Alegria v Transport Accident Commission
[2018] VCC 1519
•24 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00930
| IRMA DE CARMEN ALEGRIA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 June 2018 | |
DATE OF JUDGMENT: | 24 September 2018 | |
CASE MAY BE CITED AS: | Alegria v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1519 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to the injuries sustained in the transport accident of 24 November 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr J Valiotis | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Mr P D Elliott QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 24 November 2010 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the spine.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon five affidavits: Three sworn by the plaintiff on 14 November 2016, 1 August 2017 and 12 June 2018; an affidavit of her husband, Oscar Torres, sworn 1 August 2017, and an affidavit of her friend, Rose Gillott, sworn 1 August 2017. The plaintiff was cross-examined. I have not summarised the affidavits or the plaintiff’s evidence in cross-examination; however, I will refer to the relevant evidence in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident; and
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and, then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“… To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at 140
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of, the impairment of a body function.[3]
[3]Richards & Anor v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
12 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
13 The term “serious” requires the impairment, and its consequences, to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](Supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]
14 The wrongdoer must take the victim as he finds him or her. He must compensate only for the damage he has caused. Based on Petkovski v Galletti,[7] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of body function.
[7][1994] 1 VR 436, and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
15 Where the claimant has an injury with numerous consequences, he or she must establish at the time of applying for leave that the injury which has been caused by or is the result of the accident is a “serious injury”. Where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.[8]
[8]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
16 In Peak Engineering & Anor v McKenzie,[9] the Court of Appeal said:
“… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make finding about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no disentangling is necessary.”
[9][2014] VSCA 67 at paragraphs [24] and [25]
The issues
17 Counsel for the defendant informed the Court that:
(a)based on the plaintiff’s history, she was reporting back pain to her general practitioner from 1995, for which she was prescribed medication. In July 2010, she had a fall at work and injured her back and knee, and was prescribed medication of Panadeine Forte. On 24 November 2010, the plaintiff was a passenger in a vehicle involved in a transport accident. The plaintiff returned to work the following day. She continued to work with days off work. Counsel for the defendant submitted that the plaintiff must establish that the aggravation injury, incurred in the transport accident, has led to very considerable consequences;
(b) in this case, the consequences of the aggravation injury do not meet the test of very considerable;
(c) there is an issue as to the plaintiff’s credit.
Credit of the Plaintiff
18 The plaintiff was born in Chile and migrated to Australia with her family in 1977, when aged eighteen. English is her second language, and although an interpreter was available, she only relied on the interpreter when encouraged by her counsel.
19 While the plaintiff appeared to have reasonable fluency, it was apparent her comprehension of English was far from perfect. On occasions, the plaintiff did not respond to questions and was reluctant to answer questions. She made limited concessions. She digressed and provided non-responsive answers. I formed the opinion that the non-responsive answers were not conscious and were not necessarily attributable to language, but rather from a lack of understanding of the concepts that were sought to be drawn out from the evidence. I concluded that she did not understand the process and found it difficult. On occasions, I considered she did not understand the question. For example the plaintiff seemed to accept she could work full time, yet her affidavits were contrary to that, and in re-examination, she said she could not work beyond the seven-day fortnight. Further, this was consistent with what she was reporting to medical witnesses and the views they were expressing as to her work capacity.
20 The plaintiff required directions on several occasions to answer the questions asked. She wanted to ask questions herself and wanted to produce documents to the Court which she brought with her.
21 There were occasions when I formed the view that the plaintiff exaggerated her answers. An example was when she gave evidence that her level of pain had increased from 9 out of 10 to 9.5 out of 10. She then said that after she has rested on her days off, the pain level was 7 out of 10. Overall, I formed the view, for the most part, her evidence was supported by the medical evidence. I note that Mr Michael Dooley, orthopaedic surgeon, said there were no inconsistent findings on clinical examination, but the:
“… constancy and intensity of Mrs Allegria’s (sic) ongoing pain are greater than one would expect to see for her organic condition. I believe that her psychological condition does influence ongoing symptoms.”[10]
[10]Defendant’s Court Book (“DCB”) 22
22 I accept that the process was difficult because English is the plaintiff’s second language, which made it difficult for her to comprehend the issues.
