Carlin-Smith v Victoria Police
[2013] VCC 603
•28 June 2013
| 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-12-00468
| SARAH CARLIN-SMITH | Plaintiff |
| v | |
| VICTORIA POLICE | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2013 | |
DATE OF JUDGMENT: | 28 June 2013 | |
CASE MAY BE CITED AS: | Carlin-Smith v Victoria Police | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 603 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck and shoulder – pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff is granted leave to commence a proceeding claiming pain and suffering damages in respect of the incident the subject of this application.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Garnham | Slater & Gordon Ltd |
| For the Defendant | Ms S Manova | Lander & Rogers |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming pain and suffering damages for injury suffered by her in the course of her employment with the defendant, arising by reason of an incident which occurred on 9 September 2008.
2 The injury sustained by the plaintiff is to her cervical spine, and the relevant impairment of body function is that of the neck and shoulder.
3 In the proceeding, the plaintiff relies upon two affidavits, sworn by her on 15 September 2011 and 24 April 2013 respectively, and an affidavit sworn by her husband on 22 April 2013. In addition, the plaintiff attended to give viva voce evidence and was cross-examined. Otherwise, the parties rely upon various medical reports and other material tendered by them.
4 In her first affidavit, the plaintiff deposed as follows:
· She was born in 1971 and is currently forty-two years of age.
· She studied music at the Victoria College of Arts but did not complete that course and, after working as a personal assistant and music teacher at the Peninsula Grammar School in Mount Eliza, she joined the Victorian Police Force. As at the date of her injury, she held the rank of Sergeant and was working within the Sexual Offences and Child Abuse Unit.
· She initially managed the neck injury the subject of this application with physiotherapy and osteopathy. She subsequently attended her general practitioner, Dr Awburn, who referred her to Mr Paul D’Urso, a neurosurgeon, and Mr Daniel Lewis, a rheumatologist. She also underwent rehabilitation at the Nepean Rehabilitation Centre.
· In 2009, the plaintiff reduced her working hours but said:
“Things though however became too much and I went off work until March 2010 when I commenced a graded return to work plan, resuming full-time hours by September 2010.”
· She currently occupied the position of Senior Sergeant stationed at the Centre for Leadership and Management. She said that she also carried out−
“… a little work myself in running some personal development programs such as cyber-bullying in schools.”
· By reason of her neck injury, she had been classified as being “non operational”.
· In management of her symptoms, she employed Mersyndol−
“… nearly every 2nd day and I also often take Nurofen. I take Antenex for anxiety approximately a few times each week. I periodically have massage treatment Beleura Sports and Spinal Group. I find it difficult to sleep or lie down without a specific pillow or a towel/roll under my neck for support to try and ease neck pain.”
· She suffered from the following symptoms;
§ Constant neck pain which was concentrated on the right side of her neck and her right shoulder. This pain was exacerbated by sitting or standing in one position for long periods of time, long periods of driving and raising her head;
§ She had difficulty turning her neck to the right;
§ Headaches;
§ A loss of strength in her right arm;
§ What she described as a significant sleep disturbance.
· Prior to her injury, she enjoyed water skiing, riding a jet ski and knee boarding. She also enjoyed playing basketball, racquetball or squash with her children. These activities were now denied to her.
· Activities such as vacuuming, sweeping and cleaning the bathroom were difficult for her and she regularly had to employ home help.
· She had recently travelled to Queensland with her children and had been unable to go on rides with them. She said that since her injury, she had−
“… occasionally had a hit of tennis but I cannot run or play vigorously without resulting pain due to the neck injury.”
5 In her second affidavit, the plaintiff deposed as follows:
· She suffered from constant neck pain which was exacerbated by activity or turning her neck. Her neck often felt stiff and she had a decreased range of movement in her neck.
· She suffered from frequent headaches and pain into her right shoulder.
· She took Mersyndol for pain relief (two per night, four to five times a week) and also employed Panadeine Forte−
“… about twice a week as well as a top-up with Nurofen and Panadol. Most nights I apply heat packs and I also sometimes wear heat pads as I find this treatment helps relieve neck pain. Approximately every 3 weeks I have remedial massage, which mainly centres on my shoulder region.”
· The restriction in engaging in the sporting or recreational activities described in her previous affidavit persisted.
