Chen v VWA
[2021] VCC 33
•4 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01504
| HONG WEN CHEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2020 | |
DATE OF JUDGMENT: | 4 February 2021 | |
CASE MAY BE CITED AS: | Chen v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 33 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – application in respect of pain and suffering only – reliance upon paragraph (a) of the definition – injury to the chest and left upper limb – accepted claim – identification of injury – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan with Ms K Popova | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr L Howe | Lander and Rogers |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering only. In so doing, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s325(1) of the Act.
2 The injury relied upon is one to the plaintiff’s left chest and left upper limb and in particular to the upper chest and left shoulder. This shall hereinafter be referred to as “the injury”. The plaintiff suffered the injury throughout the course of her employment with JBS Australia Pty Ltd, hereinafter referred to as “JBS”. It is alleged that the plaintiff suffered the injury as a result of her employment with JBS as a meat slicer and in particular on or about 8 June 2017 when she was engaging in such work. Whilst the injury was suffered over a period of time leading up to and including 8 June 2017, what occurred shall hereinafter be referred to as “the accident”. There is no dispute as to the occurrence of the accident or as to the payment of compensation in respect of the injury. The particular areas of dispute upon which attention was focussed relate to the physical extent of the injury, whether the effects of it had virtually disappeared or substantially reduced and, hence, whether the statutory test has been satisfied.
3 At the outset I would thank counsel for the way in which this case was conducted in circumstances which were at times somewhat trying. After a run of video link cases in which nothing went wrong, this hearing was plagued by sudden and unexpected freezing or loss of the picture and other problems. Ultimately these difficulties were overcome and I thank counsel for their persistence and cooperation.
4 Ms F Ryan with Ms K Popova of counsel appeared on behalf of the plaintiff. Mr L Howe of counsel appeared on behalf of the defendant. With the aid of an interpreter, the plaintiff gave evidence and was cross-examined. This including the adoption of two affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the accident
5 The plaintiff is aged 45 years, she having been born in China in 1975. She had some schooling there, but did not work there. She moved with her family to Australia in 2007. In February 2008, she commenced working for JBS as a meat slicer. JBS effectively runs an abattoir or meatworks. Save for a period when she was performing restricted duties as a result of the accident, as shall be discussed, she has performed that work for JBS ever since and continues so to do.
6 The plaintiff is married and has an adult son. She has virtually no English. There was no challenge to the proposition that her normal work at JBS was physically demanding, and this was certainly so in relation to the use of her left hand and arm. It is her non-dominant arm.
(c) The state of the plaintiff’s health prior to the accident
7 The plaintiff had experienced swelling in the left wrist and had developed a ganglion in September and October 2013. She was absent from work for approximately two weeks whilst the ganglion reduced in size. She missed a few days’ work with right arm and shoulder pain in approximately December 2015. I do not consider either of these matters to be of great moment.
(d) The plaintiff as a witness
8 The plaintiff impressed me as a reliable witness. I note that it is admitted that she was the subject of surveillance for some 13.5 hours. No video or other material relating to such surveillance was placed before me. Whilst it is sometimes a little more difficult when evidence is being obtained through an interpreter, the plaintiff impressed me as someone who was trying to answer questions honestly and accurately. She made appropriate concessions. I note that Dr Rene Dupuche, consultant physician, who examined the plaintiff at the request of the defendant, reported that the medical history which he obtained from her was objective, clear, chronological, unembellished and cohesive. Dr David Ho, occupational health consultant, who examined the plaintiff at the request of the defendant, described her as being pleasant and cooperative. I accept her as a witness of truth.
(e) The injury, its treatment, diagnosis and prognosis
9 On approximately 8 June 2017, the plaintiff was performing her normal duties as a meat slicer when she felt pain in the left side of her chest. As a result of a complaint to the company doctor, she was given an ice pack. She also saw her general practitioner, Dr Anthony Lo. His notes of 8 June 2017 refer to the plaintiff having moved a large piece of meat and having an “electric shock” in the chest. He organised a chest x-ray, which did not show any abnormality. The notes of subsequent visits refer to left chest pain which was disturbing sleep. By 4 August 2017, the plaintiff was feeling well enough to return to work, although still experiencing symptoms when doing such things as carrying groceries. It is obvious that this return to work was on light duties.
