Combridge v Kerry Ingredients Australia Pty Ltd
[2013] VCC 865
•26 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-12-00143
| SHIRLEY COMBRIDGE | Plaintiff |
| v | |
| KERRY INGREDIENTS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 May 2013 | |
DATE OF JUDGMENT: | 26 June 2013 | |
CASE MAY BE CITED AS: | Combridge v Kerry Ingredients Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 865 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; 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: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Wood | Robinson Gill |
| For the Defendant | Mr B Mc Kenzie | Thomsons Lawyers |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming pain and suffering damages in respect of injury suffered by her in the course of her employment with the defendant.
2 The injury relied on by the plaintiff in the application is an injury to her lumbar spine, and the relevant impairment of body function is that of the lumbar spine.
3 In the proceeding, the plaintiff relies upon two affidavits sworn by her and a further affidavit sworn by her husband. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise, the parties rely upon various medical and like reports tendered by them.
4 In her affidavits, the plaintiff deposed as follows:
· She was born in 1948 and is aged sixty-three.
· She entered the workforce at age fifteen and thereafter maintained steady employment in various occupations of an unskilled or semi-skilled nature for the balance of her working life, until commencing employment for the defendant’s predecessor known as “Sugar and Spice” in approximately 2004. The plaintiff deposed to the fact that the defendant took over that business in approximately 2007 and that she continued to work there, suffering the injury the subject of this application on 8 September 2008.
· She was generally fit and active prior to the subject injury. She described living a happy life with her husband, caring for her animals, which included budgies, a Doberman dog and a cat. She said she loved working in the garden, maintaining both the garden and a vegetable patch, and that she would spend many hours on weekends in her garden weeding, pruning and planting. She said that she would go on walks with her husband; that she enjoyed socialising with friends; that she enjoyed undertaking coastal walking in areas such as the Grampians, and described herself as being “fit and active and very happy”.
· In the incident the subject of this application, she sustained an acute injury to her lower leg, explaining:
“Although I was more focussed on the ankle pain, I continued to have back pain which never went away. … When I first returned to work I had hoped that I had just strained my back and that it would come good. I did not initially realise the extent of the damage to my back. … Some weeks after returning to work I started to get pain into my left hip and shortly after into my right hip. At night and on weekends I used a heat pack and a red ray lamp which I purchased to ease my back pain.”
· She had not suffered from back pain prior to the subject incident.
· In January 2009, after three weeks’ holiday, she returned to work hoping that her back pain would improve, only to find that her pain continued, with the result that she was required to employ “Panadeine Codral. I was taking this medication every four hours throughout the day”.
· She found that her work aggravated her back pain and, notwithstanding the fact that her leading hand tried to give her lighter work which allowed her to sit and stand, she found that even this work, aggravated her pain. She resigned from her employment on 31 July 2009, being “unable to cope at work with the back pain”. She was subsequently placed on a Disability Support Pension.
· As at 2010, she managed her symptoms of back pain by taking up to six tablets of Panadeine per day, together with the anti-inflammatory agent, Mobic.
· In March 2010, she was referred to Mr Justin Hunt, an orthopaedic surgeon, who advised her that she had suffered a disc protrusion at the L4-5 level and that she may require surgery should her condition worsen.
· But for the intervention of her back condition, the plaintiff had planned to continue working to age sixty-five.
5 As at August 2011, the plaintiff deposed that she suffered from the following symptoms:
· Constant back pain which was exacerbated by activities which placed pressure on her back.
· A restricted ability to walk by reason of the presence of back pain and right ankle pain.
· A severe restriction in her ability to maintain her garden. “I tried to bend down to do a little weeding in the garden, but this is uncomfortable and I try to avoid it.”
· Difficulty sleeping, such that “I usually wake throughout the night with pain and take time to get back to sleep”. The plaintiff described the fact that she and her husband now slept in separate beds, stating –
“We had a loving and close intimate relationship before I was injured. Now are sex life is virtually non-existent because we do not sleep together and because if we do have sex it causes me a lot of pain.”
