Abela v Fonterra Australia Limited
[2010] VCC 1076
•3 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-00519
| KIM ABELA | Plaintiff |
| v | |
| FONTERRA AUSTRALIA LIMITED | First Defendant |
| And | |
| ALLIANZ AUSTRALIA WORKERS COMPENSATION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 4 & 5 August 2010 |
| DATE OF JUDGMENT: | 3 September 2010 |
| CASE MAY BE CITED AS: | Abela v Fonterra Australia Limited & Anor. |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1076 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages and pecuniary loss damages – injury to low back – plaintiff a reliable and honest witness – plaintiff undergoing a retraining course and has stated will be seeking employment – capacity for light work – whether the burden of proof discharged in relation to pecuniary loss damages – whether burden of proof discharged in relation to pain and suffering damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Stringer Clark |
| Mr N Bird | ||
| For the Defendant | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens | ||
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to both pecuniary loss damages and pain and suffering damages. In bringing her application, the plaintiff relies solely upon sub-paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act. The injury under consideration is one to the lower back, and reliance is placed upon employment activities that took place upon a particular day, namely 27 May 2007. It is alleged that on that day the plaintiff performed much more than the usual amount of bending, twisting and carrying of boxes of cheese whilst working on a conveyer line in the course of her employment with the first defendant. Henceforth, whilst there are two defendants named in this matter, their interests overlap entirely and I shall refer only to “the defendant”, meaning Fonterra Australia Limited by which entity the plaintiff was employed and in the employment of which she allegedly suffered the relevant injury and its consequences.
2 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof in relation to both pain and suffering damages and pecuniary loss damages.
3 Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature, including surveillance videos, and was tendered by consent, which is a sensible manner in which to run applications such as this.
Factual background
4 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in anyway determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 The plaintiff impressed me as a straightforward and honest witness who did not appear to be embellishing her symptoms or restrictions. I would regard her as reliable. I note that she was described by Mr Stanley Schofield, orthopaedic surgeon, who saw her at the request of her solicitors, as pleasant, and by Mr Kenneth Brearley, who similarly examined, as follows:
“Her presentation is direct and she gives no sense of exaggerating
her symptoms or disability.”
6 I agree with the observations of both Mr Schofield and Mr Brearley. Similarly, she was described by Dr Michael Epstein, consultant psychiatrist, who also saw the plaintiff at the request of her solicitors, as being co-operative and well orientated. Again, I agree.
7 I also note that Mr Jonathon Hooper, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant, also described her as pleasant, whilst Mr Ronald Haig, consultant orthopaedic surgeon, similarly examining, described her as pleasant and uncomplicated.
8 In summary, I formed the impression that the plaintiff was a witness of truth whose evidence I could readily accept. Indeed, some of her answers, whilst doubtless truthful, did little to advance some aspects of her case.
9 I am not of the view that the surveillance videos which were shown did any great damage to the credit of the plaintiff. She was portrayed doing such things as assisting at a garage sale organised by one of her daughters. Certainly she is seen to move comparatively light objects and to put price tags upon some items, but she seemed to me at times to move gingerly, and kept her back straight when squatting in order to deal with some objects which were for sale. She gave me the impression of protecting her back. I also accept that at times she took breaks from her activities and sat down. Overall, there was nothing in any of the surveillance which caused me to alter my opinion concerning her frankness and credibility nor to cause me to believe that she was in any way embellishing her symptoms.
(ii) The plaintiff’s background, training and pre-injury employment 10 The plaintiff is aged forty-three years, having been born on 5 February 1967. She received limited education, leaving school at the end of Year 9 when fifteen years of age. She then worked in a cake shop, marrying at the age of approximately twenty years. Following that she and her husband operated a bakery for some five years. She then raised her family, one daughter tragically dying of cot death.
11 In 1997 the plaintiff commenced working for the defendant as a production worker performing repetitive work related to the wrapping and packing of cheese blocks weighing between 5 and 12 kilograms. Thus, it can be seen that, apart from raising her family and performing domestic duties, the plaintiff, a woman of limited education, has basically had only three types of occupation prior to the injury, and had been working as a production worker and packer for the ten years prior to the occurrence of injury.
(iii) The injury of 27 May 2007 (a) The state of the plaintiff’s health prior to 27 May 2007 12 Prior to the occurrence of the relevant incident of injury, the plaintiff had suffered occasional aches in her back which she attributed to the nature of her work. I accept that the plaintiff had suffered no back injury of any significance and was suffering no back symptoms of any moment prior to the occurrence of the relevant injury. Insofar as it might be suggested that what occurred on 27 May 2007 represented an aggravation of pre-existing changes (in this regard I note the opinion of Mr Robert Marshal, consultant surgeon, examining on behalf of the defendant), I am satisfied that the plaintiff was effectively symptom free prior to that date. If the injury is seen as such an aggravation, in accordance with the authorities it is the aggravated condition and the consequences and restrictions resulting from it which are to be considered.
