Ascher v State of Victoria
[2013] VCC 249
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSAITON
GENERAL DIVISION
Case No. CI-11-04993
| DONNA JANE ASCHER | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21, 22, 25 March 2013 | |
DATE OF JUDGMENT: | 26 March 2013 | |
CASE MAY BE CITED AS: | Ascher v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 249 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION – ASSESSMENT OF DAMAGES
Catchwords: Injury to cervical and lumbar spines, and right shoulder in the course of employment – adjustment disorder - assessment as to pain and suffering damages only – nature and extent of injury – nature and extent of pain and suffering and loss of enjoyment of life to plaintiff.
Legislation Cited: Accident Compensation Act 1985
Judgment: Judgment for the plaintiff in the sum of $130,000 for general damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr A Ingram | Clark Toop & Taylor |
| For the Defendant | Mr C Blanden SC with Ms H Donmez | Thomsons Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury in the course of her employment as a senior court advice officer employed by the Department of Human Services (“the Department”). From November 2006, there was a change to the workstation at which she worked at the Sunshine Court, such that she felt cramped and uncomfortable and commenced to suffer pain and discomfort in her right arm and hand, shoulder and neck. The symptoms got worse, and she sought medical attention in 2007. She has suffered injuries, including an aggravation of the underlying degenerative change in her cervical and lumbar spines and a soft-tissue injury to her right shoulder which required arthroscopic surgery, being decompression of the shoulder joint. She has developed an adjustment disorder as a result of the chronic pain.
2 She has regained employment with the Department on a full-time basis, but has required a range of conservative treatment from a number of practitioners over the period through to the present time. She claims a number of her recreational, social and domestic activities have been lost or curtailed, and she suffers chronic pain in the areas of her neck, lower back and right shoulder.
The Evidence
3 The plaintiff gave evidence. She was born in 1954 on a sheep farm in Colac. She was educated to age fifteen. She fell pregnant at an early time, and under pressure from the authorities and her family, adopted the child out. She has since renewed contact with her son.
4 After she returned to Colac, she married at eighteen. The relationship was volatile and included domestic violence and infidelity by her husband. The parties separated in 1979 with no children.
5 She then worked in various jobs in Melbourne, and in 1980, entered a defacto relationship with Steven Ascher, which continued until 1999. They had two children: Bianca, now aged thirty-one, and Sheree, now aged twenty-six.
6 In 1990, she commenced work as a temporary probation officer with the Department. Her work generally involved young criminal offenders. The position was made permanent in 1992, and she became a case manager, based originally at Ascot Vale, and then at Sunshine Court. She attained tertiary qualifications, including an Advanced Certificate in Residential Community Services, and a Diploma of Welfare.
7 Her work involved assessing youthful offenders at the Sunshine Court. This required her to provide advice and to undertake reports to the Magistrates’ Court, and on occasions, case management of the offenders.
8 In 1999, her relationship with Mr Ascher ended and the breakup was acrimonious. She eventually obtained an intervention order and described herself at the time as “extremely fragile”. She sought medical treatment from a psychiatrist, Dr Datta, and was prescribed a range of antidepressant medication, including Cipramil.
9 In 2000, she formed a relationship with Mr Andrew Logan, which continued until 2011. They remain on good terms.
10 She said that over the period from 2002 to 2006, she was getting her life back in order. She was enjoying the freedom from the previous relationship, although there was some ongoing stress with her teenage daughters.
11 In 2004, two of her youthful clients died as a result of drug overdoses. She found that very stressful and sought medical advice. She did not go back onto antidepressant medication as she felt she needed to move forward.
12 In May 2005, she sought assistance to deal with these matters through a work counsellor. She had five sessions of hypnotherapy, which she said helped her to “deal with [her] demons”.
13 Over the period from November 2005 to November 2006, she said she was very happy. She was actively engaged with a social network, was vivacious, and outgoing. Around this time, her activities included fishing with Mr Logan, and rock and roll dancing, having enjoyed the latter over many years. She also worked in her garden, and was proud of the flowers she was able to grow. She undertook a range of home maintenance jobs, including tiling, painting, wallpapering and various crafts. She took pride in her house. She was very active, including in ten-pin bowling on occasions, and her physical relationship with Mr Logan was satisfying.
