Watts v Chubb Security Aust Pty Ltd
[2012] VCC 1168
•5 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01299
| MARTIN DAVID WATTS | Plaintiff |
| v | |
| CHUBB SECURITY AUST PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 August 2012 | |
DATE OF JUDGMENT: | 5 September 2012 | |
CASE MAY BE CITED AS: | Watts v Chubb Security Aust Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1168 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Lumbar spine injury – leave sought to bring proceedings for pain and suffering damages only – “range” case
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(38)(a) and (b)
CASES CITED – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with Mr M J Walsh | Shine Lawyers |
| For the Defendant | Mr D W Podger | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 26 March 2009, Martin David Watts (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his lumbar spine suffered during the course of his employment with Chubb Security Aust Pty Ltd (“the defendant”) on or about 15 October 2004 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant Legal Principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine.[3]
[3]See Transcript (“T”) 1, L25 – 29
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury was suffered in the course of or due to the nature of his employment with the defendant on or after 20 October 1999;[4]
(b)the injury, with its resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)“the consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked and as being at least very considerable”.[6]
The test for “serious” is sometimes referred to as the “narrative test”.
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [11]
[5]See Barwon Spinners Pty Ltd v Podolak (op cit) at [33]
[6]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the injury for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[9]
(d)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(j) of the Act
[9]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89] – [92]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009]VSCA 242 at [67]
The Issues
9 Counsel for the defendant informed the Court both orally and by way of a Statement of Issues that the defendant accepted that the plaintiff did fall from a bunk during the course of his employment with the defendant on or about 15 October 2004. Furthermore, the defendant accepted that as a result of such fall, the plaintiff suffered a fracture of the superior end plate of the L1 vertebra.
10 The defendant contends that the consequences of any low-back impairment as a result of the fall do not satisfy the requirements of the narrative test. In particular, the defendant contends that it will be necessary to apply the principles enunciated in Petkovski v Galletti,[11] as the plaintiff had suffered an earlier back injury, resulting in a laminectomy in 1993. In this sense, so it was contended, an analysis must be made of the impairment of the plaintiff prior to his fall and the extent of any impairment after the fall in order to determine whether the plaintiff has suffered a “serious injury”.
[11][1994] 1 VR 436
The Evidence of the Plaintiff
11 The plaintiff gave evidence that he is presently employed as a security officer with Monjon Securities, working at the Regional Rail Link worksite in Tottenham and Footscray. Furthermore, he has two casual security positions, one at the Melbourne Cricket Ground and one at the Palais Theatre in St Kilda.
12 He gave further evidence that he had read his three affidavits[12] and that the contents of such affidavits were “true and correct”.[13]’
[12]See Exhibit 1 at pages 6 – 16AE PCB
[13]T 11, L11-12
13 The plaintiff gave further evidence that he has had constant back pain since the injury and such pain is at a constant level, save for times that it will increase “quite remarkably”. When queried as to what he meant by “quite remarkably”, the plaintiff stated:
A:“It hurts to breathe at occasions. I can’t sleep on my left-hand side because I wake up. Very little sleep. Average about – I'd be lucky if I get more than six hours a night. Some parts of work have had to change totally. Can’t do a lot of things I used to do.
Q:In what way?---
A:My work. Sure, I'm doing a lot of hours but I used to do major event work. I – just name the event I've done it. I can’t do any of that any more, which is something I totally enjoyed.
Q:With the work you’re doing now, by the end of, say a 12 hour shift that you do with Monjon, how easy or how difficult is it for you to complete the shifts after a day?---
A:Gets worse as the shift wears on.
Q:What do you actually do during your shift?---
A:It’s patrolling a construction site, basically. The Tottenham site is the administration centre and the Footscray site is one of the work sites for sheds and so forth.
Q:On a continual basis or every hour or so or something?---
A:We have to do – every hour we must do 45 minutes of walking. That’s hitting [indistinct] points. They’re little electronic you hit to indicate that you’ve – a report is printed out by the employer which says that the guard did do his patrols and we know he did because he’s hit the points.”[14]
[14]T 11, L24 – T 12, L16
14 The plaintiff also gave evidence that he is allergic to Codeine and Pethidine, which trigger asthma and, accordingly, he limits his tablet medication to Panadol, which he takes up to eight tablets a day, two or three days a week, sometimes more, sometimes less. He also drinks alcohol (not at the same time) to relax him enough to sleep.
15 When asked about his quality of life compared to the quality of life he had before the injury, the plaintiff gave the following evidence:
A:“Not much of a quality at all, to be honest. I've changed - social life, everything's changed quite dramatically. I'm still with my partner but it's been pretty rough, so - I've had to give up sport, the one sport I really both loved and excelled in.
Q:Is that 10 pin bowling?---
A:10 pin bowling, yeah.
HIS HONOUR:
Q:When did you give that up?---
A:As soon as the accident occurred. Would have bowled - - -
Q:Give me some idea prior to the accident the frequency or otherwise that you were playing or engaged in 10 pin bowling?---
A:I was involved in a league at Moorabbin where we bowled three games every - I'm sorry, I'm not sure what day of the week, but every week, it was an actual 10 pin bowling league, it was a competition-type bowl.”[15]
[15]T 14, L18 – T 15, L3
16 The plaintiff also gave evidence he had been playing ten-pin bowling in leagues over fifteen years in various cities and competition bowling every single week for about forty-six weeks or forty-eight weeks a year, and social bowling was probably a couple of times a month. He was a member of the 200 Club and 250 Club and in particular, the 250 Club means you have bowled ten strikes in a row.
17 Since his injury, he has tried to get back to ten-pin bowling on about two occasions within about a year or so of the injury. The twisting of the body and the movement of the arm was “too much”.
18 By way of his first affidavit, he gave the following evidence:
·He was born on 25 April 1959 and lives with his partner.
·After leaving school on the completion of the equivalent of Year 12 in Sydney, the plaintiff commenced employment with the Commonwealth Bank of Australia, where he worked as a banking clerk until 1980, when he resigned from the bank to go travelling. Between 1980 and 1987, he performed a range of duties with a variety of employers, including fruit picking, working in restaurants, at local council offices as a clerk and at the snowfields.
·In or about 1987, he commenced employment with the Commonwealth Public Service in Canberra as an Administrative Services Officer Class 1, where he remained until 1999, when he left after being offered a redundancy package.
·In or about 1989, he was assaulted and suffered injuries to his neck and lower back, causing him to undergo a cervical discectomy at the C4-5 disc level and, in 1993, a laminectomy at the L5-S1 disc level.
·He made a “reasonably good recovery from both rounds of surgery” and was able to continue his normal duties after the operations.
·He commenced employment with the defendant performing security work on or about 26 March 2000.
·On or about 15 October 2004 during the course of his employment with the defendant, he fell from the top of a ladder attached to a bunk bed. After the fall, he felt the immediate onset of severe pain in his lower back and hip, and believed that he may have “blacked out”.
·He was conveyed by ambulance to the Cowes Hospital, where he was admitted as an inpatient, and after about seven hours was conveyed to Epworth Hospital via air ambulance, where he remained as an inpatient for about seven weeks.
