Abraham Blue Retail Goods v VWA
[2009] VCC 550
•24 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MORWELL
CIVIL DIVISION
Case No. CI-08-00032
| THERESA CARMEL ABRAHAM | Plaintiff |
| v | |
| BLUE RIDGE HARDWOODS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Morwell |
| DATE OF HEARING: | 15 and 16 April 2009 |
| DATE OF JUDGMENT: | 24 April 2009 |
| CASE MAY BE CITED AS: | Abraham Blue Retail Goods v VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0550 |
| First Revision 29 April 2009 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious Injury Application – Injury to the lumbar spine – Causation – Application in respect of pain and suffering and economic loss.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC and | Slater & Gordon Ltd |
| Mr J Goldberg | ||
| For the Defendants | Mr P Elliott SC and | Minter Ellison |
| Mr J Batten | ||
| HIS HONOUR: |
1 In this application the plaintiff seeks leave to commence proceedings to claim damages for the pain and suffering and economic loss consequences associated with an injury which allegedly occurred in the course of her employment with the first defendant, Blue Ridge Hardwoods (“Blue Ridge”), on 29 October 2001. The injury and incapacity relied upon is an injury to the lumbar spine resulting in a prolapse of the L4-5 lumbar disc. There is no issue as to the seriousness of the incapacity occasioned to the plaintiff by the pathology which is present at her L4-5 lumbar disc.
2 In determining this application two issues arise for consideration. Firstly, did the plaintiff suffer an injury in the course of her employment on 29 October 2001? Secondly, if the plaintiff was injured in the course of her employment on that day, did the injury materially contribute to her current incapacity? I will discuss first the issue which arises as to the happening of the incident of 29 October 2001.
3 The plaintiff has sworn three affidavits in support of this proceeding. In her first affidavit she alleges that on 21 October 2001 whilst she was working at Blue Ridge Timber Mill at Noojee in West Gippsland (“The Mill”) she suffered an injury to her back when in the course of lifting a bucket filled with off cut timber and wood chips. The handle of the bucket broke, causing her to fall backwards striking her back.[1] For the sake of convenience I will hereafter refer to the circumstances in which the alleged injury occurred as "the incident."
[1] Plaintiff’s Court Book (“PCB”) 2
4 In her second affidavit the plaintiff amended the date of the incident, stating that it occurred on 28 October 2001.[2] At the commencement of the application the plaintiff amended her second affidavit to alter the date of the alleged incident to 29 October 2001.
[2] PCB 14
5 It is not in issue that no WorkCover claim was initiated by the plaintiff in respect of the incident. Neither is it in issue that as at 29 October 2001 Blue Ridge employed a system in which the occurrence of minor injuries were documented in an incident report book.[3] All incidents involving either injuries or near misses were required to be so recorded.
[3] Not the subject of a WorkCover claim
6 The system involved in completing minor injury reports was the subject of considerable evidence given both by the plaintiff and her partner, Mr Ronald Rawson, who at all material times was the mill manager. Whilst there was some discrepancy between these witnesses as to the operation of the system, in that there was a difference between the evidence given by the plaintiff and Mr Rawson as to whether a copy of the incident report would normally find its way onto the worker's personnel file, I do not consider this discrepancy in the evidence to be of any great moment.
7 There was no dispute that upon the happening of a minor injury a report of the incident would be made in triplicate within an incident report book and that thereafter one copy of this report would be sent either by facsimile or surface mail to the offices of Blue Ridge in Canberra. The remaining two copies being retained at the mill, either both copies in the incident book or one copy in the incident book and one copy on the personnel file of the worker involved.
8 It was accepted by the parties to the proceedings that all personnel records which have previously been stored at the mill have been mislaid with the result that no copies of the reports which the plaintiff and her partner depose were made with respect of the incident and were kept at the mill are available from those records.
9 In an affidavit sworn on 22 August 2008, Elaine Lay, an administration manager with Blue Ridge, states that Blue Ridge had a policy of lodging claim forms for any reported injury no matter how minor the injury and that she had not received any written notification of the alleged injury.