14 In November 2006, there was a new program in her workplace. This required her to move from her own office to an open plan area with the provision of a new desk and computer arrangement. She no longer had a “drop down” computer keyboard. She was not comfortable in the new arrangement and had to “scrunch up” in order to type her reports. At that time, about five hours per day was spent preparing reports and other documents at her computer. She said that by Christmas 2006 she was in discomfort and exhausted. She started to suffer pain in her right hand, which progressed to her wrist, arm and shoulder. She also had some discomfort in her lower back.
15 She was away on leave over the Christmas break and came back feeling refreshed. The symptoms subsided. When she started at work on her computer again, the symptoms returned. In March 2007, she went to see Dr Minh, who prescribed Voltaren. She continued at work but reported the matter to her supervisor. Over the next three months, the pain and symptoms increased. She had pain in her neck, which she described as intense. She had pain in the right shoulder, which was excruciating. She further had pain in her lower back, which she described as debilitating. She went to her family doctor, Dr Wong. X-rays were ordered and she had some time off work.
16 She said she could not recall any lower back pain in the past, although there was brief reference to it in the medical records.
17 In July 2007, she changed doctors to Dr Navani, who has treated her through to the present time. She was referred for an ultrasound to her shoulder and then to Mr Richardson, surgeon. She also had physiotherapy. The pain in her right shoulder at this point was very intense and she had almost no movement of the shoulder. Mr Richardson performed surgery in October 2007, which alleviated the pain to the point where it became manageable.
18 She described at the present time that she always has pain in her neck. This caused headaches and interrupted her sleep. The pain was constant, and when it was at its worst, several times per week, it was quite severe. The pain extended through the shoulder blades. She has learnt to control the pain.
19 The low-back pain is not as problematic, although on occasions she gets back spasms.
20 At the present time, she takes the following medication:
· Mobic – anti-inflammatory – from time to time when the pain is bad. She last used this medication about four weeks ago.
· Panadol Osteo – between two to six tablets per day.
· Tramadol – if the pain is very bad.
· Endep – antidepressant and muscle relaxant – usually one before sleep.
21 After the shoulder surgery, she returned to work within six to eight weeks. She is still provided with certificates of incapacity from her doctor and her typing is restricted to twenty or thirty minutes at one stretch. She finds it difficult to use her right arm above chest level and she does not undertake any repetitive work. Eventually, her work hours were built up, and from 2008 she has worked full time. She finds work therapeutic and it is important to her that she continue. She gets some assistance with voice recognition technology and her workstation has been modified with the assistance of an ergonomist.
22 In early 2009, she was referred to a psychologist, Robyn Gordon. Because of the chronic pain, she had become depressed and anxious. She saw the psychologist over about eight months. Cognitive behavioural techniques were taught to help deal with the pain.
23 The plaintiff described “battle fatigue”. Because of a lack of sleep, and battling the chronic pain, she was exhausted at the end of a day and her social and recreational activities were curtailed. She has become reclusive and does not wish to leave her house. She has lost friendships. She is no longer involved in rock and roll dancing, is afraid of taking public transport and would much prefer to remain within her own house.
24 Her sex life has ceased as she has no libido. She is no longer involved in her garden and although she still goes fishing, does not obtain the same enjoyment, as Mr Logan has to “land” the fish.
25 The plaintiff was then cross-examined.
26 She was now less independent and had to ask for help, in particular from her daughter, Sheree. She has a 5-kilogram lifting restriction. She has difficulties cleaning her shower and oven, doing the vacuuming and some other aspects of housework.
27 The change in her relationship with Mr Logan was not wholly because of her injury. She had a significant flare up of pain in October last year and was off work for a week. After a day at work she feels she has “nothing left in the tank”. All of her energy goes into being able to complete the tasks of her employment. She has become lethargic because it is difficult to get a good night’s sleep. She does most of her domestic duties, but her part-time boarder helps with the cooking. She is anxious when away from home and finds it difficult to come to the city.