· She said that her family often engaged in boating activities, but for her−
“Even being seated in our speed boat, with the jolting on the water, aggravates the neck pain too much.”
· Her neck pain caused her to sleep poorly and wake with pain. She described this having led to a situation in which she and her husband often slept in different rooms. She said her neck injury had adversely affected her sexual relationship with her husband.
· In August 2012, she had completed her operational skills tactics training within the police force, the completion of this program being required for her to retain her employment in the force. She said:
“Whilst I found this training difficult due to the neck injury I was able to accommodate various physical tasks to protect my neck.”
· She was currently working as a Senior Constable within the Frankston Sexual Offences and Child Abuse Investigation Team, explaining:
“When I was injured I was working as a Sergeant in the Dandenong Sexual Offences and Child Abuse Unit and transitioning to becoming a Detective. My non-operational status after the injury prevented that transition continuing and I went and worked for a few years in training roles at the Victoria Police Academy. I obtained the rank of Senior Sergeant.
I want to acquire the status of and work as a Detective, however I was advised that I could only undertake the Detective training from the rank of Senior Constable. This situation is different to when I was injured because as indicated I was then in the process of transitioning to a Detective whilst having the rank of Sergeant. Consequently because of the timing of the injury I lost my opportunity then to become a Detective and I now have a lower rank and am on a lower pay.”
6 Mr Ashley Carlin-Smith, the plaintiff’s husband, deposed as follows:
· He and his wife had been together for some eleven years. They had a blended family of four boys aged eleven to sixteen years, two who lived with them on a full-time basis and two who spent about 30 per cent of their time with them. The family led an active sporting life in respect of which the plaintiff, prior to her injury, participated in numerous activities such as water skiing, kneeboard riding, jogging and playing touch football. He said that these activities were now denied to the plaintiff, her symptoms being such that−
“…she even finds being a passenger in the speed boat too difficult as the movement of it on the water jolts her neck.”
· The plaintiff was a light sleeper and she often woke at night with neck soreness, commenting:
“This has affected our sleeping arrangements and we now often sleep in separate rooms so that I can get a good night’s sleep. This has been a source of tension and frustration between us. Further, the neck injury has had a significant effect on sexual relations between [sic] and I know this has upset Sarah a lot.”
Viva Voce Evidence
7 In evidence-in-chief, the plaintiff corrected the statement made by her in her most recent affidavit as to her use of Panadeine Forte, stating that she employed Panadeine Forte probably once a fortnight in the evening and only as a top-up to her Mersyndol, which she took daily.
8 She also explained that she was currently employed as a Detective Leading Senior Constable within the Sexual Offences and Child Abuse Investigation Team in Frankston and that, whilst this involved a demotion from the previous rank she had held of Senior Sergeant, she had accepted the demotion so as to secure her path to promotion through the ranks as a Detective. She explained that at the time at which she had been injured, she was involved in a process in which everyone who was employed in the Sexual Offences and Child Abuse Team were transitioning to their equivalent rank but as detectives “…but I wasn’t eligible for that transition process because of my injury”.
9 In cross-examination, the plaintiff gave evidence that:
· She essentially employed Panadol, Mersyndol Night Strength, Antenex and Zoloft to manage her condition, with Panadeine Forte as a top-up. She said that there were occasions when she would not employ Mersyndol but she did so−
“Most nights, Your Honour, I’d probably – there would be some nights where I wouldn’t but maybe four nights a week I would take two before going to bed.”
· She was prescribed Antenex by Dr Daniel Lewis, the pain management specialist, because it was “a really good muscle relaxant”.
10 It was put to the plaintiff that her rehabilitation program had had the effect of significantly improving her neck movement and pain, to which the plaintiff responded:
“I wouldn’t phrase it as significant improvements in – it was more about learning to manage it on a day to day basis rather than it not being there any more.
…
I would say that the symptoms – it was how I learnt to manage them improved (sic).”
11 The plaintiff said that:
· She continued to employ remedial massage treatment of her symptoms, the cost of which was borne by her by reason of the refusal of her Workers’ Compensation insurer to meet the costs associated with that treatment.
· She had not sought specialist treatment since 2010.
· Her role within the police force at the time of her injury was largely supervisory. At that time, she was pleased to have learnt that she could transition to Detective within the unit in which she was working, which she regarded “almost as a bonus”.
