Barton v Toyota Motor Corp Aust Ltd
[2014] VCC 482
•1 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00993
| DOLLY BARTON | Plaintiff |
| v | |
| TOYOTA MOTOR CORP AUST LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2014 | |
DATE OF JUDGMENT: | 1 May 2014 | |
CASE MAY BE CITED AS: | Barton v Toyota Motor Corp Aust Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 482 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – s134AB Accident Compensation Act 1985 – Serious injury – Pain and suffering only – Two injuries in different circumstances – Right knee injury and left shoulder injury
Legislation Cited: Accident Compensation Act 1985 s134AB(16)(b) and (38)(c)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v Mckinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.
Judgment: Leave granted to the plaintiff pursuant to s134AB(16)(b) of the Act to commence proceedings for the recovery of damages for pain and suffering only in respect of her right knee injury arising out of or in the course of her employment on or about 9 April 2002
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J F Goldberg | Maurice Blackburn |
| For the Defendant | Ms S C Bailey | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff seeks leave to commence proceedings to claim common law damages in respect of two work-related injuries, the first being a right knee injury suffered in 2002 and the second a left shoulder and arm injury occurring in 2008. In each case the leave sought in accordance with the statutory entitlement is limited to a claim in respect of pain and suffering damages.
2 The defendant has accepted that the plaintiff sustained the relevant injuries in circumstances giving rise to an entitlement to compensation under the provisions of the Accident Compensation Act 1985 (“the Act”), but opposes the grant of leave in each case, essentially on the basis that the consequences suffered by the plaintiff in respect of each injury do not satisfy the statutory test for a serious injury as defined in s134AB(37) of the Act. Each injury relies upon paragraph (a) of the definition of serious injury.
3 The plaintiff bears the burden of proving, in respect of each injury, or alternatively in respect of either one, that she has suffered consequences which can fairly be assessed as at least very considerable when judged by comparison with other cases in the range of possible impairments or losses.[1]
[1]Humphries v Poljak [1992] 2 VR 129 and Accident Compensation Act 1985 s134AB(38)(c).
Factual background
4 The plaintiff is a fifty-six-year-old single woman who was educated to Year 11 level in New Zealand and came to Australia in 1994. She commenced work with the defendant in October 1997 and did a variety of mainly manual tasks including working on assembly lines, changing machine tools, driving forklifts and other manual activities.
5 She suffered an injury to her right knee in April 2002 when stepping onto a production line in order to change a die. In doing so she was struck by a gate which closed unexpectedly, striking her right knee, which then twisted, causing immediate pain. The plaintiff underwent a variety of conservative medical treatments until the knee was surgically repaired by Mr Pianta, orthopaedic surgeon, in July 2002. The plaintiff thereafter returned to work, initially on light duties for a short time, whilst she underwent further physiotherapy treatment.
6 The knee appears to have recovered quite well, as the plaintiff was able to compete as a softball player in the Pan Pacific Masters Games in November 2004. By that time she had also been diagnosed with Type 2 diabetes, which was adequately controlled.
7 The plaintiff developed a problem with her left knee whilst walking up and down stairs during the course of her employment in December 2004. She was referred to another orthopaedic surgeon, Mr Clifford, who performed arthroscopic surgery on that knee in September 2005. After a period of convalescence she returned to her work with Toyota in May 2006.
8 Unfortunately for the plaintiff, the work she was then performing did require a degree of twisting, and she further aggravated the right knee only a few weeks after returning to work. The plaintiff was referred back to Mr Pianta and underwent further investigation, which showed degenerative changes in addition to a subchondral cyst. Once again light duties were recommended. The plaintiff again returned to work doing primarily administrative duties whilst receiving some ongoing physiotherapy. It would appear there were some difficulties in the employer finding suitable work for her, but finally she returned to full-time unrestricted work in mid-2007. At that time she was performing shift work, including overtime, but continued to experience right knee pain when doing work on various production lines.