10 In that her affidavit refers to claim forms and not incident reports not the subject of a claim, I do not accept that it is appropriate to construe the affidavit as a statement that no minor incident report as to the happening of the incident was ever received by Blue Ridge. I accept however that no such report is available for production at this time.
11 In the apparent absence of any documentation supporting the happening of the incident, Blue Ridge takes issue with the plaintiff's allegation that the incident occurred.
12 In support of its position, Blue Ridge points to the plaintiff's wage records which do not disclose any absence from employment by the plaintiff or any payments of sick pay made to the plaintiff associated with the incident. Further, reliance is placed upon the evidence of Mr Robert Southgate, a co- worker of the plaintiff who was employed by Blue Ridge in a clerical capacity. Mr Southgate gave evidence that he would have expected to have been aware of the fact that an incident had occurred or the fact that the plaintiff had reported the happening of an incident and that he had no knowledge of either occurrence.
13 In support of the allegation that the incident occurred, the plaintiff relies upon her evidence as supported by the following. Firstly, the evidence of her partner, Mr Rawson, as to the temporal complaint made to him of the happening of the incident by a co-worker of the plaintiff. Secondly, a diary note contained in a personal diary produced by Mr Rawson which contains the following injury for Monday 29 October 2001:
"No orders. Teresa working in chipper. Slipped and fell thus hurt back.
Went to doctor. Two days off."
14 The plaintiff also relies upon evidence of a circumstantial nature which supports the happening of the incident as follows. Firstly, an entry made by Dr Melinda Nelson in the plaintiff's medical record dated 30 October 2001[4] which records a history of the plaintiff presenting with back and left iliac fossa pain on that day. Although this entry makes no reference to a work-related accident, it is submitted on behalf of the plaintiff that it supports the plaintiff's assertion that an incident and injury to her back was occasioned on the previous day.
[4] PCB 104
15 Secondly, the plaintiff relies upon the fact that on 4 November 2001 she purchased a lumbar support cushion. Her evidence being that the cushion was purchased to assist her to deal with symptoms of lumbar spine pain associated with the occurrence of the alleged incident.
16 Thirdly, reliance is placed on the evidence of Mr John Bottrell who suffered an injury in the course of his employment at the mill in 2002 and recalled that at about the time at which he sustained his injury the plaintiff was having difficulties with her back which she reported to him were associated with a work-related incident in which she was using a drum as a rubbish bucket.
17 Fourthly, the plaintiff relies upon the evidence of Ms Maureen Halligan who recalled the plaintiff complaining to her that the plaintiff had hurt her back at work and that she was having problems with her back. Although Ms Halligan was unable to identify the time at which this complaint was first made to her, it was her evidence that the plaintiff was having ongoing problems with her back for a period of at least twelve months before the plaintiff left Noojee. It is clear that the plaintiff and her partner moved from Noojee to Eden in mid 2003.
18 Finally, a reliance is placed on a medical certificate issued by Dr Melinda Nelson which certifies the plaintiff would be unfit for work from 30 October 2001 to 31 October 2001 inclusive.
19 It was the evidence of both the plaintiff and Mr Rawson that following the happening of the incident the plaintiff missed three days from work associated with her injuries, namely, 30 October, 31 October and 1 November. Thereafter the days between 2 November and 6 November were either flexi days or public holidays, with the plaintiff returning to work on 7 November.
20 Whilst no adequate explanation was provided by either the plaintiff or Mr Rawson for the absence within Blue Ridge's wage records of any supporting documentation recording the plaintiff's absence from employment during the days in which she was allegedly incapacitated by reason of the happening of her injury, I am ultimately satisfied on the balance of probabilities that the plaintiff was involved in an incident and did sustain an injury on 29 October 2001, for the following reasons.
21 The plaintiff first contacted solicitors in this proceeding on 25 January 2007, some six years after the happening of the incident. I do not find it surprising in these circumstances that the plaintiff in the absence of access to any supporting documentation as to the date upon which the incident occurred, may have mistaken the precise date of the incident.
22 The dates upon which the incident occurred as deposed to by the plaintiff in her first and second affidavits were both Sundays. The plaintiff was clearly mistaken as to those dates as it was not suggested by counsel for Blue Ridge that the mill operated on Sundays, and clearly the plaintiff was mistaken in nominating those dates as the date upon which the incident occurred.