· Whilst the police medical officer had originally cleared her to undertake operational duties, her general practitioner had “cleared me for full-time duties, he didn’t clear me for operational duties”. She said that she undertook and completed her Operational Safety Tactics Training (“OSTT”) in 2012 and that prior to that, by reason of her injury related incapacity, she had been stationed at the Centre of Leadership and Management section of the police force where she undertook a non-operational position. She described this transfer as being attractive to her because it gave her job security but, because the area in which she was employed within the police force at the time at which she was injured was one that she “most loved” and “knowing that they were all transitioning to Detectives in the field that I most loved, I would have stayed there without hesitation”.
· She had, in late 2010, worked 32 hours a week, which allowed her “to attend for massage treatment and also to attend to some family needs”. She agreed that at this time she was involved in consulting to schools, explaining that this actually involved her in “one or two sessions in a school term which would be 45 minutes”. She said that she had occupied an operational position as Senior Sergeant at the Rosebud Police Station, but that that position involved “essentially administration and management”, and that she had completed her OSTT training in 2012, at which time she was recognised by the Department as being operational.
12 The plaintiff was cross-examined at length as to the physical nature of the OSTT training. She accepted that there were physical components of that activity which included a requirement upon her to engage in kicking and punching and the tactics involved in disarming offenders, and that in the course of the program, she was required at times to participate as a demonstrator, both in the role of a police officer and in the role of an offender. She described these activities as occurring in the course of a day; that all members of the police force were required to complete their OSTT requirements every six months or twelve months to remain operational, that she employed sufficient energy to meet her requirements but that “I didn’t give it 100 per cent”.
13 The plaintiff said that;
· In her present position, she was required to investigate any sexual offences on children or adults and that this involved 90 per cent of her work being done in her office. She agreed that she went on a holiday with her family in Queensland to the Gold Coast and that she had also been to Daydream Island, Kingscliff in New South Wales, and to Palm Cove.
· She suffered from neck pain every day and that she employed medication to keep it at a manageable level, but that her medication did not make the pain go away.
14 The plaintiff accepted that she was able to work, describing her symptoms as being−
“… a bit unpredictable … I might do quite well and then it will – all of a sudden I find I’ve sat for too long. Usually afternoons – evenings is the worst.”
15 The plaintiff said:
· That whilst the family had a speedboat and water sports were a regular activity for the family before her injury, she had not physically been out in the boat since her injury. She accepted that she could still do things like basketball, racquetball and squash, but could not engage in them freely, commenting, “I didn’t last very long, and similarly with tennis”.
· That her ability to play the flute was restricted and that her ability to tolerate the posture required of her to play the flute varied, but that she could no longer play for extended periods. She said she was still able to do the general cooking, but she now employed a cleaner as a matter of necessity. She said that she accepted she could do some vacuuming or sweeping, depending on her symptoms, commenting:
“There’s probably – really the only thing I can’t seem to do is lifting up from high – like if something’s above the fridge or something.”
16 The plaintiff accepted that she was not being prescribed sleeping tablets but described both Antenex and Mersyndol as having calmative effects. She said that, whilst she had tried different sports since her injury, she did not play sport regularly any more. She said that she had discontinued going to the gym and he no longer went walking and roaming long distances with her husband. She had sought some tennis lessons with friends so that she could play social tennis−
“… but I think I only had three because whilst I could do it, the repercussion later that evening was not worth it.”
17 In re-examination, the plaintiff said that activities such as vacuuming usually required her to employ more medication and a heat pack−
“…if we’ve got something set up for the night it usually won’t happen. I’ll just sort of rest it. It usually gives me a whopping headache. Sometimes a hot shower is a little helpful – just the heat.”
18 She said:
· that prior to her injury, she may have spent the whole afternoon playing the flute and that, on other occasions, she would play for shorter periods.
· that before her injury, she would go out with her family in the boat every time they took the boat out; that she would spend the whole day on the boat when they were at Eildon;
that whilst undertaking her OSTT training, she had told “the girl in front of me and the other person I was working with that I’ve got an injury and I’m going to nurse my way through this … . There’s no formal assessment as such, like a test or anything at the time of it. It’s just participation and completion”.
19 She described herself as being a good sport prior to her injury and being involved with her four boys, who were full-on (two of them are extremely sporty kids) and that now when her family goes skiing in Port Phillip Bay, “I drop them down there and then go home”.
