Black-Bassett v Woolworths Limited
[2014] VCC 2046
•11 December 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06133
| BARBARA JILLIAN BLACK-BASSETT | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 30 September and 1, 2 and 3 October 2014 | |
DATE OF JUDGMENT: | 11 December 2014 | |
CASE MAY BE CITED AS: | Black-Bassett v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2046 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lower back – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Cropp v Transport Accident Commission & Anor [1998] 3 VR 357; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Petkovski v Galletti [1994] 1 VR 436; Angelatos v Museum of Victoria (VCC, unreported, 2 June 1998); Angelatos v Museum of Victoria [1999] 3 VR 157; Davies v Nilson & Transport Accident Commission [2014] VSCA 278; Papamanos v Commonwealth of Australia [2014] VSCA 167; Transport Accident Commission v Zepic [2013] VSCA 232; Kelly v Culakovski [2014] VSCA 305
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms S A Lean | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R Meldrum QC with Ms G-J Cooper | Thomson Geer |
HIS HONOUR:
1 In the matter of Barbara Black-Bassett v Woolworths Ltd, Mr Harrison of Her Majesty’s Counsel with Ms Lean appeared on behalf of the plaintiff and Mr Meldrum of Her Majesty’s Counsel with Ms Cooper appeared on behalf of the defendant.
2 This is an application under s134AB of the Accident Compensation Act 1985, hereinafter called “the Act”. A Notice of Motion was filed on 13 December 2012, whereby leave was sought to issue proceedings for damages pursuant to s134AB(16)(b) of the Act.
3 The matter was heard in Geelong from 20 September 2014 to 3 October 2014. The only witness called was the plaintiff, who confirmed in evidence in chief her affidavits,[1] and her current medication schedule.[2] The plaintiff was cross-examined for the balance of the hearing on 20 September and throughout 1 and 2 October 2014 and re-examined by Mr Harrison on 2 September 2014. The parties otherwise relied upon the tendered exhibits, and the final addresses took place on the 3rd of October 2014.
[1]Exhibit A1-A3
[2]Exhibit B
4 Mr Harrison, in opening, indicated that the body part with which this application is concerned was the lower back of the plaintiff. The injury was a “serious injury” pursuant to the definition contained in paragraph (a) of s134AB(37) of the Act and the consequences alleged were pain and suffering and economic loss.
5 In summarising the issues for the Court, Mr Meldrum alleged that the pathology was not significant, as alleged by Mr Harrison in opening. Mr Meldrum suggested the main issue in the case was the credibility of the plaintiff and that I should find the plaintiff to be an unreliable witness. Indeed, that was the tenor of the attack in cross-examination and of the final address of Mr Meldrum, and, while not explicitly stated, I understood the proposition was that the plaintiff’s credit was such as to make her such an unreliable witness that I could not decide this case in her favour.
6 As to the law relevant to such an application, the Court is now assisted by ss134AB(38)(b) and (c) of the Act, being a statutory recognition of the principles expounded in the decision of the Appeal Division of the Supreme Court, as it then was, in Humphries & Anor v Poljak[3] and generally by ss(19)(a) and (b) of such section and also by the determination of the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak.[4]
[3][1992] 2 VR 129 at 140
[4](2005) 14 VR 622; [2005] VSCA 33
7 The Court continues, of course, to be assisted in these determinations by the general principles exposed in Humphries & Anor v Poljak and in Cropp v Transport Accident Commission& Anor.[5]Insofar as this is an aggravation case, the process was identified by the President of the Court of Appeal in RJ Gilbertsons Pty Ltd v Skorsis,[6] where he referred to Petkovski v Galletti[7] being applicable in such cases:
“It is, of course, true that where a plaintiff is contending that the injury constituted by an aggravation of a pre-existing condition is itself a ‘serious injury’, in the sense of a serious long-term impairment of a body function, it is for the plaintiff to prove that the aggravation meets that description. In determining whether the plaintiff has discharged the onus the court must make a comparison of the plaintiff's condition before the supervention of the defendant’s negligent conduct, with his condition thereafter and make an assessment of the additional impairment.”
[5][1998] 3 VR 357
[6][2000] VSCA 51 at paragraph 2
[7][1994] 1 VR 436 at 444
8 Such process was earlier referred to by my late brother, Judge Hanlon, in Angelatos v Museum of Victoria, a determination of 2 June 1998.[8] His words, which I am about to read, were specifically approved by the Court of Appeal in the appeal of that case.[9] Judge Hanlon said, as to such application, that:
“As a preliminary matter it must be established on the balance of probabilities to the satisfaction of the court that a serious injury has occurred which arises out of, in the course of or due to the nature of employment. That has this consequence for cases where what is relied upon is an aggravation. It must be established that the aggravation itself, being the injury relied upon to qualify as a serious injury, does cause the impairment itself and without contribution from other things. The aggravation itself is a serious injury being one which has created a serious long-term impairment or loss of body function. That upon analysis, is a difficult thing to do in any case involving an aggravation.”