23 Having regard to the time which elapsed since the happening of the incident, I do not attach any significance to the difference in the evidence between Mr Rawson and the plaintiff as to the plaintiff's activities at work following the happening of the incident.
24 Most importantly, I accept the evidence of Mr Rawson that the entries to his diary were made on or about 30 October 2001. In those circumstances these entries provide a reasonably contemporaneous record of the occurrence of an injury on 29 October 2001. Although a considerable challenge was made as to the bona fides of these entries, ultimately I accept the explanation given by Mr Rawson as to the circumstances in which the entries were made. (I refer in particular to his evidence at Transcript 150 to 153.)
25 The medical records of Dr Nelson that the plaintiff presented with symptoms of back pain on 30 October 2001 provide some support for the occurrence of the alleged incident the day before.
26 Further, the evidence of Mr Bottrell and Ms Halligan provide general support for the happening of a work-related incident. Having had the opportunity of observing both Mr Bottrell and Ms Halligan give their evidence, I formed the impression that they were both witnesses whose evidence could be relied upon and I accept their evidence.
27 In arriving at my finding, I am not persuaded that I should accept the evidence of Mr Robert Southgate. Essentially, I accept the challenge made to Mr Southgate's evidence as put by Mr O'Dwyer, senior counsel for the plaintiff. I am satisfied that in his statement made 11 August 2008 when describing his duties at the mill at the time of the plaintiff's accident, and in particular, his role in lodging WorkCover claims and the notation of injuries or near misses, Mr Southgate mis-stated his role in these activities at the time of the plaintiff's accident. The purpose of this misdescription appears to have been to call into issue the happening of the incident. Essentially, I prefer the evidence of Mr Rawson on these issues and accept his evidence that Mr Southgate had misrepresented the role that he, Mr Southgate, undertook within the office, both as a keeper of the relevant records and as the plaintiff's superior.
28 For these reasons I am satisfied on the balance of probabilities that the plaintiff suffered an injury in the circumstances set out in paragraph 7 of her first affidavit. The issue which then arises for consideration is the causal relationship between this incident and the plaintiff's present incapacity.
29 I will now deal with the consequences of the incident.
30 The defendants call into question the severity of the incident on the grounds that no claim has been made by the plaintiff for WorkCover payments arising out of the incident. In response the plaintiff gave evidence that she did not make a WorkCover claim because she was concerned that the lodging of a claim by her may have impacted adversely upon Mr Rawson's job security.
31 Both the plaintiff and Mr Rawson gave evidence that Blue Ridge had a hostile attitude towards workers’ compensation claims. Mr Rawson also gave evidence that his attitude to such claims was one of hostility.[5] This evidence as to the attitude of Blue Ridge was supported by the evidence of Mr Bottrell with respect to his own claim.[6] I accept that such a hostile attitude to WorkCover claims did exist.
[5] T 142
[6] T 96
32 I further accept that at the time of the happening of the incident Mr Rawson's position at Blue Ridge was not secure having regard to the proposed closure of the Noojee mill. This insecurity was evidenced by Mr Rawson's eventual demotion to forklift operator when he took up his position at Sale. In these circumstances I accept the plaintiff's evidence as to her reason for not lodging a WorkCover claim. I do not find that the failure to lodge a claim impacts adversely upon the issue which arises as to the happening of the incident or its ramifications.
33 It is common ground that the plaintiff suffered from a number of coincidental medical conditions including migraines, sinus problems, thyroid problems and ovarian cysts which caused her considerable pain and discomfort and that these conditions pre-existed the happening of the incident for a considerable period of time.
34 In respect of these conditions the plaintiff sought regular medical treatment from Neerim South Medical Clinic and the plaintiff's attendances at the clinic were the subject of considerable cross-examination on behalf of the defendants. It is not in issue that for many years the plaintiff had been prescribed and had taken pain management medication in the form of Panadeine Forte and Tramal. These two forms of medication are well recognised as being prescribed for the management of significant levels of pain and as being efficacious in that management.