13 The plaintiff also had a history of some psychological or psychiatric problems. Some of these seem to have related, understandably, to the death of her first child and also due to the situation in which she found herself after her husband suffered a severe injury and was off work for many years until he was able to resume employment in 2002. For a period of some six months in the early 1990s the plaintiff was on anti-depressant medication. However, her history, as given to Dr Michael Epstein, is that she made a full recovery from this episode of depression. As the plaintiff is not relying upon paragraph (c) of the definition of serious injury, the Act requires that psychological or psychiatric factors are not to be taken into account and obviously I will comply with that requirement. However, I am satisfied that the plaintiff was in good mental health as at 27 May 2007. I note that, in any event, Dr Epstein links any current psychiatric symptoms to the plaintiff’s inability to work due to her back condition and expressed the view that, were she able to find work with another employer doing work within her physical capacity, it was likely that her psychiatric state would improve.
(b) The injury of 27 May 2007 and subsequent treatment 14 On 27 May 2007 it is alleged by the plaintiff that there was a machinery malfunction which resulted in her having to pick up hundreds of blocks of cheese at a fast rate. The blocks were falling to the floor from the production line, and she was required to bend, pick them up and stack them rapidly. Whilst doing this she developed back pain. She attended Dr Saka on the following day. He certified her as being unfit for work for a period of four days (because of her shift arrangements, it would appear that she had four days off in any event). I note incidentally that Dr Saka has reported that the plaintiff in fact presented on 20 May 2007, although the report from Dr Griffiths at the Corangamite Clinic indicates, very specifically, that the plaintiff first presented on 28 May 2007 to Dr Saka at 3.20pm. No issue was made of this, and I accept that the injury occurred on 27 May and the plaintiff attended upon Dr Saka on 28 May.
15 In any event, it would seem that she was given analgesia and inflammatories, returning to work on alternative duties on 2 June 2007. Those duties seem to have involved working one hour per day without any lifting. A CT scan was performed on 11 July 2007. The conclusion of Dr Chamberlain, the radiologist, was that there was a mild to moderate L4/5 postero-central disc bulge with mild involvement of the thecal sac and no demonstrable involvement of the nerve roots. There was also a mild postero-central L5/S1 disc bulge with only minimal involvement of the thecal sac. Shortly thereafter the plaintiff appears to have obtained a certificate clearing her for work on the basis that she would be given assistance if required. She instructed new workers in the use of machines, but her level of pain increased and she had difficulty coping. She continued to perform light work duties for approximately six weeks before returning to her doctor (this would appear to have been on 2 July) and was placed off work. She remained off work for approximately 12 months.
16 On 17 July 2007 she commenced a physiotherapy programme at Corio Bay Sports Treatment Centre. In September 2007 she was referred by Dr Saka to Dr Robert Gassin at the Metro Spinal Clinic. Dr Gassin reported back that the plaintiff was receiving physiotherapy and hydrotherapy and taking Panadeine Forte (3-8 daily) and Movalis (15mg daily). He expressed the view that the plaintiff had a very irritable back, the exact source of the pain being difficult to ascertain, but it being most likely discogenic. He also referred to some regional myofascial pain syndrome. He placed the plaintiff on Endep and suggested further active physiotherapy. Ultimately the dose of Endep was increased, and the plaintiff also suffered an increase in back pain following massage by a physiotherapist and following examination by one of the defendant’s doctors (apparently Mr Jones). Ultimately, as she did not tolerate Endep, this was replaced by Endone, but that medication was also later ceased because of side effects. She was again seen by Dr Saka in March 2008, and also had some sessions of acupuncture without benefit. Dr Saka reported that the plaintiff, as at 31 March 2008, was suffering from backache and an inability to stay in the one position. She continued with physiotherapy and a home exercise programme. She did not proceed with a planned programme of diagnostic injections at the Geelong Pain Management Clinic.
17 Because of financial pressures, the plaintiff returned to work performing office duties in July 2008. She performed this work for two hours a day, three days a week, and was taking eight Panadeine Forte per day. Because Dr Saka had moved, as at 7 October 2008 she commenced being treated by Dr Griffiths. That doctor saw her on 7 October 2008 and tried her on Prednisolone, which relieved her pain slightly more effectively than the previous anti-inflammatories, but her pain persisted. In addition, he commenced her on an anti-depressant, and reported on 9 February 2009 that he recommend that she slowly go back to full-time work in a clerical or non- heavy lifting occupation.
18 On 15 October 2008 the plaintiff underwent an MRI. No abnormalities were detected.
19 In January 2009 the plaintiff ceased work when advised by the defendant that there was no work available for her unless she could return to full duties on a full-time basis. She has not engaged in paid employment since, although, as shall be discussed, she is undertaking a course of retraining. She continues with hydrotherapy twice a week, and also takes a number of medications, including between four to eight Panadeine Forte tablets per day. She still takes Endone, but also uses Valium and Lyrica.