28 In 2012, she attended the Dorset Rehabilitation Centre for most of that year, attending on a weekly basis.
29 She said that she was told by the surgeon after the right shoulder surgery that the surgery had been successful. She was off work for about six weeks then returned on restricted duties three days a week. This shortly increased to four days a week, and in 2008 she was working full hours. These were seven and a half hours a day.
30 Her work involved conducting interviews with offenders, members of their family, service providers and others. Prior to her injury, a report might take up to four days, but now it takes up to four weeks. Her restriction is only in respect of work on the computer. There is no difficulty with interviews, nor the telephone. She works on the computer for approximately five hours per day, but she is slower to enter the data. Further, she needs a break every twenty to thirty minutes. In 2008, another part-time employee was appointed partially because of her need for assistance and partially because of a re-organisation in the workforce.
31 She was taken to various entries in the medical notes about prior problems with neck, back or arm, but she did not recall them. She accepted that she received significant treatment from psychiatrists, in particular Dr Datta, over the period from 1999. She said that the general practitioner’s notes were accurate and which said that in February 2005, she was prescribed Cipramil. They also stated that she was still seeing Dr Datta for depression. She was prescribed a range of other medication over the years including on one occasion, Celebrex in 2002, and Panadeine Forte the same year. She could not recall these. She was prescribed Temazepam when her grandmother died. There was a prescription of Diazepam in 2004. She acknowledged she had been on a lot of medication over the years. She was concerned about becoming addicted to prescription medication.
32 She had not sought any further referrals back to Mr Richardson. She acknowledged that she had made excellent progress after the shoulder surgery and that the surgery had improved the pain significantly. She can still drive a car, shop and carry some shopping bags. She can open the door and boot of a car. She writes with her right hand and is right hand dominant. She uses her right arm to dress and shower.
33 As a result of the program at the Dorset Rehabilitation Centre, she learned to better manage her pain. She undertook a weightloss program in 2012 and lost some weight. As a result, she had a more positive outlook. She also carries out a range of recommended exercises at home.
34 Evidence was given by a friend of the plaintiff, Ms Noeline Archer. She has known the plaintiff for thirty years and is a close friend. She saw her regularly before injury, although not as much when Ms Archer moved to Bendigo in 1984. They remain close and see each other regularly. Ms Archer spoke of the effect upon the plaintiff of her injuries, including that she appeared to be in a lot of pain and was restricted in what she could do. She became anxious and stressed and there was a reduction in her social activities. It was harder for the plaintiff to drive to Bendigo. Her house was not as clean and tidy and her garden was neglected. The plaintiff had become depressed and was a different person. She was anxious, uptight, stressed and even short with Ms Archer.
35 Evidence was given by the plaintiff’s daughter, Ms Sheree Tosic. She also described the effect upon her mother of her various injuries. She said before the injuries she was independent, outgoing and had a wide group of friends. She had good energy and went to many parties. She was happy. They did rock and roll dancing together and some ten-pin bowling. She described her mother as stoic and non complaining about her pain. She sleeps now on a waterbed and has difficulties picking up any heavy objects. Her mood was flat and she did not participate in the activities in the same manner as before. She tends to avoid large shopping centres and public transport and was generally a different person.
36 Evidence was given by Mr Andrew Logan. He first began a relationship with the plaintiff in 2000, and in 2001, they became engaged, although did not marry. The relationship ended in 2012, although they are still friends. He described her as a nice person with whom he got on well. She had good energy and competed with him to catch fish out on the bay. She freely engaged in a range of activities and in 2005 to 2006, was pretty happy and carefree.
37 Now, the plaintiff has a range of problems, including she is not involved in her garden, has difficulty reaching for items above her head and cannot pull in the big fish. Her libido was affected and that was part of the reason the relationship changed.
38 Aside from fishing, he had an interest in vintage cars and he and the plaintiff would, on a regular basis, go to car club functions and meetings. She was always with him. Recently, they went to Hanging Rock, although he does not go long distances, partially out of respect for the car, and partially because of the plaintiff’s injuries.