35 The plaintiff's medical records reveal that the prescription of Panadeine Forte and Tramal was a regular feature of the plaintiff's medical management from at least December 2000 through to May 2003 whilst the plaintiff was a patient at the Neerim South Medical Centre,[7] and from January 2003 through to July 2003, during which time the plaintiff was a patient at the Curalo Medical Clinic in Eden.[8]
[7] PCB 99a-123
[8] Defendants’ Court Book (“DCB”) 65-75
36 Notwithstanding the fact that the plaintiff was a regular attendee at the Neerim South Medical Clinic during the months and years following the incident of October 2001, the medical records of that clinic contain no history of the plaintiff complaining of back-related symptoms during the period between her presentation on 30 October 2001 and 3 February 2003, at which time a history of "back pain ongoing", was taken.[9]
[9] PCB 120
37 Although during this period various entries are recorded in the medical records which note the plaintiff as suffering from pain, the nature of those entries is not such as to allow me to conclude that the complaint of pain was related to the condition of the plaintiff's back.
38 I note that throughout this time the plaintiff was being prescribed Panadeine Forte and Tramal and that issues were being raised as the plaintiff's addition to these medications. Whilst the plaintiff gave evidence that following the incident she made complaints to her doctors that she was suffering from back pain and that these complaints were not noted in her medical record, I am not satisfied on the balance of probabilities that such complaints were in fact made by the plaintiff, at least on a regular basis.
39 I note that histories of back-related symptoms were recorded by the doctors practising at the clinic on 12 February 2001,[10] 30 October 2001[11] and 3 February 2003.[12] Having regard to these notations, the plaintiff has not satisfied me on the balance of probabilities that the practice at the clinic was one which involved a failure to regularly note symptoms of back pain notwithstanding the fact that these symptoms were reported by the plaintiff. Having regard to the generally poor standard of the histories recorded in these notes however, I do not find that the plaintiff made no such complaint.
[10] PCB 99b
[11] PCB 104
[12] PCB 120
40 It was put on behalf of the defendants that I could not be satisfied in the absence of the plaintiff making complaints to the Neerim South clinic of back pain, that symptoms of back pain were a regular feature of the plaintiff's life following the incident. In response it was submitted on behalf of the plaintiff that the medical records in question were hardly perfect and that the plaintiff's evidence, together with that of Mr Rawson and the lay evidence called by the plaintiff provided considerable support for the plaintiff's evidence that her back pain did not resolve following the incident.
41 I have previously stated that I accept the evidence given by Mr Bottrell and Ms Halligan. Accepting as I do their evidence as to the plaintiff's ongoing complaints of pain following the incident, any doubt that I should accept the evidence of the plaintiff and Mr Rawson on this issue is resolved in favour of accepting that evidence (although I do find that Mr Rawson had a tendency towards exaggerating the plaintiff's symptoms and disability). Combining this evidence with the evidence which I accept, that the plaintiff purchased a lumbar support cushion on 4 November 2001[13] and thereafter used it by reason of the presence of continuing symptoms,[14] I am satisfied on the balance of probabilities that the plaintiff did suffer from continued symptoms of back pain following this incident.
[13] Exhibit A
[14] PCB 29-34
42 In arriving at this conclusion that the plaintiff's symptoms were continuing, I am also influenced by the notation in the medical records which is consistent with the presence of an ongoing condition: see, for example, the notation of 3 February 2003 namely, "Back ache ongoing",[15] the medical report of Dr Calumbis dated 14 July 2003 which describes the plaintiff as, "Suffering from lower back pain 'for a long time'"[16] and the report of Mr Justin Pik dated 26 August 2003 which reports the plaintiff as suffering from, "Low back pain on and off for many years".[17]
[15] PCB 120
[16] PCB 42
[17] PCB 46
I am of the view that it is likely that the use by the plaintiff of significant levels of prescription pain-controlling medication in the form of Panadeine Forte and Tramal consistently following the happening of the incident may well have acted to blunt or mask to some extent the symptoms associated with the plaintiff's back condition. Further, that the combination of the use of this medication together with the fact that the plaintiff's duties following her incident were largely clerical in nature provides an explanation;
• Firstly, for the plaintiff being able to continue in her employment notwithstanding the presence of ongoing symptoms and; • Secondly, the failure of the plaintiff to regularly report ongoing symptoms to the doctors at the Neerim South Clinic given the probable amelioration of those symptoms by the medication she was using. 43 It is submitted on behalf of the plaintiff that reports documented in the Neerim South Medical Clinic of hip problems in 2003 should be interpreted by me as being consistent with symptoms being referred from her lumbar spine. In the absence of specific medical evidence supporting such a proposition, I do not accept that I can make such a finding.
