Colombage v Victorian WorkCover Authority

[2023] VCC 1811

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-01393

CHANTELLE COLOMBAGE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2023
DATE OF RULING:	13 October 2023
CASE MAY BE CITED AS:	Colombage v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 1811

REASONS FOR RULING
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Subject:ACCIDENT COMPENSATION

Catchwords:              Damages – serious injury – entered unlit room slipping on wet floor tiles – injury to back - paragraph (a) of the definition of “serious injury” – consequences of pain and suffering – truthful and reliable witness – path of reasoning – Jones v Dunkel principle

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85

Ruling:Leave granted to commence proceeding to recover damages for pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Coldwell with Ms P Prossor	Shine Lawyers
For the Defendant	Mr D Churilov	Lander & Rogers

HIS HONOUR:

Introduction

1Chantelle Colombage seeks leave to commence a proceeding to recover damages for an injury allegedly arising out of or in the course of her employment with Ensav Pty Ltd[1]. She relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). She also relies upon the consequences to her in relation to pain and suffering.

[1]Trading as Endota Spa.

Circumstances

2Ms Colombage is now only 32.

3After finishing Year 12, she completed several courses including a diploma in beauty therapy. After completing her diploma, she worked in beauty therapy until the death of a friend. Then for more than four years, she worked as a barista, in sales at a carwash business, and in a bakery.

4In about September 2017, Ms Colombage started working for Endota Spa as a beauty therapist. Because her employment was casual and less than full-time, at the same time, she worked as a beauty and massage therapist at a business called Jackalope Hotel.

5Although Ms Colombage described the nature of her work with Endota Spa, her focus was on the events of 30 November 2018. Essentially, she entered an unlit treatment room and slipped on wet floor tiles. While trying not to fall to the floor she jarred her back. However, she continued working on a client and while reaching for a hot towel she felt a sharp pain in her lower back. After finishing with that client, she could not continue, left work and attended a physiotherapist.

6On 3 December, she saw her general practitioner. He certified her unfit for work. It was not until early 2020 that she saw a neurosurgeon, John McMahon. She underwent a bone scan but did not receive an L4/5 epidural injection despite Mr McMahon’s recommendation and the Authority’s willingness to pay for it.

7Meanwhile, after a short time off work, Ms Colombage returned on light duties and continued on those duties until about August 2019 when there was a “flare up” of her symptoms and she stopped work. She ceased working for Jackalope Hotel because the massage work hurt her back. Even though she became able to return to work, Endota Spa offered her no work. She started working with her mother in catering. This she found hard despite the efforts of her mother. Endota Spa started to offer her work but it struggled to find suitable duties for her. With the advent of the COVID-19 restrictions, her employment with Endota Spa ended in about March 2020.

8In about November 2020, Ms Colombage started her own beauty therapy business. She works full-time but alone. Of that time, 15-20 hours are spent with clients. She avoids massages by not offering it as a service. To relieve the pressure on her back, she bought two adjustable beds to minimize the amount of leaning forward.

Consequences

Pain

9At various points in her affidavits, Ms Colombage described the pain she experiences. She suffers constant pain. The type of pain varies between an ache and a sharp pain. When she has flare-ups, the pain is excruciating. When that occurs, one of her hips goes out to one side. At present, it tends to be the right hip.

Work

10It was her mother’s encouragement which led to Ms Colombage opening her own beauty salon. The reasoning was sound[2]:

“…I encouraged Chantelle to start a business so that she would be her own boss and not have to worry about someone else’s expectations”.

[2]Affidavit affirmed 28 September 2023 at [11].

11She works within her limits. She does not offer massages to clients. She uses beds whose heights are adjustable to relieve the pressure on her back. She struggles to give facials, although she perseveres despite the pain.

12In her first affidavit, she said she avoided offering services which take longer than an hour. She uses an online booking service called Fresha. She advertises the type of service, the expected duration and the cost. She explained what was involved in some of the services which took longer than an hour to perform. She gave two examples. Both did not involve her in working on the client constantly for over an hour. She described one or both as “popping a chemical treatment on the client and allowing it to sit on the client and then removing it”[3]. While the chemical is sitting on the client, she does other things – “Standing, sitting, moving around, getting a few other…tools for the removal of said chemical treatment”[4].

