Suna v Bridgestone Australia Ltd [2008] QSC 125

Judgment (109 paragraphs)

[1]

[1] The plaintiff is a 40 year old married man with three children aged 11, 9 and 5 years who sustained personal injury on two occasions while working as a storeman for the defendant at its warehouse at Nudgee Road, Hendra.

[2]

[2] At the commencement of the hearing, Mr Morton, for the defendant, stated that liability was no longer an issue between the parties. It is, however, necessary to set out what occurred in order to understand the medical evidence and the issues that are in contest about quantum.

[3]

[3] The defendant supplied tyres of various sizes from its warehouse to industry. The plaintiff had been employed as a storeman with the defendant since 13 November 1995. This involved manual handling of tyres, loading and unloading trucks with tyres and moving stock around the shed, sometimes using a forklift. On 11 July 2002 (when he was 34 years) at about 6.15 am the plaintiff was attempting to move manually a light truck tyre weighing about 40 kilograms from an upper cage containing tyres. In order to dislodge it he climbed on to the lower cage and attempted to retrieve the tyre. As he did so he slipped and fell backwards to the ground, landing on his feet, a distance of approximately 1.5 metres. The tyre, having become dislodged, fell and hit him on his head. He immediately felt pain in his head and neck. He reported the incident but did not see a doctor and, although he had a sore neck, he continued to work.

[4]

[4] On 28 November 2003 the plaintiff was attempting to dislodge a jammed tyre from a cage for a customer. As he pulled on the tyre it released suddenly, jerking him. He immediately experienced pain down his right arm from his shoulder to his elbow. Because of the severe pain the plaintiff consulted with his general practitioner, Dr Andrew McNeil. Dr McNeil referred him to a physiotherapist but his symptoms did not resolve. He was put on light duties at work but obtained little relief. Dr McNeil referred him for an ultrasound of his right shoulder. The report dated 2 December 2003 indicated 'very slight distension of the sub-deltoid bursa'.

[5]

[5] The plaintiff was then referred for x-ray. Dr P Landy's report of 14 January 2004 reads:

[6]

'There is narrowing of the intervertebral discs from C3/4 to C5/6. There is deviation of the upper cervical spine to the right with mild curvature anteriorly of the upper cervical spine. There is degenerative change of the uncovertebral joints at the C5/6 level on the right. The intervertebral foramen appear otherwise within normal limits. The left oblique view demonstrates some prominent curvature of the upper cervical spine. Has there been any history of injury or ligament laxity?

[7]

An opacity is projected posterior to the C6 spinous process and as such could represent nuchal calcification or be related to previous injury.'[1]

[8]

[6] Dr McNeil then referred the plaintiff to Dr P Dupré, an orthopaedic surgeon, who saw him on 21 January 2004. Dr Dupré noted in his report of 23 January 2004 that the x-ray report of the plaintiff's cervical spine showed 'evidence of previous injury, that may be related to the tyre falling on his head. It also shows evidence of intervertebral disc disease'.[2] Because the intervertebral foraminae were not narrowed, Dr Dupré concluded:

[9]

'... at this stage ... the cause of his pain is due to a cervical disc protrusion.'

[10]

'I suspect that the injury sustained when the tyre fell on his head may well have weakened one of the discs that has now herniated, following a relatively minor strain.'

[11]

Dr Dupré concluded that the symptoms would improve with time and physiotherapy although he was unable to say when that might occur.

[12]

[7] The plaintiff had some time off work and was seen by Dr Dupré again on 4 February 2004. He told Dr Dupré that physiotherapy had assisted and, with the 'passage of time', he was 80 per cent improved and expected to return to work on 11 February 2004. Dr Dupré considered, in consultation with the physiotherapist, that if the plaintiff regressed after returning to work 'he should seriously consider finding another job'.

[13]

[8] The plaintiff returned to full duties with the defendant but found difficulty in performing the range of tasks required such as raising both arms to lift tyres and lifting his head to look up - a constant requirement. These activities were productive of pain such that he could only continue working with strong analgesics.

[14]

[9] On 11 August 2004 an MRI scan showed disc protrusion at C5-C6. Since this report by Dr D Robertson was the subject of extensive consideration by the medical specialists giving evidence, it is set out in full:

[15]

'Loss of the normal cervical lordosis. Normal vertebral body height is maintained. No significant vertebral marrow signal abnormality. Desiccation of the discs from C2/3 to T5/6.

[16]

C3/4 Level: Some minor posterior annular bulge effaces the anterior thecal sac and results in minor flattening of the anterior cord. No foraminal narrowing.

