Cooley v Dairy Farmers Limited
[2010] VCC 593
•16 June 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-09-04071
| ANITA JANE COOLEY | Plaintiff |
| v | |
| DAIRY FARMERS LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 25 & 26 May 2010 |
| DATE OF JUDGMENT: | 16 June 2010 |
| CASE MAY BE CITED AS: | Cooley v Dairy Farmers Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0593 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – crushing injury to dominant right hand, wrist and arm – surgical procedures and ultimate fusion of wrist – leave in respect of pain and suffering damages for wrist injury conceded – stability or permanence to be assumed by consent – plaintiff continued in employment on restricted duties until service was terminated – whether plaintiff has capacity for suitable work – whether statutory requirement satisfied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC | Maddens Lawyers |
| with Mr N Bird | ||
| For the Defendant | Mr P Scanlon QC | Lander & Rogers |
| with Mr P Gens | ||
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.
2 The plaintiff originally sought leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. The injury in question is essentially a crushing injury of considerable severity to the plaintiff’s right arm and particularly her right wrist. Details of the injury shall be discussed subsequently. However, at the outset it was conceded by the defendant that the plaintiff’s injury to the right wrist satisfies the narrative test for serious injury with respect to pain and suffering damages. It was conceded that this involves satisfying the requirements of the Act in relation to permanence, although, given the possibility or probability that the plaintiff will undergo further surgery, including surgery to the wrist for a carpel tunnel problem, the assumption of stability might be seen as a somewhat artificial one. Be that as it may, the concessions to which I have referred have been made. Accordingly, the matter proceeded as a contest solely in relation to whether the plaintiff satisfied the requirements of s.134AB(38)(e), (f) and (g) in respect of leave for pecuniary loss damages.
3 As stated, the plaintiff suffered a crushing injury to the right arm, this occurring on 18 February 2006 when she was using a hose to clean a conveyer and the hose, together with the plaintiff’s right hand and arm, was effectively dragged into the machine. The plaintiff is a right-handed person.
4 A central issue in the case is whether the plaintiff has established the required 40 per cent diminution in earning capacity as set out in s.132AB(38)(e), (f) and (g) of the Act. In this regard, no figures were placed before me in respect of the plaintiff’s “with injury” earning capacity. Thus, in relation to pecuniary loss damages, the matter proceeded on an “all or nothing” basis. If it has been established that the plaintiff has a capacity to earn income, the burden of proof would not be discharged. Section 134AB(38)(g) may also be relevant in this regard.
5 I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.
6 Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Gens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, thus saving the Court considerable time and doubtless also saving considerable expense. In addition, detailed and well reasoned submissions were advanced on behalf of each party.
Factual background
7 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 8 The plaintiff was a very impressive witness who, on the second day of the hearing, had to battle considerable illness (food poisoning, not related to her injury) in order to give evidence. Apart from that, she impressed me as being completely frank, straightforward and honest.
9 Surveillance material of her was shown. I regard this as having done no damage whatsoever to her credit. If anything, it underlined her reluctance or inability to use her injured dominant right hand and arm. She did perform some very light sweeping or cobweb removing using both hands for a very short period. I do not regard this as significant. Essentially, the video of the other activities in which she engaged portrayed someone who was using her right hand and arm to a minimal degree. She even threw a stick for her dog with her left hand on more than one occasion.
10 I note that Dr Carol Newlands, consultant forensic psychiatrist, who examined the plaintiff at the request of the defendant, described the plaintiff as being cooperative and a person who spoke in a matter of fact way and who seemed to be “quite open”. Similarly, Dr Martin van der Linden, consultant psychiatrist, who also examined the plaintiff on behalf of the defendant, described her as pleasant, cooperative, and appearing to give a frank and open account of the situation as she perceived it without obvious exaggeration. Mr Damien Ireland, orthopaedic surgeon specialising in surgery of the hand, reported to the plaintiff’s solicitors that the plaintiff gave every indication that her symptoms were genuine and, if anything, she tended to understate her symptoms.
11 I agree with these observations from medical examiners from “both sides of the fence”. I found the plaintiff to be a reliable witness of truth with, if anything, the tendency to understate symptoms and restrictions as noted by Mr Ireland.
(i) The plaintiff’s background, training and employment prior to the injury 12 The plaintiff is aged 38 years, having been born on 26 August 1971. She is separated from her husband, although she still sees him quite regularly and is trying to effect a reconciliation. She has a son aged approximately 11 years and a stepdaughter aged approximately 19 years.