20 A report of 28 July 2010 of Dr Griffiths indicates that the plaintiff continues to have severe pain and he believed that her problem was one of chronic pain syndrome. He hoped that the plaintiff’s pain would settle down particularly when she had re-educated herself and found full-time employment, but stated that she was not able to perform her pre-injury duties. He hoped that she would be able to perform office work, but the amount of time she would be able to be seated in an office was yet to be determined. The plaintiff also attended a psychologist on two occasions in early 2010.
21 The plaintiff has been seen by a number of specialists for medico-legal purposes. The plaintiff’s solicitors arranged an examination by Mr Stanley Schofield, orthopaedic surgeon, this taking place on 6 June 2008. Mr Schofield commented on the plaintiff’s increase in weight, which I gather has continued to be a problem. His examination revealed marked limitation of flexion and extension of the lumbar spine, with other movements being mildly restrictive. Straight leg raising was limited to 40 degrees bilaterally, which activity reproduced buttock pains. Neurological examination of the legs was normal. Mr Schofield examined the CT scan of April 2007, and expressed the opinion that it demonstrated a mild to moderate L4/5 postero-central disc bulge. His conclusion seems generally to have been in accord with those of the radiologist. The opinion of Mr Schofield was that, as a result of the relevant circumstances of work, the plaintiff developed an acute lumbar disc prolapse. He believed this diagnosis to be consistent with the clinical signs and the investigational evidence. He suggested an MRI scan. He concluded that his clinical examination and assessment indicated pathology caused by the injury, and described the plaintiff as being not fit to resume manual labour. He felt that she needed further investigation and treatment.
22 Mr Schofield provided a further report on 19 August 2008. This followed the forwarding to him of a report of Dr Gassin of 22 June 2008 and that of Dr Saka of 26 June 2008. Mr Schofield recommended that an MRI scan be performed, referring to it as the “gold standard”. In the view of Mr Schofield, this would assist in identifying more clearly the physical cause of disability and, after that, a prognosis could be provided. The subsequent MRI of 15 October 2008, which essentially revealed no abnormality, has not been the subject of any further comment from Mr Schofield that has been put before the court.
23 The plaintiff has also been seen by Mr Kenneth Brearley, surgeon, at the request of her solicitors, and he reported on 28 September 2009. He took an appropriate history, and also noted that the plaintiff had been looking around for suitable work without success, and was seeking to have some further training, particularly with regard to computers so that she might be able to do some office or administrative work in the future. He noted that she was suffering constant pain in the lower back of variable severity which has been made worse by some activities such as bending, lifting, long standing and the like. He also noted some pain in the right leg together with numbness in the thigh. He recorded that the plaintiff was having hydrotherapy three times a week but that physiotherapy had ceased, and also noted the medication being taken by her. On examination he noted that flexion was limited to 40 degrees and that there was flattening of the thoracolumbar spine on flexion. Straight leg raising was to 70 degrees bilaterally, reflexes were normal, but sensation to pinprick over the left leg was reduced. Mr Brearley viewed some radiological images and also had access to reports, and was aware of the result of the MRI. His diagnosis was of mechanical lumbar pain due to intra- disc rupture at the L4/5 and L5/S1 intervertebral discs, referring to the distinct bulge shown on the CT scan, which bulge he described as being indicative of some intra-disc damage. He also found that the plaintiff had some referred pain down the back of the legs. He implicated employment. He considered that the plaintiff was fit for light work subject to what could be described as the usual restrictions and observed that she required retraining. He described her grade of disability and impairment as at the time of review as significant and referred to her having difficulties with all aspects of her life because of the injury.
24 Dr Michael Epstein, consultant psychiatrist, saw the plaintiff on 10 Marc 2010. As I have previously mentioned, he believed that she had developed a chronic adjustment disorder with depressed mood, but felt that her psychiatric state would improve if she could return to work.
25 The plaintiff has also been seen by a number of specialists at the request of the defendant. Mr Clive Jones, orthopaedic surgeon, saw the plaintiff on 21 November 2007. For reasons that are not entirely clear to me, he seems to have written two reports, the earlier on 26 November 2007 and the latter on 13 December 2007, but they appear to be essentially identical. He felt that the changes evident on the CT scan were consistent with her age and were early degenerative changes, and that there was no disc prolapse. He diagnosed chronic back pain without sciatica, feeling that there may have been some overstatement of the actual disability present. He did not think that the CT scan reflected any spinal injury or significant spinal pathology. His opinion was that there may have been an aggravation of pre-existing asymptomatic degenerative change which had not resolved and was still producing symptoms. He did not regard the plaintiff as incapable of all employment, but felt that she had a light work capacity.
26 Mr Jonathon Hooper saw the plaintiff on 21 July 2008. Upon examination, he found restrictions in relation to flexion and extension, and straight leg raising was limited to 40 degrees on both sides. He also found altered sensation over the left leg over the S1 dermatone distribution. He regarded the CT scan as being normal for someone of the plaintiff’s years with no frank or obvious discogenic pathology. He expressed the opinion that the plaintiff had low back pain, the aetiology of which was presumably discogenic and implicated employment. He was of the view that she was able to continue light work, but should not go back to work which involved bending, lifting and twisting. He also suggested weight loss. Ultimately he was of the view that she had discogenic low back pain aggravated by work based on a constitutional degenerative age-related problem.
