Carson v Sherwood Racing Pty Ltd
[2021] VCC 64
•10 February 2021
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04125
| BROOKE ELLE CARSON | Plaintiff |
| v | |
| SHERWOOD RACING PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 18 and 19 January 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 10 February 2021 | |
CASE MAY BE CITED AS: | Carson v Sherwood Racing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 64 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – prior lower back problem – whether the incident resulted in an aggravation of the prior lower back problem – comparison of the impairments caused by the prior lower back problem and the aggravation – whether the consequences of the aggravation are “serious”
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB(37)(b) and (c)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Woolworths Limited v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr A Saunders | Fortitude Legal |
| For the Defendant | Mr S A Smith QC with Ms K M Manning | Wisewould Mahony |
HIS HONOUR:
Introduction
1 On 14 January 2017, the plaintiff suffered injury to her lower back when a horse she was leading attempted to jump over a puddle, with the result that it struck the plaintiff and pushed her into a fence post. At the time of the incident, she was employed by the defendant as a stable hand at stables in Anakie.
2 The plaintiff’s application for serious injury was limited to the pain and suffering consequences of the impairment of function of her lower back.
3 Mr A Macnab and Mr A Saunders of counsel appeared for the plaintiff. Mr S Smith QC and Ms K Manning of counsel appeared for the defendant.
The issues
4 There were essentially two issues raised by the defendant. The first issue concerned whether the injury is an aggravation of a pre-existing injury, and the second is whether the impairment consequences are “serious”.
Executive summary
5 After having considered all the evidence, I am satisfied that the impairment consequences of the aggravation of the pre-existing condition of the plaintiff’s lower back are “serious”.
The prior medical condition
6 I should firstly turn to the evidence relevant to the plaintiff’s prior lower back condition. The defendant submitted that the evidence disclosed that the plaintiff had suffered from a lower back condition for some years prior to May 2015, and suffered a discrete injury in May 2015 which it submitted continued to impair the function of her lower back.
7 The defendant referred to the clinical notes of the First Point Medical Centre, and in particular, a clinical note of 19 May 2015. It discloses that the plaintiff allegedly saw Dr A K M Junaid Tanveer, general practitioner, that day. Dr Tanveer reported that one of the reasons for the plaintiff seeing him was for “back pain”. The balance of the entry relevant to the defendant’s submission is as follows:
“1. Came in with c/o lower back pain for few y[ea]rs post injury after lifting heavy bucket pain getting worse recently, radiating towards R thigh at times
denies numbness or weakness of limbs, denies bowel/ bladder problem
denies any obvious injury, denies any urinary symptoms
denies infective symptoms, denies fever, chills or rigors
… .”[1]
[1]Defendant's Court Book (“DCB”) 46
8 Initially, under cross-examination, the plaintiff accepted that she suffered injury to her lower back in May 2015 lifting a heavy bucket. She described it as a 20-litre bucket filled to the brim which weighed around 20 kilograms; however, the plaintiff changed her evidence after she was cross-examined on an entry in the clinical notes dated 5 May 2016. The relevant entry is as follows:
“Came in with straine dback
injured at work
been to Hopsital twice
wonders not scans were done at Hospital.”
(sic)
9 When the plaintiff was confronted with the entry dated 5 May 2016, she described the injury she suffered on that occasion as being an injury she suffered at work “lifting the bucket”, but when asked whether she had injured her lower back twice when lifting a bucket, she said that she had only suffered injury in that way once. She added that the only two incidents of which she had knowledge resulting in her suffering injury to her lower back were “the bucket incident and the current incident”.[2] The current incident was a reference by her to what occurred on 14 January 2017.
