Caberoy v Qantas
[2009] VCC 461
•8 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03021
| Lynn Caberoy | Plaintiff |
| v | |
| Qantas Airways Limited | Defendant |
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| JUDGE: | Her Honour Judge Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Thursday 7 May 2009 |
| DATE OF JUDGMENT (with oral | 8 May 2009 |
| reasons): | |
| CASE MAY BE CITED AS: | Caberoy v. Qantas |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 461 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious Injury Application – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment or loss of a body function – injury to cervical spine – pain and suffering and loss of earning capacity
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.M. Meldrum Qc with | Clark Toop & Taylor |
| Mr N.R. Dubrow | ||
| For the Defendant | Mr G.J. Grabau | Sparke Helmore |
| HER HONOUR: |
1 I propose to give oral reasons for decision in this case. Ms Caberoy seeks leave to issue common law proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury she suffered to her neck, left shoulder and left arm in an incident on 28 February 2002 during the course of her employment in the hot plating section of the kitchen at Qantas Airways, where she had worked since late 1993. Ms Caberoy says she has suffered a serious injury within the meaning paragraph (a) of the definition of serious injury in s.134AB(37) of the Accident Compensation Act 1985 (“the Act”) in that she has suffered a serious permanent impairment of the function of the cervical spine.
2 Ms Caberoy is 45 years old and is right-handed. On 28 February 2002, when she was lifting boxes from the floor with a twisting action, she felt pain in her neck, left arm and left shoulder. She took some time off work after the incident, then returned to work on limited hours and duties with restrictions working in the salad bar and continued to take taking anti-inflammatories and analgesics. Her symptoms persisted and she was referred by her doctor to a neurologist and to a neurosurgeon, Mr Davis. In 2003 Mr Davis recommended surgical decompression of the C5-6 nerve and disc, but the plaintiff declined to have surgery. She suffered a recurrence of symptoms in March 2006 and Mr Davis again recommended surgery, which she underwent in May 2006. She then returned to work up to 20 hours a week in the salad bar until her employment was terminated in July 2007. Since that time, the plaintiff says that she has applied for at least ten jobs of a similar kind, without success.
3 According to her affidavits the plaintiff has suffered considered pain and disability affecting her neck, left shoulder and left arm. In spite of surgical decompression of the C5-6 disc she continues to suffer pain for which she takes Lyrica daily, and sometimes Norspan patches. Her sleep is interrupted, she has difficulty driving, she needs help for housework from her daughter and partner. She can no longer do gardening which she enjoyed prior to the injury in February 2002, and sexual activity with her partner exacerbates to her neck and shoulder pain. She continues to have massage which she funds herself. She finds she gets tired and irritable due to her neck and shoulder pain, she has become socially isolated.
4 The plaintiff agrees with the defendant's medico-legal experts Mr Baker and Mr Nye, as well as with the occupational assessment of Ms Schneider dated 19 March 2009, that she is fit to work 20 hours per week as a sandwich hand. The defendant concedes that on this basis the plaintiff has satisfied the statutory requirements in relation to the loss of earning capacity consequences of her impairment. The defendant raised no issue as to the plaintiff’s credit, nor did it take issue with the plaintiff's evidence concerning the symptoms she says she has suffered as a result of the incident in 2002, or with the opinions given by her own treating neurologist and neurosurgeons in relation to the condition resulting from the February 2002 incident.
5 However, the defendant says that the plaintiff cannot succeed because the 2006 exacerbation, for which there has been no claim, constitutes a separate injury whose consequences may not be aggregated with those of the 2002 injury, and the plaintiff has not established the relative contribution of each of the incidents to her current condition.
6 Mr Meldrum on behalf of the plaintiff submits that what happened in 2006 is to be regarded merely as a recurrence or exacerbation of symptoms which the plaintiff had regularly been experiencing since 2002. He relies on the fact that the plaintiff described what happened in 2006 as an exacerbation of symptoms which occurred over time when she was required by the chef to work without a partner lifting things which were too heavy for her. He relies the medical evidence of Mr Davis, who noted in his report that her symptoms had been recurring on and off effectively since 2002. He also relies on the employer's letter of termination which indicated that the employer have been treating her continued symptoms as recurrences of an injury which occurred in February 2002. He also submits that this is reinforced by her claim form signed by the plaintiff on 27 March 2006 describing her injury as an aggravation of her old neck and shoulder injury.