23 Overall, I accept that the plaintiff was truthful, but on occasions exaggerated the consequences.
Analysis of the evidence
Background
24 The plaintiff has a history of lumbar back pain dating back to 1995. She presented to the Emergency Department of the Western Hospital in March 1995, complaining of back pain which was radiating into her right buttock. Her back pain resolved.
25 In January 2009, the plaintiff reported lower back pain. The plaintiff was referred for x-rays of her whole spine. The x-rays of the cervical spine did not show any pathology. The x-rays of the thoracic spine showed that she was suffering from slight degenerative endplate osteophytosis at the T7-8 level. The x-rays of the lumbar spine showed no pathology.[11] She was examined and found to have a stiff lower back with restricted mobility. She was treated with an anti-inflammatory. Her back pain resolved.
[11]DCB 27
26 In July 2009, the plaintiff consulted her general practitioner, complaining about severe neck pain and Depression as a result of separation from her husband. In 2009, she commenced work as a mental health nurse with Melbourne Health, working full time.
27 In July 2010, the plaintiff attended her general practitioner complaining about lower back pain and right knee pain after a fall at work. She had one day off work and returned to work.
28 On 24 November 2010, the plaintiff was a passenger in a vehicle involved in a transport accident. The plaintiff reported back pain, which she described as severe. She returned to work the following day. She continued to work with days off. She underwent conservative treatment and had several ultrasound-guided cortisone injections into her left and right hips.
29 The plaintiff consulted various general practitioners, in particular Dr Luz Conejera, her former general practitioner, who provided her with certificates for her absence from work until August 2011. In July 2011, Dr Conejera indicated that the plaintiff was fit to return to suitable work where no heavy lifting was involved.
30 In 2012, the plaintiff was offered employment with Werribee Terrace, which was close to home and was lighter work. The plaintiff struggled to return to full-time work. She continued to work six days a fortnight.
31 In May 2013, the plaintiff was diagnosed with rectosigmoid cancer. She underwent surgery.
32 The plaintiff has continued to be troubled by constant but variable levels of pain in her spine, particularly her neck and lumbar spine. She has also suffered from constant but variable levels of left hip pain and pain in her left buttock and thigh, which are not part of her claim. She continues to work six days a fortnight at Werribee Terrace and has suffered a loss of four days a fortnight in work when compared with the hours she was able to work before suffering injury in the transport accident. She continues to suffer pain in her spine.
33 The plaintiff is currently receiving treatment from her general practitioner, Dr Qurat-ul-Ain Shafqat, at the Plaza Clinic in Werribee. She now works seven shifts per fortnight. She increased her workload by an extra shift in order to make more money. The plaintiff’s evidence is that she is not coping with the additional shift, but has a mortgage and financial commitments to meet.
34 The plaintiff’s lifestyle is restricted. The more active she is, the more pain she suffers. Her mobility is restricted by reason of the pain. She suffers headaches and migraines on a monthly basis. She is limited in walking, in terms of the pace, distances and surfaces over which she can walk. Her involvement in household activities is adversely affected by reason of the pain she suffers. She relies on family members to assist with the performance of those activities. She has difficulty in engaging in activities with her grandchildren. Her relationship with her husband is strained.
