Bottomley v Western Health
[2015] VCC 643
•8 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04980
| GWENDA MAVIS BOTTOMLEY | Plaintiff |
| v | |
| WESTERN HEALTH (ABN 61 166 735 672) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2015 | |
DATE OF JUDGMENT: | 8 May 2015 | |
CASE MAY BE CITED AS: | Bottomley v Western Health | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 643 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the spine and shoulders bilaterally – psychological and psychiatric injury – Adjustment Disorder with Depressed Mood – pain and suffering damages – loss of earning capacity damages – whether statutory definitions have been satisfied
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(a) and s134AB(37)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and loss of earning capacity damages arising from injury to the plaintiff’s spine and psychological and psychiatric injury arising out of or in the course of the plaintiff’s employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr J L Batten | Hall & Wilcox |
HIS HONOUR:
1 This is an application brought by Originating Motion filed 14 October 2014 by the plaintiff applying for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the defendant on 12 November 2012.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity. The plaintiff’s claim is that she has suffered injury to her spine and bilateral shoulders during the course of her employment with the defendant and she seeks to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of that injury.
3 The plaintiff also claims that she has suffered a psychiatric injury as a result of an incident in the course of her employment with the defendant and she seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity as a result of that injury.
4 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff’s husband, Dennis Bottomley, gave evidence and was cross-examined.
· Exhibit P1, the Plaintiff’s Court Book (“PCB”), pages 23-39 inclusive and pages 41-125 inclusive.
· Exhibit D1, the Defendant’s Court Book (“DCB”), pages 1-30F inclusive and pages 57C and 57D.
5 The plaintiff’s application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s spine and also to the plaintiff’s bilateral right and left shoulders.
6 The plaintiff also brings an application under the definition of “serious injury” contained in s134AB(37)(c) of the Act which requires the plaintiff to prove that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The severe mental or severe behavioural disturbance or disorder is said to be Adjustment Disorder with Depression and symptoms of Post-Traumatic Stress Syndrome.
7 Mr Batten, on behalf of the defendant, whilst not conceding either a serious injury in respect of pain and suffering for injury to the spine, shoulders or on a psychiatric basis, stated that the real issue was “a short point”. The short point Mr Batten stated was that the plaintiff intended to retire in May 2013 and consequently, would not be in employment at the end of the three-year period required under the loss of earning capacity provisions in November 2013.
8 In a case where the defendant does not concede an issue in the application made by the plaintiff, the onus is still upon the plaintiff to prove her case. In this case, that applies both to the physical injury application and the psychiatric injury application.
9 The plaintiff was cross-examined during the course of this application. None of the plaintiff’s treating practitioners or medico-legal examiners were cross-examined in this case. The plaintiff’s husband was cross-examined by the defendant.
The statutory scheme
10 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
11 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, that such a loss must be to the extent of 40 per cent more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Supra
12 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
13 The plaintiff was born in 1947 and is currently sixty-seven years of age.[4] The plaintiff lives with her husband in a semi-rural setting. She was born and raised in the same district as a member of a farming family. The plaintiff has two children, aged in their forties[5]. The plaintiff’s son currently lives with the plaintiff and her husband.[6]
[4]PCB 23
[5]PCB 23
[6]T21
14 The plaintiff left school at the age of fourteen. Upon leaving school, she commenced work as a typist with Paynes Bon Marche. After working there for some five years, she changed her employment to a seamstress with Yakka. Upon completing her work at Yakka, the plaintiff moved to Malleys, working on the production line from 1973 to 1975.[7]
[7]PCB 24
15 The plaintiff then commenced work in 1992 at the Sunbury Elderly People’s Home. Upon commencing that work, she was interested in becoming a Nurse. During the period of 1995 and 1996, the plaintiff completed a Diploma of Nursing (Division 2).[8]
[8]PCB 24
16 Since 1996 until the date of her injury on 12 November 2012, the plaintiff worked as a Division 2 Nurse for Western Health. Her last place of employment was at the Sunshine Hospital.[9]
[9]PCB 24
Injury with the Defendant
17 The plaintiff had worked for the defendant, Western Health, from 1996 until 12 November 2012. The plaintiff’s position was as a Division 2 Nurse in the Geriatric Evaluation Management Unit at the Sunshine Hospital. The plaintiff’s normal duties required her to perform general nursing duties, such as showering patients, toileting patients, lifting patients into wheelchairs and feeding patients. On occasions, she was required to empty catheter bags for patients.[10]
[10]PCB 24
18 As part of the plaintiff’s duties she was required to attend the Secure Geriatric Evaluation Management Unit next to her usual place of work. In the Secure Geriatric Evaluation Management Unit, she was to relieve workers within that Unit for one hour whilst they took their meal break. The plaintiff had been required to do this over a number of years and had requested a secure pass card in order to access and egress from that locked Unit. At the time of the injury, the plaintiff had not received such a card, so she was reliant upon fellow workers to allow her into the Unit and to allow her to exit the Unit.
19 In the early morning of 12 November 2012, the plaintiff was relieving a fellow staff member in the Secure Geriatric Evaluation Management Unit at the Sunshine Hospital. On that evening, she had been asked to relieve two separate Nurses in sequence.
