injury and that he had a current capacity for work. Dr Yong concluded:
“With respect to working hours, given the period of time out of the workforce and the degree of deconditioning and dysfunction, a graduated return to work program would be indicated. This would initially involve working reduced hours such as 4 hour shifts for 4 days per week. This can increase back to the pre-injury level over a 6 month period, as part of an activity based recovery program.”[16]
[16]DCB 42
31 Dr Yong concluded that the Plaintiff would not be able to return on a part-time basis to his pre-injury employment, and that any employment undertaken by him would be restricted by avoiding repeated bending, avoiding repeated firm pushing and pulling, being able to vary his posture between sitting, standing and walking, and avoiding lifting more than 5 kilograms on a repeated basis. Dr Yong repeated this opinion in a further report dated 7 December 2015.
32 When the Plaintiff gave evidence and was cross-examined, he agreed that he had not returned to work under any work plan with Toyota, and gave the following evidence:
“Did you do any work at Toyota under a return to work plan after October 2013?---No, no I didn’t.
Why not?---Because I wasn’t – because my pain was – because of my pain I can’t, I can’t do it because when, when I – if I start this, like pain is more, increasing more.
You say there is absolutely nothing you can do?---Yeah.”[17]
[17]Transcript (“T”) 47, Lines (“L”) 20–25
33 The Plaintiff was asked the following further questions:
“If you had a job where you could stand or sit and answer people’s enquiries in a storage facility surely you could do that?---No I can’t.
Why not?---Because I have to – I have to sit down and then – because
- - -But let us say you could sit – I’m sorry?---When I do some things, like I feel more like uncomfortable.”[18]
[18]T48, L18–24
34 The Plaintiff further stated, when cross-examined, that due to the pain he was experiencing his morale goes down “very much”. He repeated in cross-examination that he was unable to undertake work of any sort because of the pain that he experienced.
35 The evidence given by the Plaintiff that he experiences ongoing and debilitating pain was not significantly challenged by the Defendant during the cross-examination of the Plaintiff, nor was it put to the Plaintiff in cross-examination that he had magnified the symptoms of his injury and the level of pain he was experiencing when he was examined by Dr Yong.
36 The Plaintiff’s credit was not put in issue in the proceeding and in my opinion his evidence was cogent and truthful.
37 The evidence establishes that the Plaintiff continues to suffer from ongoing pain as a result of the injury. The Plaintiff continues to receive a narcotic analgesic and muscle-relaxant medication, and has undertaken physiotherapy and hydrotherapy in an effort to manage that pain. The evidence also establishes that the Plaintiff has great difficulty sleeping due to the pain he experiences, and that he has difficulty driving a car, and some difficulty dressing and showering due to the bending involved. The evidence also establishes that the Plaintiff is unable to perform the household duties he was carrying out prior to the injury. Furthermore, I accept that as a result of the pain and the Plaintiff’s impaired sleeping he is often tired and fatigued.
38 Section 134(AB)(38)(g) provides as follows:
“A worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
39 Whilst I am required to assess the Plaintiff’s current capacity for work, I am also required to have regard to the reasonableness of his attempts to participate in rehabilitation or retraining. The evidence establishes that the Plaintiff has not undertaken any employment since October 2013, and further that he has not participated in any attempts to retrain himself.
40 In my opinion, the Plaintiff is suffering from ongoing pain such that his failure to undertake any retraining or attempt at retraining is not unreasonable.
41 I have analysed the Plaintiff’s evidence and that of the medical practitioners who have expressed opinions as to the Plaintiff’s employability, and I am satisfied that the Plaintiff is currently not fit for suitable employment. I accept the Plaintiff’s evidence that he is experiencing constant pain in his lower back, and that the intensity of that pain varies but is usually of considerable intensity. I further accept that the pain increases if he remains in a seated, standing or walking position for anything in excess of 30 minutes. I further accept that the Plaintiff experiences very intense pain on occasions.
42 Both Professor Bittar and Mr Brownbill are highly qualified neurosurgeons who express the opinion that the Plaintiff is unfit for any suitable employment. Their opinions are also supported by the opinion of the Plaintiff’s treating medical practitioner.
43 It is the case for the Defendant that the Plaintiff is currently only capable of performing part-time employment, and in that respect only light duties.
44 It is also the case for the Defendant that if the Plaintiff follows a graduated return to work program over a period of 6 - 12 months he will be capable of resuming his pre injury working hours.
45 In my opinion it is unclear from the opinions relied upon on behalf of the Defendant how the Plaintiff’s condition will improve by reason of him undertaking part-time employment or a “ graduated return to work program”. No attempt is made in the reports of Dr Yong, Dr Baker or Mr Sharp to explain how this would come about in the particular case of the Plaintiff.
46 The radiological evidence establishes that the injury suffered by the Plaintiff, who is now 48 years old, aggravated degenerative lumbar spine disease, and in such circumstances, in my opinion, it is unlikely that ongoing employment would improve the Plaintiff’s current medical condition.
47 I am satisfied that the Plaintiff’s injury has stabilised and accordingly is permanent. As stated by Professor Bittar, the type of injury suffered by the Plaintiff is “extremely significant and career ending”.[19] Therefore, the injury may fairly be described as being more than significant or marked.[20]
[19] Ibid PCB 64
[20] See Section 134AB(38) (c) of the Act
48 In the result, I am satisfied that the Plaintiff has no capacity for any employment.
49 Further, the case for the Defendant, taken at its highest, is that the Plaintiff is currently capable of undertaking 16 hours per week of suitable employment. Of the occupations detailed in the report of Nicholas Janides, an occupational rehabilitation consultant, the highest hourly rate available to the Plaintiff if he were employed as a customer service officer in a storage facility is $26.08 per hour. This equates to $21,698.56 per annum.
50 In this proceeding it is agreed that the Plaintiff’s “without injury” earnings are $79,817.49 per annum.
51 As I have indicated, I am satisfied that the Plaintiff has no capacity for any employment due to his lumbar spine injury. However, even if one accepts that the Plaintiff is capable of part-time suitable employment, and as the medical evidence establishes his medical condition has stabilised, the Plaintiff has established a loss of earning capacity which meets the threshold fixed by the Act.
52 Accordingly, for the reasons set out above, I am satisfied:
(i) that the Plaintiff has established by reason of the impairment of functioning arising by reason of the injury the subject of this application he has sustained a loss of earning capacity which meets the statutory threshold fixed by the Act;
(ii) that the consequences of that loss of capacity are fairly described as being more than significant or marked and as being at least considerable.
53 It follows that the Plaintiff is entitled to the order sought in this application, namely leave to commence a proceeding claiming damages for both pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of this application.[21]
[21]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
54 I will hear the parties as to the precise form of orders sought in the matter and also upon the issue of costs.
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