[3]Transcript at p 29.

[4]Transcript at p 30.

Walking

13Before the accident, she walked most days, taking her two dogs. Except for her attendance at a beauty exposition in August 2022[5], she does not mention walking in her affidavits or oral evidence. I note Dr Mills’ view that her ability to walk is either moderately or severely restricted.

[5]Affidavit affirmed 7 November 2022 at [54].

Sleep

14Generally, her back ache or pain does not interfere with her sleep. When her back pain is bad, she struggles to find a position in bed to minimise her pain and allow her to sleep. Whether she has slept well or not, when she wakes in the morning her back is stiff and she does stretching exercises to restore some movement into her back.

Domestic tasks

15Before the accident, she vacuumed and cleaned without difficulty. She had a vegetable patch which she gardened. She lives with her mother and godmother. She still shares the household duties but limits herself to the lighter tasks.

16Since the accident, vacuuming worsens her back pain. If she does vacuum it is for short periods. Similarly, she limits the time she spends preparing food. She is careful even changing the sheets of a bed.

17She does not garden in her vegetable patch “very much anymore”. Her pain worsens through leaning forward, bending or lifting. If her back is particularly sore she will not garden. Otherwise, she gardens in short bursts. Gardening is far less pleasurable for her now.

Gymnasium

18Occasionally, before the accident, she went to the gymnasium. As she concedes, she was not a big fan of the gymnasium. After the accident, she no longer attends.

Overseas travel

19Before the accident, she travelled overseas once a year to see her family. She has not tried overseas travel since the accident. Having travelled domestically by plane, she realises she could not cope with an overseas flight.

Socialising with friends

20Before the accident, she met her friends. They would go out for meals. She visited their homes. Since the accident, she does not socialise as much. She will not leave her home if her back is particularly painful.

21At the time of the accident, Ms Colombage was 28. She went clubbing with her friends. After the accident, she tried a few times but found she could not tolerate the bumping and jostling. Apart from that, the venues did not lend themselves to persons wanting to sit and she cannot stand for too long.

22As her mother, Carol Taylor, observed[6]:

“Prior to the incident she was very active and outgoing. She used to get dressed up and go out clubbing and dancing with friends. Since the incident [she has] become a home body. She barely goes out and socialises anymore.”

[6]Affidavit affirmed 28 September 2023 at [9].

Personal affairs

23Only when her back pain “flares” is she prevented from putting on her shoes. Her mother must then do that. She now avoids wearing high heel shoes. Understandably, as a younger person, she does like to dress up, and part of that is wearing high heels. Doing that increases her back pain significantly such that she stops wearing them.

Football

24Before the accident, she enjoyed watching football with her family. It was the family’s social outing. The state of her back determines whether she can go to the football with her family.

Medical and other opinion

Mr McMahon

25As I said earlier, John McMahon is a neurosurgeon. At the request of Ms Colombage’s general practitioner, he examined her on 31 January 2020[7].

[7]Report dated 31 January 2020.

26Judging from the tenor of his report, Mr McMahon viewed the 2019 MRI scans rather than simply reading the radiologist’s report. To him, these showed a central disc bulge at L4/5 without evidence of nerve root compression. At L5/S1, there was a left posterolateral disc bulge with a foraminal component immediately adjacent to the left L5 and S1 nerve roots. There was mild to moderate facet joint hypertrophy. Interestingly, he does not mention the annular tear noted by the radiologist.

27Mr McMahon recommended further investigation and conservative treatment including a trial of an L4/5 interlaminar epidural injection. He did not recommend surgery. He did not see her again.

Other practitioners

28Ms Colombage has been treated by other practitioners. Their reports were exhibited. I will deal with those of significance.

29Sandeep Nair is a physiotherapist. Ms Colombage went to him on the day of the accident and has treated her for some time afterwards. In his report, dated 22 September 2022, he noted her pain levels were generally very low with flare-ups occurring when she adopted awkward or sustained positions. He expected further flare-ups but expected her to manage her condition well.

30From May 2021, Ms Colombage has sought treatment from myotherapists. More recently, the myotherapist has been Julie Lowe. Two pages of her clinical notes were admitted into evidence. They are the cryptic notes one often sees. Apparently, it contains entries for two appointments in 2023 where there is a reference to the lower back: “LB feeling a bit uncomfortable for a while”; and “bit niggly in LB”.