44 On the issue of causation, the defendants refer me to the fact that the plaintiff underwent lumbosacral imaging on 2 June 1994 when an x-ray was taken of the plaintiff's lumbosacral spine.[18] On 30 October 1995, when a further x-ray was taken of the plaintiff's lumbosacral spine,[19] and on 16 November 1995, when a CT scan was taken of the plaintiff's lumbar spine.[20] The x-ray of 30 October 1995 and the subsequent CT scan of 16 November 1995 report disc bulging and posterior narrowing at the L4-5 level of the lumbar spine (“the imaging”.
[18] DCB 75
[19] DCB 74
[20] DCB 73
45 The plaintiff gave evidence that she could not recall undergoing any of the imaging. The medical records of the Sharp Street surgery, at whose referral the three investigations were undertaken, have been subpoenaed[21] but go back only as far 29 January 1996. It is not submitted by either party that the records of the clinic between 29 January 1996 and 1 November 1999 reveal the plaintiff to be suffering from any back related symptoms.
[21] PCB 86-91
46 It was submitted on behalf of the defendants that I should regard the imaging as evidence of the presence of a degenerative process which inevitably led without any influence of the incident to the condition which resulted in the surgery performed upon the plaintiff by Mr Pik on 20 May 2004. Further, that I should view the plaintiff's presentation at the Neerim South Medical Centre on 12 February 2001 with symptoms of back pain as part of that process. I am not persuaded by this submission.
47 Having regard to the absence of any record or other evidence that the plaintiff was suffering from ongoing symptoms of back pain in the years that followed the imaging, in combination with the fact that at various times prior to 29 October 2001 the plaintiff was required to perform relatively heavy work such as that which she was carrying out at the time of the happening of the incident and that she did so without apparent problems, I find it is more likely that the condition which gave rise to the investigations was a discrete problem which thereafter was of no further consequence to the plaintiff.
48 In making this finding I do not suggest for a moment that the plaintiff's work was heavy work which she undertook on a continued basis. There was however no challenge to the fact that the plaintiff was required in the course of her employment at the Noojee Mill on occasions to perform work which I regard as being reasonably heavy of the type which she was undertaking at the time of the incident and that in carrying out this work prior to the incident she did not complain of any symptoms of pain.
49 In support of the proposition that the plaintiff was not suffering from symptoms of back pain following the incident, the defendants point to a history taken by Dr Alistair Wright from the plaintiff on 24 March 2003[22] which does not mention the presence of symptoms of back pain. I note that Dr Wright is a consultant respiratory physician and general physician and that he does not appear to have explored the reason for the plaintiff's use of Panadeine Forte for her condition of joint aches and pains which she described to him. The nature of Dr Wright's investigations would appear to have been more related to the plaintiff's general physical health rather than any skeletal problems in which she was suffering. For this reason I do not consider the absence of any notation by Dr Wright in his medical report that the plaintiff was suffering from ongoing symptoms of back pain to be significant.
[22] DCB 71
50 I am satisfied however that the condition from which the plaintiff suffered in her back following the incident was aggravated in the course of activities undertaken by the plaintiff in packing up her household belongings in the course of her move from Noojee to Eden.
51 The plaintiff's evidence on this issue was unequivocal and it was supported by the report of Dr Calumbis dated 14 July 2003 in which he comments,
"She has lower back pain ‘for a long time’ but got worse when she
transferred residence to Eden five weeks ago."[23] (sic)[23] PCB 42
On that occasion Dr Calumbis noted the presence of weakness of anterior flexion of both ankles and thought the plaintiff's presentation was serious enough to warrant referral to Dr Pik, a neurosurgeon practising in Canberra.
