Bajric v Shawfoods Pty Ltd & VWA
[2010] VCC 1764
•8 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-04989
| RAMIZA BAJRIC | Plaintiff |
| v | |
| SHAWFOODS PTY LTD | Defendants |
| AND VICTORIAN WORKCOVER AUTHORITY |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 4 and 5 November 2010 |
| DATE OF JUDGMENT: | 8 December 2010 |
| CASE MAY BE CITED AS: | Bajric v Shawfoods Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1764 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – back injury sustained in fall – reliance placed upon paragraphs (a) and (c) of the definition of serious injury – leave sought in relation to pecuniary loss damages and pain and suffering damages – substantial attack upon credit of plaintiff – whether the plaintiff’s credit damaged – whether capacity for suitable employment – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V. Morfuni SC with | Victorian Compensation |
| Ms A. Malpas | Lawyers. | |
| For the Defendants | Mr R. Meldrum QC with | Hall & Willcox |
| Mr B. Anderson | ||
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The interests of the two defendants in this matter overlap entirely, and indeed I note that the firstnamed defendant is apparently in liquidation. Conveniently, the Victorian WorkCover Authority has already been named as a defendant. Henceforth, I shall simply refer to “the defendant”, meaning the plaintiff’s employer at the time of injury – that is, Shawfoods Pty Ltd.
2 The plaintiff seeks leave to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages. In so doing, she relies upon paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act. I might say that the presentation of the plaintiff’s case focused strongly upon the organic injury suffered but reliance upon a severe mental or behavioural disturbance or disorder was not abandoned. However, it received comparatively little attention, and, as shall be discussed, it seems to me that the plaintiff’s case fails or succeeds on the basis of the organic injury sustained. Of course, matters involving psychological or psychiatric factors are still relevant for the purposes of s.134AB(38)(h) of the Act.
3 Essentially, the injury upon which reliance is placed is one to the lumbar spine. It is alleged that the plaintiff was employed by the defendant as a packer and her duties involved the selection and packing of food items and the transporting of them into freezers. On or about 17 November 2000, the plaintiff tripped whilst walking backwards carrying a container, the other end of which was being supported by a fellow worker, fell, and sustained the injury in question. (Whilst there is some confusion as to whether this accident occurred on 17 November 2000 or 18 November 2000, nothing hinges upon this as the occurrence of the fall and of the plaintiff suffering some injury is admitted. Looking at the employer’s claim form and the report of the plaintiff’s general practitioner, Dr Do, it seems to me more likely that the fall in fact occurred on 17 November 2000, and I shall refer to it as so occurring hereafter.) The central issue is whether or not the consequences of the injury suffered by the plaintiff satisfy the statutory requirements, and the defendant’s case concentrated to a very considerable extent upon the credit of the plaintiff in this regard.
4 I will not set out the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.
5 Mr V Morfuni SC with Ms A Malpas of counsel appeared on behalf of the plaintiff. Mr R Meldrum QC with Mr B Anderson of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature, and included some surveillance material. All of this evidence was tendered by consent. This was a most sensible and cost-effective manner in which to run an application such as this. In addition, counsel made very detailed and helpful submissions.
Factual background
6 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 7 The credit of the plaintiff received particular attention in this case. In his closing address, Mr Morfuni stated that it was fair to say that the defendant had “placed all its eggs in one basket”, that “basket” being that the plaintiff should not be accepted as a witness of credit and that therefore the burden of proof had not been discharged. Whilst that may perhaps represent an over- simplification of the case, nevertheless it is fair to say that the case of the defendant was concentrated quite substantially upon this issue. Accordingly, I shall not only deal with the plaintiff’s credit at the outset, as I tend to do in these judgments, but, as it was such a central issue, I shall devote to it more attention than might be the case in some other applications.
8 At the commencement of his closing address, Mr Morfuni directed my attention to some useful decisions in relation to matters of credit. These included remarks contained in the judgment of Kirby J in Whisprun Pty Ltd v Dixon [2003] HCA 48, which observations are referred to in the judgment of Beach J in Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458. I also note the remarks of Buchanan JA and Neave JA in Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104. Essentially, the statements to be found in those judgments emphasise that credit is not necessarily “the be all and end all” and it is the duty of the Court to weigh all the evidence and come to the appropriate decision. As was said by Neave JA in Cakir, in a situation where the appellant worker had failed at first instance, he having been found by the trial judge not to be a witness of truth and to have given false histories:
“An adverse finding on the appellant’s credibility did not, in my view, justify refusal of the appellant’s application … it was necessary for his Honour to analyse and give appropriate weight to all the evidence.”
9 Mr Morfuni also drew my attention to the observations of Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 in relation to histories obtained by medical practitioners. As his Honour pointed out, such histories potentially raise questions both as to what the history-giver said and what the history- taker recorded, and “to assume an inevitable monopoly of right on one side or the other would run counter to experience”. Further, as his Honour stated, when there had been a large number of such examinations, it would be remarkable if there had not been some variations in the appellant’s history.