[2]Transcript 12
10 The defendant cross-examined the plaintiff to establish that in fact she suffered injury in May 2015 and probably lifting the bucket. Part of the cross-examination was directed to another more extensive part of the clinical note dated 19 May 2015 relevant to the plaintiff’s psychiatric state. The defendant referred to specific psychiatric symptoms recorded in the entry of poor sleep, early-morning waking, low self-esteem, depressed mood, anxiety, stress at work, irritability, panic attacks, compulsive behaviour, and also to psychiatric symptoms which the plaintiff denied having. The plaintiff agreed that she was experiencing those symptoms in May 2015.[3] The purpose of the cross-examination was to establish that if that part of the clinical note was correct, then it was probable that the part of it relevant to the plaintiff lifting the bucket resulting in injury to the lower back was also likely to be correct.
[3]Transcript 27-28
11 The plaintiff posed a question during this part of the cross-examination, whether Dr Tanveer had “got the dates mixed up”, and by that I understood her to mean that the entry of 19 May 2015 had either been entered into the clinical notes in the wrong place or the wrong date applied to the clinical note.[4] Under further cross-examination, it was put to the plaintiff that if she examined the clinical notes following the particular entry of 19 May 2015, she would see that they were in chronological order. That is in fact the case. The fact that the notes are in chronological order points to the particular entry also being in chronological order and not being in the wrong place or bearing the wrong date as the plaintiff would have it.
[4]Transcript 17
12 The real picture becomes more difficult to ascertain because the plaintiff pointed to an entry in the clinical notes of the Department of Emergency Medicine at the Geelong Hospital dated 3 May 2016 which appears to coincide with the entry in the clinical notes of Dr Neha Gupta, general practitioner, of May 2016. The relevant part of the entry is as follows:
“03 May 2016 00:47
- 23 old woman presents with lower back pain which came on suddenly whilst lifting a bucket this morning.
- Works as a stable hand. Pain radiating into posterior right thigh.
… .”[5]
[5]Plaintiff’s Supplementary Court Book 3
13 Under cross-examination, the plaintiff said that in relation to attendances at a hospital, she said that she attended a hospital “from memory only once”.[6]
[6]Transcript 13
14 On one view of this evidence the plaintiff suffered injury to her lower back lifting a bucket in May 2015 with a history of lower back problems preceding that date. That appears to be so, because the clinical note relevant to May 2016 makes no reference to the lower back pain for which she was treated being related to lifting a bucket.
15 On another view of the evidence, the plaintiff is adamant that she suffered injury as a result of two incidents, one lifting a bucket in May 2016 and the other being what occurred on 14 January 2017. To some extent that is consistent with the entry in the clinical notes of May 2016, although there is no reference to lifting a bucket, but her account is apparently confirmed by the entry in the clinical notes of the Geelong Hospital.
16 The need to make a finding whether the lifting of the bucket occurred in May 2015 or May 2016 is not critically important to the approach I believe I must take in determining this application; however, I have been pressed, albeit not strenuously, to determine the nature and extent of the plaintiff’s prior lower back condition because of the submission made by the defendant that the injury suffered by the plaintiff on 14 January 2017 is an aggravation of a pre-existing lower back condition.
17 I think it is probable that the plaintiff suffered injury to her lower back lifting the bucket in May 2015. I think it is improbable that the entry in the clinical notes is in the wrong place or bears the wrong date. It finds its place neatly in a chronological sequence with subsequent entries. I think it is probable that the plaintiff suffered a further episode of injury to her lower back in May 2016 for which she had medical treatment, and I think it is probable that she related that event to the injury lifting the bucket which occurred a year beforehand.
18 I immediately appreciate that making sense of all of this may expose me to the criticism that I have engaged in an exercise falling some way short of applying the balance of probabilities, but even if that is so, that is the best I can do to make sense of the jigsaw puzzle pieces which I have been presented, with some of the pieces missing. Despite the concerns I have just expressed, I repeat that I do not think that this issue is critically important to the approach which I believe I must take in determining this application.
