AT Melbourne
CIVIL DIVISION
Case No.
QUADRATULLAH HAMIDI / Plaintiffv
KAB SEATING / Defendant
JUDGE: / His Honour Judge Nixon
WHERE HELD: / Melbourne
DATE OF HEARING: / 8November 2006
DATE OF JUDGMENT: / 8December 2006
CASE MAY BE CITED AS: / Hamidi v KAB Seating
MEDIUM NEUTRAL CITATION: / [2007] VCC
REASONS FOR JUDGMENT
Catchwords:
APPEARANCES: / Counsel / SolicitorsFor the Plaintiff / MrG. Lewis SC with
MrB. McCullagh / MW Law
For the Defendant / MrJ. Ruskin QC with
MsS. Manova / Lander & Rogers
COURT RECORDING SERVICES PTY LTD
3/221 Queen Street, Melbourne – Telephone 9602 1799 fax: 9642 5185 / !Undefined Bookmark, I
HIS HONOUR:
1 Quadratullah Hamidi has applied by originating motion filed on 20December 2005, leave pursuant to s.134AB of the Accident Compensation Act (1985) as amended, to bring proceedings to recover damages in respect of injuries suffered in the course of his employment by Kab Seating Pty Ltd., the defendant. The application is first made on the basis that the plaintiff sustained injury on 13October 2000 involving permanent serious impairment or loss of a body function. The injury is described as loss of function of the lumbar spine, discs of the lumbar spine and function of the back which restrict the plaintiff from undertaking labouring and other duties requiring lifting, bending and standing. Body functions said to be impaired is the lumbar spine and function of the spine.
2 On 13October 2000, the plaintiff who was born on 9September 1969 and who was then 30 years, 11 months of age was in the process of loading a truck owned by a transport company, the plaintiff and the truck driver on loading a box which weighed up to 60 kilograms onto the truck when the plaintiff felt a sudden pain in his back, he was unable to complete the lift and the box dropped to the ground.
3 In summary, the plaintiff was taken to a local doctor and he had a week off work. He then returned to work on light duties for about six weeks and some improvement occurred but when he returned to normal duties the pain recurred and he remained on light duties for an extended period of time. In aboutDecember 2000 he had further back problems when he had to increase his working hours in the course of a stocktake. He was then referred to MrRazif and DrPatrick, an MRIscan was performed and he undertook a rehabilitation program at Cedar Court. He again returned to work on light duties, initially working reduced hours but when he increased his work load and hours of work the back problems increased and inSeptember 2002 the plaintiff's employment was terminated by the defendant.
4 MrLewis, Senior Counsel for the plaintiff, detailed the plaintiff;s background and summarising it, he was born in Afghanistan and completed the equivalent of Year 11 standard at school in Kabul. He came to Australia in 1992 and he commenced work with the defendant in 1994. He has always been employed as a manual worker. While he speaks English well, he has more limited skills in writing the English language. He married in 1995 and although there was a four day separation at one stage after the accident, he and his wife are now together and there are three children of the marriage, the youngest of whom is now just three months of age.
5 DrPatrick first saw the plaintiff on 15February 2001 and last reviewed him inSeptember of that year. Whereas an earlier CT scan performed on 24October 2000 indicated only minor disc bulging at L5-S1, DrPatrick, although believing that clinically, most of his problems were muscle fatigue and myofacial related, he arranged for an MRIto be conducted because of leg symptoms of which the plaintiff complained. The MRIindicated to DrPatrick that there was minimal disc bulging at L5-S1 and there was no compromise of the cord or nerve roots. DrPatrick referred the plaintiff to Cedar Court.
6 MrRazif, an orthopaedic surgeon, saw the plaintiff for the first time on 5July 2002 on referral from his general practitioner and reviewed him on several occasions thereafter, the last such occasion being on 17January 2003. MrRazif prescribed a back brace for the plaintiff. MrRazif expressed his opinion that, "As a result of deranged lower lumbar discs the plaintiff had developed back ache with occasional referred back pain down both legs." Conservative treatment, he said, including hydrotherapy and physiotherapy and the use of a lumbar brace appeared to have contained his back symptoms. When he was last seen his back ache appeared to be responding well although MrRazif said it wasn't completely resolved.
7 MrCullen, an orthopaedic surgeon examined the plaintiff on behalf of the defendant and referring to the MRIscan of the 25May 2001, he stated that there was a broad based disc bulge at the L5-S1 level with a postero-lateral bulge towards the left side at the l1-2 level. There was no evidence of nerve compression. Given the sudden onset of pain in the accident, MrCullen was of the opinion that it was probable that the plaintiff had suffered an annular tear of the L5-S1 disc with a minor disc prolapse which to a large extent had resolved with treatment over the past two years but not completely, leaving him with the potential for ongoing back pain subject to exacerbation and remission. He considered the plaintiff was fit for light work which didn't involve any heavy lifting or frequent bending and so far as lifting was concerned MrCullen believed that a 7.5 kilogram restriction was appropriate.
8 MrBrian Davie, another orthopaedic surgeon, examined the plaintiff on 7January 2003. The plaintiff complained to MrDavie of low back pain which was worse on sitting but he said there were no leg symptoms. There was no major tingling, numbness or weakness of the legs and the plaintiff could walk for half an hour. MrDavie said: "There may be a small permanent impairment in the lumbar spine probably in the order of ten per cent in the lumbar spine." There would in his opinion, be no permanent impairment in the legs. He considered the plaintiff was capable of light work but in his view the plaintiff should not lift anything heavier than about five kilograms.