10 As shall become apparent, in the present case I do not regard the plaintiff as a person who has wilfully given false histories or who should not be regarded as a witness of truth. In such circumstances, the above observations seem to me to carry even greater force and emphasis, particularly in relation to the need to weigh all the evidence.
11 I shall deal firstly with the extensive surveillance of the plaintiff. It was agreed between the parties that the total period for which agents were engaged in surveillance was 70 hours and that that the actual sightings of the plaintiff by such agents totalled seven hours and 46 minutes. The actual duration of film shown to the Court was, by my calculations, 37 minutes and 30 seconds (Mr Morfuni stated that the duration of the film actually shown was approximately 32 minutes, but the difference between our calculations is of no moment). It was agreed that a further one minute and 30 seconds was not shown. Nothing was to be read into this last omission, which apparently was by agreement. However, it can be seen that the actual film shown represents but a small proportion of the period for which the plaintiff was under observation.
12 It was foreshadowed that I would view the video material again in chambers, and I have in fact done that. The film shown was taken on four days; namely, 7 and 8 April 2010 and 16 and 28 July 2010. I shall discuss the film taken in chronological sequence.
13 The brief film of 7 April 2010 showed the plaintiff shopping, walking comparatively normally and getting into a car on two occasions without apparent restriction. The plaintiff agreed that she was taking normal steps, but stated that, in her mind, she was nevertheless walking carefully, and, in relation to her getting in and out of the motor car, answered that her movements depended upon her pain. In the end, whilst the plaintiff presented, briefly, in a normal or unremarkable manner, she was doing nothing that was athletic or vigorous. I do not regard this short excerpt of film as being of any great significance.
14 I turn now to the film of 8 April 2010. On this occasion, the plaintiff was seen shopping, presumably in the Hampton Park area. She seemed to me to walk normally, although not rapidly, and at times I thought I detected a limp. She got into and out of a motor car without having to use her hands to support herself. At one stage, she carried bags of shopping. Whilst in a supermarket, she performed a couple of modest forward bends. On another occasion, she had her hand on her back for some time, but whether this was because of back pain or part of her natural posture was impossible to tell. Again, there was nothing in this excerpt of film which I would regard as being in any way destructive of the plaintiff’s credit.
15 The segment of film taken on 16 July 2010 commenced with the plaintiff, accompanied by her son-in-law, in East Melbourne. It became apparent that she had, on that day, attended at a medical examination arranged by the defendant with Mr Michael Shannon, orthopaedic surgeon. This film was taken over a period of approximately 10 minutes. It portrayed the plaintiff moving slowly, to my eye clearly limping, sitting carefully on a seat at a tram stop apparently for the purpose of resting and generally moving in a very careful fashion. It was put to the plaintiff that she would have been told that, on a day when she was visiting one of the defendant’s doctors, she was at risk of being filmed, the inference being that she was presenting in a particular way because of this perceived risk. The plaintiff denied that she knew of any risk of being filmed, and stated that no one had spoken to her about it. I am not prepared to draw any conclusion to the contrary. I accept the plaintiff’s sworn evidence in this regard. I accept that the manner in which she appeared in the film of the morning of 16 July 2010 was an accurate and genuine presentation.
16 Further film taken on that day again showed the plaintiff walking slowly and, on one occasion getting into a car carefully. Between 3.25pm and 3.40pm on that day, she is seen walking to a school in order to pick up her grandchildren. Whilst she was walking at a marginally faster rate than in the morning, I thought I again detected a limp. Again, there was nothing in this segment of film which, to my mind, showed an inconsistent presentation or one which was damaging to her credit.
17 By far the lengthiest duration of filming was that of 28 July. This initially showed the plaintiff at her daughter’s Melbourne home, this being in Hampton Park. The earliest footage, taken before 9am, showed the plaintiff on the porch of the house. She was wearing a dressing gown and, to my eye, moving slowly. She is then seen at approximately 10.15am examining clothing on a rack outside a shop and taking a garment into that shop. Her movements, whilst far from vigorous or athletic, appeared to be comparatively normal. She entered a car in what seemed to be a comparatively normal fashion. She makes no secret of the fact that she can drive, although the duration of the distances driven became a source of some comment.
18 It is apparent that she then drove to a hotel in Doveton, and a long and somewhat monotonous sequence of film then portrays her largely standing, and sometimes sitting, at a poker machine. At times she left the machine, apparently for the purposes of having a cigarette. The time that she spent actually playing the poker machines was something in the order of two hours, although the actual amount of film was, as stated, considerably less. Mr Meldrum put to the plaintiff that, during this period, she was seen to be putting more weight on her left leg and foot than on her right when standing in front of the machine. I might say that, to my observations, the plaintiff seemed to me to be mainly placing her weight on both feet and I remarked upon this when this line of questioning was proceeding – see T51. Certainly I could see nothing extraordinary or of note in relation to weight distribution or, for that matter, in relation to anything else of relevance. That remains my impression. If anything, the film of the plaintiff playing the poker machine reinforces her statement that she was standing more than sitting and that she has difficulty sitting. Despite the presence of a stool, the proportion of the time that she spent seated was small.