10 The ultrasound of the left breast revealed no obvious tear or abnormality of a major muscle, this being performed on 4 September 2017. An MRI of the chest was performed on 2 November 2017. It is clear that there were some difficulties associated with the language barrier and the like, but, in any event, no significant finding was reported. An ultrasound of the left wrist on 7 September 2018 revealed flexor pollicis tenosynovitis and ulnar carpal joint synovial effusion.
11 It is apparent that Dr Lo referred the plaintiff to a physiotherapist, Dr Damon Cheng. It is also apparent from a letter of Dr Lo to Mr Cheng that the plaintiff was suffering from left arm pains affecting the pectoral area, as well as the left wrist and thumb. Dr Lo attributed this to what he described as “workcover [sic] repetitive strain”. A letter of 30 November 2018 from Dr Lo to the Accident Compensation Conciliation Service describes the diagnosis as being left pectoralis muscle strain; left thumb flexor pollicis tenosynovitis; and left wrist ulnocarpal joint synovial effusion. The history contained is one of gradual onset of left pectoral area pain aggravated by work which required repeated left shoulder movements. Pain had spread to the left thumb and wrist.
12 Dr Lo was of the view that there was a direct relationship to employment and considered the plaintiff to be fit for modified duties for 15 hours per week, with task rotations every hour, the plaintiff to be working at her own pace and with maximum lifting of 3 kilograms. He advised ongoing physiotherapy and acupuncture.
13 A report of 11 September 2019 from Dr Lo to the Accident Compensation Conciliation Service contained a similar diagnosis. He thought that there was a strong relationship of injury to employment. Dr Lo recorded that the plaintiff had returned to full normal duties, as there were no alternative duties available to her and her condition could not resolve with existing therapies. He thought that she needed ongoing treatment by way of physiotherapy and acupuncture to assist with her pain levels and in order to keep her in employment.
14 Dr Lo also reported to the plaintiff’s solicitors on 11 November 2020. His diagnosis was the same as that previously noted. He repeated that there was a strong relationship of injury to employment, adding that her incapacity resulted from this. He made similar observations concerning her return to work. He considered that the plaintiff had a good prognosis, but was prone to frequent recurrences, especially if she persisted in the repeated arm movements involved in doing the work that had precipitated her condition.
15 It is apparent that the plaintiff also received physiotherapy treatment from Ms Vern Chai, physiotherapist, who reported to the Accident Compensation Conciliation Service on 24 December 2018. Ms Chai diagnosed a strain to the left pectoral and anterior shoulder muscles. She observed that, unfortunately, the plaintiff had returned to work without undergoing rehabilitation for her injury, resulting in significant muscle imbalance of her left scapulohumeral region. In addition, there was increased tension in the plaintiff’s anterior shoulder muscles and motor control dysfunction of the region.
16 Ms Chai obtained a comparatively detailed history of the plaintiff’s work. Due to the passage of time without physiotherapy, recovery had been slower than expected. The plaintiff required an ongoing physiotherapy program.
17 The plaintiff has also been referred by her solicitors for assessment by medico-legal examiners. Dr Richard Sullivan, who is a practicing anaesthetist and pain specialist, saw the plaintiff at the request of her solicitors, reporting on 23 November 2019. He took an appropriate history involving left sided chest pain, left sided shoulder pain, left arm pain and pain in the left wrist and thumb. He noted that the ultrasound of the left wrist performed on 7 September 2018 had revealed flexor pollicis tenosynovitis and ulnocarpal joint synovial effusion. The plaintiff was taking Meloxicam daily and also attending a traditional Chinese medicine practitioner. She also had intermittent acupuncture and physiotherapy.
18 Dr Sullivan noted that the plaintiff had returned to work on full hours and full duties, principally because of financial hardship. There was substantial aggravation of her pain during the course of her work. He also noted that the plaintiff found it very difficult to attend to her domestic activities of daily living that involved lifting or carrying with the left upper limb. There was a substantial reduction in terms of social engagements. The plaintiff reported poor and broken sleep, getting between three and four hours of effective sleep per night. She was also anxious and irritable.
