Barac-Mihaljevic v Victorian WorkCover Authority
[2021] VCC 2040
•15 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-01311
| IVA BARAC-MIHALJEVIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2021 | |
DATE OF JUDGMENT: | 15 December 2021 | |
CASE MAY BE CITED AS: | Barac-Mihaljevic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2040 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the back, neck, shoulder – loss of earning capacity – plaintiff under 26 years of age
Legislation Cited: Accident Compensation Act 1985 (Vic), s134AB
Cases Cited:State of New South Wales v Moss [2000] NSWCA 133; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms C Spitaleri | Thomson Geer |
HER HONOUR:
1Ms Barac-Mihaljevic is a 33-year-old woman who suffered an injury on 20 July 2013 during the course of her employment with ISS Security Pty Ltd (“ISS Security”). Ms Barac-Mihaljevic was working as a security officer at Tullamarine Airport, when a chair that she sat on collapsed, causing her to fall to the ground and strike the right-hand side of her head against a metal machine (“the chair incident”). Ms Barac-Mihaljevic was 30 weeks’ pregnant at the time of this incident.
2Ms Barac-Mihaljevic injured her back, neck and right shoulder in this fall, and claims she has suffered ongoing impairment to those body parts since that time. In order for Ms Barac-Mihaljevic to be permitted to claim common law damages for her injuries, she must satisfy me that either the impairment to her spine or the impairment to her right shoulder satisfies paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”), both in respect of her pecuniary loss and her pain and suffering consequences. Ms Barac-Mihaljevic’s counsel conceded that, although she claimed impairment to both her spine and right shoulder, her most significant consequences were predominantly attributable to her spinal impairment.
3In 2003, Ms Barac-Mihaljevic had injured the same parts of her body when she fell over at a Myer store. Further, on 24 August 2014, she was involved in a transport accident, in which she injured her neck, back and right shoulder. The defendant defended this claim on two grounds: The first, that the chair incident is not a cause of Ms Barac-Mihaljevic’s current condition. It submitted that these other events had caused Ms Barac-Mihaljevic to suffer intermittent pain in the same body parts, both prior to, and subsequent to, the chair incident, and that any aggravation caused in the chair incident has long ceased. Secondly, in the alternative, the defendant submitted that even if I was satisfied the chair incident was still a cause of Ms Barac-Mihaljevic’s current impairment, then I should not be satisfied that it is a cause of any ongoing restriction on her earning capacity (to the requisite level required in s134AB(38)(e)(ii)) of the Act and that the pain and suffering consequences to her cannot be described as “at least very considerable”.
4Only Ms Barac-Mihaljevic was called to give evidence. Also in evidence was an affidavit from her mother, medical reports, clinical records, vocational reports and other material. I have read these tendered documents, together with the transcript of the proceeding. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.
Ms Barac-Mihaljevic’s life before the workplace injury
5Ms Barac-Mihaljevic was born in Melbourne in April 1988 and attended school until Year 12 at Catholic Regional College in Sydenham.
6On 17 December 2003, when she was fifteen years old, Ms Barac-Mihaljevic injured herself while in a Myer store, when she fell over a display bed. Ms Barac-Mihaljevic said that she hurt her ankle and shoulder and sustained multiple cuts and bruises after falling forward onto her hands.
7On 31 December 2003, Ms Barac-Mihaljevic underwent a whole body scan as a result of her fall at Myer and suffered from “continued low back pain”. The scan demonstrated that Ms Barac-Mihaljevic suffered thoracolumbar scoliosis. However, Ms Barac-Mihaljevic said that she could not recall being told about any degenerative back condition at that time.
8Ms Barac-Mihaljevic said that subsequent to this fall, she was treated by physiotherapists and at The Royal Children’s Hospital for about two years for shoulder and back pain.
9Ms Barac-Mihaljevic issued County Court proceedings in relation to this fall. The claim was issued in December 2006 and was settled at mediation on 6 August 2007. The Statement of Claim issued on her behalf claimed that, in the fall, Ms Barac-Mihaljevic suffered injuries, including:
· Injury to the lumbar spine, including spondylolisthesis at L5-S1 level and/or aggravation and rendering symptomatic of pre-existing asymptomatic spondylolisthesis at L5-S1 level.
· Disc impingement at the L5 nerve root and pain radiation symptoms in the right leg.
· Injury to the cervical and thoracic spine.
· Spinal scoliosis.
· Injury to the right shoulder, including right subdeltoid-subacromial bursitis with bursal impingement.
10In her Statement of Claim, Ms Barac-Mihaljevic claimed that she had sustained impairment to her earning capacity, and that although she was a student at the time, she claimed for the risk of future periods of unemployment and less remunerative employment due to her difficulty in sitting and standing for long periods, and interference with her capacity to study.
11Ms Barac-Mihaljevic said that she settled her claim and received “just under $50,000”. Ms Barac-Mihaljevic said her mother assisted her to bring the claim and said her mother told her that it was subject to a confidentiality clause, which she understood meant she could not discuss it with anyone.
12After finishing school, Ms Barac-Mihaljevic went to University to study accounting, banking and finance. She did not complete her degree, and after leaving university, travelled overseas for a period of time, and then worked in casual retail jobs.
13Prior to Ms Barac-Mihaljevic’s employment in her role with ISS Security, she worked as a florist merchandiser. While in that job, Ms Barac-Mihaljevic injured her foot, but deposed that she made a good recovery from this injury.
14In the financial year ended 30 June 2013, Ms Barac-Mihaljevic earned $5,793.
15On 18 June 2013, Ms Barac-Mihaljevic undertook a pre-employment medical examination and commenced work with ISS Security around one week later, on 26 June 2013.
The chair incident, subsequent medical treatment and Ms Barac-Mihaljevic’s claimed consequences
16On 20 July 2013, Ms Barac-Mihaljevic sat on a swivel chair at work, and it collapsed, causing Ms Barac-Mihaljevic to fall to the ground and hit the right side of her head against a metal machine.
17Ms Barac-Mihaljevic was initially taken to The Royal Melbourne Hospital by ambulance, but as she was advanced in her pregnancy, she was immediately transferred to The Royal Women’s Hospital.