20 She said that at the end of her working day she was exhausted, explaining:
“Because I spend a lot of time at the desk usually by the end of the day my shoulders feel like they’re in my ears because you know, my level of pain from the day is usually quite extreme by night and I just – I just want to rest it, I just want to give my body a break.”
The Medical Evidence
21 Dr Awburn, the plaintiff’s general practitioner, in a series of reports between 9 April 2009 and 30 March 2013, described the plaintiff as having suffered a work-related injury to her C5-C6 disc. As at June 2009 he opined that the plaintiff was medically unfit to continue in the police force as an operational officer, commenting, “This may be long term”.
22 In March 2010, Dr Awburn opined that the plaintiff was making progress but that she required assistance with household duties, and that she would benefit from continuing home help.
23 As at June 2010, Dr Awburn described the plaintiff as having suffered an injury in the form of a prolapse of the C5-C6 cervical disc which had been initially treated with medication and physiotherapy, but by reason of poor progress the plaintiff had been referred to the St John of God Rehabilitation Hospital for “a multidisciplinary approach to her pain management”. As at 2010, Dr Awburn described the plaintiff as being−
“… currently fit for light duties at 3 days a week, 6 hours per day; desk based work with breaks in order to gently mobilise.”
24 In May 2012, Dr Awburn described the plaintiff as self managing her pain with Mersyndol Night Strength, Panadeine Forte and Diazepam when required. He described her injury as causing her to avoid –
“Bending, lifting, stooping, repetitive pushing, pulling, repetitive and/or prolonged use of her cervical spine, overhead activities, prolonged sitting, walking and standing” as these activities tend to lead to increased pain in her neck. “She is not precluded from kneeling, squatting or crouching, walking up or down inclines, using steps or ladders or from tasks requiring manual dexterity.”
25 He said that the plaintiff’s engagement in the restricted activities described by him (in particular prolonged sitting and lifting) tended to cause rapid fatigue and varying degrees of “payback” pain. Dr Awburn commented that he expected these restrictions to be ongoing.
26 As at May 2012, Dr Awburn:
· opined that the plaintiff remained unfit for full-time operational duties.
· confirmed that since her injury, the plaintiff had ceased participating in water sports, tennis, running and long drives, and said that she employed a cleaner to perform household activities, cleaning bathrooms and vacuum cleaning.
· described the plaintiff’s prognosis as “not good”, commenting:
“She is likely to have to self manage by avoiding aggravating activities and managing her pain for the foreseeable future.”
27 On 30 March 2013, Dr Awburn opined:
· That the plaintiff continued to self manage her persisting neck pain with analgesia, exercise and remedial massage;
· That the plaintiff was advised for the foreseeable future to avoid stooping; activity that required continued flexion of the neck; heavy lifting, pushing or pulling; prolonged or repetitive use of her cervical spine and overhead activities, commenting:
“Even brief episodes of the above activities are likely to exacerbate her neck symptoms.
I believe Sarah has the capacity to perform her pre-injury duties excluding the above activities. This would exclude defence tactics training and active operational duties. Within these restrictions, she could manage full time hours. These restrictions are likely to be permanent.”
28 In a report dated 12 August 2010, Dr Nathan Johns, a consultant physician in rehabilitation medicine, reported upon the plaintiff’s treatment within the St John of God Nepean Rehabilitation Hospital. Dr Johns noted that an initial MRI scan of the plaintiff’s cervical spine demonstrated a disc prolapse at the C5-6 cervical level abutting the spinal cord but without causing myolopathy. He described this disc as being the likely source of the plaintiff’s initial pain. Dr Johns said that the plaintiff had improved during her rehabilitation program, achieving:
· reduced pain;
· improved activity and
· reduced self-reported disability.
He opined:
“The disc injury will not improve over time without surgery … .
She does continue to suffer from ongoing neck pain, headaches and reduced upper limb strength. Given that she has now suffered this injury for over eighteen months, it appears likely that she has reached a plateau in function …
I would consider that there is a moderate risk for a relapse of pain if Ms Carlin-Smith returns to operational duties involving hands-on arresting of suspects or the same tactical training … .
Ms Carlin-Smith has been motivated to improve and has participated well in the rehabilitation program.”
