Borg, Doris v Woolworths Ltd
[2009] VCC 828
•9 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-04394
| DORIS BORG | Plaintiff |
| v | |
| WOOLWORTHS LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 and 11 June 2009 |
| DATE OF JUDGMENT: | 9 July 2009 |
| CASE MAY BE CITED AS: | Borg, Doris v Woolworths Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0828 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with | Arnold Thomas & Becker Pty Ltd |
| Mr J P Brett | ||
| For the Defendant | Mr A W Middleton | Gadens Lawyers |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding seeking damages for the economic consequences of injuries suffered by her on 19 November 2004 and 13 June 2004 in the course of her employment with the defendant.
2 The injury relied upon by the plaintiff is a prolapse of the L5-S1 lumbar disc compressing the S1 nerve root with neurological deficit and referred symptoms to the lower limbs, more pronounced on the left side. The impairment arising by reason of the injury is an impairment in the function of the lumbar spine.
3 Notwithstanding the fact that two incidents are involved in causing the plaintiff’s injury and resulting impairment, this matter proceeded upon the basis of an agreement reached by the parties:
(i)
that I should decide the matter taking into account the combined effect of both incidents;
(ii)
that the plaintiff, by reason of the combined effect of both incidents, had suffered a serious injury within the meaning of that term as defined by the provisions of the Accident Compensation Act 1985 (‘the Act”) which entitled her to commence proceedings to seek damages at common law for the pain and suffering consequences of her incapacity;
(iii)
that the only issue which I am required to determine is whether or not the evidence establishes that by reason of the incapacity associated with the incidents, the plaintiff has suffered a loss of earning capacity of sufficient magnitude to be considered ‘serious’ within the meaning of the Act.
The Plaintiff’s Evidence
4 The plaintiff relies upon an affidavit sworn on 2 June 2008, together with the evidence given by her in the course of the proceeding. In her affidavit the plaintiff deposes that –
•
She was employed as a cashier and supervisor with the defendant, in the course of which occupation she worked a minimum of 27 hours a week, but frequently worked between 32 and 35 hours per week. She said that during the first 24 hours of her weekly work she was paid at the rate of pay applicable to a permanent employee, and that for any additional hours which she worked she received the rate of pay applicable to a casual employee.
•
Following her first injury, the plaintiff was off work for a number of weeks. Thereafter she returned to light duties. Between the first incident and the second incident, the plaintiff had gradually increased the hours during which she was working to 22 hours per week as her tolerance to work improved.
•
Upon her return to work following her second injury, the plaintiff commenced performing light modified duties, initially for a period of 12 hours per week. Eventually the plaintiff increased her working hours to 5 hours a day, three days per week. Her duties involved her in performing light work which required her to stand at the door of the defendant’s store in Watergardens, greeting customers and checking their bags. The plaintiff deposed that this work increased her symptoms of pain as it required her to be on her feet for long periods of time.
•
She continued working for the defendant until approximately August 2007. At no time following the second incident was the plaintiff able to work for more than 15 hours a week, or to undertake anything other than the lightest of duties, to which I have already referred.
•
In February 2008, the plaintiff suffered a major flare-up of her low-back pain. This occurred without the involvement of any specific incident. By reason of these symptoms, the plaintiff consulted a neurosurgeon, Dr Bittar, who eventually performed an operation upon the plaintiff on 1 April 2008 in the form of a discectomy at the L5-S1 disc level.
•
Following her operation, the plaintiff’s condition had improved. The severe and debilitating pain which was present in her left leg before the operation had largely resolved. The plaintiff was however, left with pins and needles and numbness in the left leg and in the buttocks. The operation resulted in a marginal improvement in the plaintiff’s lower back pain. The plaintiff described her lower back pain as still being “very considerable”. She said that she continues to suffer from pain in her right leg, which is present most of the time, and travels down the leg into the foot and toes.