[8]VCC (unreported) 2 June 1998
[9][1999] 3 VR 157, [14] [15]
Credibility of the Plaintiff
9 I find after observing the plaintiff in Court, hearing her answer questions, in particular her manner under cross-examination, and after an extensive analysis of the evidence since the hearing, that I do not accept the plaintiff as a credible witness. I so find for the following reasons:
(i)The Plaintiff was quite prepared to lie in her own interest
10 Commonwealth Centrelink benefits: in order to obtain Commonwealth Centrelink benefits from 19 May 2009 to 14 February 2010, the plaintiff arranged for medical certificates,[10] to be provided to Centrelink by Dr Soo, one of her general practitioners at the time, in which she ascribed the cause of her sciatic condition as being an injury received at work in 2001, for which apparently she had been a long-term recipient of such benefits. Owing to her duplicity with Dr Soo, there was a failure to mention, in obtaining such certificates, the subsequent accident in 2009, which is the subject of this claim.
[10]Exhibit 13G
11 The plaintiff admitted under oath that she had deliberately failed to tell her general practitioner of the Woolworths incident, which had occurred in January 2009, so that Dr Soo would sign the Centrelink medical certificate. Indeed, the plaintiff was specifically asked about the failure to advise Dr Soo of the accident with Woolworths:[11]
[11]Transcript (“T”) 74
Q:“That means that you kept from him (Dr Soo) information you knew he should have?---
A:Correct.
Q:You did that deliberately?---
A:Well, for my purposes, yes.
Q:Yes, for your purposes?---
A:To get the certificates.”
12 The plaintiff was subsequently asked – when her other general practitioner, Dr Sowerby, whom she had alleged was away on holidays when the first certificate was issued, returned – why she did not then get the Centrelink certificates from him:[12]
Q:“When Dr Sowerby came back on duty, why did you continue to get the Centrelink certificates from Dr Soo?---
A:Because he’d already done them and it was easier to arrange and I didn’t have to worry about changing doctors or anything with Centrelink.”
[12]T79
(ii) Failure to disclose prior injury to doctors
13 It is of interest to note that insofar as Centrelink medical certificates are concerned, the plaintiff had, as she said, deliberately obtained them with the reference to the sciatic pain relating to the 2001 injury, and thereby was certified as unfit for work or study from 19 May 2009 through to 19 May 2010. In Exhibit 7A, Mr Max Wearne, orthopaedic surgeon, reports upon a medical examination of the plaintiff for the defendant in July 2009 concerning the Woolworths injury in 2009. Significantly, Mr Wearne states in such report that when he questioned the plaintiff about her state of health, she told him that she regarded herself “as healthy and fit”. She denied any history of serious injury or disability. That is the plaintiff failed to mention as history the injury she was currently receiving Centrelink benefits for.
14 When the plaintiff saw Mr Michael Shannon, orthopaedic surgeon, in March 2011[13] and she described the back pain and sciatica which had allegedly occurred at the Woolworths incident, Mr Shannon reports[14] as to past history that the plaintiff said “she has no previous history of back trouble”.
[13]Exhibit 8A
[14]Defendant’s Court Book (“DCB”) 21
15 In September 2013, the plaintiff also went to see, on behalf of the defendant, Mr Peter Scott, consultant surgeon, and he states that insofar as her history was concerned, the plaintiff had reported to him that “she had no trouble with her back”.[15]
[15]DCB 37
16 Not only did she not tell the defendant’s medico-legal doctors about such prior history, but in addition, she failed to tell her own general practitioner, Dr Sowerby, and her physiotherapist, Dr Jarman, who in fact she told that her prior history was one whereby she was “fit and healthy”. Also, presumably, as both the pain physician who treated her with injections, Dr Gassin, and the orthopaedic surgeon who provided an opinion to Dr Sowerby, Mr Justin Hunt, saw her on reference from Dr Sowerby, one presumes no history was given to them of any prior injury. Certainly their respective reports, Exhibit H and Exhibits D1, 2 and 3, do not speak of any such history.
17 In November 2013, the occupational physician, Dr Robyn Horsley, was asked by the plaintiff’s solicitors to see the plaintiff for a medico-legal report, which she did on 28 November 2013, and the plaintiff gave no such history to Dr Horsley.[16] The plaintiff was also asked by her solicitors in December 2013 to see Professor Bittar, a neurosurgeon, for a medico-legal report, and in Exhibit K1 under the heading “Past medical history”, the professor stated:[17]
“Her past medical history is non-contributory for previous lower back injuries or symptoms suggestive of pre-existing lumbar spine condition.”
[16]Plaintiff’s Court Book (“PCB”) 63.4
[17]PCB 65
18 When these matters of inconsistency were put to the plaintiff in cross-examination, she sought to indicate that she did not think her sciatic nerve restrictions were a back injury; specifically, she was asked:[18]
Q:“You elected not to tell any of the treating doctors or any of the experts examining you for the case about that, didn’t you?---
A:I didn’t believe it was relevant. I thought Dr Sowerby knew because I had my files transferred, but other than that, as I said, I thought a sciatic nerve wasn’t a back injury.”
