Apted v Australian Medical Association (Victoria)
[2012] VCC 1819
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06212
| CARMEL MARY APTED | Plaintiff |
| v | |
| AUSTRALIAN MEDICAL ASSOCIATION (VICTORIA) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| and | |
| ALLIANZ WORKERS’ COMPENSATION (VIC) LIMITED | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 19, 20, 21 and 22 November 2012 | |
DATE OF JUDGMENT: | 13 December 2012 | |
CASE MAY BE CITED AS: | Apted v Australian Medical Association (Victoria) & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1819 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – neck injury – pain and suffering damages only – application of Petkovski v Galletti – whether impairment satisfies the “narrative test”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(a) and (b)
Cases Cited: Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in relation to her neck injury on 13 June 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr A E A Macnab | Petersons |
| For the Defendants | Mr R K Meldrum QC with Ms S Manova | Wisewould Mahony |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 20 December 2011, Carmel Mary Apted (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for injury to her neck arising out of or in the course of her employment with The Australian Medical Association (Victoria) (“the first defendant”) on 13 June 2008 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff; Dr Threlfall, a treating general practitioner; and Mr J Arico, a treating physiotherapist, gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant Legal Principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 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 … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the neck.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” was suffered in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999;[3]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[5]
The test for “serious” is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [11]
[4]See Barwon Spinners (op cit) at [33]
[5]See s134AB(38)(b) and (c) of the Act
8 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 into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]
(d)notes that it has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89] – [92]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Senior Counsel for the first defendant informed the Court there was no issue that the plaintiff had suffered a compensable injury with some impairment and some consequences. The issue between the parties was as to whether or not the consequences of any impairment satisfied the narrative test – essentially, it was that type of case referred to as a “range case”.[10]
[10]Transcript (“T”) 14, L31 – T15, L16
The Evidence of the Plaintiff
10 The plaintiff gave evidence that she had sworn two affidavits – the first on 20 November 2011 and the second affidavit earlier that morning (i.e. 19 November 2011).[11]
[11]See Exhibit 3 at pages 24-39 DCB
11 The plaintiff also gave evidence in relation to the circumstances of her taking all of her long service leave and outstanding annual leave shortly after the occurrence of the injury. As a result of taking such leave, the plaintiff was off work until early November 2008. In particular, she stated:
“My husband had been working at Geelong Grammar for 31 years at that point and had accumulated a year and a half of long service leave. We were planning to take some time. In March I initially applied for 30 days of annual leave, and subsequently approached the CEO and said would it be possible for us to have a more extended period of time. My husband was keen to take six months off and so I requested that I be able to take my full long service leave. I didn’t quite take the lot but I added that on. That was organised prior to the accident, but it was quite fortuitous that it did then provide me with the opportunity to take some time out to give myself a sense of opportunity to recover without the drive, without the computer, and with all of those things associated.”[12]
[12]T17, L9-23
12 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
· She is a sixty-one-year-old married woman who holds a Higher Diploma of Secondary Teaching, a Graduate Diploma of Business in Marketing (1999-2000) and a Master of Business in Marketing (2002).
· She was employed as a secondary school teacher over the period from 1974 to 1993.
· She commenced employment with the first defendant in May 1994, initially as a membership services officer, then as a membership co-ordinator, and from August 2004, as a membership and recruitment co-ordinator.
· In her role as the membership and recruitment co-ordinator of the first defendant, she was made responsible for the first defendant’s Victorian membership recruitment and retention functions, which was targeted at doctors and medical students.
· On 13 June 2008, she suffered a neck injury arising out of the course of her employment with the first defendant. In her affidavit, she annexed what is referred to as an “Incident Report”, wherein she describes the circumstances of the injury in the following terms:
“On Friday 13th June at approximately midday I attended the Royal Children’s Hospital as the representative of my company, the Australian Medical Association Victoria. AMA Victoria was sponsoring the General Paediatric luncheon in the Vernon Collins Lecture Theatre on Level 4 of the main building.
…
[After the function when she was walking in the car park] … a vehicle was heading straight at me. I immediately stopped to allow it to pass. I failed to notice any boom, which in hindsight must have been raised and obscured from my vision.
Once the car had passed, I proceeded down the road. I was immediately struck hard on the top of my head by the boom. I do not believe the boom went back up when it hit me full on the top of the head.
I was stunned. My head hurt. I became tearful. I went up closer to the exit booth but no one was there to assist me. … .”[13]
[13]See Exhibit 3 at pages 31-32 PCB
· She was taken to the Royal Children’s Hospital Emergency Department, placed in a cubicle and given an ice pack. She contacted a representative of the first defendant, who in turn took her to The Royal Melbourne Hospital Emergency Department, where she was examined by a Dr S Pinkus.
· She contacted her daughter, who is an Emergency Department nurse at The Royal Melbourne Hospital, and she drove the plaintiff to her home in Geelong.
· As at the date of writing the Incident Report (16 June 2008), the plaintiff noted that her head was still very sore and now her “neck and upper spine (near my shoulder blades) is at times quite sore”.
· She ceased work with the first defendant on 3 December 2008 after fourteen-and-a-half years of service, and such resignation was in part –
“… because of my neck problems and difficulty with driving to and from Melbourne. Other factors were length of service and the years of driving but my neck injury brought the decision to a head. … .”[14]
[14]See Exhibit 3 at page 25 PCB
· At the time of her resignation she was earning $85,000 per annum as a “package”.
· She was living at Geelong Grammar School with her husband, who is the Director of Planning, and from February 2009, commenced work as an English tutor on a casual basis, earning approximately $4,000 per annum.
· She describes her ongoing difficulties since the injury in the following terms:
“7.I have ongoing pain and disability affecting my neck, shoulders and hands. I have difficulty driving a car long distances, sitting in a static position, doing activity where arms are above shoulder height or sitting at a computer. I am restricted in the type of work I can perform and do not believe I could return to the daily commute to Melbourne where most of my employment opportunities lie given my training and work history. Financially I am struggling and need to find suitable employment but to date I have been unable to find any.
8.I used to be very physically active before my injury. I used to be part of a crew on a yacht which we would race in competition. I was main sheet hand. I also used to run and jog regularly and go on skiing trips in winter. I now limit my physical activity to going on walks.
9.I have difficulty dressing and getting a good night[’]s sleep.
10.I am a mother and grandmother and my ability to assist with my extended family and care for my grandson is curtailed. I still do what I can around the house but I am limited in the overhead or heavier chores. I still tackle jobs such as vacuuming but it takes a lot longer and I need to take breaks.
11.I find my relationship with my husband has been affected as we used to participate in hobbies together such as yacht racing and he does not understand. I have also lost confidence and I get down about my change of circumstances and the physical pain from which I suffer. This also affects our social and intimate relationship.”[15]
[15]See Exhibit 3 at pages 25-26 PCB
· She went overseas with her husband from April to early June 2010 and developed a flare-up of neck symptoms on the return flight and has had ongoing physiotherapy since then with Joe Arico at the Villamanta Sports Clinic. She has also been attending Dr Threlfall for medical review.
