Ademi v Speciality Chickens Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-05153

MAZIDE ADEMI	Plaintiff
v
SPECIALTY CHICKENS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2013 and 22 January 2014 (all written submissions to be filed by 28 February 2014)
DATE OF JUDGMENT:	23 May 2014
CASE MAY BE CITED AS:	Ademi v Speciality Chickens Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 687

REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION

Catchwords: Serious injury – low-back injury – whether injury occurred – whether aggravation of pre-existing injury – if injury occurred, whether affected by subsequent events – pain and suffering and loss of earning capacity issues – relevant legal principles

Legislation Cited: Accident Compensation Act 1985, s134AB; Transport Accident Act 1986, s93

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Forder v Hutchinson [2005] VSCA 281; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; Dahl v Grice [1981] VR 513; Spence v Gomez [2006] VSCA 48; Altona Bus Lines v Lococo [2002] VSCA 159; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring common-law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect to the low-back injury suffered by her on 26 December 2008 in the course of her employment with the defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Churilov	Zaparas Lawyers
For the Defendant	Mr D Myers	Minter Ellison

HIS HONOUR:

1 By way of Originating Motion issued on 24 October 2012, Mazide Ademi (“the plaintiff”) seeks, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), leave to bring common-law proceedings to recover damages for a back injury (“the injury”) arising out of or in the course of her employment with Speciality Chickens Pty Ltd (“the defendant”) and in particular, on or about 26 December 2008.

2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect to the injury.

3 Initially, the plaintiff was to also rely on injuries to both shoulders and/or both elbows, but such claim was not prosecuted. Furthermore, as I have recorded, the Originating Motion not only relied on a specific injury on 26 December 2008, but injury throughout the course of her employment with the defendant. During addresses, counsel for the plaintiff asserted that he would reserve his position in relation to the general allegation.[1] Both parties filed written submissions and I have taken the view, on reading the submissions of the plaintiff, that the plaintiff only relies on injury arising out of or in the course of her employment with the defendant on or about 26 December 2008.

[1]Transcript (“T”) 129, L31 – T130, L2

4 The plaintiff gave viva voce evidence and was cross-examined. Both parties tendered various documents.[2]

[2]See Annexure “A”

Relevant legal principles

5 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the back injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]

[3]See s134AB(19)(a) of the Act

6 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:

“serious injury means—
(a) permanent serious impairment or loss of a body function … .”

7 The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine.

8 In order to succeed, the plaintiff must prove on the balance of probabilities, that:

(a)the back injury suffered by her arose or out of or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[4]
(b)the back injury and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)the “consequences” of the low-back injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is “when judged by comparison with other cases in the range of possible impairments be fairly described as more than significant or marked, and as being at least very considerable”.[6]
This test is sometimes referred to as the “narrative test”.

[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622 at paragraph [11]

[5]See s134AB(38)(b) and (c) of the Act

[6]See Barwon Spinners Pty Ltd & Ors Podolak (op cit) at paragraph [33]

9 In relation to “loss of earning capacity consequences”, the plaintiff, in addition, has a specific burden[7] to establish:

(a)as at the date of hearing, she has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of the s134AB(38) of the Act;[8]
(b)and after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[9]

[7]See s134AB(19)(b) and (38)(b) and (c) of the Act

[8]See s134AB(38)(e)(i) of the Act

[9]See s134AB(38)(e)(ii) of the Act

10 In determining the application, the Court:

(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken or counted for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)must make the assessment of “serious injury” at the time the application is heard;[11]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[12]
(d)notes that s134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
In the event that a worker satisfies sub-paragraph (i), but not sub-paragraph (ii) of s134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. The worker who satisfies the loss of earning capacity requirement of s134AB of the Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”;[13]
(e)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[14]
[10]See s134AB(38)(h) of the Act
[11]See s134AB(38)(j) of the Act
[12]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
[13]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and in particular at paragraphs [60]-[64]
[14]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

The issues

11 When queried as to what were the issues, counsel for the defendant referred to the Statement of Issues and also advised the Court that the issues included:

(a) Whether any injury suffered by the plaintiff on or about 26 December 2008 caused any permanent consequences which satisfied the narrative test. He highlighted that the plaintiff had been diagnosed with a disc prolapse at the L5-S1 level in 1991 which gave rise to symptoms and time off work. He also highlighted that the records of the plaintiff’s general practitioner revealed that the first complaint of any low-back pain by the plaintiff was on 5 October 2009 – well after the date of the alleged injury. Furthermore, such attendance followed on from an incident where she was lifting eggs during the course of her employment with the subsequent employer;

(b) Any injury suffered by the plaintiff has not “stabilised” – in this respect, he highlights the medical evidence which supports that the plaintiff should undergo further back surgery.

The evidence of the Plaintiff

12 The plaintiff gave evidence that she was not currently employed. She adopted her affidavits sworn on 10 April 2012 (“the first affidavit”) and on 11 October 2013 (“the second affidavit”) to be “true and correct”.[15]

[15]Transcript (“T”) 34, L9-15

13 By way of her first affidavit, the plaintiff gave the following pertinent evidence:

· She is a forty-six-year-old woman who was born in Macedonia but came to Australia when she was three years old.

· She is a married woman with three children, all of whom are adult.

· She left school during Year 10 and has had the following employment history:

(a) She underwent a hairdressing course for about fourteen months, after which she worked at Donna Hair Fashion in Brunswick for about four months;

(b) She then found work as a catering assistant at St Vincent’s Hospital, where she worked for four years;

(c) She then worked as a kitchenhand at Montefiore Homes in St Kilda for about eight years, after which she did not work for a period of about twelve months in order to look after her children;

(d) After such break, she worked part time as a delicatessen assistant with Goldy’s Tuckerbag Supermarket in Thomastown for about a year, and thereafter worked for six years full time;

(e) After, taking off a further twelve months’ work, during which time she and her husband bought a house at Mill Park Lake in South Morang;

(f) In July 2001, she commenced employment with the defendant as a full-time retail assistant. She worked in the following retail outlets:

§ For the initial twelve months she worked as a retail assistant in the chicken shop in Plenty Valley;

§ She then moved to work at the Northland chicken shop, where she was situated for five months as the assistant shop manager and then seven months as the shop manager;

§ She was then moved to work at the chicken shop at The Pines in Doncaster, where she effectively worked as the shop manager for about six months;

§ She then was moved to the Keilor shop, where she worked as the shop manager for about five years;

§ In or about March of April 2008, she was transferred at her request, to relieving staff;

§ When working on relieving staff, she was no longer a manager, just a normal retail assistant. She performed relieving work at South Morang (close to her home) and later, in March or April 2008, she was transferred to Northland for a few weeks, and later to Bundoora for a few weeks, before transferring to a new shop in South Morang in May 2008.

Although the system of work at each of the defendant’s chicken shops was much the same, the Keilor outlet was a particularly busy shop and sold about 300 kilograms of chicken a day. Her employment duties involved lifting and manoeuvring rotisserie rods of chickens, lifting and manoeuvring trays of chickens weighing between 1 and 6 kilograms and manoeuvring mobile racks with four caster wheels which contained the trays of chicken.

· She had intermittent back pain from about 2004.

· She also had pain in her right elbow in 2006 and she was referred to Dr Gya, for elbow pain, and he gave her a number of injections into her left elbow.

· She continued to have discomfort in her back, both elbows and subsequently, both shoulders, but required no time off work until 2009.

· In early 2008, the pain in her left elbow worsened and Dr Baglar, her general practitioner, referred her back to Dr Gya in July 2008 for a further injection into the left elbow, which gave some temporary improvement, after which there was further worsening of her pain in the left elbow.

· Dr Baglar then referred her to the orthopaedic surgeon, Mr J Owen, who she saw in November 2008. He suggested an operation on her left elbow.

· She describes the circumstances of her injury on 26 December 2008 in the following terms:

“On the 26^th December, 2008 I was working at the new South Morang store. I answered a phone call from the manager who wanted to speak to Chantelle, another of the workers in the shop. I walked around the bench and slipped on the floor which had just been hosed down. The floor had to be hosed down every day. I had slipped and fallen at Keilor about three times. As I slipped and fell, I hit my right shoulder on the wall and then landed on the floor on my backside. I had a bruise on my right shoulder and some pain in my back and right leg. I had had intermittent right leg pain before the fall, but after the fall I had some discomfort in the right leg all the time. I continued to work on with the discomfort.”[16]
[16]See exhibit A at page 11 PCB
(my emphasis).

· She ceased work with the defendant on 13 February 2009 in order to undergo an operation on her left elbow at the La Trobe Private Hospital. She was in hospital for two days and was discharged with her left arm in a sling, which she wore for about two months. During this period, her left shoulder became increasingly stiff and painful, although the operation substantially improved the pain in her left elbow. She commenced physiotherapy in March 2009, which improved her shoulder discomfort.

· Because she could not return to work with the defendant, she resigned her employment on 24 April 2009, because she thought it “best to ease the strain on my back and arms and find alternate employment”.[17]
[17]See exhibit A at page 12 PCB

· In May or June 2009, she commenced work as a part-time delicatessen manager at the IGA Supermarket in Fairfield, working six hours a day, three days a week.

· She did not work in November 2009 because of renovations to the supermarket, but resumed work in December 2009 full time as the fresh food manager.

· She performed the ordering and allocated the staff roster and helped out with retail assistance as needed. She continued to have pain in her shoulders and elbows (worse in the right shoulder and elbow) and also back pain.

· Dr Baglar arranged for an ultrasound of her right elbow on 2 October 2009 and a CT scan of her back on 9 October 2009. Dr Baglar then referred her back to Mr Owen on 11 March 2010 and he arranged for an x-ray and ultrasound of the right shoulder on 23 March 2010, after which he suggested an operation to both her right shoulder and elbow. She comments that she was “uncertain about this as my back pain was by far my worst discomfort”.

· Dr Baglar referred her to the neurosurgeon, Mr Jithoo, in respect of her back pain. When seen by him on 16 March 2010, he arranged for an MRI scan of her back to be undertaken on 23 March 2010. On 4 May 2010, he arranged for an injection into her lower back, which caused some improvement over a few weeks, after which the back pain returned.

· Mr Jithoo then suggested she needed a back operation, after which there was some delay in obtaining approval from WorkCover and ultimately, the surgery took place on 24 February 2011 at the Knox Private Hospital.

· The surgery took away the pins and needles’ feeling she had in her right leg but she continued to have back pain and a sharp shooting pain down her right leg about twice a week.

