Burton v Ecowise Environmental Pty Ltd
[2014] VCC 134
•25 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05704
| SARAH ELIZABETH BURTON | Plaintiff |
| v | |
| ECOWISE ENVIRONMENTAL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 17 February 2014 | |
DATE OF JUDGMENT: | 25 February 2014 | |
CASE MAY BE CITED AS: | Burton v Ecowise Environmental Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 134 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to back – loss of function – whether pain and suffering consequences are “serious” – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ansett Australia Ltd v Taylor [2006] VSCA 171; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Leave granted for the plaintiff to bring common-law proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Robinson Gill |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
1 This proceeding is an application brought by Originating Motion dated 21 November 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant. The plaintiff alleges that she was injured on 27 November 2006.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only. The injury suffered by the plaintiff for which she seeks leave to bring proceedings for damages is an injury to her thoracic spine.
3 The following evidence was adduced during the hearing:
· the plaintiff gave evidence and was cross-examined;
· Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 6–67 and 73–84(d);
· Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1–39;
· Exhibit 2, a bundle of photographs downloaded from Facebook;
· Exhibit 3, Dr Strauss’s report dated 14 November 2013 which appeared at PCB 53–62;
· Exhibit 4, medical notes from Clayton Whole Health Medical Clinic between 1 April 2008 and 6 February 2013.
4 This 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 her back.
5 Ms Tsikaris, on behalf of the defendant, identified the issues in this application as:
(i) disentangling the psychological or psychiatric issues from the physical consequences of pain;
(ii) whether the consequences of the pain found by the Court amounted to a permanent serious impairment or loss of body function. In short, this is a “range” case.
6 As is often the case in these applications, the plaintiff’s credit became an issue in the course of cross-examination.
The statutory scheme
7 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”.
8 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), 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, 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 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-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) 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 the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 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
10 The plaintiff was born in September 1983 and is now thirty years old. The plaintiff was born and raised in Melbourne. She is a single woman. The plaintiff has no children.[3]
[3]PCB 1
11 The plaintiff completed her secondary education at Bentleigh Secondary College. She then completed a Bachelor of Science degree at Victoria University. That degree was completed in 2004. After her injury with the defendant, the plaintiff returned to further education at Monash University in 2009. The plaintiff completed a Diploma of Education in 2009 at Monash University.
12 The plaintiff commenced employment in 2005 at the end of her Bachelor of Science degree at Water Science Laboratories. This company was taken over by the defendant in this case. The plaintiff remained in this employment until approximately November 2007.
13 The plaintiff, in early 2011, commenced work as a laboratory technician at Scotch College. She remains in that employment and is currently working 34 hours per week over a 5‑day week. She is entitled to the usual teacher holidays in that employment.[4]
[4]PCB 21
Injury with the Defendant
14 The plaintiff commenced work with the company known as Water Science Laboratories in their Swan Street laboratory. Her position was that of an analyst. The defendant company took over Water Science Laboratories in early 2006. The plaintiff continued to work with the defendant company in her capacity as an analyst.
15 In the course of her employment, she was required to move and carry trays of sample bottles of water to be placed in and out of a machine known as the Skalar Biochemical Oxygen Demand (“BOD”) machine. It was in the process of her work that the plaintiff was injured.
16 The plaintiff describes the injury as follows:
“On 27 November 2006 I felt a pinching in my back as I reached in to put a tray into the BOD. The pain was in my back just below my shoulder blades towards the bottom of my ribs. I thought that if I rested I would be okay so I went to lunch. The pain increased though and I was in tears when I came back to the lab. I went to see the Glen Waverley Medical Centre doctors because they were closest to work. They gave me some Mobic tablets but that was no help. I was off work for a few days.”[5]
[5]PCB 10
17 The defendant does not dispute the fact that the plaintiff was injured at that time in the manner described. The defendant has paid for the plaintiff’s treatment and continues to fund, in part, the ongoing radiofrequency denervation procedures the plaintiff undergoes from time to time.[6]
[6]Ansett Australia Ltd v Taylor [2006] VSCA 171
Medical treatment
18 The plaintiff initially went to the Glen Waverley Medical Centre doctors, as they were the closest to her place of work. She was prescribed Mobic tablets but found they were of no assistance to her.[7]
[7]PCB 10
19 The plaintiff subsequently attended on Dr Janne Randall at the Whole Health Medical Clinic in Clayton. Dr Randall diagnosed the plaintiff with a strain to her T8-9 facet joints. Dr Randall prescribed rest, physiotherapy and acupuncture, with the recommendation of doing stretches and swimming.