·When admitted to Epworth Hospital, he was treated by the orthopaedic surgeon, Mr David de la Harpe, and treatment consisted of being placed in a brace for several weeks, intensive hydrotherapy and physiotherapy and the prescription of a variety of medications, including OxyContin, Endone and Voltaren.
·He was diagnosed to have suffered a fractured L1 vertebra.
·On his discharge from Epworth Hospital, he came under the care of the physiotherapist, Ms Sarah Yeats, at Epworth Hospital, where he attended two or three times a week.
·After the occurrence of the injury, he was off work for about four to five months, after which he returned, performing light duties on reduced hours. He submitted a Claim for Compensation in respect of the injury, which was accepted, and he received weekly payments of compensation and associated medical and like expenses.
·Over the years up to 2008, he has continued to see a variety of doctors, including Mr de la Harpe, for ongoing review and management.
·At the time of affirming his first affidavit, he describes how the injury has caused him to be unable to sleep on his left side, resulting in significant sleep disturbance. In particular, he has been unable to continue his ten‑pin bowling, which he previously enjoyed playing, and also had difficulties driving for long periods.
·The injury also limits the types of security work he can perform. He is no longer able to perform major event work, which requires longer hours of standing, and he is unable to do any crowd control work as he is fearful of being involved in a confrontation when performing security work.
·His sex life has been significantly affected because of the injury and that sexual activity places significant pressure on his spine.
·He finds it difficult to perform any exercise, including running or playing any form of impact sport, and although he tried to go to the gym, he is limited in the type of gym work he can perform.
·He has gained approximately 10 kilograms since his injury.
·From about May 2005, he was performing full-time light duties with the defendant, where he remained until August 2005, when he resigned to commence employment with Wilsons, approximately three weeks later.
·He was employed by Wilsons to perform full-time “light roving duties” which involved checking on such places as the Eureka Towers (still being constructed), the Immigration Museum and Station Pier. He was working about thirty-eight hours per week when performing this type of work.
·When Wilsons lost the contract to supply security at Station Pier, OCS (One Complete System) then obtained the contract for such work and the plaintiff commenced employment with OCS in or about January 2006 but continued to perform the same type of work. On 30 March 2007, he accepted a redundancy which was then being offered by OCS.
·Since leaving OCS, he has continued to work in the security business and considers himself “reasonably lucky”, in that the positions that he has obtained have enabled him to rove around and get up and walk as required to relieve pain in his low back.
19 By way of his second affidavit, the plaintiff gave the following evidence:
·He corrected his first affidavit by asserting that he was an inpatient at Epworth Hospital for approximately five weeks, not seven weeks as stated earlier.
·He continues to take medication for pain, including Panadol, and has started “drinking more heavily” to help relax and cope with the pain.
·He has seen Dr Craig Blandy, his general practitioner, for an unrelated medical condition, as well as back pain. Dr Blandy arranged for him to undergo an x-ray of his lumbar spine in April 2009 and recommended that he undergo a pain management course to help with the back pain.
·He continues to experience the problems referred to in his first affidavit and has gained another 5 kilograms in weight since that affidavit.
·At the time of him affirming his second affidavit, he was performing gatehouse duties at the railway lines at Springvale Road, which was sedentary security work involving light foot patrol work. Such work allowed him to change his position regularly and he is not required to sit for a long period of time. As a result of the injury, he cannot perform crowd control work, major event work, static security work or any security work which requires confrontation.
·On his fiftieth birthday in April 2009, he travelled to Gallipoli for ANZAC Day with his partner. It has been a lifelong dream, because he was born on ANZAC Day. He experienced significant back pain during the flight to Turkey and on the flight home and had to get up regularly and walk around the plane to try and ease his pain.
20 By way of his third affidavit, the plaintiff gave the following evidence:
·Since his earlier affidavits he has continued to be “severely troubled by low-back pain”. He is never without pain, which is often severe.
·Such pain will increase if he engages in certain activities such as standing for too long in one place, sitting for more than half-an-hour or so or doing any activity that puts real strain on his back.
·He continues to engage in security work and now works an average of three or four days a week performing 12-hour shifts between either 6.00 am and 6.00 pm or between 6.00 pm and 6.00 am. Such work is performed at the Regional Rail Link worksite in Tottenham and Footscray.
·His duties require him to patrol the work site, which he does alone with a walkie talkie. He performs slow walking for approximately forty-five minutes of every sixty minutes on his shift. At the end of his shift his back pain is often severe.
·The work that he performs at the Melbourne Cricket Ground might be for as long as nine hours and there is limited walking about. His duties at the Palais Theatre only last for about four hours, but he is stationary and this causes his back pain to flare up.
·He continues to take Panadol and has tried to avoid morphine-based medication due to its addictive nature. He continues to self-medicate with wine, drinking wine every evening, and on two or three days a week he will drink a bottle of wine or more when his back pain is troubling him.
·His back pain continues to trouble him with leisure activities, such as going to the movies, or even sitting over dinner will increase the pain.
·Since his last affidavit, he has travelled on flights to visit a brother who lives in the Seychelles and intends to travel to the Seychelles soon because his brother and partner had their first child.
·He has been unable to resume any ten-pin bowling, which he “loved” and continues to “miss very much”.
·About twelve weeks prior to affirming such affidavit (2 July 2012), he commenced a further pain management course at Epworth Rehabilitation, which consist of a three to four hour session every Friday and which has been ongoing. Such course involved hydrotherapy, psychology, physiotherapy and occupational therapy.
·The pain management course has made “some difference to my levels of pain to the extent that I am able to tolerate them” but he continues to be severely troubled as he is never pain free.
·He rarely gets a good night’s sleep because if he turns the wrong way he suffers sufficient pain to wake him up, and that occurs most nights.
·He has been shown notes from Dr Blandy and letters from the neurosurgeon, Mr Danks, and Ms Grundy, which reminded him that between December 2003 and March 2004, he was suffering from some numbness or paresthesia in his left leg.
·He did not recall having any significant ongoing neck or back pain after his initial surgery. On seeing the material, he was reminded he suffered mild intermittent back pain at that time.
·By April or May 2004, his symptoms had fully resolved.
·He has also been reminded of a claim form he submitted in relation to low-back pain suffered on 14 February 2003 and says such claim was only for medical expenses. He had no time off work and the symptoms settled down quickly.
21 The plaintiff also relies on an affidavit from Mr Damian Borg, sworn 22 November 2010.[16] Mr Borg asserts that he first met the plaintiff approximately six years prior to the swearing of his affidavit when he joined a bowling league which was predominantly made up of gay men. The plaintiff was a member of the team.
[16]See Exhibit 1 at page 17 PCB
22 He recalls the plaintiff being a “pretty good bowler” and he also seemed to “love the social occasion”. He recalls the plaintiff attending the bowling league at about the time he sustained his injury and him attempting to return on two or three occasions to active bowling. Mr Borg recalls the plaintiff wearing a brace at that time. He cannot remember the plaintiff returning to the bowling club after those two or three attempts to return to bowling.
23 The plaintiff also relies on an affidavit from Mr Peter Robert Nicoll affirmed 3 February 2012.[17] Mr Nicoll describes himself as a fifty-three-year-old man who has been living in a relationship with the plaintiff for approximately eight-and-a-half years.