29 Mr Greg Malham, a neurosurgeon, reported that the plaintiff presented to him some fifteen months after her work-related injury with persisting cervical and scapular region pain, associated with a soft tissue injury of the C5-6 disc in the cervical spine. He commented that the plaintiff had a good prognosis for returning to suitable alternative employment and retraining, opining that she should continue with her supervised structured rehabilitation program with the aim of improving her pain and functional status.
30 Mr Paul D’Urso, a neurosurgeon, in a report dated 10 June 2010, diagnosed the plaintiff as presenting with “C5-6 disc degeneration and a broad-based prolapse”. He recommended that the plaintiff’s condition be managed by anti-inflammatory and analgesic medication, commenting that surgery was an option should her symptoms deteriorate, but that the progress for her condition was most likely to be satisfactory.
31 Dr Daniel Lewis, a rheumatologist, in a report dated 20 June 2010, commented that the plaintiff presented to him with persisting dysfunction of the cervical spine secondary to a soft-tissue injury, describing the progress of this type of injury as being good.
32 Mr David Brownbill, a consulting neurosurgeon, has examined the plaintiff on two occasions, 3 November 2011 and 4 April 2013. In his first report, Mr Brownbill opined:
· that the plaintiff had suffered a derangement of the C5-6 cervical intervertebral disc;
· that the plaintiff’s condition was stabilised;
· that the plaintiff was restricted in her capacity to engage in heavy lifting; forced cervical spine mobility or holding her neck in a fixed position; activity which involved, to a marked extent, repetitive or prolonged use of the cervical spine; pushing, pulling or lifting and overhead activities;
· that the plaintiff would be, accordingly, restricted in her ability to engage in social, domestic and/or recreational activities “in a moderate to marked degree”;
· that the plaintiff’s pain would continue in a fluctuating manner;
· that the plaintiff should employ analgesics and anti-inflammatory medication in the management of her condition.
33 In his second report, Mr Brownbill expressed a similar opinion to that in his previous report, commenting that the plaintiff did not have the capacity for performing “full-time unrestricted operational police duties”.
34 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on 15 March 2011 for the purpose of undertaking an impairment assessment on behalf of the defendant. In a subsequent report, Mr Brendan Dooley opined that the plaintiff had a soft-tissue injury to the cervico-thoracic spine involving a C5-6 disc prolapse “causing neck pain with right brachial neuralgia referred to the right arm and right shoulder girdle area”.
35 In a report dated 21 June 2012, Mr Robin Williams, an orthopaedic surgeon, opined that the plaintiff had sustained a soft-tissue injury to her C5-6 disc, that her symptoms were “best described as a type of Chronic Pain Syndrome affecting the neck and right shoulder”, commenting:
“…she has a significant psychological component to her sense of illness, but I am not an expert in this matter.”
Findings
36 The plaintiff’s treating medical practitioners have described the plaintiff as presenting with a prolapse of the C5-6 disc.
37 Whilst initially the plaintiff presented with symptoms of anxiety and a lowered mood in association with her injury, I am of the opinion that her general practitioner is well placed to assess whether the plaintiff presents with symptoms which are in any way influenced by emotional rather than organic factors.
38 As at 30 March 2013 I interpret the position of Dr Awburn in this respect, to be one in which the plaintiff presents with genuine physical symptoms which restrict her in the manner described by him in his report; the result of that restriction causing the plaintiff to experience symptoms of depression.
39 There is no suggestion by Dr Awburn (or for that matter a large body of the medical practitioners who have opined in the matter) that the plaintiff’s depression impacts upon her pain or the level of physical restriction which her condition imposes on her. Given the consistency between the opinion of Dr Awburn and that expressed by:
· Dr Johns, who managed the plaintiff’s rehabilitation;
· Mr Paul D’Urso, Mr Daniel Lewis and Mr Greg Malham, who have each consulted with the plaintiff in a treating capacity, none of whom have suggested that there was any “functional” aspect to the plaintiff’s presentation;
I do not find opinions that the palintiff’s presentation in influenced by psychological factors to be persuasive.
