Watkins v VWA
[2014] VCC 150
•3 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-05594
| PAUL WATKINS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 January 2014 | |
DATE OF JUDGMENT: | 3 March 2014 | |
CASE MAY BE CITED AS: | Watkins v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 150 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application under s. 134AB of Accident Compensation Act – injury suffered in the course of employment – whether the second injury constituted a novus actus interveniens
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:AG Staff Pty Limitedv Filipowicz&Ors [2012] VSCA 60, Victorian WorkCover Authority and CGU Workers’ Compensation (Vic) Ltd v Hartley [2010] VSCA 74, GrechvOrica Australia Pty Ltd&Anor [2006] VSCA 172, StijepicvOne Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. McCredie | Arnold Thomas & Becker |
| For the Defendant | Ms K. Gladman | Lander & Rogers |
HER HONOUR:
Introduction
1 The application was initiated under section 134AB of the Accident Compensation Act 1985 (the Act) by the plaintiff on 11 July 2012 to recover damages in respect to injury arising on or after 20 October 1999.
2 The “Form A” document dated 11 July 2012 relevantly nominated Hedger Construction Pty Ltd as the employer (the employer) for the period 25 March 2004 to 14 January 2005. It also specified the injury relied on as: “Injury on or about 19 May 2004 to the L/5 and L5/S1 disc with sciatica, leading to surgery on 19 April 2005, being a double level fusion with instrumentation (sic)...”
3 The Act and Ministerial Directions require various documents to accompany or be included with the Form A document. One such document, the Statement of Claim, must articulate and particularise each cause of action. In this case, the Statement of Claim relevantly alleged a cause of action against the employer and particularised injury on or about 19 May 2004 in the same terms.
4 An affidavit sworn by the plaintiff on 11 July 2012, also accompanied the Form A document.[1] As my discussion of its content indicates in due course, this affidavit described in some detail the circumstances in which injury occurred in the course of the plaintiff’s employment with the employer on or about 19 May 2004, as well as the circumstances in which his work activities in January 2005 led to further back pain and the cessation of employment on 14 January 2005.
[1] Exhibit P1, Plaintiff's Court Book (PCB) 17-27
5 I was told the Authority gave the written Advice[2] required by the Act in respect to the 19 May 2004 injury and the circumstances in which it was alleged to have occurred. A copy of this Advice was not tendered. Evidently, it notified the plaintiff that he was not deemed to have suffered serious injury.
[2] Section 134AB(7)
6 In accordance with the timetable set out under the Act, within 30 days of receipt of the Advice, by Originating Motion filed on or about 16 November 2012, the plaintiff sought leave pursuant to section 134AB(16)(b) to bring proceedings for the recovery of damages in respect of the injury.
7 The indorsement of the relief sought and the legislation under which this was brought was expressed in the Originating Motion in the following way:
a) A declaration that the Plaintiff has a “serious injury” within the meaning of Section 134AB of the Accident Compensation Act 1985 (as amended).
b) An order that the Plaintiff have leave pursuant to section 134AB of the Accident Compensation Act 1985 (as amended) to institute proceedings for damages in respect of injuries sustained by him in the course of his employment on or about 19 May 2005.
c) Costs. (sic)
8 At hearing the plaintiff applied for and was granted leave to amend paragraph b) of the indorsement as follows:
b) An order that the Plaintiff have leave pursuant to section 134AB the Accident Compensation Act 1985 (as amended) to institute proceedings for damages in respect of injury sustained throughout the course of his employment with the Defendant and in particular on 19 May 2004 and 14 January 2005.
9 This preliminary application was contested, as was the leave application.
Background matters
10 Background matters relevant to my determination of both the preliminary application and the leave application were outlined in the plaintiff’s affidavits. As mentioned, the first of these was sworn on 11 July 2012 (the first affidavit). The affidavit sworn on 10 December 2013[3] was supplementary to the more detailed first affidavit.
[3] PCB 28-31
11 The plaintiff is forty-six years of age. He has two adult sons, who, from a very young age, were raised by the plaintiff as a sole parent. They have left home. The plaintiff now lives with a partner.
12 The plaintiff was educated to year 10 level. Other than during periods off work caring for his sons, the plaintiff appears to have had a steady work history involving clerical, factory and fencing work. However, as mentioned, he was employed by the employer, from 25 March 2004, as a labourer and, from 25 October 2004, as an apprentice plumber. As I understood the evidence, the plaintiff did not return to complete his apprenticeship after he suffered further lower back injury in January 2005.
13 The plaintiff alleged injury in the course of his employment involving damage to his lower back at the L4/5 and/or the L5/S1 levels. He deposed that he experienced symptoms of lower back pain on or about 19 May 2004 whilst lifting and carrying posts. According to the plaintiff, he had been instructed by the defendant’s site foreman to paint about 20 wooden posts with sealer. These posts were intended for use in the construction of a 2 story house outside Eildon, Victoria.
14 The circumstances giving rise to injury and the events that ensued were described in the first affidavit as follows:[4]
[4] PCB 18-20
“9. … The posts were all the same size. They were made of cypress pine which is a heavy timber. The posts each measured approximately 125 mm. by 125 mm. and each post was of a length somewhere between 4.5 to 6 metres. I am uncertain as to the weight of each post, but I would estimate that each post weight between 30 and 40 kilograms. The post were all lying down in a stack on the ground. I was assigned to do this work alone. I lifted one post from the stack and carried it and lay it down across two sawhorses. I then painted the post and lifted and moved the post and stacked it with other painted posts on the ground with small battens between the posts to facilitate drying. I would then repeat the process.