9 The second injury involved the left shoulder, and occurred in February 2008 when the plaintiff and a co‑worker were changing a robotic arm. This involved a degree of heavy manual handling and overhead work, although the precise circumstances of injury have limited relevance in the present application, given that the defendant has admitted that the left shoulder injury occurred in compensable circumstances.
10 As an immediate consequence of the left shoulder injury the plaintiff attended the defendant’s medical clinic on 7 March 2008, complaining of left shoulder pain and occasional pins and needles running down the left arm to the hand.
11 She saw her own doctor, Dr Herrero, approximately two weeks later. She had tried to continue with her work on light duties, but by early April it was apparent that she was not coping and she was sent home.
12 She then saw an orthopaedic surgeon, Mr Dallalana, on 21 April, and underwent a hydrodilatation procedure a few days later. This did not produce any lasting benefit, and Mr Dallalana operated on the shoulder in July of that year.
13 She then returned to modified duties on significantly restricted hours in late August. Once again there were ongoing difficulties with the type of work the plaintiff was performing and the recurrent problems she was experiencing in coping with the rehabilitative treatment and the ongoing pain, which at that stage required significant medication.
14 The situation meandered on for a little over a year, with Mr Dallalana performing a further hydrodilatation procedure in October 2009 but without any great success. The plaintiff apparently wished to continue with Toyota, but that option was removed when her employment was terminated on 11 November 2009.
15 The plaintiff continued to attend Mr Dallalana into the early part of 2010, and was also attending a rehabilitation provider to assist her with job placement. She underwent a training course in security operations and obtained a licence to perform security work. By August 2010 she had commenced casual security work, notwithstanding that she continued to experience ongoing problems from the left shoulder and also the right knee. She has continued in contract-based employment and has been working at Melbourne Airport in traffic control since September 2012. This is full-time work, and there is an additional shift offered to her approximately once or twice per month.
16 The plaintiff has continued to receive ongoing conservative treatment both for the right knee and the left shoulder. She deposed in her affidavits, and in evidence before me, the manner in which each injury was said to interfere with her employment and enjoyment of life generally.
17 In determining the plaintiff’s applications I am mindful of the necessity for the plaintiff to prove, in respect of each injury, consequences which satisfy the statutory test. In a case such as the present one, where two separate injuries are relied upon, I am mindful of the recent decision of the Court of Appeal in Peak Engineering & Anor v McKenzie[2] where it was clearly stated that in order for a court to make a valid assessment of the consequences of a relevant injury it is necessary “to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury”. In that case, as in the present one, the injuries each produce pain, and it is necessary to carefully examine the evidence in order to make a fair assessment of the consequences properly referable to each of the injuries relied upon by the plaintiff.
[2][2014] VSCA 67.
The Plaintiff’s evidence
18 The relevant evidence from the plaintiff in relation to both injuries is contained in her third affidavit sworn 13 March 2014, Exhibit A, pages 20A to 20F. In particular I accept the following matters deposed to in relation to the right knee and leg:
· The plaintiff’s current job involves standing for prolonged periods, which plays havoc with her right knee and leg. The right knee becomes very sore and more painful during a shift.
· The variation between standing and driving a motor vehicle takes the load off both knees and legs and eases the pain and swelling in the right knee and leg.
· Her working day generally involves about half static or local security and traffic work, and the remainder pedestrian or motor vehicle patrols.
· Her ability to walk is limited because of increasing worsening pain and symptoms in both knees, but especially the right knee. The type of surface, particularly rough, uneven or sloping surfaces, causes a marked worsening of pain and symptoms in the right knee, as do steps and stairways.
· The plaintiff deposes that she has never been free of aching discomfort in the right knee and leg. She also deposes to aching discomfort and pain in the left leg but “it is nowhere near as bad as the right knee”.[3]
[3]Exhibit A, page 20C at [13].
· During a work day the right knee becomes progressively more sore and painful, and after a full day’s work her right knee is very sore, tender, and often swollen. Her right knee and leg aches and is sore and painful when in bed. The plaintiff deposes to the symptoms being much worse in cold weather.