· On the night commencing 30 December 2011, she felt some increasing back discomfort. In particular, she describes the following:

“In the morning I went to make some coffee and coughed and had a lot worse back pain and both my legs seemed to give way and I fell. I used some Indocid suppositories and saw Dr Baglar who gave me further pain killers. Dr Baglar then made a further appointment for me to see Mr Jithoo on the February, 2012. Mr Jithoo arranged an MRI of my back and subsequently suggested that I undergo further surgery. I have decided not to go ahead with further surgical intervention because I don’t feel capable of going through the stress of surgery again.”[18]
[18]See exhibit A at page 13 PCB

· She continues to see Dr Baglar at least once a month and attends physiotherapy and hydrotherapy, each twice a week. She currently takes Mersyndol Forte at night and Nurofen Plus every four hours for back pain.

· She has pain in her low back all the time, and several times a week she gets a sharp pain down her right leg.

· Since 31 December 2011, she has also had occasional pain in her left leg and for several days after that date, she had pain in both legs all the time, but this discomfort is now intermittent.

· The pain in her back is a “hot burning sensation” made worse with sitting for more than forty minutes but improved if she walks about.

· If she is on her feet for more than an hour, she has increased back pain, although her physiotherapist encourages her to walk at her own pace for up to an hour. She walks most evenings for about forty-five minutes around Lake Boulevard near her home.

· She can only walk slowly and avoids anything likely to twist or jar her back. She avoids walking on uneven ground (which causes worse back pain) and on occasion, uses a walking stick.

· She can drive her automatic car for up to an hour, then needs to stop because of increasing back and sometimes leg pain. She has to be careful getting in and out of her car as bending or twisting her back too far makes the back pain worse.

· She tries to sleep on her side as this is more comfortable than lying on her back and an easier position from which to get out of bed. She wakes several times during the night because of back pain and when this occurs, she usually takes Nurofen Plus.

· In the morning, her back is always stiff and painful when she tries to move, although a hot shower first thing does help.

· She continues to have discomfort in her shoulders and elbows on the right side and her right shoulder causes the most discomfort.

· She lives at home with her husband, son, youngest daughter and mother-in-law, with whom she shares the cooking. Her mother-in-law does all the vacuuming and mopping now as the bending and pushing involved with those activities cause her too much back pain. Such tasks would also cause right shoulder discomfort.

· She is of Albanian descent, and prior to such back injury, she and her husband used to attend various dinner dances arranged by an Albanian association. Whereas she used to participate in folk dancing, she cannot do this now and she rarely goes to such activities as they involve sitting and standing for lengthy times.

· She is frustrated at her ongoing back discomfort and finds it hard to relax, is depressed at times, causing her to become teary and feels guilty that she cannot be a good wife and mother as she was. Tensions have been caused by a diminution in sexual relations.

· In particular, she states:

“I believe I injured my back and arms as a result of performing frequent heavy movements and operations in the course of my employment with the employer, handling containers and rods of chickens and chicken pieces and also slipping and falling as I did on the 26 December, 2008.”[19]

[19]See exhibit A at page 16 PCB

14 By way of her second affidavit, the plaintiff gave the following pertinent evidence:

· She is separated from her husband and now lives in Keilor Downs with her children, her sister and her sister’s two children.

· In or about late 1991, when working for Montefiore Homes, she suffered a low-back injury as a result of a resident falling on her back, pushing her towards one of the tables.

· She felt pain in her low back and subsequently, felt referred pain into her right buttock and leg, and was referred by her general practitioner, Dr Ristevski, for a CT scan.

· She was referred to a back specialist, who recommended that she lose weight, and after a few months off work, she returned on reduced hours doing light duties. In particular, she states:

“I believe that I continued working on reduced hours and modified duties during the course of 1992. Eventually, my lower back pain eased and I was able to perform manual work in the vegetable preparation section. I recall having to carry heavy bags of vegetables for that purpose. I continued having intermittent lower back pain and I was careful in my movements so as not to aggravate it. I also tried not to do too much heavy lifting, bending and twisting. At times, after a busy day at work, I felt referred pain into my right buttock and leg which resolved after some rest.
I do not recall receiving any specific ongoing treatment for my lower back pain. I may have taken some medication on and off for a period of time. I also did some back exercises for a period of time as shown to me by a physiotherapist. I did not find the physiotherapy treatment itself helpful and I stopped having it.
My lower back continued to improve during the course of 1992, as I continued to lose weight, and I wanted to return to my pre-injury duties. However, I believe that my employer at the time did not provide such duties to me.
After some time following this lower back injury I recall that I was able to perform the required housework, cooking and shopping. I also looked after my young children. I took care with respect to bending, lifting and the heavier aspects of housework, such as vacuuming. I tried not to do such activities on a repetitive basis. I believe that for a period of time I also avoided gardening activities so as not to cause an aggravation of my lower back pain.
I recall that for a period of time I had difficulty sleeping.
I believe that with the further passage of time my lower back pain continued to ease off. As my lower back did not cause me any significant problems I resumed performing the heavier aspects of household chores.”[20]
[20]See exhibit A at page 19 PCB

· She does not recall experiencing any significant difficulties in the performance of her work duties or activities of daily living over the years up to the commencement of her employment with the defendant. In particular, she states:

“…I believe that my back felt good and I was not troubled by lower back pain on an ongoing basis. On occasions, I had some pain symptoms in my lower back and I believe at those times I have attended my General Practitioner. I believe that I may have been prescribed some medication at those times, but such attendances were infrequent.
Prior to the commencement of my employment with the Defendant I was functioning well and I believe that I was not restricted by my lower back pain.
I refer to paragraph 2 of my earlier Affidavit and say that out of the 6 years that I worked for Goldies (sic) Tuckerbag supermarket I did office duties for 2 years. Prior to commencing work for the Defendant I worked as an office cleaner for about 1 year.
I refer to paragraph 11 of my earlier Affidavit and say that following the fall on 26 December 2008 I experienced persisting lower back pain with referred pain down my right leg and into the foot. I also experienced quite severe pain in my right shoulder.”[21]
[21]See exhibit A at page 20 PCB

· Her work at the IGA Supermarket involved stock control and ordering and was “much easier” than her work with the defendant, which involved bending and heavy lifting.

· Whilst continuing to work for IGA, she continued to experience pain in her right shoulder and low back, and in or about June or July 2009, the pain in her right elbow worsened due to work duties at that time, including slicing of meat with a meat slicer.

· In or about October 2009, she felt increased lower back pain after bending down to stock a shelf with eggs.

· She experienced worsening right shoulder and right elbow pain in January 2010 as a result of using a meat slicer, and believes that she was referred to Mr Owen again in March 2010 when he arranged for her to undergo a cortisone injection in her right shoulder, but which was of no benefit.

· She continues to see Dr Baglar about once per month, takes two tablets of Mersyndol Forte every second night, as well as about six tablets of Nurofen per day. If the pain is particularly severe, she takes Indocid and also valium on occasion to help her sleep.

· She continues to have the same difficulties with her low back as detailed in the earlier affidavit and in particular, experiences referred pain from her low back into her right leg on average once per day, although it is less intense than it was pre the surgery.

· She has assistance from her sister in performing household duties and she also continues to be limited in her social activities.

· She was earning about $783 gross per week in the financial year 2008-2009.

The cross-examination of the Plaintiff

15 Under cross-examination, the plaintiff gave the following pertinent evidence:

· She accepted that the injury in 1991 kept her off work from 23 November 1991 until May 1992, after which she commenced working two days a week performing catering assistant work with no repetitive bending or lifting.

· She further accepted that pain was continuing in June 1992 and that she needed assistance from her husband at home.

· She had right buttock pain and was referred at that time to the orthopaedic surgeon, Mr Hooper, and was taking Panadeine Forte and Naprosyn.

· She accepted that the CT scan which was taken on 6 December 1991 showed evidence of an L5-S1 disc prolapse and she discussed such disc prolapse with Mr Hooper and her other treating doctors.

· In November 1992, she was still having problems with her back, had difficulties lifting weights of more than 10 kilograms or performing repetitive bending, sitting or standing.

· She accepted that she saw a Dr Kennedy in November of 1992, at which time she told him she was off work for three or four months because of low-back pain and pain down her right leg. The pain radiated into the buttock and into the thigh when she was “sneezing and coughing”.

· She returned to light duties but then “got up to normal duties” but continued to take the Panadeine Forte if the pain was severe.

· In 1993, she had ongoing right buttock pain and pain around her right knee, which caused her to give up gardening at that time to protect her back.

· At or about that time, she was assessed to have a 14 per cent permanent impairment and made some claim, for which she received some money for permanent impairment of the back.

· When queried as to why she did not tell any of the doctors who examined her in relation to the subject case about her earlier prolapse, she stated:

“Because my pain wasn’t there any more”.[22]
[22]T37, L2

· She had no certificate for any time off work following the fall on 26 December 2008 and worked, she thinks, for a “couple of days”,[23] after which she was off work for about one week on a pre-planned holiday.
[23]T39, L4

· She came back to work after that week and performed her normal duties.

· She accepted that she did not consult her general practitioner but “controlled” such pain with medication, although not prescribed medication.

· She accepted that she attended her general practitioner on 5 October 2009 complaining of low-back pain with burning, with the history that she lifted a box of eggs at work two days earlier, on 3 October 2009.

· She accepted that at the time of that examination, she had a restricted range of movement in her back and that she was prescribed an analgesic which she thought was Mobic. Furthermore, her general practitioner prescribed some time off work, which she took, and she was also referred for a CT scan.

· She continued to work, and the Mobic eased the pain a bit, and after the CT scan, she was told that she has a moderately large right posterior disc prolapse. The following evidence was given:

Q:“And you would have known what he was talking about because you had already been through the prolapse disc in 1991?---
A:Yes, but till 1991, up until then I was fine, I controlled it all, I thought there was nothing wrong with my back.”[24]
[24]T41, L12-16

· Her general practitioner referred her to the neurosurgeon, Mr Jithoo, who arranged an MRI scan, which demonstrated that the L5-S1 disc was impinging on her right S1 nerve root. She ultimately underwent surgery in February 2011.

· She identified her letter of resignation from the defendant dated 27 April 2009.[25]
[25]See exhibit 1

· She accepted that when she saw Mr Jithoo, she inadvertently told him that she had had an injury in 2009 which was in fact in 2008. She accepted that she did not say anything about lifting the box of eggs, although she told her general practitioner about the egg incident.

· She accepted that the back surgery relieved her pain in her right leg and that her low-back pain persisted, and after a bout of coughing in the last days of 2011, her pain was escalated.

· Because of such escalation of pain, she underwent a further MRI scan, revealing a recurrent large L5-S1 herniation.