18A report dated 29 April 2019 of Dr Mark Garwood, the Chief Medical Officer at The Royal Women’s Hospital, stated that Ms Barac-Mihaljevic was diagnosed with a muscle sprain/strain after x-rays excluded any bone fractures. During her admission at The Royal Women’s Hospital, it was noted she complained of mild right-sided abdominal tenderness, which was thought to be musculoskeletal in origin. Ms Barac-Mihaljevic was discharged from The Royal Women’s Hospital on 22 July 2013. It was then noted, in a follow-up appointment on 25 July 2013, Ms Barac-Mihaljevic stated she was feeling well, although she still described some muscle pain.
19The following day, 23 July 2013, Ms Barac-Mihaljevic attended on her general practitioner Dr Sanaa Salib at the St Cyril Pty Ltd medical clinic (“St Cyril Medical Clinic”). At that attendance, Dr Salib noted that Ms Barac-Mihaljevic had fallen at work, and complained of being:
“very sore allover her body
pain in her neck,low back hips,legs,ankles and hands.taking panadeine forte”
(sic)
20On 25 July 2013, Ms Barac-Mihaljevic commenced physiotherapy treatment with Mr Con Boulionis, physiotherapist, at Back in Motion Health Group in Sydenham (“Back in Motion”). Such treatment was provided until 25 October 2014 and included strengthening exercises and clinical Pilates, as well as hands-on manual therapy. In a report dated 1 November 2021, Mr Boulionis noted that, at the time of her initial attendance, he considered that Ms Barac-Mihaljevic suffered from lumbopathic bony bruising, and noted that the trauma to her head in the fall was also likely to have caused whiplash-associated symptoms, including the development of cervicogenic headaches. Mr Boulionis also considered that it was likely Ms Barac-Mihaljevic suffered some form of rotator cuff pathology in her right upper limb, which would explain her pain, lack of strength and lack of mobility in her shoulder at that time.
21Mr Boulionis stated he did not obtain a history from Ms Barac-Mihaljevic of any prior back pain or trauma. When this aspect of his report was put to Ms Barac-Mihaljevic in cross-examination, Ms Barac-Mihaljevic said that she thought that she had told Mr Boulionis about her prior injuries.
22On 26 July 2013, Ms Barac-Mihaljevic also commenced osteopathy treatment with osteopath, Ms Jessica Levett.
23Ms Barac-Mihaljevic continued to see Dr Salib from time to time thereafter. On 30 July 2013, she was noted to have had minor improvement, and was unable to sit for a long time. On 5 August 2013, it was noted that she was a “little bit better”.
24On 8 August 2013, Ms Barac-Mihaljevic attended on Dr Salib and reported that she had returned to work the previous day, and was sitting for four hours, which made her pain worse. It was noted that her back pain and headache was not relieved by Panadeine.
25On 16 August 2013, Dr Salib noted that Ms Barac-Mihaljevic was a bit better, but still could not sit for long periods of time. On 22 August and 31 August, Ms Barac-Mihaljevic reattended upon Dr Salib and sought WorkCover certificates for her back pain.
26On 22 September 2013, Ms Barac-Mihaljevic gave birth to her daughter.
27In December 2013 and January 2014, Ms Barac-Mihaljevic attended upon Dr Salib and complained that she was still getting headaches, and was seeing her physiotherapist for upper shoulder and back pain. Thereafter, Ms Barac-Mihaljevic continued to attend upon Dr Salib for a range of medical concerns, including skin lesions, a blocked ear and marital problems.
28On 24 June 2014, Ms Barac-Mihaljevic attended upon Dr Salib and sought a letter to enable her to get acupuncture from her physiotherapist, and for a clearance to enable her to go back to work. When asked about this in cross-examination, Ms Barac-Mihaljevic stated that she sought this as she was told a clearance was required in order for her to return to work. Ms Barac-Mihaljevic felt she was able to return to work, by managing her pain with “the right treatment and the right medication”.
29On 24 August 2014, Ms Barac-Mihaljevic was injured in what she described as a “minor” transport accident which occurred when the car she was driving slid off the road and into a ditch. Ms Barac-Mihaljevic said airbags were deployed and she believes she lost consciousness in this accident.
30Ms Barac-Mihaljevic was taken to The Royal Melbourne Hospital, where she was admitted for two days. At the time of her attendance, it was noted in her past medical history that she had a back problem from pregnancy. It was noted that Ms Barac-Mihaljevic complained of neck pain, with tingling of her bilateral palms. A CT scan of Ms Barac-Mihaljevic’s cervical spine taken on 24 August 2004 was reported as demonstrating alignment of the cervical spine to be roughly anatomical, with no acute fracture or dislocation identified.
31On 26 August 2014, a scan was taken of Ms Barac-Mihaljevic’s right shoulder and it was reported as showing no fracture in the clavicle or humerus, but a possible nondisplaced fracture through the blade of the scapula. There was noted to be no subluxation or dislocation.
32In her affidavit sworn 21 December 2020, Ms Barac-Mihaljevic said she suffered some whiplash in this transport accident, and had some treatment for this at the time, but then made a “good recovery from this”. In her oral evidence, Ms Barac-Mihaljevic said that the symptoms she suffered following this accident went away and she returned to her “new normal”, which was her state of injuries after the chair incident.
33The tendered medical records indicated that following this transport accident, Ms Barac-Mihaljevic obtained physiotherapy treatment from Back in Motion and attended forty-seven times from 9 September 2014 until 29 June 2015. These physiotherapy attendances were paid for by the Transport Accident Commission.
34In a report to the Transport Accident Commission dated 1 December 2014, Mr Boulionis stated that due to the impact of the collision, Ms Barac-Mihaljevic suffered cervicothoracic and lumbar joint dysfunction, and bruising, which led to ongoing hypomobility and postural control deficits throughout those areas. Further, Mr Boulionis noted a possible right scapula fracture, which had caused dysfunction in surrounding areas. As at December 2014, Mr Boulionis considered that Ms Barac-Mihaljevic’s injuries had not yet stabilised, and that it was difficult to predict a timeframe for her injuries to stabilise, as there was a multitude of components related to her injury which would affect her recovery. In respect of her capacity for work at that time, Mr Boulionis noted that she had been cleared to return to her pre-injury hours, but considered that due to the injuries suffered in the transport accident, Ms Barac-Mihaljevic should not lift more than 5 kilograms, not sit for more than one hour, and should have the option to undertake alternative occupational tasks.