[18]T17
19 However, later in cross-examination when being questioned about an occupational rehabilitation plan prepared for her in June 2001,[19] it was put to her, given the history in that document:[20]
Q:“…You knew you had back ache, back pain and back injury?---
A:No, I knew I had sciatica and I knew it came from the back.”
[19]DCB 103
[20]T58
20 And:[21]
[21]T59
Q:“And you saw the two terms as interchangeable, didn’t you, meaning much the same thing?---
A: That the sciatic nerve came from the back down the leg, yes.
Q: And you believed if you said ‘sciatica’ you were saying ‘the pains in my back as well as somewhere else’?---
A: Yes.”
21 The defendant tendered the clinical notes of Dr Soo.[22] From 24 July 2001 up to 7 February 2007 Dr Soo had treated the plaintiff for sciatica and pain in the lower back and left hip, with sciatic exacerbation being reported as late as 8 February 2006.[23] It is noted that Panadeine Forte is regularly prescribed and reported sciatica is regularly noted by the doctor. The doctor has written letters supporting the need for home help and gardening because of her back, and she was referred for medico-legal opinions to Dr Rodney Brink, orthopaedic surgeon, Dr Westh, orthopaedic surgeon, and Mr Troy,[24] all of whom noted significant histories and continuous pain, numbness of the left thigh, reduced spinal mobility, referred pain down the left leg and ongoing medication.
[22]Exhibit 13E
[23]DCB 116
[24]Exhibit 12
22 Given the above, it is incomprehensible to me that the plaintiff seriously first suggested to the Court, as detailed above, that she believed the sciatic symptoms and referred problems into her legs were not a result of her back injury.
23 I have no hesitation in accepting the submission of Mr Meldrum that the plaintiff is a person prepared to lie and manipulate the truth in her own interest, as demonstrated by the failure to appropriately report her history. I find that she has deliberately lied to the Court in stating that she did not comprehend that the sciatic nerve symptoms in her legs emanating from her accident in 1991 were not connected to her back injury.
24 It is also noted that in the claim form lodged in regard to this injury in 2009 the plaintiff, having identified the injury as being to the lower back and hip, was asked:[25]
“Have you previously had another injury, condition or personal injury claim that relates to this injury or condition?”
[25]Exhibit 22
25 The recorded answer on the Claim Form was, “No.”
(iii)Evidence as to the Plaintiff’s undertaking of beauty therapy training at the Centre of Excellence
26 The plaintiff was challenged in regard to her training at the Centre of Excellence beauty training. This training started in approximately August 2012. Apparently, the plaintiff determined not to tell her employer (who was then paying her Worker’s Compensation payments) or any of the doctors that she had undertaken such a course to qualify as a beauty therapist. It was put that she failed to so advise of this course because of the potential impact on her claim for future loss of income. Her answer to such a proposition was as follows:[26]
“Well, no, I just did it. I did it because I really wanted to. I didn’t tell anyone because I thought I would not be allowed to do it. Like I said, it was the doctors and Woolworths I didn’t tell. I didn’t think of anyone else.”
[26]T185
27 It turned out that by the start of the case, the plaintiff became aware through her solicitors that she had, in fact, completed the Certificate III in Beauty Therapy Services. In cross-examination, she said that despite having completed such certificate, she would be unable to be employed in the industry because she was too slow to meet the industry standards. The plaintiff, at the end of cross-examination on 1 October,[27] said that her trainers in the course had told her that she would not get a job because of the slow times in which she completed the jobs.
[27]T190
28 The next morning the cross-examination continued, such that the actual practical observation sheets signed by her instructors were tendered.[28] It was put to the plaintiff that, despite her evidence, the records showed otherwise; demonstrating no criticism of her, no suggestion that she was constantly over time and, indeed, demonstrating that she actually carried out the work tasks within the given time standards. In answer to such proposition, the plaintiff said:[29]
“Well, I can’t comment for why they didn’t comment and I can say that half the time I would forget the times and I would just write down whatever time I could remember.”
[28]Exhibits 21B and 21C
[29]T203
29 The plaintiff then, being met with such proposition, said in fact she had used other girls to assist her when the supervisors were out of the room and thereby she was able to meet the times. It was therefore put to her as follows by Mr Meldrum:
Q:“You now assert that you were cheating the system?---
A:Occasionally, yes, I did.”
30 Then, for an example, the first assessment in Exhibit 21C, dated 20 March 2013, was put to the plaintiff which, in regard to the performance of the work on that day being a lip (hot wax) and an eyebrow (hot wax), was described as good timing, being that both of them were supposed to be done in 30 minutes but were recorded as being done in 25 minutes, and as to such times, Mr Meldrum put:
Q:“That would be accurate?---
A:That would be crap.”
31 When it was put to her that the times suggest that her oral evidence was incorrect, her answer was:[30]
“Well, they’re what I’ve written, but that was not true.”