· Dr Threlfall arranged for her to undergo an MRI scan of her neck and she was also referred to the neurologist, Dr Cameron Shaw, who recommended ongoing treatment. Although he recommended that she take anti-inflammatory medication, she is unable to do so as it affects her stomach.
· She has been applying for jobs in the Geelong region in administration but has not been successful to date. Although she believes that she could work to a greater extent than she is currently working, she does not believe she could cope with work where she had to commute to Melbourne.
13 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
· She continues to experience fluctuating neck pain, with the pain sometimes travelling to her thoracic and shoulder regions.
· When the pain is “really bad”, the pain also radiates into her neck and head.
· At times she suffers numbness in both hands.
· Her neck movement is “very restricted” and she has difficulty keeping her neck in a flexed position for a lengthy period. She also has difficulty twisting and turning her head and in particular, notices difficulties with her neck movement when reversing whilst driving a car.
· If she undertakes activities involving lifting, pushing or pulling, she suffers from worse pain, and her symptoms are worse in cold weather.
· She tries to manage her symptoms by avoiding activities that are likely to cause her increased pain, although there are times when she has been too active and she suffers from worse pain.
· She takes Panadol from time to time and has physiotherapy treatment when her symptoms flare up. In recent times, she wanted to recommence physiotherapy treatment but was advised that the insurer would not fund this treatment.
· She continues to have problems with sleeping and is “often woken by neck pain during the night”.
· In particular, the plaintiff describes the following restrictions:
“10.I have been a member of the Royal Geelong Yacht Club for an extended period of time. I have sailed competitively over the years. My husband and I purchased an Adams 10 metre racing yacht. We raced the yacht competitively. I very much enjoyed sailing. It was a significant interest that my husband and I shared. It was also an important feature of my social network. Whilst we raced competitively on the weekend, the midweek races were much more social.
11.After I suffered my injury I tried to return to sailing, however I was unable to cope and suffered significantly worse pain after sailing. As a result I no longer sail. My husband continues to race yachts without me. My inability to sail, by reason of my neck injury, has been a very considerable loss to me and it has been a detrimental impact on my relationship with my husband.
12.My husband and I have been a member of a ski lodge at Falls Creek for about 20 years. I used to very much enjoy skiing. Since suffering injury I have not attempted to ski as I am too worried about the consequences if I was to fall. My husband and I are currently in the process of trying to sell our share in the ski lodge.
13.My husband has recently retired. Over a period of about 34 years he was a senior member of staff at Geelong Grammar School. After we both retired it was always our intention to travel and sail extensively. My husband still talks about his desire to do so, however, the prospect of travel now causes some dread in me as I am very concerned about how I will cope.
… .”[16]
[16]See Exhibit 3 at pages 39B – 39C PCB
· She is currently working about five hours a week, and believes that she could do more work than this but does not believe she would be able to cope with a full-time job. Furthermore, she does not believe she can sit in front of a computer screen over an extended period of time, and when she has tried to do such activity, she suffers considerably worse pain.
· She has two grandchildren, aged six months and two years, and at present she is helping out about once per fortnight with childminding. Her ability to play and integrate with her grandchildren is restricted and she has to be careful with what activities she undertakes with them.
· She has difficulties at times in undertaking household cleaning and although she does as much as she can, she has to pace herself in performing such activities.
· She is no longer capable of assisting her husband with the heavier household maintenance and gardening tasks that she would have performed prior to the injury.
· Prior to the injury, she kept house in a particular fashion and since the injury, she has had to drop her “standards”, which she finds very frustrating.
The Cross-Examination of the Plaintiff
14 The plaintiff was extensively cross-examined by Senior Counsel for the first defendant. Under such cross-examination, she gave the following salient evidence:
· Prior to her injury, she was not planning to leave the employment of the first defendant.
· She performed most of her skiing at Hotham, and Falls Creek, Victoria, and in 1988, she and her husband bought a membership of a ski lodge at Falls Creek.
· She started skiing in or about 1972, and although not professing to be a “brilliant skier”, she enjoyed skiing.
· She had had some difficulties with her knees prior to the injury and had attended an orthopaedic surgeon, Mr Rodney Brink. However, any pain that she had in the knees did not affect the frequency of her skiing or the pleasure that it gave her.
· In particular, the plaintiff was taken to a medical entry on 3 July 2004 wherein it was recorded that she was complaining of pain in the right knee for about a week, causing her to limp. A few months prior to the injury, she did recall that the knee did swell on occasion, but again, this did not affect her ability to ski. She believes she last skied before the accident in 2007, and further, believes that over a five-year period leading up to the injury, there may have been one year that she did not ski, and over the years that she did ski, she would attend four or five times a year.
· Since the injury, she has not been to Falls Creek in the ski season at any time.
· Prior to the injury, when she went skiing, it was always with her husband, and since the injury, her husband has attended the Falls Creek lodge on at least two occasions without her.
· She commenced sailing in her early twenties and then sailed with her husband before having children. When her children were small, she and her husband stopped sailing for a period of time and were involved in different motor vessels until about 2003, when they decided to go back into sailing and purchased an Adams 10 yacht. At the time of the injury, her husband owned an Adams 10.6 yacht which was sailed competitively.
· Prior to the injury, she sailed with her husband in Saturday competitions and would also attempt to sail in Wednesday competitions, which were far more social.
· She attempted to leave the premises of the first defendant earlier on Wednesdays to perform in such races late on Wednesday afternoons. She believed that she would make it “about twice” a month.
· The summer sailing season commences in or about October or November and there would be regular Wednesday afternoon sailing most weeks, with some exceptions, when particular regattas are held. Throughout this period, there is far more competitive racing undertaken on Saturdays and, on occasion, two races on a Saturday.
· There is also sailing on Saturdays during the winter season, although not as many people engage in that activity as it is much rougher.
· She estimates that she sailed fewer than fifteen times on Wednesdays over the calendar year leading up to the injury.
· She accepted that in a transport accident in 1999, her claim form made reference to neck, back, numbness in right hand and leg.
· In early 2006, she had shingles and she shortly thereafter consulted her physiotherapist, because her neck pain was quite severe and she believed that such neck pain may have been affected by the shingles.
· When asked about any neck pain prior to the occurrence of shingles in early 2006, the following evidence was given:
Q:“Now had you any neck pain at all in the 12 months before you got the shingles?---
A:I don’t recall the details, but I do know that as part of my work at the AMA during un-financial times, when I might be faced with 700 un-financial doctors that I had to contact, by phone, and try and track where they were, there was a lot of time spent over perhaps a two month period on the phone, on the computer and it was fairly relentless, and on those occasions, yes, I experienced neck pain.
Q:And that had been for how many years before 2006, that on those occasions as you described them, did you experience neck pain?