19 Dr Sullivan reported that there was demonstrable sensory attenuation consistent with an ulnar nerve or C7-8 distribution in the left compared to the right, and minor swelling of the left wrist.
20 Dr Sullivan expressed the opinion that the plaintiff has a chronic pain condition affecting largely the left upper limb and left anterior chest and that this occurred at work. His diagnosis was of post-traumatic chronic pain of the left anterior chest and left upper limb. There may also be a cervical injury affecting the C5-6 or C6-7 discs. He thought it unreasonable to expect her to sustain and continue work full-time as a line and process worker. Any alternate duties would have to be modified to a point where she did not have to utilise the left upper limb. Effectively, she needs sedentary, passive employment. Her left thumb injury, viewed in isolation, would also impact upon her capacity for employment. Dr Sullivan expected that her chronic pain condition would continue into the foreseeable future.
21 Dr Sullivan reported to the plaintiff’s solicitors again on 2 October 2020, having seen the plaintiff on that day. She had been performing the same heavy work. She felt that her situation was worse than at the time of the previous examination in November 2019. She could no longer enjoy hosting dinners or cooking for friends and family. She was no longer socialising, maintaining her house, or looking after her husband and son. She had a lifting and carrying capacity of approximately 1 kilogram with her left upper limb.
22 Dr Sullivan noted that the plaintiff had substantial reduction in terms of internal and external rotation of the shoulder. There was also an area of reduced sensation, as well as there being a reduced range of movement of the wrists and grip strength. He expressed the opinion that the examination was consistent with a clinical diagnosis of Complex Regional Pain Syndrome Type 1 of the left upper limb. He did not believe that the plaintiff should be continuing with her current employment and work role. Overall, he considered that her condition was now significantly worse than when he had previously seen her. He did not believe that her situation should be considered stable, given that her employment situation should be reviewed.
23 Thus, his diagnosis was one of chronic pain affecting the left upper limb and left anterior chest wall resulting from repetitive strenuous and injurious activity in the workplace, with the additional diagnosis now of Complex Regional Pain Syndrome Type 1 related to workplace activity in regard to the chest pain, this being referred pain from the shoulder. He placed considerable work restrictions upon her. He thought that she would not be able to perform work that required use of the left upper limb in any sort of repetitive or strenuous fashion now or into the foreseeable future. He believed her limitations to be permanent.
24 Dr Sullivan also expressed the opinion that the plaintiff’s presentation was entirely organic, although it was likely that she would have some psychological sequelae arising from her chronic pain condition. Any underlying depression or anxiety was consequential upon her chronic pain and not a cause of it. Overall, his expectation was that the plaintiff’s chronic pain would continue into the foreseeable future.
25 Mr Raf Asaid, orthopaedic surgeon, saw the plaintiff at the request of her solicitors, reporting on 29 October 2020. Mr Asaid took a detailed history. This included the fact that the plaintiff had a constant dull ache in the left chest wall and left shoulder, which can become a sharp stabbing pain with increased activity. There was also pain in the dorsal aspect of the left wrist and at the base of the left thumb. However, the majority of her symptoms are in the left chest wall and left shoulder.
26 Mr Asaid noted that the plaintiff has difficulty performing her activities of daily living and lifting and is heavily reliant upon her right arm. She has interrupted sleep every night due to the pain in the left side of the chest wall and left shoulder. There has also been significant impact upon her social and psychological well-being, including her cooking and socialising with friends. She was taking Meloxicam daily, along with a magnesium tablet, and also having regular reviews by her general practitioner and a Chinese medicine practitioner.
27 The diagnosis of Mr Asaid was of left pectoralis major muscle strain. The plaintiff presented with left shoulder impingement, subacromial bursitis and biceps tendinosis. She also has left wrist tenosynovitis. He considered her current conditions to be directly related to her employment. He recommended that she cease her pre-injury duties. He considered that her conditions were organically based.
28 Mr Asaid also thought that the plaintiff’s conditions were likely to persist for the foreseeable future. He noted that she had returned to her pre-injury employment due to financial stressors and was clearly of the view that she should cease such employment.