19 Nor do I read into this particular piece of film anything to the plaintiff’s discredit in relation to her alleged inability to enjoy social participation on the scale that she previously did. To me, at the hotel she cut a somewhat desolate and lonely figure, with excerpts taken over two hours essentially showing her not communicating with anyone. In short, in my opinion this longest excerpt of film showed little if anything that damaged the plaintiff’s credit.
20 Another area of attack upon the plaintiff’s credibility was that relating to histories and descriptions of symptoms given to medical examiners. I have already referred to the observations of Ashley JA in Franklin in this regard. Mr Meldrum commenced his closing address by focussing upon the accounts given by the plaintiff to some examining doctors in regard to her ability to drive. For example, it was put to her that she had told Dr Helen Sutcliffe, occupational physician, who examined the plaintiff at the request of her solicitors, that she was able to drive for only 600 metres. In her evidence, she quite freely disclosed that she was able to drive from Moe, where she lives, to Hampton Park, where her daughter resides, but with breaks. She said that she could not estimate how long the drive takes because she has such breaks. I would point out that her history, as given to Dr Sutcliffe, was relayed via an interpreter. Further, when it was put to the plaintiff that she had told Dr Sutcliffe that she could only drive for 600 metres, her answer was, “It is to my shopping”. However, she could not recall what she said to Dr Sutcliffe. She repeated that the distance to her shops was something like 600 metres – see T21.
21 In her oral evidence, the plaintiff struck me as being quite frank and open in relation to her ability to drive. It may be that, to some extent, she has exaggerated the extent of the restrictions which she has in relation to driving. It might also be that some confusion reigns as to the distance which she normally drives to the shops, namely 600 metres (a fairly precise calculation) compared with the distance which she can drive, with breaks, in order to visit her daughter. I accept that the plaintiff can, obviously, drive from Moe to Hampton Park. I accept that breaks may be required. In the circumstances, I do not accept that the reference to 600 metres given to Dr Sutcliffe is in some way significantly damaging to her credibility.
22 Under cross-examination, the plaintiff stated that, when driving to Melbourne, the longest period for which she can drive without a break is 15 to 20 minutes, although she subsequently said that, when she feels well, she can drive for longer than such a period, although her answers in this regard were a little confusing. She also stated that she could drive 100 kilometres if she was feeling well, but would need breaks – see T34 and T35.
23 I note that the plaintiff has told Professor Kenneth Myers, consultant general surgeon, examining her on behalf of her solicitors on 3 August 2010, that she could drive a car, not very often, and for no more than half an hour. To Mr Michael Shannon, examining on 16 July 2010, she stated that she could walk for up to half an hour slowly and drives a car locally. As stated, even allowing for the fact that histories are being relayed by means of an interpreter, there may be some embellishment if what has been said has been accurately recorded. However, I accept that the plaintiff does have some difficulties in relation to driving, particularly if this is more than local driving, and that breaks may be required. That this is so would seem to me to be consistent with her general presentation and with the preferred medical material to which I shall turn shortly. Certainly, that the possibility of embellishment exists is something which I shall take into account, but as part of the process of the overall weighing of evidence. Again, matters relating to the plaintiff’s capacity to drive do not represent a factor which is unduly damaging to her credibility.
24 A similar attack was based upon the plaintiff’s capacity to perform items of housework such as vacuuming, and her histories given in this regard. Again, much the same could be said. In her oral evidence, she stated that she did do some vacuuming, but was not the principal person doing such things. It is possible that some embellishment occurred in relation to her capacity to perform household duties, but again I accept that she does have some restrictions in this regard and receives assistance from her daughter. I do not regard this as a point of any great significance. Mr Meldrum, in his forceful closing address, suggested that, having watched the plaintiff in the witness box, I should come to the conclusion that she was “sparring” and trying to avoid the answering of questions. I disagree with that proposition. Essentially, the impression created by the plaintiff was of one endeavouring to answer questions to the best of her ability. I do not accept that she was trying to avoid answering questions or to mislead. I note that, in his report of 13 September 2010, Mr Kenneth Brearley, orthopaedic surgeon, described the plaintiff as being pleasant and as giving her history in a straightforward manner via the interpreter, although appearing to be somewhat depressed and anxious. Dr Albert Kaplan, psychiatrist, examining the plaintiff on behalf of her solicitors on 28 September 2010, described her as softly spoken, polite and co-operative, although appearing depressed. Whilst I cannot comment in any clinical fashion upon any apparent depression, as I am no expert, I noted none. I otherwise agree with the remarks of those medical examiners.