A:Well, I was responsible for the financial side of that aspect of membership for – sorry, I am trying to – pre-2004, probably several years I would have been doing that same work.”[17]
[17]T66, L12-26
· She accepted that for some years prior to 2006, she was likely to experience some pain in her neck at or about those times when she was required to make a variety of phone calls. During some years, she experienced some restriction of movement in the neck also.
· When questioned about the severity of symptoms in her neck prior to the injury, the following evidence was given:
Q:“If I deal with the severity of the symptoms, do I take it you also can’t recall whether they were becoming more severe, less severe or just fluctuating?---
A:In which period are you referring?
Q:After you commenced to work with the AMA and before you had your accident on 13 June 2008?---
A:They would have been more severe, if I sought X-rays and physiotherapy treatment, with greater frequency than prior to joining the AMA, and you will have the record of that.
Q:Did you know that in fact you did seek both X-rays and physiotherapy more often after you started at the AMA?---
A:Yes.
Q:It follows therefore as day follows night that the symptoms were becoming both more frequent and more severe?---
A:Yes.
Q:This continued right up to the time of the accident in June of 2008, is that so?---
A:Sorry, could I have the question again?
Q:Yes. This increase in frequency and severity continued right up to the time of the accident of 13 June 2008?---
A:You’re making it sound as if I had this increasing problem with my neck and it was ongoing all the time, and that’s not how it was.
Q:No, I haven’t said all the time I have said increasing in frequency and severity, not there all the time, not constant 24/7 360.25 days a year, 365.25, I have said more often and worse right up to the time of the accident in question. Is that true?---
A:Yes.
Q:Thank you. Now, there really was no great aggravation after the accident, what had been the pattern before the accident continued to be the pattern after the accident, didn’t it?---
A:No.
Q:So what was the great aggravation? Were they more often or more severe, or both?---
A:All right, in 2004 the role of having to phone un-financials was removed from my — I got an assistant and it was her job to take over that role. So from 2004 when she joined the AMA that particular role was not mine, so I’m not - I can’t track what the physio detail was, you will have all that, but I think saying that the severity was ongoing prior to the 2006, will need to modify perhaps the occurrence over that period of time.”[18]
[18]T 72, L15 – T 73, L23
· After a series of questions in relation to her situation after the injury, the plaintiff gave the following evidence:
A:“Your Honour, the frequency of the symptoms changed enormously, far more occurrence, there were different problems, sleep deprivation, inability to do the lifting thing, even putting clothes on the line is a problem. I still do it, as you do. The frequency of it is far more increased, the intensity of the pain is more. And when I have flare-ups and I end up with the pain going across the top of my head I try and seek physiotherapy for as brief a period of time as I can, because I don’t want to - sorry, I don’t wish to be a burden or a neurotic woman.
Q:Just take your time? It is important I hear all this, so just take your time - you will be here for a little bit longer today and then your part will be finished, so just take your time?---
A:I am sorry.
Q:That’s fine, that’s fine. It is important that you just say what you want to say, so just gather yourself and tell me anything more you want to say?---
A:Certainly. My claim is that the injury has had a serious impact on - on my ability to do a whole range of different things, I can’t sit on a boat like I used to, with ease, with which I used to, and look up at the main and adjust the sail and be part of what was a big part of my life. Things like holding my grandchildren, I have to be careful about how long I hold them, the two year is quite heavy now, I still like a cuddle, that aspect of my life is impacted. I used to keep house in a very meticulous way, I am still fairly fussy, but I have to modify what I do I will need to buy myself a decent vacuum cleaner that is self drive, I haven’t done that as yet because I find the job of vacuuming - just basic things like that, are more of a problem than they were before. Driving a car, it’s a case of turn in the chair, rather than having to - and using the side mirrors. So a whole range of aspects of my life have been changed. I try to manage as best I can, because this is what I’ve got, but it has had a significant impact on my life. It isn’t - I don’t dispute at all that I have a history of having had problems with my neck but this incident has had an incredible impact on the pain and my ability to do a whole range of other things. In terms of future employment I’ve sought a number of jobs, I did wonder about applying at the TAC, and what just might be revealed in my report there, but never mind. I have applied for a number of other jobs but the job market in Geelong is not great for the sort of roles I am looking for and so I’ve continued to - I re-registered as a teacher, which I did early in the piece as a sort of fallback back position, and I do that. But I am not sure how much - as much as my head wants to be working a lot more and I want to be involved, I don’t know how much I could do.”[19]
[19]T74, L9 – T75, L27
· The last time she sailed with her husband in a competitive race was about a year ago when she assisted in a race to Port Arlington, and also, she believes she may have sailed a couple of times in Wednesday races but “by and large [she] does not tackle the main sheet”.
· In particular, in competitive racing, she was the main sheet hand and although she may have done this for some time after the injury, she has not been engaged in that role from about 2010.
· The yacht is rarely used for cruising. She explained that the role of a main sheet hand is to be sitting next to the skipper on the yacht and adjusting the mainsail to maximise the wind draft through the sail in order to get maximum speed, manoeuvring a rope and what she referred to as “flicking it off and on”. In particular, it is necessary to watch the “tufts” on the sail in order to see whether or not the wind is blowing backwards.
· When queried as to the frequency of such activity in competitive racing, the plaintiff stated:
“… Constant. The main sheet controls the – controls what happens. So if you - if you get hit with a gust of wind and the skipper can lose control, so it’s important to be quick to just let it out or pull it in, but mainly to let it out when you’re in a dangerous situation. So go off the wind in order that you can get out, and bear in mind that yacht sailors are fairly competitive types, so they’re all in it to win and they’re all tacking across and carrying on, so it’s - when you’re in a race it’s a fairly full on constant sort of thing.”[20]
[20]T88, L5-18
· She explained that Dr Newman has been her regular general practitioner for many years. However, he moved surgery and then Dr Dunning was far closer to Geelong Grammar School. When she suffered the injury, Dr Newman was in Tasmania and she needed to see another doctor and thus saw Dr Dunning, and felt it appropriate to carry on with him in relation to the injury.
· Although she believed she was prescribed Panadeine Forte on two occasions, she only had one script filled as such tablets cause her constipation and she considered it was better not to take them.
· From time to time she will take Panadol and will use aspirin, which she buys over the counter from pharmacies.
· In the eleven months to November 2012, she believes that she would have medicated with aspirin about ten times. She also takes Panadol on occasion but stated that she does not take a lot of tablets. She believes that she would have consumed about two to three boxes of Panadol to November 2012.
· Her treatment strategy is to perform exercises, the frequent use of heat packs and, if necessary, attend a physiotherapist in relation to any severe pain or flare-ups.
15 Under re-examination, the plaintiff gave the following salient evidence:
· When queried about her symptoms prior to the injury compared to those after the injury, the following evidence was given:
Q:“You said in answer to a question from my learned friend, his question was, ‘You never had a period before 2008 when you didn’t have neck symptoms from time to time’?---
A:Yes.