………
11. When I started work, the employer gave me a Time Sheet Statement Tax Invoice Book (“the book”). The employer gave a similar book to each of its employees. I recorded in the book at the end of each working day the worked on that day, how many hours were spent and who the client was. I still have the book. The book records that on 19 May 2004 at the McKaskill’s property, I did 9 hours work and it records the type of work as “pipe trench” and also “wet seal posts”. I recall that of the 9 hours I worked that day I spent between 6 and 7 hours applying wet seal to the posts. I did about 15 posts that day.
12. Over the next one or 2 days, I finished off the remainder of the posts along with other work done on those days. It was on 19 May 2004 that my back became sore whilst I was doing the work lifting and carrying the posts (the first injury).
13. I did not report any injury at the time. It was my belief that the injury was merely muscular.
14. Thereafter, I continue to be troubled by low back pain which was intermittent. The problem never resolved and over time became worse.
15. I last worked for the employer on Friday, 14 January 2005. After that, I was off work with a doctor’s certificate but I did attend trade school on 22 January, 25 January, 27 January and 28 January 2005. Whilst attending school I was in a great deal of pain and had difficulty walking.
16. For the last 2 weeks prior to my finishing work on 14 January 2005, I was experiencing quite a lot of pain in my lower back. Despite this, I continued working and tried to be as careful as I could not to aggravate my back. I simply tried to get on with the job as best I could. I did not report the back pain any superior at work. I did mention that I had a sore back from time to time to fellow workers...”
15 The plaintiff further deposed that, on 12, 13 and 14 January 2005, he performed sewer work. This involved using a shovel to tidy up trenches and then moving and laying down screening on the bottom of the trenches. The plaintiff said he scooped up screening with a bucket and tipped the screenings into a wheelbarrow, in which he moved the screenings to the trench.
16 According to the plaintiff, this work involved bending, twisting and lifting and applying considerable force through his lower back. The plaintiff recalled that, as he drove home after work on 14 January 2005 his back was particularly sore and depressing the clutch pedal had increased low back pain (the second injury).
17 The plaintiff further recalled that, the following morning, his right foot was numb, his right leg ached and his low back and right leg felt sore. Having rested that day, on Sunday 16 January 2005, the plaintiff’s parents drove him to the Alexandra Hospital apparently because the plaintiff was unable to stand and his right leg and back were very sore with numbness affecting this leg and foot.
18 In his supplementary affidavit the plaintiff deposed that the reference to his right leg had been made in error, rather it was his left leg that had been giving him trouble at the time.[5]
[5] PCB 28
19 The claim for compensation dated 16 February 2005[6] in respect to “PROLAPSED DISCS IN LOWER BACK” affecting the low back and left leg, was accepted on 29 March 2005.[7] The later claim for impairment benefits dated 13 October 2011 was also accepted.
[6] Exhibit D3
[7] Exhibit D1
20 Relevantly, in both claim forms the plaintiff nominated 14 January 2005 as the date of injury and, where questioned about any previous pain/disability in the area of the present injury or any earlier similar injury/condition the plaintiff responded in the negative.
21 No further formal claim for compensation was submitted in respect to the first injury.
22 However, it was common ground that the plaintiff had consistently provided doctors with histories in which he referred to the first injury and the second injury. It was further acknowledged by the defendant that in April 2005 Cambridge Integration Services gave permission to the treating neurosurgeon, Associate Professor Brazenor for a two-level instrumented lumbar fusion. Surgery was performed on 19 April 2005. Notably, in a letter dated 30 March 2005 seeking permission under the WorkCover claim to operate, the surgeon implicated both the first injury and the second injury when he said:[8]
“This man has a severe injury to his L5/S1 disc and a slightly less severe injury to L4/5 and these occurred in the course of lifting heavy timber posts whilst working at Skyline Road, Eildon on 19 May 2004. The injury was further exacerbated on 14 January 2005 was working on a building site at Marysville.”
[8] PCB 44
23 If, as I have, one accepts the plaintiff was a credible witness, the uncontradicted evidence of the neurosurgeon provides compelling evidence that the second injury was in the nature of an exacerbation of the first injury to the discs of the lumbar spine.
Amendment of the Originating Motion
24 Based on the documentation and background matters summarised above, the indorsement of the relief sought in the Originating Motion was factually erroneous because the date mentioned (“on or about 19 May 2005”) was wrong whichever injury scenario was advanced.
25 The defendant, nevertheless, argued that the Court lacked jurisdiction to amend this error in the manner sought, essentially because the Advice of the Authority under the Act had been based on the application made in the Form A documentation.
26 As mentioned, the application for a serious injury certificate and the Advice nominated the first injury only. The omission of the second injury is at odds with the claim form in which the second injury was nominated (and accepted as compensable injury) and with material required to accompany the application, in particular the first affidavit. The latter sets out in some detail the first injury and the second injury (described by the surgeon in March 2005 as a further exacerbation) and the employment circumstances in which it was alleged each injury arose.
27 In short, in this case I was satisfied that the general power of the Court to correct the obvious error in the indorsement of the Originating Motion and to allow determination of the real question in controversy between the parties to the leave application was not precluded by the description of the injury in the Advice or by the Act.
The issues in the leave application
28 Following amendment of the Originating Motion and further discussion between the parties, I was informed the plaintiff’s application for leave was now confined two discrete dates, namely 19 May 2004 and 14 January 2005, with the defendant having agreed to grant a serious injury certificate only in respect to the second injury.
29 The application for leave in respect to the first injury was made pursuant to paragraph (a) of the definition of ‘serious injury’ for pain and suffering only for permanent serious impairment or loss of function of the plaintiff’s lower back.