6 In a supplementary affidavit sworn in April 2013, the plaintiff deposed as follows:
· Although she had good days and bad days, she was never free from back pain.
· She currently employed medication in the form of six Panadol Osteo each day and two Panadeine at night to manage her symptoms. She said that this regime of medication had been constant over the previous twelve months.
· She was restricted in her ability to walk on a treadmill for more than ten minutes, as walking for longer periods than this caused her back pain to intensify.
· Her partner undertook the major household shopping and cooking and, although the plaintiff attempted to undertake household tasks such as vacuuming, she had to undertake these tasks at her own pace, explaining “I do part of a room before resting. I do not finish a single room in one day.”
· In the last twelve months her back pain was such that it affected her sleep, in that:
“It takes me about two hours to get to sleep because I cannot get comfortable. My partner and I continue to sleep in separate rooms because I toss and turn throughout the night in pain. When I do get to sleep I regularly wake up when I turn over. I am often tired in the mornings.”
7 In his affidavit sworn on 10 February 2012, the plaintiff’s husband deposed:
· That when he visited the plaintiff in hospital after the subject accident, she had complained of having suffered an injury to her right ankle and to her back;
· That before she had suffered the subject injury he and the plaintiff had had a loving and intimate relationship but that they no longer slept in the same room by reason of the plaintiff’s restlessness during the night;
· That prior to sustaining her injury, he and the plaintiff would regularly walk together;
“On average we would walk around about 45 minutes per day. Shirley is now significantly restricted with her ability to undertake these walks. Her back starts aching only after a few minutes of walking these days.”
· That prior to sustaining her injury, the plaintiff was a keen gardener but that after sustaining the injury, the plaintiff had been markedly restricted in her ability to garden, commenting:
“If she does attend to the garden, she has to stop after a few minutes as the result of the back pain which she tells me she develops.”
· That the plaintiff had been a proud housekeeper who had been able to undertake all the cleaning and maintenance activities required by the household but that by reason of her injury, he had to take up the bulk of these activities.
· That the plaintiff had difficulty getting out of his car, a Holden Monaro, which–
“… is quite low and has no handle where she can hold onto whilst trying to get out. I anticipate that we will need to buy a different car in the near future to accommodate her restrictions.”
· That the plaintiff had intended to work until the age of sixty-five but had had to cease work by reason of her persisting back pain.
The Plaintiff’s viva voce evidence
8 In cross-examination:
(i) The plaintiff said:
· While she suffered from arthritis in her hands, this was under control and her main problem was back pain.
· That she had undergone surgery on both her feet because her toes “were clawed over”. She said her most recent surgery was undertaken in November last year and that whilst she had achieved a very good outcome from that surgery, in cold weather both her knees and feet tended to ache (more so the left than the right).
· That she had last been prescribed Panadeine Forte by her general practitioner in May 2012 by reason of back pain.
(ii) It was put to the plaintiff that since August 2012, her attendances at her general practitioner had been for other problems such as her feet and her hands. The plaintiff agreed that her feet had been giving her problems up until 16 May 2012 but said that since that time her condition had resolved.
(iii) The plaintiff said that her general practitioner refused to “see any WorkCover patients” and in treatment of her back condition she had consulted physiotherapists, an osteopath, and Mr Justin Hunt, an orthopaedic surgeon, who she consulted on two occasions in March 2010 and May 2010 and who subsequently, discharged her back to the care of her general practitioner. The plaintiff explained that she had consulted her general practitioner –
“… quite a few times complaining about my back pain; and it wasn’t getting any better, and I asked her – I knew she didn’t – you know that she doesn’t deal with WorkCover patients, and I asked – and I said to her that she’s my doctor and I want her to do something about it so she sent me to have the x-ray, and then she got the result back from there, then she sent me to see Justin Hunt, and he’s seen the x-ray, and he sent me to have – he wanted to look into it further because he couldn’t see everything on the x-ray. He sent me to have an MRI done to my back.”