20 The plaintiff described the events that bring this application to court as follows:
“Not long after Ophelia left the Secure GEM Ward, the Corridor Patient got out of his bed and started going into other patients’ rooms. Tam and I directed him not to do this on two occasions. The Corridor Patient then assaulted me inside the nurses’ station. This assault included a blow to the left side of my head, which caused me to fall to the floor. He also attempted to assault me with a chair. Tam and I had tried to close the door to the nurses’ station but the Corridor Patient had forced his way in. A short time later he attempted to assault me with a chair in the nurses’ station again. I thought he was going to kill me. I remember that I screamed ‘Code’ to Tam. When she picked up the phone receiver nearby, the Corridor Patient grabbed the phone and threw it across the room.”[11]
[11]PCB 26, paragraph 18
21 As a result of the assault by the “Corridor Patient”, the plaintiff was taken by wheelchair to the Emergency Department of the Sunshine Hospital. She remained in hospital for approximately six hours. The plaintiff complained of pain in her shoulders, and her head was sore where the patient had punched her. The plaintiff has not worked in any capacity as a Division 2 Nurse or any other capacity since 12 November 2012.[12]
[12]PCB 26
Medical treatment
22 The plaintiff was originally taken to the Emergency Department of the Sunshine Hospital. Her diagnosis was that she had concussion, and a CT scan was conducted on her face, showing no fractures to her head.[13]
[13]PCB 26
23 In this case, there is no dispute as to the medical treatment that the plaintiff has subsequently received as a result of the assault on her on 12 November 2012. I will summarise the medical treatment.
24 The plaintiff attended her general practitioner, Dr Philip Wood, on 14 November 2012.[14] The plaintiff was referred to Ms Thanh Tran, physiotherapist, at the Sunbury Physiotherapy Clinic and Ms Teresa Perri, psychologist. The plaintiff first attended Ms Tran on 19 November 2012 and Ms Perri on 23 November 2012[15]. The plaintiff has continually received counselling and psychological support from Ms Perri from that time until the present time, with the only breaks in treatment being as a result of the non-financing of the sessions with Ms Perri by the worker’s compensation insurers.
[14]PCB 27
[15]PCB 27
25 On 9 January 2013, the plaintiff was referred to Dr Christopher Pullen, orthopaedic surgeon, who diagnosed the plaintiff with a right rotator cuff tear in her right shoulder. The left shoulder showed no tear but the plaintiff was suffering from impingement indicative of capsulitis.
26 On 26 March 2013, the plaintiff underwent surgery from Dr Pullen for repair to her right shoulder rotator cuff.[16]
[16]PCB 27
27 On 29 January 2014, the plaintiff had a CT scan of the lumbar spine which displayed disc bulges and nerve root compression.[17]
[17]PCB 28
28 The plaintiff was then referred to Dr Michael C-Ong, pain management and rehabilitation consultant. The plaintiff saw Dr C-Ong on 3 March 2014 and she was commenced on a pain management program beginning in May of 2014.[18]
[18]PCB 28
29 The plaintiff was referred to Mr Tiew Han, consultant neurosurgeon, by her general practitioner in April 2014. Mr Han had previously treated the plaintiff for her aneurysm in 2004.
30 On 24 July 2014, Mr Han organised an MRI scan of the plaintiff’s whole spine.[19] Upon inspection of the MRI scan, Mr Han recommended and performed an injection to the plaintiff’s neck at the C6-7 level for pain relief.[20]
[19]PCB 37
[20]PCB 37 and PCB 78
31 In December 2014, Dr Wood referred the plaintiff to Dr Byron Rigby, psychiatrist.[21] The plaintiff has seen Dr Rigby on five occasions since that time, and continues to see Dr Rigby.
[21]PCB 36
Medical Opinions
Dr Philip Wood, General Practitioner
32 Dr Philip Wood is the plaintiff’s general practitioner and has been treating the plaintiff since the day of the injury until the present time.
33 Dr Wood prepared a report dated 20 February 2014. In his report, Dr Wood sets out in detail the ongoing treatment for the plaintiff. He sets out his diagnosis as follows:
“1. Headaches and neck spasm secondary to trauma and stress
2. Tear to the supraspinatus tendon of the right shoulder
3. Inflammation and bursitis of the left shoulder
4. I wonder if the spasm in her upper spine has aggravated her ageing process of her lumbar spine, such that now she gets lower back pain also.
5. Anxiety and depression secondary to being assaulted and anxiety secondary at the thought of returning to work.”[22]
[22]PCB 74
34 Dr Wood’s opinion was that the plaintiff could return to work in respect of her shoulder injury. His recommendation is that the plaintiff return to work for alternative duties in respect to her left shoulder injury.
35 Dr Wood states as follows, in respect of the psychological injury:
“With respect to her psychological injury, Gwenda is not fit to return to work. She has no capacity for work with respect to her depression and anxiety.”[23]
[23]PCB 75
Ms Teresa Perri, Psychologist
36 Ms Perri prepared three reports in respect of this matter dated 3 June 2013, 5 December 2014 and 12 April 2015.
37 In her first report dated 3 June 2015, Ms Perri describes the symptoms of the plaintiff as classic symptoms of Post-Traumatic Stress Disorder based on the diagnostic criteria of DSM-IV and on the DASS, a scale of Depression, Anxiety and stress was moderately high on Depression.