· The plaintiff uses medications, mainly Panadol and Voltaren Gel, when the symptoms are severe. When the pain and symptoms are severe she elevates her right leg on a chair, table or bench.
· Movements involving the right knee are described as often very difficult, referring to difficulties in kneeling and getting up from a kneeling position and performing squatting or crouching movements. The plaintiff tends to avoid these activities.
19 The plaintiff also described symptoms affecting her left shoulder. I noted as relevant the following:
· The plaintiff has difficulty moving and using her left arm at or above shoulder or head height.
· Tasks or activities requiring strong forceful movements of the left shoulder and arm or vigorous repetitive movements of the left arm and shoulder, including frequent pushing, pulling or similar activities, are described as very difficult for her.
· Often the left shoulder aches and is described as worse in cold weather. The plaintiff deposes to being unable to sleep on the left side and is woken by soreness and often pain.
· The plaintiff stated that from time to time she had aching pain extending down the left arm with pins and needles like sensations in her left hand. She controlled the pain and symptoms by avoiding aggravating activities.
20 In cross-examination the following matters emerged:
· When the right knee was playing up, the plaintiff would take Panadol or Panadol Osteo, two or three tablets per day. This had occurred over the last couple of weeks.[4]
[4]T22, L3–12.
· The plaintiff denied having taken Panadol for her left knee.[5]
[5]T22, L18–19.
· The plaintiff was not sure about telling her GP that her left knee continued to hurt.[6] She maintained the right knee was worse than the left.[7]
[6]T23, L1–2.
[7]T23, L12–21.
· The plaintiff had played softball in New Zealand and ceased that activity because of both the knee and shoulder injuries. She was not actively playing at the time of either injury.[8]
[8]T25, L9–28 and T26, L19–21.
· The plaintiff did her own cleaning, including vacuuming and dusting and mowing the lawn.[9]
[9]T27, L21–T28, L5.
· The plaintiff can lift reasonably heavy things but not above her head.[10]
· The constancy of the knee pain was not such that it was always hurting every second of the day.[11]
· The pain in the left shoulder depends on the day and was not a constant pain.[12]
[10]T28, L21–24.
[11]T31, L15–19.
[12]T33, L2–9.
21 In cross-examination the plaintiff was shown surveillance video taken on 20 February 2014.[13] This video showed the plaintiff squatting briefly to remove items from a mailbox, and also driving a four-wheel-drive using both arms on the steering wheel whilst manoeuvring it. I did not observe any obvious restriction or facial expression indicative of pain. Equally, the activities recorded on the video were not sufficiently at odds with the plaintiff’s evidence on affidavit or when being cross-examined to impact negatively on her credibility as a witness. I concluded the plaintiff to be a credible witness, although relatively unsophisticated in terms of her response to matters put to her in cross-examination, especially medical histories.
[13]Exhibit 1.
The Medical evidence
22 The plaintiff’s general practitioner, Dr Herrero, provided seven medical reports between 13 June 2006 and 10 March 2014.[14] The early reportage confirms the plaintiff reported a painful right knee in May 2006, with Dr Herrero noting that she had previously undergone left knee surgery by Mr Clifford on 30 September 2005. Dr Herrero referred the plaintiff to Mr Pianta and noted in a report to the insurer dated 20 July 2006:
“Ms Barton has not fully recovered from her left knee injury when she injured her right knee.”[15]
[14]Exhibit A pages 26 – 39a.
[15]Exhibit A page 28.
23 In January 2007, her diagnosis of the plaintiff’s right knee injury was:
“… aggravation of underlying degenerative condition in the right knee as a result of past surgery (right medial menisectomy) to her right knee.”[16]
[16]Exhibit A page 34.