The current medical evidence
35 The plaintiff was medically examined by Mr Thomas Kossmann, orthopaedic surgeon, at the request of the plaintiff’s solicitors in December 2016 and May 2018. Mr Kossmann provided a further report on 17 August 2017. Mr Kossmann diagnosed:
·pain in the cervical spine and thoracic spondylosis on the basis of an aggravation of degenerative endplate osteophytes at T7-8 level;
·lumbar spondylosis on the basis of an annular tear at the L4-5 level and mild degenerative changes in her lumbar spine affecting the L4-5 and L5-S1 levels;
·pain in her left hip on the basis of a small tear in the anterosuperior labrum; pain in the trochanteric, left side, due to trochanteric bursitis;
·retropatellar pain, left knee pain,
·a tendency to fall.[12]
[12]Plaintiff’s Court Book (“PCB”) 66
36 Mr Kossmann was aware of the plaintiff’s history of pain in her spine prior to the transport accident. He accepted that she suffered injuries to her cervical, thoracic and lumbar spine in the transport accident. He accepted that the plaintiff continued to suffer from the injuries she incurred in the transport accident, and she was incapacitated from full-time employment as a mental health nurse as a result of the aggravation of her thoracic and lumbar spine injuries. He accepted that her incapacity will continue for the foreseeable future. He accepted her incapacity for pre-injury employment was influenced by the aggravation of her thoracic spinal condition. He accepted her injuries affected her social, domestic and recreational activities.[13]
[13]PCB 67-70
37 In June 2017 and May 2018, the plaintiff was medically examined by Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, at the request of the plaintiff’s solicitors. He diagnosed:
·chronic and refractory neck, lower back, left hip and knee pain
·Chronic Pain Syndrome
·right foraminal annular tear at L4-5
·chronic headaches and imbalance.[14]
[14]PCB 86
38 It was Dr Aliashkevich’s view that the plaintiff suffered a whiplash injury to her neck, with possible aggravation of pre-existing degenerative disease in her cervical spine as a result of the transport accident. In the lumbar region, she sustained a significant aggravation of a pre-existing moderate degenerative lumbar disease, with possible development of an annular tear at L4-5.[15] He accepted the plaintiff was incapacitated for her pre-injury employment as a mental health nurse by reason of the transport accident-related spinal injuries and hip/knee pain. He imposed work restrictions and said the plaintiff was incapacitated for full-time employment as an aged-care nurse by reason of the transport accident spinal injuries and hip/knee pain.[16] She has a reduced capacity in household activities.[17]
[15]PCB 74
[16]PCB 82
[17]PCB 87
39 In August 2017, Dr Conejera, general practitioner, reported that the plaintiff suffered whiplash injuries and back injuries as a result of the transport accident. She did not suffer these pains before. As a result of her injuries, she became stressed, anxious and depressed. Her personal life is limited. She cannot bend or lift more than 5 kilograms, and is limited in her recreational and social activities.[18]
[18]PCB 88
40 In June 2017 and May 2018, the plaintiff was medically examined by Mr Dooley, orthopaedic surgeon, at the request of the defendant. Mr Dooley diagnosed a soft tissue injury to the cervical spine and lumbar spine regions as a result of the transport accident. He was aware that the plaintiff was symptomatic from lower back pain prior to the transport accident. It was his view that her current complaints of lower back pain relate to the soft tissue injuries sustained in the transport accident. Mr Dooley accepted that the plaintiff was working seven days per fortnight and that her current duties are light, with dispensing medication, checking patients and doing dressings. He believed that the plaintiff would struggle to work more than four days per week. He accepted that the soft tissue spinal injuries would interfere with the plaintiff’s ability to carry out regular heavy household chores and that she would have difficulty engaging in active impact leisure pursuits. He accepted that the restrictions the plaintiff experienced were in part due to the soft tissue spinal injuries sustained in the transport accident but also in part to her pre-existing symptomatic degenerative disc disease of the spine. He made the comment that he considered her psychological condition influences her ongoing symptoms.[19]
[19]DCB 15-16
41 Counsel for the defendant submitted that the opinion of Mr Dooley that the plaintiff could not work more than four days a week was based on her psychological and organic condition. Mr Dooley is an orthopaedic surgeon; accordingly, I accept his expertise on orthopaedic matters.
42 There was no expert evidence from a psychiatrist or psychologist that the plaintiff received treatment, nor that a psychiatrist or psychologist had been retained to examine the plaintiff in connection with this case. In the absence of such evidence, I am reluctant to conclude that the plaintiff has a psychological condition which influences her ability to work ten shifts per week.
43 Mr Dooley said that it was his view that it is more likely that the plaintiff’s complaints of lumbar spine and cervical spine pain prior to the transport accident related to naturally-occurring and age-related degenerative changes within the lumbar and cervical spine region. He did not believe the plaintiff injured her left hip and left knee in the transport accident. This was consistent with the view of Mr Raghavan Unni, treating orthopaedic surgeon.