39 Sensibly, in my view, counsel agreed to tender all of the medical reports rather than calling the doctors. The only medical witness to be called was the plaintiff’s current treating general practitioner, Dr Navani. He gave evidence and was cross-examined. He first saw the plaintiff in August 2007 when she was complaining of neck, upper and lower back pain and pain in the right shoulder girdle. He referred to the various imaging of the plaintiff’s lumbar and cervical spine, and right shoulder.[1] In relation to her cervical spine, he said there was degenerative disease at C3-4, C4-5 and C5-6, all of which was sufficient to explain the plaintiff’s current complaints of pain in the cervical spine. He referred the plaintiff for physiotherapy, prescribed anti-inflammatory and pain-relieving medication and injected the right shoulder with steroid. He referred her to Mr Martin Richardson, orthopaedic surgeon, who carried out an arthroscopic decompression of the shoulder. He noted a restriction in a range of the plaintiff’s domestic and recreational activities. He also referred the plaintiff to a rheumatologist, Dr Alex Stockman, in June 2009, and to Dr Clayton Thomas, pain management specialist, in August 2010.
[1]Plaintiff’s Court Book (“PCB”) 89, 90, 91
40 At the present time, he provides the plaintiff with WorkCover certificates which restrict the plaintiff from working at her computer for more than thirty minutes, for reaching above chest level, and for repetitive work. Otherwise, he said the plaintiff was able to maintain her current work hours.
41 He said the plaintiff had developed a reactive depression, and referred her to Ms Robyn Gordon, psychologist. He confirmed the plaintiff’s complaints that she avoided crowded places and social activities. He said the plaintiff’s low-back pain was of lesser significance than her neck pain.
42 In cross-examination, he accepted that the plaintiff had made an excellent recovery from Mr Richardson’s surgery. He said that her main issue was now her neck, although it was difficult to differentiate between the pain in the neck, referred to the right shoulder, and the injury to the shoulder, with the pain spreading to the neck. He said he had not seen the need for the plaintiff to be referred to any specialist since Dr Thomas in 2010. He confirmed the plaintiff was able to use her right arm in a relatively normal manner, although was restricted by pain. He said the plaintiff did not have any days free of pain.
43 Ms Robyn Gordon, psychologist, provided a report of 31 August 2009. She first saw the plaintiff in June 2009. She described the plaintiff as a woman with a strong work ethic for whom work was a significant part of her life. She said the plaintiff was suffering significant depression and anxiety and finding it difficult to function independently. She undertook a course of psychological treatment, in particular cognitive behavioural therapy.
44 Mr Martin Richardson, orthopaedic surgeon, provided a number of reports.[2] The plaintiff was referred to him in September 2007. He performed an arthroscopy on 19 October 2007 which he said –
“… revealed some mild synovitis noted around the base of her long head of biceps tendon and surrounding capsule. Rotator cuff tendon was intact as was the articular surfaces. Subacromial space showed significant bursitis and a tight subacromial space measuring 5 millimetres diameter. This was improved after a soft tissue decompression to 8 millimetres and after an acromioplasty to 11 millimetres diameter. Again the rotator cuff was noted to be intact from the bursal surface. She was mobilised, active assisted and reviewed in two weeks to check the wounds had healed.”
[2]PCB 42-45
45 Subsequent reviews indicated the surgery had been successful.
46 In Mr Richardson’s final review, in June 2008, he said the plaintiff was making excellent progress following a shoulder surgery and was back at work three full days per week with plans to extend the hours.
47 Dr Alex Stockman, rheumatologist, saw the plaintiff for treatment on 9 June 2009.[3] He received a history of complaints of right shoulder, elbow and wrist pain with pain in the neck and lower back, relating to her workstation. He noted she was receiving physiotherapy, although that had stopped in 2008, and she was taking a range of pain-relieving and anti-inflammatory medication. He noted the MRI of the cervical spine which showed significant disc degeneration. He also said there was disc degeneration in the lumbar spine. As to prognosis, he said the plaintiff should be able to continue working at her pre-injury level, providing there were frequent breaks, would need occasional physiotherapy, and with the risk that the lumbar and cervical spondylosis may deteriorate.