Q:So can you contrast please the difference in terms of regularity of neck symptoms before 2008 and the regularity in neck symptoms post-2008?---
A:Certainly. Post 2008 I always had some degree of pain, so when I say I’m symptom free, that means ‘All right, let’s get on with life, I’m fine’. The pain has exacerbated, but it’s one that is constantly there, it’s just the degree of pain that I experience It varies when I have a flare-up, then it needs to be treated.”[21]
[21]T112, L16-27
· She gave evidence that if she does not pursue her walking and exercise program on a regular basis, she suffers various consequences. In particular, she stated:
Q:“What effect does it have on you?---
A:I end up with more of the neck pain and associated – the sleep deprivation.
Q:What does sleep deprivation mean, how many hours … ?---
A:It means that I go to bed, perhaps with a heat pack, I will wake during the night, I might be awake for a couple of hours and then I will fall back to sleep at about six o’clock and sometimes – my husband likes to rise early, sometimes I will still be sleeping when he is up reading the paper.”
HIS HONOUR:
Q:“Over the last 12 months, how often would you say that occurs?---
A:The last 12 months, probably I might have had three months of that, spread over a period of time.
… .”[22]
[22]T115, L6-15
· She refrains from doing heavy duty outdoor work, such as mowing lawns; attending to gardening; assisting her husband with painting.
· When queried about her not being able to sail competitively with her husband, the following evidence was given:
Q:“Are you a competitive person?---
A:I would say yes.
Q:Did you enjoy that aspect of it?---
A:Yes, I loved it.
Q:Do you miss it?---
A:Absolutely. There’s nothing more exhilarating than being out on the bay with a group of people who are reasonably well educated and nice people to be around, in 30 plus knot breezes, just enjoying the sea.”[23]
[23]T122, L17-22
§ When further queried about her role when she was sailing in competitive races, the following evidence was given:
Q:“How do you cope with that?---
A:I find that is one of the things that has really exacerbated my – it’s exacerbated my neck. That looking up is a particularly difficult thing for me now. It hasn’t always been like that. This is primarily post – this is post accident that I’ve had that difficulty.
Q:How high is the mast on your husband’s boat?---
A:A good question. I’d say it’s probably about 50 - the boat’s 10.6 metres, it’d be higher, much higher than that.
Q:So that’s about 30 feet?---
A:Yes, so it’s probably – well, it’s longer than the boat.
Q:Do the tufts go all the way to the top?---
A:Yes. The tufts are along the edge of the sail and there are some more that fly at the back.”[24]
[24]T124, L9-22
· She described that on her husband’s yacht, a thirty-six-year-old female doctor of biology has got the job on the main sheet.
· She would not even try skiing now and she misses it. Her husband has gone up skiing a couple of times since the injury with a friend and she feels a bit “left out” and “annoyed” that she cannot go.
· With her husband retired, she is inhibited as to what travel she can engage in. She gave the example that her husband would love to do a four-wheel drive around the Kimberleys. She believes she just could not handle it.
· She does not believe she could perform full-time work in Geelong but believes she could work about three days. In particular, she stated:
“I don’t think I could physically handle the rigours of – the sort of work I have done has been predominantly administration, marketing, writing marketing material, it is head up and down, it’s the sort of thing that exacerbates.”[25]
[25]T132, L28 – T133, L1
The Medical Evidence Relied on by the Plaintiff
16 The plaintiff has undergone the following radiological examinations of her neck:
(a) A plain x-ray of the cervical spine on 27 January 2006.[26] The radiologist concluded:
[26]See Exhibit 4 at page 47A PCB
“Significant degenerative change is seen at the 2/5/6 level. The spinal canal diameter is reduced with a measurement of 10mm. Degenerative change is seen at the inconvertible joints, most marked at the C5/6 level with narrowing of the right C6 neuro foramen. The bone density is normal. No fracture or other abnormalities seen. Flexion is restricted.”
(b) A plain x-ray of the cervical spine and skull on 5 July 2008.[27] The radiologist concluded:
[27]See Exhibit 4 at page 47B PCB
“… Slight straightening of the normal lordosis with minor retrolisthesis at C4/5 is present. There is loss of disc height at C5/6. Uncovertebral and facet joint degenerative changes are seen at C4/5 to C6/7 inclusive. Vertebral body heights are preserved. Minor right C6 bony foraminal stenosis is seen. There is no focal bony injury or malalignment of the articular columns. The paravertebral soft tissues are unremarkable.
…
…The skull vault is intact with no definite focal bony injury seen. If there is ongoing concern regarding bony injury, CT scan is warranted.”
(c) An MRI scan of the neck on 29 March 2011.[28] The radiologist concluded:
“Degenerative facetal and uncovertebral joint changes worst at C5/6 level where it is almost completely obliterating the right neural foramen and likely compressing the right C6 nerve root. Less severe but similar changes at C6/7 level, narrowing both neural foramina and possibly compressing C7 nerve roots bilaterally.
Both C7/T1 neural foramina are patent with no evidence of C8 nerve root compression.”
[28]See Exhibit 4 at page 47 PCB
17 The plaintiff also underwent electromyographic testing by Associate Professor Peter Gates on 21 November 2000.[29] Professor Gates concluded that the study was normal, without evidence of carpal tunnel syndrome or ulnar nerve lesion. Furthermore, he noted that Tinel’s sign and Phalen’s sign was negative on the left.
[29]See report of same date, Exhibit 4 at page 41 PCB
18 On 11 March 2011, the neurologist, Dr Cameron Shaw, conducted further nerve conduction studies[30] to investigate whether or not the plaintiff was suffering from a left ulnar nerve lesion. Dr Shaw concluded that such study was normal with no evidence of focal ulnar neuropathy.
[30]See Exhibit 4 at page 45 PCB
19 The plaintiff relies on various medical reports from the general practitioners, Dr John Dunning (Corio Medical Clinic); Dr K C L Threlfall (Villamanta Clinic), and Dr John Newman (HealthE Medical Centre). Furthermore, she relies on various letters and reports from her treating physiotherapist, Mr Joe Arico.
20 A perusal of such material reveals that the plaintiff had the following treatment in relation to her neck prior to the injury:
(a) On 14 January 2006, the plaintiff consulted Dr John Dunning, and a diagnosis was made of “left C5/6 PVJ subluxation and ophthalmic herpes zoster”;
(b) On 16 January 2006, the plaintiff consulted again with Dr John Dunning and it is noted that “progressing well neck OK r/v 4-5/7”;
(c) On 21 January 2006, the plaintiff again consulted Dr John Dunning, who referred her to the physiotherapist, Mr Joe Arico, and arranged for x-rays to be taken of her neck;
(d) On 30 January 2006, the plaintiff again consulted Mr John Dunning, who then had available the x-rays of the neck dated 27 January 2006.[31] Dr Dunning notes “… x-rays which confirm severe degenerative disease ...”.