[17]

C4/5 Level: Some minor posterior annular bulge with associated mild spondylotic changes effaces the anterior thecal sac and results in minor flattening of the anterior cord.

[18]

C5/6 Level: There is a large right lateral/far lateral disc protrusion which completely effaces the right C6 intervertebral foramen and also the lateral aspect of the right C6 lateral recess. This would result in compression of the right C6 nerve root/rootlets at these levels. The disc protrusion is associated with some mild spondylotic changes. There is effacement of the anterior and posterior thecal sac at this level. There is also mild stenosis of the left C6 intervertebral foramen due to uncovertebral osteophytosis.

[19]

C6/7 Level: Mild left paracentral/lateral disc bulge with associated spondylotic changes indents the left anterolateral thecal sac and results in mild stenosis of left C7 intervertebral foramen. It abuts left C7 ventral rootlet at lateral recess level. No definite cord signal abnormality is demonstrated.

[20]

CONCLUSION: Right lateral/far lateral C5/6 disc protrusion completely effaces the right C6 intervertebral foramen and the lateral aspect of the right C6 lateral recess with compression of right C6 nerve root/rootlets at these levels. Degenerative changes from C3/4 to C6/7 as outlined above. Effacement of the thecal sac from C4/5 to C6/7.'

[21]

[10] An important issue for resolution is whether the disc protrusion at C5/6, which caused the plaintiff's neck and right arm pain, occurred as a consequence of the plaintiff's work related injury in November 2003 (or in combination with that in July 2002) or whether it predated injury. The medical specialists were divided on the answer. Before analysing those opinions the chronology of the plaintiff's progress needs to be completed.

[22]

[11] Dr Dupré examined the plaintiff on 18 August 2004 and noted restriction on movement in his cervical spine on the right by 20 per cent which caused pain in his arm: 'flexion was full, extension lacked 20 degrees as did lateral tipping'. He noted that the plaintiff was concerned that his symptoms had become static. This was caused by the plaintiff's need to look up regularly in his job driving a forklift. Dr Dupré concluded:

[23]

'The natural history of this disc protrusion is that it should resolve with time but because it has now remained static, I have referred him for more physiotherapy .... I would recommend that someone contact his workplace to see if there are any jobs available which do not require him to tip his head backwards, as I feel this is a significant contributory factor to his delayed recovery.'

[24]

[12] The plaintiff attempted to keep up at work but his symptoms persisted and he was referred to Dr R Campbell, a neurosurgeon, who saw him on 17 September 2004, initially for clinical assessment, then for medico-legal assessment on 23 November. Dr Campbell advised that the plaintiff could expect an 80 per cent reduction in his pain should he successfully undergo an anterior cervical discectomy and fusion.

[25]

Dr Campbell related the plaintiff's symptoms to the injuries arising out of the work-related episode in November 2003 and not to the tyre falling on his head in 2002, although he thought that event may have weakened the disc. He considered that

[26]

the temporal onset of the referred arm pain 'better relates to the disc prolapse'. Dr Dupré held a similar opinion. However, Dr Dupré did not "anticipate" any future surgery. He expected gradual recovery over the following year (2005) but that the plaintiff would be left with weakness in his neck and aggravating activities would cause pain and stiffness.

[27]

[13] The plaintiff did not proceed with the surgery as he was concerned about obtaining a successful outcome.

[28]

[14] The plaintiff continued at work, reliant upon analgesics, but on 15 December 2004 whilst he was playing with his children at home he experienced what he described as 'a huge pain down through the back of my neck and through my arm and I could hardly even move my head or my arm, and I didn't know what was going on'.[3]

[29]

He sought treatment in the emergency department of the Caboolture Hospital and from that day has not returned to work. He received WorkCover benefits for a period. He was given the stronger analgesic, Tramal 150. He presently takes two a day. When he stopped working he had been attempting about 50 hours of work per week - much the same hours as prior to injury. He customarily started work at about 5 am and finished at 3 or 4 pm five days a week. Whilst at work he had gradually required more and more assistance to keep up

[30]

with his tasks. He lost, on average, about two hours a week overtime after the November 2003 injury.

[31]

Dr McNeil, referred the plaintiff to Dr G Day, an orthopaedic surgeon. In his report of 15 June 2005[4] he opined that had he seen the plaintiff about a year earlier he would have offered an anterior C5/6 discectomy and interbody fusion with a possible success of about 90 per cent. Since the right C6 nerve root had been compressed for some time he reduced the chance of success for the operation to

[32]

70 per cent. The plaintiff has not had surgery but after recent discussions with

[33]

Dr Campbell he is prepared to have a CT guided injection of local anaesthetic to the region of the nerve exiting from his neck adjacent to the point of contact to see if it reduces the pain, and if so, to have surgery.