[3]PCB 46
48 Dr Clayton Thomas reported that he first saw the plaintiff in August 2010.[4] He obtained a history of the onset of symptoms in the various areas, and similar terms to the various other doctors. He noted episodic headaches, neck stiffness and that her right shoulder movements had a good range, but were painful. He said her neck movements were only mildly limited. He described the MRI of her cervical spine of May 2009 as showing degenerative changes at C5-6 with some mild exit foraminal stenosis.
[4]PCB 49
49 He said the plaintiff had attended the Dorset Rehabilitation Centre over the period from January to November 2012 and that she had taken on board the principles of pain management and appeared to be highly motivated.
50 Mr Kevin King, a consultant orthopaedic surgeon, examined the plaintiff in January 2010 and February 2012.[5] On the last occasion, he noted that the plaintiff’s condition had stabilised and that she was working full time in mildly restricted duties, which she said she was able to manage. He said the plaintiff had adjusted well to her impairments and he would not expect improvement nor deterioration. He said she should be able to continue her work into the foreseeable future. He noted limitation in some of her social activities, including fishing.
[5]PCB 52, 60
51 He said that as a result of her work from late 2006, the plaintiff had underlying degenerative changes in the lumbar and cervical spines, and the right shoulder, but those changes were made symptomatic as a result of her work duties. He noted a history that after the right shoulder surgery, the plaintiff said that seventy per cent of her shoulder pain had been relieved.
52 The plaintiff was examined by Mr Khan, orthopaedic surgeon, at the request of her solicitors, in May 2012.[6] In relation to the right shoulder, he said the plaintiff had developed symptoms of subacromial bursitis and tendinopathy because of the application of uneven stress to the shoulder because of the faulty ergonomic workstation. He said further, the plaintiff had developed pain in her neck, radiating down to her arms, which required a range of conservative treatments. In relation to her neck, he said the plaintiff had flared up pre-existing degenerative change at C3-4, C4-5 and C5-6 levels and had developed a –
“… discogenic pain with mild disc prolapse at C3-4 level resulting in occipital headaches and diffuse pain around the right side of the neck going to the top of the right shoulder area.”[7]
[6]PCB 64
[7]PCB 70
53 Likewise, he said there had been a mild flare up of pre-existing degenerative change in the lumbosacral spine without radiculopathy. He said the plaintiff would be unable to perform heavy strenuous work which required excessive bending, twisting and turning of the neck or lower back. He said the pain had affected her domestic, social and recreational activities.
54 The plaintiff was examined by Dr Albert Kaplan, consultant psychiatrist, in October 2009 and January 2013.[8] Dr Kaplan noted the plaintiff’s difficult childhood, parental separation and destructive relationships. He said that the lack of stability in these relationships caused the plaintiff to develop a depressive illness which required psychiatric treatment over several years before the workplace injury. He noted however that despite this, the plaintiff was able to maintain her work, which she found rewarding and satisfying. As a result of the chronic pain from her work injuries, Dr Kaplan said the plaintiff had developed an Adjustment Disorder, initially with Mixed Anxiety and Depressed Mood, although more recently he said that the depression appeared to have resolved. In 2013, he said the plaintiff was still suffering anxiety, which led to her having a reduced capacity to deal with stress and lowered frustration tolerance. He noted she was prone to fatigue, had no libido and felt vulnerable. He said it was likely she would remain prone to anxiety as long as the pain persisted.
[8]PCB 73, 85
55 The defendant arranged for the plaintiff to be examined by a number of orthopaedic specialists. In his report of February 2009, Mr Ronald Haig, orthopaedic surgeon, noted the history of the onset of symptoms to her shoulder, neck and back. He described the injury to her right shoulder as an “impingement syndrome” which was constitutional in origin. When he saw her, he said she complained of minor symptoms to the shoulder which had been improved by surgery. He said that the condition was constitutional in origin and that her work was not causatively related.