[17]See Exhibit 1 at page 19 PCB
24 He recalls the day of injury and met the plaintiff at the Epworth Hospital, where he was obviously in very severe pain. Since his discharge from hospital, Mr Nicoll has observed the plaintiff to be “severely troubled by low-back pain” on the basis that he is never able to move freely and also “struggling” with what appears to be severe pain (for example, getting out of a chair).
25 He describes the plaintiff as being severely restricted in the housework he can do and having sleep disturbance at night, causing the plaintiff to move into a separate bedroom one or two years after the injury. The sexual life between the plaintiff and Mr Nicholl has been adversely affected because of flare-ups of back pain and this has placed considerable strain on the relationship.
26 Mr Nicoll describes the plaintiff suffering “great sadness” as a result of no longer being able to engage in ten-pin bowling.
27 According to Mr Nicoll, the plaintiff takes a large amount of Panadol by way of medication to control his back pain each day. Whereas he was a fit and active man prior to the injury, he is now frustrated and sad because of the limitations placed on him because of his back pain.
28 Since the injury, when the plaintiff was about 94 kilograms, he has put on weight to the extent that he is approximately 106 kilograms now. He has been unable to go jogging or cycling by reason of his back injury.
29 Under cross-examination, the plaintiff gave the following pertinent evidence:
· He chose security work after being a Commonwealth Public Servant because friends told him that he was very good working with the public and they considered he would be good at the job.
· In the period after his commencement with the defendant up to the time of injury, he performed any work that the defendant “asked me to do”. Before the fall, he had been appointed as a senior guard at the Showgrounds which involved him manning the gatehouse during the daytime, whereas at night time patrols had to be undertaken by vehicle or looking after the other guards.
· His work involved one of observation, going to sites, keeping an eye on things and moving around sites, but he did not perform security work such as a bouncer in hotels or things like that. Such jobs involved checking vehicles at the Phillip Island Grand Prix, customer assistance at the Avalon Air Show and controlling VIP entry at various functions.
· He could not recall the incident whereby he attended the neurosurgeon, Mr Danks, in early 2004 because of low-back symptoms.
· He does not recall losing any time off work since his commencement with Chubb in March 2000 up to the day of the injury.
· He does not recall taking any medication for any low-back symptoms from the commencement of his employment with Chubb up until the day of injury. In particular, the following evidence was given:
Q: “And indeed, as I understand your evidence, what you’ve told me, you’re positively asserting that putting aside perhaps this area where Danks was involved but you’re positively asserting you were not taking medication for your low back during this period of time from 2000 up to the incident?---
A: … Or my neck, I had full recovery from both these surgeries in the 1990s.”[18]
[18]T 28, L20-26
· He did not disagree with the suggestion that if the notes of Dr Blandy revealed that he attended on 28 May 2004 and that the next attendances were 18 April 2005 and 19 May 2005, that most probably would be right. In particular, the plaintiff asserted that he was under the care at the Epworth Hospital for most of 2004 and that Dr Blandy “was out of the loop” because he had nothing to do with the injury in 2004 since he was under the care of the Epworth Hospital’s doctors.
· In relation to attendances on Dr Blandy, the following evidence was given:
Q:“In fact, Mr Watts, there’s no entry in Dr Blandy’s notes after May of 2005 that refers to your back injury?---
HIS HONOUR:
Q:1 August does directly, doesn’t it?---
MR PODGER:
A:I stand corrected, your Honour.”
[To witness]:
Q:“Apart from that entry on 1 August 2005, I suggest to you there is no entry in Dr Blandy’s notes until April 2009 referring to your back injury?---
A:I said before, because I was under the care of the Epworth doctors I saw no reason to raise the matter with my GP.”[19]
[19]T 34, L4-12
· From about 2005, he essentially self-managed his condition, which included the use of alcohol, medication, walking and relaxing at the beach house.
· He has changed his general practitioner to Dr Michael Williams (about two or three years ago), who is only about three or four minutes’ drive from his place of residence.
· He accepted that he was discharged by the rehabilitation physician at the Epworth Hospital, Dr Karen Patten, on 19 May 2005.
· He travelled overseas in April 2009 to Gallipoli for his fiftieth birthday and shortly prior to that, in March 2009, there was a complaint made to Dr Blandy of back pain.
· He accepted that he was referred by Dr Blandy to a rehabilitation physician, Dr Kathleen Ooi, at the Moorabbin Hospital.
· He accepted that it was “quite possible” that he told Dr Ooi that he was then working between 48 and 60 hours a week as a security officer; that it would be “consistent” that his job consisted mainly of foot patrols and gatehouse and that he had to change his job as a result of back pain; that he was “trying to” walk 12,000 to 15,000 steps per day wearing a pedometer; that he enjoyed bushwalking and about once a month he would go on long walks. He avoids events like the Tennis Open, Albert Park and Phillip Island events as there is always the potential for confrontation and he does not want to risk his back by having any confrontation.
· When asked to describe the site of the back pain he suffers, the plaintiff referred to the L1 area.[20]
[20]T 45, L30 – T 46, L19
· He did not recall suffering any symptoms in his low back since the surgery to his low back at L5-S1.
· He accepted that he went on a diet at one stage and lost “a fair bit of weight” but put it back on. He was referred to a report from a sleep physician, Dr Fergal O’Donohue, who examined the plaintiff in June 2002 (that is some time prior to the injury) and recorded the weight of the plaintiff to be 108.5 kilograms.
· He accepted that he had struggled with his weight “since childhood” but asserted that over the last six or seven years he has put more weight on than ever before.
· He accepted that he walks 15 to 20 kilometres at a slow pace each night at his worksite.
· When the plaintiff resumed full-time work with the defendant, he worked the “same hours” and was paid the “same money” as prior to the injury.
· He resigned his employment with the defendant in August 2005 because of “a couple of personal issues involving another guard and myself” and nothing to do with the injury.
· He doubts that he was wearing his back brace when he attempted to resume bowling on two occasions after the injury.
· He believes he wore the back brace for about two or three months.
· His two attempts to resume bowling were within a year of the injury.
· He has been involved in bushwalking both before and after the injury and he enjoys performing such activity.
· He has made some changes to his bushwalking, in that he does not jump off rocks and is particularly careful where he is stepping.
· He generally attends a beach house at Blairgowrie at weekends where he sometimes would go bushwalking and in particular, either along the coast or the Two Bay Walk.
· Sometimes he wears packs when he is bushwalking and he is also a member of Bushwalking Victoria and Nomads.
· The best he does in a day is to walk 26 kilometres on the Two Bay Walk, which is from Dromana to the lighthouse at Cape Schanck. He has done that walk about three times since October 2004.
· He describes that his sleep is “very much so” interfered with by back pain, whereas prior to the injury, although working shiftwork, he had no difficulty sleeping for eight or nine hours during the day or night, whereas now he would be “delighted” if he got more than six hours.
· He had no recollection of a consultation with Dr Blandy on 27 August 2002 (prior to the injury) where he complained of “poor sleep” and requested Temazepam.
· He accepted that he has been diagnosed as suffering sleep apnoea and treated for that condition over the years.
· He has travelled overseas five times, initially to Turkey in April 2009 and later to Mauritius and the Seychelles. He had only recently returned from the last trip, the purpose of which was to see his new nephew, who was recently born.