38 Ms Perri took a history from the plaintiff of recurring nightmares and that her sleep was interrupted by those nightmares. She also took a history from the plaintiff that there were recurrent and intrusive thoughts which accompanied extreme hypervigilance on the part of the plaintiff.[24]
[24]PCB 42
39 In her final report dated 12 April 2015, Ms Perri stated that the plaintiff was obviously unfit to return to any form of nursing duties. She stated that given the physically limited mobility of the plaintiff and her psychological and emotional vulnerability, her work capacity continues to be extremely reduced.[25]
[25]PCB 48
Mr Christopher Pullen, Orthopaedic Surgeon
40 Mr Pullen prepared a report dated 3 June 2013. Mr Pullen diagnosed the plaintiff as suffering from rotator cuff tendinosis without tear on the left side. In the right shoulder, Mr Pullen diagnosed a full-thickness tear of the supraspinatus tendon measuring 13 millimetres by 7 millimetres in area.
41 On examination of the plaintiff on 9 January 2013, Mr Pullen noted that the plaintiff had restriction in both active and passive motion of both shoulders.
42 Mr Pullen performed a sub-acromial decompression and rotator cuff repair on the right shoulder of the plaintiff on 26 March 2013.
43 On review of the plaintiff on 29 May 2013, Mr Pullen thought that the plaintiff was progressing well following her surgery. He encouraged her to continue her treatment with the physiotherapist.
44 Mr Pullen’s last review of the plaintiff was on 29 May 2013 and at that stage, the treatment for the plaintiff’s left and right shoulders was in the early stages after surgery.
Dr Michael C-Ong, Pain Management and Rehabilitation Consultant
45 Dr C-Ong prepared three reports dated 14 April 2014, 30 January 2015 and 15 April 2015.
46 Dr C-Ong first saw the plaintiff on 3 March 2014. He diagnosed the plaintiff as suffering from the following conditions:
“Chronic Shoulder Pains due to Right shoulder tear and Left shoulder Sprain. Right hand dominant.
Chronic Lower Back Pain / Strain
Chronic Neck Pain and secondary dizziness
Depression / Anxiety
Adjustment Disorder
PTSD.”[26]
[26]PCB 56
47 Dr C-Ong, in his final report dated 15 April 2015, stated that the plaintiff had made some progress after completing the pain program. In that report, he confirmed his diagnosis as set out on page 69 of the PCB:
“Chronic Shoulders Pains due to Right shoulder tear and Left shoulder Sprain. Right hand dominant.
Chronic Lower Back Pain / Strain from musculoskeletal and myofascial components.
Chronic Neck Pain and secondary dizziness.
Depression / Anxiety
Adjustment Disorder
Post Traumatic Stress Disorder (PTSD).”[27]
[27]PCB 69
48 Dr C-Ong’s opinion was that the plaintiff was not fit for pre-injury employment or duties. He stated that, from a psychological injury point of view, she has no work capacity.[28]
[28]PCB 70
49 In Dr C-Ong’s opinion, the plaintiff had limited ability to work in alternative duties. In his view, he stated that the physical and psychological injuries are related and hence, overall, she was unable to return to any duties at the time of making his report in April 2015.[29]
[29]PCB 70
50 Importantly, Dr C-Ong was of the opinion that the plaintiff was permanently impaired as a result of her psychological injury from working into the future. He regarded the plaintiff’s prognosis as guarded and that her condition had largely stabilised.
Mr Tiew Han, Neurosurgeon
51 Mr Han prepared two reports dated 24 November 2014 and 27 April 2015. Mr Han had previously treated the plaintiff in 2004 when she presented at the Epworth Hospital with headaches. He had diagnosed a cerebral aneurism, and has continued to treat and monitor the plaintiff’s condition.
52 The plaintiff consulted Mr Han on 1 October 2014 in respect of her headaches and neck and left arm pain. Mr Han performed a left-sided transforaminal injection at the C6-7 level on 6 August 2014. He prescribed the plaintiff with Lyrica, Endep, paracetamol and Panadeine Forte to control her pain at that time.[30]
[30]PCB 78
53 Mr Han diagnosed the plaintiff as having suffered disc osteophyte complex at C6-7 with compression onto the C7 nerve root on the left side. He also diagnosed the plaintiff as suffering a disc prolapse at L4-5 with mild to moderate vertebral narrowing, as well as moderate-sized disc prolapse on the L3-4 on the left side with impingement onto the L4 nerve root.[31] In Mr Han’s opinion the back and neck condition related to the plaintiff’s incident at work on 12 November 2012. He opined as follows:
“It is difficult to ascertain as to whether or not she has pre-existing disease at C6/7 prior to the assault. However nonetheless, the pain started after the assault and hence, I believe the assault had resulted in the C6/7 disc protrusion.”[32]
[31]PCB 78
[32]PCB 79
54 In his later report dated 27 April 2015, Mr Han confirmed his diagnosis as follows:
“The diagnosis is disc / osteophyte complex at C6/7 level with compression onto the C7 nerve root on the left side.
In the lumbar spine she had a disc prolapse at L4/5 with mild to moderate vertebral narrowing. There was a moderate disc prolapse at L3/4 on the left side with impingement onto the L4 nerve root.”[33]
[33]PCB 80j
55 Mr Han was guarded in his prognosis for the plaintiff. He stated that she had continued to have neck pain since 2012 and it was likely that it would continue with chronic neck and shoulder pain for some time to come.
Mr Thomas Kossmann, Orthopaedic Surgeon
56 Mr Kossmann examined the plaintiff and prepared two reports on a medico-legal basis for the plaintiff in this case. The reports were dated 29 August 2013 and 10 April 2015.