35In a further report to Ms Barac-Mihaljevic’s solicitors on 3 November 2021, Mr Boulionis stated that, in his opinion, the injuries that Ms Barac-Mihaljevic continues to suffer from are directly attributed to the chair incident.
36Ms Barac-Mihaljevic continued to attend the St Cyril Medical Clinic on an occasional basis, but did not attend in relation to back pain until 3 May 2016. On this day, she attended upon Dr Magdy Azer, who noted the following:
“low back pain
said it was on and off for long time.”
37When this extract was put to Ms Barac-Mihaljevic in cross-examination, she denied that her back pain had been on and off since 2013. Ms Barac-Mihaljevic said that, since the chair incident, she has had “constant pain and it’s every day”.
38Dr Azer arranged for an x-ray to be taken, which was performed on 5 May 2016. It was reported as demonstrating spondylolysis of L5 vertebra with L5-S1 anterolisthesis. The height of the L5-S1 intervertebral disc was considered to be suggestive of underlying disc degeneration.
39On a return visit to Dr Azer on 5 May 2016, it was again noted that Ms Barac-Mihaljevic said that her lower back pain had been “on and off for a long time”. At that time, Ms Barac-Mihaljevic sought a referral to a chiropractor.
40Soon thereafter, Ms Barac-Mihaljevic commenced chiropractic treatment with chiropractor, Dr Greg Conlan. In a letter dated 19 July 2016, Dr Conlan noted that after five treatments to her cervical, thoracic and lumbosacral regions, Ms Barac-Mihaljevic reported that her symptoms had significantly improved.
41Ms Barac-Mihaljevic said that she returned to work at ISS Security, and remained a casual, doing varying hours each fortnight throughout 2017, 2018 and 2019. The maximum hours she worked in a fortnight was 78.5 hours. In the financial year that ended on 30 June 2017, Ms Barac-Mihaljevic earned $38,152. In the financial year that ended on 30 June 2018, Ms Barac-Mihaljevic earned $54,232. In the financial year that ended on 30 June 2019, Ms Barac-Mihaljevic earned $44,814.
42Ms Barac-Mihaljevic said that some of the work she performed involved light duties in the ETA and CBS areas. The ETA role involved working in an area where staff from the airport come through to have their security passes and handbags checked, and were swabbed for gunpowder residue. In the CBS area, the duties involved working in a control room and visually inspecting bags on a screen, and then accepting or declining the bag to be loaded on to the undercarriage of an aircraft.
43Ms Barac-Mihaljevic said that when she was offered a shift on these light duties she would usually accept it. However, when Ms Barac-Mihaljevic was offered a shift working on the security point inside the airport, she said would see how she felt on the day and would weigh up if she felt physically up for it. Ms Barac-Mihaljevic said the screening point work was very strenuous and required lots of pushing and pulling. Ms Barac-Mihaljevic said that if she did undertake a shift in that area, she found that the following day she would need to recover, and found it hard to do errands or go for a walk.
44Ms Barac-Mihaljevic’s next attendance at the St Cyril Medical Clinic in relation to her lower back pain was on 20 January 2018, at which time it was noted that she complained of chronic back pain. At that time, Dr Azer arranged a referral back to chiropractor, Dr Conlan, and prescribed Mobic medication.
45On 7 January 2019, Ms Barac-Mihaljevic commenced attending upon general practitioner, Dr Peter Andrianakis at 151 Medical in Footscray. At the time of Ms Barac-Mihaljevic’s first attendance upon him, Dr Andrianakis took a history of the chair incident and noted that Ms Barac-Mihaljevic complained that she was still suffering with back pains and stiffness pains in her neck and shoulder. Dr Andrianakis noted that Ms Barac-Mihaljevic had been accommodated by her employment by being placed in jobs that enabled her to move as required and that she was “in effect working modified duties”.
46Soon thereafter, Dr Andrianakis arranged for medical imaging of Ms Barac-Mihaljevic’s lower back, neck and shoulders.
47On 14 January 2019, Ms Barac-Mihaljevic commenced acupuncture treatment with Dr Wu.
48On 24 June 2019, ultrasounds were taken of both Ms Barac-Mihaljevic’s right shoulders. The right shoulder ultrasound demonstrated mild subacromial bursitis, with mild tendinosis noted in the left supraspinatus tendon, but otherwise the left shoulder was reported as normal.
49On 3 July 2019, Ms Barac-Mihaljevic attended myotherapy services at Northcote Chiropractic Centre. She also subsequently attended on 31 July 2019 for chiropractic treatment. In a report from chiropractor, Dr Conlan, dated 14 October 2021, he noted that Ms Barac-Mihaljevic reported that her problems started after the chair incident, and that she had suffered pain in her neck and lower back at that time. He then noted that, at the time of her presentation in July 2019, she complained of neck, shoulder and lower back pain. He noted that her work at the airport had been modified to reduce her exposure to manual handling. Dr Conlan said that he then recommended she undergo treatment on a monthly basis, which included both myotherapy and chiropractic treatment. Dr Conlan stated that, considering the length of time Ms Barac-Mihaljevic had suffered from this condition, it was unlikely she would ever be without discomfort in her neck and lower back. Dr Conlan considered that Ms Barac-Mihaljevic was capable of employment which involved administrative duties, such that she could perform a number of tasks and move around. However, Dr Conlan considered Ms Barac-Mihaljevic was not suited to a manual occupation.
50On 11 July 2019, an MRI scan was performed on Ms Barac-Mihaljevic’s cervical and lumbar spine. It was reported as demonstrating mild degenerative changes at the sacroiliac joints, as well as degenerative changes in the cervical spine, with no definite nerve root impingement.
51In a report dated 17 July 2019, radiologist, Dr Wayne McGregor, noted that preliminary images demonstrated moderate distension of the subacromial bursa indicating bursitis. On that date, Dr McGregor performed an injection of a combination of two ampoules of Celestone Chronodose and Bupivacaine into the subacromial bursa, guided by ultrasound.
52As at 16 September 2019, Dr Andrianakis noted that Ms Barac-Mihaljevic was continuing to work, although she was struggling with neck, shoulder and back pains. At that time, Dr Andrianakis referred Ms Barac-Mihaljevic for physiotherapy and further strengthening exercises.