25 I am also not greatly influenced on the issue of credibility by any apparent discrepancies that may exist in the plaintiff’s account of her fall and the immediate sequelae as given to medical examiners. I refer to such questions as to whether or not she struck her head and whether or not she immediately experienced a little pain later worsening or considerably greater instantaneous pain. As was stated by Mr Meldrum in his closing address: “There is no doubt that she fell and it is accepted that she fell” – see T73. As set out in the defendant’s statement of issues, that the plaintiff sustained some form of injury to her lumbar spine in the fall is not disputed. I do not regard discrepancies such as those referred to above as having any significant impact upon the plaintiff’s credibility. In addition, I would again refer to the observations of Ashley JA in Franklin.
26 There were other attacks upon the credit of the plaintiff. Some of these were focussed more upon the plaintiff’s symptomatology, and the presence or absence of a functional condition and the like. I shall deal with such issues subsequently. Yet others dealt with alleged inaccuracies in her affidavits concerning her background. None were of significance.
27 In summary, in part there may have been, at times, some embellishment by the plaintiff as to the magnitude of certain restrictions from which he suffers, but I do not regard her credibility or reliability as a witness as having been undermined in any significant fashion. To the extent that there may have been some such embellishments, I shall take that factor into account when weighing up all the evidence. However, my basic view as to the plaintiff’s credibility remains that which has been set out previously.
(ii) The plaintiff’s background, training and employment prior to the injury 28 The plaintiff is aged 55 years, having been born on 16 November 1955. She is of Bosnian extraction, having migrated to Australia in approximately 1995. She is a divorced woman with a married daughter who resides at Hampton Park along with the plaintiff’s son-in-law and two grandchildren. In her home country, the plaintiff received primary school education, but did not complete any high school education and obtained no other formal qualifications or skills. Prior to coming to Australia she resided for some five years in Germany. Whilst there she worked as a cashier at a McDonald’s restaurant and, for part of the time, trained others in the use of a cash register. The duration of this employment was the foundation for another attack upon the credibility of the plaintiff, and one to which I attribute very little significance.
29 In any event, after arriving in Australia the plaintiff undertook a brief course in English, but I accept what has been attested to in her affidavits, namely that her English skills are very limited. She gave evidence via an interpreter, and seems to have required someone interpreting for her at essentially all relevant medical examinations.
30 In Australia, she was employed in a plastics factory, suffering a comparatively minor hand injury whilst working there when her right hand became caught in the roller of a printer. In her affidavit of 17 June 2009, the plaintiff has described her employment prior to working with the defendant as being unskilled manual work, and there is no suggestion to the contrary.
31 On 24 May 1999 the plaintiff commenced employment with the defendant as a packer, such employment being on a casual basis but full-time. I accept that her duties involved the repeated lifting of items together with reaching and twisting, and that the work was physical in nature and repetitive.
32 In summary, the plaintiff received little, if any, education above primary level, has no particular skills, has very limited English, and, prior to the injury of 17 November 2000, had been performing unskilled, repetitive manual work.
(iii) The injury (a) The plaintiff’s health prior to the injury of 17 November 2000 33 As stated, whilst working in a plastics factory the plaintiff sustained a minor injury to the right hand. She missed only one day from work. There is no suggestion that this injury had any ongoing impact upon the plaintiff, her employability or her lifestyle.
34 The plaintiff also experienced left hand pain following an incident with a machine in 2000. She was absent from work for approximately three days before returning to normal duties. Again, this had no ongoing impact. In the same year she began experiencing pain in her left wrist and ultimately, some three years later, had surgery in this regard. Not a great deal of information is available concerning this, and I do not view it as being of any great significance.
35 The plaintiff was also conscious of what she described as “small aches” in the back over a period of approximately two weeks before 17 November 2000. She stated that such backache was at the end of her spine and “didn’t hurt much”. She was conscious of it when doing some gardening and taping pallets at her place of employment. She took no medication in relation to it. It may be that this fact lends some support to the proposition that the injury ultimately suffered by the plaintiff was in the nature of an aggravation, but it did not prevent her from working and its significance otherwise appears to me to be limited.
36 In summary, the plaintiff had sustained no prior injury of any moment, but had some minor backaches in the fortnight prior to sustaining injury on 17 November 2000.
(b) The injury of 17 November 2000 37 That the plaintiff fell and suffered injury to the lower back on or about 17 November 2000 is not disputed. The nature of such injury and the extent and duration of any symptoms and restrictions are in dispute.
38 The plaintiff fell when she was walking backwards carrying a container and tripped over a pallet. She fell to the ground, landing on her back and buttocks – see her affidavit of 17 June 2009 and that of Selma Alicic, her supervisor, of 30 October 2010. I accept that she immediately experienced pain in the back and buttocks and complained to her supervisor of this. She continued working that day, and returned to work the following morning but then ceased.
39 On the day following her fall, the plaintiff attended upon Dr Do, a general practitioner, at TLC Medical Clinic, Noble Park. Dr Do took an appropriate history, including a description of constant pain in the lower back with pain radiating down the left buttock and left lower leg. Dr Do found marked tenderness at L4/5, mainly on the left side, with marked restriction in both lumbar flexion and extension, together with a positive left straight leg raising test.