[34]

Since ceasing paid employment the plaintiff has taken over home-related activities which frees his wife to engage in work as a part-time (25 hours per week) re-shelver at a local supermarket. He performs duties such as vacuuming and mopping the floor and general care of the children when they come home from school. He had, prior to the November incident, enjoyed interacting with his children in a robust fashion, including camping trips but has been severely limited since. He previously used to enjoy riding motorbikes but has ceased because doing so increases his symptoms of pain. There have been and are difficulties in the marriage due to financial strains and intimacy problems because of his medication.

[35]

The plaintiff, even though not in aggravating employment, suffers neck pain radiating down into his right arm and pins and needles in his hand. He takes Tramal to manage his symptoms.

[36]

The plaintiff has been desirous of finding suitable employment for some time and to that end worked recently in a cousin's industrial business to see how he would fare. This involved some grinding work. He did that for some two and a half hours and suffered an increase in his symptoms of neck pain over the following few days. He was earlier placed with a job network agency provider and has applied for a number of positions without success. He has experienced difficulty in truck driving because he needs to move his head quickly and that is productive of pain. He has no computer skills although says that he was and is prepared to learn new skills in order to be employed. He passed his exams in the lower band of Grade 10 but struggled with school work. He has neither the skills nor personality to perform sales work.

[37]

1. Was the observed large C5/6 right-sided disc protrusion a product of discal degeneration present but relatively symptomless prior to the November 2003 injury so that it would require little to bring about symptoms or was it caused by the work injury that day?

[38]

2. Would the plaintiff's occasional pre-existing lower back pain, even without the subject neck injury, have caused the plaintiff to cease work at much the same time?

[39]

3. Accepting that the plaintiff has a residual, but unexploited earning capacity, has he reached an arrangement with his wife to remain at home unconnected with his compensable injury symptoms?

[40]

4. What is the value of his residual earning capacity?

[41]

[20] The opinions of the expert medical specialists were quite stark in their differences about the origin of the disc protrusion seen at C5/6 and its progress. The defence contends that the presence of osteophytes at C6 supports a likely conclusion that a disc protrusion existed at that level prior to the plaintiff being hit on the head by the tyre in July 2002 or wrenching his arm in November 2003. If that were so, it would have taken little to cause him to experience symptoms similar to those which followed the second incident. When considering the medical opinions it is as well to commence with the treating doctors. Dr Dupré, although initially requested by Mr Morton for cross-examination, was not required to be called. His reports, to which reference has been made, were thus tendered by consent. To the extent that he addressed the issue, Dr Dupré seems to fall on the side of those who date the disc protrusion from the sudden assault in November 2003 although he thought that the disc may have been weakened by the blow from the falling tyre on his head in July 2002.

[42]

[21] Dr Campbell firmly rejected the defence hypothesis. He noted that at 36 years the plaintiff, like most people of that age, would inevitably demonstrate degenerative change in his neck and it takes months, perhaps years, for bony osteophytes, as seen, to develop. He considered that disc degeneration, as revealed can occur and result in osteophyte formation without disc prolapse of any kind. He concluded that since the plaintiff had not previously experienced an episode of arm pain matching the pain experienced after the November 2003 event, there was no basis for making the defence assumption. Dr Campbell was unable to speculate about the plaintiff's risk of discal symptomotology occurring consequent on an innocuous event versus the risk of anyone else with a similar degree of degeneration.

[43]

[22] Dr Day, Professor of Orthopaedic Surgery at Bond University, in private practice, shared the opinion of Dr Dupré that the second event in November 2003 was the operative cause of the disc protrusion. He had seen the CT film and expressed confidence in Dr R Stowasser's radiology report of 29 November 2004 that there were "minimal right sided posterolateral osteophytes".[5] In response to counsel's question, when, if at all, the plaintiff would have suffered a similar injury or symptoms, in the absence of the second event, he said

[44]

"Well, I see possibly 20 or 30 new patients a week, so maybe 1,500 new patients per annum, and, you know, I have seen a lot of patients with much worse spondylosis in the spine without having had disc protrusions year in year out. So it is rare for them to develop spontaneously. They can develop spontaneously, but it is rare. It is usually associated with some event that the patient remembers."[6]

[45]

After careful cross-examination by Mr Morton, Dr Day suggested that the chance of the disc protrusion being present prior to either of the subject events was less than two per cent.