30 In the absence of contemporaneous evidence (presumably corroborative evidence) of back pain after the first injury, the defendant did not concede compensable injury on 19 May 2004.[9] This was despite not having challenged, through cross-examination, the plaintiff’s sworn version of the employment events relating to the first injury or the history given to the doctors in this regard. The defendant, however, submitted the failure to mention the first injury in the WorkCover Claim Form, indicated that, in February 2005, the plaintiff viewed the second injury, in counsel’s words as: “the main one”.[10]
[9] Transcript (TN) 99-100
[10] TN 98 and 130
31 It was common ground that, I was required to determine whether the pain and suffering consequence of the first injury also met the narrative test under the Act.
32 The plaintiff’s counsel conceded at the outset that one difficulty faced by the plaintiff was that he first attended for treatment of lower back and leg symptoms after 14 January 2005.
33 However, on behalf of the plaintiff counsel submitted the insult to his back on 19 May 2004 had materially contributed to the development of sciatica and to the need for fusion surgery at two levels of the plaintiff’s lower spine on 19 April 2005.[11]
[11] TN 29
34 For reasons explained shortly, I was satisfied that the plaintiff suffered compensable injury on two discrete dates. It was common ground that the decision of the Court of Appeal in AG Staff Pty Limitedv Filipowicz&Ors[12] indicated the correct approach to the determination of an application, where, as in this case, the plaintiff suffered injury in separate incidents on or after 20 October 1999 (the second probably being in the nature of an exacerbation injury). As explained by Filipowicz the Court was required to:
[12] [2012] VSCA 60 [30]-[35]
· identify each of the injuries;
· delineate the impairment consequences of each;
· determine whether any separate injury (including an aggravation injury) qualified as a serious injury under the Act;
· make a comparison between the plaintiff’s condition before and after the second injury and then assess the impairment;
· be satisfied that the requirements of a ‘serious injury’ had been met by the first injury in its own right rather than in combination with the second injury.
35 In the present application, the defendant has already conceded the second injury qualified as a serious injury. The defendant, however, placed particular reliance on the requirements contained in the last 2 dot points, arguing that the evidence adduced by the plaintiff was insufficient to establish that the consequences of the first injury were, 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”.[13]
[13] Section 134AB(38)(c) and TN 84
36 The plaintiff, however, submitted that the task in this case required more than a simplistic analysis of the plaintiff’s condition before and after the second injury.[14] The Court, it was submitted, must first determine whether the second injury amounted to a novus actus interveniens. In this regard, I was taken to the decision by the Court of Appeal in Victorian WorkCover Authority and CGU Workers’ Compensation (Vic) Ltd v Hartley[15] where the Court found an unbroken causal link between the original compensable injury and surgical treatment. The latter apparently exacerbated or worsened the worker’s condition (“The 1999 knee injury and the further injuries have the same genesis”[16]).
[14] TN 113-124
[15] [2010] VSCA 74
[16] Ibid [52]
37 In the present application, if the second injury amounted to a novus actus interveniens, the consequences of this injury were to be treated as entirely separate. However, if the second injury was, as the treating neurosurgeon’s evidence suggested, an exacerbation (a worsening of the unresolved first injury to the lower back), the second injury was a consequence of the first injury.
38 I have accepted the correctness of the plaintiff’s submission, which also drew on dicta of Court of Appeal in GrechvOrica Australia Pty Ltd&Anor.[17] In Grech, His Honour Ashley JA relevantly said:[18]
“… it cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible – it will be a matter for determination according to the evidence in the particular case – that each of two or more compensable injury is a legally sufficient cause of the same consequences.”
[17] [2006] VSCA 172
[18] Ibid. [57]
39 The illustration given by His Honour was of a worker suffering compensable carpal tunnel injury, which had no consequence sounding in an entitlement to compensation and might never have done so, until the worker suffered further hypertrophy of tissue and compression of the median nerve on each side sufficient to produce compressive neuropathy. This further injury was productive of consequences but, as His Honour added: “it does not follow that such consequences – that is, the entirety of the consequences – did not also result from, or at least were not materially contributed to by” the earlier injury.[19] As in the present case, this was a question of fact to be decided on the evidence.
[19] Ibid. [64]
40 As my discussion of the evidence reveals, I was satisfied firstly, that the first injury to the lower back occurred in compensable circumstances and, secondly, that the second injury was probably an exacerbation of the first injury. In short, I was satisfied as to the causal relationship between the first injury and the development of sciatica and the need for fusion surgery. It follows from this that the first injury was probably a cause of the ensuing pain and suffering consequence.
The evidence
41 As mentioned, the plaintiff relied on two affidavits. He was cross-examined at length. The documents tendered from his Court Book included correspondence and medical reports from treating neurosurgeon, Associate Professor Brazenor and medico-legal specialists, general surgeon, Mr Long and orthopaedic surgeon, Mr King, the neurosurgeon’s operation notes and the radiological reports.[20]
[20] Exhibit P1
42 The defendant tendered from its Court Book Impairment Benefit Claim form with notification of acceptance of the plaintiff’s claim for compensation under the Act, medical report and correspondence from consultant occupational physician, Dr Mutton and entries from the records kept by the Alexandra Medical Centre between 5 July 2004 and 3 February 2005.[21] The defendant tendered separately the reports of treating psychiatrist Dr Wahr[22] and the Worker’s Claim Form.[23]
[21] Exhibit D1, Defendant’s Court Book (DCB)
[22] Exhibit D2
[23] Exhibit D3
43 There was some attack on the plaintiff’s credit during final submissions. I was urged to find that the plaintiff had not been frank in recounting the extent of his activities. I will deal with these matters as they arise.
44 I, nevertheless, formed the view that the plaintiff was a credible witness. He was straightforward in his responses. Save for obvious errors in some of the dates recorded in the medical reports and, at times, problems recalling these, the plaintiff gave consistent histories to doctors in which he described lower back pain arising in association with two work-related episodes some months apart.
