Browne v Swinburne University of Technology

[2024] VCC 539

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-22-01095

BARBARA BROWNE	Plaintiff
v
SWINBURNE UNIVERSITY OF TECHNOLOGY	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2024
DATE OF JUDGMENT:	6 May 2024
CASE MAY BE CITED AS:	Browne v Swinburne University of Technology
MEDIUM NEUTRAL CITATION:	[2024] VCC 539

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to lumber spine – pain and suffering

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 3 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M S Cameron	Redlich’s Work Injury Lawyers
For the Defendant	Mr B R McKenzie	MinterEllison

HER HONOUR:

Introduction

1Ms Barbara Browne, the plaintiff, is a seventy-one-year-old former teacher and learning and academic skills advisor.  She claims that on 3 May 2017, she suffered an injury to her low back in the course of her work for the defendant, Swinburne University of Technology (“Swinburne”).

2Ms Browne applies for leave to bring a common law proceeding seeking pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). Her claim is that she has a “serious injury” of her lumbar spine.

3To succeed in her application for leave to claim pain and suffering damages, Ms Browne must establish that the permanent impairment consequences of her compensable spine injury are “serious”, that is, that they can be fairly described as being more than significant or marked, and as being at least very considerable. 

4Prior to the hearing of this application, a judge of this Court referred a series of medical questions regarding Ms Browne to the Medical Panel.  I am required to adopt and apply the opinion of the Medical Panel dated 28 June 2023.

5The Medical Panel relevantly found that:

(a)   Ms Browne is suffering from right lumbosacral spine dysfunction with residual pain on a background of radiological sacroiliac joint degenerative change;

(b)   The incident on 3 May 2017 was a significant contributing factor to that injury;

(c)   The current condition of Ms Browne’s lumbar spine continues to result from, and be materially contributed to by, the injury of 3 May 2017; and

(d)   Ms Browne’s lumbar spine condition is permanent in the requisite sense.

6In this application, Swinburne did not challenge Ms Browne’s credibility or reliability. 

7Given the Medical Panel findings, the issues for determination were narrowed to the following:

(a)   Has Ms Browne disentangled the impairment consequences of her unrelated bilateral foot osteoarthritis?

(b)   What are the impairment consequences of Ms Browne’s lumbar spine injury?

(c)   Are the impairment consequences of Ms Browne’s lumbar spine injury “serious”?

8For the reasons that follow, Ms Browne is granted leave to seek pain and suffering damages for her compensable lumbar spine injury.

Background

9The following matters are, I believe, uncontentious.  Insofar as any were contested, these represent my findings, save where otherwise indicated.

10Ms Browne has been a teacher for many years.  She began working for Swinburne in about 1991. 

11At the time of her injury, she was employed on a full-time basis as a learning and academic skills adviser but was taking two days of long service leave each week.  Ms Browne said, and I accept, she was using her long service leave in that way as she felt under pressure from Swinburne to do so.

12On 3 May 2017, Ms Browne walked into a small heavy table that had been placed in the walkway of a reception area at the university.  This was the incident in which Ms Browne suffered the injury which was the subject of this application.

13In addition to her lumbar spine injury, Ms Browne also suffered an aggravation of osteoarthritis in her right hip in the incident. 

14Ms Browne was unable to work for approximately six weeks after the incident.  Thereafter she returned to work on modified duties, three days a week.

15In February 2019, Ms Browne permanently changed her work hours to three days per week.

16In August 2020, during the COVID-19 pandemic, Ms Browne accepted a voluntary redundancy.  She was aged sixty-seven years at the time.  She has not worked since. 

17In May 2021, Ms Browne underwent a right hip replacement.  She has had an excellent outcome from that procedure.

18Ms Browne’s lumbar spine condition has been treated conservatively.  She had physiotherapy treatment until early 2020.  Since ceasing physiotherapy, Ms Browne has undertaken online Pilates classes.  Currently, she does this four days a week. 