29 The defendant has also had the plaintiff examined. Dr Rene Dupuche, consultant physician, saw the plaintiff on 13 July 2017, reporting on 17 July. Thus, this was a report following an examination carried out soon after the occurrence of the accident. Accordingly, at least to some extent, it has been overtaken by events. As earlier stated, he considered that the medical history which he was able to obtain was objective, clear, chronological, unembellished and cohesive.
30 The diagnosis of Dr Dupuche was of musculoligamentous chest wall pain. He considered it likely that there had been some tearing of the muscle fibres and perhaps some interruption to the attachment of the pectoral muscle to the bone. He considered this to be a new injury, but expected it to be incapacitating for a limited duration. As stated, this was a very early report.
31 Dr Dupuche provided a supplementary report on 2 October 2017. In this, he effectively eliminated fibrocystic disease of the breast as being a cause of the plaintiff’s condition. He believed that she was suffering from a work-related condition.
32 Dr David Ho, occupational health consultant, saw the plaintiff at the request of the defendant on 11 September 2018, reporting on the following day. The plaintiff had recently returned to work for pre-injury hours, basically performing pre-injury duties and with a small amount of lighter duties. She was coping, but feeling tired and sore in her left chest anteriorly at the shoulder. Her pain had increased with her workload. She described herself as having a constant ache in the left shoulder and anterior chest, with a sharp, stabbing pain when she used force with her left arm.
33 Dr Ho diagnosed a musculoligamentous strain of the left shoulder and in the anterior chest of the pectoralis muscle. He implicated employment. He believed that the strain from which she suffered was chronic. Being an occupational consultant, he concentrated considerably upon working hours and duties. It is to be remembered that the plaintiff is in fact seeking a certificate only in relation to pain and suffering.
34 Another report from Dr Ho was placed in evidence. Somewhat confusingly, this is dated 28 September 2018, but refers to an earlier report of 27 October 2018 and a return to work plan of 16 November 2018. In any event, it deals with a return to work plan and is not particularly relevant. The same could be said of a report of 27 October 2018, which deals with the same topic.
35 Dr Ho reported again on 4 June 2019, having re-examined the plaintiff on that day. The plaintiff’s return to work was discussed, along with the fact that she had taken some long service leave for 10 weeks, returning on 8 May 2019. During her long service leave, she had returned to China for approximately three weeks, but otherwise had been resting at home. She had been working 25 hours per week, but recently increased it to 30 hours. She did not use her left arm whilst at work. She had continued to massage it and to use dry needling. She was also having regular physiotherapy. She was not taking medication, but was seeing Dr Lo on a fortnightly basis. She had made some progress and was planning to resume slicing duties.
36 Clinical examination confirmed persisting lowering of the left shoulder, with reduced strength in the left arm. It was noted that the plaintiff was partially nursing her left arm. However, Dr Ho believed that the plaintiff had recovered from the likely musculoligamentous strain in the left shoulder or pectoralis in her left chest anteriorly. He suggested that she be encouraged to do appropriate strengthening exercises and to use her left arm normally. He thought that the plaintiff should gradually resume her pre-injury duties.
37 Dr Ho provided a further supplementary report of 24 June 2019 in order to deal with some matters that had not been covered in his report of 4 June. He confirmed that he believed that the plaintiff had recovered from a likely musculoligamentous strain in her left shoulder or the pectoral muscles in her left chest anteriorly. Dr Ho thought that the plaintiff’s current incapacity for work was not the result from or materially contributed to by the claimed injury. I might say that I find this report to be somewhat confusing. Dr Ho thought that the plaintiff was fit to return to her pre-injury duties after a period of work conditioning.