45 The earliest description of the lower back injury in the tendered materials was contained in the general practitioner’s clinical notes for 3 February 2005 where he recorded: “3 weeks ago developed prolapsed disc in back. Using Panadiene forte. Apprentice plumber. Probably did it ages ago (uncertian when). Initially felt it was a strained muscle in his back. Recently parasthasae of his left foot, severe leg pain has improved a bit (sic).”[24] As the first affidavit shows, the plaintiff has used his contemporaneous work record to identify the date of the first injury and to explain the circumstances in which each injury occurred.
[24] Exhibit D1
46 In all, I agree with counsel’s submission to the effect that invention of a symptomatic first injury was less likely in this case because it complicated and did not advance the plaintiff’s application for a serious injury certificate in respect to the second injury.
The plaintiff’s circumstances before the second injury
47 In addition to the matters already summarised, I note the following history.
48 It appears that the plaintiff lived in Frankston until about 1998 and holidayed with his family in Eildon. He also lived for a period in either Boronia or Bayswater and, shortly before commencing employment with the employer, he moved to Eildon with his sons (he thought it was in January 2004). His parents, who assisted with the care of his boys later relocated to Eildon where they continued to provide support to their son and contribute to the care of their young grandsons. [25]
[25] TN 56
49 The plaintiff’s evidence as to his circumstances between the first injury and the second injury was to the following effect: [26]
[26] PCB 19-20, TN 36-38, TN 54-55 and TN 68-73
· he had not reported the first injury because he believed it to be a muscular injury;
· he had been troubled by intermittent lower back pain which worsened over time;
· he took between two and four tablets of Panadol each day and rubbed Voltaren or Dencorub into his back;
· in the two weeks preceding the second injury he experienced quite a lot of lower back pain;
· despite suffering the first injury he persisted with and had done his best in performing his work. Before commencing the plumbing apprenticeship this mainly involved labouring work;
· he had not sought or received medical treatment for his lower back symptoms prior to 16 January 2005;
· he had not experienced pins and needles until after the second injury. At one stage during re-examination the plaintiff appeared to contradict this evidence by stating that before the second injury he would wake up with a tingling sensation and a numb foot (“it sort of felt like a cramp in my back”[27]). In his first affidavit, the plaintiff deposed to numbness and right leg and foot symptoms, identified by the doctor at the hospital as sciatica and, as we know from the supplementary affidavit sworn in December 2013, he corrected the reference to an initial complaint of pain in his right leg when he deposed: “That was an error, I now believe that it was my left leg that was giving me trouble at the time.”[28] In any event, in final submissions it was conceded on the plaintiff’s behalf that, on the evidence, the Court should find he had not experienced sciatica until after the second injury.[29]
· he had been disabled by his lower back condition in the performance of a range of physical activities;
[27] TN 73
[28] PCB 28
[29] TN 90-91
50 In his supplementary affidavit and at hearing the plaintiff gave evidence to the effect that he suffered injury to his right knee, firstly, in 1984 in a skiing accident and, later, when employed as a laboratory technician by Martogg Pty Ltd. These injuries resulted in arthroscopy. Apparently, his knee still “clicks” every now and then and swells occasionally but did not, the plaintiff said, cause a lot of trouble. [30]
[30] PCB 30 and TN 34-35
51 The injury to his knee was not mentioned in the first affidavit because the plaintiff said he had not considered this relevant.[31] I found this explanation plausible, particularly given Associate Professor Brazenor’s final report in which he said examination of the right knee on 22 June 2005 had indicated that it was “normal”. Evidently, on that occasion, the plaintiff had reported re- injuring his right knee when he slipped in the shower on 9 June 2005.[32]
[31] TN 68
[32] PCB 52
52 Whilst the plaintiff said that the condition of his knee would have limited the length of time over which he might surf or ski, the plaintiff denied that prior to the first injury and the second injury, the condition of his knee prevented him from enjoying or participating in these and a range of other sporting/recreational activities.
53 The activities, described generally in the first affidavit, included surfing on a surf board, swimming, snow skiing, water-skiing, riding a motorbike and occasional games of golf. They were all activities in which the plaintiff said he no longer engaged due to the impact of the first injury.
54 At hearing, the plaintiff told the Court that from around the age of 24 or 25 he had snow skied and, save for a couple of years, he skied with his family for a week each year.[33] However, since injuring his lower back the plaintiff had, he said, only visited the snow with his sons where, in 2006, he slipped and suffered a crushing fracture to his mid spine, aggravating his lower back injury at the same time. This was his last visit to the snow because, perhaps unsurprisingly, the plaintiff was, he said, concerned about falling and suffering further injury.[34]
[33] TN 68
[34] TN 68
55 The reports tendered from Associate Professor Brazenor, among other things, indicate that, whilst the plaintiff’s post-operative convalescence had been complicated by a compression fracture at the T12 level due to falling onto his buttocks when walking his children to a ski school, the plaintiff had recovered from this unrelated injury.[35]
[35] PCB 53-54 and 57
56 At hearing, the plaintiff was challenged in cross-examination about the evident conflict between his account of the circumstances of the fall in 2006 and another record of this contained in a passage read to the Court from a letter written by the neurosurgeon to the general practitioner. This letter was not tendered. In any event, the plaintiff denied telling the surgeon, as recorded, that: “…after a couple of days of cautious skiing on the slopes in which he didn’t sustain an injury, (he) managed to do so whilst walking his children to the ski school.”[36]
[36] TN 65
57 The plaintiff attributed the suggestion that he had skied to a misunderstanding. In preferring this explanation, I also had regard to particularly the neurosurgeon’s March 2006 report to Cambridge Integrated Services.[37] The content of this report indicated that in mid 2006 the plaintiff probably remained unfit to ski because, among other things, when he attended the snow with his sons the plaintiff was still undergoing rehabilitation for significant injury to his lumbar spine and his condition was not considered stabilised.