[46]

[23] Dr J Pentis, orthopaedic specialist, prepared a medico-legal report for the plaintiff. He thought it most unlikely that the disc protrusion at C6 would have predated either of the subject events because it would be rare to be symptomless with a disc of the size shown.

[47]

[24] Dr R Burns, an orthopaedic specialist, now in practice in Adelaide, saw the plaintiff on one occasion in February 2004 on behalf of WorkCover prior to the MRI investigation and the CT scan. He linked the plaintiff's symptoms to the subject events. On seeing the radiology reports, particularly that of Dr Robertson, set out above, at para 9, he was confident that

[48]

"...one often sees asymptomatic discs, often very large and sometimes apparently abutting against nerve roots, but where persons have had no symptoms at all. So, although radiology, MRI, does help enormously here, it is not at all uncommon to see changes that are entirely unsuspected and people who are without symptoms at that level."[7]

[49]

This was a position at odds with that of the other medical specialists except for Dr B McPhee. Dr Burns did say, however, that even a quite large disc protrusion in the cervical spine could remain asymptomatic for years and was totally unpredictable.

[50]

[25] Dr P Boys, orthopaedic surgeon, accepted that disc degeneration resulting in osteophyte formation occurs usually without disc protrusion. But he observed that a quite minor incident, such as a sneeze, could product a disc protrusion in a degenerate spine.

[51]

[26] Dr McPhee, spinal surgeon, held the firm opinion that the disc protrusion seen at C6 was present well before the subject incident. He based this on loss of disc height and the presence of osteophytes which, in his opinion, post-dated the protrusion. He disagreed with Dr Stowasser's description of the osteophytes as "minimal" preferring "moderate". He revealed the speculative nature of predictions about the future course of a naturally occurring degenerative spine in his oral evidence. In evidence-in-chief, he confirmed his earlier note that at "the outside limit" within 10 years the plaintiff would have experienced the same symptoms as he has as a consequence of his compensable injuries. In cross-examination the following exchanges occurred

[52]

"And that state can remain or that status quo can remain for in many years, indeed, indefinitely?-- I don't know about indefinitely. I suspect at some stage in life it probably does come to the surface, but, yes, they can go for quite some time without any apparent symptoms."[8]

[53]

"Well, the point is, doctor, that prior to his injuries in July 2002 and November 2003, all he had was an asymptomatic degenerative spine; you'd agree with that?-- Exactly.

[54]

And he may have continued for many years without suffering any symptoms in the absence of these two events?-- I think that is on the balance of possibility rather than probability.

[55]

And your thesis of a 10 year time frame is really just an educated guess?-- All other - all predictions are an educated guess."[9]

[56]

[27] There is clear disagreement, then, between the specialists on this issue. It may be explicable by the expressions used by counsel and a dialogue between the specialists would reduced their differences. It was surprising that Dr McPhee and Dr Burns should differ so greatly from Doctors Campbell, Day, Boys and Pentis in their analysis of the underlying aetiology of the plaintiff's disc protrusion. Whilst the answer does not lie in numbers, I found Dr Campbell's and Dr Day's evidence, drawing on their extensive experience, persuasive. I conclude that more likely than note the disc protrusion at C5/6 was caused by the work-related trauma rather than a naturally occurring degenerative.

[57]

[28] From time to time prior to the November 2003 injury the plaintiff was off work for a few days because of pain in his lower back, usually after heavy lifting or pushing. Generally he received massage as treatment. Sometimes he saw his general practitioner but it often depended on who was the more readily available. Since he had ceased work the plaintiff does not utilise massage because of the cost. At the time he gave his evidence his lower back was not troubling him. It is the defence contention that irrespective of his cervical spine injury, the plaintiff would have been compelled to give up the kind of work he did at Bridgestone because of his lower back problems. This was said to be more likely than not because his problem was discal and not musculo-ligamentus in origin. The medical specialists were not asked to consider the plaintiff's lower back condition initially. It likely arose after the defence obtained Dr McNeil's practice notes. The specialists considered the matter on a set of assumed facts derived from the general practice notes about a week before the trial.

[58]

[29] The entries related to lower back problems in the notes at the general practice commence in February 1998 when the plaintiff attended with a limited range of movement after experiencing a tearing sensation while lifting a child's pool. Those symptoms cleared up completely after about a week. The next visit for lumbar pain was in June 2000. The plaintiff had hurt his back doing heavy lifting at work a week earlier. He improved with massage and was given a certificate for three days off work.