52 Whilst Mr Rawson gave evidence that the plaintiff did very little physical work in the course of the subject move, I do not accept that evidence. This evidence was inconsistent with the plaintiff's own evidence and the medical evidence to which I have referred.
53 In summary I am satisfied:
• Firstly, that the plaintiff did suffer an injury in the course of her employment with the first defendant on 29 October 2001 in the circumstances deposed to in paragraph 7 of her first affidavit. • Secondly, that following the incident the plaintiff had ongoing symptoms of back pain which did not disable her from performing her clerical duties but which some symptoms were to some extent ameliorated by the significant levels of prescription painkilling medication which the plaintiff was taking to deal with her other medical problems. • Thirdly, that the condition from which the plaintiff suffered in her back following the incident was exacerbated by activities undertaken by her in the course of moving from Noojee to Eden. 54 The issue which requires determination in these circumstances is whether or not these findings, in conjunction with the medical evidence as to causation, is sufficient for the plaintiff to discharge the onus which she has in establishing that the injury occasioned by the incident is causally related to her present incapacity. I will now consider the medical evidence as to causation.
55 In a report dated 14 June 2007, Dr Janice Nelson of the Curalo Medical Clinic at Eden expresses the opinion that:
"Teresa is suffering from low back pain and sciatica following an injury sustained at Noojee in Victoria while working for Blue Ridge. The injury occurred on 31 October 2001. At that time she was lifting a bucket. The handle came off and she fell against a metal bar. She was able to continue on with light duties for awhile but her back pain and associated bilateral sciatica became progressively more disabling and she has now been unable to work for several years."[24]
[24] PCB 37
56 This statement appears to provide unequivocal support for the relationship between the plaintiff's medical state in July 2007 and the happening of the incident. I was referred however by the defendants to an earlier medical report authored by Dr Nelson on 22 December 2003[25] which comments:
"Teresa Carol Abraham aged 48 years has been a patient of mine since January 2001. She has suffered from multi-level disc disease in the lumbar spine for the last year with central canal stenosis and with radiation to the left leg. She is disabled with chronic pain related to this and is currently unfit for any employment and is likely to be so for the foreseeable future."
[25] Defendants’ Exhibit 2
57 It is submitted on behalf of the defendants that the statements made by Dr Nelson in each of these two reports are at odds and that they call into question the supportive comment made by Dr Nelson with respect to causation in her first report. I accept this submission.
58 I have been provided with a copy of the medical records of the Curalo Medical Clinic. The first presentation of the plaintiff to Dr Nelson recorded in those records appears to be 8 January 2002. It is clear at the time of the incident the plaintiff was attending the Neerim South Medical Centre at Noojee and that she reported to that centre on the day following the accident.
59 The first record that I am able to locate of the plaintiff complaining to any of the medical practitioners at the Curalo Medical Clinic of symptoms of back pain is an entry in June 2003 which although being an entry with respect to left hip pain, I accepts as submitted on behalf of the plaintiffs was likely to be referred pain from the plaintiff's back having regard to the diagnosis of the disc protrusion which was made shortly thereafter.[26] These dates call into question the statement made by Dr Nelson that the plaintiff had been her patient since January 2001.
[26] DCB 68-69
60 Finally, I note a statement made by Dr Nelson in her report dated 11 February 2009 to the effect that the plaintiff had suffered from low back pain since 2003 following an injury in her work place. Again, this appears to contradict the statement made in her report dated 14 June 2007 that the plaintiff had sustained an injury on 31 October 2001.
61 In these circumstances I am not satisfied that the statement made by Dr Nelson in her reported dated 14 June 2007 provides persuasive support for the causal relationship between the October 2001 incident and the plaintiff's subsequent need for spinal surgery.
62 I have not been provided with any medical reports from the doctors of the Neerim South Medical Clinic who examined the plaintiff during the years immediately before and after the subject incident. The defendants have exhibited a referral letter from Dr Elizabeth Fitzgerald dated 9 July 1999 which refers to the plaintiff suffering from fibromyalgia. This condition is not described as a regular feature of the plaintiff's presentation and I do not consider this report to be of any assistance one way or another in determining the issue which is before me.