53In a report dated 12 September 2020, Dr Andrianakis noted that, as at March 2020, Ms Barac-Mihaljevic was continuing to struggle with daily neck pain and stiffness, as well as lower back pain. At that time, she was taking Lyrica, as well as Feldene, medication for her neck and lower back pain. As at that time, Dr Andrianakis considered that Ms Barac-Mihaljevic was “a long way from returning to normal work duties”.
54In a report dated 6 October 2021, Dr Andrianakis noted that Ms Barac-Mihaljevic continued to attend, complaining of lower back pain and leg weakness, with tingling in the plantar aspect of her feet, which he considered to be typical of an L5-S1 disc protrusion. He also noted that Ms Barac-Mihaljevic continued to suffer ongoing neck pain and shoulder pain, and he considered her prognosis in respect of her lower back injury to be very poor, while her neck and shoulder pain should have a better prognosis.
55In a report dated 8 October 2021, Dr Andrianakis provided an opinion in respect of whether the chair incident remained a cause of her current lower back, neck and shoulder injuries. Dr Andrianakis noted that Ms Barac-Mihaljevic had back pain as a teenager and “some pains after her Motor vehicle accident”, but that Ms Barac-Mihaljevic regarded these as insignificant when providing him with her history. Instead, Dr Andrianakis noted that Ms Barac-Mihaljevic remained pre-occupied and focused with the pains related to the chair incident and the impact that fall had on her life since.
56In November 2021, Ms Barac-Mihaljevic commenced working in a retail position at a direct factory outlet Smiggle store. Ms Barac-Mihaljevic said that she works in a part-time position on a contract for 25 hours per week. Ms Barac-Mihaljevic said that she finds doing such hours hard, but is hoping to “stick it out”.
57Ms Barac-Mihaljevic said that, in this role, she is mostly standing and walking during the day, and that while the role does not require any heavy lifting, it does require some bending and lifting. Ms Barac-Mihaljevic said that she finds it hard to do the work, as she is “really sore” and spends her days off trying to recover. When it was suggested to Ms Barac-Mihaljevic that she may be able to do full-time hours with Smiggle, she stated that, in her view, she would be unable to manage her pain and organise treatment if she were to do so.
58In cross-examination, Ms Barac-Mihaljevic said that if she were now offered a full-time position in either of the light-duties roles at the airport, she would definitely try to take up such a role. However, Ms Barac-Mihaljevic considered she would not be physically able to undertake screening point work, and would likely be unable to do such shifts because of her pain.
59Ms Barac-Mihaljevic said that she currently receives the following treatment: Consultations with Dr Andrianakis as needed, osteopathic treatment as needed, and regular home exercises. Further, Ms Barac-Mihaljevic said that she takes Paracetamol and Mersyndol each day, and Feldene as needed.
60Ms Barac-Mihaljevic claims she presently suffers the following symptoms: Constant pain in her lower back, with the pain varying between a sharp pain and a dull ache. Ms Barac-Mihaljevic said that such pain travels into both legs and feet; ongoing pain in her neck, with restricted moment; constant pain in her shoulders, with this pain sometimes being a burning and/or sharp type of pain; pain down her right arm; regular headaches, often associated with confusion, reduced balance and reduced vision.
61Ms Barac-Mihaljevic stated that, as a result of the chair incident, she has difficulty sitting, standing, driving or walking for long periods, as well as difficulty climbing up and down stairs or walking uphill. Additionally, Ms Barac-Mihaljevic stated that she has difficulty sleeping due to pain and regularly changes position during the night.
62Ms Barac-Mihaljevic stated that she has difficulty bending and twisting, doing any heavy and repetitive lifting, and getting down on the floor. She stated that this interferes with the way in which she is able to interact and play with her daughter, and her ability to pick things up off the ground.
63Around the house, Ms Barac-Mihaljevic stated that she has difficulty reaching up and above shoulder height, such that she often uses a stepladder at home. She also stated that she finds it hard to vacuum and mop, as well as cooking, particularly when she is required to stand for long periods of time in the kitchen. Additionally, Ms Barac-Mihaljevic stated that she finds grocery shopping difficult, especially if she is required to push a full trolley.
64Ms Barac-Mihaljevic stated that she used to enjoy playing team sports such as netball and soccer, and is no longer able to do so.
65Ms Barac-Mihaljevic stated that she rarely wears high heels and finds intercourse painful, such that she avoids it.
66Ms Barac-Mihaljevic also stated that her concentration has been affected by her pain and medication, and stated that this is particularly evident if she tries to sit at a computer for any length of time to study.
67In cross-examination, Ms Barac-Mihaljevic accepted that, notwithstanding her pain and the restrictions it causes her, she is still able to socialise with friends, go for walks in the park with her daughter, cook light meals, do light housework and undertake personal care, such as washing her hair..
68Ms Barac-Mihaljevic’s mother, Ms Anda Barac’s affidavit, was also tendered. Ms Barac deposed that, since the chair incident, her daughter has complained of pain in her neck, back and shoulders, and has regular headaches. Ms Barac stated that her daughter finds it hard to vacuum, hang out the washing, garden, mop and lift heavy things, and she has observed that that Ms Barac-Mihaljevic finds it hard to do things with her daughter.
69Ms Barac stated that her daughter has difficulty sleeping, as she hears her get up in the night in pain.
70Ms Barac stated that her daughter was injured in a fall when she was younger, and that she sometimes experienced some aches and pains, but it was “nothing like the way she is now”. In making this statement, Ms Barac did not elaborate on the frequency and longevity of such aches and pains, nor the treatment her daughter received at the time, nor in the years after the fall. Given Ms Barac-Mihaljevic was a minor at the time of the fall, this lack of detail from Ms Barac leaves a partial void in the evidence as to Ms Barac-Mihaljevic’s past medical history, which is relevant to the injuries, the subject of this claim.
71Ms Barac also stated she was aware of her daughter being involved in the transport accident in 2014, but that save for her being scared and shaken up, Ms Barac did not notice any ongoing effects from this accident, and her pain and restrictions were already there. This aspect of Ms Barac’s affidavit does not appear to accord with Ms Barac-Mihaljevic’s own evidence that she was worse, at least for a period of time after this accident, and it seems inconsistent with the physiotherapy records which indicate considerable treatment was required over 10 months.