[59]

[30] In May 2003 the plaintiff suffered an acute episode of back pain described by Dr McNeil as an "acute back spasm". He was prescribed bed rest. He had been taken by ambulance from home late at night to the Caboolture Hospital and released in the morning. He then attended on his general practitioner. A few days later he was still in considerable pain and was given a pethidine injection prior to undergoing x-rays. The x-ray report described the lumbar vertebral bodies as normal in density and height; no bony injury was observed; the discs were not narrowed; the vertebral body alignment was normal; there was no spondylolithesis; no abnormality was seen around the sacroiliac joints.

[60]

[31] On 9 December 2003 the plaintiff attended on Dr McNeil who noted "arm improved but back pain severe acute spasms R lower back and buttock". The plaintiff was treated with Panadeine Forte and Valium. Six months later, on 25 May 2004, the plaintiff attended on Dr McNeil complaining about persistent neck pain. Dr McNeil noted "tingling L foot - pins and needles - constant when wears boots". Much was made of this entry by the defence as signalling disc/nerve problems but in

[61]

cross-examination Dr McNeil said that no back pain was noted and when he analysed the plaintiff's symptoms

[62]

"...it perhaps struck me at the time that it may have been related to tight boots rather than to back pain."[10]

[63]

In evidence the plaintiff said of this occasion that he could remember no back pain but did recall the pins and needles in his foot because he was "walking around stamping" his foot.[11] There is no suggestion that this was not a truthful answer.

[64]

[32] The next consultation for lower back pain occurred on 3 August 2004. The plaintiff felt a sudden pain in his lower back when lifting the draw bar of a trailer two days earlier. He was described as having "virtually no flexion/extension". He was given a pethidine injection. The plaintiff presented in mid-October 2004 complaining of constant pain over the past three weeks in his lower back region going into his left buttock and upper thigh and pain with straight leg raising. He was prescribed Panadeine Forte and Valium.

[65]

[33] It was not until the end of April 2006, some 18 months later, that the plaintiff had another lower back pain episode. This occurred after bike riding, possibly with his son, at home. Valium gave relief.

[66]

[34] Had the plaintiff's general practitioner considered the cause of the plaintiff's low back pain more serious than muscular spasm he said he would have referred him to a neurophysician or orthopaedic specialist. But he did not consider the condition warranted even a reference to a physiotherapist. The plain x-ray film in 2003 showed no abnormality.

[67]

[35] Dr Boys regarded the plaintiff's symptoms as discogenic in origin because the plaintiff experienced both back and leg pain. Dr Boys would recommend careful manual handling.

[68]

[36] Dr Day thought there was at least a 50/50 chance that the plaintiff had a disc problem in his lower back. He would advise a person with the plaintiff's symptoms to avoid heavy repetitive manual work. He did not accept that low back pain, which is discogenic in origin, usually recurs and increases until it becomes chronic. Dr Burns thought that pain radiating down the leg and involving the foot was indicative of disc problems.

[69]

[37] It is likely that the specialists who were asked to consider the issue of the plaintiff's low back pain were, initially, influenced by the general practitioner's note of tingling in the foot in attributing his symptoms to disc problems. That can probably be put to one side, in an evidentiary sense, because of Dr McNeil's explanation. But there still remains the limitation on leg raising which, in the preponderance of opinion, is a pointer to a disc problem. There are no more sophisticated radiological images of the plaintiff's lumbar spine than the x-rays of 2003 which would reveal if the plaintiff's back symptoms were, indeed, discogenic in origin. The general consensus of the medical opinion is, that with his history, the plaintiff would be advised not to engage in heavy repetitive lifting or pushing or pulling loads irrespective of his neck symptoms. Nonetheless, Dr McNeil, the plaintiff's general practitioner, did not give him that advice and there is no suggestion that he ought to have. There were, after all, five separate incidents (on the basis that the August/October 2004 reports related to the same "flare up) from 1998 to 2006 and no more than three days off work for the worst and an unremarkable plain x-ray report.

[70]

[38] It was the sudden onset of acute pain radiating to his right elbow which caused the plaintiff to cease work just before Christmas 2004. Although he had had up to three days off work from time to time because of his lumbar symptoms many months, and sometimes years apart he was able to return to his previous job. It was the neck pain which required him to seek more and more help.

[71]

[39] Mr Morton accepted that the burden of proving the impact of a pre-existing condition (or conditions) on a plaintiff's compensable injury lies on the defendant. The approach is to be found in the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden[12], a case with facts very similar to the present.

[72]

"...where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima face case that Watts v Rake[13] was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the

[73]

pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence

[74]

(i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."