20 The plaintiff has continued to see doctors at the Clayton Whole Health Medical Clinic from that time until 23 January 2013. This was the plaintiff’s last attendance on Dr Marina McPherson for complaints with her back.[8]
[8]Exhibit 4
21 The majority of the treatment received by the plaintiff for her thoracic back injury has been from Mr Brian Lovell. Mr Lovell first saw the plaintiff on 1 May 2007.[9] Mr Lovell’s opinion was that:
“Clinically she has thoracic spinal segmental referred pain which is a fairly non-specific diagnosis but certainly could be facet joint pain due to irritation of repeated usage with acute loading at one particular point where she describes her pain.”[10]
[9]PCB 39(a)
[10]PCB 39(b)
22 Mr Lovell treated the plaintiff by a procedure of deep paravertebral injections of cortisone over the articular areas of T9-10 and T10-11. On 21 June 2007, Mr Lovell repeated the same procedure, with the result that the pain levels experienced by the plaintiff decreased.
23 On 27 August 2008, Mr Lovell administered medial branch blocks to levels T8, 9 and 10 which resulted in a positive response for the T9-10 and T10-11 facet joints. That procedure was repeated on 10 September 2008.[11]
[11]PCB 45
24 Mr Lovell recommended a radiofrequency neurotomy which was performed by Dr Bruce Mitchell on 6 October 2008.
25 The plaintiff has had four subsequent radiofrequency neurotomies. The second RFD was performed in April 2010, some eighteen months after the first procedure. Seventeen months after the second procedure, in September 2011, Dr Mitchell performed the third RFD. The fourth RFD was performed in December 2012, some fifteen months after the third procedure. The final procedure of RFD was performed in December 2013, some twelve months after the fourth procedure. Mr Brian Lovell retired from practice in 2013. The plaintiff has been treated by Dr Bruce Mitchell since that time.
26 Dr Mitchell has performed each of the radiofrequency denervation procedures on the plaintiff. His report is dated 6 September 2013 and appears in the PCB at page 51.
27 Dr Mitchell describes the procedure as follows:
“Radiofrequency neurotomy involves heating the small pain nerves that supply the facet joints. The nerve dies off back to the cell body and then gradually regrows and reconnects to the joints usually between 9–18 months in 90% of people. Hence, it is well known and accepted that radiofrequency neurotomy is a treatment which needs to be repeated between 9–18 months in most people.”[12]
[12]PCB 51
28 Dr Mitchell expects that, because of the history of the plaintiff to date, the radiofrequency neurotomies would last between twelve to fifteen months and then require repetition. In his opinion, the plaintiff would require these procedures every twelve to fifteen months into the future.
29 The plaintiff, in the early part of her treatment, had been prescribed Voltaren and Tramadol. She was also prescribed Mobic. The plaintiff does not take any of these medications in her current treatment regime. In her evidence, the plaintiff stated that close to the repeat RFD procedures she will take over-the-counter analgesic medications in the form of Mersyndol, Nurofen Plus and Panadeine. She is not prescribed analgesic medication by her general practitioner.
Medical opinions
General practitioners
30 The plaintiff has attended the medical practice known as Clayton Whole Health Medical Clinic at 31 Dunstan Street, Clayton. The plaintiff relied on medical reports from Dr Janne Randall, Dr Gillian Singleton and Dr Carolyn Ee. The most recent report was dated 23 March 2011 prepared by Dr Carolyn Ee. I note that Dr Carolyn Ee had seen the plaintiff as late as 18 July 2012.[13] The plaintiff’s most recent attendance on the general practitioner, Dr Marina McPherson, in respect of the back injury was on 23 January 2013. The general practitioner reports relied upon by the plaintiff are somewhat outdated.
[13]Exhibit 4
31 Dr Ee, in her report dated 23 March 2011, diagnoses that the plaintiff has suffered a facet joint sprain and accompanying paravertebral muscle spasm as a result of her injury at work. The injury has been confirmed by Dr Brian Lovell, who performed medial branch blocks on the right side at T8, 9 and 10 levels.
32 In Dr Ee’s opinion, the plaintiff is unlikely to require surgery. Dr Ee’s opinion was that the plaintiff’s condition was not likely to improve in the foreseeable future and that her personal recreation pursuits would be limited due to the aggravation of pain if she does too much activity.