40 A CT scan was performed on 22 November 2000. The radiologist reported that mild posterior disc protrusions were seen at L3/4 and L4/5, slightly indenting the thecal sac, and this being more prominent at L3/4. Findings at other levels were normal. The plaintiff was referred to Mr Byrne, an orthopaedic surgeon, who ultimately advised analgesia and physiotherapy. Dr Do, in a report of 17 January 2001, noted that the plaintiff had also required pethidine injections for pain and had been hospitalised on one occasion.
41 The plaintiff continued with physiotherapy, the physiotherapist noting on 24 July 2001 that she was not responding to treatment. On 3 September 2001 she was seen by Mr Andrew Danks, neurosurgeon. Mr Danks took the view that, because of the prolonged period of disability and the presence of neurological symptoms in the left leg, an MRI scan would be appropriate. He noted that the plaintiff appeared to be making “slow gains” with physiotherapy and time. An MRI was carried out on 7 November 2001. In the opinion of Mr Danks, this revealed no major pathology, but substantial changes of desiccation of the discs at L3/4 and L4/5. The radiologist also reported mild to moderate subarticular recess narrowing at the L4/5 level, although Mr Danks was not of the view that this appeared to be very severe. He also noted that the plaintiff’s symptoms were continuing to limit her severely and advised a continued supportive and conservative approach, although also raising the possibility of an epidural steroid injection or a short course of high dose oral steroids.
42 Mr Danks reported to the solicitors for the plaintiff on 10 November 2008. A substantial part of that report covers her visits to him in 2001. In answer to specific questions, Mr Danks expressed the view that there was a significant link between the fall and the ill effects which the plaintiff was suffering as a result of lumbar spondylosis with broad based disc bulges at L3/4 and L4/5. He also made some observations concerning her employability and I shall return to these.
43 From September 2001 the plaintiff was seen on a number of occasions by Dr Geoff Macaulay of the Noble Park Medical Centre. In his report of 29 September 2008, he has remarked that, on the first occasion that he saw her, the clinical picture was quite compatible with sciatica and back pain secondary to lumbar disc disease. He also remarked that the plaintiff was seen by specialists and that the MRI scans confirmed the presence of disc pathology at L3/4 and L4/5, although they fell short of demonstrating clear nerve root compression. He observed that the plaintiff’s injuries were compatible with the lumbar disc injury causing secondary symptoms of sciatica and back pain, and also resulting in some reflux problems (due to the use of anti-inflammatories) as well as anxiety and stress. He felt that her range of symptoms was compatible with an acute injury from falling or lifting and from the results of treatment. In addition to his comments about employability and impact upon lifestyle, which shall be discussed subsequently, Dr Macaulay concluded that the history provided indicated a lumbar disc injury strongly related to the work injury. In his report of 24 September 2010 he also expressed the view that it was unlikely that any significant further improvement in her condition would occur. Whilst explaining the difficulties associated with providing meaningful comment about the plaintiff’s ongoing condition, Dr Macaulay concluded that the prognosis was poor.
44 The plaintiff has been seen by a number of specialists for medico-legal purposes. At the request of her solicitors, she was seen by Professor Kenneth Myers, consultant general surgeon, on 3 August 2010. Professor Myers diagnosed aggravation of pre-existing and previously asymptomatic degenerative intervertebral disc disease in the lumbar spine (and probably the cervical spine) as a result of work-related injuries sustained in 2000. He also referred to a probable left shoulder rotator cuff injury as a result of a fall in 2007. In a supplementary report of 20 October 2010 Professor Myers stated that he considered that it was the incident of 18 November 2000 which had been totally responsible for the plaintiff’s inability to return to any form of employment and for all current symptoms relating to the low back.
45 Mr Kenneth Brearley, surgeon, saw the plaintiff at the request of her solicitors on 13 September 2010. His conclusion was that the plaintiff suffered from mechanical lumbar back pain secondary to L3/4 and L4/5 disc disruption with left leg pain resulting from compression of the L5 nerve root in the exit foramen. He implicated employment, and expressed the view that the prognosis was not good.
46 On 16 September 2010 Dr Helen Sutcliffe, occupational physician, reported to the plaintiff’s solicitors concerning an assessment some four days earlier. Her conclusion was that the plaintiff suffered onset of disc derangement at L3/4 and L4/5 as a result of a heavy fall in the course of her employment in 2000. She also remarked that the plaintiff had a history of long-standing low back and left leg pain with clinical findings consistent with L5 nerve root involvement.
47 Dr Albert Kaplan, consultant psychiatrist, in a report of 4 October 2010, stated, in essence, that the prognosis of the plaintiff’s psychiatric condition would be determined by the outcome of her physical condition. Whilst her psychiatric condition was having a major impact on her ability to engage in her normal social activities, her capacity to engage in employment would be largely determined by her physical condition.
48 The defendant has also had the plaintiff examined by a number of experts. The report of Mr T J Russell, general surgeon, is dated 23 January 2001 and has been overtaken by the course of events. In addition, the difficulty which he identified in relation to the plaintiff’s history has, to a considerable extent, disappeared, given the account sworn to by her supervisor.