[31]See Exhibit 4 at page 47A PCB
21 The plaintiff initially consulted with the physiotherapist, Mr Joe Arico (on referral from Dr Dunning), on 4 February 2006, and subsequently saw him on 9 February 2006, 16 February 2006, 25 February 2006, 11 March 2006, 25 March 2006, 8 April 2006, 22 April 2006, 24 July 2007 and 4 August 2007.
22 In a letter to Dr Dunning dated 8 February 2006, Mr Arico states, in part:
“Thank you for referring this lady for treatment of her persisting cervicogenic headaches, complicated by a recent episode of shingles to her facial region … [ophthalmic herpes zoster].
She could not recall a specific injury, but noted that she had a sedentary job, commuted to Melbourne on a daily basis and usually read one novel per week.
She complained of right sided neck/occipital pain, which was worse first thing in the morning and with prolonged bending and turning of her neck.
On examination, she was tender over her right C0-2, C3-5 and C6-T1 paravertebral joints, and she had a major restriction with the active movements of cervical extension and right rotation.
On examination of her right shoulder, she had a slight restriction with passive movement of internal rotation, and a mild rotator cuff strength deficit.
As you are aware, x.ray investigation revealed significant degenerative component to her condition.
Initial treatment consisted of gentle passive mobilization of her cervical spine, massage, instruction in appropriate active cervical retraction/rotation stretching exercises, and advice regarding her driving posture, computer set up, reading technique and pillow selection.”[32]
[32]See Exhibit A at page 83 DCB
23 Mr Arico was cross-examined by Senior Counsel for the first defendant and taken through each of his consultations over this period of time.[33] Mr Arico notes that as at 22 April 2006, the plaintiff is “not too bad” and there is, from the records, a gap in treatment until the further consultations on 24 July 2007 and 4 August 2007. Similarly, on 4 August 2007, Mr Arico notes that her condition has “improved”.
[33]See Exhibit A and T179, L18 – T201
24 The plaintiff consulted Dr Dunning on 25 June 2008 and gave a history of suffering injury on Friday, 13 June 2008, when she was hit on her head by a boom gate at the Royal Children’s Hospital. At that time, she was complaining of a stiff and painful neck, and headache. Dr Dunning referred the plaintiff to Dr Kevin Threlfall and recommended that she also undergo physiotherapy with Mr Joe Arico.
25 Dr Threlfall initially consulted with the plaintiff on 3 July 2008 (on referral from Dr Dunning). In a report dated 14 October 2009, Dr Threlfall states, in part:
“She told me that she was employed by the AMA in marketing and management.
She said that on 13/6/08 she attended a non alcohol conference and later was in the car exit region when she was struck on the head by a descending boom gate.
She did not lose consciousness but had some difficulty recalling immediately following events.
She was helped to walk to the rear by RCH emergency where she was observed for an hour. She was complaining of head pain. She said there was no bleeding from skull orifices. She was then assisted to attend the RCH where she was seen by Dr Pinkus, who examined her. She said that some memory loss was noted.
She said after about a day she was still suffering pain in the head but now pain also involved her neck and was felt between her shoulder blades. These symptoms were persisting when seen by me.
Examination revealed tenderness to the right of the vertex of the skull with some skin irregularity here which is where she said that she was hit by the boom gate.
There was painful restrictive range of movement of the cervical spines and tenderness over the scapular and adjacent chest wall.
She was referred for physiotherapy.
When reviewed on 4/7/08 she told me that she was commencing long service leave as of that day.
When reviewed on 8/8/08 she was still complaining of pain felt between the shoulder blades and right side of neck and head pain.
When she was reviewed on 1/9/08, she still had pain between the shoulder blades but now had a good range of movement of the cervical spine.
On 1/10.08 she reported that she now felt good and there was only a little tenderness felt between the shoulder blades. She said that she still had a month’s [sic] of leave remaining.
On the 4/11/08 she phoned to say that she was symptom free and could begin work on the 6/11/08. Therefore a work cover clearance certificate was issued.
There was a past history of a motor vehicle accident on 26/4/99 and this had to result in some neck pain.
Initially this lady did not intend to involve work cover but when she decided to do so she was issued with a work cover certificate restricting neck movement and to avoid duties where concentrating aggravated her head aches.
This lady has not been seen by me since 1/10/08 … .”[34]
[34]See Exhibit 4 at pages 53-54 PCB
26 The plaintiff again consulted the physiotherapist, Mr Arico, on referral from Dr Threlfall. The initial consultation was on 4 July 2008 and thereafter, he consulted with the plaintiff a further approximately sixteen times over the balance of 2008.[35]
[35]See Exhibit 1
27 On 16 February 2009, the plaintiff consulted Dr John Dunning, complaining of low-back pain at the L5-S1 level. Dr Dunning prescribed Panadeine Forte tablets and Panamax tablets, and referred her to Mr Arico. When seen on 23 February 2009, she felt much better after treatment by Mr Arico.
28 I refer to a letter from Mr Arico to Dr Dunning dated 12 March 2009, wherein he states, in part:
“Thank you for referring this lady for treatment of her acute left sided low back pain which came on after a session on the gym rowing machine.
She stated that her condition was aggravated with sitting, walking and twisting.
On examination she was observed to stand with a right sided lumbar twist. She was tender over her L4-S1 intervertebral joint and she had a major restriction with her active range of lumbar flexion, extension and right lateral flexion.
Her treatment to date had consisted of massage, positive mobilization of the lumbar spine, instruction in appropriate active stretching and posture correction exercises and advice in regards to modification of her sitting/bending posture and exercise regime.
When I reviewed her recently she stated her condition was much improved.”[36]
[36]See Exhibit 4 at page 49 PCB
29 On 13 June 2010, the plaintiff again consulted Dr John Dunning, complaining of pain in the neck and left shoulder after an overseas trip to Italy, Greece and Ireland over a period of five weeks. Dr Dunning noted at that time that she was tender at C5-C6 and there was associated muscle spasm. He considered that it appeared to be an exacerbation of her previous condition and referred her to Dr Threlfall and Mr Arico.
30 In a report dated 22 December 2010, Dr Threlfall states, in part:
“… Carmel was seen again by me on the 9/7/10.
On another occasion she told me that she had worked at AMA until December and then she had taken light employment part time at Geelong Grammar and that she had done this for some 18 months. She told me that she had suffered some neck soreness. She also told me that she had been travelling for a few weeks and since returning had suffered a recurrence of neck pain referred into the scapular region.
She then informed me that she required a letter from the doctor to the insurer for her to resume treatment. This was faxed on 27th October and again on 25th November as they said they had not received the first fax.
On examination that day she experienced pain felt in the scapular region with flexion and rotation of her cervical spine.
On 11th October 2010 physiotherapist Joe Arico approached me and in his company we assessed Carmel’s condition. She was still complaining of a tingling in the palm of her left hand which she said had been on and off since the time of her injury.