24 Dr Herrero reported to the plaintiff’s solicitors in May 2010 and refers at some length to the opinion received from Mr Pianta in relation to the knee. Her diagnosis remained one of aggravation of early degenerative arthritis. She repeated this diagnosis in 2014 when referring to an x‑ray of the right knee taken in March of this year, which showed:
“… significant degenerative narrowing of the medial joint compartment, most likely due to her work related injury.”[17]
[17]Exhibit A page 39a.
25 Dr Herrero referred to the left shoulder complaint in a very brief report dated 17 November 2008.[18] She referred to that injury, the referral to Mr Dallalana and the subsequent treatment and progress in her more detailed report prepared on 12 May 2010. Most recently her report confirmed that the plaintiff:
“… continues to suffer from on and off left shoulder pain. … The pain never resolved fully. She tries to ignore the pain when she is at work.”[19]
[18]Exhibit A page 35.
[19]Exhibit A page 39a.
26 Dr Herrero refers to the plaintiff taking oral analgesia regularly for her left shoulder and bilateral knee pains. She also comments:
“Her chronic pains in the left shoulder and both knees have adversely affected her mental health.”[20]
[20]Exhibit A page 39a.
27 The authorities have consistently stated that a proper assessment of the consequences of a serious injury can only be made in circumstances where the consequences of an injury are able to be identified whether by a process of an evidentiary elimination of other possible causes of those consequences and in some more obvious cases the totality of the evidence may adequately satisfy the statutory requirement. The principle was recently stated by the Court of Appeal in Peak Engineering & Anor v McKenzie [2014] VSCA 67, especially at paragraphs [2], [24] and [25].
28 Mr Robert Pianta, who treated the plaintiff for her right knee injury in 2002, has provided two reports dated 21 June 2002 and 14 June 2006.[21] The most recent of these reports (nearly eight years old) confirms a minor posterior horn tear of the medial meniscus and refers to the more major problem which Mr Pianta believed to be an aggravation of degenerative change within the knee. This diagnosis was supported by opinions provided by the occupational physician, Dr Boothby, in 2006. Of some further relevance to the present application was Dr Boothby’s comment in his report to the insurer on 17 October 2006 when he stated:
“In my opinion only her right knee is affecting Mrs Barton’s current work capacity. Her left knee no longer contributes to any restrictions.”[22]
[21]Exhibit A page 55 and 56.
[22]Exhibit A page 71.
29 The plaintiff relied upon a further orthopaedic opinion from Mr John O’Brien who examined the plaintiff for medico‑legal purposes on 14 February 2012. Although Mr O’Brien makes reference to the plaintiff’s knee injury:
“Ms Barton did report that she continues to be aware of occasional pain over the anterior aspect of both knees, associated with prolonged weight bearing functions such as walking and standing”
he notes that she is not receiving any active treatment nor was she taking any medication at that time. He further notes:
“The patient indicated that she remains capable of undertaking all the normal activities of daily living, including housework and is able to drive a car without difficulty.”
30 He went on to conclude:
“This patient now describes several work related incidents which have in fact affected both knees and left shoulder. In fact, as a result of the work related incidents, the patient indicted that both knees have undergone arthroscopic examination, which apparently was helpful with the patient in fact describing very mild bilateral knee pain. Injury to the left shoulder, however, has required more extensive treatment, including an arthroscopy but on this occasion the patient has reported fairly significant ongoing pain associated with definite limited function.”
31 He went on to conclude that he found very definite ongoing restriction of the movement in the left shoulder and there is only limited reference to abnormal findings in the right knee. His report seems to have been commissioned in relation to the shoulder although the letter of instruction was not put into evidence.
32 Mr O’Brien also refers to an x‑ray of the right knee on 12 August 2010 reported as demonstrating:
“Mildly severe right medial patellofemoral joint degenerative arthritis.”[23]
[23]Exhibit A page 90.