Dr Brian Lovell
33 Dr Brian Lovell is a physician working from the Metro Spinal Clinic in Caulfield South. Dr Lovell first saw the plaintiff on 1 May 2007. Dr Lovell prepared a report dated 9 October 2007.[14] Dr Lovell’s assessment was:
“Clinically she has thoracic spinal segmental referred pain which is a fairly non-specific diagnosis but certainly could be facet joint pain due to irritation of repeated usage with acute loading at one particular point where she describes her pain.”[15]
[14]PCB 39(a)
[15]PCB 39(b)
34 Dr Lovell then performed medial branch blocks and diagnosed facet joint pain in the thoracic spine of the plaintiff. In 2007, Dr Lovell’s opinion was that the plaintiff was unable to return to her original duties of analyst. He was of the opinion that the plaintiff should not be asked to repeatedly carry or load any weights in the context of her professional duties. At that time, Dr Lovell thought that the plaintiff was appropriately on modified duties for the foreseeable future.
35 Dr Lovell prepared a further report dated 31 May 2011.[16] Dr Lovell has supervised the first four radiofrequency neurotomy procedures to the plaintiff. Dr Lovell’s opinion is set out in his last report as follows:
“This pain has been demonstrated to be facet joint pain at the levels described and has been successfully treated with radiofrequency neurotomy. With successful treatment like this, it is accepted practice that this will need to be repeated from time to time according to the pattern of recurrence, given that there is at least 6 months or so of good effect and which in her case was at least 8 months before she started to get any significant recurrence.”[17]
[16]PCB 43
[17]PCB 46
36 Dr Lovell retired from practice in the latter part of 2013. Prior to that retirement, he confirmed his previous diagnosis in a report dated 4 April 2013. He stated as follows:
“Hence the diagnosis is of facet joint pain secondary to work-related effects. It is anticipated that she will need repeated radiofrequency neurotomy treatments to control this pain. This is the only effective way of doing this, given that the diagnosis is of facet joint pain as the primary anatomical source. To this extent, things have stabilised and are well under control, allowing her to work in an effective way. Given that she is able to have regular access to this form of treatment she should be able to manage her duties without any significant impairment or modification that may have already been organised (if any).
As her pain is well controlled by radiofrequency neurotomy, I don’t have any direct evidence there is any significant impairment of her day to day personal activities or recreational pursuits.
Obviously during times of pain recurrence, before receiving treatment, she certainly would experience increasing pain and disability effects until the treatment can be repeated.”[18]
[18]PCB 50
37 It is clear from Dr Lovell’s opinion that the plaintiff will require the radiofrequency denervation procedure on a regular basis into the future. He notes that in the lead-up period to the procedure, the plaintiff will experience an increasing pain and disability until the actual treatment is performed.
Dr Bruce Mitchell
38 Dr Bruce Mitchell is the physician who has performed the radiofrequency denervation procedures on the plaintiff under the direction of Dr Lovell. In the latter part of 2013, Dr Mitchell took over the conduct of the plaintiff’s care. Dr Mitchell prepared a report dated 6 September 2013. Dr Mitchell confirms that the diagnosis is facet joint pathology at the levels of T9, 10 and 11.
39 Dr Mitchell describes the procedure as follows:
“Radiofrequency neurotomy involves heating the small pain nerves that supply the facet joints. The nerve dies off back to the cell body and then gradually regrows and reconnects to the joints usually between 9–18 months in 90% of people. Hence, it is well known and accepted that radiofrequency neurotomy is a treatment which needs to be repeated between 9–18 months in most people.”[19]
[19]PCB 51
40 The opinion of Dr Mitchell is that he would expect the plaintiff, based on her history, to receive the radiofrequency neurotomies every twelve to fifteen months. This procedure would be into the foreseeable future.[20]
[20]PCB 52
Dr Peter Blombery
41 Dr Peter Blombery was engaged by the plaintiff’s solicitors to prepare a medico-legal report which is dated 5 December 2013. Dr Blombery took a history that the plaintiff was currently intermittently using codeine, brufen and Panadol, depending on the severity of her pain. He noted that she occasionally took Mersyndol.[21]
[21]PCB 64
42 Dr Blombery took a full history in relation to the radiofrequency denervation operations. On examination, he noted that the plaintiff had a reasonable range of movement of her back, but the movement was painful at the extremes.[22]
[22]PCB 65
43 Dr Blombery’s opinion is as follows:
“This suggests that it is the facet joints on the right side of the thoracic spine which is where the symptomatology is arising from. She has a good response to these but they have to be repeated every twelve months and this is likely to be the case in the future. She requires intermittent analgesic and anti-inflammatory medication as well and this is also likely to be the case in the future.