44 In August 2012, Mr Unni examined the plaintiff on referral from her general practitioner for ongoing left loin and knee pain. It was his view the plaintiff suffered a soft tissue injury around her loin area, with no major bony pathology. He considered there was a possibility that her pre-existing early arthritis had been aggravated by the injury and it would settle given enough time.[20]
[20]DCB 9
45 The left knee and hip complaints were not part of the plaintiff’s claim. I note that the only medical witness who attributes the plaintiff’s incapacity for pre-injury employment due to the transport accident-related spinal injuries and hip/knee pain is Mr Aliashkevich. I rely upon the evidence of Mr Kossmann and Mr Dooley.
Aggravation injury
46 The plaintiff’s evidence was there were reports of back pain in the records of Western Health in March 1995. She believed that those reports related to her fifth pregnancy, which was confirmed by ultrasound on 4 May 1995. Generally, she has had some backache and pain associated with her pregnancies. In 2009, the records of her treating general practitioner, Dr Conejera, disclosed complaints of spinal pain and referral for an x-ray in January 2009, although no significant abnormality was disclosed in her spine. She was prescribed Panadeine Forte for pain and the anti-inflammatory medication, Mobic, at this time. She was able to continue with her work as a nurse despite these problems. In July 2010, she further complained of lower back pain following a fall at work. She was absent from work on that occasion for one day. The plaintiff’s evidence in re-examination was that the pain she suffered prior to the transport accident was not as severe as the pain she suffers now.
47 Based on the medical evidence, prior to the transport accident the plaintiff was intermittently symptomatic from lower back pain and, on occasion, neck pain; however, the plaintiff was able to undertake full-time physical work. Mr Kossmann, Dr Aliashkevich, Dr Conejera and Mr Dooley were aware of the plaintiff’s pre-injury complaints of spinal pain. Mr Kossmann and Dr Aliashkevich said the plaintiff suffered an aggravation injury to her spine as a result of the transport accident. Mr Dooley said the plaintiff’s complaints of pain related to the transport accident, pre-existing symptomatic degenerative disc disease of the lower lumbar spine, the natural evolution of this condition and to her psychological reaction to her situation.[21]
[21]DCB 15-16
48 Prior to the transport accident, I accept that on occasions the plaintiff reported back pain. Her complaints were in the context of when she was pregnant, and following a fall at work, when she had one day off work, and the fact that she worked as a nurse. She was prescribed medication. The evidence was that she continued to perform work as a nurse, including as a mental health nurse. At the time of the transport accident she was working, as well as engaging in activities of daily living without restrictions. Accordingly, on a Petkovski v Galletti[22] analysis, the impairment of the spine is, in large part, referable to the transport accident injury. This is in accordance with the medical evidence of Mr Kossmann, Dr Aliashkevich, Dr Conejera and Mr Dooley.
[22]Supra
Consequences
49 The issue is whether the consequences of the aggravation injury sustained in the transport accident satisfy the statutory test. I must make the assessment of the plaintiff at the time of hearing the application. I must decide whether the impact of the plaintiff’s consequences, when judged by comparison with other cases in the range of possible impairments or losses, are fairly described as being “more than significant or marked” and as being “at least very considerable”. Accordingly, I will examine the consequences to the plaintiff’s spine as at the time of hearing.
Pain
50 The plaintiff’s evidence is that she suffered variable levels of pain following the transport accident. Her current evidence is that she suffers spinal pain which is present all the time. The pain affects her movements, and her ability to remain standing or seated comfortably for longer periods. Her neck pain impacts upon her, in that she suffers headaches and migraines regularly. The pain makes it difficult for her to bend over and stretch down, and she has difficulty putting on shoes and socks on occasions, and requires assistance from her husband.
51 In May 2018, the plaintiff reported to Mr Kossmann, pain in her cervical and lumbar spine. She reported difficulties with activities of daily living, for example putting on shoes and socks, and said that her husband has to cut her toenails. The plaintiff reported to Dr Aliashkevich chronic pain at an intensity of 9 out of 10 and more recently 9.5 out of 10 on the left side of her neck, as well as pain in her hip and knee, which are not part of this claim and which I do not take into account.