33 This x‑ray was not set out in the materials before the Court and is not referred to in either of the reports by Dr Robyn Horsley, who provided reports to the plaintiff’s solicitors in March 2012 and February 2013. Dr Horsley expressed opinions in each of her reports largely related to occupational capacity, which is unsurprising given her speciality as an occupational physician. Significantly in relation to this case, she found abnormality on examination of both knees and took a history of the plaintiff experiencing ongoing bilateral knee pain:
“She believes the left is about the same as the right. She has no pain at rest but with activity the discomfort rises to a level of 8 out 10 on a visual analogue scale.”
34 Although his reports are somewhat dated, the treating shoulder surgeon, Mr Dallalana, has provided five reports between 21 April 2008 and 12 October 2010. His prognosis at that time was guarded in relation to the biceps tendon but otherwise good with respect to adhesive capsulitis. He did not regard the biceps tendon as a major source of pain, nor was it something which would impair the plaintiff’s functional capacity.[24]
[24]Exhibit A page 97b.
35 Finally, the plaintiff relied upon two reports obtained by the defendant; the first being Dr Chris Baker dated 20 August 2010; and the second, Mr Antony Dunin, dated 14 August 2012. Dr Baker confirmed the diagnosis made by the treating surgeon being a partial of the rotator cuff with adhesive capsulitis. At the time of his examination in 2010, he was told that the shoulder was continuing to improve.
36 The report from Mr Dunin was concerned with the plaintiff’s knee and noted in August 2012 that she had made a good recovery following the original injury but had subsequently developed osteoarthritis which had become symptomatic. He regarded her as being fit to carry out casual work such as she has already done including processing work and security work. He cautioned that she would need to avoid walking prolonged distances, carrying weights greater than 5 kilograms and walking on uneven surfaces. He considered those symptoms would persist indefinitely.
Analysis
37 The medical evidence confirms that the plaintiff has sustained work related injuries to both the right knee and the left shoulder. It also confirms that the medical prognosis in respect of each injury is for the persistence of symptoms but only at what could be suggested a mild or perhaps moderate level. Notwithstanding the volume of medical reportage (some twenty-five medical reports were contained in the Plaintiff’s Court Book and tendered in evidence before me), there was a veritable absence of relevant recent reportage to express any opinion as to the likely extent of consequences affecting the plaintiff into the indefinite future.
38 It was put to me by Mr Goldberg, who appeared for the plaintiff, that I should take into account, in particular, the domestic and social situation of the plaintiff, being fifty-six years of age, a single woman, but a breadwinner who is currently supporting a cousin and a young child. Mr Goldberg submitted to me that there is a financial necessity for the plaintiff to provide as much support as she can to her household, even though this necessitates her working in obvious discomfort.
39 As I have stated, I found the plaintiff to be a reliable and honest witness, although somewhat unsophisticated in the way she gave her evidence.
40 Determination of applications of this type involve value judgments “in which matters of fact and degree and of impression are operative”.[25] I am also mindful of the analysis undertaken in cases such as Aburrow v Network Personnel Pty Ltd[26] which adopted the methodology which had been applied by the Court of Appeal in earlier cases such as Haden Engineering Pty Ltd v McKinnon[27] and Sutton v Laminex Group Pty Ltd[28] where the Court in effect provided a helpful template to assist in a proper exercise of judgment in determining the ultimate issue in applications of this type.
[25]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [41].
[26][2013] VSCA 46.
[27](2010) 31 VR 1.
[28](2011) 31 VR 100.
41 In evaluating the pain and suffering consequences, I make the following findings in relation to each injury relied upon:
(a)The right knee
· I accept the medical diagnosis that the plaintiff has established osteoarthritis in the right knee compartment and this is likely to continue indefinitely into the future.
· I accept the plaintiff’s evidence that on a daily basis she experiences pain and discomfort during the course of her normal working day. I note in particular that she is working on a rotating shift and has additionally the need to perform domestic activities within her household when not at work.
· I note that the knee is a weight bearing joint and therefore the circumstances in which the plaintiff suffers pain are likely to be more apparent to her, given the nature of her working day and her need for domestic activity.