· She accepted that prior to 5 October 2009, she had made no complaints of back pain to her general practitioner, although she had attended him reasonably frequently with complaints of pain in her elbows and, to a lesser extent, her shoulders.

· When queried about what appeared to be deterioration after the “egg incident”, she stated:

“I always had pain but I beared it to a limit. After the egg incident I think it just probably was meant to happen and that's where it hit me, that's when it hit me but I also waited a whole year before the surgery so I had to bear the pain.”[26]
[26]T48, L8-12

· When she commenced duties with IGA in or about July 2009, she was cleared to perform full duties. In particular, the following evidence was given:

HIS HONOUR:
Q: “Tell me, the job after the chicken place which was the supermarket?---
A:IGA.
Q:Was that something which you had planned to do when you resigned or - - -?---
A:No, no, it just happened after – I was still home and then I was looking in the local paper, I thought look for a new job, I had to get away from all the heavy lifting, repetitive movements so I thought get into another kind of job which was better for me.”[27]

[27]T49, l15-23

16 Midway through the cross-examination of the plaintiff an issue arose as to the interpretation of various notes from a physiotherapist who had treated the plaintiff. At that time, no report was available and issues arose as to what she was actually saying by way of treatment at and around the time of the alleged injury in December 2008.

17 After various discussions between counsel, it was agreed that the matter would be adjourned to allow a report to be obtained from such physiotherapist. I was informed that the physiotherapist was unable to come to Court because she was in an advanced state of pregnancy.

18 The application was resumed on 22 January 2014, at which time was available a report from the physiotherapist, Ms Huong Nguyen, dated 24 November 2013.[28]

[28]See exhibit B at page 63.8 PCB

The further cross-examination of the Plaintiff

19 Under further cross-examination, the plaintiff gave the following pertinent evidence:

· She accepted that prior to December 2008, she had had some pain in her back but she had treated it herself and had sought no particular treatment or obtained any prescribed medication. Furthermore, she had no time off work.

· Again, she accepted, following the alleged injury in December 2008, she made no report to her general practitioner, she had no certificates for any time off work, underwent no x-ray, was not prescribed any prescription medication and continued working full time.

· She went off work for an operation to her arm rather than anything to do with her back, and obtained a clearance after that surgery to work full time from her general practitioner.

· When she obtained employment with IGA, some of her work involved using a meat slicer, which she accepted was repetitive but was not heavy work.

· In relation to bending over and picking up the box eggs, the following evidence was given:

Q:     “Well, you worked for IGA and it was in the time when you were working for IGA that you found yourself bending over to pick up a box of eggs?‑‑-
A:     Yes, that’s right.
Q:     At that time when you found yourself bending over to pick up your box of eggs, you had a hit of excruciating pain?‑‑-
A:     Yes.
Q:     And that that excruciating pain forced you to materially change the way you approached your back in that you went to your GP?‑‑-
A:     I did.
Q:     You got time off work?‑‑-
A:     Yes, I did.
Q:     You got prescription medication?‑‑-
A:     Yes.
Q:     You discussed with your GP the back and your problems and got a referral for a CT scan?‑‑-
A:     Yes.
Q:     Then you got a referral to a surgeon?‑‑-
A:     That's right.
Q:     And an MRI scan and you proceeded then under care from professionals and continued to be under medication?‑‑-
A:     That's right.
Q:     And your job was changed to modified duties?‑‑-
A:     Yes, I think it was. I’m not really sure. I can’t recall.
… .”[29]
[29]T94, L31 – T95, L18

· Although she managed her leg pain prior to December 2008, she had “serious leg pain from then onwards. It was constantly there, in the buttock and in the leg.”[30]
[30]T98, L19-21

· When queried by the Court as to why she did not go to the doctor following the alleged injury on 26 December 2008 and at which time she said her leg pain got worse, the following evidence was given:

Q:     “Yes, Yes, 26 December 2008. Were you making complaints after that about this constant pain?‑‑-
A:     Dr Baglar was off for two weeks. The clinic was closed for two weeks.
Q:     Even allowing for that, after the two weeks?‑‑-
A:     After the two weeks I just managed it. I went to the chemist and bought a bit stronger medication and eventually just sought Hunyh and just told Hunyh about my situation.
Q:     To put it another way then, when you had the egg episode later, the pain was such at that time that it was beyond just you coping with it. You had to go and get treatment at that stage?‑‑-
A:     That’s right, yes.
Q:     I see, so it was certainly worse at that point?‑‑-
A:     Yes.”[31]

· She accepted that she was attending Dr Baglar with complaints about her right shoulder, left elbow and right elbow over the period from December 2008 up until lifting the egg carton or egg box episode.

[31]T98, L30 – T99, L9

The re-examination of the Plaintiff

20 Under re-examination, the plaintiff gave the following pertinent evidence:

· Over the period from the fall on 26 December 2008 up until lifting the box of eggs at IGA, she had “continued pain in the buttock and the leg”.[32]
[32]T105, L13-14

· Such pain was dull pain which was constantly there and she just learned to live with it.

· She confirmed that she told her physiotherapist about the fall and actually showed her bruises on her arm and low back as a result of the fall.

· She resigned her employment with the defendant because there was too much heavy lifting, carrying and repetitive movements which affected her arms and back.

· She started on part-time hours at IGA to get herself “stronger” and did not want to overdo it because of her low-back problem.

· She confirmed that when she started with IGA in about July 2009, she was performing part-time work up until November 2009 (covering the time of the incident lifting the box of eggs), at which time the supermarket was closed down for renovations. On her return, she came back part time, but towards the end of 2009, or maybe early 2010, she went up to 38 hours.

· When queried by the Court as to what followed on from the incident of back injury on 26 December 2008, the following evidence was given:

Q:“I just want to give you the chance to explain this to me because it is reasonably important. It is not - well, it is reasonably important. On one hand, you are painting a picture to me of a pretty significant type of event where you have had continuous back pain and right leg pain from this fall ‑ ‑ ‑?‑‑-
A:Yes.
Q:- - - in December 2008 and on the other hand, the general practitioner who has been your general practitioner, has no record of that from December 2008. Do you understand ‑ ‑ ‑?
A:‑‑-Yeah, I understand what you’re saying, but I just can’t recall. I’m sure I told him that I - I had back pain, but I had surgery with my elbow and whatever.
Q:Elbow. I understand that?‑‑-
A:And I was on medication, so I wasn’t feeling what I was supposed to be feeling until I was totally off medication.
Q:But, and again I think we discussed this earlier, when you come to the subsequent episode, the IGA episode, the egg episode ‑ ‑ ‑?‑‑-
A:M’mm.
Q:- - - at that point, the pain is such, well it is worse, and that is when you do start telling doctors and ‑ ‑ ‑?‑‑-
A:That’s - yeah. I just thought, ‘I’m in trouble here’, and that was just picking up - it was just a small box with three dozen eggs in there, and I thought, ‘I’ve done something really bad now, so I’ – that’s when I literally went and saw the doctor.
Q:Was it as simple as that, in the sense that you were travelling along and then lifting the three dozen eggs and bang, something was made worse?‑‑-
A:Yep.”[33]
[33]T106, L24 – T107, L21

· When she commenced employment with IGA, she obtained a clearance from Dr Baglar, her treating general practitioner, to perform such work, which she considered to be “much lighter” than the work she had previously done with the defendant. When she increased to 38 hours a week with IGA, she had been made the manager of the Fresh Foods Division.

· When queried as to the “timeline” of the various events, the following evidence was given:

HIS HONOUR:
Q:     “I just want to get that timeline right. We have got your resignation from the defendant, then you start with IGA roughly when?‑‑-
A:     About – I am guessing, July.
Q:     July 2009?‑‑-
A:     Yes, I am guessing, yes.
Q:     You have the fall there about October 2009 or the incident with the eggs, I should say?‑‑-
A:     Yes, yes.
Q:     And then at that time you are performing part-time work?‑‑-
A:     Yes.
Q:     And then these renovations take place in November 2009?‑‑-
A:     Yes.
Q:     After the egg episode?‑‑-
A:     Yes.
Q:     While the renovations are going on you are not actually working?‑‑-
A:     No.
Q:     Then you come back some time either late December ‑ ‑ ‑ ?‑‑-
A:     No, it was start of December.
Q:     2009?‑‑-
A:     Yeah, first – first or second week in December, when they opened it.
Q:     You went back as part-time or that 38 hours?‑‑-

A:     Yeah, it was a minimum still. It wasn’t full-time, full-time hours at that stage.
Q:     Then towards the end ‑ ‑ ‑ ?‑‑-
A:     Towards the end of the year ‑ ‑ ‑
Q:     Or maybe early 2010 you went up to the 38 hours?‑‑-
A:     Yes, I went up to the 38 hours, yes.”[34]
[34]T110, L31 – T111, L21

· She returned to work after the incident involving lifting the eggs but because of ongoing pain, she needed assistance from other people in the shop when any lifting or bending was involved.

In particular, the following evidence was given:

Q:     … Considering the two periods, one period from December 2008, the fall, up to the eggs incident, and the second period from the eggs incident to the time you stopped work with IGA, are you able to compare the pain that you were feeling during those periods in your back? Was it different or the same?‑‑-
A:     Pretty much the same, I’m guessing. It’s – I can’t – how can I say, pain is – I might be three days good and then the next five days bad, but I wore it. I beared (sic) with it. I could have six good days and one bad day. It's just depending on how I went.
Q:     Yes?‑‑-
A:     Yes.
Q:     So this pattern you have just described, was it this type of pattern before the eggs incident and after the eggs incident?‑‑-
A:     Yes.”[35]
[35]T113, L27 – T114, L10

· She estimated the weight of the eggs to be less than 2 kilograms and she had just gone and grabbed the carton of eggs from a shelf. At the time of the incident, her back was not bent.

· After returning to full-time work following her low-back problems in the early 1990s, she did not recall taking any time off work in relation to her back prior to the commencement of her employment with the defendant.