5 The plaintiff described the effect of her injury upon her in the following terms:
“If I sit for more than half an hour I experience a marked build-up of low- back pain and right-leg pain. If I am on my feet for long I experience a marked build-up of low-back pain and right-leg pain. The most comfortable position is lying down. Any activity by way of walking or being on my feet will cause an increase in low-back pain and pain in both legs.”
6 In the course of her evidence, the plaintiff said that she continued to take medication in the form of Pariet, Tramal, Celebrex, and Panadol Osteo. Her present treatment involved physiotherapy, which she attended twice weekly, and consultations with her general practitioner, Dr Kruimink, who prescribed medication and monitored her progress. She described her general level of low-back pain as involving a severity of 7 or 8 out of 10. She said that the pain was there all the time, but was aggravated by activity. When asked to describe her general level of activity, the plaintiff said:
“Well, when I get up in the morning I take my Tramal, have a hot shower to get myself motivated, then I start doing bits and pieces around the house or get ready to go to the physio, and by the time I get back from the physio I’ve got to lay down and rest.
Most physio times are between 10.00 and 10.30, so by 12.30-1.00 o’clock I need to have a rest for a couple of hours.”[1]
[1] T 19
7 The plaintiff explained that by “rest” she meant lying down. She described the presence of burning pain travelling from her back down to her buttocks,[2] numbness in the back of her left leg and in her three small toes,[3] pins and needles in the left thigh, and pain travelling down her left leg. She also described symptoms of pain on her right side.[4]
[2] T 21
[3] T 21
[4] T 22
8 The plaintiff said that immediately before the exacerbation of her symptoms in February 2008 she had commenced a computer course for the purpose of seeking to rehabilitate herself in order to achieve a return to work.[5] When asked to compare her present capacity for work with that which she exhibited when last employed by the defendant,[6] the plaintiff said that she would be lucky to do three hours a day, maybe two days a week:
“I’d have to try it to find out first whether I’m able to do it, because at
home there’s things when I need to do, I need to sit down and rest.”[7]
[5] T 23
[6] Which involved the plaintiff undertaking light modified duties for a maximum of 15 hours per week.
[7] T 23
9 In cross-examination, the plaintiff accepted that her curriculum vitae[8] was accurate. She said that after her first accident she had been able to increase her hours to approximately 22 hours a week,[9] and that on her return to work following her second accident her working hours reached the maximum of 15 hours per week.[10] The plaintiff’s employment was terminated in August 2007 when she declined the defendant’s requirement that she return to full- time employment.[11]
[8] Defendant’s Court Book (“DCB”) 33
[9] T 26
[10] T 27
[11] T 28
10 Following her termination by the defendant, the plaintiff obtained assistance from an organisation to which she was referred by WorkCover known as AMS. Through that organisation she commenced a computer course. The plaintiff said that she had never before used a computer, and that she attended two sessions of the course, but had to abandon the course when she suffered a flare-up of her symptoms which caused her to be admitted to hospital.[12] The plaintiff described the flare-up as involving the same pain which she was experiencing earlier, but that the pain came on at a more intense level, such that she was unable to work.[13]
[12] T 30
[13] T 31
11 The plaintiff said that during the last six months her condition has been stable, and that her treatment involved a regular regime of physiotherapy which she attended generally twice per week.
12 The plaintiff said she had a belief that she could do some form of work, and that she really did not know how many hours she might be able to work until she tried.[14] She said that following her operation she had made contact with AMS only on one occasion, and that the person that she spoke to indicated that he would get back in contact with her but he did not. The plaintiff said that approximately one month later she rang AMS, but the number was engaged, and that she had not since tried to contact that organisation. She said that she had not been to Centrelink, and that her only attempt to find employment had involved looking at job advertisements in the local paper.