[30]T207
32 The plaintiff was then taken to 24 June 2013, when it would appear that she had done the work required in the appropriate time and her trainer had written positive comments about her, “Good training, good timing”. The plaintiff disputed the times recorded in the practical observation checklists. The assessment on 5 August 2013 was put, being the last assessment page in Exhibit 21C, and the plaintiff’s evidence[31] was essentially that, despite the times written down being to the required standard, and being signed by both herself and the trainer, and the written compliment by the trainer as to, “Good timing,” the times were in fact incorrect.
[31]T214–218
33 The plaintiff said that her trainers knew she could not perform within the time frames and had in effect conspired with her to falsely make records of her performance.[32] Mr Meldrum asked:
[32]T218
Q: “Who would tell you to do that, which supervisor would?---
A: Natalie.
Q: Natalie would tell you to write a false entry?---
A: To just write in the time frame you remember.
Q: She would tell you to write a false entry?---
A: Yes.
Q: Knowing that she was certifying to the industry that you were meeting standards?---
A: That I had to get up to standard yes.
Q: No, no, that you were meeting it?---
A: Well I wasn’t meeting it, but yes.”[33]
[33]T24
34 There was some dispute between Counsel as to the actual number of entries which demonstrated compliance with required timing by the plaintiff and which did not. However, the point of importance in regard to the credit of the plaintiff is that the plaintiff was prepared to manipulate, together with others, documentation used to accord to her achievement of professional standards in the course she was undertaking.
35 I must say that the manner in which the plaintiff gave evidence in this aspect of the cross-examination led to Mr Meldrum suggesting the plaintiff was inclined to manipulate her evidence, depending on what was put to her. I have concluded that such was a correct assessment of the plaintiff when she was being cross-examined in this regard.
(iv) Surveillance
36 The plaintiff was subjected to surveillance on 4 and 6 October 2010,[34] 21 August 2012 and 5 September 2012,[35] 15, 16 and 19 October 2012,[36] and 1 November 2013.[37] By way of introduction to such evidence, Mr Meldrum asked the plaintiff a series of questions as to her current health status and the effect of pain upon her.[38] It is to be remarked that at least by the 6th of February 2014, the date of the filing of the Courtbook by the defendant, in accordance with the practice of the model litigator the fact of video surveillance had been disclosed, albeit that privilege was not waived.
[34]Exhibit 3
[35]Exhibit 4
[36]Exhibit 5
[37]Exhibit 6
[38]T255–256
37 While not in any way resiling from the severity of her ongoing symptoms as sworn to in her affidavits and her evidence in chief, the plaintiff gave evidence as follows:[39]
[39]T255–256
Q: “…You say you very often get serious pain in your back?---
A:Correct.
Q: That affects your capacity to walk – affects your capacity to walk?---
A:The pain, but that doesn’t mean I can’t do it.
Q: No, no but affects adversely?---
A: Yes, correct.
Q: You walk slowly when you have got bad pain?---
A: Sometimes, yes. Sometimes I have to hurry if I’m late.
Q: Sometimes you have to hurry if you’re late for what?---
A: Appointments.
Q: Like?---
A: Doctors, specialists.
Q: To get to a bank when it opens or something?---
A:No.
Q: No?---
A: Not that I would think so.
Q: So when the pain is bad I take it you don’t walk briskly. You know what briskly means, that is walk with quick steps?---
A:Well, I would try not to but there may be occasions when I have to walk briskly.
Q:So you would not choose to unless there was something that forced you to walk briskly?---
A: Or some relevance, yes.
Q:I take it you would, when your back pain is bad, minimise the stooping forward you would do, and tend to bend at the knees to get down to something, rather than stoop to it?---
A: Well, consciously that’s what you’d think I’d do but you don’t always think like that, and if it’s really bad I take pain killers to try and take the pain away.
Q:But if the pain is not being taken away, right, you are at the time in bad pain, you don’t bend with any freedom?---
A: I wouldn’t consciously, no.
Q:You have said to me you can’t bend to 90 degrees?---
A:Not without a great deal of pain I don’t think I could get down there, no.
Q: Certainly not fluidly and if you did you would get back up in a lot of pain wouldn’t you?---
A: Yes.
Q: You would be very likely to show signs of being in pain and discomfort?---
A: You would think so.
Q: You have observed, have you, that people with a bad back often get in and out of a car in a very tentative, or gingerly, way?---
A: I don’t really know.
Q: By which I mean rather than stepping with the left leg into the well of the floor, the front well, people tend to sit down at the side of the seat facing towards the door?
A: I’ve never done that.
Q: You have not seen people do that?---
A: No.
Q: So no matter how bad the pain is you step and step out very fluidly?---
A: That’s what I would have – that’s what I could – that[’s] what I think I do, yeah.
Q: But if the pain was bad it would affect how you would walk after you had stepped in or stepped out?---
A: Probably, yeah.