57 Mr Kossmann’s opinion was:
“… [The plaintiff] has been diagnosed with severe degenerative changes in her cervical and lumbar spine, and has significant pathology in the right and left shoulder joints. I therefore believe that her present pain restrictions, disabilities and incapacities derive from the injuries, which she suffered to her cervical and lumbar spine and both her shoulders as a result of the attack from the 12 November 2012. …”.[34]
“In my opinion [the plaintiff] has no work capacity to return to pre-injury work, not only from the psychological effects of the attack but also as a result of the orthopaedic injuries.”[35]
[34]PCB 105j
[35]PCB 105i
Professor Stephen Davis, Neurologist
58 Professor Davis prepared a report dated 2 September 2013. Professor Davis’ opinion was that, from a purely physical viewpoint, the plaintiff was not fit for pre-injury work but would be potentially fit to start a graduated return to part-time work of a light duties nature.[36]
[36]PCB 110
59 Professor Davis noted that in addition to chronic pain problems the plaintiff had exhibited features of severe Post-Traumatic Stress Disorder during the course of his examination of the plaintiff.[37]
[37]PCB 110
Dr Byron Rigby, Psychiatrist
60 Dr Rigby is the treating psychiatrist for the plaintiff. He prepared two reports dated 5 April 2015 and 29 April 2015. The plaintiff was referred to Dr Rigby by her general practitioner, Dr Philip Wood, on 18 December 2014.
61 Dr Rigby first saw the plaintiff on 19 February 2015. On examination, Dr Rigby was of the opinion that the symptom pattern indicated by the plaintiff was of Major Depressive Disorder of considerable severity.[38] Dr Rigby treated the plaintiff with somatic attentional technique or meditation technique known to have an anxiety reducing effect. The reason that Dr Rigby engaged in this procedure was that the plaintiff was reluctant to take any anti-depressants.
[38]PCB 80d
62 Dr Rigby’s diagnosis of the plaintiff was Major Depression secondary to assault, physical injury, pain and disability or, alternatively, Adjustment Disorder with Mixed, Anxious and Depressed Mood, with Post-Traumatic Stress Disorder (Chronic).[39]
[39]PCB 80e
63 Dr Rigby’s opinion was that the plaintiff suffered from severe Adjustment Disorder equivalent to Major Depression, together with established Post-Traumatic Stress injury consequent on the serious assault. In his opinion the plaintiff had no work capacity and will not be capable of gainful employment in the future. He described this as a serious and unacceptable loss for the plaintiff, who was proud of her work capacity, loved her work and had the intention to continue working until she was unable to do so.[40]
[40]PCB 80f
64 In his final report dated 29 April 2015, Dr Rigby stated that the plaintiff’s condition and the assault upon her had generated physical and psychiatric symptoms and incapacities.
65 In relation to the psychiatric incapacities, which was his area of expertise, Dr Rigby diagnosed Adjustment Disorder (equivalent to Major Depression) and the persistence of Post-Traumatic Stress symptoms. Dr Rigby divided these into three elements:
(a) Psychiatric symptoms deriving from ongoing pain;
(b) Psychiatric symptoms deriving from ongoing incapacity to perform activities; and
(c) Psychiatric symptoms deriving from the precipitating event itself (the assault).[41]
[41]PCB 80p and 80q
66 Dr Rigby’s opinion was as follows:
“For the reasons cited above, regardless of the actual physical incapacity, and on the grounds of psychiatric incapacity alone, I regard Ms Bottomley as incapable of gainful employment for an indefinite period.”[42]
[42]PCN 80q
Dr Nigel Strauss, Psychiatrist
67 Dr Strauss examined and prepared a report for the plaintiff on a medico-legal basis dated 31 July 2014.
68 In 2013, Dr Strauss’s opinion was that the plaintiff had developed Post-Traumatic Stress Disorder and Major Depression as a result of the assault upon her. He noted that the plaintiff’s physical injuries contributed to her psychiatric problems but that the incident itself has been a major cause of her psychiatric reaction and condition. In Dr Strauss’s opinion the plaintiff was unable to work from a psychiatric perspective alone. He noted that she was unfit for work.[43]
[43]PCB 93
Ds Carol Burton, Clinical Neuropsychologist
69 The plaintiff was examined by Dr Burton for medico-legal purposes and she prepared a report dated 6 October 2013. Dr Burton diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder with Anxiety, and Major Depression.
70 In Dr Burton’s opinion the plaintiff was “not incapacitated for work as a consequence of any cognitive or neuropsychological dysfunction but is incapacitated for work as a consequence of her psychiatric condition”.[44]
[44]PCB 121
The Defendant’s Medical Opinions
Dr David Ho, Occupational Health Consultant
71 Dr Ho examined the plaintiff on behalf of the defendant for the purposes of the ongoing management of her claim with review of the plaintiff’s medical and other health services and to consider the plaintiff’s weekly payment entitlements. He prepared a report dated 4 December 2013. Dr Ho noted that when the plaintiff was being examined by him, she was very emotional and tearful when relating the incident.[45]
[45]DCB 3
72 Dr Ho noted in the comments section of his report that the plaintiff suffered from a Post-Traumatic Stress Syndrome as a consequence of the assault. He also noted, from a physical point of view, the plaintiff currently continues to have ongoing symptomatic post-surgical repair of a torn rotator cuff tendon in her right shoulder which is still work related. She has ongoing impingement syndrome in her left shoulder.[46]
[46]DCB 7
73 In respect of the plaintiff’s psychological condition, Dr Ho was of the opinion that any return to work plan should be in a place or location away from the Sunshine Hospital. In his view the plaintiff’s psychological state was hampering her recovery and the return to work.[47]
[47]DCB 9
74 Dr Ho was of the opinion that the plaintiff had a limited physical capacity to return to work, and he set out a set of restrictions for the plaintiff in relation to her ability to lift weights and the like.[48]
[48]DCB 8
75 Dr Ho’s opinion is dated and is now some eighteen months old. The plaintiff’s condition on the evidence does not seem to have improved since that examination by Dr Ho. Consequently, his opinion is not to be preferred over the more current treating opinions relating to the plaintiff’s condition.