· In terms of sporting activity, the plaintiff is presently fifty-six years of age and had described playing softball on a regular basis up until 2004. I do not find that she has ceased playing that activity by reason of her right knee injury alone. I do accept that the right knee injury may have played some role in her cessation of softball, but I do not place much weight on the cessation of that activity in making a true assessment of the consequences of the knee injury. When cross-examined about the softball by Ms Bailey, who appeared for the defendant, the following emerged:
“Q:With your softball do you think if in fact you hadn’t been injured you would have continued to play softball?---
A:Yes, I love the sport.
Q:What is it you say stops you from doing it - - - that prevent you from playing?---
A:It’s the running and the swinging of the bat.”[29]
· Later on the plaintiff confirmed that it was both the left shoulder and the right knee that stopped her from playing.[30] Apart from the reference to the softball, there was no particular sporting activity identified as being lost or restricted by reason of the right knee injury.
[29]T25, L22–28.
[30]T26, L19–22.
42 In my assessment, the whole of the medical evidence in relation to the right knee supports the proposition that the plaintiff now has established and symptomatic osteoarthritis affecting her knee. She has changed her employment as a result of Toyota being unable to provide her with ongoing light duties and now works a rotating shiftwork basis at the airport. She is required to spend a considerable amount of her working day either walking or in static security position and I further accept that at the end of a working day, the pain in her right knee has generally been aggravated. I note the plaintiff’s concession in cross-examination that the constancy of her knee pain was not such that it was “always hurting every second of the day”.[31] Also, it was not the direct cause of her cessation of employment with Toyota.
[31]T31, L15–15.
43 The plaintiff was not evasive in any way during cross-examination and, when challenged by Ms Bailey as to her use of medication, responded clearly and unequivocally as to her usage of Panadol Osteo and similar medication. I found the plaintiff to be a stoic individual and I regard the history noted by Mr O’Brien in February 2012 of “occasional pain over the anterior aspect of both knees” to very significantly understate the consequences to the plaintiff in terms of her right knee injury.
44 I therefore conclude that in relation to the right knee, the plaintiff has established that she will suffer pain into the foreseeable future which, due to the nature of her work and domestic arrangements, is likely to impact upon her on at least a daily basis, requiring painkilling medication when the symptoms are severe at the rate of two to three tablets per day as described by the plaintiff.
45 I accept also that the comments made by the medical practitioners in relation to her need to avoid walking on uneven surfaces or in having difficulty using staircases are such to fortify my conclusion that the consequences of the right knee in terms of pain and interference with her daily activities are such that they can properly be said to be of such frequency and severity that they are at least very considerable and more than significant or marked.
46 In relation to the left shoulder, I am unable to come to a similar conclusion. True it is that the plaintiff has suffered an ongoing restriction of movement in the left shoulder and a loss of function for activities involving movement above shoulder height. In relation to the shoulder, I prefer the opinion of Mr Dallalana, the treating surgeon, to the effect that the plaintiff’s shoulder condition:
“… is not a major source of pain nor associated with any weakness. It is not something which would impair one’s functional capacity.”[32]
[32]Exhibit A page 79b.
47 I do accept that the ongoing consequences flowing from the left shoulder provide some occasional pain but this pain is on an intermittent basis and capable of being avoided, whereas the symptoms affecting a weight bearing joint such as the knee cannot be avoided by a person in the situation of the plaintiff.
48 I also take into account that the left shoulder is not the plaintiff’s dominant arm and that the shoulder symptoms are not normally aggravated during the plaintiff’s working day. In those circumstances I do not find the plaintiff has suffered a serious injury in relation to her left shoulder.
Conclusion
49 The plaintiff will be granted leave pursuant to s134AB(16)(b) to bring proceedings for the recovery of damages for pain and suffering only in respect of her right knee injury arising out of or in the course of her employment on or about 9 April 2002.
50 The plaintiff’s claim for leave in respect of her left shoulder injury arising out of or in the course of her employment on or about 27 February 2008 will be dismissed.
51 I will hear the parties on the question of costs and the form of orders generally.
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