Her prognosis for improvement is poor and it is unlikely that there is going to be any significant change in her overall level of function in the foreseeable future which involves heavy and repetitive lifting as this would tend to exacerbate her symptomatology.
She copes fairly well with the symptoms and has been able to obtain alternative employment which she can perform reasonably.
I do not think she has very much of a pain sensitisation disorder or chronic pain problem but rather that her pain is arising from the facet joints, as outlined above, in view of the response to radiofrequency neurotomy.”
44 It is clear that Dr Blombery accepts that the plaintiff’s condition arises from facet joint pathology. He is of the view that the plaintiff will require treatment by way of radiofrequency neurotomy approximately every year into the future.
Mr Michael Shannon
45 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. Mr Shannon prepared a report dated 27 October 2011. He noted that at the time of his examination of the plaintiff on 26 October 2011, the plaintiff stated she was not taking any medication. I note that his examination took place within a month of the third radiofrequency denervation procedure.
46 Mr Shannon’s opinions were as follows:
“The prognosis is uncertain in that she continues to complain of symptoms some five years after the injury, although on the date of examination she has no significant abnormal physical signs.
...
She has had some response to radiofrequency denervation which would be consistent with a facet joint problem.
Currently she has a normal range of movement of her thoracolumbar spine without spasm or dysmetria, but discomfort at the extremes of rotation to the right.”
47 Mr Shannon accepts that the plaintiff has a facet joint problem, as he described it.
Psychiatric/psychological evidence
48 In the initial proceedings the plaintiff sought certification for psychiatric/psychological injury. As part of her Court Book, a report prepared by Dr Nigel Strauss dated 14 November 2013 was submitted. It is Exhibit 3 in these proceedings. In Dr Strauss’s opinion this is a very complex case. He expressed the opinion that the plaintiff, from a psychological perspective, had a Pain Disorder associated with a medical condition and psychological factors. In other words, he says her pain is now psychologically based.[23] The plaintiff no longer relies on that opinion.
[23]PCB 59
49 Dr Paul Kornan, psychiatrist, assessed the plaintiff on behalf of the defendant. Dr Kornan prepared a report dated 28 October 2011. In his opinion, the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He described the plaintiff’s psychiatric condition as the upper level of mild severity.[24]
[24]DCB 35
50 Dr Michael Duke, psychiatrist, also assessed the plaintiff. He prepared two reports, dated 9 July 2008 and 22 July 2008. In Dr Duke’s opinion, the psychological symptoms suffered by the plaintiff tended to magnify or exacerbate her physical complaints.[25]
[25]DCB 22
51 Dr Duke described the plaintiff’s pre-morbid personality as follows:
“Ms Burton is clever, stubborn, and has leadership qualities. She tends to put on a happy face and can fake it, although she says, ‘if you put on a happy face for long enough, you then become what your face says’. She was reared Uniting Church but has no religion now. She usually has an equable temperament, but says that she is much more volatile at the present time.”[26]
[26]DCB 15
52 The combined opinions of the psychiatrists, Doctors Strauss, Kornan and Duke, do not alter the physical basis for the plaintiff’s complaints of symptoms from her back. The defendant urged that the psychiatric or psychological difficulties suffered by the plaintiff require the process of “disentangling” of the psychological impact on the plaintiff’s symptoms and consequences.
53 I conclude that the primary cause of the plaintiff’s symptoms and consequences is an organically-based injury to the facet joints in her thoracic spine. The psychological or psychiatric complications referred to by the expert psychiatrists add little to the totality of the consequences for the plaintiff.
Consequences of the injury to the Plaintiff
54 The plaintiff has sworn and relied upon two affidavits, dated 18 April 2012 and 18 January 2014. The plaintiff was cross-examined and re‑examined in the course of the hearing. The plaintiff deposed to the following consequences as a result of the injury to her back.
Sleep
55 The plaintiff deposed that she would often wake up at night in sharp pain.[27] The plaintiff stated that between the radiofrequency denervation procedures, as the pain increased, it would wake her up from her sleep every night.[28] The plaintiff stated that as a result of her interrupted sleep, she was constantly tired, and this impacted on her ability to work and/or engage in social activities.