38 Perhaps as a better backdrop to Exhibit 3, the plaintiff was in fact examined by Mr Wearne on 21 October 2010.[40] She indicated, by way of history,[41] that she then experienced severe and continuous pain in the lower back, both buttocks and the backs of both legs, she was continually disturbed during sleep at night and managed no more than four hours of sleep a night. Her capacity to sit and stand was limited, and she could walk around the block, approximately 1 kilometre, but this would take her over half an hour. She had limited ability to perform housework and needed assistance from her family, and she continued to avoid bending and lifting as much as possible, but unfortunately, the cleaning lady and gardener, who had previously been funded by Woolworths, were no longer available.
[40]Exhibit 7B
[41]DCB 11
39 On physical examination on that day, Mr Wearne considered that the plaintiff’s appearance had deteriorated. She was now morbidly obese at 106 kilograms and was slow and protective in her movements. She complained of continuous low back pain and was slow and protective in the way she undressed and redressed and clambered off and on the examination table. Movements of the lumbar spine were grossly reduced and accompanied by complaints of severe pain. She could manage no more than 20 per cent of forward flexion against normal 90 per cent, and no more than 15 per cent of extension against normal 30 per cent. There was no muscle wasting or weakness detected in the legs. It is against such history that the answers to Mr Meldrum, and indeed the surveillance film,[42] can be assessed.
[42]Exhibit 3
40 In fact, the defendant’s solicitors forwarded to Mr Wearne videos in regard to both 4 and 6 October 2010.[43] I have viewed each of such surveillance videos. While it has to be accepted that observations made by a lay person, such as myself, have limitations, on both days I found the plaintiff to walk with no limp. I found her to be walking freely, briskly and quickly. On 4 October 2010, she was able to quickly get into the car with no apparent difficulty whatsoever and was able to ease into the car on the morning of 6 October 2010.
[43]Exhibit 3
41 As I say, these videos were also forwarded to Mr Wearne and he provided a report on same dated 9 November 2010.[44] As the doctor remarks, at no stage is the plaintiff lifting any heavy items or engaging in strenuous physical activity. However, what struck him was her mode of walking. As I have remarked, she walked rapidly and, as he describes it, in almost a “spritely manner, swinging her arm vigorously”.
[44]Exhibit 7C
42 Mr Warne was of the view that such contrasted with the way she walked in on both occasions he had seen her, on 14 July 2009 and 21 October 2010. He noted that on the first occasion, on 14 July 2009,[45] she had walked with a limp, was awkward and clumsy in movements and, on the second occasion, had walked slowly and protectively as though in considerable pain. He had also noticed in his examination of 21 October 2010, an inconsistency during his examination, which he described as an unguarded moment. He concluded that observation of the two videos, together with the observed unguarded moment, led him to believe that her level of discomfort was nowhere near as severe as she had wanted him to believe.
[45]Exhibit 7A
43 I have also closely looked at the other surveillance videos tendered[46] and at no stage detected any limp, and indeed, at 12.34pm on 15 October 2012, the plaintiff bent into the car, clearly more than 90 degrees. Again, on 15 October 2012, she gets out of the car quite freely, and on 16 October 2012, she bends into the car, again more than 90 degrees.
[46]Exhibits 4, 5 and 6
44 In cross-examination, these matters were put to the plaintiff, who said that she walks with small steps, as it causes her least pain. I could not myself notice any evidence of that and, further, the plaintiff maintained that she was limping in the videos. My own view is there was no limp and I find that the movement demonstrated certainly contrasts dramatically with the laboured and slow movements reported by her to doctors in examinations.
45 I find that the surveillance videos and the evidence of Mr Wearne contrast markedly with the sworn affidavit of the plaintiff, in particular Exhibit A2, paragraphs 7, 8, 9 and 10, and her evidence given orally in Court.
(v) Facebook page
46 Tendered as Exhibit 23 by the defendant were printouts of the plaintiff’s Facebook pages 1–58 being from, as best as I can ascertain, 14 November 2013 until June 2014. At any rate, on page 32 of the 58 pages is an entry dated 10 November 2013, where the plaintiff notes that she had just completed her first Relay for Life. She had walked laps of an oval for 24 hours to the extent that she had blister on blister and was very pleased to be able to say that she “did it though”. In cross-examination,[47] the plaintiff said that there were seven of them doing the relay so that she did her 20-minute walk every two and a half hours. The point was made by Mr Meldrum in cross-examination that although there was a complaint of feet pain and blisters, there was no complaint of back pain.
[47]T250
(vi) The Plaintiff’s Part (c) injury claim
47 At the beginning of this hearing the plaintiff abandoned the part (c) injury claim she had previously made. The plaintiff, by way of background, had suffered from alleged sexual abuse as a young child and consequently suffered from depression throughout her life, which was exacerbated upon the death of the plaintiff’s husband in 2006 and the impact of each factor had been “unrelenting” upon her.[48]
[48]T27
48 The plaintiff was questioned as to why, when she saw for the defendant the psychiatrist, Dr Strauss, on 10 March 2011, she did not tell him of either event, in fact, as to history, the plaintiff said to Dr Strauss:
“There was no violence or abuse in [my] upbringing, which was happy.”