63 In a medical report dated 14 July 2003, Dr Willy Calumbis makes the statement to which I have referred earlier namely that:
"The plaintiff has lower back pain 'for a long time' but got worse when she
transferred residence to Eden five weeks ago."[27] (sic)[27] PCB 42
64 This statement provides support for the contention that the plaintiff's back pain, which I have found was caused by the incident, continued thereafter and was aggravated by the activities that were involved in her move to Eden. That those activities were not the sole cause of the plaintiff's complaint, but they in fact aggravated the condition which was previously present. It was the result of this aggravation that the plaintiff was referred to Dr Pik.
65 Mr Stanley O'Loughlin, orthopaedic surgeon, in a report dated 28 July 2008 expresses the following opinion and diagnosis:
"In my opinion Ms Abraham has sustained an L4-5 disc injury as a direct result of a fall that occurred at work on 21 August 2001 when she struck her back. Despite the severe pain, she attempted to remain at work as long as possible.
She eventually required spinal surgery in the form of a decompression and L4-5 fusion but unfortunately this has not been successful."[28]
[28] PCB 60
66 I note that in these comments a wrong date is ascribed to the happening of the incident. I do not place any weight on the fact that the date was misdescribed by Mr O'Loughlin. I do note however, that in expressing his opinion and diagnosis, Mr O'Loughlin was not made aware of the results of the x-rays and CT scan which were undertaken in 1994 and 1995 and that he obtained from the plaintiff a history of continuing to work in the presence of ongoing back pain and pain radiating into her left leg.
67 The history of pain radiating into the left leg however, was not borne out by the evidence as having developed during the period in which the plaintiff continued to be employed for Blue Ridge but came on after in fact she had retired from that employment upon accepting a redundancy package. Further, Mr O'Loughlin was not made aware of the history and the opinion of Dr Calumbis that the plaintiff had suffered an exacerbation of her symptoms in 2003 in the course of her move to Eden.
68 Mr O'Loughlin provided a supplementary medical report on 7 April 2009. Again, at the time of authoring that report, Mr O'Loughlin was not aware of each of the matters to which I have referred. In the course of that report he commented:
"To answer your specific question about a link between the incident of October 2001 and the surgical treatment performed on 24 May 2004, I consider there is a direct link in that the injury of 21 October 2001 produced an L4-5 disc injury which did not respond to conservative treatment and eventually required surgical treatment."[29]
[29] PCB 63b
69 Dr Amanda Sillcock, occupational therapist, in a report dated 7 August 2008, accepts the relationship between the incident in October 2001 and the condition with which the plaintiff presented at the time at which she was examined by Dr Sillcock on 23 July 2008. I note however that Dr Sillcock was not provided with the material to which I have referred in discussing the briefing of Mr O'Loughlin.
70 Further, I note that Dr Sillcock was provided with the report of Dr Janice Nelson dated 14 June 2007 which contained the statement supportive of causation which I have dismissed and that she did not see the report of Dr Nelson of 22 December 2007 which contained a different comment as to the causation of the plaintiff's symptoms.
71 Finally, Dr Sillcock was provided with a history by the plaintiff that approximately six months after her injury, her pain commenced radiating down her left foot to her calf and she had developed numbness and paresthesia in her foot. The plaintiff however accepted in cross-examination that this history was inaccurate and that these symptoms came on after her move to Eden.
72 The final medical report which deals with the issue of causation is that of Dr Roy Karna which is dated 25 July 2008. In his report, Dr Karna declined to express an opinion as to the causal relationship between the plaintiff's disability at the time at which he assessed her and the incident the subject of this proceeding. He commented:
"Clearly, the relevance of her back problem and surgery thereof to the original incident is something I cannot comment upon and requires review of contemporaneous medical records. Whilst the scenario as she describes is theoretically feasible, one notes that it took time for the radiology to be performed and for symptoms to evolve to a point that surgery was considered. She does have degenerative changes in the lumbar spine which presumably were longstanding. Suffice to say, there is no radiology of her lumbar spine pre-2001 to make an accurate assessment of her pre-morbid state."[30]
[30] DCB 38
73 He commented further:
"I cannot provide you an opinion as to whether or not her presentation which resulted in surgery was as a result of the injury as described, and as indicated I suggest that a review of contemporaneous notes of practitioners who were involved at the time and investigations of the circumstances thereof may be able to sort this situation out."