Medico-legal reports
72On 20 August 2013, Ms Barac-Mihaljevic was examined by occupational physician, Dr Gary Davison, for the purpose of assessing her claim for worker’s compensation. In a report dated 20 August 2013, Dr Davison noted that Ms Barac-Mihaljevic had attended her general practitioner after leaving the hospital, who had referred her for physiotherapy to treat her neck pain, right shoulder and upper arm pain, lower back pain, bilateral shoulder pain and bilateral lower limb pain. Dr Davison concluded that Ms Barac-Mihaljevic had suffered soft-tissue injuries to the right side of her neck, right upper arm, lower back and right gluteal region in the chair incident.
73In September 2019, Ms Barac-Mihaljevic was examined by neurosurgeon, Mr Mohammed Awad. In a report dated 13 September 2019, Mr Awad detailed the chair incident and the symptoms Ms Barac-Mihaljevic complained of since that time. At the time of her attendance on Mr Awad, she complained of constant lower back pain, together with neck pain and shoulder pain, and tingling in the right arm and weakness occasionally. At that time, it was noted Ms Barac-Mihaljevic was undergoing myotherapy and chiropractic treatment, together with home Pilates, and was taking Lyrica twice a day.
74Mr Awad obtained a history from Ms Barac-Mihaljevic that prior to the chair incident she suffered episodic lower back discomfort following sports or extreme exertion, which responded to rest, and would be gone by the next day.
75On examination, Mr Awad noted that Ms Barac-Mihaljevic was able to walk without any gait abnormalities. She was able to flex to approximately 80 degrees, but her extension was limited to 15 to 20 degrees. Mr Awad noted that Ms Barac-Mihaljevic otherwise had normal power in her lower limbs, and in respect of her cervical spine, she had a good range of movement. Mr Awad also noted that Ms Barac-Mihaljevic had mildly-limited right lateral rotation. Mr Awad was of the opinion that Ms Barac-Mihaljevic suffered aggravation of lumbar spondylosis and spondylolisthesis and an aggravation of cervical spondylosis. Mr Awad considered that the chair incident was most likely a significant contributing factor to the aggravation of both medical conditions.
76Mr Awad stated that, in his opinion, Ms Barac-Mihaljevic did not have the capacity for her pre-injury employment, but did have capacity for some alternative employment in the form of three to four hours per day, and for up to two to three days per week. Mr Awad expressed concern as to whether Ms Barac-Mihaljevic would be able to continue to carry out her current role on a consistent and reliable basis as she was struggling at the time he examined her.
77In a supplementary report dated 1 November 2021, Mr Awad stated that he had reviewed the medical report of Mr Rodney Simm dated 26 July 2021 and the radiology of 31 December 2003. He stated that neither of those reports changed the opinion he had previously expressed. I consider this brief supplementary report from Mr Awad entirely unsatisfactory. I note that he fails to deal with the history contained within Mr Simm’s report of the 2014 transport accident and its contribution, if any, to Ms Barac-Mihaljevic’s current symptoms.
78On 26 November 2020, for the purpose of determining Ms Barac-Mihaljevic’s entitlement to a lump sum benefit for permanent impairment, she was examined by general practitioner, Dr Jack Owczarek, and orthopaedic surgeon, Mr Steven Leitl, on behalf of the Medical Panel (“the Panel”). In their Reasons for Opinion, the Panel detailed Ms Barac-Mihaljevic’s history, including the chair incident and the treatment she had subsequently received for it. The Panel also noted the motor vehicle accident of August 2014 and obtained a history that her neck symptoms deteriorated temporarily following the car accident, but they returned to their baseline level within a fortnight. Further, the Panel obtained a history from Ms Barac-Mihaljevic that she never had any symptoms or injuries related to her neck, back or right shoulder prior to the incident. The Panel asked Ms Barac-Mihaljevic about a history contained in a medico-legal report of Mr Awad, which noted she had experienced episodic lower back discomfort following sports or extreme exertion, which responded to rest, and was gone the next day. Ms Barac-Mihaljevic stated that she had no recollection of such symptoms and had not attended for assessment or treatment prior to the incident.
79When Ms Barac-Mihaljevic was asked about this aspect of the Panel opinion, she again stated that she had not disclosed the problems she had suffered following the incident of the fall at Myer, as she believed she was subject to the confidentiality agreement. Further, Ms Barac-Mihaljevic said that she felt like she had no pain leading up to the chair incident and it “obviously slipped [her] mind”.
80After examining Ms Barac-Mihaljevic, the Panel ultimately concluded she was suffering from complaints and symptoms relating to the cervical spine following a now-resolved soft-tissue injury in the setting of cervical spondylosis, complaints and symptoms related to the lumbar spine following a now-resolved soft-tissue injury in the setting of lumbar spondylosis, and persistent right shoulder dysfunction following an unresolved soft-tissue injury.
81In May 2021, Ms Barac-Mihaljevic was examined by orthopaedic surgeon, Mr Thomas Kossmann. In a report dated 24 May 2021, Mr Kossmann detailed Ms Barac-Mihaljevic’s history, including the treatment she received subsequent to the chair incident. Mr Kossmann then obtained a history of the August 2014 transport accident, but did not detail any history as to the longevity of her symptoms and the need for her to obtain physiotherapy treatment for 10 months thereafter.
82Mr Kossmann noted that, at the time of the examination, Ms Barac-Mihaljevic complained of pain in her cervical spine radiating into her right shoulder joint, together with pain across her upper back. Mr Kossmann noted she had headaches, as well as pain behind her eyes, and pain in her jaw and right ear. He also noted Ms Barac-Mihaljevic complained of intermittent dizziness and blurriness. Further, Mr Kossmann noted that Ms Barac-Mihaljevic complained of lower back pain which extended into her gluteus muscles and into her right leg, with numbness on the bottom of her right leg.
83Following his examination of Ms Barac-Mihaljevic, Mr Kossmann diagnosed her as suffering cervical spondylosis in the form of foraminal narrowing on both sides, without impingement, and C3-C6/7 levels; lumbar spondylosis in the form of degenerative changes, with degenerative changes impinging both exiting L5 nerve roots; clinical signs of thoracic outlet syndrome on both sides and tendinosis of the supraspinatus tendon right shoulder. Mr Kossmann considered that Ms Barac-Mihaljevic’s treating practitioners needed to investigate her clinical signs of thoracic outlet syndrome by arranging appropriate medical imaging in view of the suspected thoracic outlet syndrome. Mr Kossmann stated that he did not consider Ms Barac-Mihaljevic as currently able to return to any employment, however noted that once she receives adequate treatment for such condition, she may regain a work capacity.
