V

IN THE COUNTY COURT OF VICTORIAAT MELBOURNECOMMON LAW DIVISIONSERIOUS INJURY LIST

JOHN BRUZZANITI

DEXTON COMMERCTAL (AUSTRALTA) PTY LTD

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

Subject:Catchwords

Legislation Cited:Judgment:

RevisedNot Restricted

Suitable for Publication

Case No. Cl-14-01694

Plaintiff

Solicitors

Advice Line lnjury Lawyers

Minter Ellison

'lDefendant

HIS HONOUR JUDGE SACCARDO

Melbourne

5 August 2015

13 August 2015

Bruzzaniti v Dexion Commercial (Australia) Pty Ltd

[2015] VCC 1076

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious injury - pain and suffering - back injury - consequencesof injuryAccident Compensation Act 1985, s134ABLeave granted to the plaintiff to commence a proceeding claimingdamages for the pain and suffering consequences of the work-related injury the subject of this application.

APPEARANCES:

For the Plaintiff

For the Defendant

Counsel

Ms A MacTiernan

Mr N Griffin

COUNTY COURT OF VICTORIA250 William Street, Melbourne

HIS HONOUR

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ln this application, the plaintiff seeks leave to commence a proceeding claiming

damages for the pain and suffering consequences of an injury to his spine

suffered in the course of his employment with the defendant between 20

October 1999 and 4 December 2007 .

ln the proceeding, the plaintiff relies upon two affidavits sworn by him on

14 March 2014 and 3 August 2015 respectively, and an affidavit of his sister

sworn on 6 July 2015. ln addition, the plaintiff gave viva voce evidence and

was cross-examined. Otherwise, each of the parties rely upon medical and like

evidence and surveillance evidence which they have tendered.

The content of the affidavit evidence is self-explanatory, and no purpose is

served by me re-stating that evidence in the course of these reasons other than

where to do so is necessary to give context to the reasons. That having been

said, it is appropriate that I make the following brief reference to the affidavit

evidence.

ln his first affidavit, the plaintiff deposed to the fact that he left school, having

completed Form 4, and was particularly weak in reading and writing. He

commenced employment with the defendant in 1985. lt follows that at the time

of his injury, he had been in the employ of the defendant for over twenty two

years. Having sustained his injury in December 2007, the plaintiff returned to

light parttime duties in January 2008, initially working two days per week.

The plaintiff subsequently returned to full{ime employment (there is no issue

that the plaintiff achieved a return to full-time duties by November 2009, over

which period his working hours were gradually increased), but continued to

undeftake only light restricted duties. In September 2011, the plaintiff was

made redundant. lt is the plaintiff's evidence that whilst the defendant had

significantly reduced its workforce in order to facilitate a move of its production

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to a base in Laverton, the plaintiff was told that the reason for his redundancy

was that he was unfit for normal duties.

It is appropriate at this time that I comment upon the impression which the

plaintiff made on me as a witness. The plaintiff struck me as a simple, truthful

man with a tendency towards stoicism, who had great difficulty in expressing

himself. ln this respect, my comments at Transcript 7, Line 30 to Transcript 8,

Line 28 are apposite.

Whilst there were some inconsistencies between the statements made by the

plaintiff in his first affidavit when compared with his subsequent affidavit as to

his capacity for activity, I am satisfied that these inconsistencies most probably

related to the combination of the following factors:

Firstly, the plaintiff's difficulty in expressing himself in English and making

himself understood in that language; and

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. Secondly, the fact the plaintiff is largely illiterate and, in those

circumstances, faces a considerable disadvantage for a man of modest

intelligence and education in being unable to check the content of his

affidavits.