(iv) It was put to the plaintiff that she first complained of back pain to a medical practitioner in May 2009. The plaintiff said that she had mentioned that her back was sore earlier than this but had not made a specific complaint.
(v) The plaintiff agreed that in her Incident and Injury Claim Form she made no mention of back pain. She was challenged as to why she had failed to do so, and said:
“But my back was hurting still all the time … but I wasn’t really worrying much about my back. It was mainly my ankle that I was concentrating on.”
(vi) It was put to the plaintiff that the reason for her retirement from employment was primarily due to the presence of a Chronic Obstructive Airways Disease from which she suffered. The plaintiff agreed that she suffered from this condition, which was secondary to her smoking, but that the primary reason for her retirement was related to the condition in her back.
(vii) The plaintiff was taken to the application made by her for a disability support pension in which Condition A, with respect to the application, was listed as Chronic Obstructive Airways Disease and condition B was listed as low back pain. It was put to the plaintiff that her Chronic Obstructive Airways Disease manifested itself with symptoms of shortness of breath, tiredness and recurrent chest infections to which the plaintiff agreed. It was further put that this condition was a factor in the plaintiff ceasing work, to which the plaintiff replied: “No, it wasn’t. It was the back pain injury is why I stopped work.” The plaintiff agreed however that her chronic obstructive airway condition affected her ability to undertake housework involving bending and also her ability to go dancing.[1]
[1]I note that the second condition described in the plaintiff’s application for a disability pension involved her lumbar spine.
(vii) The plaintiff said that her feet did not now impact upon her ability to walk and that having recovered from her surgery she no longer suffered from pain in her feet.
(vii) It was put to the plaintiff that her description in her affidavit that she was fit and well prior to suffering her injury of 8 September 2008, was inaccurate in that she was suffering from Chronic Obstructive Airways Disease, to which the plaintiff replied:
“But it wasn’t – yes, I was still working, though, it wasn’t interfering with my work, because I was using the puffers and that so it really had nothing to do with, you know, the back problems and that.”
9 In re-examination, the plaintiff said that:
· Prior to her injury, she was able to garden without restriction;
· Her breathing issues had prevented her from going on long walks with her partner but that the clawing of her toes had not limited her ability to walk.
· It was her back injury that brought about her retirement;
· Her Chronic Obstructive Airways Disease did not play a part in her retirement; explaining that:
(i) She had suffered from this condition for quite a while;
(ii) She had managed the condition by the use of puffers, and that but for the condition in her back, she had intended to continue to work until aged sixty-five.
The medical evidence
10 It is clear that initially following the incident the subject of this application, the plaintiff’s major complaint to her medical practitioners involved the traumatic injury suffered by her to her right ankle.
Having regard however to:
· The assessment by a Medical Panel dated 12 May 2011 that the plaintiff presents with a five per cent whole person impairment arising from “the accepted lower back and right ankle injury when assessed in accordance with section 91 of the Act. The degree of impairment is permanent”, when considered in context with;
· The evidence by both the plaintiff and her husband as to the timing of her symptoms of back pain which I accept;
I am satisfied that no issue arises in this proceeding as to the causation of the condition with which the plaintiff present sin the plaintiff’s lumbar spine as being a consequence of the incident the subject of this application. (This position was conceded by the defendant in the course of the application).
11 In a report dated 13 July 2010, Mr Justin Hunt, an orthopaedic and spinal surgeon, commented that the plaintiff had consulted him in March 2010 at the referral of her general practitioner and that at that time he had referred the plaintiff for an MRI scan which was undertaken on 22 April 2010 which –
“… confirmed the findings on the CT scan of multiple level lumbar spondylosis but also demonstrated a foraminal disc prolapse at L4-5 motion segment on the right side, causing compression of the right L4 nerve root.”