19Since 2017, Ms Browne has been prescribed various medications to assist with the pain and sleep problems associated with her injuries.  Currently, she takes two to three Panadol Osteo each day; Celebrex, ten days on then about ten days off; daily Endep; daily Circadin; Stilnox, approximately two to three times a week, and Pantoprazole, on and off. 

20Ms Browne lives alone in suburban Melbourne.

Has Ms Browne disentangled the impairment consequences of her unrelated bilateral foot osteoarthritis?

21Ms Browne suffers from bilateral osteoarthritis in her feet.  She wears orthotics and flat lace-up shoes to ameliorate the effects of that condition.

22Counsel for Swinburne submitted that Ms Browne had not disentangled the impairment consequences of her bilateral foot osteoarthritis in accordance with Peak Engineering & Anor v McKenzie.[1]

[1][2014] VSCA 67

23It was submitted that Ms Browne’s foot condition impacted her capacity to walk, yet Ms Browne had not mentioned the issue in any of her affidavits. 

24Further, it was submitted that Ms Browne did not give a history of bilateral foot osteoarthritis to the various doctors who examined her for the purpose of this proceeding.  I pause to note that that contention was not put to Ms Browne.

25Counsel for Swinburne referred to reports from Ms Browne’s treating rheumatologist, Dr Maree Micallef.  These noted that Ms Browne had told Dr Micallef about foot pain affecting her walking capacity in 2021 and 2022.

26Counsel for Ms Browne submitted that no disentanglement was needed.  Ms Browne’s evidence was that her foot osteoarthritis does not affect her capacity to walk, provided she wears appropriate footwear and orthotics.  It was submitted that evidence should be accepted.

27The reports of Dr Micallef reveal that Ms Browne has had an ongoing problem with osteoarthritis in her feet.  The condition is managed using orthotics and supportive footwear.  In her reports dated 20 April 2021 and 7 September 2021, Dr Micallef noted Ms Browne’s feet were reportedly painful when she walked.[2]   However, in her report dated 29 March 2022, Dr Micallef noted the foot pain had been better and Ms Browne had described “mild back pain when she walks”.[3]

[2]Plaintiff’s Amended Court Book (“PCB”) 72; PCB 74

[3]PCB 76

28Ms Browne’s evidence was that her feet do not inhibit her ability to walk, provided she wears appropriate footwear and her orthotics.  She has her orthotics renewed regularly.  Her feet can, however, be painful if she walks barefoot or in footwear that is not supportive.[4] 

[4]Transcript (“T”) 13

29My impression of Ms Browne was that she was a credible and reliable witness.  The tendered medical material supports a finding that Ms Browne is a genuine historian. 

30I accept Ms Browne’s evidence as to the impact of her foot condition.  I also accept Ms Browne’s explanation that the reason her foot condition was not mentioned in her affidavits was because it does not relevantly impact on her ability to walk.

31I find that I am able to identify and exclude the current consequences of Ms Browne’s foot condition.

What are the impairment consequences of Ms Browne’s lumbar spine injury?

32Ms Browne relied upon four affidavits, in which she affirmed the impairment consequences of her lumbar spine condition.  In summary, she deposed to the following:

(a)   Constant but variable pain (activity dependent) in the low back and right buttock, requiring daily medication;

(b)   Disturbed sleep, requiring daily medication;

(c)   Inability to bend to cut her toenails;

(d)   Reduced ability to walk long distances, on uneven ground, and on inclines;

(e)   Reduced capacity to stand;

(f)    Reduced capacity to sit;

(g)   Difficulty bending and leaning forward;

(h)   More limited capacity to play the flute;

(i)    When attending the theatre, ballet or the cinema, Ms Browne has to have an aisle seat so that she can stretch out her legs and change position;

(j)    Reduced capacity to complete domestic activities;

(k)   Reduced capacity to carry groceries;

(l)    Reduced capacity to undertake gardening activities;

(m)     Inability to undertake yoga.