74 It is clear that at the time at which he reported, Dr Karna was not provided with the material to which I have referred as being missing when both Mr O'Loughlin and Dr Sillcock were briefed.
75 The issue that arises for consideration is whether in the circumstances of the present case the opinions of Mr O'Loughlin and Dr Sillcock, which provide considerable support to the plaintiff's case with respect of causation, are undermined by reason of the differences between the evidence which has been adduced in the course of the application and the material considered by them in expressing their opinions, such that the support which those opinions provide to the plaintiff's case as to causation is devalued significantly.
76 In considering this issue I have been guided by the comments made by Ashley AJ in Allsmanti Pty Ltd v Ernikiolis.[31] In opposing this application, the defendants were well aware of the material which it is now submitted impugns the opinions of Mr O'Loughlin and Dr Sillcock. It had the opportunity of putting that material to those doctors by requiring their attendance for cross- examination. Further, the material could have been placed before Dr Karna for his comment.
[31] [2007] VSCA 17 (17 February 2007)
77 In circumstances in which the defendants have elected not to adopt that course, I do not feel that I should disregard the opinions of Mr O'Loughlin and Dr Sillcock as to causation which assist the plaintiff's case, notwithstanding that I take the view that the force of those conclusions is to some extent undermined given the circumstances in which the opinions were expressed.
78 My position in this regard may have been different if I formed the view that it would inevitably have been the case that had Mr O'Loughlin and Dr Sillcock been acquainted with the material in question, their opinions would have been influenced to the detriment of the plaintiff's case. I am not convinced that this would inevitably have been the case.
79 Given the findings that I have made as to the ongoing nature of the plaintiff's symptoms and the fact that the severity of those symptoms was most likely masked by the medication which the plaintiff was using, the evidence is consistent with the incident being responsible for an injury of consequence and of something of more greater significance than a mere muscle or ligamentous strain from which complete recovery would have been expected within a relatively short period of time. The chronic nature of the plaintiff's symptoms may well be suggestive of the presence of discal pathology which may have rendered the plaintiff's lumbar spine vulnerable to the exacerbation of the plaintiff's symptoms which occurred in the course of the move to Eden. These issues of course have never been explored.
80 In the circumstances I take the view that the plaintiff is entitled to rely upon the opinions of Mr O'Loughlin and Dr Sillcock in asserting her case as to causation and that these opinions provide the plaintiff with considerable assistance in that task.
81 The issue as to which the plaintiff bears the onus in this application is to satisfy me that the incident was a cause of the incapacity from which she presently suffers, not that it was the sole cause. If the incident materially contributed to the plaintiff's incapacity then the fact that her incapacity may have a multiplicity of causes is of no moment: (see Grech v Orica Australia Pty Ltd & Anor.[32]
[32] (2006) 14 VR 602 (31 August 2006)
82 Having regard to:
(i) the factual findings I have made; (ii) the opinions of Mr O'Loughlin, Dr Sillcock and Dr Calumbis which support causation in the case; (iii) the absence of any persuasive evidence which supports the contention that the incident was not a cause of the plaintiff's incapacity, I am satisfied on the balance of probabilities that the plaintiff has established the causal relationship between the incident, the surgery which was undertaken by Dr Pik on 20 May 2004 and the incapacity from which she presently suffers.
83 The medical assessments of Mr O'Loughlin, Dr Sillcock and Dr Karna establish that the plaintiff has now been rendered effectively unemployable by reason of her disability. In the circumstances, I accept that the plaintiff has suffered an injury of sufficient consequence to warrant making an order that the plaintiff have leave to commence proceedings to claim damages for both pain and suffering consequences and the economic consequences associated with the incident the subject of this application.
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