Associate Professor Romas

31Evange Romas is a consultant rheumatologist. At the request of an authorised agent, he examined Ms Colombage on 3 March 2021 for the purposes of an impairment assessment.

32On examination, Associate Professor Romas’ main clinical finding was markedly reduced lumbar flexion. Extension was better. He described the other spinal movements as symmetrical without saying whether they were reduced. In a comment which I do not understand, he said “She does not reverse the lumbar lordosis”, adding there was no spasm.

33Whether he viewed the MRI scans or read the radiologist’s report, Associate Professor Romas concluded there was a central L4/5 disc protrusion. He rejected the conclusion of the 2020 bone scan as “almost certainly incorrect”.

34Associate Professor Romas diagnosed chronic low back pain following an aggravation of lumbar disc degeneration. The injury was permanent.

35As to prognosis, Associate Professor Romas considered Ms Colombage was at risk of further disc protrusion or extrusion. I assume “protrusion” or “extrusion” refers to the movement of discal material beyond the wall of the annulus.

36Under the system of evaluation applying to these assessments, he found a 5% whole person impairment.

Dr Mills

37Craig Mills is an orthopaedic surgeon of considerable experience. At the request of her solicitors, he examined Ms Colombage on 15 February 2023[8]. For the purposes of his examination, he was given a significant number of documents including reports which were not tendered in this proceeding.

[8]Report dated 15 February 2023.

38Apart from these sources of information, Ms Colombage gave him a history and he examined her. His examination revealed increased lumbar lordosis which was tender, very tender in the L4/5 and L5/S1 areas. Ms Colombage exhibited guarding in her lumbar movements, which were restricted. She could “long sit” to 90 degrees. The left sacroiliac joint was tender and a stress test increased her pain. The lower limbs were neurologically normal.

39Dr Mills had the report of the 2019 MRI scans[9]. This revealed a moderate disc bulge at L4/5 with facet hypertrophy and an annular tear on the left. The deformation of this disc was contacting the exiting L4 and L5 nerve roots. There was a disc bulge at L5/S1 which deforms the left L5 nerve root.

[9]The report appears at pp 52 to 53 of the Plaintiff’s Court Book.

40Dr Mills diagnosed an acute injury at L4/5, aggravation of the pre-existing condition at L5/S1 and straining at the sacroiliac joints. Although imaging showed multiple left nerve root impingement, clinically, there was no marked neurological loss.

41From a physical perspective only, Dr Mills considered Ms Colombage was to a moderate to severe extent restricted from performing a variety of activities including sitting, standing, walking, driving, lifting, bending and twisting. These restrictions would last for the foreseeable future.

42Although Ms Colombage did not rely on loss of earning capacity consequence, Dr Mills gave a pessimistic assessment of her capacity for work. At present, she had about a 25% to 50% capacity for work with a maximum of 22 hours a week. This capacity was likely to remain in the medium term but her restrictions were substantially likely to increase slowly, to substantially or completely prevent her from engaging in paid employment. He maintained this forecast even if she were treated conservatively with procedures including steroid injections and pain management.

43With those restrictions and the prognosis, it is unsurprising Dr Mills considered she was unlikely to work consistently, due to the fluctuation of her symptoms resulting in invasive treatments at unpredictable times and extensive time off work.

44Longer term, Dr Mills saw the deterioration of the condition of her lumbar spine and the likely need to require multi-level decompressive surgery. Although he does not say what type of decompressive surgery he had in mind, I agree with the suggestion of the plaintiff’s counsel it could be those procedures which relieve pressure on the spinal cord or the nerve roots.

Legal considerations

45For the purposes of this application, “serious injury” means “permanent serious impairment or loss of a body function”. The word “serious” is explained in two paragraphs of s325(2) of the Act. First, relevantly, it is satisfied by reference to the consequences to Ms Colombage of any impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.

46Second, the impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked, and as being at least very considerable.