19 I now need to turn to what occurred in May 2016 in a more particular way. The starting point is the entry in the clinical notes dated 5 May 2016. On examination, the plaintiff was found to have an antalgic gait, difficulty bending, paralumbar tightness of muscles on the right side, but with no SI joint tenderness. She was advised to avoid heavy lifting, take care with her posture, have massage, use heat packs, and she was apparently prescribed Celebrex and advised to continue using Tramadol which had been prescribed by attending medical practitioners at the Geelong Hospital.[7]
[7]DCB 57-58
20 The plaintiff subsequently saw Dr Gupta on 10 May 2016, Dr Ahmed Shukran, general practitioner, on 11 May 2016 and then Dr Gupta on 13 and 18 May 2016 and then on 1 June 2016. These clinical notes disclose that the plaintiff was undertaking light duties, but when she saw Dr Gupta on 10 May 2016, he noted that she could not sustain doing light duties. She was subsequently referred to have a CT scan. She returned to see Dr Gupta on 13 May 2016 to discuss the CT scan. There is nothing in the clinical notes to suggest that there was any sinister pathology found through the CT scanning.[8]
[8]DCB 58-60
21 By 18 May 2016, the plaintiff told Dr Gupta that she was feeling symptomatically much better, and there is a similar note in the entry dated 1 June 2016, with the additional note that the plaintiff felt fit for her pre-injury duties. Subsequently, the plaintiff appears to have returned to unrestricted work. She saw Dr Shukran on 1 August 2016 complaining of a “strained back”. The cause of the strain was noted to be the physical work she was undertaking at a stable. She was found to have stiffness and tenderness in her paraspinal muscles of her lower back.[9] It would then appear that she returned to unrestricted work, not returning for treatment until 18 January 2017 after the incident of 14 January 2017 occurred.
[9]DCB 62
The legal principles
22 At the outset it is important to identify the legal principles which apply to this application. The defendant submitted that the impairment of the function of the plaintiff’s lower back is an aggravation of a pre-existing lower back condition. That requires me to identify each injury, to identify and separate the impairment consequences of each injury and to identify whether the additional impairment caused by the aggravation of the pre-existing injury qualifies as a serious injury.[10]
[10]Petkovski v Galletti [1994] 1 VR 436, and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[33]
The medical evidence
23 The plaintiff last attended any of the medical practitioners at the First Point Medical Centre on 6 March 2017.[11] She subsequently saw Dr Elise Davey, general practitioner, at the Kensington Hill Medical Centre.[12]
[11]Plaintiff’s Court Book (“PCB”) 20-21
[12]PCB 11 and 22
24 Dr Davey referred the plaintiff to Dr Diarmuld McCoy, specialist pain medicine physician. Unfortunately, Dr McCoy was not asked to provide a conventional medical report by the plaintiff. Instead, the plaintiff reproduced correspondence from which some level of understanding of the treatment provided by Dr McCoy can be ascertained, and a report to the Accident Compensation Conciliation Service.[13]
[13]PCB 23-33 and 57-61
25 Dr McCoy provided the plaintiff with some initial treatment, comprising an epidural injection, followed by a ketamine infusion, which did not provide the plaintiff with any significant relief. Dr McCoy advised the plaintiff to have a trial of a neuromodulation device. I was left with an understanding that the device is implanted into the plaintiff’s body. Stimulation wires are then placed in position which enables the device to provide pain relief. In a checklist prepared by Dr McCoy, he noted that the plaintiff was suffering from a “persistent pain condition”, and that the conditions relevant to the trial of the device, back and leg pain, were present.[14]
[14]PCB 24
26 Dr McCoy referred the plaintiff to have an MRI scan which was taken on 27 March 2017 which would appear to be at the very start of his treatment of the plaintiff.[15] He considered that the MRI scan which he commissioned demonstrated an internal disc disruption at L3-4.[16] He considered that was borne out by detailed sensory tests which he performed showing a decrease in fine-touch pinprick and temperature sensation in the distribution of the L4 and possibly to the traversing nerve root at L5. However, the balance of the medical evidence I will summarise does not support the conclusion that the plaintiff suffered such a disc disruption.
[15]PCB 16-17. There are also other radiological reports reproduced in the Plaintiff’s Court Book – a plain x-ray taken on 14 January 2017 at PCB 13, an MRI scan taken on 2 March 2017 at PCB 14, a further plain x-ray taken on 20 March 2017 at PCB 15, and a further MRI scan taken on 21 March 2018 at PCB 18-19.