[75]

[40] The plaintiff did have the occasional episode of low back pain which caused him to lose up to three days work. It may have been discogenic in its origin but after each episode, with rest and analgesics, the symptoms subsided. There was no trouble for long periods although there were some close episodes and the May 2003 and August 2004 pain was of such intensity as to require Pethideine. But it did not concern the plaintiff, who was not attempting to hide non-compensable symptoms, sufficiently to mention it to the medical specialists nor were any lumbar disabilities noted by Mr Hoey, an occupational therapist, when testing the plaintiff. He has not attended on his general practitioner since April 2006 complaining of lumbar pain.

[76]

[41] I am not persuaded that the condition of the plaintiff's lower back is such that more likely than not he would have had the same restrictions on his occupational activities as has occurred because of his neck/arm symptoms. Nonetheless, he does have problems which will be taken into account by discounting his award to reflect the possibility that the plaintiff would have had to seek a job, in due course, which did not require heavy manual lifting or pushing/pulling heavy weights and would be less well remunerated.

[77]

(iii) The plaintiff's residual earning capacity

[78]

[42] It was agreed that the plaintiff has a residual earning capacity. What he has attempted as employment is noted in more detail in Therapy Solution's report[14] than was given in evidence by the plaintiff. The plaintiff rejected the defence contention that he and his wife have chosen the role of house husband for him. They are struggling to maintain payments on their home mortgage. Her work is part-time and modestly remunerated. He wants paying work to support his family. He has worked virtually all his life. He needs assistance and employer tolerance to find suitable work.

[79]

From a physical perspective the medical evidence supported "lighter" work. His permanent impairment derived from the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) were assessed, as a percentage, at a quite modest level being in the order of seven per cent for the cervical spine (two per cent of which was for the pre-existing degenerative changes) assessed by Dr Boys. Dr Pentis suggested a higher figure but he showed little enthusiasm for the AMA Guides' tables. Converting that percentage into a real job is difficult when the plaintiff's employable capacities are explored. Mr Hoey, an occupational therapist very experienced in placing injured workers in employment, who wrote the Therapy Solutions report, quoted from the AMA Guides itself.

[80]

"The Guides is not intended to be used for direct estimates of work disability. Impairment percentages derived according to the Guides' criterion do not measure work disability. Therefore it is inappropriate to use the Guide's criteria or ratings to make direct estimates of work disability."

[81]

"However, physical capacity alone is NOT an indicator of employability. Employability is about having the capability to gain initial employment, maintain employment and obtain new employment if required. This capability is a complex interaction of the applicant's education, work history, training, vocational aptitudes, physical capacity and presentation at interview."

[82]

[44] Mr Hoey noted that the plaintiff had certain occupational restrictions. These were generally consistent with the evidence of the medical specialists. He is

[83]

Restrictions [on] holding the head, neck and shoulders in fixed postures
c. Restrictions with the heavy pushing or pulling of loads
1. d. Restrictions with forceful or repetitive use of the right upper limb".

[84]

[45] Mr Hoey had not been asked to consider limitations placed upon the plaintiff's employability by his intermittent lower back symptoms. The testing carried out by Mr Hoey, accordingly, related to the upper body and arms in particular. However, under cross-examination he rejected the proposition that impairment related to lower back discal injury correlates to a disability in the workplace. He denied that the plaintiff, with his particular history of low back pain induced work absences as recorded by his general practitioner, were outside the normal population and particularly for his work as a forklift driver. He summarised

[85]

"I believe he has a significant history of lumbar impairment, but that he has not had a history of occupational disability associated with that."[15]

[86]

He particularly noted that the back complaints were spaced far apart and that he had only a few days off work in relation to each.

[87]

[46] Mr Hoey rejected the proposition that the plaintiff lacked motivation to rejoin the paying workforce. Mr Hoey noted that the plaintiff had only a grade 10 education with no qualifications for office, retail or sales. The plaintiff had nothing in his work history which would be emphasised as a strength when developing a resume with him. He noted that the plaintiff was essentially a low qualified man who has only ever engaged in low skilled employment. Accordingly, while he was physically capable of sedentary or light occupations he did not have the other skills necessary for the range of work that would fit within that descriptor within the geographical area of his home. Mr Hoey was confident that with job seeker assistance he would be able to find an employer "to give him a go". Mr Hoey explained that in his experience, supported by the literature, work absences relating to a chronic injury are an ongoing disadvantage. He said that statistically, injured workers who do acquire employment do so with average earnings lower than the average earnings for a non-injured worker. He noted as a general guide to the plaintiff's residual earning capacity that the net weekly income of a security guard under the Queensland award, a position for which the plaintiff may be suited, is $480.20. It was Mr Hoey's opinion that that figure would be interrupted by periods of unemployment or periods when the plaintiff was able to secure casual work only. Mr Hoey considered it would take approximately two years for the plaintiff to find satisfactory work at an initial cost of $1,250 for job seeking assistance and rehabilitation. He also explained that in order to deal with the occasional episodes of aggravating pain at work which would be certain to occur, he should have about four sessions annually from an occupational therapist or a physiotherapist at a cost of $250.