49 Mr Michael Shannon, orthopaedic surgeon, first examined the plaintiff on 1 September 2009. His relevant conclusion was that the work incident was an aggravation of pre-existing degenerative change, although he also expressed the view that such aggravation may have subsided and that there were subsequent further aggravations. The impression given is that his report was focusing very considerably upon any injury to the neck. In a subsequent report of 20 July 2010, and leaving to one side opinions expressed in relation to her neck or shoulder, his opinion was that the incident at work had resulted in an aggravation of degenerative change in the plaintiff’s back, although he was of the view that there was little evidence that a significant disc prolapse had been sustained. He also believed that there had been a severe functional overlay. His conclusion was that there was lumbar disc degeneration with disc bulging aggravated by employment.
50 Dr Kevin Fraser, rheumatologist, examined the plaintiff on 26 July 2010. His conclusion was, essentially, that it was possible that there had been temporary symptomatic aggravation of pre-existing degenerative change in the lumbar spine. He believed that such aggravation had long since ceased, and that there was marked overreaction on the part of the plaintiff to physical examination. He believed that the plaintiff was at least fit for suitable restricted employment, if not all employment, and remarked upon the impediment created by non-organic factors.
51 On balance, I am of the view that the injury sustained by the plaintiff is in the nature of aggravation of pre-existing degenerative disease in the lumbar spine. In accordance with the authorities, it is the aggravated condition which I shall consider. I am also of the view that any low back symptoms previously experienced by the plaintiff were minor and occurred only in the period of approximately two weeks prior to the relevant incident. They were not of sufficient magnitude to prevent her from working. To all extents and purposes, she was symptom-free prior to the relevant incident. I am also satisfied that the effects of that aggravation are persisting and, as shall be discussed, are likely to persist for the foreseeable future. I do not subscribe to the view put forward by, for example, Dr Fraser that this was some form of temporary aggravation. Identifying exactly when the effects of an aggravation cease and the underlying condition is responsible for symptoms is a difficult concept, and one which has not been explained to my satisfaction in the present case. I prefer the evidence of examining specialists such as Professor Myers, Mr Brearley and Dr Sutcliffe. Indeed, in his report of 20 July 2010, Mr Shannon, examining on behalf of the defendant, expressed the view that it was consistent that the incident at work resulted in an aggravation of degenerative change, and that there was some evidence to suggest that the plaintiff had an ongoing problem with her low back in the form of such aggravation.
52 I appreciate that the plaintiff had a sudden onset of severe symptoms which caused her to be admitted to Latrobe Regional Hospital, Traralgon, and to be seen by Mr Peter Rehfisch in July 2004. I also appreciate that, in his report of 21 July of that year, Mr Rehfisch took a history of a previous episode that “sounds” as though it was work-related about four years ago but which “settled quickly with conservative treatment”. Certainly this would suggest a temporary aggravation. However, there is no indication that the plaintiff had with her an interpreter, and Mr Rehfisch noted that the plaintiff’s English was “a little scratchy”. In the circumstances, and given the medial opinions referred to above, I am not persuaded that the consequences of the injury sustained were temporary in nature.
53 Indeed, I am satisfied that the consequences of the injury are permanent within the meaning of the Act. They will persist for the foreseeable future. Professor Myers has stated that the limitations or preclusions upon her will persist for the foreseeable future, and that the prognosis is not good. The interference with her basic activities of daily living and her enjoyment of life is permanent.
54 In his report of 13 September 2010, Mr Brearley has expressed the opinion that the plaintiff’s prognosis is not good. He has stated that the pain and suffering will continue for the foreseeable future and that the interference from her physical injuries with the basic activities of daily living and her enjoyment of life is permanent.
55 Dr Sutcliffe, having seen the plaintiff on 16 September 2010, has expressed the view that the plaintiff has no capacity for employment indefinitely and that she has a permanent loss of capacity for activities of domestic care.
56 Dr Macaulay, who has not seen the plaintiff since 2008, has commented that there is little chance of the plaintiff improving.
57 Mr Shannon, examining on behalf of the defendant, has worded his opinion in relation to prognosis somewhat carefully, stating that the plaintiff will claim ongoing incapacity into the foreseeable future. I note that, in an earlier report of 30 September 2009, Mr Shannon opined that the plaintiff would be permanently limited because of her back in the foreseeable future, whilst being unable to say that this limitation related entirely to the work injury.
58 Dr Fraser, similarly examining, has placed greater emphasis on non-organic factors, saying that they are likely to be an insurmountable impediment in respect of rehabilitation for the foreseeable future, but then qualifying that opinion.
59 Having considered the various opinions, I accept that the consequences of injury suffered by the plaintiff are permanent within the meaning of the Act in that they will persist for the foreseeable future. I accept that they have endured for some 10 years to date. I prefer and accept the opinion that they will persist for the foreseeable future.