[16]PCB 26
27 The plaintiff no doubt considered the advice given to her by Dr McCoy, but declined to undergo a trial of the device. The plaintiff discussed the trial of the device with one of her general practitioners. She was advised that there are risks associated with the device. The risk that played on her mind was whether it would affect her prospects of falling pregnant, and successfully carrying a pregnancy. She said that she has an interest in having children.[17]
[17]Transcript 45-46
28 Dr McCoy provided a diagnosis, referred to in the report to the Accident Compensation Conciliation Service – “The diagnosis in this case is a mixed nociceptive and neuropathic, sometimes known as nociplastic pain.” He considered that it was the sort of pain that would emerge in the presence of an annular tear. It would appear that he was less than impressed with the radiology, because he did not believe it reflected the degree of pain and suffering experienced by the plaintiff. I assume that he considered that the pathology underlying that level of pain and suffering was more than what was demonstrated on the radiology.[18]
[18]PCB 60
29 Dr Davey also referred the plaintiff to see Mr Nick Hall, neurosurgeon, who she saw on 13 February 2018. He provided a courtesy letter addressed to Dr Davey dated 13 February 2018.[19] The plaintiff told him that she was suffering from right-sided lower back pain and intermittent leg pain. On examination and review of an MRI scan, he considered that she was not a candidate for surgery. He recommended that she undertake core strengthening therapies for what he described as “this type of musculoskeletal back pain”. He considered that her leg pain was “myofascial somatic referred pain in the legs”. He considered that if the therapies he advised fail, then it was open for the plaintiff to consider the option of a spinal cord stimulator.
[19]PCB 34-35
30 The last of the plaintiff’s treating doctors to provide a report is Dr Ann McGuane, general practitioner, who provided a report dated 15 January 2021 which contains an opinion consistent with all of the medico-legal assessments which I will refer to shortly. She considered that the plaintiff was suffering lumbar disc disease at L3-4. She considered that she was restricted in her capacity to bend, twist, stoop and maintain prolonged stature and activity due to pain. She also considered that her capacity to sit, stand and walk were affected to the extent that she needed to regularly change her posture. She also considered that the plaintiff needed to exercise care in the work she undertook, for example avoid repetitive actions and heavy lifting. She also considered that the impact of the plaintiff’s lower back injury would interfere with her capacity for work and to engage in social, recreational and domestic activities.
The medico-legal assessments
31 The medico-legal assessments appear to me to paint a consistent picture of the pathology which has resulted in the impairment of the function of the plaintiff’s lower back. Although, the plaintiff commenced a summary of the medico-legal assessments in final addresses, I suggested that was unnecessary because, having read them before the addresses began, I saw little material difference in the opinions reached by the assessors.
32 Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff on 20 February 2018 and on 15 October 2020. He provided two reports dated 23 February 2018[20] and 16 October 2020.[21] Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 7 June 2019, and provided three reports dated 12 June 2019,[22] 6 August 2019[23] and 24 October 2019.[24] The last assessment was undertaken by Mr Rodney Simm, orthopaedic surgeon, who examined the plaintiff on 11 August 2020. He provided a report bearing the same date.[25]
[20]PCB 44-47
[21]PCB 48-50
[22]DCB 5-10
[23]DCB 11-12
[24]DCB 13-14
[25]DCB 15-20
33 None of the observations made by Dr Thomas, Mr Grossbard and Mr Simm are at all controversial. They were aware that radiology demonstrated degenerative changes at L3-4. There was no evidence of significant discal pathology, but a history of leg pain not consistent with radiculopathy. They all considered the question of the plaintiff’s capacity for work and whether her social, recreational and domestic activities had been affected. I think the upshot of their opinions is that she is not capable of the work she was performing pre injury, but is capable of undertaking suitable employment, and her social, recreational and domestic activities have been interfered with by the impairment of the function of her lower back.