27 Mr Hooper saw the plaintiff for a second time on 7 April 2010. He recorded a history of her back being sore all the time, and of her doing a business course. He again noted restrictions in flexion and extension, although straight leg raising was 90 degrees on the right and 70 degrees on the left. He again recorded altered sensation on the outside of her left leg. He expressed the view that she had chronic low back pain which he would regard as being discogenic and again suggested weight loss and exercise. He also thought that she should continue to develop skills other than physical working skills. He noted that she continued to complain of back pain and sciatica, and stated that the aetiology of this was degenerative disease precipitated by an incident at work in 2007. However, in his opinion the symptoms were now due to the underlying pathology which she had in her back, her weight gain, and her emotional response to the pain problem. He concluded that she would be unable to return to physical work, and noted that she was training herself to do more sedentary work, which he felt was appropriate. As I shall discuss shortly, in some cases, and particularly in this case, I have difficulties with the argument to the effect that at some point in time symptoms which commenced after a particular incident, and which continue, cease to be related to that incident, but are attributable to an underlying condition which previously produced no symptoms.
28 On 30 March 2009 the plaintiff was seen by Mr Robert Marshall, consultant surgeon. The purpose of this referral was to obtain an evaluation of permanent impairment pursuant to the AMA Guides. He took a consistent history. On examination he noted that the plaintiff was overweight, had a “lordotic sway back” and had extremely limited movement of her lumbar spine. He found no evidence of any neurological involvement. He was aware of the results of the CT scan. Mr Marshall came to the conclusion that the plaintiff had some relatively minor age-related degenerative changes in her lumbar spine and believed that the incident of 27 May 2007 only resulted in temporary, symptomatic aggravation of the underlying changes, such aggravation ceasing “within no more than a few days at most”. However, he noted that the plaintiff’s condition had already been accepted as work-related, referring to this as “an error of judgment”. That said, he assessed her whole person impairment as being five per cent and considered that there was unlikely to be any substantial change in her condition in the foreseeable future. He made no comment of any substance concerning employability.
29 On 14 April 2009 Mr Ronald Haig, consultant orthopaedic surgeon, examined the plaintiff. He took an appropriate history, and noted that she complained of low backache which was intermittent, coming on a number of times a day with sharp pain which lingered for a while. Incidentally, Mr Haig considered that there was in the low back a normal lordosis, whereas Mr Marshall claimed that the plaintiff had an extremely pronounced lordosis or sway back. Mr Haig noted that straight leg raising was limited and noticed diminished sensation in the left lower leg. However, he expressed the view that this was non- anatomic in distribution, an opinion which Mr Hooper did not seem to share. Mr Haig had access to the CT scan but not the MRI. Mr Haig implicated employment and also stated “I do not believe that there is any functional overlay or exaggeration nor psychological nor psychosomatic factors operating”. He also noted that there was no past history of back complaint, and considered a question in relation to reoccurrence, aggravation and the like to be irrelevant. He does not seem to have made a clear specific diagnosis, but expressed the view that the plaintiff had a current work capacity although it would be imprudent for her to return to her pre-injury employment. He believed her fit for the vocational options which had been put before him. These shall be discussed subsequently. He thought that her condition had stabilised, and that hydrotherapy should be continued. Indeed, several of Mr Haig’s answers to specific questions seem to have been directed to the issue of ongoing treatment. He was certainly of the view that ongoing hydrotherapy was necessary. He concluded that it was difficult to be definite about the diagnosis, although he felt that there was nothing in the CT or MRI investigations to suggest that her continuing back pain arose from posterior facet joints or disc degeneration.
30 That concludes the summary of the evidence of medical practitioners. I turn now to my finding having considered the above. I am of the view that the plaintiff did suffer an injury arising out of or in the course of her employment upon or about 27 May 2007. The nature of that injury is more difficult to define than is the situation in some other cases, there being no unanimity of diagnosis in this case. However, I have come to the conclusion that the injury sustained was and is discogenic in nature. That is the view of Mr Brearley, he having had access to all relevant radiological material. I note that Mr Hooper, examining on behalf of the defendant, also expressed the view that the aetiology of the plaintiff’s low back pain was presumably discogenic, ultimately expressing the opinion that her back pain and sciatica were due to degenerative disc disease precipitated by an incident at work in 2007. I appreciate that he also expressed the opinion that her ongoing symptoms are due, inter alia, to her underlying pathology, and if this means that he considers the work incident to represent a temporary aggravation, it is a view which, as shall be stated, I do not accept. However, as far as diagnosis goes, Mr Hooper’s conclusion is not far removed from that of Mr Brearley. Incidentally, I note in passing that, in his report of 4 June 2008, the physiotherapist, Mr Zampetti, expressed the view that the plaintiff may have suffered injury to her two lower lumbar discs. Thus, he seems to have shared the view that the plaintiff’s low back pain was discogenic in origin.