52 In re-examination, the plaintiff said her pain level has always been 9 out of 10. She also said she had most pain at night, and in the afternoon around 4 o’clock after she finishes work. She was asked what her level of pain was before she went to work. She said it depends, because some nights she cannot sleep. She said that after she has rested and recuperated on her days off, her pain level would be 7 out of 10.
53 The plaintiff reported pain to Mr Dooley. Mr Dooley noted that there were no inconsistent findings on examination. He accepted that the constancy and intensity of her ongoing pain was greater than he would expect for her organic condition, and he believed that her psychological condition does influence ongoing symptoms.[23] Given my comments in paragraph 42, I do not accept that the plaintiff’s psychological condition influences her ongoing symptoms.
[23]DCB 22
54 I accept that the medical witnesses accepted the plaintiff suffered pain. Mr Dooley was the only medical witness to suggest the intensity and constancy was greater than he would expect. He noted that there was no inconsistency in findings on examination. Taking into account the medical evidence and the plaintiff’s evidence, I accept that the pain the plaintiff suffers is a consequence which I can take into account.
55 In assessing the pain, I will consider the level of treatment the plaintiff receives.
Treatment
56 The plaintiff’s evidence is that she is reviewed by her general practitioner. She takes four Mersyndol Forte tablets per day for spinal pain, and these tablets assist with easing headaches and migraines. She also takes Panadol and Nurofen and has attempted to alternate between the three medications due to the strength of the Mersyndol Forte. The Panadol does not provide the same relief as the Mersyndol Forte. She also takes Lactulose due to the constipation she suffers as a result of the above-mentioned medication. The plaintiff reported using heat packs, applying Deep Heat rub on her back and taking medication at work to get through the day. The plaintiff was not challenged in cross-examination as to the level of medication she takes.
57 The plaintiff reported the medication she takes to doctors. No doctor made any adverse comment about the medication. Mr Kossmann said the plaintiff will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possible acupuncture. Dr Aliashkevich said the plaintiff may benefit from consultations with a pain specialist and neurologist. Mr Dooley said it was reasonable for the plaintiff to use hot packs, linaments and simple analgesia. He did not believe she required formal ongoing conservative treatment or operative intervention in her management.
58 I accept that the medication the plaintiff takes is a consequence which I can take into account. I refer to the judgment of Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd,[24] where she said:
“…The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[25]
[24](2007) 17 VR 592, 629 at paragraph [199]
[25]See also Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 and Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
59 I accept that the level of medication and treatment the plaintiff relies on is a consequence which I can take into account. I accept this is a consequence in the middle end of the range and is indicative of the pain the plaintiff reported, which is at the medium to high end of the range.
Work
60 The plaintiff’s evidence was that before the transport accident she had a capacity for full-time employment.[26] In fact, on occasions she had worked two jobs. Before the transport accident, she was able to work full time as a mental health nurse, which was “high care” work and physically demanding work. The evidence is that in June 2012, she obtained employment with Melbourne Health working full time. Since the transport accident, she has reduced her hours of work to eight-hour shifts, six days per fortnight, and is performing less physical work. Currently, she works in aged care where she is administering medication. The plaintiff’s evidence is that recently she has increased her days of work to seven days per fortnight because of financial commitments. She is not coping well with the added shift, because she has less time to recover in the fortnight.
[26]PCB 93
61 The evidence of the plaintiff’s husband is that the plaintiff continues to struggle with work, and by the end of a day’s work she is complaining to him of increased pain.[27]
[27]PCB 25-26
62 The medical evidence as to the plaintiff’s current work capacity was expressed by Mr Kossmann, Dr Aliashkevich and Mr Dooley. Mr Kossmann said the plaintiff was incapacitated for full-time employment as a mental health nurse as a result of her spinal injuries. He said she has a work capacity and works part time. He imposed work restrictions upon the plaintiff. Further, time will tell how long the plaintiff is able to work in this employment. He was aware that she now works as an aged care nurse, which involves dispensing medications, checking blood levels, administering injections and applying dressings.[28]
[28]PCB 67-69
63 Dr Aliashkevich said that the plaintiff is currently incapacitated for employment as a mental health nurse by reason of her spinal injuries and hip/knee pain. He was of the opinion that she was currently incapacitated for full-time employment as an aged care nurse by reason of the transport accident injuries.[29] He imposed restrictions of inability to perform repetitive or sustained bending and twisting, inability to lift weights in excess of 5 kilograms and an inability to stand for more than thirty minutes.[30] Her general practitioner agreed that the plaintiff was incapacitated for full-time employment.