38 Mr Barclay Reid, general surgeon, seems to have reported directly to JBS on 27 August 2019. He took a detailed history of the injury and of the plaintiff’s return to work on modified duties. At the time of the examination, these modified duties had apparently been withdrawn and the plaintiff’s understanding was that she had been sacked. Mr Reid took a history that the plaintiff’s chest pain had recovered after a year, and was now causing only mild occasional pain which did not interfere with her daily activities. He also took a history that her left thumb had recovered completely, as had her wrist. He did not believe that a return to work as a slicer would aggravate any pre-existing medical condition. Mr Reid thought that the plaintiff could perform all the activities involved in her normal duties, provided that she was not called upon to work faster than normal. He thought that she had recovered from her injuries. Effectively, Mr Reid was of the view that the plaintiff could lift and carry up to 8 kilograms, and otherwise effectively placed no limitations upon employment activities.
39 In regard to the reports referred to above from Dr Ho and Mr Reid, I would make the following observations. Whether or not at some consultations some confusion arose at times because of language problems, it is apparent from Dr Lo’s clinical notes that, for example, the plaintiff was suffering from shooting pains in the left shoulder in May 2019 and underwent acupuncture and physiotherapy. She had muscular pain on 8 July 2019 and Meloxicam was prescribed. In August 2019, the plaintiff was sent home to rest as there were no more light duties available and had seen a therapist for massage, exercises and liniment. In September 2019, the plaintiff saw Dr Lo because of pain in the left shoulder and Meloxicam was again prescribed. The same could be said of a consultation in November 2019, and the plaintiff was again seen by Dr Lo for left shoulder pain on 23 December 2019.
40 On 9 April 2020, the plaintiff saw Dr Lo for left hand pain and had been unable to work for extended days at a stretch. On 4 June 2020, the plaintiff had left shoulder pain and wanted a longer break in order to recover. On 6 July 2020, because of left pectoral muscle problems, the plaintiff was unable to sleep. I shall not go through all the entries, but, and remembering that Dr Lo apparently speaks the same language as the plaintiff, it seems unlikely that the plaintiff had recovered fully when seen by Mr Reid in August 2019. In any event, the defendant did not place before me any reports from medical examiners subsequent to that of Mr Reid on 27 August 2019.
41 I accept that the plaintiff suffers from chronic pain affecting her left upper limb and left anterior chest wall, as referred to by Dr Sullivan. I also accept that there has been a development of a Complex Regional Pain Syndrome Type 1 and that the plaintiff’s presentation is entirely organic, again referring to the opinion of Dr Sullivan. Essentially, this is consistent with the diagnosis of Mr Asaid of left shoulder impingement, subacromial bursitis and biceps tendinosis. It is also consistent with a finding of left wrist tenosynovitis. Essentially, his diagnosis is of left pectoralis major muscle strain. This is in turn consistent with the diagnosis of the treating general practitioner, Dr Lo. He has referred to left pectoralis muscle strain, left thumb flexor pollicis tenosynovitis and left wrist ulnocarpal synovial effusion. Physiotherapist, Vern Chai, has also diagnosed a strain of the left pectoral and anterior shoulder muscles. I accept these diagnoses. They seem logical and in accordance with the accident and with the subsequent symptoms.
42 I also accept that they do not represent the aggravation of an underlying symptom or condition. Whilst the plaintiff may have had some temporary pain or symptoms in the right wrist, there is nothing to suggest that there was any previous relevant problem in relation to the left upper limb or the left upper chest. Hence, I am not of the opinion that there has been an aggravation of a pre-existing condition.
43 There is no expert evidence to suggest that the plaintiff suffers from any psychiatric or psychological consequences of note. There are no reports from any psychiatrist or psychologist in evidence. Whilst Dr Sullivan has referred to the fact that there may be some psychological sequelae consequent to the plaintiff’s chronic pain condition and Complex Regional Pain Syndrome, he has also stated that the plaintiff’s presentation is entirely organic. Any psychiatric or psychological consequences shall not be taken into account, but there is nothing to suggest that they are anything other than minimal.
44 I am also satisfied that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Lo has stated that the plaintiff has a good prognosis, but will be prone to frequent recurrences, especially if she persists in repeated arm movements at work that have precipitated her condition. Of course, it is her intention to remain at work if she possibly can.