49 Mr Meldrum put to the plaintiff such, “…was simply untrue,” to which the plaintiff answered “obviously”.
50 As to why the plaintiff did not tell Dr Strauss about the psychological impact of the childhood rape or the death of her husband, the plaintiff accepted they are experiences she could not forget. Mr Meldrum then asked the following question:
Q: “So if you did not forget, it has to be deliberate, doesn’t it?---
A: No, I don’t believe so. I don’t know why I should have said that. I can’t answer it any other way.”[49]
[49]T31
51 There are other aspects of the evidence to which Mr Meldrum referred in final address to support his submission that the plaintiff was not a witness of truth. I think it is obvious from my conclusion above that I accept such submission.
52 In his final submission, Mr Harrison said that no one should lose a case because they have a bad memory. I accept that totally. However, I find the plaintiff’s untruthfulness, lies and capacity to manipulate evidence are not things that can be put down to bad memory.
Assessing the whole of the evidence
53 Given the above findings as to credit, the question is how, and in what way, can this application proceed?
54 As recently stated by the Chief Justice in Davies v Nilson & Transport Accident Commission,[50] cases must be determined on all the evidence. It was similarly said in Papamanos v Commonwealth of Australia:[51]
“The task for the judge was to evaluate the credibility of the appellant on the whole of the evidence, and then to determine her application on the same basis.”
[50][2014] VSCA 278
[51][2014] VSCA 167
55 As referred to in the Statement of Issues by Mr Harrison,[52] the primary issues are, firstly, the nature and extent of the plaintiff’s prior back injury and, accordingly, whether the aggravation was serious.
[52]Exhibit P, paragraph 10
56 As submitted by Mr Meldrum, not one of the treating doctors had the correct history of the plaintiff, as the plaintiff had deliberately refrained from providing same. In Transport Accident Commission v Zepic,[53] Maxwell P commented on the importance in these applications of credit as to the reliability of the medical evidence and the consequent reduction in weight of such evidence where histories are incorrect.[54] Most recently similar sentiments were expressed by the Court of Appeal in Kelly v Culakovski.[55]
[53][2013] VSCA 232
[54]Transport Accident Commission v Zepic (supra), paragraph 92
[55][2014] VSCA 305
57 Further, my conclusions as to the plaintiff’s credit and the evidence provided in her affidavit and orally in Court make it difficult to regard as reliable anything she has said about the consequences of the accident being considered in this matter.
58 As detailed in paragraph 11 of the Statement of Issues, Mr Harrison relies strongly upon the medical evidence of each of the treating practitioners, being Dr Sowerby, general practitioner, Mr Justin Hunt, orthopaedic surgeon, and Dr Robert Gassin, musculoskeletal physician. At no stage have any of them been apprised of the true history of the plaintiff, nor has Dr Soo (her other general practitioner) been apprised at any time of the details of any further incident which might compromise the certifications he gave to Centrelink.[56]
[56]Exhibit 13G
59 Dr Horsley, the medico-legal occupational physician, was subsequently presented with the correct record of the plaintiff’s prior history by the plaintiff’s solicitors and noted the ongoing presentation of back pain and medication for same from 2001 until 2007. In her report of 12 May 2014,[57] having noted the pre-existing constitutional spondylolisthesis at the L5-S1 level, she asked the obviously important question whether the back condition had stabilised with the alleged cessation of pain medication from approximately the time of resumption of work part-time with Woolworths in 2004, subsequently in 2006 with Cheetham Salt and again in 2008 with Woolworths,[58] and whether there where any medical notes of Dr Sowerby available to assist in assessing that question.
[57]Exhibit J3
[58]PCB 63.4, last paragraph of report
60 Professor Bittar, the medico-legal neurosurgeon, was also provided with the full history, with which he had not been provided by the plaintiff, and he provided a report thereon, being Exhibit K2 in June 2014.[59] He noted, in observing such, the opinion of the then treating general practitioner, Dr Soo, of a significant lower level spinal injury which had occurred in 2001, with the persistence of significant symptoms through until 2006. He also noted the plaintiff’s questionnaire,[60] dated 17 February 2004, wherein, as at that date, the plaintiff continued to complain of lots of back pain with the need to take Mobic, Tramal and Panadeine Forte, and the fact that it was not improving, with the pain just going on and on, and a notation of the plaintiff being:
“I wish you could send me somewhere to make the pain go away”.
[59]PCB 67.1
[60]Exhibit 16, DCB 92
61 It should be, of course, noted, insofar as the history provided to Professor Bittar, that in fact a perusal of the notes of Dr Soo shows that the last prescription of medication for back relief was in fact in February 2007 and, of course, Dr Soo’s reports provided to Centrelink from May 2009 to February 2010 still ascribed the onset of the back pain and sciatica to the injury which occurred in 2001. Professor Bittar offers an opinion, which he states relies heavily on the fact that there were no other medical records in existence which suggest lower back-related symptoms in 2007 or 2008, and in such circumstances with the additional history, he postulates a substantial recovery from the initial injury in 2001 and the sustaining then of a significant further injury to the lower back in January 2009.[61]
[61]DCB 67.3
62 Professor Bittar had in fact examined the plaintiff on 4 December 2013; indeed, this is the only examination he made of the plaintiff. Without the precise history of the earlier injury in 2001, he had determined that she had, in the 2009 accident, aggravated a pre-existing degenerative spondylolisthesis at L5-S1.