31 Mr Marshall, also examining on behalf of the defendant, and whilst espousing the temporary aggravation theory, related the plaintiff’s symptoms to age- related degenerative changes even if these were of a minor nature. Mr Haig was unable to make any clear diagnosis, whilst apparently accepting that the plaintiff did indeed suffer symptoms which were employment-related. The opinion of Mr Schofield was somewhat contingent upon a possible MRI, but he did refer to the fact that there was an indication of pathology caused by the injury. On balance, I accept that, on 27 May 2007, the plaintiff did sustain injury to her low back, which injury was discal in nature and involved the L4/5 and L5/S1 discs.
32 I am of the view that the symptoms, restrictions and consequences which the plaintiff has suffered and from which she continues to suffer result from the relevant incident of injury. I do not accept the opinion of Mr Marshall in relation to there being a temporary aggravation which has long since ceased. I have difficulty with the concept that a person is virtually completely symptom- free; there is then an incident of injury which produces symptoms; nothing further of note happens and the symptoms continue; but at some stage or date, which is undefined, the effect of the incident which rendered the asymptomatic condition symptomatic ceases and the underlying condition takes over. Apart from the fact that this does not seem to me to be particularly logical, the exact time at which this transformation occurs, or indeed how it occurs, in my experience is seldom, if ever, specified.
33 I am uncertain as to whether this is precisely the view of Mr Hooper as expressed in his second report. Indeed, he refers to the plaintiff’s degenerative disc disease as having been precipitated by the work incident. However, he does state that her symptoms are now due to a number of factors, one of which is the underlying pathology which she has in her back. Whether that is a reference back to degenerative disc disease precipitated by the incident at work is not entirely clear. In any event, if Mr Hooper is advancing the temporary aggravation theory, and whether he is so doing is not clear, I do not accept it in this case.
34 Mr Brearley regards the plaintiff’s employment as being a significant contributing factor to the injury occurring, and has stated that, had she not been doing the work in question, there is no likelihood that she would have any back problems. Clearly he implicates employment in her ongoing difficulties. Mr Haig, examining on behalf of the defendant, has stated that, from the history given, her condition has arisen out of her employment. I note that the treating general practitioner, Dr Griffiths, in his recent report of 28 July 2010, refers to the original onset of pain and states that the pain has basically persisted until the present time and that the plaintiff continues to have severe back pain which has become chronic. Whilst he has not spelt it out, the whole tenor of his report is that the back pain from which the plaintiff now suffers is related to the original incident of injury. I accept these views.
35 I would also point out that the plaintiff made a claim for compensation pursuant to s.98C of the Act, noted by the defendant’s insurer in a letter of 20 April 2009 as being “In relation to disc injury – back, which you claim to have sustained as a result of your employment on 27 May 2007”. Paragraph 2.1 of the same letter states that liability is accepted for injury to the lower back. It is to be remembered that claims pursuant to s.98C relate to permanent impairment arising from a work-related injury. As to the weight which should be attached to an admission of liability in a relevant case, I would refer to the observations of Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171. In the present case there has been no evidence of relevance concerning the circumstances of the acceptance of the plaintiff’s claim and the admission of liability. Whilst, as stated by Ashley JA, such acceptance or admission is not conclusive, it is a factor which supports the conclusion of that which I have arrived. In summary, I am satisfied that the symptoms, restrictions and consequences from which the plaintiff now suffers result from the relevant incident of injury.
36 That there have been some psychiatric or psychological factors playing a role in the plaintiff’s life is clear. As required by the Act, I shall not take them into account. However, I am of the view that they are of limited impact. I note the report of Dr Michael Epstein, the only consultant psychiatrist to have examined the plaintiff. He expressed the view that her episode of depression years ago and prior to injury played no part in her current situation. Whilst he believed that she had developed a chronic adjustment disorder with depressed mood, he noted that this was in the context of ongoing pain following her back injury, and believed that, if she could find work within her physical capacity, her psychiatric state would improve. In other words, Dr Epstein is of the opinion that it is the back injury which is at the heart of the problem. I also note that he does not suggest that the plaintiff needs anything by way of ongoing psychological or psychiatric treatment. Whilst there have been references to chronic pain syndrome, which in some instances may be viewed as not being organic, I note that Mr Haig specifically mentioned that no psychological or psychosomatic factors were operating in relation to the plaintiff’s presentation, and also excluded any functional overlay. That coincides with the impression which I have formed of the plaintiff in the witness box. Overall, whilst psychiatric and psychological factors shall not be taken into account, I do not regard them as playing any significant role in the plaintiff’s symptoms and consequences of injury.
37 I have already dealt with the question of aggravation. Insofar as the injury is the aggravation of her pre-existing condition, and this is certainly not a unanimous diagnosis, it is the aggravated condition which I shall assess.