[37] PCB 48-49
58 As to surfing and swimming, the plaintiff said when living at Frankston, he had surfed (and was swimming[38]) “quite a bit”[39] around the Mornington Peninsula. Prior to moving to Eildon, surfing was, the plaintiff added, an important recreational activity he undertook whenever time permitted.[40] Having relocated, the plaintiff said he intended to continue surfing when he could, although in the months between relocating to Eildon and suffering the first injury, the opportunity to surf had not arisen.
[38] TN 56
[39] TN 38
[40] TN 70
59 Through his evidence it was clear that swimming was an activity the plaintiff previously enjoyed whether or not in conjunction with surfing and he considered himself a very good swimmer. He told the Court that, after relocating to Eildon he had not engaged in swimming as a recreational or fitness activity on a regular basis. However, I understood that swimming with his sons in a pool on a hot day was still an activity in which he had engaged prior to the first injury.[41]
[41] TN 56
60 As to water-skiing, the plaintiff told the Court that he water-skied from about the age of 14. The plaintiff explained that, in the five years prior to the first injury, at Christmas and Easter the family skied at Eildon and occasionally he skied with his mates in Port Phillip Bay. This was an activity plaintiff also said he enjoyed. He, nonetheless, agreed that the frequency of this activity was less than in the past because he prioritised work and the care of his sons, who were in his sole custody from about 1996.[42]
[42] TN 60-61
61 In his supplementary affidavit the plaintiff deposed that the employer had raised the concern that he suffered the second injury whilst water-skiing. In this regard the plaintiff stated: “I did not waterski that weekend and I had not waterskied prior to my injury for quite a long time. My opportunities to do activities like that were very limited by the fact that I was a sole parent looking after two boys.” [43]
[43] PCB 29
62 At hearing, the plaintiff was challenged in cross-examination, the suggestion being that he told a workmate he intended to water-ski during the weekend following the second injury. The plaintiff was taken to a passage contained in the report of the defendant’s specialist, general surgeon, Dr Long. He examined the plaintiff on 24 March 2005 at the request of Cambridge Integrated Services. Dr Long recorded the following:[44]
“His hobbies are fishing and water-skiing, which he used to undertake regularly but he has not skied for the past three years. He admitted to mentioning to a workmate at work that he “might water-ski over the weekend”, but states at that stage he was hoping his back symptoms would resolve; as it occurred, however, water-skiing would have been quite impossible for him the week following his injury.”
[44] PCB 37
63 The plaintiff specifically denied saying he was going water-skiing. Rather the plaintiff blamed the statement as recorded on a misunderstanding - if he had said this to the doctor, it was meant as a general reference to going water-skiing with his children, not an indication that the plaintiff intended to water-ski. Taken at face value the statement clearly supports the plaintiff’s position that he had not water-skied since the first injury and, even had he contemplated skiing on this occasion, as the doctor noted, following the second injury this would have been impossible.
64 As to riding his motorbike (a racing super bike which the plaintiff said he kept because it was becoming a classic of its kind), the plaintiff conceded that earlier impairment of his right knee had already reduced his ability to ride. Prior to the first injury, instead of spending three or four hours riding, the plaintiff said he probably only spent on average 2 to 2½ hours riding every second or third weekend.
65 Evidently, the size and design of this motorbike requires a rider to spread their body over the tank to reach the handlebars. The plaintiff said he ceased riding following the first injury because, after sitting astride the bike once, he realised he was too sore to ride any more.[45]
[45] TN 38 and 67 and 69-70
66 As to golf, the plaintiff said that prior to the first injury he had played with his father and friends perhaps 2 to 3 times a year.[46]
[46] TN 59-60
67 There were other activities and areas of his life the plaintiff said had been affected following the first injury.
68 For instance, the plaintiff deposed that he avoided bending, lifting or twisting and, because of the back injury, he no longer enjoyed activities such as kicking a football around with his son and had avoided running/jogging. Whilst the plaintiff acknowledged that the impaired functioning of his knee had previously limited his ability to play with his children, he believed he was still capable of running: “a little bit”.[47] The impression I gained at hearing, was that running/jogging had not been a significant recreational activity and, having not attempted this activity between the first injury and the second injury, when pressed the plaintiff was not able to say whether any inability to run arose before or after the second injury.
[47] TN 54
69 Of course, where as in this case, I have accepted that the second injury probably was a consequence of the first injury, the likely loss of this activity after the second injury becomes part of the global pain and suffering consequence to which both injuries contribute.
70 Under cross-examination, the plaintiff also agreed that, following the first injury, he continued to work full time and to manage the day-to-day care of his 8 to 10-year-old sons, (with assistance from particular his mother), albeit with “a bit of difficulty”.[48]
[48] TN 47
71 Driving was another activity the plaintiff said was impacted by the first injury. In his first affidavit the plaintiff deposed that due to the back injury he experienced great difficulty in getting out of low slung cars. He had, the plaintiff said, replaced his utility with a four-wheel-drive in 2011 because the new vehicle was higher and easier to enter and exit.[49]
[49] PCB 26
72 Under cross-examination, the plaintiff agreed that after the first injury he had worked at sites nearly one hour’s drive from Eildon, although he was clear in stating he drove with difficulty and, under re-examination explained, he found pushing the clutch with his left foot was painful due to the pressure this actively placed on his lower back. [50]
[50] TN 71-72
73 At hearing, the plaintiff told the Court that his sleep was disturbed a few times each night, presumably by back pain or discomfort.[51] Whilst the plaintiff conceded that in the past the injury to his knee and depression had interrupted his sleep (but, not “a great deal”[52]), he denied sleep disturbance due to other factors prior to the first injury.[53] From the responses given, I concluded it was unlikely that in the period preceding the first injury the plaintiff’s sleep had been disrupted due to knee pain, any depressive condition or the activities of the plaintiff’s children, who by that stage were aged between approximately 8 and 10.