The viva voce evidence

a The plaintiff said that initially, his general practitioner, Dr Miao, prescribed anti-

inflammatory medication for him, but this medication made him feel sick. While

he said that he thought that he had undergone physiotherapy for only

approximately three months, it became clear that his physiotherapy had

continued until approximately mid-2008, at the conclusion of which he had been

told to continue to exercise. The plaintiff said that he had eventually resumed

full{ime light work with the defendant but that he had been unable to undertake

the overtime which he had previously worked. He said that his wage in his

current employment with Coffex was less than his wage with the defendant. He

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said that he had stopped consulting his general practitioner because "if was

always the same routine, always repeats".

The plaintiff said that he suffered from symptoms of pain which were always

present, but which varied in intensity; that he would wake with pain, and that his

symptoms would increase in intensity through the course of the day. He said

most days he took approximately two Panadol a day in management of his

symptoms, but whilst he had some good days and bad days, he always felt

pain, but he just kept going,l commenting:

"Always sometimes to suffer because every morning lwake in the morningI always - my first thing in my mind is the pain, there was always - I getinto here in my head, I can't get rid of it anymore."

The plaintiff described his morning symptoms as involving more stiffness and

the presence of more soreness in the afternoon. As to the effect upon him of

his loss of employment with the defendant, the plaintiff said that he had not

been offered continued employment at the defendant's new premises at

Laverton because of his sore back, and commented:

"l was there for 25,26 years. Sorry, I never said I want to move orwant to do something else ... ."

Why did you want to go to Laverton?--

Where else can I find another job with my point of view, like in skilland skill and this and that. ... Get something ... and you know you... and you go back and a lot of hassle. They will have turned mearound and even agency or something go back and forward. I gotno skill, I got nothing. How can I find something different?"

(sic)

Notwithstanding being exposed to an extremely comprehensive cross-

examination which was conducted by counsel on behalf of the defendant in a

patient and fair manner having regard to the plaintiff's difficulty in processing

questions and expressing himself, I am satisfied that no real issues of credit or

reliability arise in this case.

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Transcript 29

3 JUDGMENTBruzzaniti v Dexion Commercial (Australia) Pty Ltd

VCC:LPlDC/AS

12 As I commented in the course of the proceeding, the hour or so of video

evidence, in my opinion, failed to demonstrate the plaintiff to be engaged in any

activity inconsistent with the content of his affidavits.

The medical evidence

13 The plaintiff's medical management has largely been undertaken by his treating

general practitioner, Dr Miao.

14 ln his first report dated 29 October 2009, Dr Miao opined that the plaintiff

presented with an injury to his back which was likely to cause him ongoing back

problems in the future. At the time that he authored that repoft, Dr Miao noted

that the plaintiff had returned to light duties and was, at that time, working four

days a week with a weight restriction of 7.5 kilograms.

15 ln a report dated I February 2012, Dr Miao recorded that the plaintiff had been

treated with anti-inflammatory tablets in the form of Naprosyn and pain

medication in the form of Panadeine Fode. He described the plaintiffs condition

as fluctuating but being mostly stable, and commented that the plaintiff had

been working light duties for many years following his accident until he had

been recently retrenched.

16 ln his report dated 22 July 2015, Dr Miao commented that the plaintiff reported

the presence of ongoing mild to moderate back pain; that he employed Panadol

for pain relief from time to time; that on examination, he had mild tenderness

over his lower mid back, with limited movement and pain, and commented the

plaintiff's prognosis was unceftain and would most likely fluctuate depending on

his activity.

17 ln a report dated 13 June 2012, Mr Rodney Simm, a consulting orthopaedic

surgeon, commented:

(i) That the plaintiff had suffered a back strain with an unresolved aggravation

of underlying spondylosis;

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(ii) That the plaintiff's history was consistent with damage to underlying

degenerative structures in his back, with permanent compromise and

associated symptoms;

(iii) That the plaintiff required minimal treatment, there being no indication for

surgery;

(iv) That the plaintiff presents with a pattern of chronic lower thoracic and left-

sided chest wall pain whÍch would persist indefinitely;

(v) That the plaintiff was confined to relatively light domestic, social and

recreational pursuits, noting that the plaintiff had resumed some gardening

and lawn mowing but was unable to dig or undedake heavy manual

activity;

(vi) That the plaintiff was fit for fulltime light work but was precluded from

working in any occupation that involved prolonged periods of stooping or

work which was physically stressful on his lower back.

fn a further report dated 16 June 2015, Mr Simm obtained a history from the

plaintiff that he suffered from almost constant pain across the lower thoracic

and mid lumbar region of the back.