38 I am also satisfied that the injury and its consequences are permanent within the meaning of the Act and shall persist for the foreseeable future. Mr Brearley expressed the view that there is not likely to be any significant change for the foreseeable future. Whilst Mr Hooper referred to the prognosis of being satisfactory, he also stated that the plaintiff will not be able to return to physical work. Mr Marshall, whilst attributing symptoms to the underlying condition, has stated that the plaintiff’s impairment has stabilised and is unlikely to change substantially in the foreseeable future. Mr Haig expressed the view that the plaintiff’s condition has stabilised and that the prognosis is such that her symptoms are likely to continue much as they are now. I would also refer to the acceptance of s.98C claim. I am satisfied that permanence has been established.
(iv) The plaintiff’s retraining and rehabilitation since the injury 39 I have already referred to the history of the plaintiff’s employment with the defendant after the injury. In essence, she briefly performed light duties on a part-time basis, was then absent for a lengthy period, and then resumed doing part-time office work until she ceased work in January 2009 when the defendant advised that, unless she could return to work doing full-time duties, there was no other work for her.
40 The plaintiff has not worked for wages since. However, on 15 February 2010 she commenced a course in Business Studies (Certificates II and III) at the Adult Community Education Centre in Colac. This involves attending two and a half days per week. The plaintiff said in cross-examination that the course was progressing, that she could send and receive emails, type a little, and was learning attachments. This year the course finishes at the end of November, and the plaintiff anticipates obtaining a qualification in Business II “for sure”, but “Business III might take a bit longer, but I am hoping”. The plaintiff stated that her computer skills were getting better. It was also clear that the plaintiff is undertaking this course not by way of a hobby or pastime but with a view to obtaining some office or administrative work. She is demonstrating admirable motivation.
Ruling
(a) Pecuniary loss damages 41
I am satisfied that the plaintiff has a capacity to earn income and that, if such capacity does not already exist, it will certainly exist when she completes the course which she is currently undertaking. Indeed, the plaintiff agreed quite openly that, had the administrative duties which she had been performing on a part-time basis with the defendant continued to be available, she would have stayed on. She also agreed with propositions put to her such as that she would be looking for work in jobs such as administrative assistant, customer service, supervisor and the like. She agreed that, as at the end of the year when she has some qualification and has been trained, she could engage in work that did not involve her in lifting or bending, but was light administrative work. These were quite frank and proper concessions.
42
Further, Mr Brearley expressed the view that the plaintiff is fit for light work within the anticipated or usual restrictions, noting as at September 2009 that the plaintiff had been looking for such work but without success. He also pointed out that she required retraining in order to obtain basic knowledge of computers so that she might be able to do some administrative or office work in the future. Mr Hooper expressed the view that the plaintiff was training herself to do more sedentary work and that this was quite appropriate. Mr Jones stated that the plaintiff does have a light work capacity, whilst Mr Haig, as at April 2009, believed that the plaintiff was fit for suitable employment and for certain vocational options contained in an assessment which had been made available to him.
43
In his most recent report, Dr Griffiths expressed the hope that the plaintiff’s pain would settle down with time, particularly when she had re-educated herself and found full-time employment. He also expressed the hope that she would be able to perform office work.
44
Bearing in mind the medical material and the plaintiff’s own statements, she has a capacity for employment, and one that will be enhanced by the retraining which she is undergoing.
45
That being in so, and this not being an “all or nothing” case in relation to earning capacity, the requirements of s.134AB(38)(e), (f) and (g) are applicable. In other words, this is a case where earning figures have to be examined in order to establish whether there has been the required financial loss of 40 per cent or more.
46
Firstly, I shall look at the plaintiff’s “without injury” earnings and the selection of a figure which most fairly reflects her earning capacity had the injury not occurred, bearing in mind the six year “window” referred to in s.134AB(38)(f). The window in the present case would be from 27 May 2004 to 27 May 2010. No figures were made available as to the earnings of a comparable employee performing, in the years following her injury, the same sort of work as the plaintiff would have been performing were she uninjured. It was suggested that, with the addition of compensation payments, her salary continued as if she had not been injured so that her gross earnings from the defendant in the post-injury years reflect what she would have been earning working on the factory floor. Whether this was in fact the situation is not entirely clear.
47
In the financial year ending 30 June 2004 the plaintiff’s gross income, all of which seems to have emanated from the defendant, was $50,833. In the following year it was $48,759. In the year ending 30 June 2006 it was $53,783, and in the following year $55,569. By the 2007/08 financial year, the plaintiff had ceased performing her normal duties, and indeed was absent from employment for a considerable period. The taxation details for this year have a different appearance and the total gross income is $64,613. This appears to be something of an aberration, and the breakdown of the figure is not clear. No Payer ABN number is shown, unlike in the previous years. The following year, the plaintiff’s gross income dropped back to $53,039, and the Payer ABN number (presumably that of the defendant) is again evident. I am in no way suggesting that anything untoward happened in the 2007/08 year and it may be that the plaintiff received payment of some kind of additional benefit. However, the figure for that year appears to be something of an inexplicable aberration, and does not seem to me to most fairly reflect the plaintiff’s earning capacity had she not been injured.