It was noted that there was a pain restrictive range of movement of her cervical spine. In the area of her hand where she felt tingling, there appeared to be some reduced skin sensitivity in the region of the middle finger. There were no other abnormal neurological signs detected.
It was decided that in view of her persisting pain and loss of range of movement of her cervical spine, and neuropathic symptoms related to her left hand that request be made for an MRI.
This permission was granted but when Carmel was reviewed just today she was free of all symptoms in relation to her hand and it was decided that there was no indication at this time for the MRI to be performed.
…
It is noted that she still suffers from a restricted range of rotation of the cervical spine to the right but this is not a painful restriction rather to be considered as structural and it would be long standing. It is a minimal disability to her.”[37]
[37]See Exhibit 4 at pages 55-56 PCB
31 In a later report dated 20 April 2011, Dr Threlfall notes that the plaintiff was reviewed in January and February 2011, at which time she complained of pain and numbness over the ulnar aspect of the left forearm and into the hand. A nerve conduction study was undertaken and ultimately an MRI scan of her neck was undertaken.[38] Dr Threlfall notes, in relation to the MRI scan:
“Studying the conclusion, it will be noted that the C6 nerve root is probably compressed. However the symptoms that she complains of in regard to her hand are in the area of distribution of the ulna[r] nerve from the cervical 7 & 8 nerve roots. Where she suffers most of the symptoms on dermatome diagrams the finger area is described as more C8. It will be noted that there is no evidence of C8 nerve root compression.”[39]
[38]See Exhibit 4 at page 47 PCB
[39]See Exhibit 4 at page 57 PCB
32 When giving evidence, Dr Threlfall considered that the referred pain to the scapular region which the plaintiff was complaining of, in part, was consistent with the MRI report that revealed compression of the C6 nerve root.[40]
[40]T156, L20-23 and T168, L30 – T169, L4
33 The plaintiff was referred back to Mr Arico, who initially saw her on 9 July 2010, and thereafter on a reasonably frequent basis throughout 2010, 2011, and from the middle of 2012. Again, Senior Counsel for the first defendant cross-examined Mr Arico about each of these consultations, which at various times showed some improvement and then deterioration, and varying restrictions of movement of the neck, although right rotation of the neck was generally restricted to some degree.
34 In a report dated 24 February 2012, Mr Arico states, in part:
“1. On the 13th June 2008, the above mentioned was walking through the entrance of the Royal Children’s Hospital car park, as part of her normal work duties, when a descending boom gate hit down on the top of her head.
This resulted in immediate headache, and right neck and upper thoracic pain.
She was taken to the accident and emergency department of the Royal Melbourne Hospital where she was advised to be driven home and told to review with her family GP.
She saw her GP within the next few days who then referred her to Dr Kevin Threlfall and requested that he continue the care of her work related injury.
Dr Kevin Threlfall referred her to me for physiotherapy treatment.
On initial examination she complained of right sided neck and scapular pain which was aggravated with forward bending, extending and turning of her neck and prolonged sitting, driving and computer use.
On physical examination she was tender over C0-2, C4-7 and T2-5 intervertebral joints with right cervical and thoracic paraspinal musculature. She had significant restriction with her active movements of cervical extension, right rotation and left lateral flexion. She had a moderate restriction with the acute movements of cervical flexion and left rotation and right lateral flexion.
She received physiotherapy treatment which consisted of manual therapy and instruction of appropriate spinal stretching and strengthening exercises and postural advice.
Despite this treatment her symptoms persisted and she underwent a[n] MRI scan on the 29/3/2011. This demonstrated ‘degenerative facet and uncovertebral joint changes, worse at the C5/6 level … where it is likely compressing the right C6 nerve roots … Similar changes at C6/7 level, possibly compressing C7 nerve roots’.
She was reviewed by a neurosurgeon who suggested she continue with ‘ongoing physiotherapy-led rehabilitation approach’ and he offered a repeat review on the event of significant deterioration of her condition.
Her signs and symptoms were consistent with a diagnosis of soft tissue injury to the cervical spine and surrounding musculature.
2. Mrs Carmel Apted’s injury was caused by her employment. Her symptoms came on immediately after the above described work related incident, which would definitely cause a cervical soft tissue injury.
3. Mrs Carmel Apted continues to experience headache and neck pain both of which can be aggravated with extended periods of computer work and driving, high impact physical activity and repetitive bending and extending of her neck. These symptoms and associated incapacity are consistent with her above described work related cervical soft tissue injury.
4. With regard to her pre-injury duties I feel that Mrs Apted would have to limit the amount of her car travel performed and the amount of uninterrupted hours spent at the computer, given that these are both aggravating factors for her condition.
5. Carmel Apted is currently able to perform administrative duties as long as she avoids the aggravating factors noted in the above response.
6. …
7. Carmel Apted is currently self managing her condition with appropriate active spinal stretching and strengthening exercises of postural modification.
… .”[41]
[41]See Exhibit 4 at pages 69-70 PCB
35 The plaintiff also attended Dr Dunning several times in early 2011, complaining of neck pain, and on 11 April 2011, Dr Dunning noted that she had reduced right rotation and tenderness at C5-6 with associated muscle spasm, but no function or motor deficits. Again, he sought some advice from Dr Threlfall as to her future management.
36 The plaintiff was referred to the neurologist, Dr Cameron Shaw, by Dr John Dunning. Dr Shaw examined the plaintiff in or about late May 2011 and obtained the history that after the injury, the plaintiff was prone to severe intermittent neck pain, stiffness and crepitus, with a restrictive range of movement, particularly to the right. In particular, the symptoms are aggravated by repetitive physical activity and are managed with regular physiotherapy.
37 Examination revealed no focal sensorimotor deficits in either upper limb, and neck range was generally reduced. In a report dated 31 May 2012, Dr Shaw states, in part:
“As you are aware, the MRI has demonstrated bilateral multilevel degenerative changes and neural exit foramen stenosis, particularly at C5/6 and C6/7, but more pronounced on the right side at both levels. On face value, the symptoms in question would suggest bilateral cervical radiculopathy, although there are no objective neurological deficits and the asymmetric symptom severity does not quite match the asymmetric MRI findings. There are also some clinical aspects more in keeping with simple musculoskeletal pain, particularly the forearm discomfort. In addition, nerve conduction studies performed earlier this year have effectively ruled out a peripheral nervous system contribution.
There is currently no clear indication for surgical intervention given the lack of demonstrable neuropathy and the fact that the symptoms can be largely controlled with conservative measures. I would therefore suggest an ongoing physiotherapy-led rehabilitation approach to manage the neck and upper limb issues. I have offered a repeat review here in the event of significant deterioration, especially if associated with neurological worsening, or if she is considering neurosurgical intervention.”[42]
[42]See Exhibit 4 at pages 71-72 PCB
38 The plaintiff also relies on a medico-legal report of the orthopaedic surgeon, Mr Paul Kierce, who examined the plaintiff on 19 November 2009 on behalf of an agent of the first defendant. The purpose of the examination was to determine liability and to perform an AMA assessment.