[14] T 33
13 A certificate for employment capacity was tendered, which was issued by the plaintiff’s general practitioner, and which listed the following restrictions to employment:
“Two days per week, 3 hours per day, light duties, no lifting, rest breaks
as a required, no prolonged sitting or standing.”[15]
[15] T 37
14 In re-examination, the plaintiff was asked as to whether she could cope with secretarial work, canteen work, promotional work, and lighter employment on a full or part-time basis. She responded:
“I could try, but I don’t think I would be able to do that because I get tired
as it is.
[16] T 39.
Q: What makes you tired?--- A: The pain. Lack of sleep.”[16]
The Medical Evidence
15 The plaintiff relied upon the evidence of her general practitioner, Dr Kruimink, who has provided four medical reports dated 3 January 2005, 29 May 2007, 1 November 2007, and 5 March 2009. In his most recent report, Dr Kruimink expressed the following opinion as to the plaintiff’s capacity for employment:
“Doris in my opinion has a current capacity for work. This however is very limited. I feel she would currently be capable of a limited light- duties employment, and if she was working I would have her return perhaps two days per week for 2-3 hours per day. She is not capable of lifting, prolonged standing or rotational tasks, would need rest breaks as needed and rotation of sitting to standing as needed. However, as Doris has no position to return to, it would seem unlikely any prospective employer would take her on with these restrictions. Thus, the reality of her finding work is very difficult.
Prognosis is difficult. She has not significantly improved over the last six months and I feel she will have ongoing symptoms and is unlikely to significantly improve for the foreseeable future. I base this on the fact that no specific further treatment is felt possible other than physio and hydrotherapy, and also that Mr Bittar, in his last letter, felt she would have ongoing symptoms into the foreseeable future.”
16 Dr Kruimink attended for cross-examination. In the course of his evidence he said that he was presently providing the plaintiff with certificates as to capacity for the following purpose:
“If you are unfit for any duties, it removes any possibility of any retraining or courses that I thought would be a possibility for Doris to engage in, so the purpose of me changing that was on discussion with Doris, I felt – I continue to feel – that attending that type of course would be appropriate for her and so I opened her up in that restricted manner reflecting that I think she could attend courses within those restrictions.”[17]
[17] T 42.
17 Dr Kruimink said that he was currently certifying the plaintiff as fit to work two days per week for 4 hours per day, but that otherwise the work restrictions as set out in the certificate which is the plaintiff’s Exhibit A continued. When asked what was the reason which motivated him to increase the plaintiff’s hours of employment from 3 hours per day, two days a week, to 4 hours per day, two days a week, Dr Kruimink said:
“My limited understanding of these training courses is that often they will involve attending a half-day session, you might attend for a morning, and if the restriction is 2 hours it’s not something that would be possible, so that’s why I increased that up to open up the possibility of Doris being able to attend any morning sessions.”
18 When asked as to his view as to the plaintiff’s maximal sustained capacity going forward to the future, he said:
“Doris attends physiotherapy, my understanding is two days a week, and that’s a fairly harrowing experience for Doris with quite a degree of discomfort and a need to rest afterwards so I would not – and the physio, I feel, will need to continue into the foreseeable future. So I would find it hard to form the opinion that she could work on those days, so I would say three days a week would be her maximal capacity going forwards and before she had her operation she was working 15 hours per week in modified duties and my opinion would be that she would certainly be no better now, almost certainly not as well as that time. So I would say she would struggle to get beyond the half-ay so three days a week, potentially 3½ hours or half a day whatever.”
19 Dr Kruimink described the plaintiff’s optimal pattern of work as involving a 5-minute break every hour and a 15 to 20-minute rest break in the middle of her work time, with the result that she might attend a workplace for 4 hours but be capable of only doing 3½ hours’ work during that time.[18] He said that he could see no prospect for change in the plaintiff’s condition having regard to the fact that a year has passed since her surgery.