48
On the balance of the available evidence, it seems to me that the period that best represents the plaintiff’s “without injury” earnings is the financial year 2006/07, towards the end of which the plaintiff was injured but thereafter received compensation which may have been the equivalent of her normal wage. Her earnings for that year were $55,569. Upon the basis of the available evidence, which is limited, that period and those earnings seem to me to most fairly reflect her earning capacity had the injury not occurred. Sixty per cent of that figure is $33,341.
49
I turn now to the plaintiff’s “with injury” earnings. A key question in this regard is whether the plaintiff’s capacity extends to full-time or part-time work. In this regard s.134AB(38)(g) and the retraining which the plaintiff is undergoing can be relevant. In my opinion, the plaintiff’s capacity, within the meaning of the Act, does extend to work on a full-time basis in suitable employment. I would point out the following.
50
Mr Brearley considers the plaintiff to be fit for light work, and outlines restrictions in this regard. They do not include restrictions as to hours worked. Whilst Dr Griffiths’ report is a little ambiguous and not entirely clear, he does express some hope in relation to the plaintiff finding full-time employment. Certainly, the sample certificate of Dr Griffiths put in evidence and covering the period 22 August 2009 to 15 November 2009 refers to the plaintiff being fit for modified duties, whilst not specifying particular restrictions. It contains no reference to any restriction in terms of working hours.
51
Mr Bill Radley, psychologist, vocational assessor and rehabilitation provider, has twice reported to the solicitors for the plaintiff. In his detailed report of 9 October 2009, Mr Radley concluded that, whilst the plaintiff had no current work capacity as at that time, she had the ability to participate in an occupational retraining course and he believed that it was likely that she would then be able to work in full-time employment. It was a view which he repeated. He has suggested a range of occupations which may have the potential to be suitable after an appropriate course of occupational retraining. These include such things as driving instructor, service station console operator, tourist information officer, hotel or motel front office clerk, real estate property manager or desktop publishing operator. He did not agree with the employment suggestions made by NabeNet Rehabilitation which options were before Mr Haig. It should also be pointed out that both reports of Mr Radley were prepared prior to the plaintiff commencing her present retraining course.
52
Mr Hooper has referred to the plaintiff’s retraining in order to do more sedentary work as being quite appropriate, and otherwise makes no mention of working hours. Mr Haig expressed the view that the plaintiff was fit for suitable employment, feeling that the NabeNet vocational options were appropriate. He did not suggest any restriction as to hours worked. Further, the plaintiff agreed in cross-examination that, after retraining, she was likely to have a capacity for full-time or part-time employment. I appreciate that sometimes plaintiffs are unrealistically optimistic about what the future may hold for them in terms of employment and their capacity. The plaintiff did not strike me as being in that category. She impressed me as being realistic and well-motivated. She presents well. Whilst some of her answers were perhaps ambiguous in relation to her capacity and intentions, overall, and bearing in mind the opinions to which I have referred above, I am of the view that she has the capacity, or will have the capacity after retraining, to engage in suitable light work on a full-time basis.
53
That being so, some difficulties then confront the plaintiff in relation to the application insofar as it relates to pecuniary loss. I am bearing in mind that she has the burden of proof. The areas of suitable employment identified by Mr Radley were so identified before the plaintiff commenced her retraining. Further, in his voluminous reports, I could find no actual figures upon which a calculation could be based in relation to earnings in jobs which he considered suitable. The only clear figures in relation to possible job opportunities are those contained in the NabeNet assessment report. I will leave to one side the highest paying position, namely that of a graffiti auditor, because this somewhat unusual occupation was not put to the plaintiff, or indeed to me, as being something in which she could engage. The other three options nominated were those of administrative assistant, customer service/data entry officer and production supervisor. It was put to the plaintiff that these three positions had been identified as jobs that would be available for her, a proposition with which she agreed.
54
Reading the duties associated with these positions, they do sound suitable for the plaintiff with appropriate training. The expected wages listed for the jobs of administrative assistant and production supervisor would, when annualised, result in the plaintiff suffering a financial loss in excess of 40 per cent when the required comparison is made. However, the wage for a customer service/data entry officer is stated as being $672 per week. Annualised this is $34,944. As previously stated, 60 per cent of the “without injury” earnings is $33,341. Thus, the plaintiff’s wage as a customer service/data entry officer would be greater than 60 per cent of her “without injury” earnings. Her loss would be less than 40 per cent. As I am satisfied that she has, or will have, the capacity to work in such a position on a full-time basis, it follows that she has failed to satisfy the requirements of the Act as set out in s.134AB(38)(e), (f) and (g). I might add that there were no figures produced in relation to another occupation which the plaintiff stated that she could pursue, namely that of a receptionist at an establishment such as a motel.
55
There is then no need to move on to the “very considerable” test in relation to pecuniary loss. The plaintiff has failed to satisfy the burden of proof and her application insofar as it relates to loss of earning capacity fails.
(b) Pain and suffering damages 56
In relation to leave in respect of pain and suffering damages, I am satisfied that the plaintiff has discharged the burden of proof. I say that for the following reasons which are not listed in order of importance or significance.