At that time, Mr Simm opined:

o That the plaintiff had suffered an aggravation of underlying pre-existing

degenerative changes in his lower back which had resulted in chronic

symptoms;

o That the plaintiff's condition was much the same as the time at which he

had previously reported ;

o That whilst the plaintiff was fit for full-time work, he needed to be confined

to handling light weights between knee and chest height; that he could

cope with his current work which involved handling weights of up to 2

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kilograms, essentially at waist height; but that he was permanently

incapacitated for pre-injury employment which involved heavy lifting and

working in awkward postures.

Mr Michael Polke, orthopaedic surgeon, examined the plaintiff on behalf of the

defendant on 25 August 2009, at which time he expressed the opinion that the

plaintiff presented with an aggravation of degenerative changes in his lower

lumbar spine and that there was no aspect of functional overlay, exaggeration

or psychological presentation.

Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on behalf of the

defendant on 23 October 2014, at which time he commented that the plaintiff

presented in a genuine manner, and opined that whilst the plaintiff had suffered

a disc straining injury in 2007 , it was likely that the work-related aggravation had

resolved. At the same time, Mr Jones opined that the plaintiff would be unfit to

resume heavy work requiring unrestricted lifting, noting that at the tíme at which

the plaintiff's employment had terminated, "he was on some sort of lifting

restriction and never regained overtime capacitf'.

I find the reasoning employed by Mr Jones to be unpersuasive,'having regard

to the inconsistency between his opinions:

On the one hand, that any work-related injury had resolved; and

On the other hand, his recognition that the plaintiff had never, since

sustaining his injury, regained his capacity for unrestricted work or the

capacity to work overtime.

For these reasons, I prefer the analysis and opinion expressed by Mr Simm in

this matter to that of Mr Jones.

Dr Gary Davidson, a specialist occupational physician, examined the plaintiff

on behalf of the defendant on 7 July 2015. Dr Davidson described the plaintiff

as presenting as a pleasant and cooperative man, and opined that the plaintiff

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had the capacity to mow his lawn in a self-paced manner and the use of an

electrically powered mower may facilitate this; that given the plaintiff's

demonstrated restricted spinal movements, he should undertake activities in

which he could vary his posture regularly and at will; he should avoid frequent

or sustained bending, and should avoid manual handling greater than 10

kilograms in force or weight between chest and mid{high height. Largely, I find

Dr Davidson's opinion consistent wíth that of Mr Simm, with the exception that

Dr Davidson was more robust in his view as to the weight which the plaintiff

might manage in the course of activity.

Findings

2s Taking an overuiew of the evidence, I am satisfied that the plaintiff has

established that the work-related incident caused him to suffer an aggravation

of pre-existing asymptomatic degenerative changes in his thoracic and lumbar

spine, the effect of which has been to:

a Cause him ongoing symptoms of the type and degree described in his

affidavits;

Render him unfit for the unrestricted duties he had performed in the course

of his employment with the defendant for in excess of twenty years; and

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o Limit him to both employment and recreational activities involving the

handling of very modest weights, together with an ability to regularly alter

his posture.

and that his condition is now stabilised and is likely to be permanent.

I am satisfied that the plaintiff lost his employment with the defendant primarily

by reason of the loss of his capacity for unrestricted work and that both this loss

of capacity for work, and his loss of employment with the defendant specifically,

represent for him very significant losses.