[88]

[47] In the past, the plaintiff has not been deflected in his engagement in remunerative work by quite serious health events. He was frank about them. Each, according to the plaintiff, resulted in a good medical outcome. He has had two hernia operations, surgery for Meniere's disease in the left ear, a fractured right clavicle sustained in a motor cycle accident, a crush injury to his right ring finger (work-related) and a right shoulder injury (work-related) when he was aged 19. After recuperation the plaintiff returned to work on each occasion. But, as Mr Hoey noted, the plaintiff has been out of the workforce since 2004. He does have a substantial compensation history and neither of those matters makes him an attractive proposition to employers.

[89]

Damages for pain and suffering and loss of the amenities of life past and for the future

[90]

[48] The plaintiff relied on his physical skills to engage in satisfactory remunerative employment which supported his young family. That important role has been lost to him. The plaintiff has been deprived of the "rough and tumble" of life with his children. Recreationally, he enjoyed camping, motor bike riding, driving distances and the mutual satisfaction of marital life and they have all been curtailed or come to an end. He has been worried about spinal surgery and its outcome. These are ongoing losses for a relatively young man. If he has successful spinal surgery that is a good outcome but he may not. Mr Lynch referred to Kerr v Queensland Rail[16], a case with many similarities to the present, where $50,000 was awarded to a plaintiff. Mr Lynch contended that the present plaintiff ought to be awarded $60,000 because he is likely to undergo surgery, whereas in Kerr's case the plaintiff's spinal condition resolved. That plaintiff also suffered from depression not here present. Mr Morton has submitted for $40,000 based on the plaintiff's naturally occurring degenerative condition being accelerated by five years. That is a contention that I have rejected. Taking into account the chance that the plaintiff will have surgery and that it will be successful and the converse, that either the CT induced disc block outcome will not dictate surgery or, that the surgery will not be successful, I assess the plaintiff's general damage under this head in the amount of $55,000.

[91]

[49] Interest should be awarded on $20,000 (approximately one-third) of that amount for past pain and loss at two per cent per annum. Mr Lynch contends that this should be from July 2002, the first incident. Mr Moreton calculates interest from November 2003. Whilst the plaintiff experienced some immediate pain after being hit on the head in July 2002 he gave no evidence of continuing pain or other consequences. His compensable injuries really commenced from November 2003 and I will award interest from then in the amount of $1,808.

[92]

[50] The plaintiff claims $2,332.75 being his net weekly compensation payments for the period 15 January to 24 February 2004 when he returned to work. This amount is not contested. He claims for the period from 15 December 2004 to the present, a period of 181 weeks. The parties agree that his net average earnings during that period would have been $663 per week. His earnings to date would therefore have been $120,003, rounded to $120,000, had he not been injured.

[93]

[51] Mr Lynch submitted that these figures ought not be discounted because even had the plaintiff some episodes of lumbar pain during this period (he has only had one) which required time off work, as in the past, those periods could have been accommodated by sick leave entitlements or holidays. Further, the plaintiff was a long time employee at Bridgestone and enjoyed his work. He would likely have continued in employment with that employer. Mr Moreton submitted, consistently with the defence's overall position, that (a) the plaintiff's lumbar back condition could have placed him at risk of a non-compensable injury which would have prevented him working and (b) he has a residual earning capacity which he has deliberately chosen not to exploit but to stay at home to care for his children. He also has, on the defence argument, the likelihood of the early onset of his naturally occurring cervical symptoms. Mr Moreton submitted that $30,000 would be appropriate compensation for the period to the present. I do not accept that the plaintiff was at risk that his cervical degeneration would have resulted in an early onset of symptoms from a non-compensable source over this period. Neither do I accept that the lumbar spine symptoms would have caused him to be unemployed or reduced his employability for this period.

[94]

[52] The unrealised earning capacity raises complex issues addressed by Mr Hoey. The plaintiff has attempted to find work. I do not accept that he chose to be unemployed for this period. I accept Mr Lynch's submission that there is no basis for discounting the plaintiff's past loss of earnings over this relatively short period of 3 ½ years. The calculation for 181 weeks is $120,000.