12 Mr Hunt opined that the plaintiff presented with –
“… symptomatic mechanical lower back pain which has been debilitating.
It has been debilitating to the extent that she was not able to continue with her usual duties at work and the symptoms were affecting her on a daily basis, both her domestic activities of daily living and also her leisure activities. She has had to take daily analgesia and has tried numerous different physical therapies. The referral by her local doctor to me for review of her ongoing lower back pain has been fully investigated. This shows that she does have advanced degenerative change at the lumbar region and as I have previously mentioned, she has suffered an aggravation of the previously asymptomatic changes of the lumbar spine.”
13 Mr Hunt further opined that it was likely that the plaintiff’s condition would deteriorate in the future; that the plaintiff was totally incapacitated for employment by reason of her ongoing lower back pain, and that this condition would “interfere with her activities of daily living to a marked degree”, commenting:
“She is not able to perform any significant physical work such as house cleaning and home maintenance due to her ongoing back pain symptoms. She is not able to walk for any significant distance, therefore she is not able to exercise. She is quite restricted in terms of her activities due to problems with sitting intolerance and standing intolerance.”
14 Mr Thomas Kossmann, an orthopaedic surgeon, has examined the plaintiff on two occasions, namely, 1 August 2012 and 4 February 2013.
15 In his initial report, Mr Kossmann expressed the opinion that the plaintiff had suffered an aggravation of pre-existing “dormant degenerative changes on her lumbar spine” in the subject incident and that she had no work capacity for her pre-injury duties. He described the plaintiff’s condition as being largely stable, commenting that he could not exclude completely that the plaintiff may suffer from increased pain and further restriction of movement with the passage of time.
16 In his second report dated 4 February 2013, Mr Kossmann opined that the plaintiff presented with a “complex lumbar spine condition which in my opinion should be treated conservatively”; and that whilst the plaintiff’s condition had stabilised, he could not exclude completely that her condition would deteriorate with the passage of time such that her symptoms would increase.
17 Mr J Kendall Francis, a surgeon, in a report dated 11 June 2010, opined on behalf of the defendant that the plaintiff had sustained a wrenching injury to her pre-existing degenerative back condition, but that as at June 2010 the plaintiff presented with predominantly age-related degenerative changes which were not work related.
18 Having regard to the findings by the Medical Panel which bind the parties to this application on the issue as to whether the subject incident continues to be a cause of the plaintiff’s current spinal symptoms and incapacity, the opinion expressed by Mr Francis as to causation becomes largely irrelevant.
19 In a report dated 6 December 2011, Mr Michael Dooley, an orthopaedic surgeon, opined following an examination undertaken on behalf of the defendant:
· that the plaintiff presented with underlying degenerative disc disease;
· that it was possible that the plaintiff’s employment had indirectly contributed to her low-back pain but that he could not “explain ongoing symptoms in relation to the lumbar spine on the basis of this sort of indirect connection”.
20 In expressing this opinion, Mr Dooley opined that any symptoms of back pain with which the plaintiff presented were the result of “an indirect aggravation of lumbar spine degeneration secondary to altered gait, crutches etc”.
21 In that Mr Dooley’s opinion is:
· Predicated upon a misanalysis of the mechanism of the plaintiff’s injury; and
· Contrary to the opinion expressed by the Medical Panel both as to the causation and permanence of the plaintiff’s condition;
I do not find the medical opinion expressed by Mr Dooley to be either helpful or persuasive in determining the issues which arise for my consideration in this application namely the admitted accident-related impairment of function of the plaintiff’s lumbar spine.
Findings
22 It is put on behalf of the defendant that the plaintiff, in failing to disclose in her affidavit the presence of her Chronic Obstructive Airways Disease and the condition in her feet, is an unreliable witness and that I should make adverse findings as to her credit by reason of her failure to make these disclosures. I do not accept the position put on behalf of the defendant.