[27]PCB 11
[28]PCB 20, paragraph 6
56 In her evidence, the plaintiff was cross-examined about the impact of her injury on her sleep. She stated as follows:
Q:“Just in relation to your sleep, Ms Burton, how is your sleep affected – if at all – by your back?---
A:As my pain increases, or if I’ve had a very busy week, I find it very difficult to get comfortable. And it will also wake me up when I try and move at night, because twisting hurts.
Q:And how frequently would that be?---
A:It depends on the day. I could wake up once or twice. I could wake up half a dozen times. It also depends on if I’ve taken the muscle relaxant, the doxylamine succinate, or Mersyndol, because they help relieve the pain, which will reduce the time it takes me to get to sleep. But I will still wake up.”[29]
[29]Transcript (“T”) 71, L10–20
57 The plaintiff stated that in the lead-up to her procedures, her sleep is more particularly a problem. She stated:
Q:“What is the situation with sleep in the two months before the procedure?---
A:In the two months before the procedure, it will take me half an hour or more to get comfortable enough – into a comfortable enough position to be able to get to sleep and then - - -
Q:Is that every night you are saying?---
A:Yes.
Q:How often during the week would you wake up at that stage?---
A:Two, three, four times. It depends on how busy and sore I am when I go to bed, or how busy I’ve been and how sore I am when I go to bed. But, it’s not simply waking up, rolling over and going back to sleep; it’s getting comfortable again.”[30]
[30]T75, L25–T76, L5
58 Whilst it is clear that the plaintiff’s issue and difficulties with sleep are predominantly relating to the two to three-month period prior to the denervation procedure to her back, the interruption to her sleep is an ongoing and persistent problem for her. The fact that someone’s sleep is interrupted in this manner is a considerable consequence, and I find that is the case for the plaintiff.
Pain
59 The plaintiff has given evidence that she suffers pain from the injury to her back. She has given evidence that immediately after the denervation procedure, she gets good relief from the pain in her back. The plaintiff limits the amount of medication she takes for pain relief, because she is fearful that she will go down the path that her mother has done, as she describes it, as an addict. The plaintiff has never been prescribed medication by her general practitioners for pain relief. She relies on the over-the-counter medications of Mersyndol, Nurofen Plus and Panadeine.
60 The plaintiff has not attended on her general practitioners on a consistent or large number of occasions for pain treatment and relief. The plaintiff has relied upon the radiofrequency denervation procedures supervised by Dr Lovell and performed by Dr Mitchell to control her pain levels. The medical opinion is that the plaintiff will require these radiofrequency denervation procedures approximately twelve to fifteen months apart into the foreseeable future. This treatment is the major treatment that the plaintiff receives in respect of her pain.
61 I conclude that the necessity for a thirty-year-old woman to require a medical intervention procedure in the form of a radiofrequency denervation approximately every year into the foreseeable future is a considerable consequence. Further to that, the plaintiff has given evidence, and I accept, that in the months leading up to the radiofrequency denervation procedure, her pain levels increase considerably, requiring her to take over-the-counter analgesic medication.
Medication
62 The plaintiff takes a limited amount of over-the-counter medication to ameliorate the pain from her back. In her evidence, the plaintiff stated that she despised taking painkillers or any medication.[31] She stated that she did not take a lot of medication and that she tried to avoid it.[32] The plaintiff, at that stage of her evidence, gave her explanation that the reason she did not want to take medication was that her mother was an addict and that she tried to avoid taking medication if she could.
[31]T55, L9‑10
[32]T58
63 The plaintiff stated that she did not make a claim on the defendant for payment of her pain-relief medication. She said that she paid for it herself.[33] The plaintiff stated that her medication intake increased in the two to three months prior to surgery, and more so in the last month prior to surgery.[34]
[33]T57
[34]T75
64 I accept the plaintiff’s explanation that the reason she does not take more pain-relief medication is her fear of becoming an addict. The plaintiff has decided that the appropriate way to deal with her symptoms of pain from her back is to undergo the radiofrequency denervation procedures on a regular basis. I note that the frequency for those procedures has increased since the commencement of that medical treatment. I have previously referred to these “gaps” between procedures earlier in these reasons.
Work and study
65 The plaintiff has, since the injury, been able to return to study in 2009 and obtain a Diploma of Education from Monash University. Since the early part of 2011, the plaintiff has re‑engaged in the workforce as a laboratory technician at Scotch College. She works a full week of 34 hours over a 5‑day week. The plaintiff has claimed that as a result of her injury, her opportunities to increase and advance her career have been affected due to her symptoms. During the course of her evidence, the plaintiff has stated that she really enjoys her employment at Scotch College.