· He commenced living with Mr Nicoll in or about September 2003, having met him earlier in 2003.
30 Under re-examination, the plaintiff gave the following pertinent evidence:
· He finds that the foot patrols that he now undertakes are somewhat boring and uninteresting compared to the type of security work he performed prior to his injury where there was far more people contact.
· He has not lost any time off work as a result of his back condition over the last twelve months.
· He takes Panadol every day and two or three days a week he takes eight Panadol, which is the maximum.
· By sitting in the witness box, his pain had increased from what is at the generally two out of ten level, to four out of ten.
· He completed a pain management course about one month ago, which consisted of two bouts of six weeks each. He went to the pain management clinic to hopefully obtain techniques to control his pain because he was becoming concerned about the amount of alcohol he was consuming.
· In relation to his ongoing pain, the following evidence was given:
Q:“And to live with a constant pain how has that been for you?---
A:It’s – how do you put it, it’s really difficult, you – sorry about this, you’re constantly aware of things you can’t do, not things you can do. You realise that I’m heading towards a part of life where I should start enjoying myself and I simply can’t do – excuse – sorry.
HIS HONOUR:
Q:No, take your time.
A:I simply can’t do a lot of the things I love doing and I’ve had to change – yes I keep working but it’s – thank you, sorry about this, I don’t know what. …
Q:Take your time.
A:I used to love driving for example. I would drive to Sydney quite regularly or I’d go out to the Coonawarra to the wine fields, King Valley, not so much King Valley but up to Lake McGowan where there’s a winery up there that Peter loves the wine, I used to drive to Mildura, I used to love those sorts of long-distance drives, get out of Melbourne or Sydney or Canberra, whichever city I was living at the time, just get out into the Australian country. I can’t do that so much any more. I can drive for about an hour, maximum and I’ve got to stop, I’ve got to get out of the car and walk around, I just can’t do the stuff I used to do. I’ve changed as much as yes I’m continuing working but I can’t do the type of work I used to love, I can’t do – yes, I’m bushwalking but – I’ve got a pushbike at home, that’s the family joke because it’s still got the rubber nodules on the tyres. It’s been wheeled in and out of the bike shop more than it’s done anything else, it’s never been ridden. Love to be able to ride it but I can’t.
Just things Peter and I can’t do together any more, so it really – sorry. It doesn’t have a huge impact. People look at you and think, ‘You look fine,’ but they don’t realise what happens in the background. …”[21]
[21]T 82, L6 – T 83, L7
The Medical Evidence
31 The plaintiff has undergone the following radiological studies:
(a) Prior to the injury, a CT scan of the lumbar spine dated 20 January 2004.[22] The clinical notes were that the plaintiff was having symptoms at the L4-5 level of his spine with loss of knee jerk and ankle jerk on the left. The report of the CT scan states, in part:
[22]See Exhibit 3 at page 63AA PCB
“The patient appears to have congenitally short pedicles, causing narrowing of the neural foramina, particularly at the L4/5 and L5/S1 levels. However, exiting nerve roots do not appear significantly compromised. There is a posterior broad based disc bulge at the L4/5 level, but this does not compromise the exiting L4 nerve roots or descending L5 nerve roots. The spinal canals and lateral subarticular recesses are adequate at all levels scanned. The alignment appears normal and there are no paravertebral masses.”
(b) Prior to the injury, an MRI scan of the lumbar spine on 2 April 2004.[23] The conclusion of such scan was:
[23]See Exhibit 3 at page 63AB PCB
“There is degenerative change at both L4/5 and L5/S1.
The traversing left S1 nerve root is contacted within the lateral recess at L5/S1 and the exiting L5 nerve root is compressed within its foramen largely as a result of facet hypertrophy.”
(c) An x-ray of the pelvis and lumbosacral spine dated 15 October 2004 (the date of injury).[24] The x-ray is reported as revealing:
[24]See Exhibit 3 at page 68 PCB
“… a wedge compression fracture of the superior end plate of what appear to be L1, with the fracture extending through the anterosuperior aspect of the vertebral body … .
The remainder of the spine demonstrates no malalignment or fracture. The pelvis and hips appear satisfactory … .”
(d) MRI scan of the lumbar spine dated 18 October 2004.[25] The report of such scan states:
[25]See Exhibit 3 at page 64 PCB
“1Recent comminuted fracture of the superior end plate of L1, involving the anterior two thirds. No definite posterior element involvement is seen. No significant loss of vertebral body height. No retropulsion of bone fragment. CT could better delineate bone appearances.
2At L5-S1, left sided laminectomy noted. The traversing left S1 nerve root is posteriorly positioned (and appears mildly swollen). A central and left paracentral disc protrusion is seen, but the degree of likely mass effect may not fully account for the degree of displacement of the nerve root.
3At L4-5, disc degeneration is present.”
(e) X-ray of the thoracolumbar spine dated 13 December 2004.[26] The report of such x-ray states:
[26]See Exhibit 3 at page 70 PCB
“The thoracolumbar spine has been examined from the T10 down to L5 level. There is a compression fracture involving the body of L1 with moderate depression of the superior end plate present and partial detachment of a fragment of bone representing the anterosuperior aspect of this vertebral body. There is resultant loss of vertebral body height anteriorly in the order of 30%. Alignment of the lumbar spine at the thoracolumbar junction is normal and there is no retro position of the body of L1. The compression fracture of the body of L1 shows some evidence of healing.
Elsewhere in the lumbar spine there is moderate narrowing of the L5-S1 disc space. The sacro-iliac joints were normal.”
(f) X-ray of the lumbosacral spine dated 21 January 2005.[27] The report of the x-ray states:
[27]See Exhibit 3 at page 69 PCB
“The anterior wedge fracture at L1 is again demonstrated with no progression compared with a previous study on 13/12/2004. Union is in progress with sclerosis and the bone bridging across the defect of the anterior and superior corner.”
(g) X-ray of the lumbar spine dated 8 April 2005.[28] The report of such x-ray states:
[28]See Exhibit 3 at page 66 PCB
“Compression fracture of some duration is seen at the vertebral body of L1, with wedge deformity.
There are no previous films for a comparison.
The disc spaces show slight narrowing between T12 and L1 and all the lumbar discs are preserved. There is good bony alignment. Sacro-iliac joints appear normal.”
(h) X-ray of the lumbosacral spine dated 21 November 2005.[29] The report of such x-ray states:
[29]See Exhibit 3 at page 67 PCB
“A healing wedge fracture of L1 is seen with loss of 20% of vertebral body height with no retropulsion of fragments seen and the remainder of the vertebral bodies of disc spaces are preserved. Pedicles intact.”
(i) MRI scan of the lumbar spine dated 7 May 2010.[30] The conclusion of the MRI scan states:
“1Chronic benign type crush fracture is demonstrated at the superior end plate of L1 without epidural or paraspinal soft tissue mass or retropulsed fragment.
2Multilevel disc degeneration is seen with generalised disc bulge resulting in mild bony foraminal stenosis on the left at L4/5 with minor compromise of the existing left L4 nerve within the foramen and mild bilateral bony foraminal stenosis at L5/S1 with minimal compromise of the existing L5 nerve roots bilaterally. There is no foraminal disc protrusion. Epidural scar surrounds but does not displace an enlarged left S1 nerve at L5/S1. No residual recurrent disc protrusion is seen at this level and there is no focal disc protrusion demonstrated elsewhere.”