9 Judith McKenzie examined the plaintiff on 2May 2006 and expressed her opinion that the plaintiff had mechanical low back pain secondary to the L5-S1 disc changes and she also referred to evidence of an emotional disturbance. She believed that the plaintiff would remain subject to incidents of back pain if he adopted certain postures or carried out particular activities, such pain, she said, was mechanically caused and would not be prevented by any form of conservative care. Iadd that no orthopaedic surgeon or other doctor whose reports are in evidence has suggested surgery.
10 The first way that the plaintiff's case is put is that he suffered permanent serious impairment or loss of a body function. As Eames, JA observed in Dwyer v. Calco Timbers Pty Ltd, the statutory language which governs the serious injury question is the language of impression. Imust be satisfied that the relevant consequence, here, the pain and suffering consequence, when compared to other cases in the range of possible impairments can fairly be described as being more than significant or marked and as being at least very considerable. The question is whether the pain and suffering consequences are to be described as more than significant or marked and as being at least very considerable.
11 As Eames, JA observed, a phrase like, "at least very considerable" does not allow any quantification, rather it requires the judge to make a judgment based on an overall evaluation of the evidence. In determining whether the impairment or loss of a body function is serious, Iam not of course, to take into account any psychological or psychiatric consequences, emotional consequences, if you like, of the physical injury, Imust make a value judgment. Here, as MrLewis said in his submissions, the extent of the incapacity is the critical issue. MrRuskin of Her Majesty's counsel, submitted that the plaintiff had suffered a low back injury without any radiological interference with the nerves. Iaccept that that is an accurate summary of the evidence. In accepting that to be so, MrRuskin next submitted that the consequences for the plaintiff were marked but could not on the evidence, be described as being at least very considerable.
12 MrRuskin submitted that the plaintiff had received very little specialist attention over the past three years or thereabouts. Now Ihave cast that submission aside as the evidence is that the pain of which the plaintiff complained would not be prevented by any form of conservative treatment, while surgery is not indicated.
13 There was as MrLewis for the plaintiff submitted, no call for any further intervention. MrLewis referred to the fact that the plaintiff had suffered an organic injury, his enjoyment of life had been affected and he added that the matter did not involve trial by medical reports and that of course, is correct and Imust look at the whole of the evidence as Ihave done.
14 MrRuskin for his part, submitted that while the plaintiff submitted that while the plaintiff suffered some pain it was neither constant nor debilitating pain and that whereas marked was an appropriate description of the injury and its consequences, it could not be said that the consequences were at least very considerable. Having considered the evidence to which Iwas referred and which was before me, I'm not satisfied that the plaintiff has suffered a serious impairment or loss of a body function, that is, I'm not satisfied that the consequences to the plaintiff of the injury he suffered, can be described as being at least very considerable.
15 Independently of the claim under paragraph (a), the second issue is whether at the date of the hearing of the application the plaintiff had suffered a loss of earning capacity of 40 per cent or more and had established that the loss will continue permanently, meaning, as the Court of Appeal said, within the foreseeable future.
16 The measurement of the claim, loss of earning capacity, required a comparison of two matters, namely, first, the income that the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing, that is, after injury earnings and secondly, the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred. As Iunderstand it, the figure of $30,000 per annum referred to by MrRuskin as a reasonable measure of the plaintiff's earning capacity over the appropriate period was not disputed by MrLewis, in fact, it was agreed 60 per cent of $30,000 amounted to $18,000 which in turn amounted to $346 per week.
17 To succeed in this area of the claim the plaintiff had to establish that he had no capacity for any work which would result in 60 per cent of his fair earning capacity over the period in question. The critical issue of course, is capacity and Iam very conscious of the fact that Imust not confuse availability of employment with capacity to engage in employment. The high point of the plaintiff's case on this issue was the opinion expressed by DrWallin in his report of 6September 2006 and inter alia, DrWallin stated that unfortunately, the plaintiff is very marginalized in the workforce.
18 MrRuskin conceded as indeed he had to on the evidence, that the plaintiff's capacity for employment was limited in that the evidence established that he couldn't perform any heavy lifting and although medical opinions varied, a fair range was limited to five to ten kilograms with MrCullen restricting lifting to 7.5 kilograms. Activities such as frequent bending also should be avoided.
19 MrRazif had this to say in 2003: "One would expect that with this type of underlying back condition MrHamidi's condition should gradually stabilise and allow him to return to some form of useful work, however, due to the underlying nature of his injury, it is inadvisable for MrHamidi to return to any type of work that involved levering his back such as frequent bending and lifting as recurrence of his symptoms is likely to occur. However, once the condition has stabilised he should be able to return to work with the restriction mentioned earlier."
20 In more recent times Judith McKenzie in her report of 3May 2006 said this: "In my opinion MrHamidi is physically capable of undertaking at least part-time employment", she referred to four hours per day "that does not require him to repeatedly lift or carry weights in excess of five to ten kilograms, to repeatedly twist or bend his trunk under pressure, to use vibratory or percussive equipment or to work with his trunk half bent forward for longer than 30 minutes at any one time." Those restrictions, she said, would be permanent.
21 MrCullen, MrDavie and MrChamberlain do not refer to any limitation on the hours of work and in summary, the various doctors with the exception perhaps of DrWallin, regard the plaintiff as being capable of light work.
22 MrRuskin conducted an arithmetical exercise on the various forms of employment detailed at p.157 of the defendant's court book calculated on the basis both of 20 hours per week and 25 hours per week although the defendant's primary submission was that the plaintiff's capacity for work was in the order of 30 to 35 hours per week. At 20 hours work per week as a limousine driver/taxi driver, light assembly, light packing and as a process worker, he has not obtained the 60 per cent mark whereas for light packaging, light stores, receiving and despatch clerk or automated machine operator, he is above the 60 per cent mark.