39 At the time of the examination, the plaintiff complained of pain in the low neck with radiation to both sides of the neck and also in the area between her shoulder blades. In particular, the plaintiff informed Mr Kierce that she had to modify her activities – for example, she had to give away her former role as a main sheet handler in competitive yacht racing.
40 Examination revealed tenderness in the mid-cervical region, especially on the right side, but also on the left. In particular, there was definite guarding and spasm in those muscles. Cervical movement was reduced and painful.
41 Mr Kierce diagnosed the plaintiff to have suffered an aggravation of pre-existing cervical spondylosis and a soft-tissue injury to her dorsal spine as a result of the injury.
42 The solicitors for the plaintiff arranged for her to be medico-legally examined by the consultant neurosurgeon, Mr D Brownbill, on 15 August 2012. At that time, she gave a history of neck pain which comes and goes, occurring at least once a week but more frequently, for example, with reading or computer use. She also had periods where pain between the shoulder blades would “flare up”.
43 Mr Brownbill noted on examination that the plaintiff was “co-operative without embellishment”.
44 In a report dated 16 August 2012, Mr Brownbill stated, in part:
“Examination on the 15th August 2012 has shown restriction of cervical spine movements with some sensory reduction over the left palm but no objective neurological abnormality in the upper limbs or lower limbs. There were no objective signs of radiculopathy or myelopathy.
Radiological investigations have demonstrated multiple level longstanding cervical spine degenerative changes.
On the information provided, noting that she did not have any ongoing neck pain before the 13th June 2008 with the onset of pain following the described blow to the top of the head at that time, with the continuation of neck pain and interscapular pain in a fluctuating manner and intermittent severe flare ups of pain and the radiologically demonstrated multiple level cervical spine degenerative changes, I consider that on probability as a result of axial forces sustained to the cervical spine in the described blow this lady has suffered aggravation of the cervical spine degenerative changes giving rise to the ongoing neck pain and by referral, interscapular pain.
Clinical evidence shows that on occasions once spinal degenerative changes are rendered symptomatic (including the cervical spine) the resulting pain may continue indefinitely in a fluctuating manner even when the precipitating factors cease.”[43]
[43]See Exhibit 4 at pages 88-89 PCB
45 Mr Brownbill also expressed the opinion that the neck injury suffered by the plaintiff, leaving aside any psychological or psychiatric condition, is likely to restrict her in relation to employment or activities involving heavy lifting, forced cervical spine mobility or holding her neck in a fixed position. He considered that such limitation would prevent her from performing her full pre-injury duties.
46 Furthermore, Mr Brownbill considered that the neck injury of the plaintiff would restrict her in relation to her social, domestic and recreational activities for the foreseeable future to a moderate degree.
47 The agent of the first defendant arranged for the plaintiff to be medico-legally examined by the orthopaedic surgeon, Mr M J Dooley, on 21 November 2011[44] and 26 April 2012.[45]
[44]See report dated 23 November 2011 – Exhibit B at page 83 DCB
[45]See report dated 13 June 2012 – Exhibit B at page 89 DCB
48 When initially examined by Mr Dooley, the plaintiff complained of intermittent cervical spine and upper thoracic spine pain, together with acute exacerbations of pain. At times during the night she complained of paraesthesiae affecting her hands.
49 After examination and a perusal of the various radiology (including the MRI scan dated 29 March 2011), Mr Dooley stated:
“Mrs Apted has naturally occurring and age related degenerative disc disease of the cervical spine affecting mainly the C5/6 level. In the past she has been symptomatic from this condition on an intermittent basis. From her description her symptoms have never been major and have not interfered with her ability to work or engage in a range of leisure activities. On June 13, 2008 Mrs Apted was struck suddenly on the vertex of the skull by a closing car park boom gate. I believe that in this episode she sustained an axial force to the cervical spine that has involved a soft tissue injury and aggravation of the underlying degenerative disc disease. As is typical for symptomatic degenerative disc disease of the spine, Mrs Apted notes intermittent cervical spine pain with intermittent acute exacerbations of pain. There has been no consistent brachial neuralgia. Clinical examination reveals moderate restriction of cervical spine motion but no objective evidence of neurological deficit affecting the upper limbs. In essence, her condition has been managed conservatively and currently Mrs Apted is self managing her condition sensibly and appropriately. She has lost excess weight and she exercises regularly. She sensibly modifies her activity. No additional treatment is required. There would be no indication to consider surgical intervention in her management.”[46]
[46]See Exhibit B at page 87 DCB
50 Mr Dooley was of the opinion that the plaintiff could carry out a range of light physical work in clerical duties and estimated that she would be able to work around four days out of five. Mr Dooley also stated:
“Based on the fact that Mrs Apted was symptomatic from the degenerative condition prior to the work related episode, it is more probable than not that she would have continued to note some ongoing intermittent pain. From her description the work related episode has made her intermittent pain more intense and the acute exacerbations of pain that she experienced are more intense.”[47]
[47]See Exhibit B at page 88 DCB
51 When seen on 26 April 2012, Mr Dooley expressed a similar opinion. In particular, Mr Dooley commented that he believed that the plaintiff showed no excessive psychological reaction to her situation and that she was capable of carrying out teaching type work and some light physical work. In particular, Mr Dooley states:
“I would emphasise that overall I found Ms Apted to present as a sensible and genuine historian. She presented her history concisely and perhaps like many female English teachers of middle age, was very direct in terms of describing her symptoms and the consequence of these. I do not believe that her history has been embellished in any way and I remain of the view that her ongoing symptoms are consistent with the injury sustained in the accident of 2008.”[48]
[48]See Exhibit B at page 91 DCB
Analysis of the Evidence
52 There is no issue that on 13 June 2008, during the course of her employment, the plaintiff was struck on the head by a descending boom, which gave rise to neck pain shortly thereafter. Furthermore, there is no issue that prior to the injury, the plaintiff had experienced neck pain, had sought medical treatment for such neck pain, undergone some physiotherapy for the neck pain and had undergone an x-ray of the cervical spine on 27 January 2006.
53 Senior Counsel for the first defendant submitted that the plaintiff, “whilst making some concessions against interests, was at times combative, discursive, painting a picture that would maximise what she wanted to have accepted as the consequences of her injury rather than being a witness who answered questions”.[49] Furthermore, it was submitted that when a comparison is made of the neck condition prior to the injury and the condition of such neck after the aggravation on 13 June 2008, the consequences of such aggravation did not satisfy the narrative test.
[49]T77, L22-26
54 In particular, it was submitted that the plaintiff had pain and restriction in her neck prior to the injury and she has continued to have pain and stiffness in her neck after the injury. Furthermore, it was submitted that when one analysed the evidence in relation to such activities as skiing and sailing, both before and after the injury, any reduction in enjoyment or the pursuit of various activities associated in particular with sailing, had not been that greatly affected.