63 Such a condition appears on all of the reports to have been developmental and dynamic in nature and, of course, complicates the appreciation of any soft tissue injury to the lumbar spine which may have been occasioned either in 2001 or 2009, insofar as an actual designation of such condition.
64 There was a CT scan in May 2001 which showed degeneration of the facet joint at L5-S1 and a subsequent referral in that year by Dr Soo to Mr Brink, orthopaedic surgeon, who diagnosed a suspected annular tear of a lumbar disc. There was a further CT scan in 2002, which again reported facet joint degeneration at L4-L5 and L5-S1, and there was again a referral by Dr Soo in June 2004 to a specialist, Mr Han, at the Werribee Mercy Hospital, noting at that time, ongoing sciatica of the left leg of a few years’ duration with no improvement, albeit that any possible disc protrusion had resolved with current prescriptions of Duromine, Mobic and Tramadol.[62] As has been earlier referred to, the clinical notes of Dr Soo from July 2001 through to 2013 have been tendered as Exhibit 13E.
[62]Exhibit 13D
65 The actual spondylolisthesis was not diagnosed specifically until a CT scan in February 2009,[63] and in a subsequent MRI scan of May 2009,[64] there was found to be a degenerative L5-S1 spondylolisthesis with secondary disc degeneration present. At such time, the conclusion of the radiologist was of degenerative L5-S1 Grade 1 spondylolisthesis with no discrete disc protrusion or nerve root entrapment being identified.
[63]Exhibit C1, PCB 28
[64]Exhibit C2, PCB 29
66 As I said, Professor Bittar examined the plaintiff on 4 December 2013, and the plaintiff provided a history.[65] At that page, the Professor reported the plaintiff’s complaint of current symptoms as follows:
“She complains of a constant band of pain radiating bilaterally across the lumbosacral area and into her buttocks, particularly the left. The pain radiates down the back and side of her left leg and into her calf and foot. She has a lesser degree of pain radiating into the right leg. She has numbness over the anterolateral aspect of her left thigh. Lower back pain is her main complaint and this is constant and has an average severity of 7–8\10. Her left leg pain is also constant and has an average severity of 6–7\10. Her right leg pain is intermittent and has an average severity of 4\10. Her symptoms are exacerbated by sitting for more than 20 minutes, standing for more than 30 minutes, bending, twisting and lifting more than a few kilograms. Her symptoms improve substantially in a recumbent position but do not resolve.”
[65]Exhibit K1, PCB 65
67 It is interesting to compare such reported symptomology in December 2013 with the symptomology post the earlier accident. Firstly, at the examination on 14 August 2002 by Mr Westh,[66] the plaintiff was reported as having given to Mr Westh the following as her current complaints:
[66]Exhibit 11, DCB 70 and, in particular, 71
“(i)Her main trouble is pain across her back with pain shooting up her back, particularly with prolonged sitting.
(ii)She complains of constant pain in her left leg and tingling in the sole of her left foot.
(iii)She complains of an area of numbness in the outer aspect of her left thigh.
(iv)She says she can’t bend down. As a result, she is unable to show her dogs.
(v)She can’t lift her children.
(vi)She finds household chores difficult.
(vii)She is unable to do any gardening. She says she has a gardener every two weeks.
(viii)She complains of variable discomfort in her left knee and says there is always an ache present” [which she confirmed in evidence to be from the sciatica in the left leg].
68 In the following year, the following symptomology was reported to Mr John Henderson, orthopaedic surgeon, of Geelong, who stated in his medical report dated 3 March 2003:[67]
[67]DCB 88
“Present condition, present symptoms.
The worker claims that, if anything, her condition is ‘going backwards’. Her back pain and leg pain is worse now than it was earlier on.
Low back pain. She still has her low back pain right across her lumbosacral region, well below the level of her waist. The pain is constant.
Left leg pain. Again she has constant pain radiating down the lateral aspect of her thigh, past her knee and down the lateral aspect of her calf.
Right leg pain. She gets pain in the right leg occasionally. The last time was just this morning. The pain never goes below the knee and it’s just in the lateral aspect of the right thigh.
Tingling left foot. She has tingling upon the lateral side of her left foot to the base of the toes.”
69 Given that this is an aggravation case, the symptoms post 2001 and post 2009 are quite similar, but in evidence, the plaintiff stated that the pain she endured subsequent to the 2009 accident was “more intense” than that endured in the earlier accident, in 2001.[68]
[68]T59
70 Professor Bittar’s examination on 4 December 2013 noted[69] that throughout the consultation, the plaintiff preferred to stand. She walked with an antalgic gait and was moderately overweight. She had moderate restriction of lumbar flexion, which was very painful, but relatively normal lumbar spine extension which caused minimal pain. Straight leg raising was restricted to 50 per cent on the left side.