The medical evidence from treating doctors relied on by the Plaintiff
(a) Dr H Baglar

21 The plaintiff relies on various reports from her treating general practitioner, Dr Hakan Baglar, dated 21 September 2009, 13 December 2010, 19 April 2011, 21 November 2011, 25 February 2013 and 19 August 2013.[36]

[36]See exhibit B at pages 43 – 56.1 PCB

22 Dr Baglar records that he initially consulted with the plaintiff in late 1995 but after moving his practice, did not again consult with her until 1999, since when she has been one of his regular patients. He notes the following attendances by the plaintiff:

(a) On 19 June 2006, the plaintiff attended him complaining of right elbow pain when working for the defendant. At that time, she was diagnosed with right tennis elbow, and relevant medications were prescribed for her. Later, on 24 October 2006, she was referred to physiotherapy for that condition;

(b) On 11 June 2008, the plaintiff complained of pain in the left elbow and in both wrists. The “impression” of the doctor was that the plaintiff had a recurrence of what he said was her “left” tennis elbow, together with bilateral carpal tunnel syndrome. Ultrasound of her left elbow revealed lateral and medial epicondylitis of her left elbow. Nerve conduction studies were positive for mild medium nerve neuropathy (carpal tunnel syndrome) for her right wrist, although inconclusive for her left wrist;

(c) She was referred later to the orthopaedic surgeon, Mr John Owen, who confirmed the diagnosis and ultimately, performed a surgical release procedure on 13 February 2009. Dr Baglar notes that after the surgery, she stated she resumed physiotherapy and that when she “regained her confidence”, the plaintiff returned to modified duties first, and on 5 July 2009, she returned to normal duties upon her request;

(d) On 29 September 2009, she complained of a right shoulder condition, together with her right elbow (although the right elbow complaints commenced on 19 June 2006). At that time, she had a restricted range of movement in her right shoulder, although the elbow pain was her dominant complaint;

(e) On 26 February 2010, she continued to complain of right shoulder pain and was referred again to Mr John Owen who, on 17 March 2010, found her to have signs and symptoms of rotator cuff impingement. She was injected with cortisone and local anaesthetic combination;

(f) On 5 October 2009, the plaintiff complained of low-back pain with burning, and stated that she had lifted a box of eggs two days earlier (3 October 2009). Dr Baglar noted she had tenderness on her left lumbosacral facet joint and had restrictive range of movements in her lumbosacral spine. Her straight leg raising was reduced on the right side. She was prescribed with analgesics and advised to have rest.

When her back pain continued, she was referred for a CT scan of her lumbar spine, which was undertaken on 9 October 2009. Such scan was reported as follows:

“L3 to S1 scans.
L3/4 disc is intact. Facet joints appear normal. Spinal canal and nerve root canals are clear.
At L4/5 there is a moderately large right posterior disc prolapse extending into the spinal canal and the origin of the right L4 nerve root canal with entrapment of that nerve root and marked indentation on the right anterior aspect of the spinal theca. This prolapse is superimposed upon some mild diffuse annular bulging of the disc. There are also mild facet joint degenerative changes bilaterally but no lateral nerve compression or entrapment.
At the lumbosacral level the disc appears intact. There are marked facet joint degenerative changes bilaterally at the lumbosacral level. Spinal canal and nerve root canals are clear.”[37]
[37]See exhibit C at page 66 PCB

Dr Baglar referred the plaintiff to the neurosurgeon, Mr Jithoo, who had the plaintiff undergo an MRI scan, after which he performed an L5-S1 microdiscectomy with rhizolysis procedure on 24 February 2011.

Dr Baglar noted that following the surgery, most of her pain radiating to her right leg was relieved but she still continued to have ongoing pain in the right buttock, along with a burning sensation in the same place. She was reviewed by the operating neurosurgeon and another MRI scan arranged, which revealed a recurrent large L5-S1 herniation, and Mr Jithoo recommended that she undergo a laminectomy, discectomy and inter-body fusion. Although approval for the second surgery was obtained, it did not go ahead because of the turmoil in her personal life – her marriage was about to end and divorce was imminent;

(g) In his report dated 19 August 2013, Dr Baglar states, in part:

“Her current symptoms are low back pain which does not allow her to stay on the same spot longer than one hour; her right leg pain, although less than her pre-operation pain still radiates down to her knee level and she also has tingling reaching down to her right foot and toes. She still has intermittent right elbow pain, particularly on the outer part of her right elbow. Mazide is also having pain in her right shoulder. The state of her shoulder [is] much better than earlier stages but she is still unable to perform any activity above shoulder level, like combing her hair.
She is using analgesics and anti-inflammatory medications. She is still depressed because of her pain and ongoing disabilities. Her depression naturally deepened due to the stage of depression.
Although it is not possible to consider a patient’s problems in isolation but even if we ignore the contribution of her separation to her depression, purely on the basis of her physical injuries and her emotional reaction to them, Mazide is not fit for her pre-injury employment or for any employment with similar physical demands. As well as I know, she does not have any transferable skills and in my opinion, Mazide is not employable for the rest of her life in any employment for which she could qualify because of her education, experience and training.”[38]
[38]See exhibit B at pages 55-56 PCB

(b) Report of the treating physiotherapist, Ms Huong Nguyen

23 The plaintiff relies on a report from her treating physiotherapist, Ms Huong Nguyen, dated 24 February 2013[39] and also notes from her practice, Healthplus Physiotherapy,[40]

[39]See exhibit B at pages 63.8 – 63.12 PCB

[40]See exhibit H

24 Ms Nguyen records the following attendances:

(a) The plaintiff initially consulted her on 23 September 2008 complaining of bilateral elbow pains which were gradually getting worse. At that time, the plaintiff gave a history of performing forceful repetitive use of her arms during the course of her employment with the defendant and had recently undergone a cortisone injection in the left elbow. Ms Nguyen notes that the treating general practitioner referred the plaintiff for further investigation with the orthopaedic surgeon, Mr John Owen;

(b) On 11 December 2008, the plaintiff complained that she had fallen over at work in mid December, suffering bruises to her left upper limb and pains in her left upper limb and back. At that time, the plaintiff thought the incident would resolve;

(c) On 12 January 2009, the plaintiff complained of “serious back pain” as a result of a fall at work occurring over the Christmas holidays of 2008, and lumbar spine pains which radiated down to her right leg, causing right-sided sciatica.

(d) The notes of Ms Nguyen[41] are difficult to read. However, I consider that such notes reveal complaints of low-back pain and right sciatica on 19 March 2009, 26 March 2009, 8 May 2009, 15 May 2009 and 5 June 2009. There are also notes in relation to back complaints and treatment in 2010 and 2011. There are other attendances in relation to her left and right arm conditions. I also note that as at 19 June 2009, the physiotherapist notes that she is taking it easy with “no heavy lifting”.
[41]See exhibit H

(e) The physiotherapist treated the plaintiff with soft-tissue and joint mobilisation, electrotherapy, dry needling, strengthening, mobilising and stabilising exercises, together with hydrotherapy and education regarding self management. Ms Nguyen reports that in October 2009, the plaintiff’s back pain was further “exacerbated” at a new workplace when she lifted up a carton of eggs. She notes that, together with physiotherapy, the plaintiff had been referred for specialist treatment and ultimately, underwent surgery on 23 February 2011 performed by Mr Jithoo.

(f) Ms Nguyen also notes that on 31 December 2011 (after the surgery performed by Mr Jithoo), the plaintiff coughed, which caused pain, which made her back “seize up”. She was unable to move and required assistance, and that her back pain now radiated down “both of her legs”. She was referred back to Mr Jithoo for further investigation and management and an MRI scan at that time revealed a recurrent large L5‑S1 disc herniation at the site of the previous surgery site. Ms Nguyen noted that a bout of second surgery was proposed at the L5-S1 site; however, due to psychological and social issues, it was decided that it would be inappropriate to go ahead with the surgery at that time.

(g) In her report dated 24 November 2013, Ms Nguyen states:

“Currently, Mazide reports of pain and stiffness in both of her elbows and shoulders, and lumbar spine. The pain in her lumbar spine radiates down into both of her legs, which is worse on the right. She also reports of pins and needles and numbness and severe cramping in her legs.
There is weakness in both of her shoulders, elbows, lumbar spine and legs. Her symptoms are limiting her range of movement, overall mobility and ability to perform activities of daily living. She has great difficulty with repetitive, forceful, above shoulder height activities involving her upper limbs, bending, squatting and prolonged activities. She requires the use of a walking stick to walk.
Mazide suffers from chronic pain at multiple sites. Physically she has bilateral tennis elbow, right shoulder rotator cuff tear and a recurrent large L5/S1 disc herniation.
She had sustained these injuries as a direct result of her employment at Wishbone (Specialty Chickens Pty Ltd) as a sales assistant as mentioned above.
Mazide currently has no capacity to return to her pre-injury duties as a sales assistant in a deli or alternative duties. She is unable to perform any moderate to heavy lifting, reaching, gripping, activities above shoulder height or that which require repetitive use of her upper limbs, bending or prolonged activities. Her conditions are irritable, severe and chronic in nature. She still requires further surgery.
… .”[42]
[42]See exhibit B at pages 63.11 – 63.12 PCB

(c) The reports of the treating neurosurgeon, Mr Rondhir Jithoo

25 The plaintiff relies on the reports of the treating neurosurgeon, Mr Jithoo, dated 16 March 2010, 7 April 2011, 23 May 2011, 31 May 2011, 19 August 2011, 12 January 2012, 20 February 2012 and 8 August 2012.[43]

[43]See exhibit B at pages 63.1 – 63.7 and 96-99 PCB

26 Seemingly, Mr Jithoo initially consulted with the plaintiff on or about 16 March 2010, at which time the plaintiff gave a history of having a fall “in December last year at her previous job”, at which time she sustained an injury to her back and left leg. At the time of the examination, she felt discomfort, rated at 6 out of 10, and complained of shooting and sharp sensation in the right leg which radiates down the surface of the right foot. Mr Jithoo described such sensation as being “typical of sciatica with pain in the buttock and aching in the calf”. He also noted there was numbness in the sole of the right foot.

27 Examination at that time revealed a positive left straight leg raising test in the right leg of 60 degrees, an absent right ankle jerk and weakness to dorsiflexion in the right extensor halluces longus and extensor digitorum brevis. His impression at that time is that the plaintiff suffered from right-sided L5 and S1 radiculopathy, and he also noted that her CT scan[44] revealed an L4-5 disc herniation which is eccentric to the right.

[44]See exhibit C

28 The plaintiff underwent an MRI scan on 23 March 2010 and the conclusion of such scan was:

“Partial lumbarisation of S1, L5/SI disc bulge and annular tear, the former mildly impinging upon the right S1 nerve root as described.”[45]

[45]See exhibit F at page 50 DCB

29 Initially, she was treated with a nerve sheath injection at the right L5-S1 foramen, which gave little relief. On 28 February 2011, a right-sided L5-S1 microdiscectomy plus rhizolysis was performed for decompression of the right S1 nerve root. The operation and post-operative period was uncomplicated. Mr Jithoo initially noted that most of her leg symptoms had cleared, although she continued to have tenderness in the back with tenderness over the coccyx and was still sore in the low back.

30 In his report dated 12 January 2012, Mr Jithoo notes that the plaintiff had been performing quite well but “unfortunately” over the previous two weeks, she had had a severe coughing episode and was now having pain radiating into her left leg. He noted that she required a new MRI scan which was undertaken and revealed a recurrent large L5-S1 disc herniation at the site of the previous surgery.