66 I accept that there has been some interruption to a career path for the plaintiff as a result of the injury to her back. I do not, however, accept that her career, be it in the field of teaching in the future or returning to full-time laboratory work, has been taken from her as a result of the injury. The period of time between the injury and now is considerable, and the plaintiff has managed to get herself employed and is enjoying that employment. I do not consider that the impact on her work is a considerable consequence for her.
Sport and play
67 The plaintiff has given evidence that her cricket career has been interrupted and, in effect, ceased because of the symptoms from her back injury. There was considerable cross-examination in this application of the plaintiff about her continuing to play cricket subsequent to her injury. The plaintiff was somewhat vague or unable to fully remember the level of her participation in cricket between her resumption in the season of 2008-2009 until 2013. The plaintiff said that as a result of her injuries, she was unable to bowl. She admitted that she had been part of successful batting partnerships in seasons in the past. The plaintiff has also suffered knee injuries and a shoulder injury during the course of this time. These injuries were not directly related to her sporting activity, as I understood the evidence in this case. I accept that there has been some reduction in the ability of the plaintiff to partake in her sport of cricket as a result of the symptoms arising from her back injury.
68 The plaintiff also gave evidence that her singing or choral activities had been markedly reduced as a result of the symptoms from her back. The plaintiff was skilfully cross-examined about her continuing involvement in choral activities. The choral activities involved the plaintiff being the convenor of the InterVarsity Choral Society Festival for 2012. The plaintiff was the convenor of the Choral Festival here in Melbourne in June 2012.[35] She was involved in the Australia Day Picnic of 2012 and the subsequent cricket match for the choral group.[36]
[35]T35
[36]T40
69 In 2013, the plaintiff was involved in the Australia Day Picnic.[37] The plaintiff was also involved in January 2013 in the Adelaide Festival, which was a 10‑day festival in South Australia.[38] The plaintiff also was involved in a trivia night in March 2013.
[37]T41
[38]T45
70 The plaintiff was shown a number of photographs of her involvement in choral activities. These photographs were part of a bundle in Exhibit 2. It is clear from the photographs and the subsequent answers of the plaintiff to the cross-examination in relation to her choral activities, that she has been actively involved in the organisation and participation in choral camps over an extended period and during the course of the symptoms suffered by her as a result of her back injury. The plaintiff stated that her ability to partake in the activities of the choral society was limited due to her pain. She said that during rehearsals and the like she was required to lie down in order to deal with her symptoms. The plaintiff agreed that she was active during the festivals but had little other social life.[39]
[39]T50
71 The plaintiff relied upon the affidavit of Katherine Beringer dated 10 January 2014 to support her proposition that her social life has been severely impacted by the symptoms to her back. I note that Ms Beringer does not refer to the extensive involvement that the plaintiff had in the organisation of the choral festivals in 2012 and participation in 2013.
72 I accept that the plaintiff has had some reduction in the level of enjoyment she achieves from participation in the choral activities. I conclude that her injury has not stopped her from partaking in this activity but has reduced her ability to fully engage in the singing. I do not think this is a very considerable consequence, but it is a consequence of her back injury.
73 I am mindful of the pronouncements by the Court of Appeal in Church v Echuca Regional Health[40] when considering the photographs which constitute Exhibit 2. These photographs are but snapshots of short periods of time in the plaintiff’s activities. I accept that those photographs display the plaintiff obviously enjoying her activities in the choral society for the times of those photographs. However, I also accept that she has downtimes, as described by her in her evidence, and that those downtimes – that is, lying down or having a rest during practice – are the result of her injury to her back.
[40](2008) 20 VR 566
Conclusion
74 In conclusion, I find that the consequences for the plaintiff, who is now thirty years old, of being appropriately treated by radiofrequency denervation into the foreseeable future every twelve to fifteen months, is a very considerable consequence. The reason for these procedures is the control of the pain she suffers from the injury to her back. I have considered the other consequences referred to in these reasons and taken them all into account. This case could be described as a finely balanced case; however, all of those consequences, when taken together, including the constant need for medical procedures into the foreseeable future, are very considerable consequences.
75 I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable. I regard the consequences as being for the foreseeable future, in the sense that they are permanent.
76 The plaintiff has satisfied the statutory test for serious injury for pain and suffering.
77 Accordingly, pursuant to s134AB(16), I grant leave to the plaintiff to bring common-law proceedings for pain and suffering damages arising out of the back injury suffered by her in the course of her employment with the defendant on 27 November 2006.
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