[51] TN 43
[52] TN 44
[53] TN 72-73
74 I note the suggestion by the defendant in final submissions that the real cause of sleep disturbance after the first injury was long-standing mental health issues. The limited extract tendered from the general practitioner’s clinical records tells us that on 30 July 2004 the plaintiff gave a history of fluctuating depression over a 9 year period in the treatment of which he was taking the antidepressant, Effexor.[54] During that attendance the plaintiff reported various personal issues and “trouble sleeping 4 hour a night”. The next attendance for treatment was on 3 February 2005, after the second injury.
[54] Exhibit D1
75 The defendant also sought to rely on treating psychiatrist Dr Wahr’s record of reports of trouble sleeping during the period the plaintiff was treated for a psychotic reaction and depression following surgery in April 2005.[55] I note, however, the plaintiff’s psychiatric condition was resolved within a year and, from August 2005 the plaintiff reported that sleeping “was good”.[56]
[55] PCB 61
[56] PCB 62
76 In my view, none of the records mentioned unsettle the plaintiff’s assertion that back pain or discomfort was also a cause of sleep disturbance following the first injury.
The second injury – radiology, treatment and assessment
77 Without repeating the circumstances of the second injury summarised earlier, I note that a CT scan obtained on 19 January 2005 relevantly revealed: “Significant slightly right sided postero-lateral disc herniation at L5-S1. Shallow posterior disc bulge L4/5.”[57]
[57] PCB 85
78 The plaintiff was referred to Associate Professor Brazenor. On 16 March 2005 he ordered MRI film of the lumbar spine. This relevantly revealed: “Two level (L5 and L5/S1) disc degeneration with small central disc protrusion at the L4/5 without displacement of nerve roots. Moderate broad-based central/left paracentral disc protrusion is demonstrated at L5/S1 with mass effect on the theca and both S1 nerves, more marked on the left than the right.”[58]
[58] PCB 87
79 Associate Professor Brazenor’s evidence was relevantly summarised in the letter dated 30 March 2005, to which I have already referred, his operation notes[59] and his more detailed reports dated 13 May 2005, 23 March 2006 and 16 November 2011 directed to either Cambridge Integrated Services or the plaintiff’s solicitors.[60]
[59] PCB 84
[60] PCB 45-57
80 The treating neurosurgeon’s evidence was to the following effect:
· when first examined on 16 March 2005 the plaintiff was clearly in pain;
· allowing for some errors in the dates recorded by the neurosurgeon, the plaintiff gave a history of labouring work and of the circumstances of the first injury and the second injury;
· as to the first injury, the plaintiff reported that this: “had seemed to settle down somewhat although he never returned to normal after that…”;[61]
[61] PCB 50
· on 21 April 2006, the neurosurgeon certified his patient as fit to resume full-time employment, not involving bending at the waist or lifting to or from levels below his waist. He also recommended retraining either to sell real estate or do some other non-bending, non-lifting job. However, as we now know the unrelated compression fracture suffered by the plaintiff in mid 2006 delayed his ongoing rehabilitation somewhat;
· by February 2007, the neurosurgeon believed his patient was fit to resume work in some capacity and on 20 June 2007, he again noted that the plaintiff required retraining for employment not involving bending or lifting;
· on 16 November 2011, the neurosurgeon reported the plaintiff had injured (“sustained grievous injuries to...” [62]) his L4/5 and L5/S1 discs while performing labouring duties in May 2004 and again in mid January 2005, as a result of which he would never return to work as a labourer or hands-on plumber. In effect, impairment of the plaintiff’s lower back likely permanently precluded a return to the plaintiff’s apprenticeship and chosen career as a plumber and or employment in physically demanding occupations.
[62] PCB 54
81 As mentioned, post-operatively the plaintiff suffered a psychotic reaction to the anaesthetic. Between 23 April 2005 and 21 April 2006, psychiatrist, Dr Wahr treated this condition and depression, conditions he related to the work injury. When last seen by Dr Wahr, the psychiatrist found no evidence of ongoing psychiatric condition.[63]
[63] PCB 64-65
82 The psychiatrist’s evidence relevantly indicated that he too relied on a history from the plaintiff of both the first injury and second injury when he advised the plaintiff’s solicitors that the psychotic reaction and depression related to the work injury.[64]
[64] PCB 64
83 On 24 March 2005, some weeks prior to operative intervention, the plaintiff was examined by general surgeon, Dr Long at the request of Cambridge Integrated Services.[65] His evidence was to the following effect:
[65] PCB 34-43
· allowing for an obvious error in the date recorded, the plaintiff reported symptoms of pain commencing in his lower back in May (2004) in association with lifting Cyprus posts required for the construction of decking: “He thought this was a muscular problem, however the discomfort continued with good and bad days. He worked as a labourer but was gradually given easier jobs, particular by some of his workmates who were aware of the situation. He was keen not to report his injury has he did not want to jeopardise his work. Gradually the number of bad days seem to overtake the good….”;[66]
[66] PCB 35
· the plaintiff impressed him as a good and genuine historian;
· employment was a direct contributing cause to the plaintiff’s first injury and a further severe deterioration of the plaintiff’s lower back condition on 14 January 2005 associated with left-sided sciatica;
· the plaintiff was likely to have a permanent impairment as a result of injury sustained at work from May 2004 onwards.