33Ms Browne has continued to socialise, attend her book club and travel.  She has had three trips to Europe since 2019.  On the most recent trip, Ms Browne booked a business class seat as she felt that she could not manage to sit in an economy seat by reason of her lumbar spine condition.  Ms Browne deposed to making accommodations when socialising and travelling to deal with her lumbar spine pain.

34This is a convenient point to consider the medical evidence tendered by the parties.  Given the opinions of the Medical Panel, the parties only made very brief submissions about the medical reports.

Treating practitioners

Dr Stacey Harris, General Practitioner (“GP”)

35Ms Browne relied upon six reports from her GP dated 18 January 2018, 16 April 2018, 22 October 2019, 25 August 2021, 7 December 2022 and 23 October 2023.  Swinburne tendered extracts of the clinical records of the Camberwell Junction Medical Clinic between October 2015 and April 2017.[5]

[5]Defendants Court Book (“DCB”) 130-132

36In the broad, those reports confirmed Dr Harris’ treatment of Ms Browne’s right hip and low-back condition from May 2017, and the related impairments. 

37Dr Harris noted the continuing need for medication and Pilates for the lumbar condition and described the ongoing impairment consequences to Ms Browne’s ability to pursue social and domestic activities. 

38The extracts of the clinical records revealed that Ms Browne had been referred to Ms Sue Lenzi for counselling for “family stressors” in May 2016.  At the same time, Ms Browne was prescribed Stilnox for sleep difficulties caused by those stressors.

39Counsel for Swinburne submitted that there were unsatisfactory matters in Dr Harris’ reports: 

(a)   Dr Harris asserted that Ms Browne had not experienced hip pain or sought medical treatment for a hip condition prior to the incident; and  

(b)   Dr Harris noted in three reports that Ms Browne was no longer able to play golf when Ms Browne had never been a golf player. 

40I note that in her report dated 18 January 2018, Dr Harris acknowledged Ms Browne had pre-existing osteoarthritis in her right hip.[6]  However, she said: “Prior to this even occur[r]ing she never sought medical help or complained of this pain/osteoarthritis affecting her”.[7]  In other reports, Dr Harris, referred to Ms Browne not having any hip injury prior to the incident.  I found the references inconsistent and confusing.  In her most recent report dated 23 October 2023, Dr Harris noted that Ms Browne’s hip condition “barely bothers her now”.[8] 

[6]PCB 59

[7]PCB 59

[8]PCB 64

41I accept that aspect of Dr Harris’ reportage was unsatisfactory.  However, given the excellent outcome Ms Browne had from her hip replacement, no claim was pursued with respect to impairment of Ms Browne’s right hip in this application.

42Although Dr Harris referred to Ms Browne’s inability to play golf in three of her reports, Ms Browne denied giving that history to Dr Harris.  Ms Browne did not claim any impairment relating to golf in her affidavits.  In fact, she does not play golf.[9]  Dr Harris’ reference to golf appears to be an error. 

[9]T14

43Given the above, I approach Dr Harris’ evidence with some caution.

Dr Maree Micallef, rheumatologist

44Swinburne tendered eight reports from Dr Micallef dated 12 January 2021, 23 February 2021, 20 April 2021, 7 September 2021, 29 March 2022, 6 September 2022, 28 March 2023 and 10 October 2023.

45Those reports outlined Dr Micallef’s treatment of Ms Browne from early in 2021 for osteoarthritis and sacroiliitis.

46In the most recent report, Dr Micallef noted Ms Browne continued to require intermittent courses of Celebrex for flare ups of her condition, and ongoing Endep.  She recommended a SPECT scan of the lumbar spine and a “targeted facet steroid injection”.[10]  Ms Browne was not keen to take that course, given a prior bad experience with a steroid injection.

Medico-legal reports

[10]PCB 82

Dr John Swan, orthopaedic surgeon

47Ms Browne relied upon three reports from Dr Swan dated 15 December 2022, 8 February 2023 and 18 January 2024.  Dr Swan examined Ms Browne on 13 December 2022 and 15 January 2024.