[30]See Exhibit 3 at page 71 PCB
32 The plaintiff relies on the medical records of the general practitioner, Dr Craig Blandy.[31] His records indicate that the plaintiff underwent a laminectomy at the L5-S1 level on 1 January 1995 and a discectomy at the C5-C6 level on 1 January 1993. Furthermore, he was diagnosed with sleep apnoea syndrome on 1 January 2002.
[31]See Exhibit 4 at pages 72-98 PCB
33 The records of Dr Blandy[32] run from 2 October 2000 to 9 April 2009, although during that period of time other doctors at the clinic occasionally treated the plaintiff. It may be that since April 2009, the plaintiff has been attending the closer general practitioner, Dr Michael Williams.
[32]at least those tendered in evidence
34 Prior to the subject incident of injury on 15 October 2004, the medical records of Dr Blandy would suggest that the plaintiff consulted him in relation to low-back pain on the following occasions:
(a) On 22 March 2001 with complaints of unrelieved low-back pain, together with pain in the left foot and right thigh. There was a further attendance on 27 March 2001 when a history was given that the back pain had “improved”.
(b) On 13 January 2004, with complaints of left leg sensory disturbance with some numbness in the toes. It was noted that sensation was diminished at the L4-5 level.
On 27 January 2004, with similar complaints, causing Dr Blandy to refer the plaintiff to the neurosurgeon, Mr Andrew Danks.
35 The notes of Dr Blandy contain two medical reports from the neurosurgeon, Mr Danks, dated 10 March 2004 and 13 April 2004.[33] Mr Danks initially consulted with the plaintiff on 10 March 2004 in relation to the complaints of left lower leg pain. At that time, the plaintiff apparently informed Mr Danks that the symptoms commenced “during a driving holiday over summer” and that he experiences sensory change involving the lateral ball of the foot and the lateral two toes, together with symptoms in the left calf which come and go.
[33]See Exhibit 4 at pages 96-97 PCB
36 Mr Danks had access to the CT scan of the lumbar spine dated 20 January 2004,[34] and after examination, considered that the symptoms suffered by the plaintiff were likely to be due to the pathology at the L5-S1 level.
[34]See Exhibit 3 at page 63AA PCB
37 Mr Danks arranged for the plaintiff to undergo an MRI scan on 2 April 2004.[35]
[35]See Exhibit 3 at page 63AB PCB
38 Mr Danks considered that the MRI revealed that there was some scarring around the nerve root at the site of the L5-S1 surgery, although this was not unduly “severe” and that also there was some narrowing within the foramen which may be causing some compression of the L5 nerve root.
39 On review on 13 April 2004, Mr Danks advised the plaintiff that there was no need for surgery.
40 Mr Danks also referred the plaintiff to the physiotherapist, Ms Patricia Grundy, who initially evaluated him on 18 March 2004 and thereafter arranged for several physiotherapy visits.
41 The plaintiff relies on various medical reports from the orthopaedic surgeon, Mr David de la Harpe.[36]
[36]See Exhibit 2, commencing at page 23 PCB
42 The plaintiff came under the care of Mr de la Harpe at the Epworth Hospital on 15 October 2004.
43 Mr de la Harpe obtained the history that the plaintiff had a fall when descending from a bunk, landing on his bottom, striking the back of his head against the ladder. X-rays and an MRI scan were performed and a diagnosis made of a wedge compression fracture of the L1 vertebrae with no retropulsion of the posterior wall and no intrusion into the spinal canal.
44 The plaintiff was discharged from the Epworth Hospital after approximately five weeks to the care of his partner. He was reviewed by Mr de la Harpe on 13 December 2004, 22 April 2005 and 21 November 2005.
45 When reporting on 24 December 2005,[37] Mr de la Harpe noted that at that time, the plaintiff would have a capacity to perform full-time work as a security guard but not lifting beyond 15 kilograms. He considered that the injury had significantly impacted on the capacity of the plaintiff for heavy lifting in the future and certain sporting activities. He noted that in particular, such activities as ten pin bowling may cause some aggravation of back pain. He anticipated that no surgery would be required.
[37]See report dated 24 December 2005 – Exhibit 2 at page 29 PCB
46 Mr de la Harpe again reviewed the plaintiff on 4 May 2010 when he obtained a history that the plaintiff was still working “in security” on a casual basis but no longer in crowd control but rather manning gatehouses and doing routine patrols.
47 In particular, the plaintiff gave a history of ongoing low-back pain which he said was “significant”, causing him difficulty getting in and out of bed and enjoying sleep.
48 Mr de la Harpe arranged for the plaintiff to undergo further MRI scanning on 7 May 2010[38] and reviewed the plaintiff on 17 May 2010, when he was advised that there were no surgical options for him and that he should continue with some physiotherapy and self-directed exercises.
[38]See Exhibit 3 at page 71 PCB
49 In particular, Mr de la Harpe stated, in part, to various questions:
“The nature of his injury was that of a wedge compression fracture of the L1 vertebra. His present condition is that of suffering some degenerative back pain both related to the fracture site and possibly due to degenerative changes in the lumbar sacral disc.
…
There may have been an aggravation of pre-existing degenerative change in the L4-5 and L5-S1 discs.
I believe the injury was contributed to by the nature of his employment. …
His work restrictions now will involve no lifting of more than 5Kg, no repetitive bending or twisting, no sitting or standing in the one position beyond 30 minutes without change.
…
I believe Mr Watts does have the capacity for more sedentary work. …
I don’t feel that he should go back to his pre-injury duties of crowd control.
I believe his injuries will have an affect on his lifestyle and ability to perform certain activities of daily living.”[39]
[39]See Exhibit 3 at pages 32-33 PCB
50 The plaintiff also consulted Dr Kathleen Ooi, a rehabilitation physician, on 7 May 2010.[40] Dr Ooi obtained a history from the plaintiff of chronic low thoracic back pain which radiated up into his mid thoracic area. He was not complaining or any lumbar or neck pain. The pain that he had was constant, at 2/10 grade, which increased to 7/10 with prolonged standing. He had difficulty sleeping on his left side and managed his pain with Paracetamol.
[40]See report dated 18 February 2011 – Exhibit 2 at page 56 PCB
51 At that time, he was working 48 to 60 hours a week as a security officer but had to change his job role as a result of his back pain. His work mainly consisted of foot patrols and he noted that he managed to lose 13 kilograms over the last three months. In particular, he also informed Dr Ooi that he wears a pedometer and walks 12,000 and 15,000 steps per day at work.
52 After examination, Dr Ooi was of the opinion that the plaintiff had the “fairly common sequelae of conservative management of vertebral fracture”. She was of the opinion that when such fractures are managed conservatively with external bracing, there is rapid development of weakness of the core muscles which results in long-term low-grade pain unless there is targeting or strengthening of such core muscles. She recommended physiotherapy to improve his core strength and flexibility.