84 Consultant occupational physician, Dr Mutton examined the plaintiff on 21 February 2007 at the request of Cambridge integrated services with a view to determining the plaintiff’s capacity for employment and advising on any ongoing contribution from employment.[67]
[67] Defendant's Court Book (DCB) 16-22
85 Despite access to, among other things, the plaintiff’s claim form and two of the treating neurosurgeon’s reports, the history obtained and summarised by Dr Mutton was unclear. In addition to the obvious errors in the dates recorded, Dr Mutton reported a history of the first injury without also recording the circumstances of the second injury. He noted the following:
“He believes he was aware of pain and discomfort in the low back in December 2004. There is no prior history of note. He had not previously had physical therapies. He then indicated that an injury did occur in October 2004 while lifting posts for decking purposes. These were long – 125 mm x 125 mm square post, 5.5 metres long. He had to move these individually and to paint and re-stack. There were some 30 posts. He was aware of some pain and discomfort but continued with his activities. He was hoping to gain his apprenticeship and therefore did not report the injury. However, in mid-December he believes he had difficulty getting out of bed unexpectedly. There were absences from work. He sought advice from his general practitioner. He thought he was suffering sciatica. At that time he had back pain and left lower limb symptoms through to the feet and toes which had gone numb. X-rays were undertaken.
He was subsequently referred to Mr Brazenor from January 2005 and this appears to be the date of injury. He stopped work at that time…”[68]
[68] DCB 18
86 The defendant sought to challenge the reliability of the plaintiff’s evidence on the basis that this report contained the first and, it seems only, suggestion that the plaintiff experienced difficulty in getting out of bed before the second injury in mid-January 2005. The plaintiff was not cross-examined about the history given to this doctor. In my view the criticism made was probably unfounded. There was clearly some confusion in the various dates recorded and, if the reference to “mid-December” is read as it probably should be, namely a reference to mid-January, the balance of the history recorded falls into line.
87 The last of the medical reports comprise two recent reports from orthopaedic specialist, Mr King, who examined the plaintiff at the request of his solicitors in November 2012 and again in December 2013.[69]
[69] PCB 66-77
88 Mr King obtained a history which, in addition to showing that the plaintiff had some difficulty in recalling the date of the first injury (“… in about October 2004”[70]), wrongly suggested that the plaintiff had experienced sciatic symptoms following the first injury (“… he stated he lifted a series of wooden posts and other heavy objects over the course of several days and for the first time he became aware of quite significant low back pain which began to radiating into the right buttock and thigh. The symptoms were not severe, he did not see a doctor at that stage, and he continued to work over the next few months doing much the same work and over that period the back pain persisted, as also did the right-sided sciatica and the symptoms became slowly worse”[71]).
[70] PCB 67
[71] PCB 67 and 73
89 The plaintiff was not cross-examined about the content of this specialist’s reports. However, to the extent that Mr King was not reliably informed about the absence of sciatica prior to the second injury, his opinion is not as helpful as it might otherwise have been in establishing the causal link between the injuries.
90 Mr King’s evidence, nonetheless, indicated that the plaintiff remained significantly affected by residual symptoms, which included constant low back pain of fluctuating intensity and aggravated by exertion, constant mild ache in the back of the left thigh and constant nagging ache in the back of the right thigh down to the knee which the plaintiff claimed was worsening.[72]
[72] PCB 73-74
91 Relevantly, Mr King also took a history of time lost from work due to low back pain and sciatica amounting to about a fortnight lost between November 2012 and December 2013. This included one week off work in the month preceding the re-examination due to a severe flare-up.
92 In Mr King’s opinion, whilst these flare-ups could indicate some slow deterioration in the plaintiff’s condition, on balance he considered the plaintiff had stabilised at his present level with regard to low back pain and sciatica. On the assumption that the plaintiff retains his present position, Mr King concluded the plaintiff should be able to continue to work for the next few years provided he was careful with the heavier forms of bending, lifting and straining. Moreover, without descending into detail, Mr King also noted that the plaintiff’s condition would generally interfere with his social, recreational and domestic activities. [73]
[73] PCB 76
93 In the supplementary affidavit, the plaintiff further deposed that, in about May 2008 he suffered injury to his neck and shoulder which led to cervical fusion surgery at the C6/7 level. According to the plaintiff, this surgery led to a good result. Although under cross-examination the plaintiff said he experienced neck pain from time to time if he kept his neck bent for a long time in his current employment as a welder.[74]
[74] PCB 29-30 and 53-54
Work and other activities subsequent to the second injury
94 The plaintiff’s affidavits generally explained his experience of pain and the disabling effects of this and the impaired functioning of his lower back subsequent to the first injury and second injury.
95 Whilst neck pain, in the main generated by the plaintiff compensating at work for the lower back condition and his damaged mid-back were occasionally painful, the plaintiff claimed his lower back was the real problem. Evidently, squatting is very painful.[75]
[75] PCB 30
96 As to the intensity and frequency of lower back and leg pain, allowing for his affidavit evidence, it appears that the plaintiff continues to experience significant lower back pain as well as right leg symptoms.[76] He described constant low back pain across the top of his buttocks and hips (“It is there all the time but it is eased by little bit of Panadeine Forte or Tramadol. The pain is made worse by many things. For example, if I jar my (back), or after a full days welding, or after sitting for long periods if I drive for a long distance, my back will be significantly worse. I do not run and I doubt if I could. At times, I get tingling sensation, mainly down my right leg. This wakes me up every night and often two or more times a night. To ease it, I have to move my leg or go for a walk around the house”[77]).