Dr Shashjit Varma, Consultant Psychiatrist
76 The plaintiff was sent to Dr Varma for medico-legal examination by the defendant. Dr Varma has prepared reports dated 18 June 2013, 13 November 2013, 18 December 2013 and 11 September 2014.
77 In his first report dated 18 June 2013, Dr Varma diagnosed the plaintiff as suffering from an Adjustment Disorder secondary to assault, and the shoulder injury. At that time, Dr Varma was of the opinion that the plaintiff had no current capacity for pre-injury duties and hours at her current workplace or even at an alternative workplace.[49] Dr Varma stated that, from a psychiatric point of view, the plaintiff had no current work capacity.
[49]DCB 14
78 In his later report dated 13 November 2013, Dr Varma confirmed the previous diagnosis and opinion that the plaintiff did not have a current work capacity from a psychiatric point of view.[50] Dr Varma noted that the plaintiff did not have a current work capacity because she was depressed, anxious, frustrated and had ideas of hopelessness and worthlessness. She has constant pain in both her arms and is unable to do even day-to-day activities without having to seek help.[51]
[50]DCB 23
[51]DCB 25
79 In his third report dated 18 December 2013, Dr Varma had seen the report of Dr David Ho dated 4 December 2013. As a result of that report, Dr Varma changed his opinion to state that, “from a psychiatric point of view [the plaintiff] has a current work capacity on a part time basis in a limited manner as recommended by Dr Ho”.[52] I note that Dr Ho was stating that the plaintiff had a limited work capacity based on her physical injuries only. Dr Ho did not support the idea that the plaintiff had a work capacity in respect of her psychiatric injuries.
[52]DCB 30
80 In his final report dated 11 September 2014, Dr Varma’s opinion was that the plaintiff was suffering from an Adjustment Disorder secondary to the neck and back pain. Dr Varma’s opinion was the plaintiff does not have a current work capacity.[53]
[53]DCB 30A-30D
Conclusion
81 On the preponderance of all of the medical evidence in this case it is clear that the plaintiff has suffered injury to her spine, both to her neck and to her lower back. This injury was a result of the assault by the “corridor patient” upon the plaintiff on 12 November 2012.
82 The preponderance of the medical evidence in respect of the psychiatric condition of the plaintiff is that she suffers from Post-Traumatic Stress Disorder and an Adjustment Disorder with Depressed Mood or the equivalent of Major Depression. All of the medical evidence indicates that the plaintiff has no current work capacity and that this is likely to last into the foreseeable future.
The consequences for the Plaintiff of the injuries arising out of the assault on 12 November 2012
83 In support of her application, the plaintiff swore two affidavits dated 22 May 2014 and 4 April 2015. In those affidavits and in her evidence given in this application, the plaintiff outlined the consequences of the injury received on 12 November 2012.
Sleep
84 The plaintiff has given evidence that she does not sleep well. She states that she had trouble getting to sleep and then staying asleep. This is in part due to the fact that she suffers pain from her neck, back and shoulders.[54] The other aspect of the plaintiff’s sleep disturbance is that she has nightmares as a result of the assault on her.[55] The plaintiff noted that her nightmares have become worse in recent times and that these interfered with her sleep.[56] The plaintiff has given a history that her sleep is interrupted by the nightmares, featuring aspects of the incident or versions of the assault upon her.[57]
[54]PCB 32
[55]PCB 32 and 35
[56]PCB 35
[57]PCB 42
85 I find that the fact that the plaintiff suffers from interruption to her sleep from both physical pain as a result of her injuries to her neck, back and shoulders is a very considerable consequence for the plaintiff. I also accept that the plaintiff’s sleep is interrupted by nightmares that she suffers as a result of the assault upon her. The fact that the plaintiff’s sleep is interrupted and that she is unable to get a good night’s rest is a very considerable consequence for her.
Pain
86 The plaintiff deposed to being in constant pain in respect of her shoulders, low back and neck.[58] The plaintiff has reported to each of her treating medical practitioners that she is in pain as a result of the injuries suffered in the assault upon her. I accept that the plaintiff is constantly in pain, in particular in relation to her spine, and that this is a very considerable consequence for the plaintiff.
[58]PCB 30
Medication
87 The plaintiff gave evidence that she was not a person who liked taking medication. This related, in particular, to any anti-depressant-type medication. Nevertheless, the evidence is clear that the plaintiff has been prescribed and she has taken Lyrica, Panadol Osteo, Endep and Panadeine Forte for the control of her pain, particularly when it is severe.[59]
[59]PCB 36 and 78
88 Dr C-Ong has noted in his report dated 30 January 2015 that the plaintiff’s medications were Panadol Osteo, Celebrex, Endep, Losec, Amlodipine and Cartia.[60]
[60]PCB 621
89 The fact that the plaintiff is prescribed, and mostly complies with, the directions of her treating medical practitioners to take medications, including Panadeine Forte and Endep, is a very considerable consequence for the plaintiff. The need for the plaintiff to continue to take such medication for an extended period of time and into the foreseeable future is indicative of the level of pain that the plaintiff suffers.