84In a supplementary report dated 29 October 2021, Mr Kossmann stated he had reviewed the report of Mr Simm, and it did not cause him to change or alter his previous opinion in any way.
85In July 2021, Ms Barac-Mihaljevic was examined via video link by orthopaedic surgeon, Mr Simm. In a report dated 26 July 2021, Mr Simm detailed Ms Barac-Mihaljevic’s history, including a history that she had suffered recurrent back ache as a young person, but that it was intermittent, and in-between episodes of back pain she was fully active and played sport. Mr Simm noted the circumstances of the chair incident and her subsequent attendance at the hospital, and then upon her general practitioner. Mr Simm then detailed the circumstances of the August 2014 transport accident and the subsequent physiotherapy treatment she received for it.
86Mr Simm noted that at the time of his examination of her, Ms Barac-Mihaljevic stated that the worst pain was in the right side of her neck and that the pain radiated down the right arm into the fingers of her right hand. He noted she has frequent headaches each day. Mr Simm also noted that Ms Barac-Mihaljevic has painful restriction of right shoulder movement, as well as back pain every day. It was noted that she has pain in her buttocks and occasionally down to her feet. Mr Simm then reviewed the medical imaging and, via video, assessed the range of movement which Ms Barac-Mihaljevic was able to demonstrate to him.
87Mr Simm stated that he considered it very difficult to draw any firm conclusion regarding the possible contribution from the chair incident to Ms Barac-Mihaljevic’s current chronic musculoskeletal symptoms. Mr Simm stated that the chair incident occurred years ago and it seemed to him improbable that a fall from a chair so long ago could be responsible for permanent injuries to the neck, right shoulder and lower back. Mr Simm noted that the fall occurred in the setting of a past history of recurrent lower back pain from a grade one spondylolisthesis, which had been diagnosed in adolescence. Having reviewed the clinical records of Ms Barac-Mihaljevic’s general practitioner in the months after the chair incident, Mr Simm noted that there was only one reference to stiffness in the upper shoulder in January 2014, but no other reference in those records. Mr Simm concluded that such records suggested Ms Barac-Mihaljevic’s lower back pain was problematic in the months after the chair incident and prior to the delivery of her daughter. Mr Simm then went on to note that, in respect of the August 2014 transport accident, although Ms Barac-Mihaljevic reported it caused only temporary symptoms, which settled, leaving her with pre-transport accident symptoms, the contemporaneous physiotherapy report indicated she had suffered a severe soft-tissue injury to her neck and back, with right shoulder symptoms, and concern she may have suffered an undisplaced fracture of the scapula at that time.
88Mr Simm ultimately diagnosed a soft-tissue injury to the lumbar spine as a result of the chair incident, with an exacerbation of symptoms from pre-existing and previously symptomatic pathology in the lumbar spine. However, Mr Simm was of the opinion that it was “unlikely that the physical effects of the fall would continue to contribute to the fluctuating chronic low back pain for the next eight years”.
89Mr Simm could not confirm that Ms Barac-Mihaljevic had suffered a cervical injury in the chair incident, and he considered she had no clinical signs of cervical spine impairment, although she complains of ongoing symptoms.
90Mr Simm stated he could not find an injury in respect of her right shoulder joint.
91Mr Simm was of the opinion that Ms Barac-Mihaljevic was capable of performing her pre-injury duties, although acknowledged she may have to adapt using the metal detection device in her left hand due to her right shoulder symptoms.
92In a supplementary report dated 22 November 2021, Mr Simm stated he was of the opinion that Ms Barac-Mihaljevic had the capacity to undertake light retail work, such as her current work at Smiggle, on a full-time basis.
93In September 2021, Ms Barac-Mihaljevic was examined via Telehealth by occupational medicine specialist, Dr Khayyam Altaf. In a report dated 6 September 2021, Dr Altaf noted Ms Barac-Mihaljevic’s history, which included a reference to her being diagnosed with a curved spine as a child, which did not cause her any significant problems. It was also noted that, in 2014, Ms Barac-Mihaljevic was involved in a minor car accident which led to a whiplash-type injury, and after some treatment she made a good recovery. Further, Dr Altaf noted that Ms Barac-Mihaljevic reported that the exacerbation subsided soon after the transport accident and she was left with her pre-transport accident level of pain, which continued on. Dr Altaf then noted Ms Barac-Mihaljevic’s current symptoms included constant pain in her cervical spine, which she rated as 8 out of 10. Further, he noted that she complained of constant pain in her lumbar spine, which radiated down to her buttock area and that when walking she experienced pain and a burning sensation, which she rated 9 out of 10. It was noted that Ms Barac-Mihaljevic’s lumbar pain worsens when undertaking activities such as prolonged standing, vacuuming, reaching, sitting for long periods, washing and bending. Further, in relation to Ms Barac-Mihaljevic’s right shoulder, it was noted she suffered constant pain, which she rated on a scale of 5 out of 10. Dr Altaf noted that Ms Barac-Mihaljevic’s sleep was disturbed by pain and she had difficulty getting into a comfortable position. At that time, it was noted Ms Barac-Mihaljevic was taking Norgesic, Mersyndol, Feldene and Losec medication.
94Dr Altaf was of the opinion that, as a consequence of the chair incident, Ms Barac-Mihaljevic had suffered an aggravation of cervical spondylosis, aggravation of lumbar spondylosis, and right shoulder subacromial bursitis. Dr Altaf accepted that the 2014 transport accident appeared to have exacerbated some of Ms Barac-Mihaljevic’s cervical spine symptoms, but that she thereafter returned to her baseline level prior to that transport accident.
95Dr Altaf was of the opinion that Ms Barac-Mihaljevic had a limited range of movement with bending; that she can lift weights up to 5 kilograms; that she can twist and stoop, but only in a slow and orderly manner; that she should avoid repetitive pushing, pulling or lifting, repeated and prolonged movements of her spine and prolonged overhead activities. Dr Altaf also recommended that Ms Barac-Mihaljevic’s ability to safely squat or crouch was greatly impaired and should be avoided, and that her ability to undertake prolonged sitting, walking or standing should be subject to her self-reported tolerances.