53 When reviewed on 15 October 2010, physiotherapy had not been undertaken and she recontacted WorkCover.
54 Dr Ooi considered the plaintiff should continue in security work that avoided crowd control given his previous discectomy and laminectomy, because of the increased risk or repeated trauma to those vertebrae. She noted that the current effects of the subject injury caused interference with his ability to sleep and to drive. Furthermore, he had to give up ten pin bowling and decrease his frequency with which he goes bushwalking and the length of time he is able to bushwalk as prolonged walking, particularly carrying a backpack, exacerbated his back pain.
55 The current general practitioner, Dr Mark Williams, referred the plaintiff to the pain management doctor, Dr David Vivian, on 18 October 2011.[41] At that time, Dr Vivian obtained a history that the weight of the plaintiff had increased from 94 kilograms to 106 kilograms since the occurrence of the injury. Furthermore, the plaintiff described his pain as “variable”.
[41]See reports dated 18 October 2011 and 30 January 2012 contained in Exhibit 2 at pages 59AC-63 PCB
56 On examination, lumbar flexion was reduced to 70 degrees and extension to 20 degrees, both of which produced mid lumbar pain. Tenderness was present at L1 “more than anything”. Dr Vivian noted that the laminectomy scar was sharply tender in the lower part but did not think that this was contributing to his pain problem.
57 Dr Vivian diagnosed a fracture at L1 in 2004 and that his ongoing pain “might be mechanical pain arising from the disc around that region, or the facet joints”. He recommended a pain management course and referred the plaintiff to Epworth Eastern Rehabilitation for assessment.
58 The plaintiff was referred by Dr Vivian to a pain management clinic conducted by Dr Bruce Shirazi. The plaintiff relies on a report from Dr Shirazi dated 9 November 2011,[42] wherein he detailed a consultation that he had with the plaintiff.
[42]See Exhibit 2, page 59AA PCB
59 Clinical examination by Dr Shirazi revealed a significant reduction in the range of movement of the lumbosacral spine in all plains, together with allodynia and hyperalgesia and palpation of the entire paravertebral region from the mid thoracic to lower lumbar spine. Dr Shirazi found no neurological abnormality, and noted that x-rays immediately after the injury and some years later indicated a fairly stable crush-like fracture of the L1 vertebra.
60 Dr Shirazi recommended that the plaintiff undergo a pain management course.[43]
[43]See the third affidavit of the plaintiff which details his attendance at such pain course
61 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the orthopaedic surgeon, Mr Kevin King, seemingly in about July 2009 and May 2012.[44]
[44]See reports of Mr King dated 14 July 2009 and 8 May 2012 contained in Exhibit 2 at pages 44 and 51 PCB
62 When first examined by Mr King, the plaintiff gave a history that he suffered from “constant aching pain in the low back region, extending down from the thoraco-lumbar to the lumbosacral area”. Such pain fluctuated in intensity and was usually of moderate severity during the average day and night, causing him to experience sleep disturbance. Mr King had available to him various radiology undertaken in 2004. On the basis of the history given and his examination, Mr King formed the opinion that the fall suffered by the plaintiff on 15 October 2004 represented a “major degree of generalised trauma to the spine” and was consistent with the x-ray appearance of a comminuted fracture of the upper part of the body of L1. Furthermore, Mr King was of the opinion that there would have been extensive damage to neighbouring lumbar discs and associated ligamentous structures, as well as aggravation of pre-existing but symptomless scarring at the L5-S1 level which dated back to the injury giving rise to the earlier back surgery.
63 On the basis that the plaintiff made a full recovery from the injury giving rise to the surgery, and him not experiencing any “symptoms of any sort in terms of low back and sciatic symptoms from approximately 1995 up to 2004”, it was reasonable to attribute the persistent severe thoracolumbar spinal symptoms to the injury on 15 October 2004.
64 When later seen in May 2012, the plaintiff gave a history that he continued to be “disabled” by constant thoracolumbar back pain and there had been a slow but steady deterioration.
65 After examination, Mr King expressed the opinion that his “opinion remains basically unchanged” since his earlier examination. In particular, Mr King stated:
“Despite the earlier significant trauma to the cervical and thoracolumbar spine I believe it is reasonable to accept that he made a full recovery from these injuries (having had no low back symptoms of sciatica for ten years up to the time of the injury to his low back in October 2004). This man is chronically disabled to a moderately severe degree, can continue to work in his present light occupation providing this continues to be available to him, but he is significantly limited for any alternative form of work which would involve bending, lifting or twisting strains on his back. …. .”[45]
[45]See Exhibit 2 at page 54 PCB
66 Subsequent to two such reports, Mr King was given details of the plaintiff attending Dr Blandy prior to the injury complaining of “left leg sensory disturbance symptoms” and details of the reference to the neurosurgeon, Mr Danks, for an opinion. After a consideration of such material, Mr King states, in a supplementary report:[46]
“The material you have provided does not cause me to alter my earlier opinion. This mild sensory impairment in the form of light numbness of the toes and occasional discomfort in the calf do not represent sciatic pain as such, represent no significant disability, and I am not surprised that he did not mention these minor symptoms to me – he only mentioned them to his own doctor in the course of several years, on two occasions.
His present symptoms are still, in my opinion, the result of significant injury sustained to his lumbar spine at the time of the incident at work in October 2003. The opinion in my reports remains unchanged. This recording of minor sensory symptoms in the left lower limb on two occasions does not in any way damage his credibility as an historian. On multiple occasions up to the time of the accident in 2004 he saw Dr Blandy for other reasons and made no further mention of his left lower limb symptoms as far as I can determine from the notes that you have sent to me.”[47]
[46]See report dated 28 June 2012 – Exhibit 2 at page 55AA PCB
[47]See Exhibit 2 at page 55AAC PCB
67 It is convenient to refer to the medico-legal material relied on by the defendant, the solicitors for whom arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) The occupational physician, Dr D Barton, on 24 February 2005;[48]
[48]See report dated 25 February 2005 – Exhibit B at page 6 DCB
(b) The orthopaedic surgeon, Mr J O’Brien, on 15 May 2007;[49]
(c) The orthopaedic surgeon, Mr Michael J Dooley, on 22 June 2009.[50]
[49]See report dated 21 May 2007 – Exhibit B at page 139 DCB
[50]See report dated 30 June 2009 – Exhibit 2 at page 10 DCB
68 When seen by Dr Barton, the plaintiff had just commenced working full-time hours and had ceased all medication. Although he described his condition as “much improved”, the plaintiff gave a history that he continued to suffer low-back pain which was present most of the time and which tended to be worse on the morning, increasing towards the end of the day. Dr Barton confirmed that the plaintiff had clearly suffered a fracture of the L1 vertebra and, at the time of his examination, believed that there was some ongoing incapacity, although he expected improvement over the next few months.
69 When seen by Mr O’Brien in May 2007, the plaintiff gave a history that he experienced constant low-back pain that on average had a severity of 2 out of 10 on a visual analogue scale. Furthermore, the plaintiff informed Mr O’Brien that the severity of the pain can reach 6 out of 10 when there is aggravation. At that time, he was receiving no active treatment and was taking several Panadol per day to control pain.
70 Mr O’Brien noted that the fall in October 2004 caused a compression fracture of the vertebral body of L1. He considered the physical signs in relation to the lumbar spine were very “mild” with minimal restriction of movement and somewhat generalised mild reaction to palpation over the lumbar spine. X‑rays demonstrated the compression fracture being “soundly united” with slightly less than 25 per cent loss of vertebral body height.