56 The plaintiff was seen by Mr Paul Kierce, orthopaedic surgeon, in July 2009,[9] and he provided a further report of August 2009.[10] He diagnosed the plaintiff as suffering a soft-tissue injury to her right shoulder related to her employment, which had been surgically treated, leading to significant improvement, although noted there was a degree of limitation of movement and weakness in the muscle girdle. He said further that she had aggravated pre-existing cervical spondylosis, again related to her uncomfortable work station.
[9]Defendant’s Court Book (“DCB”) 10
[10]DCB 23
57 In his final report, Mr Kierce said that the aggravation of the cervical and lumbar spondylosis, which had occurred in the course of her work duties, had long since resolved.
58 Finally, the plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in October 2011 and January 2013.[11] In his most recent report, Mr Dooley said that he received a history of the plaintiff suffering constant neck pain with intermittent headaches and occasional blurred vision. She told him that her right shoulder region and right arm felt weak. She said she had occasional low-back pain which was intermittently exacerbated. He noted she was taking Panadol Osteo and Endep with occasional Mobic and/or Tramal. She used a TENS machine. He concluded that in the course of her employment, the plaintiff had aggravated underlying degenerative changes in the cervical, lumbar and right rotator cuff regions. He said the shoulder surgery had improved pain in that area and he noted she had an excellent range of movement. He said the plaintiff told him that with weightloss and regular exercise, her symptoms had improved. He suggested that she remain active with a fitness program and sensible modification of her activities. He accepted she had difficulties with a range of domestic tasks and expected she would have some intermittent exacerbations of pain in the various areas. He said her self-management of the problems was appropriate and the medication she was taking was reasonable. He said she did not require any ongoing treatment unless there was an acute exacerbation of pain. He thought she would continue with her employment until normal retirement age. He described the plaintiff as sensible and genuine.
[11]DCB 25, 29
Conclusions
59 I found the plaintiff a genuine and honest witness giving a reasonable account of the injuries she sustained, and the consequences of those injuries. There were no major credit issues put to her, and she answered questions, particularly in cross-examination in a forthright manner, and making appropriate concessions. As confirmed by the various medical practitioners, there is no indication of exaggeration of her symptoms, and I have little difficulty accepting her complaints of pain and the restrictions they have placed upon her day-to-day activities, as she described in her evidence, and the histories to the various doctors.
60 I was impressed by her attitude towards her employment. She is clearly dedicated to her clients and her work duties, and as she said in evidence, finds it important to maintain full-time employment not only to pursue work she is passionate about, but because it provides a therapy which assists her in dealing with her pain.
61 There is no issue as to the causative relationship between her work and the onset of symptoms in that as a result of her re-arranged work station, she suffered the onset of pain in her neck, lower back and right shoulder, and although this was relieved to some extent over the Christmas break in 2006, it returned in 2007 to the point where she required medical treatment and time away from work.
62 In relation to her right shoulder, I accept that she has suffered a soft-tissue injury to the right shoulder region which has required arthroscopic decompression and acromioplasty by Mr Richardson. This surgery was technically successful and led to a significant reduction in the acute pain she suffered before surgery. However, I accept that she suffers ongoing constant pain in the right shoulder, and although it appears she has a reasonable range of movement and is able to do most activities, she is still restricted by pain to some extent, and I accept she has some modest loss of strength to the right arm.
63 In relation to her lower back, I accept the plaintiff has suffered an exacerbation of underlying degenerative disease. The problem is intermittent and the least significant of the three areas of injury; however, I accept that she does have pain in the lower spine which is aggravated depending upon the activities in which she is involved. It requires medication and a range of other conservative treatment in the past.
64 Although, as was pointed out by Mr Blanden, the plaintiff had some medical consultations in relation to both her lumbar and cervical spines in the past, these were on only a few occasions, and required little, if any, treatment. They are not matters of significance in assessing her current symptoms.