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I am further satisfied that the plaintiff's history of employment with the

defendant, both before the subject injury and after it, attests to:

The impoftance of that employment to him;

His resilience in tolerating his symptoms;

His credit generally as someone who has sought to minimise the impact

of his injury upon his life;

and not to the level of his symptomology

My impression of the plaintiff's evidence was that his employment was

extremely important to him and I accept his evidence that at the time at which

he was retrenched, the plaintiff was concerned that he would not find alternative

employment, having regard to his restricted capacity for physical work and his

limited education.

Whilst the plaintiff, in one line of his affidavit evidence, deposed to the fact that

he worried about his working future, my impression of the plaintiff as he gave

his evidence was that this was a very real factor for him, and that:

a He was determined to maintain hís present job notwithstanding that he did

not enjoy the work;

a He regarded holding a job as being essential to the financial survival of

him and his wife;

The insecurity which arose by reason of his reduced industrial capacity

was a very significant factor for him.

ln his first affidavit, the plaintiff deposed to the fact that his intimate relationship

with his wife had been adversely affected by reason of the condition of his spine.

Whilst it was put in cross-examination that issues of this type had pre-dated the

plaintiff's injury, the plaintiff denied that position, and I accept his evidence,

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given that the challenge to the plaintiff upon this issue was based upon a single

presentation by the plaintiff to his general practitioner in 2003.

It is clear that the plaintiff has not required any form of invasive treatment and

that he manages his condition in a very sensible manner by taking care with the

activities he undertakes and employing Panadol, which, taking an overview of

the evidence, he employs a dose rate of some twelve or so tablets each week.

I am satisfied that I should accept the plaintiff's evidence as to his level of

symptoms and the effect which those symptoms have upon him. I found the

plaintiff to be a credible witness and the affidavit evidence of his sister tends to

support that of the plaintiff.

Whilst the plaintiff retains a capacity for fulltime restricted employment, there

is no controversy in the medical evidence that activities other than those

involved in light work are beyond him. That evidence attests to the presence of

a considerable loss in the plaintiff's capacity for activity when compared with his

pre-injury capacity.

I accept the plaintiff's evidence that at the end of the working day, the plaintiff's

symptoms are exacerbated by his work, and I am satisfied that the evidence

establishes that the plaintiff's life now largely revolves around the plaintiff pacing

himself in his domestic duties and recreational activities so as to allow him to

maintain his capacity to undertake his work.

ln undertaking the process required of me in an application of this type, I am

required to take into account the impact upon the plaintiff of the work-related

impairment of function of his spine (in the context of the range of impairments

which arise by reason of work-related injury), for the purposes of determining

whether or not, forthe plaintiff, the effect of his injury has been such to occasion

an impairment in the function of his spine which is appropriately described as

being "more than significant or marked" and as being "at least very

considerable".

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I am satisfied that in this instance, whilst the plaintiff retains an ability to engage

in full-time employment and to engage, at a very restricted level, in some of the

activities of daily life in which he engaged prior to suffering his injury, when

account is taken of:

The importance to the plaintiff of the security of his work and the effect of

the accident in reducing that security and confining the plaintiff at a

relatively young age to a restricted range of work;

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The fact that the plaintiff is now confined to work which he describes as

being boring, but to which he will probably be limited for the balance of his

working life by reason of the combination of his physical restrictions and

limited education;

The effect which his pain has upon him, both in restricting his level of daily

activity and affecting his personal relationship with his wife, and impacting

upon his ability to sleep;

The plaintiff's loss of ability to undertake unrestricted gardening, which he

described as an activity which he really enjoyed prior to his injury;

The plaintiff's need to employ modest but very regular non-prescription

analgesia to control his symptoms;

that these restrictions, in the life of a simple man with simple and modest

ambitions and pastimes, appropriately meet the statutory definition of "serious

injury" as employed by the Act.

For these reasons, I am satisfied that the plaintiff is entitled to the leave which

he seeks, namely to commence a proceeding claiming damages for the pain

and suffering consequences of the work-related injury the subject of this

application.

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39 I will hear the parties as to the precise form of the order to be made in this

instance and also upon the issue of costs.

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