55 I reject the submissions made on behalf of the defendant. I find that the plaintiff was a credible witness who at all times was attempting to give honest and accurate answers to the questions posed to her. I do find that on many occasions the plaintiff was very nervous and perhaps, given her English teaching background, was concerned that to answer a question in a general way may give a misleading picture. At no time, did I find the plaintiff attempting to mislead the Court, exaggerate her condition or embellish the facts relevant to her condition and claim.
56 I note that there is a large consensus of opinion that the injury caused an aggravation of pre-existing cervical spondylosis (or degeneration) (see the opinions of Mr Kierce, Mr Brownbill and Mr Dooley). No specialists have found objective signs of radiculopathy or any objective neurological abnormality of the upper limbs or, for that matter, the lower limbs. Mr Brownbill did consider that such neck pain radiated into the interscapular area, whereas Dr Threlfall considered the referred pain to the scapular region was consistent with the MRI scan which revealed compression of the C6 nerve root.
57 Furthermore, all specialists, based on the clinical history and perusal of the various radiological materials, accepted that the plaintiff experienced symptoms in her neck prior to the injury.
58 The parties accepted that it was appropriate to apply the principles in Petkovski v Galletti[50] to ascertain whether or not the plaintiff had 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, the principles have been long accepted to apply to industrial accidents determined under the Act.[51]
[50][1994] 1 VR 436
[51]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] VSCA 60
59 In the context of aggravation to 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 of the body function before and after the relevant injury. In referring to the submissions that had 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. … .”[52]
[52]See Petkovski v Galletti (supra) at page 443
60 Brooking J stated that he agreed with Southwell and Teague JJ that the appeal should fail, for substantially the reasons they had given.
61 After a consideration of all of the evidence, I make the following findings:
(a) Whereas the plaintiff demonstrated that she was capable of performing full-time work with the defendant up to the injury, I find that as a result of the injury, her capacity for work has been diminished consistent with the views of Mr Dooley, who considered that she would now only be capable of working four days out of five, and Mr Brownbill, who considered that limitations on her activities would prevent her from performing her full pre-injury duties.
I do find that one of the factors causing the plaintiff to resign her employment with the defendant was the worsening of her neck condition, coupled with others factors such as the driving involved to and from work, the use of the telephone and computer and also in part, just the plain length of service she had been doing that work over the years.
Furthermore, I find that although the plaintiff is performing some limited tutoring work, she has the capacity, as she accepts, to perform greater hours per week and she is currently looking for some employment to accommodate her wish to work but within the restrictions under which she can work.
(b) Whereas there is no doubt that the plaintiff sought treatment from her general practitioner and the physiotherapist, Mr Arica, prior to the injury over the period from early 2006 until late April 2006 and on two occasions in 2007 (and probably in 1999 when she had the motor vehicle accident), I accept her assertion that following the injury, her neck pain has been more intense for longer periods with greater numbers of exacerbations. Of course, that is not to say that she has intense neck pain all the time, although I do accept her assertion that there is always a degree of some neck pain whereas prior to the injury, there were periods where she had no symptoms whatsoever.
(c) The frequency of treatment since the injury has been far more often, although as she states, she only seeks physiotherapy as a last resort after attempting to perform exercise or the application of heat to the affected areas of the neck.
(d) In particular, and importantly, whereas the plaintiff could engage in skiing and assisting her husband in competitive sailing, such activities have been lost to her as a result of the injury. I accept her evidence that she has not been skiing since the injury.
Furthermore, although she engaged in some racing prior to 2010 and seemingly on one occasion approximately a year ago, I do accept her evidence that she was not capable to perform the work as the main sheet handler on her husband’s yacht. I formed the view that sailing with her husband was a significant part of her life prior to the injury and in particular, she enjoyed the social aspects of competitive sailing, the thrill of competitive sailing and being able to sail with her husband in competitive races, playing a critical role on the yacht.
(e) Many aspects of her day to day living have been impacted by her neck injury to varying degrees. Although she can perform many household duties, she performs them in a slower way now and avoids stressing her neck. Again, although she can engage with her grandchildren, she has to be careful as to how such activity is undertaken to avoid stressing her neck. In respect of these types of activities, in many cases she can still perform such activities but in a different fashion, or at a slower pace.
62 After a consideration of all of the evidence, I am satisfied, that the extent of the aggravation caused by the injury has resulted in a permanent condition giving rise to consequences which satisfy the narrative test.
63 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to her neck injury on 13 June 2008.
64 I will hear the parties on the issue of costs.
- - -
Annexure A
(1)The plaintiff tendered following material:
Exhibit 1
·Printout of consultations with Mr Arico in relation to neck over the period from 4 February 2006 to 29 October 2012.
Exhibit 2
·Letter from Allianz to the plaintiff dated 8 December 2009 at pages 8-14 of the Plaintiff’s Court Book (“PCB”).
Exhibit 3
·Affidavits of the plaintiff sworn 20 July 2011 and 19 November 2012 at pages 24-39 PCB.
Exhibit 4
·Medical report of Associate Professor Peter Gates dated 21 November 2000
·Medical report of Dr Cameron Shaw, including nerve conduction study, dated 11 March 2011
·MRI scan of cervical spine undertaken at Barwon Medical Imaging, dated 29 March 2011
·Plain x-ray of cervical spine dated 27 January 2006
·Further plain x-ray of cervical spine and skull dated 5 July 2008
·Selective history reports from Dr J Dunning with attached letters from Joe Arico, physiotherapist, dated 12 March 2009
·Medical reports of Dr K Threlfall dated 16 July 2008, 19 November 2008, 14 October 2009, 22 December 2010, 20 April 2011, 24 November 2011, 22 February 2012 and 24 February 2012, and various attached letters
·Medical report of Dr Cameron Shaw to Dr J Dunning dated 31 May 2011
·Report of orthopaedic surgeon, Mr P Kierce, dated 19 November 2009
·Report of neurosurgeon, Mr D Brownbill, dated 16 August 2012
All such material found at pages 41-62 and 67-91 of the PCB.
(2)The defendants tendered the following material:
Exhibit A
·McKenzie Institute lumbar spine assessment and clinical records of Mr Joe Arico, together with his report dated 8 February 2006. Such documents found at pages 53-84 of the Defendants’ Court Book (“DCB”).
Exhibit B
·Reports of the orthopaedic surgeon, Mr M Dooley, dated 23 November 2011 and 13 June 2012, found at pages 85-91 DCB.
Exhibit C
·Medical notes of Dr Newman at the HealthE Medical Centre at pages 92-100 DCB.
Exhibit D
·Clinical notes from Corio Medical Centre at pages 101-103 DCB.
Exhibit E
·Villamanta clinical documents consisting of five pages.
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