[18] T 44
20 In cross-examination Dr Kruimink said:
•
that he did not think the plaintiff had a capacity to do her pre-injury duties;[19]
•
that following the second incident he did not believe that the plaintiff ever had a capacity to do more than 15 hours’ work per week involving modified duties;[20]
•
that at the beginning of this year he started to encourage the plaintiff to consider looking for part-time light duties or retraining;[21]
•
that in expressing his opinion as to the plaintiff’s capacity for employment in his most recent report,[22] his comment which related to the plaintiff’s capacity being two days per week for 2 to 3 hours was expressed on the basis of the plaintiff trying and assessing whether the hours were too much for her, or whether she could tolerate them and they might be increased.[23]
[19] T 51
[20] T 52
[21] T 52
[22] Plaintiff’s Court Book (“PCB”) 47
[23] T 55
21 At T55 the following passage of evidence appears:
[24] It was subsequently clarified that the reference to 10 hours, 2 hours or 15 hours was a reference to a maximum working capacity of hours per week.
“Q: Until Mrs Borg really attempts something like that you really don’t know what capacity in terms of hours and days that she might have, do you, it could be 10 hours, it could be 2 hours, it could be 15 hours, again couldn’t it?--- A: Yes, that is possible but I can only give my opinion.”[24]
22 The evidence continued:
“Q: It could be 4 hours a day, three days a week, you don’t know, do
you?---A: No. Q: And you can’t speculate but it may have some benefit in her ability to manage her pain and to cope with perhaps a light duties job?--- A: That’s possible.”
23 In re-examination, when Dr Kruimink was asked as to his opinion with respect to the plaintiff’s capacity, he responded:
“My opinion is that Doris does physiotherapy two days week, and I don’t think that she would be able to work on those days and that on the three remaining days in the week that she would be able to work no more than half a day. That would be my opinion. Now other things may be possible but I can only give my opinion as to what I think.
Q: Concerning the half-day, you adhere to what you said previously
in relation to 4 hours, 3½ hours?---A: Yes, that would be my opinion absolutely.”
24 The following evidence as to the plaintiff’s capacity for employment following the surgery undertaken on 1 April 2008 may be summarised as follows:
• Mr Michael Flaim:[25] [25] PCB 174
“Her condition in my view has stabilised and her capacity for work, although definitely present, is restricted and will remain restricted both in hours and in the tasks she is able to carry out.”
• Mr Russell Miller:[26] [26] PCB 175
“I do not believe she is fit for pre-injury work. She will only be suitable for working in sedentary type occupations mainly in a seated position but in a capacity to adjust her posture on a regular basis.”
• Mr Richard Bittar:[27] [27] Exhibit 2
“At this stage she would be fit to work on light duties if she could find such a position. I understand that she has been retrenched from her previous job.”
• Mr Billet:[28] “Ms Borg could not return to her unrestricted normal duties, noting that she has a neurological deficit in relation to the left side of her lumbar spine, at L5-S1. She should limit weight to 8 kilograms, she should control repetitive bending and she should sit or stand as the need arises. These restrictions should be maintained on a long-term basis. She should only work on a part-time basis.”
[28] DCB 30
25 Having regard to the serious exacerbation of the plaintiff’s symptoms which occurred in February 2008, I am of the opinion that the medical evidence which I should consider in arriving at a determination as to the plaintiff’s present capacity for work is that given by Dr Kruimink, together with that which is contained in the medical reports to which I have referred to above.[29]
[29] This is the only medical evidence which involves assessments of the plaintiff following her recovery from the surgery she underwent in April 2008
26 Although it was submitted on behalf of the defendant that the plaintiff’s capacity for work prior to the exacerbation of her symptoms and her surgery provided an indication of her present capacity for employment by reason of the fact that the effect of the surgery had been to restore her to her pre- exacerbation level of function, I do not accept this submission as there is no specific medical evidence to support it and the plaintiff’s evidence, which was largely unchallenged, was to the contrary.
27 It was further put on behalf of the defendant that the plaintiff’s attempts to rehabilitate herself following her surgery should be criticised on the grounds:
(i) that she did not pursue with any diligence the prospect of rehabilitation which might be available to her via the services of AMS; (ii) that she did not make use of the Internet or of any newspapers other than a local newspaper in searching for job opportunities which might be available to her; (iii) that she had not registered for employment with the Commonwealth Employment Services.