40 It was put on behalf of the defendant that the plaintiff’s ability to complete the OSTT training necessary for her to maintain her operational status as a police officer (notwithstanding the presence of her symptoms), provides an accurate indication as to the plaintiff’s capacity to undertake activity
41 Having regard to:
· The evidence given by the plaintiff as to her approach to that assessment task, which I accept;
· The vast range of ages and levels of physical fitness within the population of serving members of the police force;
I do not find the plaintiff’s ability to complete her OSTT training as being in any way an indicator of the plaintiff possessing an ability for activity beyond that described by her in her affidavits and evidence.
42 Whilst it was put on behalf of the defendant that the plaintiff had not been completely frank in describing both her level of retained capacity and her level of incapacity, I do not accept the position for the following reasons:
· Firstly, in my opinion, the fact that the plaintiff−
(i) Has returned to full-time employment in a role which largely involves light physical activity;
(ii) Has accepted a position at a lower rank to that which she occupied at the time of her injury in order to re-establish her career in the area in which she enjoys and possesses considerable expertise;
(iii) Is prepared to meet the costs associated with remedial massage therapy in the absence of that expense being met by WorkCover;
provides support for the position that the plaintiff is motivated to minimise the effect of her condition upon her career and her life and each of these matters speak considerably to the plaintiff’s credit.
·Secondly, in my opinion, the plaintiff’s described disabilities accord with those which I would have expected would be associated with the condition with which the plaintiff presents as described by the plaintiff’s treating doctors.
43 It follows that I am satisfied that the plaintiff presents as an honest and reliable historian.
44 Further, I do not accept the position taken by the defendant that, merely by reason of the fact that the plaintiff in the course of her evidence-in-chief and before any challenge was made to her evidence, corrected the content of her affidavit which overstated the amount of Panadeine Forte which she was employing, in some way suggests that the plaintiff’s evidence was unreliable as to that issue.
45 In reality the defendant is largely dependent upon the plaintiff’s veracity as to the amounts of medication being employed by her and the plaintiff’s correction is in one sense detrimental to her position as to the seriousness of the consequences of her subject impairment.
46 A specific issue is raised by the defendant as to whether the plaintiff’s evidence as to the medication which she employs to manage her symptoms should be accepted. In this respect the defendant points to the fact that the plaintiff’s viva voce evidence as to the amount of Panadol she ingested daily was:
“A:There may be some days, your Honour, where I would take six, there would be other days where I could take- I try not to take Nurofen. Usually when I've run out of Panadol. Nurofen doesn’t agree with me.
Q:So it’s either Panadol of Nurofen?---
A:Yes, your Honour.
Q:But it’s primarily Panadol?---
A:Yes, it is.
Q:Mersyndol night time?---
A:Yes.
Q:Most nights, your Honour, I'd probable – there would be some nights where I wouldn’t but maybe four nights a week I would take two before going to bed;”
and that Mr Brownbill, in his report of 4 April 2013, describes having obtained from the plaintiff a history that her medical regime consisted of Mersyndol, Zoloft, Nurofen, and intermittently Antenex.
47 I find the plaintiff’s inconsistency in evidence upon such a critical issue as to the medication she employs to control her symptoms troubling. When this issue is considered in the context of:
· The fact that there is the possibility that Mr Brownbill’s history may not be accurately recorded by him;
· The plaintiff’s evidence in which she made concessions without hesitation as to her physical capacity (see, for example, her evidence at Transcript 70); as to the activities in which she participated with her children; her evidence as to her ability to manage her household chores (Transcript 72); and most significantly, in my opinion, her evidence (Transcript 73) as to the only activity in respect of which she was precluded, namely lifting items over shoulder height, all of which gave me a strong impression that the plaintiff was a reliable witness who was ready to make truthful concessions to her potential detriment;
· My earlier observations as to her credibility and reliability;
· The fact that the plaintiff was not challenged as to this evidence and was not given the opportunity to explain the inconsistencies to which I have referred;
I am satisfied that I should accept the plaintiff’s evidence on this issue.
48 The plaintiff is in her early forties. She presents with a condition which:
(i) was described by her treating rehabilitation specialist, Dr Johns, in 2010 as involving:
§ ongoing neck pain;
§ headaches; and
§ reduced upper limb strength.
in respect of which Dr Johns opined in 2010 “Given that she has now suffered this injury for over 18 months, it appears that she has reached the plateau in function”.[1]
[1]I find this statement by Dr Johns to be persuasive, having regard to his position as the plaintiff’s managing rehabilitation specialist, his association with the plaintiff in that capacity over a considerable period of time and the nature of the injury suffered by her, namely a disc prolapse at the C5-C6 level of the cervical spine
(ii) requires management by the plaintiff employing a regular regime of medication in the form of Mersyndol, four to five times a week; Panadol, four to six tablets on most days; Valium in the form of a muscle relaxant regularly, and Panadeine Forte once a fortnight; which regime I accept is likely to be a long term.