Activities of daily living
90 The plaintiff stated that she has a limited ability to do the housework. She says that she cannot do any of the vacuuming and has a limited ability to wash the floors and do any dusting.[61] The plaintiff stated that she has a limited ability to continue with the gardening.[62] When the plaintiff was cross-examined about her ability to partake in activities with her grandchildren, the following evidence was given:
[61]PCB 30
[62]PCB 31 and 35
Q:“What I’m suggesting to you is that you have and continue to perform all a range of grandmotherly duties with your grandchildren?---
A: If I have to crawl, I’ll continue to do that.”[63]
[63]T21, L5-9
91 I accept that the plaintiff’s activities of daily living have been considerably limited by the impact of her injuries, both psychiatric and physical, upon her. These limitations of activities of daily living are a very considerable consequence for the plaintiff.
Ongoing treatment
92 The plaintiff continues to see her general practitioner, Dr Wood, and Dr Rigby, the psychiatrist. The treatment given to the plaintiff by each of these practitioners is necessary for the amelioration and moderation of her symptoms. The fact that the plaintiff has to continue to see medical practitioners on an ongoing and consistent basis is a very considerable consequence for her.
Loss of work
93 I accept that the plaintiff was intending to continue her work until February 2016 in order to achieve the twenty years’ nursing career.[64] The fact that this incident on 12 November 2012 interrupted her ongoing working life is a very considerable consequence for her. The plaintiff had recovered from an aneurism in 2004 and resumed her employment. She had continued to work for approximately eight years up until the time of the incident the subject of this application.
[64]PCB 33
94 The fact that the plaintiff has suffered the loss of her career and enjoyment from work in the circumstances where the plaintiff left school at age fourteen and then returned to education after her children had grown up and obtained a qualification for nursing, I accept that the loss of her ability to work in her chosen profession is a very considerable consequence for her. I accept that the basis for the plaintiff being unable to attend her work is the pain levels as a result of the physical injury to her spine and, secondly and independently, the psychiatric reaction resulting in her being too frightened to attend work.[65]
[65]T50
The litigated issue in this application
95 The true issue in this case is what is the plaintiff’s loss of earning capacity?
96 The method for assessing loss of earning capacity is set out in s134AB(38)(f) of the Act:
“(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing —
(i) the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is —
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment —
as at that date, whichever is the greater, and —
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
97 The plaintiff, at the time of injury, was earning $69,194 gross per annum in the taxation year ending 30 June 2012.
98 The undisputed evidence of the plaintiff was that at the time of her injury, she was working four 10-hour night shifts per week as a Division 2 Nurse with the defendant at the Sunshine Hospital.[66] It is also accepted evidence in this application that the plaintiff has not worked in any capacity since the day of her injury on 12 November 2012.[67] The plaintiff agreed she had not looked for employment at any other place since the time of her injury.[68]
[66]T47, T24
[67]T22
[68]T23
99 The provisions of s134AB(38)(f) were considered in Acir v Frosster Pty Ltd[69] by Forrest AJA, where he stated:
[69][2014] VSC 454
“165 Section 134AB(38)(f) of the Act requires the Court to examine a variety of scenarios to determine which most fairly reflects the worker’s earning capacity. Only (a) below is based on proof of historical facts, while (b) to (d) require findings as to hypothetical situations. In the period of three years before the injury the Court considers:
(a)the gross income that the worker was earning during the period of three years before and after the injury – proved on the facts,
(b)the gross income that the worker was capable of earning from personal exertion – a past hypothetical, and in the period of three years after the injury:
(c)the gross income the worker would have earned from personal exertion – a future hypothetical,
(d)the gross income the worker would have been capable of earning from personal exertion – a future hypothetical.
The Court must then determine which of these scenarios (if more than one is applicable on the evidence) most fairly reflects the earning capacity of the worker without injury.
166 In most cases, the inquiry will be relatively simple, the wages at time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and prospects of promotion. However, at times, scenarios (b) and (d) may need to be considered, such as, where it is necessary to examine the capabilities or capacity of the worker in terms of wages which could have been potentially earned or were prospectively available post-injury (e.g., if he or she was not working full-time at the time of the injury).
167 The essence, then, of the inquiry is to fix a figure which “most fairly” reflects the earning capacity of the injured worker, absent the subject injury. As I have said, usually the inquiry in determining the figure will be restricted to questions of promotion, increase in salary or loss of employment opportunity – all being said to be relevant to determining the figure that most fairly reflects the worker’s earning capacity without injury. This case, as I have noted, starkly raises a point which does not appear to have been considered in the post: the happening of an unrelated supervening event which, on one view, extinguishes the worker’s earning capacity and on any view would have caused him to cease working in the three year post-injury period.”
100 The defendant’s case on the issue of loss of earning capacity was that the plaintiff was going to retire in May of 2013, some six months after the injury the subject of this application. Counsel for the defendant submitted there was no authority directly on this point of an injured worker’s “proposed retirement” in the three-year period after injury.
101 In Acir’s case, the plaintiff was inflicted with a cirrhotic liver condition in the relevant period; that is, the three years after the injury. The illness was described as a “supervening event”.[70] The Court held that a supervening event should not be taken into account when fixing a representative figure for “earning capacity” under s134AB(38)(f).[71] The Court distinguished between the interpretation of s134AB(38)(f) as a gateway provision for bringing a claim for damages for loss of earning capacity and an assessment of damages. Forrest AJA sets out, in Acir’s case:
[70]Acir v Frosster Pty Ltd at paragraph 170
[71]Acir v Frosster Pty Ltd (supra) at paragraph 170
“173 Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It, I think, is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard, I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
174 Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury. Rather, it requires the Court to fix a figure which “most fairly reflects the worker’s earning capacity” without injury.
