Bova v A and C Carr Marketing Pty Ltd and VWA
[2009] VCC 306
•13 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-01823
| ANTONIETTE BOVA | Plaintiff |
| v | |
| A & C CARR MARKETING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 February 2009 |
| DATE OF JUDGMENT: | 13 March 2009 |
| CASE MAY BE CITED AS: | Bova v A & C Carr Marketing Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0306 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – pain and suffering injury in issue.
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| APPEARANCES: | Counsel | Solicitors |
| For Ms Bova | Mr B Collis QC with | Arnold Thomas & Becker Pty Ltd |
| Mr J Brett | ||
| For the Defendants | Mr J Parrish SC with | Dibbs Abbott Stillman |
| Ms P Cefai | ||
| HIS HONOUR: |
1 In this proceeding Ms Antoinette Bova applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover pain and suffering damages for injury suffered by her arising out of the course of her employment with the first defendant on 20 December 2001.
2 The body function which Ms Bova relies upon in making this application is the right ankle.
3 The following evidence was adduced during the hearing:
(i) Ms Bova gave evidence and was cross-examined. (ii) Ms Bova tendered her Court Book (“PCB”) pages 1-48. (iii) The defendants tendered their Court Book (“DCB”) pages 1-22.
The Statutory Scheme
4 The application is brought under the definition of “serious injury” contained in sub-s.(37)(a) of the Act, which requires Ms Bova to prove that she has suffered a “permanent serious impairment or loss of a body function”.
5 The relevant considerations which apply to such an application are as follows:
(a)
Ms Bova must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(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]
(c)
Ms Bova bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity 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-s.(38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(f)
In conformity with Barwon Spinners, 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 Ms Bova are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied these principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
Ms Bova’s Evidence on Affidavit
6 Ms Bova is forty-eight years of age, having been born on 20 June 1961. She was born in Scotland, and migrated to Australia in 1998. In Scotland Ms Bova led an active physical life. Her primary interests involved:
•
Dancing - Ms Bova attended dancing classes in Latin American dancing and ballroom dancing twice a week.[3]
• Horse riding - in which Ms Bova engaged from time to time.[4] • Walking - Ms Bova enjoyed long walks in the country.[5] [3] PCB 28, paragraph 34
[4] PCB 28, paragraph 34
[5] PCB 28, paragraph 35
7 Since her migration to Australia, and prior to her accident, Ms Bova had not engaged in horse riding or ballroom dancing.
8 Ms Bova states that but for her injury she would have resumed these activities from about 2003 onwards, and that she has not been able to do so by reason of her injuries.[6] This aspect of Ms Bova’s evidence was not challenged in cross-examination, and I accept it.
[6] PCB 28, paragraph 36
9 Ms Bova describes her present symptoms as follows:
•
She is confined to slow walks on fairly level ground for up to 20 minutes or so. Activity outside these restrictions causes pain and swelling of her ankle.
•
Within her sedentary employment she regularly (three or four times a week) suffers from symptoms of pain and swelling in her ankle which require her to sit and elevate her foot for between 30 minutes and an hour.
• She is unable to wear high-heeled shoes. • She cannot run.
•
She has to pace her activities so as to cope with her symptoms, for example, she undertakes her housework “a little bit at a time so that I do not experience too much pain or swelling. Now, with the shopping, by the time I have finished the shopping and get home I will generally have to sit down and put my leg up and rest”.[7]
•
She is employed as an assistant to a company secretary. Whilst she is able to perform the duties required of her in her present employment, she took up those duties having been forced to leave her previous occupation which involved customer services and sales work, as she felt that by reason of the symptoms from which she suffered in her right ankle she would not be able to tolerate the increased level of driving which would be associated with her continued employment.
•
She has reduced her level of activity. Her weight has increased by almost 20 kilograms, which she attributes to “leading a sedentary life”.
•
She has pain on most days, although not every day. The symptoms in her ankle, which consist of pain and swelling, are easily aggravated.