96Given the restrictions identified above, Dr Altaf was of the opinion that Ms Barac-Mihaljevic was unfit to complete the essential and inherent requirements of her pre-injury duties and that she is now only suitable to perform sedentary office-type occupations, with the ability to adjust her posture as and when needed. Dr Altaf stated that, with retraining, Ms Barac-Mihaljevic does have a work capacity, but her employment would need to ensure her physical restrictions were accommodated. Dr Altaf considered that she would be able to manage six hours per day four days per week, with a rest day in-between. Dr Altaf considered that given Ms Barac-Mihaljevic’s risk of deterioration, her ability to provide a consistent and reliable service for the foreseeable future was unlikely.
97In a supplementary report dated 29 October 2021, Dr Altaf considered the report of Mr Simm and noted that, in circumstances where the contemporaneous clinical records indicate that Ms Barac-Mihaljevic had an x-ray at the time of her fall and was placed in a rigid collar at the hospital, and made complaints at that time of cervical spine symptoms, it was reasonable to accept there was an onset of cervical spine symptoms at the time of her fall. He stated that this was also supported by a number of attendances upon her general practitioner at that time where she complained of cervical spine symptoms.
98In relation to the August 2014 transport accident, Dr Altaf considered that, although this exacerbated Ms Barac-Mihaljevic’s cervical symptoms, he accepted that these then subsided to pre-injury levels.
99Dr Altaf noted that Ms Barac-Mihaljevic had immediately experienced right shoulder pain after the chair incident, but understood that other regions experienced more intense pain, such that the focus was on them, rather than the shoulder, in the initial period following the chair incident. Dr Altaf noted that the onset of such symptoms was confirmed by her general practitioner, Dr Andrianakis (although I note that he did not start treating Ms Barac-Mihaljevic until 2019).
100In relation to the bone scan of 31 December 2003, Dr Altaf stated that did not alter his opinion in any way.
Reliability and credibility
101I considered Ms Barac-Mihaljevic a mostly credible witness. She gave frank evidence as to her current capacity for work and ability to undertake activities with her daughter.
102However, I had significant reservations as to aspects of her reliability. It was apparent that the fall at Myer was of more significance than her affidavit portrayed. More significantly, the transport accident was more than a minor accident, as she described it in her affidavit. Ms Barac-Mihaljevic required frequent physiotherapy over a prolonged period. If not for the medical records being put to her in cross-examination, these two other incidents, involving the same body parts, would have been erroneously depicted.
103Of most note, I do not accept Ms Barac-Mihaljevic’s evidence that she did not tell Dr Azer on two occasions in May 2015 that her back pain had been on and off for a long time. Although Ms Barac-Mihaljevic may not recall the fluctuation of her pain levels now, I consider her general practitioner’s notes of that time to be a reliable account of the frequency of her pain levels, as reported by her at that time. Given the years that have passed, it is perhaps understandable that Ms Barac-Mihaljevic’s memory in respect of the periods of time in which she suffered certain symptoms is poor. However, from the tendered material, I consider that the contemporaneous medical records are likely to be more reliable than Ms Barac-Mihaljevic’s memory.
Is the chair incident a cause of Ms Barac-Mihaljevic’s spinal and right shoulder impairments?
104I accept that in the chair incident, Ms Barac-Mihaljevic suffered an aggravation of a pre-existing spondylosis in her spine, and a soft-tissue injury to her right shoulder. For Ms Barac-Mihaljevic to succeed in her claim, as a starting point, she must satisfy me that the chair incident remains a cause of her current spinal and/or right shoulder impairment.
105In considering this, I note the following evidence:
· Until 2019, there are minimal recorded complaints of neck, back or shoulder pain for extensive periods in her general practitioner’s records, despite Ms Barac-Mihaljevic attending for a range of other health issues. This tends toward a finding by me that Ms Barac-Mihaljevic’s pain was not as persistent as she now claims.
· On 24 June 2014, Ms Barac-Mihaljevic sought a medical clearance for work from her general practitioner. Although I accept her motive for this was to be able to return to work, it is also an indication that she felt capable of doing so and that her symptoms had sufficiently improved to enable this.
· The transport accident was more significant than Ms Barac-Mihaljevic portrayed, in that her symptoms required treatment for approximately 11 months thereafter. Her evidence that her symptoms then returned to the levels they were at just prior to that car accident, and that those pain levels were her “new normal”, does not accord with her ceasing all physiotherapy treatment at that time, not complaining to her general practitioner about such pains, and working most of the shifts offered to her by ISS Security.
· In May 2016, Ms Barac-Mihaljevic reported to her general practitioner at two attendances that her lower back pain had been “on and off for a long time”. Although Ms Barac-Mihaljevic denied that she reported this, given it was written on two occasions in the notes, and given my reservation as to her reliability in respect of the timing of her complaints, I am satisfied that this medical record is a fair account of what was fluctuating back pain, which would come and go, and was not present all the time.
106With incidents both prior to and subsequent to the chair incident, and given the radiological findings do not demonstrate any obvious pathological injury suffered by Ms Barac-Mihaljevic in the chair incident but rather degenerative changes in the spine and a soft tissue injury in the right shoulder, an accurate history of Ms Barac-Mihaljevic’s symptoms and complaints over time is essential for me to determine if the chair incident continues to be a cause of her current condition. There is no medical report to verify the consistency of such symptoms and complaints. I consider the only doctor who had a near-complete history was Mr Simm, who did not consider the chair incident was a cause of her current condition.
107I am not assisted by the opinion of Dr Andrianakis, as he only came to care for Ms Barac-Mihaljevic in 2019, over five years since the workplace accident. I consider that the history he had of her past history and, in particular, the 2014 transport accident, to be so incomplete that I cannot rely on his opinion in respect of the current cause of her condition. I consider his comment that Ms Barac-Mihaljevic is focused on the pain, which she attributes to the fall in the chair incident, as telling. While it may be her focus, I am not satisfied that it is justified, given the medical records tendered in this matter.
108I am not assisted by the opinion of Mr Awad, as the history he obtained was also limited. Of most note, he was not aware of the August 2014 transport accident and the extensive physiotherapy treatment she received for it. Therefore, Mr Awad’s failure to consider this incident also prevents me relying upon his opinion.