175 Fifth, the legislature chose to use the expression ‘earning capacity’. Traditionally, this expression has been used in the context of loss of earning capacity where a determination is made of the loss of the ability of the injured plaintiff to earn money or money’s worth by looking at factors relating to an individual’s body and mind and external factors such as the availability of work. It follows, I think, in the context of s134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of the injury. The consideration of the period of the three years after the injury is confined to these matters. On this analysis a Court would be entitled to look at a worsening of a pre-injury condition affecting a worker’s capacity before the injury, but not to an independent supervening medical condition which would be a consideration solely at the damages trial. In this case Mr Acir’s condition was asymptomatic until at least February 2006 when the liver function tests, ordered by Dr Munir, revealed the abnormality.
176 Sixth, as I see it, the primary purpose of the without injury provisions of the sub-section is to determined earning capacity as at the date of injury but also to permit variations where that inquiry does not allow an accurate reflection of the earning capacity of the worker. If this be the true purpose, it would militate against consideration of independent supervening events.
177 Seventh, if Frosster’s argument is accepted, the arbitrary nature of the exercise becomes self-evident. A worker could be hit by a bus and be placed in a vegetative state one day before the expiry of the three year post-injury period and, on Frosster’s argument, that would eliminate his work capacity, whilst, if it occurred one day after the three year period, it would be disregarded. Moreover, as this case demonstrates, a worker may have a nil capacity due to the supervening event during the three year window period but his or her condition may be ameliorated by medical treatment or may naturally improve after the period ceases. Such capricious results could not, I think, have been intended by the legislature.
178 Finally, there is no irremediable injustice to Frosster; it is not shut out from running the argument concerning the supervening event in the damages trial. Quite the opposite, it will be able to assert (as it does) that, in determining loss of earning capacity, the supervening event may, on one view, have eliminated Mr Acir’s earning capacity.”
102 In this application, the supervening event would be the “proposed” retirement of the plaintiff. The plaintiff’s “without injury” earnings is at least $69,000 gross per annum.
103 The “after injury” earnings can be calculated on two bases: The plaintiff must prove:
(a) her gross earnings on an annualised basis (at the date of the hearing, 30 April 2015) are less than 60 per cent of comparative “without injury” earnings. In this case, the plaintiff has not earned any income from personal exertion; or
(b) the gross income which she is capable of earning in suitable employment (on an annualised basis) as at 30 April 2015, is less than 60 per cent of the comparative “without injury” earnings figure.
104 “Suitable employment” is defined in s5 of the Act. For the purposes of this case, the defendant did not make submissions based on the suitable employment factors. The defendant relied on the submission that the plaintiff was going to retire in May of 2013 and hence would not be in employment at the end of the three-year period after the injury; ie 12 November 2015. The defendant’s case depends on a finding of fact about the plaintiff’s future plans for her working life for the period 12 November 2012 to 12 November 2015.
105 Counsel for the defendant relied upon the authority of The Herald & Weekly Times Ltd v Jessop:[72]
“We agree with Ms Jessop’s submission that, for the purposes of s134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”
[72][2014] VSCA 292, paragraph 53
106 The submission was that the plaintiff was not willing to work after the injury, particularly in light of her retirement plans. The statement in Jessop’s case is consistent with the authority set out in Acir’s case. The defendant’s submissions rely on a finding of fact the plaintiff was retiring in May 2013.
The short point
107 Mr Batten, counsel on behalf of the defendant, submitted the plaintiff was going to retire in May 2013 and, consequently, at the end of the three-year period, November 2015, would not be in employment. He referred to this as “a short point case, regrettably”.[73]
[73]T14
108 The plaintiff gave evidence in this application and was cross-examined. The plaintiff adopted her two affidavits dated 22 May 2014 and 1 April 2015. She confirmed that the contents of the affidavits were true and correct. The plaintiff stated that she had renewed her Nurse registration every May and that she was currently registered as a Division 2 Nurse at the time of giving evidence.[74] She stated that “I’d be back there tonight if I was able”.[75] The plaintiff was clearly stating to the Court that her intention was to continue her work as a Nurse.
[74]T18
[75]T19
109 The plaintiff agreed that in approximately September 2012, she had a conversation with her supervisor, Gwenda Horley, about retirement in May 2013. The plaintiff stated:
A:“I remember the conversation. She came up to me in the corridor and asked, and said, ‘Gwen, when are you going to retire? When are you thinking of retiring?’ I thought it was unprofessional, I thought it was very rude and very intimidating, because I do my job well, and I was just shocked. I mean I think I did give some sort of an answer, but when you’re caught out like that – you know.
Q:Was it your intention to retire at the time you spoke to her?---
A:Retirement really doesn’t sit with me, it didn’t come into my vocabulary. I loved my job.”[76]
[76]T19, L1-11
110 The plaintiff thought the approach by Ms Horley was rude, intimidating and unprofessional. The plaintiff stated:
Q:“But it wasn’t her job to find out who’s going to be around and get – as the Nursing Unit Manager, to find out from longstanding members of staff what their future plans were?---
A:I think there’s a time and a place, and I thought her office would’ve been a nice place to have asked me.
Q:She says that she did ask you, do you accept that she did ask you about your retirement plans?---
A:Yes.