45 Dr Sullivan has expressed the opinion that the plaintiff’s chronic pain condition will continue into the foreseeable future. It is an opinion which he repeats in his more recent report of 2 October 2020. Mr Asaid, who is an orthopaedic surgeon and has examined the plaintiff in recent times, has stated that the plaintiff’s condition is likely to persist for the foreseeable future. I prefer and accept these prognoses. I do not accept the opinions of Dr Ho and Mr Reid insofar as they deal with the matter of recovery. It is now some little time since either has seen the plaintiff. Further, as stated, I accept the plaintiff as a witness of truth. Her evidence would indicate clearly that she has not recovered. Accordingly, I accept the material advanced on behalf of the plaintiff to the effect that the consequences of her injury will continue for the foreseeable future.
(f) Other developments since the injury
46 As stated, the plaintiff returned to work with JBS on restricted duties and hours. Ultimately, and as I understand it, in order to protect her employment situation, she returned to her pre-accident duties. She has taken some long service leave and returned to China for three weeks. I accept that there have been various restrictions in relation to the performance of her domestic duties and social involvement. Her ongoing situation has been of working and then recovering from same.
(g) Ruling
47 In my opinion, the plaintiff has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(i) As stated, I found the plaintiff to be a credible and reliable witness whose evidence I accept. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance.”
The plaintiff’s credit has in no way been damaged. I accept her evidence, both oral and in her affidavits. I accept her description of the pain and restrictions from which she suffers.
(ii) In her earlier affidavit, the plaintiff swore that she had pain on the left side of the chest wall that was not there all the time, but was triggered when she moved her left shoulder and arm. It was made worse by reaching for things or carrying them in her left hand. She also swore that, after resuming her pre-injury duties, she found that work aggravated her chest, left shoulder and thumb pain. After a full day at work, her pain in those areas was much worse.
In her more recent affidavit, the plaintiff has sworn that working aggravates her chest pain. On the days that she does work, she is usually unable to do anything that involves a lot of physical exertion because she has too much pain in her chest. As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
Further, I note that the plaintiff gave a history to Mr Asaid of suffering from a constant dull ache which became a sharp stabbing pain with increased activity.
(iii) In her affidavit of 23 November 2020, the plaintiff has sworn that she has physiotherapy treatment about once a week. She has treatment from Dr Pang, the Chinese medicine doctor, weekly. She sees Dr Lo approximately once a fortnight. She is taking Meloxicam every morning and evening. This is a regime of frequent treatment and medication and raises the real prospect of a “very considerable” consequence.
(iv) Consistently, the plaintiff has given a history of interference with her sleep. In her affidavit of 20 November 2019, the plaintiff has described how she cannot sleep through the night and is awoken when she rolls onto her left side in her sleep. To Dr Sullivan, she described how she had poor and broken sleep, only getting between three to four hours of effective sleep per night. To Mr Asaid, she described her sleep as being interrupted and told him that she woke from sleep every night due to the pain in the left side of her chest wall and left shoulder.
The importance of interruption to sleep as a factor has been emphasised by the Court of Appeal in Haden Engineering v McKinnon (2010) 31 VR 1. In that decision, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(v) I also accept that the injury and its consequences have had a substantial impact upon the plaintiff’s daily activities. As the plaintiff told Mr Asaid, showering and dressing cause her pain. She has difficulty with domestic duties, such as cooking and cleaning. There has been major interference with her ability to socialise with her friends. As she has sworn, she struggles to use eating utensils with her left hand. She attempted a return to bike riding, but this aggravated her pain and she was not prepared to do it again. She has problems with daily domestic duties and cannot do such things as vacuuming, carrying anything in the kitchen that is heavy, ironing and the like. In short, there has been a very real impact upon her ability to perform ordinary daily tasks.
(vi) In her oral evidence, the plaintiff described the difficulties that she has in relation to performing her work duties and the increased symptomatology which she has after so doing. As she stated in re-examination, the pain is hard to cope with, but she has to persist with her work. Apparently, the money is needed for the family. In recent times, she has been forced to take some time off.
48 In summary, when all of the above is taken into account, it seems to me that the plaintiff has discharged the burden of proof. I am of the opinion that the consequences of the injury are more than significant or marked and are at least very considerable.
(h) Conclusion
49 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for pain and suffering damages. I shall hear the parties as to any further orders that are required.
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