(iii) permanently restricts a previously fit and active woman from engaging in any form of modestly strenuous activity.
(iv) causes the plaintiff to suffer from the symptoms described by her in her affidavits.
49 Whilst I accept the position put by the defendant that the plaintiff’s medication does not involve large doses of prescription-strength medication and that this gives some insight as to the plaintiff’s level of pain, the level of medication which the plaintiff employs is in my opinion:
· Nonetheless significant when considered in the context of the plaintiff’s relatively young age and her likely long-term need to employ such quantities of medication; and is
· Consistent with the level of medication which I would have expected to be necessary to manage:
(i) the symptoms described by the plaintiff in her affidavits and her viva voce evidence;
(ii) the condition with which the plaintiff presents as described in the medical evidence to which I have referred.
50 I am satisfied, taking into account the above matters, that the plaintiff presents with a condition which is stable and gives rise to significant symptoms for a young woman who was previously fit and active.
51 Further, that the plaintiff is able to manage her condition conservatively is in my opinion no indicator of the severity of her condition or the consequences of that condition upon her life, having regard to the fact that the consensus of medical opinion is to the effect that no management, other than conservative management, is appropriate.
52 Whilst:
· The plaintiff has been able to retain her position within the police force, I am satisfied that she has done so by reason of not only of her own perseverance but also because her work involves largely light duties which allow her to accommodate her symptoms. Equally, I accept the fact that the effect of her work upon the plaintiff’s condition is such that at the end of the day she is largely exhausted.
· The plaintiff retains the ability to undertake various household tasks, I accept her evidence that she must carefully monitor her involvement in those tasks and that they often give rise to a flare up in her symptoms.
53 I further accept that:
· the plaintiff’s symptoms interfere with her ability to sleep to such an extent that her husband regularly sleeps in a different bedroom and that their physical relationship is adversely impacted upon by her symptoms;
· the plaintiff is restricted in her capacity to engage in the sporting and physical activities undertaken by her sons and her partner, with the effect that her position has been changed from her acting in a manner appropriately described as being a good sport and willing participant in those activities, to an observer.
54 In deciding the issue which arises in this case namely, whether the plaintiff’s pain and suffering consequences, 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, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to her and determine where the facts of this case sit in the broad spectrum of cases. I am guided in my approach to the analysis of the particular circumstances of this case by the statements of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[2] Sutton v Laminex Group Pty Ltd[3] and Hawkins v DHL Express (Australia) Pty Ltd.[4] The task which I am required to undertake has been described as one which involves an objective analysis of the evidence as to the extent of the consequences associated with a particular impairment[5] together with:
[2](2010) 31 VR 1
[3][2011] VSCA 52
[4][2013] VSCA 26
[5] Hawkins v DHL Express (Australia) Pty Ltd (supra)
“… a value judgment, in which matters of fact and degree, and of impression, are operative”[6]
[6] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
and one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[7]
[7]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
55 In undertaking the balancing exercise required of me, comparing on one hand the findings I have made that the plaintiff retains the capacity to engage in her work and activity in general, and those which I have made as to the adverse consequences to the plaintiff of her injuries, I am satisfied that this case is delicately poised at the very edge of the boundary between consequences which might be appropriately described as being considerable, and consequences which are fairly described as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the broad range of possible impairments or losses.
56 I am satisfied however that the findings which I have made as to the consequences of the plaintiff’s incapacity by reason of both the pain which she experiences and the consequences of that pain upon her life and lifestyle meet the definition of serious injury as employed by the Act and, accordingly, that the plaintiff is entitled to the leave sought by her in this application.
57 Subject to hearing from the parties further as to the precise wording of the order to be made in this proceeding, I propose to make an order granting the plaintiff leave to commence a proceeding claiming pain and suffering damages in respect of the incident the subject of this application.
58 I will hear the parties as to the issue of costs.
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