Q:And she says that you told her that you wouldn’t be renewing your nursing registration in May 2013. You said that, didn’t you?---
A:I cannot be sure that that’s what I said.”[77]
[77]T25, L3-12
111 I accept these answers of the plaintiff as honest and frank. The plaintiff volunteered that at or about the time of her conversation with Ms Horley, there were proposed changes to her duties in respect of dispensing medication to patients. The plaintiff expressed a concern about doing further studies so she could perform the proposed work changes of dispensing medication to patients. The plaintiff conceded this issue may have been on her mind when she spoke about the renewal of her registration in May of 2013.[78]
[78]T36
112 Whilst I accept the further study that may have been required of the plaintiff for her to continue nursing passed her May 2013 registration date was a concern for her, I accept the evidence of the plaintiff’s husband that a girlfriend of the plaintiff’s was going to help the plaintiff through that study.[79]
[79]T53
113 In conclusion, I do not find the plaintiff was going to cease work in May 2013 because she was not prepared to do the study to be qualified to dispense medication to patients in her capacity as a Division 2 Nurse. The plaintiff’s evidence about the ANF flexibility on compliance with certificates reinforces this conclusion.[80]
[80]T34
114 The plaintiff commenced nursing in 1996. She stated she had a dream of nursing for twenty years. The plaintiff gave evidence she had no plans to retire. The plaintiff’s evidence was:
Q:“So the date of February 2016, that was never discussed with your husband, was it, you retiring?---
A:The only way that would have been spoken about would have been that’s my 20 years and I always had this dream, I’d love to do 20 years in nursing. That was just my dream and something I wanted to achieve, I got to 10 years and I’m thinking, ‘Beauty, I’m travelling well, now I can do another 10’.
Q:So, with respect, your maths are not that bad, you start in 1996 and you say you’ve got this dream of 20 years?---
A:Yeah, 16.
Q:That’s how 16 comes up?---
A:That’s how - yeah.
Q:So that’s something you told - - - ?---
A:And it depends on your health. I’ve had a brain aneurism and I thought I might never go back to work after that but I did and I went back and thank god I was able to do my job and do it well still.”[81]
[81]T44, L2-17
115 The plaintiff was supported on the issue of her ambition to nurse for the twenty years by her husband’s evidence:
Q:“What, she’d done ten, and you said to her, ‘What are you going to do in the future?’---
A:No, she always wanted to do her 20 years, because she didn’t start nursing till she was late – late in life, 47 years old or something.
Q: She started nursing after---?---
A: 1996, I think.[82]
…
Q:Everything is possible but is it possible you had this discussion with your wife before this frightening incident in November 2012 that she wasn’t going to renew her registration in May 2013 when it was due?---
A:All I know she wanted to do her 20 years and she would have still been nursing in 2015.”[83]
[82]T51, L14-18
[83]T53, L29 – T54, L3
116 I accept the plaintiff did have an ambition to complete nursing for a twenty-year period. If she was not injured on 12 November 2012 and there was no supervening event, she would have worked as a Nurse until 2016. I accept the plaintiff enjoyed her work at Sunshine Hospital as a Nurse. The plaintiff was a willing and consistent worker. Even though she had suffered an aneurism in 2004, she returned to work until the assault incident that is the subject of this application. The following evidence is supportive of that conclusion:
Q: “Was that rotating shift or were you always on night shift?---
A:I used to do days and then I’d fill in the nights because no-one else wanted to do night shift so I always filled in for the nights and then I went onto permanent nights.
Q:So how long have you been on permanent nights?---
A:Over 10 years I think, I’m not really sure when I star[t]ed doing permanent nights.[84]
…
A:Well, I’ve always gone to work. I mean since I had the aneurism that hasn’t stopped me from working.”[85]
…
A:“Yes, she’s always loved being a nurse.
Q:And since this incident, which we accept is a frightening incident, in November 2012, has she continued to tell you that she loves – enjoyed being a nurse?---
A:Yes, she’s always liked – she always loved the job with the oldies and that.”[86]
[84]T24, L4-10
[85]T45, L26-31
[86]T50, L1-6
117 I accept that the plaintiff had always intended to continue her career and work as a Nurse up to at least February of 2016 (her twenty-year period).
118 It is clear on all the medical evidence that the plaintiff has not been fit for her pre-injury duties or alternative duties since the day of the assault the subject of this application until the day of the hearing, 30 April 2015. I accept the plaintiff’s incapacity for work will continue into the foreseeable future.
Conclusion
119 In conclusion, I accept, on the basis of the evidence and the medical opinions in this case, that the plaintiff’s loss of earning capacity has been completely destroyed as a result of the assault on her at work on 12 November 2012. This destruction of her earning capacity is for the foreseeable future.
120 The loss of earning capacity is as a result of the psychological and psychiatric injury referred to earlier in these Reasons.
121 I also accept that the plaintiff’s loss of earning capacity is a result of the injury to the plaintiff’s spine which has resulted in pain and inability for the plaintiff to return to her pre-injury duties or alternative duties.
122 On the authority of Advanced Wire & Cable Pty Ltd v Abdulle[87] and Acir’s case,[88] the plaintiff has leave to make a claim for pain and suffering damages as a result of the injury to her suffered arising out of or in the course of her employment with the defendant.
[87][2009] VSCA 170
[88](Supra), paragraph 147
123 I conclude that the plaintiff has leave to bring proceedings for pain and suffering and loss of earning capacity as a result of the physical injury to her spine and the psychological and psychiatric injury.
124 I will hear the parties on costs.
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