[95]

[53] Interest is awarded on the plaintiff's net loss. He has received weekly compensation benefits of $21,217.87 and CentreLink payments of $16,458 (to 4 April 2008) and the earlier WorkCover benefit of $2,332.75, totalling $40,008.62. The loss of earnings which will bear interest is $80,000 (rounded). Interest at five per cent per annum for 181 weeks is $13,923.

[96]

[54] This is calculated at nine per cent on $122,332.75 amounting to $11,010.

[97]

[55] As has been indicated above, I accept Mr Hoey's evidence about the plaintiff's future employability prospects in as much as he is a vulnerable worker in the market. Having rejected the defence's argument that within about five years the plaintiff would have been in a difficult employment situation from naturally occurring symptoms I reject the defence submission that a global sum in a modest amount ($50,000) will best compensate the plaintiff's loss of future earning capacity

[98]

[56] I accept that it will likely take the plaintiff two years to re-enter the workforce after retraining and that he may experience difficulty in sustaining that employment. It is necessary to factor in the possibility of a successful operation on the positive side. The plaintiff has shown a responsible attitude to work in the past after illnesses and, on that basis, if he is able, he will do so in the future. Mr Lynch has proposed a residual earning capacity of $300 per week for the future with a present agreed pre-injury earning capacity of $698 per week, an approximately 43 per cent capacity. Considering the positive factors I do not take as gloomy a view of the plaintiff's residual earning capacity. The plaintiff is relatively young and is motivated to succeed in employment. I will assume that the plaintiff has a residual exploitable earning capacity of 60 per cent of his pre-injury earning capacity that may be exploited after two years. That amounts to an approximate loss of $280 net per week. Accordingly, the calculations are, $698 for two years giving an amount of $69,102, together with a loss of $280 per week to age 65 deferred for two years being an amount of $183,400. The total loss of earning capacity before discounting is $252,502. The contingencies are more defined for this plaintiff than some others. He was at real risk of succumbing to similar injuries from some non-compensable source in his neck and in experiencing disabling (in the employment sense) symptoms from his lumbar spine. I accept Mr Lynch's submission that it is appropriate to discount his loss by 25 per cent giving an amount of $189,377.

[99]

Loss of future occupational superannuation benefits

[100]

[57] Nine per cent on the plaintiff's loss of future earning capacity of $189,377 is $17,044.

[101]

[58] Mr Lynch has accepted that the plaintiff will take advantage of a Health Care Card for the next two years. His scripts for Tramel will thus cost him $5.50 per month. Discounting that figure amounts to $125. Thereafter the cost of scripts will be $25 per month. That amount for 43 years deferred for two years amounts to $4,893.25. This should be discounted by 25 per cent for contingencies giving a figure of $3,670. The total amount for future medication is $3,795.

[102]

[59] Although the plaintiff is contemplating surgery as proposed by Dr Campbell he may not, in fact, undergo it. The cost of the surgery is $24,315.55. The plaintiff seeks an allowance of $10,000 to take account of the possibility that he may not undergo that surgery. That amount is allowed.

[103]

[60] Mr Hoey said that about $250 per annum should be allowed for four treatments per year in order to assist with any "flare ups" associated with the plaintiff's injury. There is also an initial rehabilitation cost of $1,250. The sum together with an amount for 10 years during his working life amounts to $1,985 which is allowed.

[104]

[61] These have been agreed inclusive of interest in the sum of $4,000.

[105]

General damages for pain and suffering and loss of the amenities of life

[106]

Past occupational superannuation at nine per cent on $122,332.75

[107]

Loss of future occupational superannuation at nine per cent on $189,377

[108]

[66] The amount should be rounded to $407,775. There should be judgment for the plaintiff against the defendant in the sum of $407,775.

[109]

[1] Exhibit 10
[2] Exhibit 15
[3] Transcript 19, lines 47-53
[4] Exhibit 8
[5] Exhibit 13
[6] Transcript 65-66
[7]Transcript 99
[8] Transcript 134
[9] Transcript 137
[10] Transcript 127
[11] Transcript 32
[12] (1965) 114 CLR 164 at 168.
[13] (1960) 108 CLR 158.
[14] Exhibit 14

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (109 paragraphs)

1. Was the observed large C5/6 right-sided disc protrusion a product of discal degeneration present but relatively symptomless prior to the November 2003 injury so that it would require little to bring about symptoms or was it caused by the work injury that day?

Parties

Cases Cited (2)