71 In particular, Mr O’Brien considered there was no evidence to suggest the plaintiff has any active lumbosacral disc pathology.
72 Mr O’Brien considered the prognosis to be “satisfactory” and in particular, stated:
“As a consequence of this injury the patient is only mildly disabled and in fact has returned to a reasonably active lifestyle. The one concern appears to be a problem associated with heavy physical strain on the spine, which limits the patient’s basic lifting ability. As a consequence of this he has apparently continued to be certified as fit for modified duties with restriction on lifting. Indeed despite this the patient has remained in employment since shortly after his injury, recently ending his employment for reasons other than his lumbar spine. … .”[51]
[51]See Exhibit B at page 13d DCB
73 When examined by Mr Dooley in June 2009, the plaintiff complained of ongoing mid to low lumbar spine pain causing difficulties to stand still for more than an hour, difficulties driving and requiring the use of Panadol on an intermittent basis to control the pain.
74 After examination and review of the earlier radiology, Mr Dooley stated, in part:
“… I believe that in this fall he sustained a compression fracture of the L1 vertebra as outlined above. The fracture was stable and therefore managed conventionally in the usual way of a Taylor brace. In the attached documentation, it is stated that the fracture has gone onto (sic) unite. Mr Watts complains of constant ongoing pain that has been more intense recently. Following this sort of injury, I would expect a patient to note ongoing intermittent low back pain. This pain relates to the fracture sustained, associated musculoligamentous damage and sometimes damage to the T12/L1 disc. Currently, the constancy and intensity of Mr Watts’ ongoing pain are greater than I would expect to see for the injuries sustained. While I accept that he would be unable to jog or run, I believe he would be able to undertake low impact exercise and activity. I believe that he is capable of increasing to walking reasonable distances. Water exercise and exercise bike riding would be appropriate activities for him. I believe that if he can improve his fitness and stamina and lose weight, then the current constancy and intensity of his pain will improve with time. … .”[52]
[52]See Exhibit B at page 12 DCB
75 Later in his report, Mr Dooley notes that he considers that the plaintiff had developed a Chronic Pain Syndrome and a component of his ongoing pain relates to his psychological reaction to the injury and/or pain. Furthermore, he states that he does not believe that the “injury” involved aggravation of pre-existing conditions.
76 The defendant also relies on a medical certificate dated 22 February 2005 from Dr K Patten, a rehabilitation physician, certifying the plaintiff to be fit for modified duties from 25 January 2005 and to be fit for normal duties from 26 February 2005, subject to a return to work program.[53]
[53]See Exhibit E at page 77-78 DCB
77 The defendant also relies on various return to work plans dated 21 January 2005, 31 January 2005 and 7 February 2005.[54]
[54]See Exhibit C at pages 19-22 DCB
78 The defendant also relies on a report from a thoracic and sleep disorders physician, Dr Fergal O’Donohue, dated 5 June 2002.[55] Dr O’Donohue examined the plaintiff on referral from the general practitioner, Dr Blandy, in relation to ongoing sleep problems. In particular, the defendant refers to the history given by the plaintiff to Dr O’Donohue that at the time of examination, the plaintiff weighed 108.5 kilograms and his weight had increased by some 15 kilograms over the last five years. Dr O’Donohue considered that the plaintiff may have significant sleep apnoea and made arrangements for the plaintiff to undergo a sleep study.
[55]See Exhibit F at pages 43 DCB
Analysis of the Evidence
79 There is no issue that the plaintiff suffered a back injury as a result of a fall from a bunk during the course of his employment with the defendant on or about 15 October 2004. Furthermore, the defendant accepts that as a result of such fall, the plaintiff suffered a fracture of the superior end plate of the L1 vertebra.
80 As I understand the contentions of the defendant, it is submitted that, to the extent that the plaintiff has any permanent impairment of his back as a result of the injury, the consequences of such impairment do not satisfy the requirements of the narrative test when one considers the extent of his activities and employment since the injury.
81 As part of this fundamental submission, the defendant also contends that consistent with the principles set out in Petkovski v Galletti,[56] it is necessary to make a comparison of the impairment of the plaintiff’s lumbar spine prior to the injury and after the injury. It is contended that although the crush fracture obviously did not, in itself, aggravate the pre-existing injury at L5-S1 (where the back surgery was undertaken), but such crush fracture occurred in the setting of a pre-existing impairment of the lumbar spine as a result of the earlier surgery.
[56]supra
82 After observing the plaintiff give evidence, I formed the view that he was an articulate witness who was very injury focussed. During the course of his evidence, he sought to emphasise the extent of pain that he suffers and how such pain impacts on his daily activities. I also gained the impression that he downplayed other aspects of his life if he perceived them to be unhelpful to his cause.
83 In this respect, I refer to the following matters:
(a) He denied having any memory of attending his general practitioner, Dr Blandy on 13 and 27 January 2004 complaining of left leg sensory disturbance with numbness in the toes. Furthermore, he claims no memory of being referred to the neurosurgeon, Mr Danks, in March and April 2004 because of such symptoms. At that time, Mr Danks obtained a history that he had had the complaints since a “driving holiday over summer”. Mr Danks arranged for the plaintiff to undergo an MRI scan on 2 April 2004 and on review on 13 April 2004, advised the plaintiff that there was no need for surgery. I consider it inherently unlikely that the plaintiff had no memory of such a course of events in early 2004, some five months prior to the subject injury;
(b) The plaintiff also complained of putting on weight as a result of his inactivity since the subject injury. When taken to the history obtained by Dr Fergal O’Donohue, in or about June 2002 that he was then 108.5 kilograms, the plaintiff accepted that he always had difficulty controlling his weight.
84 However, after a consideration of all of the evidence, I have come to the view that the plaintiff is largely a witness of credit and has not set out deliberately to mislead the Court. Ultimately, I have come to such view that the picture “painted” by the plaintiff is supported by the lay evidence (in particular his partner) and to some extent by the medical evidence.