48On examination in December 2022, Dr Swan noted a normal gait.  There was reduced lumbar lordosis in the sagittal plane, limitation of range of motion in flexion, and significant pain and discomfort during extension.  Dr Swan noted signs of dysmetria, and guarding throughout the examination of Ms Browne’s spine.  He opined that Ms Browne suffered from an aggravation of lumbosacral spondylosis.

49Dr Swan noted that Ms Browne would require ongoing analgesia for her low-back symptoms and would benefit from ongoing physiotherapy. 

50In his most recent report dated 18 January 2024, Dr Swan noted that Ms Browne’s low-back symptoms had remained stable.  The prognosis was guarded.  Dr Swan opined that it was likely Ms Browne would require ongoing analgesia for her low-back symptoms and would benefit from ongoing self-directed exercises for core strengthening and optimisation of mobility.

Dr Leon Turnbull, psychiatrist

51Swinburne tendered two reports from Dr Turnbull dated 21 January 2023 and 15 February 2024.  Whilst there was no claim in this application with respect to any psychiatric condition, the reports were tendered because of some matters put to Ms Browne during cross-examination regarding her pattern of work prior to the incident.

Dr James Economos, occupational physician

52Swinburne tendered five reports from Dr Economos dated 5 July 2017, 10 July 2017, 10 August 2017, 25 January 2018 and 7 February 2018.  The reports were tendered because of the history they contained regarding Ms Browne’s pattern of work prior to the incident. 

Mr Michael Dooley, orthopaedic surgeon

53Swinburne tendered a report from Mr Dooley dated 7 December 2023.  Mr Dooley examined Ms Browne on 5 December 2023.

54Mr Dooley noted Ms Browne’s complaints as follows:[11]

“Ms Browne said that she notes constant ongoing pain in her right lower back and upper right buttock region.  She said that this pain varies in its intensity.  She tries to remain as active as she can.  She engages in online Pilates’ exercise four times per week.  She walks her Jack Russell dog regularly.  She said that walking does cause her pain, but she finds distractions to keep going.  Prolonged sitting and prolonged standing aggravate her pain.  She enjoys attending the theatre, but prolonged sitting makes things difficult for her.  She said that she attended a play recently and because she was not able to engage in the play, she found the prolonged sitting very difficult.  She has a cleaner to help her in the home with heavy household chores and she has a friend who also assists her.  Ms Browne said that currently she takes Panadol Osteo for her pain.  She takes Endep at night.  She takes Circadin and Stilnox at night to assist her sleep.  She said that her pain interrupts her sleep and that she has difficulty turning in bed.”

[11]        DCB 71

55On physical examination, Mr Dooley noted Ms Browne walked without a limp.  There was tenderness of the right low lumbar area.  Flexion was to 70 degrees and extension to 20 degrees, both causing pain.  Lateral flexion and rotation to the left and right were 25 degrees.  Straight-leg raising was 80 degrees bilaterally.  Reflexes were symmetrically reduced.  Mr Dooley noted evidence of osteoarthritis affecting the tarsometatarsal joint region of both feet.

56Mr Dooley opined that Ms Browne’s lumbar spine/buttock pain related to aggravation of underlying degenerative disc change.  He noted she self-managed the condition with activity modification and exercise.  Mr Dooley opined that the constancy and intensity of Ms Browne’s ongoing lumbar pain was greater than one might expect to see, but acknowledged she was a “sensible and genuine historian”.

Medical Panel Opinion and Reasons

57Ms Browne tendered the Medical Panel’s Opinion and Reasons dated 28 June 2023.  Relevantly for this application, on 28 April 2023, Ms Browne was examined jointly by Dr Steven Jensen, musculoskeletal physician, Dr Anita Boecksteiner, orthopaedic surgeon, and Dr Daniel Lewis, rheumatologist.