65 The plaintiff’s most significant present problem is the pain and restriction from her cervical spine. It is clear that she has pre-existing degenerative disease at a number of levels which was asymptomatic prior to November 2006. I accept at the present time, the plaintiff has constant pain in the neck which fluctuates in severity, but at its worst, causes significant restrictions and is debilitating. She suffers headaches. This has required a range of treatment and medication over the past six or seven years, and that situation is likely to continue into the future.
66 Overall, I accept the plaintiff’s evidence that she has suffered a loss of various recreational activities, including ten-pin bowling and rock and roll dancing, which she enjoyed before injury. Her capacity to enjoy fishing with Mr Logan has also been affected. I note however she is able to accompany him on car rallies on a regular basis.
67 I accept her evidence, that there has been a restriction in her social activities and she no longer has the wide circle of friends she previously enjoyed. I accept that for a period she was depressed and still suffers anxiety, all related to her injuries. This anxiety has required psychological treatment over a period and for which she is still prescribed Endep, both to assist in her psychological difficulties, and as a muscle relaxant.
68 I accept that her sleep is affected and that she requires assistance, in particular from her daughter, for some of her domestic activities. I accept that she is no longer as houseproud as she has been, that she is not as involved in her garden, and that she feels that she has suffered a loss of independence. However the plaintiff is still engaged, not only in full time employment, but in most of her activities of daily living. She drives, shops, cooks, cleans and lives independently.
69 It is clear the plaintiff had a very significant psychiatric history with treatment from various psychiatrists over at least three years, before the subject injury. In fact there was reference to treatment by a psychiatrist and the prescription of anti-depressant medication as recently as early 2005. Nonetheless, over the period 2005 and 2006, the plaintiff described herself as happy, content with life and not suffering from the “demons” which had previously affected her arising from an unhappy childhood and a number of destructive relationships. At that point, in 2005, she saw herself as an outgoing and independent person, not afflicted by any significant physical or psychological disabilities. I do not accept the submission of Mr Blanden that in relation both to her asymptomatic degenerative condition in the neck and lower back, and in relation to her prior psychological problems, that at some time they would both respectively have become symptomatic, or recurred even absent the workplace injury. There is no medical evidence to support the proposition.
70 I reject the opinion of Mr Kierce, for the defendant, who said that the affect upon the plaintiff’s neck and lower back of her work activities had long ceased, and that she was now suffering from the underlying degenerative change. I likewise reject the opinion of Mr Haig, who concluded that the plaintiff’s right shoulder condition was related to her constitutional situation, and not work. There is a clear temporal link between the onset of the plaintiff’s symptoms, and the provision of the inappropriate and unergonomic workstation. The symptoms have not relented to any significant extent since that time, and in my view all of her current problems are related to that work. I do not accept the opinion of Mr Khan the plaintiff suffered a disc injury. Those doctors aside, at the end of the day there is little difference between the various doctors as to the origin of the plaintiff’s pain, the need for treatment, her current symptoms and the future prognosis.
71 As stated, I found the plaintiff an impressive witness. She described in detail the effect upon her of the pain. She said that it took all of her energy to work on a full-time basis in a job she loved. She said there was little “left in the tank” at the end of the day. Her situation has been improved to some extent of more recent times, in that she has found assistance in managing her pain from the Dorset Rehabilitation Centre. I further note that she receives little in the way of treatment, save from monthly attendances with her general practitioner, who provides prescriptions for the medications, WorkCover Certificates and monitors her progress. There is no suggestion of future surgery, or of any other specialist treatment. I accept that it is likely the plaintiff will continue to suffer pain at generally the present levels, although most of the medical opinion is that she will be able to continue and maintain her employment into the foreseeable future.
72 In assessing the plaintiff’s general damages, I accept that her life has suffered a very significant and debilitating turn as a result of the injuries to her cervical and lumbar spines, and right shoulder. Although she had significant psychological problems in the past, I accept that for twelve months in 2005, she was an outgoing, vivacious independent person with a responsible position which she enjoyed. Although she has been able to maintain that employment, and is still relatively active, the constant and debilitating pain that she suffers has had a dramatic impact upon her life.
73 In all these circumstances, I assess the plaintiff’s general damages at ONE HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000.00).
74 I shall hear from the parties as to costs.
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