(a)
I accept that the plaintiff has virtually constant low back pain which fluctuates in intensity. I accept that at times it is sufficiently severe to reduce her to tears. The plaintiff takes between four and eight Panadeine Forte tablets a day. In his most recent report of 28 July last, Dr Griffiths has observed that the plaintiff continues to have severe pain which has become chronic. In September of last year Mr Brearley took a history of constant pain in the lower back of variable severity together with some leg pain and numbness. Dr Epstein, in March of this year, took a history of constant low back pain going to both buttocks and down the back of both legs. The plaintiff’s pain was worse with activity. These are the most recent histories available, and I accept them. As one would expect, pain is certainly a factor to be taken into account in “pain and suffering”. The level of pain constantly suffered by the plaintiff would, standing alone, take her quite a long way towards satisfying “the very considerable” test, if not actually satisfying it. This is particularly so when one bears in mind her age.
(b)
The plaintiff has also sworn in her more recent affidavit that she has “awful difficulty sleeping”. She confirmed this in cross-examination. I accept it. I am aware of the references in some Court of Appeal decisions to the fact that direct comparison of cases can be an exercise of limited utility, but I would refer to the observations of Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 as to the potential importance of sleep deprivation or interruption as a factor to be considered. His Honour observed:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
Certainly it is a factor which I take into account in the present case.
(c)
The plaintiff used to enjoy gardening. Her husband does not like gardening, and she used to do the gardening and lawn mowing. She is now unable to do any gardening, save for the occasional picking of a flower. The enjoyment of attending to her garden and lawns is now lost to her. Whilst the house at which she did the gardening has recently been sold, the plaintiff has nevertheless been denied the enjoyment of looking after a garden in the future.
(d)
Her participation in other activities of an enjoyable nature has either ceased or become more restricted. She can no longer walk her dog, which is a Great Dane. There are now problems in going to bingo regularly, something which she enjoyed, because of her difficulty in sitting for any lengthy period. The plaintiff and her husband had purchased a panel van for the purpose of using it on weekend trips, this being a regular occurrence. The plaintiff no longer does this. Getting into and out of the panel van and sleeping in it pose problems. When she was fit and well, the weekend trips, usually over four days which fitted in with her shift arrangements, occurred approximately once a month. When shopping, she needs assistance with larger items. She was not able to help when she and her husband recently moved house. In short, there has been quite a notable impact upon her capacity to enjoy and participate in normal activities.
(e)
Whilst the plaintiff will hopefully return to employment, her enjoyment of the type of work in which she previously engaged is lost to her. As she has sworn, she misses her work. The particular type of work that she did involved working in a team, and she has described how her social life revolved around it, and how she loved doing such things as going to the tearoom or otherwise socialising with her workmates. She has been deprived of enjoyment of the particular type of work which she did.
(f)
Because of her pain she no longer has a sexual relationship with her husband. I would refer to both of her affidavits and to his of 10 November 2009. I accept that this has placed strain upon the marriage. Again, and bearing in mind her age, this factor alone may well be sufficient to satisfy the statutory test.
(g)
In relation to the plaintiff’s age, it is to be remembered that it is 43 years. For in excess of three years she has already been suffering severe pain which has become chronic. Decades of the same probably lie ahead of her. In this regard, I would refer to the following observations from the decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Victorian WorkCover Authority [2009] VSCA 181:
“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) would have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
In the present case, there is nothing to suggest that the plaintiff’s life expectancy is under threat. Accordingly, the pain and suffering consequences which she will have to put up with may well persist for a period in excess of 30 years. This is another factor which supports the plaintiff’s position.
57 Mr Scanlon in essence argued that someone with an un-operated back and no pathology could not be found to be suffering from serious, long-term impairment of the spine, and asked rhetorically when any court had so decided. However, as has been emphasised in the Court of Appeal, each case must be assessed on its merits and the evidence as a whole must be considered. In addition, as was stated by Buchanan JA and Nettle JA in McKinnon, whether an injury qualifies as serious is a question of fact, degree and value judgment in the determination of which comparisons with other cases and checklists of relevant considerations are at best of limited utility. As pointed out by Buchanan JA, pain is not objectively measurable and experience of and reaction to pain varies from one person to another. I am quite satisfied that the plaintiff does suffer from the pain which she describes and which has been noted by medical practitioners as referred to above. Furthermore, whilst Mr Scanlon referred to the absence of pathology, I have found that the plaintiff’s injury is discogenic in origin.
58 True it is that the plaintiff has not been referred to an orthopaedic surgeon for treatment. However, she is on a substantial, if not high, regime of Panadeine Forte. Given that I accept her description of the pain, restrictions and consequences from which she suffers, I do not find that the absence of a treating orthopaedic surgeon is a factor which in some way tips the balance against her.
Conclusion
59 In summary, the plaintiff has not discharged the burden of proof in relation to her application for leave to bring proceedings for pecuniary loss damages, and fails in that regard. In relation to pain and suffering damages she has discharged the burden of proof and is successful. Leave is given to her to bring proceedings in respect of pain and suffering damages only. I shall hear the parties as to any ancillary orders that are required.
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