58Ms Browne told the Panel that she experienced constant back pain ranging between “2/10” and “7-8/10”, but “5/10” on average.  She reported that her sleep pattern was “restless”, had always been so, but was made worse by her back pain.  She reported pain when walking, particularly up hills, or stairs and on uneven ground, but that she could “usually walk through” the pain.  She reported a 30-minute standing tolerance, and a one-hour sitting tolerance.  Ms Browne told the Panel she avoided bending and required help with heavier domestic tasks and gardening.

59On examination, the Panel noted that Ms Browne “presented in a very straightforward manner, with no evidence of any atypical pain behaviours”.[12]  Ms Browne had reduced flexion, a full range of motion in all other planes but with some end of range pain.  There was localised pain and focal tenderness consistent with pain emanating from the sacroiliac joint.

[12]DCB 11

Conclusions

60Counsel for Swinburne did not challenge the nature and extent of Ms Browne’s claimed impairment consequences, save in two respects; that is:

(a)   the disentanglement issue for the foot condition (dealt with above); and

(b)   whether Ms Browne’s sleep difficulties were related to her hip condition rather than her low back. 

61As I have said, no challenge was made to Ms Browne’s credibility or reliability by counsel for Swinburne. 

62I find that Ms Browne was a credible and reliable witness as to the impairment consequences of her lumbar spine condition and I accept her evidence about the nature and extent of her symptoms which were supported by the medical evidence tendered.  Although Mr Dooley was of the view that the extent of Ms Browne’s ongoing impairment was greater than one might expect, he did not question that she experienced that level of impairment. 

Pain

63Ms Browne suffers from constant pain of variable, and unpredictable, intensity, requiring daily over-the-counter analgesia and intermittent Celebrex. 

Sleep

64Counsel for Swinburne submitted that the reports of Dr Micallef supported the view that Ms Browne’s sleep difficulties were due to her right hip problem not her lumbar spine condition. 

65In her report dated 12 January 2021, Dr Micallef noted that Ms Browne described “difficulties getting to sleep due to her hip pain which results in her tossing and turning”.[13]  Further, in her report dated 29 March 2022, Dr Micallef noted mild back pain “when she turns at night but is not waking her”.[14]  Ms Browne disputed giving that history to Dr Micaleff, noting that it was Dr Micaleff who prescribed Endep to her for sleep difficulties.[15]

[13]PCB 68

[14]PCB 76

[15]T11

66In her report dated 28 March 2023, Dr Micallef reported that Ms Browne was “taking Endep 10mg nocte but still struggles to get to sleep and can wake at night with right sided buttock pain”.[16] 

[16]PCB 80

67Ms Browne accepted that prior to her hip replacement, both her right hip and lumbar pain disturbed her sleep.[17]  I accept that evidence. 

[17]T7-8

68In her most recent report dated 10 October 2023, Dr Micallef said that Ms Browne “describes mechanical sounding right sided lower back pain which is aggravated by rolling over in bed …”.[18]

[18]PCB 82

69I accept, that since the resolution of her right hip difficulties, the cause of Ms Browne’s persistent sleep difficulties has been her lumbar and buttock pain. 

70I find Ms Browne’s sleep is disturbed every night because of her lumbar spine pain and she requires daily medication for this.

Functional tolerances

71I find that by reason of her lumbar spine condition, Ms Browne struggles to walk as far as she used to and has difficulty walking on uneven ground and inclines.  She has a reduced capacity to sit and stand for prolonged periods.  She struggles to drive for extended periods, needing to stop and stretch or rest.  She has difficulty bending.

Activities of daily living and personal care

72Ms Browne retains the ability to perform her activities of daily living and personal care albeit with limitations and adaptations to accommodate her lumbar spine pain and restriction.  For instance, she needs to sit to put on trousers.