60 I also accept that some non-organic or functional features may be involved, although I do not consider these to be particularly marked. Of course, as required by s.134AB(38)(h) of the Act, psychological or psychiatric consequences cannot be taken into account insofar as reliance is placed on paragraph (a) of the definition. Insofar as the plaintiff relies upon paragraph (c) of the definition, and, as I indicated earlier, such reliance is small, she has failed to discharge the burden of proof.
61 Whilst there have been references to non-organic factors in some medical reports (particularly those of Dr Fraser and Mr Shannon), the only consultant psychiatrist to have reported is Dr Kaplan. Whilst he diagnosed an adjustment disorder with mixed anxiety and depressed mood, he also stated that the prognosis of the plaintiff’s psychiatric condition would be determined by the outcome of her physical condition and stated that her capacity to engage in employment would also be largely determined by her physical condition. I accept this opinion. I might add that, speaking as a lay observer, the impression created by the plaintiff in the witness box and in the courtroom was not that of a person suffering from any marked or florid psychological or psychiatric condition. It may be that there is some functional overlay, and this may even account for a possible tendency to embellish at times. In any event, psychological or psychiatric consequences shall not be taken into account, although I do not consider them to be of any great significance.
(c) Developments since the injury 62 I have already set out the sequence of medical treatment which occurred after the occurrence of the injury. I shall now turn to other incidents of injury suffered by the plaintiff, together with developments in relation to rehabilitation, the plaintiff’s activities and the like.
63 As previously mentioned, on 20 July 2004 the plaintiff was admitted to Latrobe Regional Hospital, Traralgon, after a sudden onset of back and left-sided leg pain which began when she was standing up from a crouching position. Mr Rehfisch, orthopaedic surgeon, believed that there had been a recent soft tissue injury but the plaintiff had no evidence of any nerve root irritation, and he advised conservative measures. Physiotherapy seems to have been organised, but Mr Rehfisch was hopeful that the problem would be short lasting. Whilst there is a reference to this incident in the plaintiff’s original affidavit, and it appears in some medical histories (such as that of Mr Brearley), it is not entirely clear whether the symptoms experienced at this time were related to the original incident of injury. There is nothing to suggest that there was any ongoing worsening of consequences or restrictions as a result of it.
64 On 20 July 2007, the plaintiff suffered a fall, slipping in a Safeway supermarket. She was admitted overnight to the Latrobe Regional Hospital. For a time thereafter she experienced increased pain in the lower back. She has sworn in each affidavit that this pain then returned to the level which she had been experiencing generally since the occurrence of the work injury. In her affidavit of 12 October 2010 the plaintiff has sworn that, whilst she forwarded a letter to Safeway, she did not pursue the matter further as her condition returned to what it had been before that fall. She had physiotherapy for a couple of months, but ceased this in approximately October 2007 once the exacerbation of pain in her low back had eased. It would seem that, in that fall, she also injured her left shoulder.
65 Whilst the injury to the left shoulder may have involved some bursitis with some resultant stiffness and limitation of use, I am not of the view that this has any significant impact upon either the plaintiff’s capacity for employment or upon her every day life. Similarly, I accept her evidence that the effect of the fall upon her back was that of a temporary exacerbation, and that the level of symptoms and restrictions suffered returned to what they had been prior to the incident in the supermarket.
66 The plaintiff has suffered some other injuries. She has suffered some pain and discomfort in the left wrist, which resulted in surgery. In 2004 she suffered from a tooth abscess. She has also undergone a laparoscopy in relation to an ovarian cyst. I am not of the view that these matters are of any importance insofar as this case is concerned.
67 The plaintiff has also continued to have some physiotherapy, having visited Mr D’Souza, a physiotherapist in Dandenong, on several occasions. She has also received physiotherapy from Ms Elissa Muir. She has also consulted a Serbian speaking psychologist, but this now only occurs occasionally. The plaintiff’s current treating general practitioner, who prescribes Panadeine Forte for her, is Dr Doslo in Moe. A treatment plan, but no other material from him, has been placed before me.
68 The plaintiff has not engaged in employment since 18 November 2000. The plaintiff also agreed that, since being injured at work, she had not looked for a job, stating that this was because she could not. It was not put to the plaintiff, nor suggested in Mr Meldrum’s closing address, that she had failed to co- operate with such things as rehabilitation or retraining plans, or indeed had been offered any. I accept that she has not undergone any relevant retraining or rehabilitation, and has not looked for work.
Ruling
(i) Pecuniary loss damages 69
In my opinion the plaintiff has discharged the burden of proof in this regard. I am satisfied that, as a result of the relevant injury, there has been a total destruction of her capacity for suitable employment and that this will remain the situation for the foreseeable future. I have arrived at these conclusions for the following reasons which are not listed in order of importance or significance.
(a)
As has been said, and as was pointed out by Mr Morfuni, the principal attack, if not the almost overwhelming line of attack, employed by the defendant has been in relation to the plaintiff’s credit and creditability. I have already analysed this issue in some detail and arrived at the conclusion that her reliability as a witness has not been damaged in any significant fashion. The plaintiff has sworn that she is totally unfit for work and, in her affidavits, has set out the various symptoms and restrictions from which she suffers. As I have found her to be a witness whose evidence is essentially reliable, and even allowing for the possibility of some embellishment of no great moment, I accept her description of the various consequences of injury which she suffers. I also accept that it is her belief that she is, and has been, unable to engage in any employment.