[76] PCB 25 and 30
[77] PCB 30
97 Since suffering the second injury, despite attempts to restrict his medication to over-the-counter painkilling medication, the plaintiff told the Court that only strong prescription painkilling medication , Panadeine Forte, about four tablets per day and Tramadol twice a day (prescribed by his general practitioner) was effective in controlling pain.[78]
[78] PCB 31 and TN 55
98 The plaintiff also told the Court that he experienced pins and needles every day, which come and go.[79]
[79] TN 55
99 As to employment, the evidence indicated that following a lengthy period of convalescence and rehabilitation, the plaintiff commenced but did not complete a course of study to qualify for work in real estate. He did, however, eventually perform part-time light cleaning duties for about six months with Eildon Cleaning Services. This was followed by 8 months full-time work as manager of the Golden Trout Hotel until the plaintiff left after arguing with his boss. Allowing for the constraints placed on his work activities by the neurosurgeon, I was not surprised to learn that the plaintiff had struggled with this work because it required him to lift and move slabs of beer.[80]
[80] PCB 23 and TN 49-50
100 Within a few months, the plaintiff found employment with the Eildon Boat Club building sheds for about three months and, after another short period of unemployment, from mid-2010 he returned to the Eildon Boat Club, this time performing maintenance work. This work (which included ferrying house boats) was, the plaintiff said, too heavy and had increased back pain. The plaintiff, however, has since moved to alternative full-time duties, working as a welder with another person who performs most of the heavy work.[81]
[81] PCB 23
101 At hearing the plaintiff indicated he struggled with some aspects of the welding position but continued working in this job (“I mainly struggle trying to bend to get to certain welds. I’ve adapted myself to use my arms and my chest and just lower myself down onto the work to take the weight off my back. It is a struggle getting up and down, which is part of the job I have to do” [82]).
[82] TN 73
102 By reason of the lower back injury, at a relatively young age, the plaintiff has suffered permanent loss of capacity for physically demanding jobs and the opportunity to pursue a career in plumbing. The impression I gained was that the plaintiff has been fortunate in finding alternative full-time employment as a welder with a tolerant and supportive employer. Accordingly, the loss described is a factor for which allowance should be made in the assessment of the pain and suffering and loss of enjoyment of life consequence.
103 As to non-working domestic, recreational and social activities, additional to those with which I have already dealt, these included the following:
· House work and gardening. The plaintiff deposed he avoided mowing the lawn and heavy housework.[83] At hearing the plaintiff’s evidence was to the effect that his mother had always cared for his garden at Eildon. Whilst he mowed the lawn in the past, the plaintiff said that if he did this now it “hurts a bit”;[84]
[83] PCB 26
[84] TN 59
· CFA duties. After the second injury the plaintiff said he joined the local CFA[85] but resigned 1½ years prior to the hearing date because he had not gone to callouts or training. The plaintiff attributed the resignation to a concern that he and others may be put at risk by his inability to meet the requirements of the position of a volunteer fire-fighter (“… my back is too sore to be jumping in and out of trucks and running up hills or carrying hoses and all that”[86]). Based on all of the evidence I concluded there was no substance to the defendant’s suggestions that the failure to mention this activity in either affidavit was evidence of a lack of candour and, the plaintiff’s denial that he had been rostered evidenced an attempt to minimise his involvement with this organisation.[87] I agree with the thrust of counsel’s submission that, where evidence of the plaintiff’s inability to sustain this activity could only have advanced the plaintiff’s case, its omission from the affidavits could hardly indicate that the plaintiff had hidden something damaging to his case. Moreover, even if this omission had involved an attempt to mislead the Court, membership of the CFA was an activity in which the plaintiff engaged following the second injury, which the defendant has conceded was a serious injury for the purposes of the Act;[88]
· Junior swimming coach. This was another activity the plaintiff took up after the second injury. The plaintiff recalled that he’s started coaching because he was bored and depressed and wanted to occupy himself.[89] Until he stopped coaching the plaintiff said for three months a year he coached two days per week and this involved giving instructions to juniors while walking alongside the pool. Why the plaintiff ceased this activity was not explained during the hearing. In these circumstances, I have not treated this as an activity denied the plaintiff by reason of impaired lower back function;
· Boating/Fishing. The plaintiff was unable to recall whether he went fishing before the first injury. However, before the second injury he apparently went fishing (“Not a great deal”[90]) and still enjoyed fishing occasionally. At hearing the plaintiff told the Court that he purchased a 4.5 metre tinny two years earlier. The plaintiff said he had only taken out the boat “a couple of times”[91] because he found sitting fishing in a boat for prolonged periods painful.[92] As I understood the plaintiff’s evidence, he was keen on fishing as an activity and had it not been for his lower back condition he would have preferred boat fishing. According to the plaintiff, you catch more fish from a boat than from fly-fishing with a rod off a riverbank.
[85] TN 39
[86] TN 71
[87] TN 100
[88] TN 124-125
[89] TN 41-42 and 48
[90] TN 58
[91] TN 57
[92] TN 73
Conclusions
104 To summarise then I was satisfied as follows:
· the plaintiff suffered compensable injury on two discrete dates;
· the first injury involved injury to the both the L4/5 and L5/S1discs of the plaintiff’s lumbar spine;
· the second injury was probably an exacerbation or worsening of the unresolved first injury; and
· the impairment consequences of the injuries were as described above.
105 The test is whether the plaintiff has established that the pain and suffering consequence of the first injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function may be fairly described as being more than significant or marked and as being at least very considerable. Applying this test involves a value judgement in which matters of fact and degree and of impression all play a role.[93]
[93]StijepicvOne Force Group Aust Pty Ltd [2009] VSCA 181 [41]
106 Section 134AB(38)(c) of the Act requires the Court to consider where on its facts the present case sits when compared with other cases in the range of possible impairments or losses of body function.
107 In my view, the earlier summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff claimed to have lost was informed to some extent by what he had retained) is consistent with a finding that the consequence in respect to the first injury can be fairly described as being more than significant or marked or as being at least very considerable. In other words, the plaintiff has met the requirements of the narrative test.
108 I propose to make an order granting leave to the plaintiff to bring proceedings for damages in respect to the pain and suffering consequence of injury to his lower back, suffered in the course of his employment with the defendant on or about 19 May 2004.
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