[69]PCB 66
71 It is of interest, given such observations were made at examination on 4 December at 2.13pm, to look at the surveillance video,[70] which was in fact conducted on 1 November 2013. I have taken the opportunity to view all the videos, but in particular this video, because of the comparison it may have provided in regard to the examination and findings at examination of Professor Bittar.
[70]Exhibit 6
72 On the surveillance tape taken approximately one month earlier than Professor Bittar’s examination, there are recordings made on 1 November 2013 of the plaintiff’s movements from approximately 11.13am through to 2.06pm. Throughout that time, she gets in and out of her car three times. On each occasion, she does so freely without any apparent, at least to a lay person, antalgic gait or any restriction caused by pain whatsoever. In particular, at 11.15am in such surveillance video, the plaintiff bends over 90 degrees into the car to pick something up and appears to have no difficulty whatsoever upon flexion, and certainly, no pain at all. At 11.15am, she briskly walks back to the car and again bends into the car without restriction. At 12.40pm, she again gets of the car without any restriction, and at 1.27pm, she gets back into the car and again reaches back for her belt without the slightest restriction. At 1.39pm, she gets out of the car, again with no issue. At 2.01pm, she gets back into the car freely. Subsequently, at 2.04pm, she gets out of the car without apparent issues and walks freely, and at 2.06pm, she gets back into the car quite freely, holding a bag of chips in one hand.
73 Again, one has to be careful forming conclusions from tapes taken for short periods in a person’s life. However, this tape is closely associated in time with the independent examination conducted for the plaintiff by Professor Bittar. Again, the difference between his observations and the reality displayed on the tape appears to me to be remarkable.
74 It is noted that the defendant had the surveillance tapes and, although they were given to Mr Wearne, Mr Shannon was not provided with them for commentary. Equally, at no stage was Mr Shannon provided with the precise history of the earlier accident and subsequent treatment. Similarly, at no stage were the treating practitioners provided with the correct history by the plaintiff’s solicitors. It is very difficult for a Judge in such circumstances to reach conclusions without appropriate medical help, and I refer to the comments of the Chief Justice in Davies v Nilson[71] as to the assistance that should be provided to Judges by instructing solicitors and counsel in such matters, in particular at paragraph 107.
[71]Supra
Submissions of Mr Harrison
75 Mr Harrison submitted that insofar as the prior injury and treatment was concerned, what stands out, on the clinical notes of Dr Soo, is that no prescriptions for pain were made since February 2007. Mr Harrison submitted I should accept the evidence of the plaintiff that there were no issues with sciatica in 2007 or 2008 until the exacerbation of the underlying condition caused by the 2009 incident. Mr Harrison submitted that there is no doubt, whatever the cause, that the opinion of both the specialists, Mr Hunt and Professor Bittar, is that there is a need for an operation. However, such operation cannot take place because of the excessive weight of the plaintiff.
76 Mr Harrison submitted that I should accept the evidence of the plaintiff as to her current restrictions, and her evidence that such issues with her back and restrictions emanate from the aggravation injury which occurred in January 2009. In particular, he relies upon the opinions expressed by Dr Horsley and Professor Bittar after receipt of the full details of the prior history. Mr Harrison submitted that, in considering all of the evidence, I should accept the plaintiff’s evidence and the medical support, in particular the opinions as to her inability to perform any form of employment.
77 Insofar as her attempt at work in seeking to obtain certification as a beauty therapist, whatever the circumstances as to the documentation, Mr Harrison submitted that the documents certainly confirm that in 35 of the 97 instances she was too slow and such, he submits, supports the proposition that she is simply physically unable to obtain alternative employment. He submits that I should disregard the fact that no one was aware, nor did she advise her employer or doctors of such undertaking because of a misapprehension as to whether she was allowed to undertake such course. He further submitted that given her love of the course and desire to be so employed, as is demonstrated in the Facebook materials, I should accept that, unless she was significantly injured, she would not have failed to complete the course.
78 Mr Harrison relies upon the admission of the claim by the insurers, the plaintiff’s ongoing medication required, the radiology which demonstrates the underlying condition which has been aggravated, the unsuccessful attempts at retraining, and the confirmation of the need for surgery. Mr Harrison submits that the totality of the evidence is such that I should grant a serious injury certificate in regard to both consequences as a result of this part (a) injury to the lower back.
Conclusion
79 Having analysed all of the material, and in particular taken account of Mr Harrison’s submissions, I have concluded I should not grant such certificate. As earlier referred to, credibility is so important in a case such as this, in particular an aggravation case which has its own particular hurdles for plaintiffs. I am not satisfied with the plaintiff’s evidence in this regard and, in particular, I am not satisfied as to the credibility of the plaintiff’s evidence of her symptomology and condition which emanated from the admitted accident in January 2009 nor consequently the medical evidence led in support.
80 I am therefore unable to be satisfied, and the plaintiff has failed to meet the onus in this regard, as to what was the aggravation injury, and what were its consequences. In such circumstances I am unable to apply the necessary objective comparison required in such applications.
81 My formal order therefore is that I dismiss this application.
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