(b)
Whilst acknowledging that he has not seen the plaintiff since 2008, and did not see her between 2002 and 2008, Dr Macaulay has in fact seen the plaintiff on some 24 occasions. In his report of 29 September 2008, Dr Macaulay expressed the view that the plaintiff did not have a realistic capacity for pre-injury employment and could not see any form of alternative employment that would not aggravate her pain or risk exacerbation of her overall injury. In his further report of 24 September 2010, Dr Macaulay remarked that he had not seen the plaintiff for some 18 months but also stated as follows:
“However I consider it likely that her condition is ongoing and has changed little. If this is the case then her lack of further education and work experience as well as some language difficulties would likely make it impossible to perform any fulltime unrestricted or pre injury duties…The injury is most likely to remain significant in terms of her ability to work and in terms of her social and domestic activities.”
(c) Professor Myers has simply stated as follows: “She has no capacity for unrestricted or pre-injury employment…She has no capacity to return to employment. Her education and vocational background is such that would make it essentially impossible.”
In his supplementary report of 20 October 2010 Professor Myers
stated as follows:“…I consider that it was the incident on 18 November 2000 which has been totally responsible for her inability to return to any form of employment and all current symptoms relating to the low back.”
(d) Mr Brearley, in his report of 13 September 2010, has stated as follows: “She is completely unfit for her pre-injury employment or any unrestricted manual labour. In fact she is not fit for any work at all because of her ongoing quite severe low back pain and left leg pain and also because of the pain and limitation and use of the left arm. She is not fit for her work in any capacity at this time or in the foreseeable future. She is in receipt of a disability support pension…It is the physical effects of her serious injuries which are restricting her ability to work at all.”
I appreciate that Mr Brearley has also referred to the left shoulder injury, but the emphasis of his observations and, indeed, of his report is upon the back injury.
(e) Dr Sutcliffe, in her report of 20 September 2010, has stated as follows: “However I believe that she has sustained very substantial loss of capacity for employment and also for activities of daily living as a result of the work related L3/4 and L4/5 disc lesions with persisting radicular and neuropathic pain in the left leg.
She has no capacity for employment currently and indefinitely taking into account the nature of the injury, the lack of English literacy, the limited education, training and work experience.
…The physical effects of the work related injury result in
inability to remain in employment.”
(f) Mr Shannon, examining on behalf of the defendant, had reservations concerning whether or not functional overlay and/or pain syndrome existed, and as to whether the plaintiff’s presentation was genuine. He appears to have found her history of events confusing. In any event, he concluded his report with the following observation: “I think that physically she may be capable of very light process work, but she has few alternate skills or qualifications and a limited command of English.”
I treat that statement as being an indication from Mr Shannon that, when the relevant factors are considered, the plaintiff’s employment prospects are bleak.
(g)
An affidavit of Nadzija Vusic, the plaintiff’s daughter, has been placed in evidence and she has not been challenged in relation to it. It includes a description of the many restrictions to which the plaintiff is subject and which have been observed by Ms Vusic. If such description is accurate, and the evidence of Ms Vusic was not subject to challenge, it is difficult to envisage what work, if any, the plaintiff could perform.
(h)
When the matters referred to in the definition of “suitable employment” contained in s.5 of the Act are taken into account, the fact that the plaintiff’s earning capacity has been destroyed becomes even more apparent. The nature of her pre-injury employment was that it was physical, manual and unskilled. The plaintiff’s age of 55 years certainly does not assist her. Her education level is very low. She only has very limited English. She has no particular relevant skills and her work experience, which is limited to only a couple of categories, has already been described. It is not apparent that she has been offered any return to work plan or occupational rehabilitation services.
(i) In relation to the last-mentioned matter, the defendant placed little or no emphasis on s.134AB(38)(g). I am far from satisfied that it has any particular relevance in this case. In any event, I find that it does not operate to the detriment of the plaintiff.
70 In summary, I am satisfied that the incident of injury which is the subject of this application has destroyed the plaintiff’s earning capacity, that there is no employment which is suitable for her and that this situation will persist for the foreseeable future.
(ii) Pain and suffering damages 71 Bearing in mind the decision of the Court of Appeal in Advance Wire Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court, the plaintiff, having established that she is entitled to leave in relation to pecuniary loss damages, is also successful in relation to leave to pursue pain and suffering damages. I might add that, given the plaintiff’s age, the pain and restrictions which she has suffered to date and the fact that she will continue to suffer these in the foreseeable future would lead me to the conclusion that she has satisfied the “very considerable” test, were it necessary for me to be so satisfied. I would refer again to her affidavits and that of her daughter.
Conclusion
72 The plaintiff is successful. She has discharged the burden of proof in relation to leave to bring proceedings for both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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