[29]PCB 82
[30]PCB 74 and 86
64 Mr Dooley said that the plaintiff informed him she had been working three days per week, six days per fortnight, and that she now works seven days per fortnight. She described to Mr Dooley that overall her duties are light, with dispensing medications, checking patients and applying dressings. It was Mr Dooley’s belief that she would struggle to work more than four days per week.[31]
[31]DCB 23
65 I accept, based on the medical evidence, that the plaintiff has lost the capacity to perform full-time work as a mental health nurse because of her spinal injury alone. Currently, the plaintiff is working seven shifts per fortnight performing less demanding work. This is a consequence I can take into account. Given the plaintiff’s evidence that on occasion prior to the transport accident she worked two jobs, I accept this is a consequence at the mid to high end of the scale.
Activities of daily living
66 The plaintiff’s evidence was that she has difficulty completing her housework. Her husband performs the heavier tasks, she takes time getting things done and has to work at her own pace. The plaintiff’s evidence was that her daughter also helped her significantly with cleaning duties and keeping the house neat.[32] The husband’s evidence was that he assists considerably in the performance of household tasks such as cooking, cleaning, laundry, vacuuming, mopping, sweeping and attending to the garden. These are all tasks and activities which the plaintiff would previously have pursued, but which he must now undertake. He said the plaintiff’s ability to perform movements such as bending and squatting are restricted. Her sitting and standing for extended periods appears to be limited by the pain that she is in.[33] The medical witnesses all accepted that the plaintiff would have difficulty with household tasks.
[32]PCB 22
[33]PCB 26
67 I accept the activities the plaintiff performs are limited by the pain she suffers in her spine. I accept that she was able to perform these activities prior to the transport accident. I accept this is a consequence which I can take into account, which I assess as at the middle of the range.
Grandchildren
68 The plaintiff’s evidence is that she is restricted in playing with her grandchildren because she has difficulty lifting them and, in particular, with physical activities such as sports. Even running around the park with them is difficult. Given the medical evidence, I accept that the plaintiff would be restricted in these activities. I accept this is a consequence which I can take into account, which I assess at the low end of the range.
Sleep
69 The plaintiff’s evidence is that her sleep has been affected. The plaintiff’s evidence is that, despite the fact that she is tired as a result of work, getting to sleep is a struggle. She is often woken by pain. The plaintiff reported this to a number of the medical witnesses. There was no evidence that the plaintiff required medication to assist with sleep.
70 I accept that difficulty with sleeping and being woken by pain is a consequence I can take into account. I assess this consequence at the low end of the scale, given her lack of reliance on sleep medication.
Conclusion
71 I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, her husband and the medical evidence. I accept the plaintiff had a physically active life. She had been in full-time employment prior to the transport accident and I accept that she has continued working, but in a less physical job, working part time, and works with pain, her pain levels increasing as the week progresses.
72 I am satisfied that the plaintiff was involved in a transport accident which resulted in her experiencing symptoms of a physical nature. The consequences of her spinal injury alone have impacted upon her life as she knew it before the transport accident. She has suffered for six years and the medical evidence is guarded as to the future. I accept the plaintiff’s spinal injury is long term.
73 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to her of her impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attribute appropriate weight to each consequence in light of the evidence.
74 I accept that the spinal injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of hearing, as “at least very considerable” and certainly “more than significant or marked”. In making this assessment, I have looked at the consequences of the spinal injury alone.
75 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages as a result of the transport accident.
76 I will hear the parties on costs.
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