85 I make the following findings of fact:
(a) The plaintiff is a fifty-three year old man who suffered personal injury arising out of or in the course of his employment with the defendant on 15 October 2004;
(b) The nature of the injury is a compression fracture of the L1 vertebra which was treated in a conservative manner and has united with slightly less than 25 per cent loss of vertebral body height;
(c) Prior to the injury, the plaintiff had suffered a low-back injury at L5-S1 as a result of being assaulted, causing him to undergo a laminectomy at the L5-S1 level on or about 1 January 1995;
(d) Between the date of the laminectomy, and his injury on 15 October 2004, he attended Dr Blandy on 22 March 2001 and 27 March 2001 complaining of initially “unrelieved” low-back pain which had “improved” by the second consultation. Furthermore, the plaintiff attended Dr Blandy on 13 January 2004 and on 27 January 2004, complaining of symptoms of left leg sensory disturbance causing Dr Blandy to refer the plaintiff to the neurosurgeon, Mr Danks, who consulted with the plaintiff on 10 March 2004 and 13 April 2004. Mr Danks arranged for the plaintiff to undergo an MRI scan on 2 April 2004;
(e) Other than approximately two attempts to return to ten-pin bowling, the plaintiff has not engaged in ten-pin bowling since his injury on 15 October 2004. I accept that prior to the advent of the injury, the plaintiff was very much involved in ten-pin bowling and such activity gave him great pleasure and enjoyment;
(f) I also find that the plaintiff has suffered, and continues to suffer, organic symptoms of pain emanating from the L1 area and also, as suggested by Mr Dooley, associated musculoligamentous damage and maybe some damage to the T12-L1 disc. Based on his complaints and clinical findings, I accept the opinion of Mr Dooley that the injury on 15 October 2004 did not aggravate any pre-existing conditions (for example, the site at L5-S1). However, again consistent with the opinion of Mr Dooley, and bearing in mind my earlier comments as to the presentation of the plaintiff being injury focussed, I tend to the view that a component of his pain relates to a psychological reaction to the injury;
(g) I find that prior to the injury, and particularly over the period from the laminectomy in 1995 up to the advent of the injury, the plaintiff was capable and performed all aspects of security work open to him and took little or any medication referrable to his low back;
(h) Since the advent of his injury, I do find that the plaintiff has taken medication frequently, resorted to excessive use of alcohol to control the pain symptoms particularly when sleeping. In this respect, I also accept his evidence that the pain does disturb his sleep. Although he may well suffer from sleep apnoea, I accept his evidence that the pain disturbs his sleep;
(i) I also find that although the plaintiff has continued to work in the security industry with no material reduction in his earnings, the nature of the work performed by him since his injury has changed, in that he no longer performs crowd control work, major event work, static security work or any security work which requires confrontation;
(j) I find that the plaintiff is presently working as a security officer with Monjon Securities and also performs reasonably regular work at the Melbourne Cricket Ground and the Palais Theatre. In particular, I find that his present employment duties with Monjon involves an average of working three or four days a week on twelve-hour shifts either between 6.00 am and 6.00 pm or between 6.00 pm and 6.00 am. Such duties require him to patrol the worksite, which he does alone, and involves “slow walking” for approximately forty-five minutes of every sixty minutes of his shift. I also accept his evidence that he may walk 15 to 20 kilometres at such a slow rate during each shift he works for Monjon.
Conclusion
86 After a consideration of all of the evidence, I have formed the view, with some reservations, that the plaintiff has discharged his onus in satisfying the narrative test. I have come to such view for the following reasons:
(a) I accept that the crush fracture does give rise to organic symptoms and indeed all doctors accept there would be a degree of ongoing symptomatology as a result of the fracture and/or ligamentous damage surrounding the fracture site. Although I tend to the view that there may well be a psychological component to his experience of pain, I am satisfied that the nature of the medical evidence permits the conclusion that the physical consequences of the injury satisfy the narrative test and is thus a “serious injury” within the meaning of the Act;[57]
[57]See Zivolic v Hella Australia Pty Ltd [2007] VSCA 142
(b) The principles of Petkovski v Galletti are generally applied where there is an aggravation of a pre-existing injury and it is for the Court to determine whether the extent of the aggravation has given rise to the requisite impairment and consequences to satisfy the narrative test. In the circumstances of this matter, although there is passing reference to some seemingly slight aggravation of the old laminectomy site, all doctors are primarily of the view that the fracture site gives rise to any symptoms that the plaintiff suffers.
However, it cannot be gainsaid that the part of the spine which is impaired is the lumbar spine which also, so it is said, was impaired prior to the injury on 15 October 2004 as a result of a laminectomy. On the evidence before me, the plaintiff seemingly made a remarkable recovery after the laminectomy with no impact on his employment capacity, his sporting pursuits or his activities of daily living. On the evidence before me there was no suggestion that he lost time from work or indeed received any particular treatment after the acute phase of the surgery. The only evidence before me was that he attended Dr Blandy in March 2001 (two occasions) complaining of low-back pain which improved and on 13 January 2004 when he complained of a left leg sensory disturbance causing him to be referred to Mr Danks. Again, this episode seemed to be self-limiting;
Since the subject injury, he has suffered ongoing pain at the fracture site of varying intensity, causing him to take medication on a frequent basis, has been unable to perform all aspects of security work, and has been forced to give up his great love of ten-pin bowling. Furthermore, aspects of his daily living, including his relationship with his partner, driving and certain recreational pursuits have been affected by the injury. Applying the principles set out in Petkovski v Galletti, I am satisfied that the physical consequences of the impairment of the lumbar spine resulting from the crush fracture satisfy the narrative test.
Disposition of the Matter
87 Pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages for personal injury arising out of or in the course of his employment with the defendant on or about 15 October 2004.
88 I will hear the parties on the question of costs.
ANNEXURE A
1 The plaintiff tendered the following material:
(a)Exhibit 1 – affidavit of the plaintiff sworn 19 September 2008; 16 November 2009; and 2 July 2012; affidavit by Mr Damian Borg sworn 22 November 2010 and the affidavit of Mr Peter Robert Nicoll sworn 3 February 2012, such documents found at pages 6 – 22 of the Plaintiff’s Court Book (“PCB”)
(b)Exhibit 2 – the medical reports of Mr de la Harpe dated 6 December 2004, 10 May 2005, 10 October 2005, 24 December 2005 and 28 May 2010; the hospital reports from Epworth Hospital dated 15 February 2005, 8 October 2005 and 14 March 2006; the Medical Panel Certificate of Opinion dated 25 September 2007; the medical reports of the orthopaedic surgeon, Mr Kevin King dated 14 July 2009, 8 May 2012 and 28 June 2012; the report of Dr Kathleen Ooi dated 18 February 2011; the medical report of Dr Bruce Shirazi dated 9 November 2011 and the medical reports of Dr David Vivian dated 18 October 2011 and 30 January 2012 – all such reports at pages 23 – 63 PCB
(c)Exhibit 3 – CT scan of lumbar spine dated 20 January 2004; MRI scans of the lumbar spine dated 2 April 2004, 18 April 2004 and 7 May 2010; x‑rays of the lumbar spine dated 8 April 2005, 21 November 2005 and 21 January 2005; x‑ray of the pelvis and lumbar spine dated 15 October 2004 and x‑ray of the thoracolumbar spine dated 13 December 2004 – all such reports found at pages 63AA – 71 PCB
(d)Exhibit 4 – Records of Dr Craig Blandy at pages 72 – 98 PCB
2 The defendant tendered the following material:
(a)Exhibit A – WorkCover claim form dated 19 October 2004 at pages 1 – 3 Defendant’s Court Book (“DCB”)
(b)Exhibit B – Medical reports of occupational physician, Dr D Barton, dated 26 February 2005; the orthopaedic surgeon, Mr J O’Brien, dated 21 May 2007; and the report of the orthopaedic surgeon, Mr M Dooley, dated 30 June 2009 – all such documents contained at pages 7 – 9, 19 – 13, and 13a – 13f DCB.
(c)Exhibit C – Return to work plans dated 21 January 2005, 31 January 2005 and 7 February 2005 – such documents found at pages 19 – 21 DCB
(d)Exhibit D – WorkCover claim form dated 14 March 2003 – such document at pages 72 – 74 DCB
(e)Exhibit E – Certificate of Capacity dated 22 February 2005 – such document at pages 77 – 78 DCD
(f)Exhibit F – Report from Dr Fergal O’Donoghue dated 5 June 2002 – such document at pages 43 – 44 DCB.
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