31 He notes that the size of the disc is quite significant and he has recommended a further L5-S1 laminectomy plus discectomy, as well as an interbody fusion. Furthermore, he notes that the plaintiff did not feel that she was “in the correct frame of mind to undergo surgery”, which he considered quite reasonable, notwithstanding that she was suffering a lot of pain.

32 In his report dated 23 May 2011, Mr Jithoo considered that the condition of the plaintiff was consistent with her work history and her employment having been a contributing factor to such condition – that is to say, the fall that she described to him.

Medico-legal reports relied on by the Plaintiff

33 The plaintiff relies on the following medico-legal reports:

(a) The reports of the general and vascular surgeon, Mr Charles Flanc, who examined the plaintiff on 13 January 2010,[46] 18 March 2011[47] and on 24 July 2013;[48]
[46]See report dated 18 January 2010 – exhibit B at pages 68-74 PCB
[47]See report dated 28 March 2011 – exhibit C at pages 75-85 PCB
[48]See report dated 29 July 2013 – exhibit C at pages 86-94 PCB

(b) The report of the neurosurgeon, Professor R Bittar, who examined the plaintiff on 14 August 2013;[49]

(c) The report of the orthopaedic surgeon, Mr C Haw, on 2 August 2013.[50]

[49]See report dated 14 August 2013 – exhibit C at pages 100-103 PCB

[50]See report dated 2 August 2013 – exhibit C at pages 104-107 PCB

34 Mr Flanc initially examined the plaintiff for the purpose of assessing injuries to her elbows during the course of her employment with the defendant and IGA. After obtaining a history and making an examination and referring to various radiological studies, Mr Flanc was of the opinion that the plaintiff had suffered medial and lateral epicondylitis to both the right and left elbows, although the right elbow was more severe than the left. At the time of that examination, he noted that the plaintiff was still working as a delicatessen manager at IGA and that she should be able to continue such work if she avoided using the meat slicer, which was aggravating her condition in the right elbow.

35 When later seen on 18 March 2011, Mr Flanc re-examined the plaintiff for the purpose of reassessing her elbow injuries but also to assess injuries to the right shoulder and her low back. At the time of that examination, he noted that the plaintiff walked slowly and had a walking stick in her right hand because she was recovering from recent spinal surgery.

36 At the time of that examination, the plaintiff gave a history that she had developed pain in both shoulders shortly after the onset of elbow pain but the pain in her shoulders was “never severe enough to mention to the doctor”.

37 In relation to the low back, Mr Flanc obtained a history that the plaintiff slipped and fell heavily at work on 26 December 2008, striking her right shoulder on the corner of a projecting wall and landing heavily onto her bottom onto a concrete floor. At that time, she felt immediate pain in the right shoulder and low back and called out to her co-worker, Chan, to help her up. She continued working and ultimately, a large bruise appeared in the region of the right shoulder, and she stated the pain in her low back and right shoulder was more severe from that time onwards. She continued working and did not report the incident.

38 Mr Flanc also obtained the history from the plaintiff that her low-back pain persisted since the fall in December 2008 and eventually it radiated down her right leg into the foot, causing Dr Baglar to refer her to Mr Jithoo, the neurosurgeon, who arranged an MRI scan. Ultimately, she underwent surgery by Mr Jithoo. At the time of that examination, she was convalescing from the operation and had not yet returned to work. In particular, she did inform Mr Jithoo that she had suffered some low-back pain before the fall on 26 December 2008 and this had been intermittent over a period of three or four years. In particular, she had had a number of falls in the cool room and there were temporary aggravations of her back pain. She did not stop work until shortly before the spinal operation in 2011.

39 At the time of that examination, she was still suffering right elbow pain, which is more severe over the outer side rather than the inner side, although less severe, because she does not have to slice meat. There had been considerable improvement since her operation in the left elbow and there was only slight residual pain on the medial side of the elbow.

40 In relation to the right shoulder, she continued to have pain on elevation of her arm.

41 In relation to the low back, the plaintiff advised Mr Flanc that the pain radiating down her right leg and her right foot had resolved since the surgery, although she continued to suffer pain in the lower back. Mr Flanc was of the opinion that the nature of her work over the years with the defendant and what he referred to as “a substantial aggravation” on 26 December 2008 when she fell, all contributed to an aggravation of her pre-existing degenerative condition. Furthermore, at that time, he considered that she was probably capable of returning to work as the fresh food manager with IGA, as such work would not expose her to work involving repetitive or heavy use of her elbows or any bending and heavy lifting.

42 When last seen by Mr Flanc, he obtained a history that on 30 December 2011, the plaintiff had a coughing fit and, while coughing, the pain in her lower back suddenly became so severe that she fell, causing her to attend Dr Baglar and be referred back to the neurosurgeon, Mr R Jithoo. Furthermore, a second MRI scan of the lumbar spine was performed on 20 January 2012 and she was advised to undergo a second spinal operation. However, the plaintiff was “not ready” to undergo further surgery and so has continued a conservative policy.

43 Mr Flanc noted that the plaintiff had, at the earlier examinations, given a history that she had suffered from intermittent pain in her low back over a period of several years, which had usually occurred in the cool room, and also, she had had a number of falls. Mr Flanc did note that he was supplied with medical reports indicating that she had suffered a low-back injury when she had a fall in 1991 when working in the kitchen at Montefiore Homes. Mr Flanc notes that the plaintiff did not mention this to him.

44 Mr Flanc expressed the opinion that the plaintiff was certainly unfit for any work involving repeated bending or heavy lifting. In relation to her upper limbs, the range of movement of both shoulders had improved and is now only slightly restricted and she only has slight discomfort at the elbow. However, Mr Flanc was of the opinion that she would not be able to perform any repetitive or heavy duties involving her upper limb.

45 In particular, he thought that, given that most of her work at IGA was administrative and that:

“… theoretically, if one considers her physical condition alone, it may be possible for her to return to part-time office-type duties providing she would be able to alter her position whenever her discomfort became more severe. I doubt whether she would be able to cope with office- type work on a full-time basis because of her poor tolerance to prolonged sitting or standing.”[51]

[51]See report of Mr Flanc dated 29 July 2013 at page 94 PCB

46 When examined by Professor Bittar on 14 August 2013, the plaintiff gave a history that she commenced to experience intermittent low-back pain in around 2004 during the course of her work activities with the defendant. Such pain did not require any specific treatment and did not require any time off work.

47 The plaintiff also gave a history that on 26 December 2008 at work, she slipped on a wet floor, landing heavily on her buttocks, and experienced low-back pain and right leg pain immediately after the fall. She had noticed some degree of right leg pain prior to that; however, her leg pain became continuous after the fall and she continued to work despite her ongoing symptoms.

48 Professor Bittar noted the treatment of Mr Jithoo and in particular, the nature of the surgery undertaken on 24 February 2011. The plaintiff gave a history that she obtained a “negligible benefit from surgery”. In particular, the plaintiff also gave a history that her condition “deteriorated significantly” on 31 December 2011 when she coughed, resulting in a deterioration in her back pain and leg pain, after which was again referred to Mr Jithoo in February 2012 and a repeat MRI scan was undertaken.

49 At the time of his examination, the plaintiff was complaining of constant low-back pain which radiates through her right buttock into her hamstrings and calf, and also pins and needles in her right foot. Her back pain and leg pain are generally dull and have an average severity of 7 to 8 out of 10 and are exacerbated by sitting more than forty minutes, standing for more than one hour, bending, twisting and lifting more than 5 kilograms. In particular, her symptoms are relatively stable.

50 Professor Bittar noted that her current treatment consisted of physiotherapy twice a week, together with analgesic medication consisting of Nurofen Plus and Mersyndol Forte.

51 In particular, Professor Bittar notes that her past history is non-contributory for any previous low-back injuries or symptoms suggestive of a significant lumbar spine condition prior to 2004. Professor Bittar had available the CT scan of the lumbar spine undertaken on 9 October 2009 and the two MRI scans of the lumbosacral spine taken on 23 March 2010 and 19 January 2012. Examination revealed the plaintiff walking with a slightly antalgic gait with the aid of a walking stick, together with moderate restriction of lumbar flexion and very mild restriction of lumbar spine extension. Her lower limb reflexes were symmetrical, and tone was normal. However, she had mild weakness of the flexor hallucis longus on the right-hand side, with slightly reduced sensation to light touch of the lateral aspect of her right sole.

52 Professor Bittar diagnosed the plaintiff as suffering from a right S1 radiculopathy secondary to the L5-S1 disc prolapse. In particular, he considered her employment with the defendant as being a significant contributing factor. He recommended that she undergo a further MRI scan of the lumbar spine to determine the location and size of the disc prolapse at this point in time. In his opinion, she is likely to suffer from very significant pain and disability into the foreseeable future. Furthermore, he considered her permanently incapacitated for her pre-injury duties and, taking into account her age, education, training and skills and work experience, together with the nature of the spinal condition, he considered that her capacity to procure and maintain suitable employment was negligible.

53 When examined by Mr Haw on 2 August 2013, the plaintiff gave a history that she developed the onset of intermittent low-back pain in about 2004. Furthermore, Mr Haw has recorded that the plaintiff stated on “26 November 2008”[52] when working at the South Morang store, she slipped on a recently hosed floor, injuring her right shoulder on the wall and landing heavily on her backside, and from that point on experienced pain in the low back and right leg.

[52]Given the circumstances described by Mr Haw, I consider that the reference to 26 November 2008 is, in fact 26 December 2008.

54 Mr Haw also obtained a history from the plaintiff as to her bout of surgery undertaken by Mr Jithoo and also, that on 31 December 2012, she awoke at 9.30am after a restless night and relaxed and went to make a cup of coffee, coughed and had severe intense low-back pain with right leg pain, causing her to be referred back to Mr Jithoo and for a repeat MRI scan to be undertaken.

55 Mr Haw had available to him the CT scan of the lumbar spine of 9 October 2009, the MRI scan of 23 March 2010 and the later MRI scan undertaken on 19 January 2012. Examination revealed reduced straight leg raising on the right side, together with diminished sensation in the right L5 distribution.