34 I do not think there is really much to be gained by summarising the opinions of the medico-legal assessors in any greater detail. The parties did not think that was necessary, and given the short summary I have given, it is reasonably clear that when all of the medical opinions are considered, that there is a consistency in the opinions of the treating and medico-legal assessors. I should, however, point out that there are some variations in the understanding of the extent to which the plaintiff is able to engage in suitable employment and social, recreational and domestic activities which I will turn to shortly. I say that because, for example Mr Simm was left with the understanding that the work the plaintiff is presently undertaking is “moderately demanding work” which I think is inconsistent with the plaintiff’s evidence, and he understood that the plaintiff has resumed horse riding in a limited way which is also inconsistent with the plaintiff’s evidence.
The Plaintiff’s consequences
35 The plaintiff swore two affidavits in which she described the consequences of the impairment of the function of her lower back.[26] She expanded upon the nature and extent of those consequences when cross-examined and when re-examined. I have separated each of the components of her pain and suffering consequences for the purpose of ultimately assessing whether those consequences meet the statutory test of seriousness. The following is the evidence which I accept:
[26]PCB 9-12 and 62-66
Pain
36 The plaintiff experiences lower back pain which varies in intensity. It extends down into both legs, but mostly into her right leg. She estimated that on an average day her pain would be 3 out of 10 on her subjective pain scale; however, she has suffered flareups every week or couple of weeks which raise that pain scale to 8 out of 10.[27]
[27]PCB 11, 64 and Transcript 52 and 55
Medical treatment
37 The plaintiff has been through a regime of treatment through her various general practitioners, physiotherapists, and principally through Dr McCoy, who trialled her on various types of medication including a Ketamine infusion, none of which provided the plaintiff with any lasting relief.[28] The only proposed form of treatment which might provide the plaintiff with a greater level of relief is a trial of a neuromodulation device which the plaintiff was refused for reasons which I have already referred to.
[28]The reference to the plaintiff’s medical treatment is found in the medical reports and clinical notes I have already reviewed.
38 Otherwise, it would appear that the plaintiff continues to see Dr McGuane, but probably infrequently, because she is mostly using over-the-counter medication and Endep only when she suffers more serious flareups of pain. I assume that she obtains prescriptions for Endep from Dr McGuane.
Medication
39 The plaintiff currently takes over-the-counter medication daily. She takes two Panadol and two Nurofen daily, taking two in the morning and two at night. She uses Endep when she suffers flareups.
40 The plaintiff described the use of prescription medication as resulting in her being unable to function and wanting to sleep. She also experienced headaches and nausea when using that kind of medication.[29]
[29]Transcript 55
General mobility
41 The plaintiff’s lower back is aggravated by bending, lifting and twisting. She paces herself, but even in doing that she often suffers a worsening of the pain she experiences. She has difficulty sitting or standing in the one spot for extended periods of time, feeling the need to get up and move around.[30] These are the difficulties described to her treating doctors and to the medico-legal assessors.
[30]PSCB 65
42 The plaintiff said she was quite fit before she suffered her lower back injury. She subsequently gained weight, with the result that she used medication to reduce her appetite in the hope that it would help her reduce weight. At present, her exercise regime is minimal and limited to walking. Walking tends to aggravate the condition of her lower back.[31]
[31]PCB 65 and Transcript 48 and 62
Sleep
43 The plaintiff sleeps fitfully due to the condition of her lower back. She tosses and turns because she is unable to obtain a comfortable position.[32]
[32]PCB 12 and 65
Work
44 The plaintiff has a long history with an association with horses. Her father was a horse trainer in Colac. She has been involved with horses from a very early age. It was her intention to pursue farm work involving horses. She was off work for a couple of weeks after the occurrence of the incident, returning on light duties. That return to work was unsuccessful. She was then off work until late 2019, when she made another unsuccessful attempt to return to work on light duties. She subsequently obtained alternative employment as a farm hand on a dairy farm in October 2019 at Yoedene milking cows.[33]