Domestic activities

73Ms Browne is able to perform light domestic activities, and some limited gardening.  She is no longer able to perform heavier household chores, home maintenance or more strenuous gardening activities.  She no longer uses the bottom shelf of the dishwasher because of difficulties bending; she does small amounts of grocery shopping at a time because of difficulty lifting and carrying bags of shopping; she can manage only small loads of laundry.

Social and recreational activities

74Ms Browne continues to undertake social activities including attending the theatre, ballet, cinema, and a book club.  She needs appropriate seating to accommodate her lumbar pain.  She continues to play the flute, although there is some diminution in the length of time she can play.

75Ms Browne can travel overseas but cannot manage to travel long distances in an economy seat because of her lumbar spine condition.  Whilst overseas, Ms Browne adapts her activities to accommodate her lumbar spine condition.

76Ms Browne used to participate in yoga classes twice a week but is no longer able to undertake yoga by reason of her lower back condition.

Treatment

77Ms Browne has not had hands-on treatment since 2020, and no further treatment is planned.  She attends her GP for prescription medication, and online Pilates classes.

Work

78Counsel for Swinburne submitted that Ms Browne had not stated in her affidavits that prior to the incident during 2017, she had been taking two days of long service leave each week. 

79Ms Browne’s work pattern prior to her injury was always known to Swinburne.  Further, I note that Ms Browne provided that information to Dr Economos in July 2017,[19] Dr Swan in December 2022[20] and Dr Turnbull in January 2023.[21]

[19]DCB 25

[20]PCB 84

[21]PCB 103

80In cross-examination, Ms Browne denied that the arrangement was a precursor to retirement.  She said, and I accept, that she had used up her long service leave in that way to keep her employer happy.[22] 

[22]        T17-18

81Although Ms Browne did not resume full-time employment after her injury, in part, because of her compensable injury, she fairly acknowledged that she was approaching the end of her working life.  She sees herself as retired and does not regret that decision.[23]

[23]T20

82Ms Browne did not claim the loss of enjoyment of work as an impairment consequence in this application.  In those circumstances, the failure to mention the issue in her affidavits was not a point of significance.

Are the impairment consequences of Ms Browne’s lumbar spine injury “serious”?

83Counsel for Swinburne submitted that even if the Court accepted each of Ms Browne’s claimed impairment consequences, they fell well short of the required threshold.  Counsel submitted that when an analysis was undertaken of what was lost in the context of what was retained, what was retained was significant.[24]

[24]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

84Counsel for Ms Browne submitted that the experience of pain involves both what the plaintiff says about her pain, in addition to what the plaintiff does about her pain.  It was submitted that many aspects of the plaintiff’s life have been impacted, including sleep, mobility, self-management, recreational and social activities, and enjoyment of life.[25]

[25]        T44-45

85In TTB SMS Pty Ltd v Reading,[26] the Court of Appeal said:

“Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable’.  The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder.  Those other physical impairments may involve constant pain, significant medical treatment and medication.  They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”

[26][2020] VSCA 203 at paragraph 31

86I also bear in mind the remarks of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon:[27]

“… the cases recognise that some plaintiffs may be more ‘stoical’ than others.  This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function.  The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.  … .”

[27]Supra at paragraph 13

87My impression of Ms Browne was that she has endeavoured to continue to be as active as possible.  I find Ms Browne has a stoic attitude. 

88I am required to consider the whole range of impairments and impairment consequences, not just those that come before the Court.

89In performing the value judgment required of me, I find that the permanent impairment consequences of Ms Browne’s lumbar spine condition are fairly described as more than significant or marked and at least very considerable.  In my view, the matters which tip the balance are Ms Browne’s constant variable pain, the requirement for daily prescription medication, and significant daily interference with sleep.  When those matters are combined with the reduction in and adaptations to most of her activities, the consequences to her meet the threshold. 

Conclusion

90Leave is granted to Ms Browne to bring a common law proceeding claiming pain and suffering damages for injuries she sustained in the incident at work on 3 May 2017.

91I will hear the parties as to the consequential orders.

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