56 Mr Haw stated:

“The symptoms are consistent with the stated cause i.e. work related problem. The diagnosis is one of initial prolapse of disc at L5/S1 with a recurring problem associated with a cough and with some persisting problems relating to the right shoulder of a minor degree associated with a deep tear of the rotator cuff in the most part degenerate but aggravated by the nature of her work.
In my opinion she is unfit for any work involving repeated bending or heavy lifting, and in particular she would not be able to do repetitive work above shoulder height, and I would agree with Charles Flanc that she may be able to return to part-time office duties at IGA Supermarket.
She requires further treatment by removal of the recurrent prolapse, however the problem in the shoulder and elbows would suggest that further surgery was not required. In the absence of surgery, the prognosis for ongoing pain and problems in relationship to the right L5 nerve root is high. However I believe that surgery on the right shoulder is now probably not indicated.”[53]

[53]See report of Mr Haw – exhibit C at page 107 PCB

57 The plaintiff also tendered documentation whereby the insurer of the defendant agreed to pay for the surgery undertaken by Mr Jithoo.

Medico-legal reports relied on by the Defendant

58 The defendant relies on a number of reports relating to the back injury suffered by the plaintiff on or about 23 November 1991 during the course of her employment at the Montefiore Day Centre in Windsor. Such reports consist of the following:

(a) The report of the industrial medical consultant, Dr Allan Hill, who examined the plaintiff on 20 May 1992;

(b) The report of the general surgeon, Mr Afif Hadj, who re-examined the plaintiff on 16 November 1992;

(c) The report of Dr David Kennedy, who examined the plaintiff on 9 November 1992;

(d) The report of the general surgeon, Ms R Schellenberger, who examined the plaintiff on 7 January 1993;

(e) The report of Dr Philip Perlstein, who examined the plaintiff on 7 September 1993.[54]

[54]All these reports are contained in exhibit 2 and found at pages 3-19 DCB

59 A perusal of such material establishes that the plaintiff did suffer a low-back injury at the Montefiore Day Centre on 23 November 1991. She had commenced work with the nursing home in March of 1987 as a catering assistant and gave various histories that, prior to the commencement of such work, had suffered no previous back problems.

60 The plaintiff gave a history that one of the female residents at the home became dizzy and fell backwards against her, pushing her forward onto a table, and when she attempted to straighten up, she developed low-back pain. She was referred to her local general practitioner, who ultimately arranged for a CT scan to be undertaken on 6 December 1991, which concluded that there was evidence of an L5-S1 disc prolapse.

61 The plaintiff continued to experience low-back pain and right leg pain. She was certified unfit for work and rested at home for the next three months, during which time she was prescribed various medications and referred to physiotherapy. She was also referred to the orthopaedic surgeon, Mr Hooper, who advised her to lose a bit of weight, which she managed to do.

62 After being off work for three months, she resumed light part-time work, which gradually increased in capacity, and as at January 1993, she was working five days per fortnight, which was slightly less than her pre-injury capacity.

63 At the time of her examination, Ms Schellenberger was of the opinion that the plaintiff suffered an assessable impairment of the back in the order of 14 per cent, which would be permanent, and that she would never fully recover from the work-related aggravation.

64 The last report of this group is from Dr Perlstein, who examined the plaintiff on 7 September 1993. At that time, he noted that the plaintiff suffered from a prolapsed L5-S1 lumbar disc, which was causing her some occasional right nerve root irritation and at that time at least, her duties should avoid repeated bending and stooping, having the ability to vary sitting and standing and avoid lifting weights of greater than 7 kilograms at a time.

65 Of more recent times, the agent and/or solicitors of the defendant have arranged for the plaintiff to be medico-legally examined by:

(a) The orthopaedic surgeon, Mr Michael Shannon, on 29 June 2009;

(b) The orthopaedic surgeon, Mr Michael Polke, on 17 December 2009 and 21 September 2010;

(c) The orthopaedic surgeon, Mr Gerald Moran, on 6 August 2012;

(d) The orthopaedic surgeon, Mr Michael J Dooley, on 19 September 2013.[55]

[55]All such reports are contained in exhibit 2 and found at pages 20-48 DCB

66 Mr Shannon examined the plaintiff on 29 June 2009 in relation to her left elbow, for which she underwent surgery in February 2009. At that time, he noted that she had a normal range of movement of the left shoulder without evidence of impingement, full range of movement of the left elbow and forearm, although there was a mildly positive provocation sign for tennis elbow. He was of the opinion that the plaintiff had suffered a left elbow injury arising out of the course of her employment with the defendant, and such condition consisted of both medial and lateral epicondylitis. Such condition had been significantly improved by the surgery, although such surgery appeared to cause a development of mild adhesive capsulitis, which also has responded well to hydrodilatation. Mr Shannon considered the plaintiff fit for work but not work involving repetitive use of the left arm or heavy lifting.

67 When first examined by Mr Polke on 17 December 2009, the plaintiff gave a history that she developed right elbow pain in 2006, resulting in surgery on 13 February 2006. Furthermore, she developed more pain in the left elbow some time in 2008 and further pain in her right elbow on 19 June 2008.

68 In particular, the plaintiff told Mr Polke that she had a “long history of low-back pain” for at least five years from repeated bending and lifting, as well as a couple of falls at work. She gave a history of a specific incident when she fell on Boxing Day 2008 and had to remain off work for a week because of low-back pain and right leg pain. She described the low-back and right leg pain as 7 out of 10 and not improving. Furthermore, her right leg pain was associated with some paresthesia and numbness. Mr Polke diagnosed mainly medial epicondylitis of the right elbow but also with some lateral epicondylitis of the right elbow. Furthermore, he considered she was suffering from some medial epicondylitis of the left elbow.

69 Mr Polke had available to him the CT scan of the plaintiff’s lumbar spine dated 9 October 2009, and diagnosed an L4-5 disc prolapse, which he considered was caused by her heavy lifting and bending during the course of her employment. Furthermore, he considered that such bending and lifting also contributed to her epicondylitis condition. Mr Polke also obtained a history that the plaintiff resigned from the defendant as she could “no longer put up with the injuries due to the heavy manual work”.[56]

[56]See exhibit 2 at page 28 DCB

70 When examined by Mr Polke on the second occasion on 21 September 2010, the plaintiff was employed by IGA Fairfield in the delicatessen department in a full-time capacity. At that time, she informed Mr Polke that her left elbow pain was much better and that she had suffered right elbow and right shoulder pain since her fall on 26 December 2008.

71 In particular, she also stated that she continued to suffer low-back and right leg pain. She was taking 50 milligrams of Tramadol on some evenings, especially for her right shoulder and low-back pain.

72 The balance of Mr Polke’s report is largely directed to her elbow and shoulder injuries, and other than asserting that she was continuing to suffer an L4-5 intervertebral disc prolapse, causing low-back and leg pain, not much is said about the low back.

73 When examined by Mr Moran, the plaintiff gave a history of suffering a right tennis elbow in 2005 and a left tennis elbow in 2006. In particular, Mr Moran obtained a history that the plaintiff, on 26 December 2008, was washing a floor when she slipped and fell to the concrete floor, after which she experienced low-back pain.

74 Mr Moran had available to him details of the surgery undertaken by the neurosurgeon, Mr Jithoo, and also details of the plaintiff experiencing a recurrence of her low-back pain and her right leg pain following a coughing episode on 31 December 2011.

75 Mr Moran was of the opinion that the plaintiff suffered a recurrent L5-S1 disc prolapse following her coughing on 31 December 2011. He noted that she was taking eight Nurofen Plus per day and one Mersyndol Forte at night, which he considered was appropriate, given her ongoing back and right leg pain. In particular, he was of the opinion that the plaintiff had no current work capacity as a result of her recurrent L5-S1 disc prolapse. He considered that the plaintiff may be fit to undertake light-duty work two to three months following a repeat L5-S1 microdiscectomy and rhizolysis.

76 When examined by Mr Dooley, the plaintiff gave a history that around in 2004, she noted low-back pain during the course of her work, which involved lifting and manoeuvring a display of various products.

77 Furthermore, a year or so later, she began to note left elbow pain, causing her to have injections in the elbow, but the symptoms were not relieved.

78 In particular, she gave a history that on 26 December 2008, she slipped on a wet floor at work, landing on her buttocks. Mr Dooley obtained the history of ongoing back and leg pain, and arm pain.

79 Mr Dooley was of the opinion that the plaintiff developed lateral epicondylitis of both elbows in around 2006 and accepted that symptoms can be precipitated by repetitive moving and lifting. He considered that she had done quite well after her surgery in 2009 for lateral epicondylitis and only has minimal ongoing symptoms with no tenderness of the elbow. In particular, Mr Dooley stated:

“Ms Ademi stated that in association with the fall on Boxing Day 2008, she noted low back pain and subsequently right lower limb pain. It is evident from the attached documentation that Ms Ademi had previously injured her lumbar spine in her early to mid twenties. She was diagnosed at that time with a right sided lumbosacral disc prolapse. Radiological investigation following the fall in 2008 noted degeneration of the low lumbar spine and a right sided lumbosacral disc prolapse. It is possible that Ms Ademi sustained a further disc prolapse on the right side at the lumbosacral level in her fall. Ultimately, she underwent discectomy surgery in February of 2011. There was definite improvement in her symptoms following the surgery. It would seem however that after a severe bout of coughing, Ms Ademi has developed a recurrent right sided lumbosacral disc prolapse. It has been suggested to her that she undergo further surgery in the form of decompression and anterior lumbosacral fusion. This is a major surgical procedure with an unpredictable outcome. Ms Ademi feels that in her current medical state she could not consider further surgery on her back. She also feels that she has deconditioned physically and would not be ready for major surgery. I believe that the sensible approach at present would be for Ms Ademi to carry out low impact exercise and to continue to lose weight. Symptoms are likely to improve but not resolve with this line of treatment. If she was to continue to have significant right sided sciatica pain, then one could consider a further discectomy/ decompression procedure without associated fusion. This would have more predictability from a surgical outcome point of view.”[57]
(my emphasis).

[57]See exhibit 2 at page 46 DCB

80 I do note that Mr Dooley, having the history available to him of the earlier prolapse in 1991, the slipping episode on 26 December 2008 and the coughing episode, ultimately expressed the following opinion:

“… I believe that one would have to accept that the fall on Boxing Day 2008 could have aggravated Ms Ademi’s underlying condition in relation to degeneration and the previous right sided lumbosacral disc prolapse.”[58]

[58]See exhibit 2 at page 47 DCB

81 Mr Dooley was of the opinion that, given the presentation of the plaintiff, she would be unfit to carry out any heavy physical work or work that involved bending, lifting and twisting. She would have a physical capacity to carry out limited light physical work and clerical duties.

Conclusions

82 It is for the plaintiff to prove as a matter of probability that any low-back injury suffered by her on 26 December 2008 – which I will refer to as “the 2008 injury” is productive of the consequences necessary to satisfy the test for “serious injury”.