109Mr Boulionis also offered an opinion that Ms Barac-Mihaljevic “continues to suffer” injuries which are directly attributable to the chair incident. However, as a physiotherapist who has not treated Ms Barac-Mihaljevic for several years, I am not assisted by this opinion either.
110I am also not assisted by Ms Barac’s affidavit. While she attests to her daughter’s pain arising after the chair incident, as stated above, I have reservations as to the reliability of such evidence, especially in respect of Ms Barac’s account of the transport accident and its impact on Ms Barac-Mihaljevic.
111In considering the cause of Ms Barac-Mihaljevic’s current impairment, it is necessary for me to consider the whole of the evidence. For the reasons detailed above, I am satisfied that the chair incident caused temporary injuries only and that has long since ceased to be a cause of Ms Barac-Mihaljevic’s current condition.
Irrespective of the above, Ms Barac-Mihaljevic does not suffer the requisite pecuniary loss as a consequence of her spinal and right shoulder impairment
112Even if I were satisfied that the chair incident was a cause of Ms Barac-Mihaljevic’s ongoing impairment, I am not satisfied that Ms Barac-Mihaljevic suffers the requisite pecuniary loss as a consequence of either of her impairments.
113As a worker under the age of 26 at the time of the chair incident, the assessment of her 40 per cent loss is not to be referenced to her income from personal exertion in the three years before and three years after the injury (as it would be if she was over 26 years of age).[1] Instead, the assessment is to be made by reference to common law principles. That is, the Court may “have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life.”[2]
[1] Section 134AB (38)(f) of the Act
[2]Second Reading Speech on the Accident Compensation (Common and Benefits) Bill, Legislative Assembly, 13 April 2000, the Honourable R Cameron, Minister for WorkCover, at 1003
114The common law principles which should guide me in the assessment of Ms Barac-Mihaljevic’s loss of future earning capacity were outlined in the New South Wales Court of Appeal decision in State of New South Wales v Moss.[3] Heydon JA (as he then was) identified the following principles:
(a) the plaintiff’s individual circumstances, such as background, intelligence, drive and personality may be relevant;[4]
(b) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[5]
(c) it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what the plaintiff is likely to earn after the injury;[6]
(d) the compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of financial loss. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in the estimation of possibilities, not proof of probabilities;[7]
(e) the task of the Court is to form a discretionary judgment by reference to not-wholly determinate criteria within fairly wide parameters.[8]
[3] [2000] NSWCA 133
[4] (Supra) at paragraph [62]
[5] (Supra) at paragraph [64]
[6] (Supra) at paragraph [66]
[7] (Supra) at paragraph [71]
[8] (Supra) at paragraph [87]
115Ms Barac-Mihaljevic has demonstrated an ongoing capacity for work, seeking a clearance to return to normal duties on 24 June 2014. Since that time, Ms Barac-Mihaljevic has worked varying hours, up to a maximum of 78.5 hours per fortnight, and is currently consistently working 25 hours per week.
116Ms Barac-Mihaljevic openly conceded her belief that she would be able to work full time in the light-duty roles at the airport. Her evidence on this is consistent with the medical opinion of Mr Simm, whose opinion I prefer, for the reasons detailed above.
117The opinions of Dr Awad and Dr Altaf are evidently unrealistically pessimistic in respect of the number of hours Ms Barac-Mihaljevic can work in alternate employment. As above, Dr Altaf considered that Ms Barac-Mihaljevic had capacity for only six hours per day four days per week, totalling 24 hours per week; and Dr Awad considered Ms Barac-Mihaljevic could work three to four hours per day, and for up to two to three days per week, totalling a maximum of 12 hours per week. Both of these opinions regard Ms Barac-Mihaljevic as having a work capacity below her actual capacity demonstrated in both her post-chair-incident employment at the airport and her current employment at Smiggle.
118In the financial year that ended in 2018, Ms Barac-Mihaljevic earned $54,232, or $1,042.92 gross per week, which is her greatest income to date. If this figure was considered to fairly represent her post-injury earning capacity, to succeed in her claim, Ms Barac-Mihaljevic would need to satisfy me that this represents a loss of 40 per cent of her without injury earning capacity. That is, if not for the injury, she would have been capable of earning $90,303 per annum or $1,736.67 gross per week.
119Ms Barac-Mihaljevic said she turned down some shifts at the security point when she felt she was not up to it, but otherwise worked the shifts offered to her at the airport. I consider this demonstrates that her injuries are not causing her to suffer anywhere near the level required to establish a permanent loss of 40 per cent of her earning capacity.
120Further, considering that Ms Barac-Mihaljevic has not completed a degree, and has only ever worked in retail and security work, I am not satisfied, on the evidence before me, that, if not for the chair incident, she would have ever been capable of earning more than $1,736. 67 per week.
Why Ms Barac-Mihaljevic’s pain and suffering consequences cannot be described as very considerable
121As the Court of Appeal acknowledged in Transport Accident Commission & O’Dea v Dennis:[9]
“Many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”[10]
[9] [1998] 1 VR 702
[10] (Ibid) at 703
122I have explained the reasons why I am not satisfied the chair incident is a cause of Ms Barac-Mihaljevic’s current impairment. However, for the sake of completion, I also find that, even if such impairments were still caused by the chair incident, I am not satisfied they meet the narrative definition.
123I accept that Ms Barac-Mihaljevic suffers some ongoing pain in both body parts, for which she takes regular painkilling medication. I accept that she is limited in her ability to sit, stand and walk. I accept that her sleep can be interfered with. As such, the consequences to Ms Barac-Mihaljevic from her spinal impairment and right shoulder impairment could possibly be described as “at least very considerable”, “significant” or “marked”.
124However, in considering the impact upon a plaintiff, the Court can be informed by, not only what a plaintiff has lost, but also what they have retained.[11] Although there are some restrictions on what Ms Barac-Mihaljevic can do, I note that she has demonstrated a capacity to work varying hours on a reliable and consistent basis, she can still care for her daughter, do domestic activities within her home (albeit slowly), visit the park, and socialise with friends.
[11]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [27], Affirmed in the Court of Appeal decision of Hooley v Transport Accident Commission [2019] VSCA 263
125In considering all of the evidence, when judged by comparison with other cases in the range of possible impairments or losses, I am not satisfied that Ms Barac-Mihaljevic’s pain and suffering consequences, from either impairment, can be fairly described as “at least very considerable” or “more than significant or marked”.
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