23 My impression of the plaintiff as she gave evidence was that it was her strongly held view that, whilst she suffered from the co-morbidities relied upon by the defendant in grounding the submission to which I have referred above,, those conditions did not impact upon her life in a significant way such as to limit her ability:
· to work;
· to undertake housework or gardening;
· to undertake recreational activities;
this being the position maintained by the plaintiff in the course of her evidence which I accept.
24 Further, when one takes into account the plaintiff’s long work history and her attempt to continue her employment notwithstanding the fact that she had sustained the subject injury (which history in my opinion speaks significantly in favour of the plaintiff’s credit), I am not persuaded that the failure by the plaintiff to mention in her affidavits the conditions to which I have referred, should cause me to draw an adverse inference as to the plaintiff’s credibility as a witness.
25 As to the plaintiff’s reliability as a witness, the fact that there is no discrepancy between the description given by the plaintiff as to her levels of pain and tolerance for activity by reason of the condition of her back, and the medical opinions expressed both by Mr Hunt and Mr Kossmann as to the way in which the plaintiff’s back condition impacts upon her both with respect to symptoms and incapacity for activity, I accept that the plaintiff is a largely reliable witness.
26 The plaintiff presented as someone who derived much enjoyment from the simple activities of life such as working, caring for her garden and engaging in moderate levels of activity primarily in the from of walking with her husband.
27 Given my satisfaction for the reasons earlier mentioned that the plaintiff has suffered an injury to her lumbar spine which gives rise to a permanent incapacity of the lumbar spine, and taking into account the medical opinions of Mr Hunt and Mr Kossmann, I am satisfied that the plaintiff suffers from an impairment in the function of the lumbar spine which gives rise to the following consequences:
(i) The condition was a material cause of the plaintiff ceasing employment in circumstances in which it was the plaintiff’s intention and desire to continue to work until retirement age;
(ii) The condition causes the plaintiff to suffer from symptoms of pain which is managed by a regular intake of significant quantities of non-prescription analgesia;
(iii) The condition affects the plaintiff’s ability to sleep such that she must now sleep in a separate room from her husband, and the pain associated with her condition together with her isolation from her husband has impacted seriously upon their intimate relationship;
(iv) The plaintiff who as a keen gardener and for whom her activities in the garden occupied a significant part of her leisure time and were a source of considerable pleasure and satisfaction to her; is now largely precluded from gardening by the condition of her lumbar spine;
(v) The plaintiff is restricted in her ability to walk for other than very short periods by reason of her symptoms.[2]
[2] In making these findings I take into account the plaintiff’s pre-existing comorbidities. I am satisfied however, adopting the analysis applied by the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, namely:
28 I am further satisfied that these consequences represent for the plaintiff restrictions to her life and lifestyle such as to:
· Either deny the plaintiff the ability of engaging in the major activities which her life was cantered around prior to the injury the subject of this application:
· Restrict the plaintiff in her ability to engage in those activities to a major degree.
29 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 both Haden Engineering Pty Ltd v McKinnon[3] and Sutton v Laminex Group Pty Ltd.[4]The task which I am required to undertake has been described a one which involves an objective analysis of the evidence as to the extent of the consequences associated with a particular impairment:[5]
[3](2010) 31 VR 1
[4][2011] VSCA 52
[5] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
“… 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
30 Having undertaking the analysis required of me in determining this application, I am satisfied, given 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, that the plaintiff presents with an impairment of function of the lumbar spine which meets the definition of serious injury as employed by the Accident Compensation Act 1985 and, accordingly, that the plaintiff is entitled to the leave sought by her in this application.
31 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.
32 I will hear the parties as to the issue of costs.
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§a consequence is compensable if it results from or is materially contributed to by an injury;
§a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries;
that the plaintiff’s back injury materially and substantially contributes to each of the consequences to which I have referred.
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