[33]PCB 11 and Transcript 39
45 The plaintiff is no longer able to control a horse on a lead and is unable to ride horses. She returned to riding horses about two years after the occurrence of the incident. She tried riding her horse, “Scotty”, once. She has since leased him out. She then leased another horse, “Willow”, and attempted riding again in the early part of 2020. Willow was a quieter horse. She stopped riding altogether in about October 2020.[34]
[34]PCB 10-11 and 65-66 and Transcript 49-50 and 61
46 Prior to the occurrence of the incident, the plaintiff used to ride Scotty every day for 30 to 45 minutes and longer on the trail rides. When she returned to riding Willow, she was only able to ride for about 10 minutes or so. She found not being able to ride horses very upsetting. It was a big part of her life.[35]
[35]Transcript 60-61
47 The plaintiff described the farm work she currently undertakes on the dairy farm as being mostly mechanised and not requiring much manual work on her part. She described the man who owns the farm as having a bad back who has modified the farm to make it easier for him to undertake his work.[36]
[36]Transcript 39-41 and 52-53
48 The plaintiff is currently working about 30 hours per week. The most hours she has worked are 45 to 55 hours in one week doing silage work. Otherwise, she has not worked beyond 30 hours per week.[37] Apart from the man who owns the dairy farm there are two other female employees. The plaintiff described the method of distribution of work tasks between the owner and his staff as being worked out between them, but she being accommodated because of her lower back injury.[38]
[37]Transcript 40, 56 and 63-64
[38]Transcript 64-65
Social, domestic and recreational activities
49 The plaintiff continues to go camping. She has camped at local pony club events and at Rocklands and up on the Murray River. She described accessing those camping areas involves driving for three to four hours. She has engaged in this activity with friends. She described it as relaxing and not doing much. She described previously going four-wheel-driving, bushwalking and related type activities. She now stays around the campsite with her friends.[39]
[39]Transcript 50-51
50 The plaintiff struggles to cope with camping for more than three days because of increasing soreness in her lower back, and does not find it nearly as much fun as it used to be.[40]
[40]Transcript 58
51 The plaintiff continues to attend B & S balls. She has attended possibly six balls since the occurrence of the incident to localities like Jerilderie, Lake Bolac, Elmore, Koonoomoo and Hay. She described accessing those localities as involving a drive of up to eight hours. She has slept in the tray of her utility and in a swag on the ground when she has attended the balls. She also attended a ute muster in Deniliquin. She enjoyed the occasions when she attended these activities. She engaged in having a few drinks, meeting friends and agreed that at the ute muster she had a “ripper weekend”. She estimated that she has attended these activities as much as she did before she was injured.[41]
[41]Transcript 33-37
52 The plaintiff also described struggling with these types of activities. She uses medication and the consumption of alcohol to help control pain. She found the day after attending a B & S ball that she would be very, very sore.[42]
[42]Transcript 58
53 The plaintiff used to ride her then partner’s motorcycle regularly. She did not own a motorcycle herself. She rides a quad bike on the dairy farm which she described as a completely different type of riding because it provides greater stability when compared with a two-wheel motorcycle.[43]
[43]Transcript 37
54 The plaintiff also went four-wheel-driving and bushwalking. She is no longer able to do either. They were both enjoyable activities for her.[44]
[44]Transcript 58-50
55 The plaintiff lives in a rented property outside Colac. The landlord does the garden and mows the lawns because the plaintiff is unable to. She struggles with domestic tasks such as cleaning – which she does in stints – cooking, doing the dishes and she uses a trolley to take clothes to the line to hang them out. She also experiences problems dressing herself, for example putting on socks, boots and gumboots.[45]
[45]PCB 11-12
An aggravation?
56 The evidence discloses that the plaintiff did suffer an injury to her lower back in 2015 and then again in 2016; however, after assessing the whole of the plaintiff’s evidence, I do not accept that the plaintiff had a persisting problem which had troubled her for some time prior to 2015. I prefer her evidence to that of the clinical note where that reference is to be found.