28 I do not find these criticisms of the plaintiff in any way persuasive. My impression of the plaintiff based upon:
(i) her demeanour in the witness box; (ii)
the absence of any challenge to the plaintiff’s evidence as to the severity of her disability and her symptoms;
(iii)
the plaintiff’s return to work within a short period of the occurrence of each of her accidents, and in particular the fact that she continued working for the defendant until her hours of employment were increased beyond her capacity.[30]
(iv)
the plaintiff’s concession that notwithstanding the severe level of pain and disability which she described in the course of her evidence, that she possessed some capacity for part-time work;
[30] In this regard I accept the evidence of Dr Kruimink that at no stage following the second incident did the plaintiff have a capacity to work for more than 15 hours in light modified duties.
was that the plaintiff had an appropriate attitude towards rehabilitation and re- training and that the reason for which she has not more vigorously pursued her investigations as to any re-training or employment opportunities which might be available lay:
(i) in the level of her symptoms and (ii)
the accuracy of the assessment of her working capacity by Dr Kruimink, namely that the plaintiff was at the present time fit to work only:
“two days per week, 4 hours per day in work involving light duties – no lifting – rest breaks as required – no prolonged sitting or standing.”
29 In reality, I am satisfied that Dr Kruimink’s comment:
“It would seem unlikely any prospective employer would take her
on with these restrictions.”[31]
[31] PCB 47
represents a realistic description of the true employment market which
confronts the plaintiff.30 Dr Kruimink has managed the plaintiff’s medical condition since 16 June 2004. I am satisfied, having had the opportunity of considering his sworn evidence, that the opinions expressed by him both in his medical reports and his evidence were well reasoned and reliable. Having regard to his long history of managing the plaintiff’s injury, I am of the opinion that he is well placed to express an opinion as to the plaintiff’s capacity to work both currently and in the longer term. I accept his evidence that the plaintiff’s capacity for performing light duties will be restricted for the foreseeable future to working for no more than 10.5 hours per week. I am satisfied that this represents the probable upper limit.
31 It was submitted on behalf of the plaintiff that a gross figure of $473.15 represented a realistic assessment of the plaintiff’s pre-accident earnings. I accept that submission, having regard to the fact that the figure is calculated on the basis of an average of the plaintiff’s earnings in the three taxation years which preceded her accident and does not take into account the income the plaintiff would have received during the three-year period following her injury. I accept the submission made on behalf of the plaintiff that the figure of $931.00, being the wage available to a customer service officer, represents a position which is generous to the defendant if this is the wage rate which is used in assessing the plaintiff’s earning capacity had the injury not occurred.[32] If the plaintiff were employed at the rate referred to above, she would earn $257.25 gross per week if she was capable of working 10.5 hours per week.
[32] Having considered the activities which the plaintiff would be required to carry out as a customer service officer, there is considerable uncertainty in my mind as to whether the plaintiff would be fit to perform all the activities involved in that occupation.
32 In the circumstances I am satisfied that the plaintiff has established that the consequences of her injury have been such as to occasion a loss of earning capacity which will be productive of a financial loss of greater than 40 per cent of the income which most fairly reflects the plaintiff’s earning capacity had her injury not occurred.
33 Finally, I am satisfied that by reason of her physical state, the plaintiff has no prospect of being rehabilitated or re-trained for employment in any capacity which would generate earning levels greater than those to which I have referred.
34 In the circumstances I propose to make an order granting leave to the plaintiff to bring a proceeding seeking damages both for pain and suffering and loss of earning capacity as a consequence of the injuries suffered by her on 19 November 2004 and 13 June 2004 in the course of her employment with the defendant.
35 After discussion with counsel, I will pronounce formal orders and hear the parties on the question of costs.
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