83 In this context, the defendant primarily submits that on the evidence before the Court – or perhaps more correctly, the absence of evidence before the Court – the Court should not be so satisfied that the 2008 injury produced the requisite consequences. As counsel for the defendant fairly submitted, the fundamental issue is “causation”.

84 After a consideration of all of the evidence, I make the following findings of fact:

(a) The plaintiff suffered a low-back injury on 23 November 1991 during the course of her employment with Montefiore Homes, which caused low-back pain and right leg pain. A CT scan undertaken on 6 December 1991 revealed a prolapse at the L5-S1 level of the lumbar spine.

The plaintiff was off work for about three months, during which time she was prescribed medications and physiotherapy. After being off work, the plaintiff resumed lighter part-time work and was performing such work in 1993. By Dr P Perlstein, he notes that she was complaining of occasional right nerve root irritation.

Seemingly, at no time did the treating general practitioner, Dr H Baglar, or the treating neurosurgeon, Mr Jithoo, obtain any history of the, what I will refer to as the, “1991 low-back injury”. Furthermore, the medico-legal specialists retained by the plaintiff – the consultant neurosurgeon, Professor Bittar, and the consultant orthopaedic surgeon, Mr Chris Haw – also obtained no history of the 1991 low-back injury. In particular, Mr Bittar obtained the history:

“Her past medical history is noncontributory for any previous lower back injuries or symptoms suggestive of a significant lumbar spine condition prior to 2004.”[59]
[59]See exhibit A at page 101 PCB

When seen by the other medico-legal specialist retained by the solicitors for the plaintiff, the consultant general surgeon, Mr Flanc, no history was initially given and only through the exchange of medical reports did Mr Flanc become aware of the 1991 low-back injury. Similarly, the medico-legal specialists retained by the defendant – Mr Michael Polke and Mr Gerald Moran – also had no history of the 1991 low-back injury. However, Mr Michael Dooley, who examined the plaintiff on 19 September 2013, was aware of such earlier injury;

(b) There is no record of the plaintiff attending for back treatment over the period from 1993 until January 2009 when she complained of low-back pain to the physiotherapist, Ms Huong Nguyen. During this period of time, the plaintiff was employed part time as a delicatessen assistant with Goldy’s Tuckerbag Supermarket and later, for six years with that organisation. She also worked as an office cleaner for about a year before commencing with the defendant.[60] Furthermore, she commenced with the defendant in July 2001 and performed work which I consider to be moderately heavy, involving moving containers of chicken pieces in the course of performing work at the various retail outlets;
[60]See exhibit A at page 20 (paragraph 15) PCB

(c) That, consistent with the evidence of the physiotherapist, Ms Huong Nguyen, the plaintiff suffered two falls in December 2008 during the course of her employment with the defendant. The first fall occurred in mid December 2008, which the notes would suggest was 11 December 2008. In that fall, the plaintiff gave a history that she slipped and fell at work, suffering bruises to her left upper limb, together with pain in that area and her back. Apparently she reported that she thought it would “resolve”.

She also reported another fall at work “over the Christmas holidays of 2008”, which again caused pains to the right and left elbow, left shoulder and her lumbar spine.

In particular, Ms Nguyen obtained a history of lumbar spine pains radiating down her right leg, causing “right-sided sciatica”. Such history was given to Ms Nguyen on 12 January 2009. There would appear to be intermittent attendances on Ms Nguyen in relation to lumbar pain complaints in 2009, extending into 2010 and leading up to the surgery ultimately undertaken by the plaintiff.

Ms Nguyen notes that in October 2009, the back pain of the plaintiff was further “exacerbated” at her “new workplace” when she tried to lift a couple of cartons of eggs;

(d) The plaintiff underwent surgery to her left elbow on 13 February 2009 and ultimately resigned her employment with the defendant on 24 April 2009. I accept that she resigned in part because it was “best to ease the strain on my back and arms and find alternate employment”.[61] I also note that when Mr M Polke initially examined the plaintiff on 17 December 2009, he obtained a history from the plaintiff that she ceased work with the defendant because “she could no longer put up with the injuries due to the heavy manual work”.[62] When making such assertion, the plaintiff, I believe, was also including her arms, together with her back.
[61]See exhibit A at page 12 PCB
[62]See exhibit 2 at page 28 DCB

I find that, on the balance of probabilities, the incident referred to by Ms Nguyen in the Christmas holidays of 2008 is the incident said to have occurred by the plaintiff on 26 December 2008. I also find that there was no formal reporting of such incident, any attendance on the general practitioner in relation to that incident, no loss of work (there was some days off shortly after such incident in relation to a pre-planned period of holidays), no alteration of the plaintiff’s duties and no particular change in her medication.

However, I do find that whereas the plaintiff may have had some intermittent back pain from about 2004, I find that following the December 2008 injury, she suffered constant low-back pain and consistent and persistent right sciatica. Furthermore, I find that such symptoms continued in the same way until she came under the care of Mr Jithoo. Furthermore, following the 2008 back injury, she needed physiotherapy treatment in that area and that such treatment continued intermittently throughout the period up to when she required low-back surgery;

(e) The plaintiff commenced employment with IGA Supermarket in Fairfield in about May or June 2009, working six hours a day, three days a week as the part-time delicatessen manager. Such work involved stock control and ordering, and I find that it was “much easier” than the work performed with the defendant, the work with the defendant involving more bending and heavy lifting.

I also find that she continued to experience pain in her low back and right leg, and that in or about October 2009, she felt increased pain in her low back after “bending down to stock a shelf with eggs”. In particular, I find that she attended Dr Baglar on 5 October 2009, stating that she had lifted a box of eggs two days earlier – that is, 3 October 2009. No other doctor obtained a history of what I will refer to as the “egg incident”;

(f) Dr Baglar arranged for a CT scan to be taken of the lumbar spine on 9 October 2009 which was reported as showing a disc prolapse at the L4-5 level. Dr Baglar referred the plaintiff to the neurosurgeon, Mr Jithoo, who arranged for her to undergo an MRI scan undertaken on 23 March 2010 and ultimately, Mr Jithoo performed lumbar surgery on 24 February 2011.

Such surgery relieved the pins and needles feeling in her right leg but she continued to have some back pain and sharp shooting pain down the right leg about twice a week. On the night commencing 31 December 2011, she felt some increasing back discomfort and after coughing, she felt a lot worse back pain and both her legs seemed to give way.

She was referred back to Dr Jithoo, who arranged for her to undergo a further MRI scan on 19 January 2012, which revealed a recurrent large L5-S1 disc herniation at the site of the previous surgery.

Mr Jithoo obtained a history of the coughing incident as such incident prompted the further MRI scan and the ultimate recommendation that she undergo further surgery.

85 Although there was no overt attack on the credit of the plaintiff, it was submitted by counsel for the defendant that she wished “for some reason or another” to conceal the 1991 low-back injury from any doctor. Furthermore, in a more general way, counsel for the defendant submitted that, given the lack of complete histories given to any particular doctor, how can a court find, on the balance of probabilities, that the alleged injury on 26 December 2008 was productive of the consequences that the plaintiff now suffers?

86 It is perhaps apposite to make some comments about the plaintiff’s evidence and presentation.

87 I consider that the plaintiff demonstrated through her evidence that she has had an excellent employment history and was someone who was prepared to work on in the face of pain in her back, or indeed in her arms or shoulders. Furthermore, I do consider that the plaintiff was attempting to give honest and accurate answers to the various questions posed to her. In particular, she did not prevaricate when it was suggested to her that she did not report things to various doctors – for example telling her general practitioner, Dr Baglar, of the incident on 26 December 2008.

88 Notwithstanding, I do find it curious that there was at no time a history given of the 1991 low-back injury, given that she understood that it was a prolapse, was off work for a number of months and received quite a deal of treatment at and around that time. However, such injury must be seen in the context that there has been no reported treatment or time off work since 1993 until 2009. When queried as to why she did not advise any of the doctors of the 1991 low-back injury, she stated:

“Because my pain wasn’t there anymore”.[63]

[63]T37, L2

89 There is some support for such assertion, given the absence of any time off work or, seemingly, any medical or other treatment for low-back pain over the period from 1993 to 2009 when she attended the physiotherapist.

90 As I have already found, the plaintiff, in my view, did suffer a low-back injury on 26 December 2008. Such is clearly demonstrated by the evidence of the treating physiotherapist, although there is evidence of the plaintiff suffering some very intermittent low-back pain and maybe even very intermittent radiated pain in her right leg prior to 2008, extending back to 2004.

91 Again, as I have found, she asserts, and I accept, that from 2008, she suffered virtually constant low-back pain and right leg pain. I note that when she attended Dr Baglar on 5 October 2009, and was subsequently referred to the treating neurosurgeon, Mr Jithoo, who examined her on or about 16 March 2010, the history was given by the plaintiff of having a fall “in December last year at her previous job”. Consistent with the evidence of the plaintiff, I accept that the plaintiff was referring to her employment with the defendant when talking about “her previous job”. In all the circumstances, I accept, on balance, that the plaintiff was giving a history of the 2008 back injury. Furthermore, when examined initially by Mr Polke on 17 December 2009, the plaintiff gave a history of remembering a “specific incident when she fell on Boxing Day 2008”. It seems plain enough that the plaintiff considered the 2008 incident as the precipitator of her more recent problems.

92 Consistent with the opinion of Mr Dooley and Mr Flanc, both of whom had the history of the 1991 low-back injury, I consider that the 2008 injury must be viewed as an “aggravation” of the 1991 low-back injury. Both parties submitted that it was appropriate to apply the principles in Petkovski v Galletti[64] to ascertain whether or not the plaintiff has suffered a “serious injury” within the meaning of s134AB of the Act. Although Petkovski v Galletti was determined in the context of s93 of the Transport Accident Act 1986, the principles have long been accepted to apply in industrial injuries determined under the Act.[65]

[64] [1994] 1 VR 436

[65]See Guppy v Victorian WorkCover Authority [2010] VSCA 164 at paragraph [19]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309

93 In the context of an aggravation of a pre-existing injury, Southwell and Teague JJ made it plain that the task of the court is to analyse the extent of the impairment before and after the relevant injury. In referring to the submissions that have been rejected by the trial judge, Southwell and Teague JJ stated:

“The question of the relevance of the existence of a pre existing degenerative condition in the applicant’s spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.
The learned County Court judge rejected this principal submission of the respondent. … He said: ‘In my opinion, the Act simply requires me as an assessing judge to be ‘affirmatively satisfied’ that the applicant as at the date of the application is suffering from a ‘serious injury’ within the meaning of the Act.’
…
… it is clear that the submission for the respondent ought not to have been rejected by the judge; in this court, counsel for the applicant conceded as much. We are of that opinion for these reasons. One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.”[66]

[66]See Petkovski v Galletti (op cit) at page 433

94 For the reasons I have already expressed, I find that the plaintiff has discharged her onus in establishing that the extent of any aggravation of a pre-existing back injury is “serious” within the meaning of the Act. By this, I mean that prior to the 2008 injury, she was capable of performing moderately heavy work, had lost no time off work for many years, undertaking no particular treatment for her back, and having only, at worst, very intermittent symptoms in her low back and intermittent symptoms in her right leg from about 2004. Subsequent to the 2008 back injury, she suffered, as I have found, virtually continuous low-back pain and right leg pain, limitation of the types of work she can do, the need for physiotherapy treatment, the need for self-administered medication and ultimately, surgery from a neurosurgeon.