Discussion

Credit

47The defendant put Ms Colombage’s credit in issue. In my opinion, the procedure adopted in these applications is unsuited to witnesses like Ms Colombage. Her evidence in chief would have been better obtained by her giving her evidence in chief orally rather than through the use of affidavits. However, that is not the procedure in these applications. She is the type of witness who needs to be able to expand her answers in the course of evidence in chief. Consequently, some of the cross-examination raised the issue of truthfulness in her affidavits. Such differences are explained by the type of witness she is and not by deliberate untruthfulness.

48Nevertheless, I had the benefit of seeing and hearing her give evidence. Frankly, I consider her to be a truthful and reliable witness. To me, the stunning piece of her evidence was the calculation of her taxable income. For the financial year ending 30 June 2023, her gross income from her “net business income” was $21,155 where “net” refers to the business income after deduction of expenses. This net figure did not include the monthly rent of $1,600 because it is paid by her mother. I may have become hardened over my years as a judicial officer but I doubt all taxpayers would be as honest.

49The notes of Ms Lowe are far too brief to affect the credit of Ms Colombage notwithstanding her answers in cross-examination. They are notes for the practitioner herself, not for someone else. In part, they contain a form of shorthand. There is an attraction in short, simple statements but they can be deceptive. Assuming Ms Lowe is a myotherapist, she is dealing with Ms Colombage’s soft tissues, mainly muscles. She is not dealing with the bones of the spine or the intervertebral discs. Even though Ms Colombage is seeking ‘maintenance’ help to avoid the effects of a ‘flare up’, one wonders what it is Ms Lowe or her colleagues can offer where the problem lies mainly in two damaged discs. One also wonders what it is Ms Lowe would see as important to note.

Dr Mills

50The defendant’s counsel submitted I should give the opinions of Dr Mills very low weight because they do not disclose the path of his reasoning.

51The expression “path of reasoning” appears in judgments dealing with the reasons of judicial officers and, in this context, the reasons of a Medical Panel[10]. The expression is somewhat misleading (at least to me) when applied to a medical witness. What is required with such a witness is whether the established facts provide the witness with a “fair climate” for his or her opinions[11].

[10]See, for example, Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

[11]Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509. See also Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85 at 87-88.

52I agree with the submission of Ms Colombage’s counsel. His report follows conventional lines. He records the circumstances of the accident. She tells him of her treatment and current complaints. He examines her and reads whatever radiological or other material available. In light of the established facts, Dr Mills has a fair climate of fact upon which to express his opinions. There is no basis upon which I could give his opinions very little weight.

Jones v Dunkel

53It would be good if the principle in Jones v Dunkel[12] was not raised as often as it is in these applications. The defendant raised it in relation to the absence of reports from a physiotherapist and a general practitioner, while the plaintiff raised it in relation to a lack of evidence of a hypothetical expert witness. Neither submission has merit, especially that of the plaintiff.

[12](1959) 101 CLR 298.

54Given the way these applications are usually conducted, I would not expect to find reports from practitioners so recently engaged. Apart from ascertaining the existence of these practitioners, the defendant’s counsel asked little about what they had done for Ms Colombage. If he could not find much to ask, it is unlikely I would draw an adverse inference from the absence of the reports.

55It only takes a moment’s consideration to realise how pointless it is to seek an adverse inference to be drawn from the absence of a report from a non-existent expert.

56Ms Colombage’s counsel stressed her age. They even tendered an actuarial table showing the life expectancy in 2022 of a 32-year-old female - 54.35 years. That is, in 2022, she would expect to live until she is 86.35 years old. In light of Dr Mills’ opinions, Ms Colombage can look forward to a long and difficult physical future. Even now, she is restricted in many areas including her chosen field of employment. I think the word “stoic” is overused in these applications. I would describe her as determined to make the best of the situation she finds herself in.

57Ms Colombage has an impairment or loss of body function of her lumbar spine. It prevents or limits many of the activities she enjoyed before the accident. The extent of her physical restrictions appears in Dr Mills’ report. They are extensive. His prognosis is particularly disturbing. For a person of only 32, her future with her lower back is depressing.

58Ms Colombage suffered an injury to her spine arising out of or in the course of her employment with the Endota Spa. The impairment or loss of body function caused by the injury is permanent. The pain and suffering consequences are more than significant or marked and are at least very considerable.

Conclusion

59I will grant leave to Ms Colombage to commence a proceeding to recover damages for pain and suffering.

60I will hear the parties on the form of my orders and the question of costs.