7 Mr Davis reported that the radiology suggested pathology in the form of left sided paracentral disc protrusion at C5-6 intruding into the left C6 nerve root which was confirmed on MRI. He described how she returned to see him in 2006 in the context of a history given of a number of flare-ups which had occurred over the previous three years, lasted for a number of months at a time, the last of which had lasted for the previous ten months, in which the plaintiff experienced similar symptoms of pain radiating to her left shoulder and left arm with associated pins and needles.
8 I note that this history is consistent with the conclusions reached by the defendant's own medico legal experts, Dr Baker and Mr Nye, that there was a significant contribution to her ongoing symptomatology caused by the incident of 2002.
9 On the authorities[1] the proper analysis in this case is to consider the impact of the 2002 injury, which resulted from a specific incident, on the plaintiff, and to determine whether that injury was a material contributing factor to the impairment relied on by the plaintiff. That analysis reveals that the specific incident and injury was reported to the employer at the time and resulted in substantial symptoms requiring medical treatment from that time. There was a medical diagnosis (confirmed radiologically) of a disc protrusion at C5 and C5- 6 with impingement of the exiting nerve root which ultimately resulted in ongoing symptoms requiring at first, conservative treatment with medication, but later warranting a recommendation for surgery in 2003. That surgery did not take place, but the plaintiff continued to experience a series of flare-ups and exacerbations lasting months at a time resulting in a further referral to the same neurosurgeon with a further recommendation for the same surgery recommended in 2002. That surgery was undertaken and resulted in an alleviation but not a resolution of the plaintiff’s symptoms. Viewed properly in its context, in my view, the experiencing of symptoms in 2006 was merely another episode of exacerbation in the context of a permanent impairment of the cervical spine resulting from the 2002 injury.
[1] See Barwon Spinners Pty Ltd & Ors v Podolak [(2005) VR 622; Grech v Orica Australia Pty Ltd & Anor (2000) 14 VR 602; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142.
10 I turn to consider the consequences in terms of pain and suffering and loss of earning capacity which flow from the permanent impairment of the cervical spine resulting from the injury sustained at work in 2002.
11 In order to make out a serious injury within paragraph (a) of the definition in s.134AB(37) of the Act the plaintiff must establish that she has suffered a permanent impairment or loss of a body function whose consequences to her in terms of pain and suffering, and loss of earning capacity are when judged by comparison with other cases in the range of possible impairments, or losses of a body function fairly described as being more then significant, or marked and as being at least very considerable.
12 On the authorities a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries. Decisions as to whether an injury is serious involves elements of fact, degree and value judgment. Where loss of earning capacity is alleged leave to issue proceedings is not to be granted unless the plaintiff establishes that as at the date of the hearing she has a permanent loss of earning capacity of 40 per cent or more.
13 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her physical, and mental capacity for suitable employment after the injury, and her attempts to participate in rehabilitation or retraining, she has a capacity for any employment which if exercised would have the result of her earning more then 60 per cent of her pre-injury illness as determined in accordance with paragraph (f) of s.134AB(8) of the Act.
14 The worker's loss of capacity is to be determined having regard to employment that is generally available in the employment market rather than the position tailored to meet the peculiar needs of a individual worker who is incapable of performing her normal work.
15 I am satisfied having regard to the calculations produced by the parties that even working 20 hours a week as a sandwich hand the plaintiff will suffer a permanent loss of earning capacity of 40 per cent or more as required of the Act, and I am therefore satisfied as well that the loss of earning capacity consequences of her impairment are at least very considerable when compared with other cases in a range of possible of impairments and body function.
16 I note that the plaintiff continues to suffer the symptoms in the neck, left shoulder and left arm. She continues to take medication for those symptoms, and there is universal agreement among the treating and examining doctors, and the occupational assessors, that by virtue of the ongoing nature of these symptoms she is no longer fit to work in her pre-injury duties and indeed, no longer fit to work fulltime, but is limited to work part time with restrictions in an allied occupation as a sandwich hand.
17 In all the circumstances having regard to the plaintiff's uncontradicted evidence in relation to the pain and suffering which I find is materially caused by the incident of February 2002 I consider that the pain and suffering consequences of her cervical spine impairment, which are permanent, are at least very considerable and compared with other cases in the range of possible impairments of the cervical spine.
18 For those reasons leave is granted to the plaintiff to issue common law proceedings for the recovery of damages in respect of the injury to the cervical spine sustained in the incident of February 2002.
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