57 I do not accept the defendant’s submission that the plaintiff’s prior lower back condition represents a picture of persisting lower back problems in the light of the plaintiff’s answers under cross-examination. There has been enough said by the Court of Appeal for me to be very mindful of the fact that clinical notes need to be considered cautiously.[46] I think what they represent are episodes of lower back pain which troubled the plaintiff sufficiently enough for her to seek medical treatment, but the evidence discloses that the plaintiff was otherwise capable of continuing with farm work and her social, domestic and recreational activities, and certainly that was the case for a significant period of time prior to the occurrence of the incident.
[46]Woolworths Limited v Warfe [2013] VSCA 22 and Philippiadis v Transport Accident Commission [2016] VSCA 1
58 Thus far, I have identified that the plaintiff had suffered an injury to her lower back previously, but when it comes to identifying the separate impairment consequences, there appear to be very few except for episodes of pain, some disablement, but otherwise no interference with the plaintiff’s work or her social, domestic and recreational activities. Whereas, the aggravation led to the plaintiff having significant medical treatment, physiotherapy treatment, prescription of medication, persistent need for medication, reduction in her capacity for work and reduction in her capacity to engage in social, domestic and recreational activities. The additional impairment caused by the aggravation is very significant when compared with what was present beforehand, and easily satisfies me that the additional impairment consequences meet the statutory test of seriousness.
59 However, I need to say more in disclosing my pathway of reasoning, and in summary my reasoning is as follows:
60 Firstly, the incident resulted in a significant aggravation of the underlying degenerative condition in the plaintiff’s lower back as commented on by her treating doctors and the medico-legal assessors.
61 Secondly, the plaintiff underwent a significant volume of treatment, resulting in advice that she undergo an invasive trial of a neuromodulation device which was considered by Mr Hall and Dr McCoy to be treatment which might assist the plaintiff in reducing the level of pain she was experiencing and returning her to a better level of functioning. Furthermore, the plaintiff continues to require the use of medication to make the pain more tolerable for the purpose of her getting through her day, and being able to engage in levels of social, domestic and recreational pursuits.
62 Whilst I accept that the plaintiff is not using prescription medication which demonstrates that the nature and extent of her pain and disablement do not necessarily require that medication, the fact that she is not using it needs to be seen in the context of her intolerance to the use of medication. Furthermore, I am not persuaded that merely because the medication she is using is over-the-counter medication, that it is an indicator that the pain that she is experiencing is less than very troubling for her.
63 Thirdly, the plaintiff has lost her capacity for full, free and unrestricted use of her spine which is something of considerable importance to her because she had the ambition to pursue farm work, and more particularly, work with horses which I think is probably fairly arduous work. She is now reduced to working part-time hours on a dairy farm where I accept the man who owns the farm and the other employees accommodate the plaintiff’s reduction in work capacity.
64 Fourthly, the plaintiff struck me as a typical country girl who lived the country life both in terms of her work and her country life recreations, such as B & S balls, camping, four-wheel driving, bushwalking, motorcycle riding, and of the utmost importance to her, horse riding. It should not be forgotten that she also finds undertaking domestic tasks difficult. Keeping a house and maintaining a household lifestyle is something of importance and should not be underestimated as a very real problem for someone living alone. While she is able to engage in some of those activities, it would appear to me that it is a motivation of a young person to stay in touch with her peers relevant to attending B & S balls, but as for the other activities, they have been lost to her or have been reduced to not very much.
65 Lastly, it occurs to me that the plaintiff is a very young woman who will endure pain, restriction of movement and impairment of the overall functioning of her lower back for the foreseeable future. The impairment of the function of her lower back has significantly impacted upon her capacity to work and to engage in social, domestic and recreational pursuits which were a very important part of her life. Whilst she has retained her capacity to work and to engage in some levels of social, domestic and recreational pursuits, the overall impact upon her life impresses me that the quality of her life has been significantly reduced in nearly all respects. I have made the relevant comparison of like impairments and I am satisfied for the reasons I have outlined above that the impairment of the function of the plaintiff’s lower back meets the statutory test of seriousness.
Orders
66 I will order that the plaintiff be granted leave to bring a proceeding at common law to recover damages for the pain and suffering consequences resulting from the injury to her lower back.
- - -
0
4
0