95 In particular, I again refer to the opinion of the orthopaedic surgeon, Mr M Dooley, who examined the plaintiff on 19 September 2013, wherein he accepts that it is “possible” the plaintiff sustained a further disc prolapse on the right side at the lumbosacral level as a result of the 2008 fall. Of course, where a medical opinion goes no higher than an event is capable of being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition.[67]

[67]See Forder v Hutchinson [2005] VSCA 281 at paragraph [47], citing Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; Dahl v Grice [1981] VR 513 at 520-2 and Spence v Gomez [2006] VSCA 48 at paragraph [26]

96 Consistent with the opinion of Mr Dooley, I consider that it likely that the plaintiff suffered some further degree of disc prolapse on the right side of her lumbosacral spine as a result of the 2008 fall.

97 Counsel for the defendant submitted that no doctor, other than the treating general practitioner who obtained the original history, was aware of the incident lifting the box of eggs on or about 3 October 2009. I shall refer to such incident as “the egg carton incident”. Counsel for the defendant highlighted the following matters in relation to the egg carton incident:

(a) The attendance on Dr Baglar on 5 October 2009 was the first occasion that the plaintiff had made any complaint of low-back pain to him notwithstanding that she had been attending over the years in respect of bilateral arm pain;

(b) Dr Baglar obtained no history of any earlier incident of back injury (whether it be the 1991 back injury or the 2008 back injury);

(c) Dr Baglar found, on 5 October 2009, that the plaintiff had tenderness in her left lumbosacral facet joint and had a restricted range of movements in her lumbosacral spine. Furthermore, her straight leg raising was reduced on the right side. It was from that point where a CT scan was organised and later the referral to the treating neurosurgeon, Mr Jithoo.

98 Counsel for the defendant submits that bearing in mind that the plaintiff has the onus of establishing “causation”, what is the worth of any expert’s opinion who has not obtained the history of such event. There is some force in such submission.

99 However, after a consideration of all of the evidence, I have come to the view that the egg carton incident represented an episode of acute pain following a relatively trivial incident in the context of a deteriorating back following the 2008 back injury. I have come to such view for the following reasons:

(a) The plaintiff estimated the weight of the carton(s) of the eggs to be less than 2 kilograms and she had just gone and grabbed the carton of eggs from a shelf and she believes her back was not bent at that point;

(b) When asked to compare the pain following the 2008 injury to the pain after the egg carton incident, she stated:

“Pretty much the same, I’m guessing. It’s – I can’t – how can I say, pain is – I might be three days good and then the next five days bad, but I wore it. I beared (sic) with it. I could have six good days and one bad day. It’s just depending on how I went.”[68]
[68]T114, L2-6

Furthermore, when queried about deterioration after the egg carton incident, the plaintiff gave evidence that:

“I always had pain but I beared it to a limit. After the egg incident I think it just probably was meant to happen and that’s where I hit me, that’s when it hit me but I also waited a whole year before the surgery so I had to bear the pain.”[69]

(c) I also accept the submission of counsel for the plaintiff that after a consideration of all of the evidence, the pattern and position of the pain suffered by the plaintiff after the egg carton incident is largely the same as that resulting after the 2008 injury. I do accept that there was an exacerbation of pain as a result of the egg carton incident but effectively reflects no more than a sequel of her ongoing back problem at that time.

[69]T48, L9-12

100 I also consider that in any event, the decision of the Court of Appeal in Altona Bus Lines v Lococo[70] is of some assistance. In that case, a worker was employed as a bus driver by his employer and suffered injury to his low back on 3 July 1995 when slipping and falling when alighting from the back of the bus. He was off work for a period of time then resumed work, still experiencing pain but putting up with it in order to remain in his employment.

[70][2002] VSCA 159

101 In December 1998, the worker arose from his seat on the bus, forgetting to disengage his seatbelt and suffered severe pain in his lower back which gradually worsened. Ultimately, a CT scan and MRI scans were undertaken, leading to discal surgery. Given the operation of the Act, he could not seek a serious injury certificate in relation to the 1998 episode and sought to make application for the injury occurring in 1995. The Court of Appeal seemingly accepted that “the additional effects [those which became manifest in 1998] … are consequences of the original injury …” and were taken into account by the presiding judge in isolation from the 1998 injury to determine that the 1995 injury produced a “severe long term impairment of a body function”.

102 I consider that such is the case here that any increase in symptoms following the egg carton incident are consequences of the 2008 injury. Indeed, the treating physiotherapist who was aware of the egg carton incident, continued to attribute the cause of the plaintiff’s low-back symptoms to be her falls at work in December 2008.

103 Counsel for the defendant also submits that it cannot be said that the plaintiff has a permanent impairment given the recommendations that she undergo further surgery in respect to her recurrent disc prolapse brought about by the coughing episode. In passing, I should add that I consider the coughing episode, which seemingly gave rise to the recurrence of the disc prolapse, to be part and parcel of the injury. Indeed again, it would appear that the simple act of coughing caused the recurrence of the disc prolapse after surgery and, in my view, is part and parcel of the consequences of the injury.

104 I do find that initially the plaintiff decided not to undergo further surgery because of seemingly then attendant emotional problems (she was undergoing or about to undergo a divorce). However, there was no evidence that the plaintiff intended to undergo such surgery.

105 Given that s134AB involves a statutory scheme, I do not consider that it is incumbent upon a particular plaintiff to “mitigate” any loss. In this case, I do not accept that the plaintiff is under any duty to mitigate her position by undergoing surgery. Even if there was such a duty, I consider that based on the opinions of Mr Jithoo, and more particularly Mr Dooley, the plaintiff has acted reasonably. It should not be lost sight of the fact that the plaintiff has already undergone surgery and perhaps more through an unpredictable event – the coughing episode – has returned to largely her pre-surgery position.

106 Based on the evidence before me, I consider that her present situation is likely to extend into the foreseeable future and satisfies the requirement that such condition be permanent.

107 Again, considering all of the evidence, I am of the opinion that consistent with all recent medical opinion, the plaintiff is unfit for her pre-injury employment and furthermore, I consider that after observing the plaintiff and accepting her restrictions, she is realistically unfit for any suitable employment and such will extend into the foreseeable future. The plaintiff was not challenged about her present restriction, need for medication and the pain that she suffers in her low back and legs. By saying this I am in no way critical of the defendant as indeed it was made plain that causation was the issue and effectively, permanency of the impairment.

108 Accordingly, applying the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[71] I determine the plaintiff has satisfied the requirement of the Act in establishing leave being granted to bring common-law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect to the low-back injury suffered by her on 26 December 2008.

[71][2009] VSCA 170 at paragraph [60]-[64]

109 Accordingly, pursuant to s134AB(16) of the Act, I grant leave for the plaintiff to bring common-law proceedings for both pain and suffering damages and pecuniary loss damages in respect to that injury.

110 I will hear the parties on the question of costs.

ANNEXURE “A”

1 The plaintiff tendered the following documents:

Exhibit A:
– Affidavits of the plaintiff sworn 10 April 2012 and 11 October 2013 (found at pages 6-22 of the Plaintiff’s Court Book (“PCB”).
Exhibit B:
– Medical reports of the treating general practitioner, Dr Baglar, dated 21 September 2009, 13 December 2010, 19 April 2011, 21 November 2011, 25 February 2013 and 19 August 2013;
– The medical reports of the treating neurosurgeon, Mr Jithoo, dated 16 March 2010, 7 April 2011, 23 May 2011, 31 May 2011, 19 August 2011, 12 January 2012, 20 February 2012 and 8 August 2012;
–The report from the treating physiotherapist, Ms Huong, Nguyen, dated 24 November 2013.
All such reports found at pages 43-56.1, 63.1-63.12 and pages 96-99 PCB.
Exhibit C:
– CT scan of the lumbosacral spine dated 9 October 2010, found at page 66 PCB;
– The medical reports of the general and vascular surgeon, Mr Charles Flanc, dated 18 January 2010, 28 March 2011 and 29 July 2013;
– The report of the neurosurgeon, Professor R Bittar, dated 14 August 2013;
– The report from the hand and orthopaedic surgeon, Mr C Haw, dated 2 August 2013;
All such reports are found at pages 68-95 and 100-107 PCB.
Exhibit E:
– Letter from QBE Worker’s Compensation (Vic) Limited dated 17 February 2011;
–Facsimile from QBE Worker’s Compensation (Vic) Limited dated 15 June 2011;
–Surgery request from Dr Rondhir Jithoo dated 8 August 2012;
– Surgery request from Dr Rondhir Jithoo dated 30 September 2010.

All such documents are found at pages 107.1-110 PCB.
Exhibit F:
– MRI report of the lumbar spine dated 23 March 2010;
– A CT intervention dated 4 May 2010;
– Surgery report dealing with the L5-S1 discectomy dated 20 January 2012.

All such reports are found at pages 50-53 of the Defendant’s Court Book (“DCB”).
Exhibit G:
– Documents at pages 58-68 of the DCB.
Exhibit H:

– Notes from Dalton Village Medical Records;

– Notes from the physiotherapy practice, Healthplus Physiotherapy.

All such notes are found at pages 69- 90 of the DCB.

2 The defendant tendered the following material:

Exhibit 1:
– Resignation letter of the plaintiff dated 27 April 2009.
Exhibit 2:
The medical reports of:
–Dr Alan Hill dated 16 June 1992;
–Mr Hadj dated 16 November 1992;
–Dr David Kennedy dated 11 December 1992;
–Ms Robyn Schellenberger dated 7 January 1993;
–Dr P Perlstein, dated 8 September 1993;
–Mr M Shannon, dated 6 July 2009;
–Mr Michael Polke, dated 17 December 2009 and 21 September 2010;
–Mr Gerald Moran, dated 6 August 2012;
–Mr Michael Dooley, dated 24 October 2013.

All such reports are found at pages 3-48 DCB.
Exhibit 3:
– Letter of instruction to the physiotherapist.

[2014] VCC 687

23 May 2014