[7] PCB 29, paragraph 40
The Plaintiff’s Sworn Evidence
10 In the course of her evidence, Ms Bova said:
• that she had not had any treatment for her ankle injury since 2003;[8] •
that her injuries were not severe enough for her to take medication other than on an infrequent basis;[9]
•
that she suffered from an aching pain in her right ankle which was not constant, but came on if she stood for more than 20 to 30 minutes or walked up more than two flights of stairs, or on the flat for 20 or 30 minutes;[10]
•
that she would like to be able to run more than she can, that she cannot run up and down stairs, that she has difficulty getting off trams, and that she has swelling in her ankle which is not present all the time and is only associated with excessive activity;[11]
•
that she would like to attend dancing classes but did not do so because she felt her ankle would not be strong enough and that she would be caused more pain than enjoyment from this activity;[12]
•
that she would like to engage in horse riding, but she does not feel that she has the mobility or movement or strength in her ankle to enable her to do this.[13]
[8] T8-14
[9] T9, L6 (Ms Bova qualified this statement by saying that she tried to avoid the use of medication as a general life philosophy – T8, L27)
[10] T10, L31 to T11, L10
[11] T11, L16-25
[12] T13, L1-10
[13] T15-21
The Medical Evidence
11 The medical evidence relied on by the parties is found in the PCB at pages 32-47B and the DCB at pages 6-22. Having taken into account the totality of that material, I make the following comments and observations:
(i) Ms Bova’s general practitioner, Dr John Lamont, has not seen Ms Bova since 5 March 2003. His reports[14] do not assist me in undertaking the task of assessing Ms Bova’s symptoms at the time of this application. (ii) The report of Mr Troy[15] is of little assistance as its primary purpose was to obtain an impairment assessment under s.98E(i) of the Act. (iii) Mr John O’Brien, orthopaedic surgeon, examined Ms Bova on 25 October 2005. He describes Ms Bova’s injury as involving a fracture involving the distal shaft of the right fibula, with the fracture line extending to the ankle joint articular surface. The fracture was also seen in the base of the medial malleolus. This injury was treated by inserting an internal fixation plate and screws which remained in position for some months, when they were subsequently removed. [14] PCB 32-34
[15] PCB 34-37
(iv) At the time of his examination, Mr O’Brien considered that sound clinical union of the fracture had occurred, and that whilst only minimal restriction in the movement of the joint was present, the joint was markedly tender. Mr O’Brien considered Ms Bova’s clinical condition to be stable, although, as to prognosis, he opined: “There remains the likelihood that further degeneration could occur in the ankle joint with resultant increased symptoms. It is obviously very difficult to predict the speed of any such traumatic degenerative change; nevertheless I would suggest it is possible this patient will require further treatment in the foreseeable future.
I would thus be rather guarded in relationship to the patient’s prognosis. I am sure the clinical situation now will not improve as stated. I think it is a distinct possibility that over time further symptoms may ensue.”
(v) Finally, Mr O’Brien concluded that Ms Bova would be permanently incapacitated in relation to recreational activities that involved significant weight-bearing.
(vi) Mr David McIntosh, a consultant orthopaedic surgeon, examined Ms Bova on 18 February 2009, at which time he expressed the opinion that:
(a) There was no evidence of the presence of degenerative post- traumatic arthritis; (b) Ms Bova’s prognosis was stable and stationary; (c) Ms Bova was unlikely to develop any significant long-term degenerative change. (vii) Mr Peter Kudelka, orthopaedic surgeon, examined Ms Bova on 5 September 2008. He expressed the following opinion as to Ms Bova’s prognosis:
“... some discomfort and aching in the ankle will occur indefinitely. However, I would not assess the patient as having any significant permanent impairment resulting from her injury, nor does she require any future treatment other than reassurance.”
Although Mr Kudelka does not comment specifically on the point, his comments would seem to exclude a significant prospect of Ms Bova developing degenerative changes in her ankle in association with her injury.
Findings
12 It was accepted by the parties that the only task which I am required to consider in deciding this application is whether Ms Bova’s impairment of body function has consequences to her which, considered objectively and judged by comparison with other cases in the range of possible impairments or losses of body function, are more than significant or marked, and at least very considerable.
13 It is my opinion taking into account all of the evidence, that Ms Bova’s injury falls at the very borderline of the level of impairment required to satisfy the test of serious injury laid down by the provisions of the Act. I am cognisant however of the fact that Ms Bova’s impairment, affecting as it does her ability to stand and walk, is such that it has an adverse impact on the myriad of activities of daily life which involve the use of her right ankle for other than relatively brief periods of time.
14 The medical evidence leads me to the view that Ms Bova’s condition has stabilised. I accept that there is a chance that the condition in her ankle may deteriorate. I find however that the prospect of this occurring, whilst it should not be ignored, should be graded as an unlikely possibility rather than a probability. In the circumstances I find that Ms Bova’s injuries have imposed restrictions upon her life which are permanent and have, on the balance of probabilities, largely stabilised.
15 In the course of very helpful submissions on behalf of the defendants, I was referred to the decision of the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd[16], and in particular to the comments made by Chernov JA, at paragraph 24. It was the submission made on behalf of the defendants, which I accept, that the comments made therein should not be treated as a general statement that the ability to engage in full-time work preludes a finding of serious injury, but that they should be given due weight. I take into account those observations in making my findings in this proceeding. In my view it is not without significance that:
[16] [2006] VSCA 292
(i)
Ms Bova continues to suffer from symptoms of pain and swelling in her ankle which require her to sit and elevate her foot on a regular basis notwithstanding that she has taken up employment of a largely sedentary nature as an assistant to a company secretary and;
(ii) That the symptoms suffered by Ms Bova preclude her from the work she was trained to do, being that of a printer, or from the customer service work she was carrying out at the time of her injury.[17]
[17] PCB 31B
16 In my opinion the consequences to Ms Bova’s life by reason of the impairment of the function of her right ankle, including as they do the matters to which I have referred in paragraphs 7 to 11 of these Reasons for Judgment and in particular the considerable restriction described by Ms Bova upon her ability to walk and stand for any length of time without pain, are such that they constitute an impairment which satisfies the description of being “at least very considerable” and I make that finding after having made the relevant comparison which I am required to do pursuant to the statutory scheme.
Conclusion
17 By reason of the foregoing reasons, findings and conclusions, I grant Ms Bova leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the first defendant on 20 December 2001.
18 After discussion with the parties I will pronounce formal orders and will deal with the question of costs.
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