13 The plaintiff completed Year 10 at school, leaving at the age of approximately 16 years. She then worked as a cleaner, firstly at the Heywood Hostel and then at the Heywood Hospital. She then travelled interstate, working in a hospital kitchen in Queensland and in a nursing home in Sydney. Having done a one week bar and cocktail course in Sydney, she returned to Victoria where she worked at the Portland meatworks during the day and at a local hotel in the evenings. She was then off work when her son was born, before working approximately 20-25 hours per week as a cleaner and babysitter. She commenced employment with the defendant in approximately November 2005. Her employment was that of a cleaner. After an induction week during which she worked full-time, she then worked on a part-time basis, her hours varying from as low as 18 or 19 hours per week to almost full-time work of 30 hours or more. I accept that the cleaning duties which she performed were physically demanding, involving the pushing and pulling of trolleys containing heavy containers of water, the climbing of ladders and steps, the use of brooms and the use of high pressure hoses. The plaintiff had only been performing this work for approximately nine weeks when she suffered the relevant incident of injury.
14 Thus, it can be seen that the plaintiff’s working life had essentially involved the performance of duties of a manual nature, and a considerable part of that time had been spent working as a cleaner.
(iii) The injury (a) The plaintiff’s health prior to the injury 15 Prior to 18 February 2006 the plaintiff had been involved in a series of motor vehicle accidents. Whether these numbered three or four is not entirely clearly, but the last of these seems to have been in approximately 1999. As a result of these, she has suffered pain in the neck and back. She continued to suffer from some of these symptoms over the years. The medication which she has taken includes being on a methadone program prescribed by the relevant authority. Apparently this originally related to the symptoms experienced by the plaintiff in her lower back and legs. She was on that program for some years prior to 18 February 2006. She still takes the same dose every day, although I gather that it also assists in relation to her right arm pain.
16 The plaintiff has also suffered from anxiety and depression for many years following the tragic death of her brother at the age of 16 years. She received some psychiatric treatment and has been treated with anti-depressant and anti-anxiety medication.
17 Thus, there have been some sizeable medical issues in the plaintiff’s life. None of these seem to have had consequences of any significance in relation to the plaintiff’s right hand and arm. She was working regularly performing quite demanding manual work prior to the occurrence of the relevant injury. I do not regard her previous medical history as having any bearing of significance upon the key issue of her post-injury work capacity.
(b) The injury of 18 February 2006 18 The plaintiff suffered the injury when using a high pressure hot water hose to clean a conveyer. The conveyer was operating. As she was performing this task, the hose and her right arm were dragged into a roller. She was trapped in the machine for approximately ten minutes. She was taken to the Warrnambool Base Hospital, had x-rays, and was transferred by ambulance to the Geelong Hospital. It was there that she underwent the first of a series of operations. The x-rays performed had revealed a green stick fracture at the distal third of the right radial diaphysis and an intra-articular fracture through the radial styloid. There was two millimetres of separation of the bony fragment at the articular surface. There was an associated avulsion of the ulnar styloid, which was displaced by six millimetres. There appeared to be disruption of the distal radio-ulnar articulation. The first operation which the plaintiff underwent was carried out by Mr Graham Brown. It was an open reduction internal fixation of the right styloid and right radial shaft fractures and transfixation with K-wires for the scapholunate dissociation. A plate and multiple screws were used to stabilise the fracture through the distal radial diaphysis. The K-wires were removed at the Geelong Hospital in April 2006 with the plaintiff being under general anaesthetic, but her condition did not improve.
19 Subsequent x-rays showed widening of the scaphoid lunate interval despite the fact that the K-wires had been removed. She was referred to a wrist surgeon, Mr Richard Page. She was also referred to a hand therapist and for physiotherapy.
20 The plaintiff first saw her general practitioner, Dr Clare Mooney, at the Hopkins Medical Centre on 28 April 2006. She was still complaining of significant pain in the right wrist, this pain being worse at night and being of a sharp and shooting nature. She was very restricted in her activities and was depressed. She was aware of pain in her right upper arm. An ultrasound performed in December 2006 also showed a small tear of the right supraspinatus tendon which, in the opinion of Dr Mooney, was probably sustained at the time of the relevant incident of injury.
21 Due to delays in relation to obtaining information from Mr Page, ultimately the plaintiff was referred to Mr Anthony Berger, an orthopaedic surgeon specialising in hand and upper limb surgery, in July 2007. He has reported that x-rays showed a non-united fracture of the ulnar styloid with significant dorsal instability of the lunate consistent with a rupture of the scapholunate ligament and what appeared to be a large step in the articular surface. Arthroscopic examination was organised. This was carried out on 17 August 2007. As a result, Mr Berger assessed the plaintiff as having an intra-articular fracture of the distal radius with a mal-united step in the joint surface and a complete rupture of the scapholunate ligament with marked instability.
22 As a result, on 12 October 2007 Mr Berger performed a reconstruction of the wrist joint. It was found that the extensor pollicis longus tendon had previously been ruptured and an attempt was made to correct this. It was decided not to proceed with an osteotomy of the distal radius.
23 The plaintiff’s recovery from this was complicated by an infection around the internal fixation pin. She required intravenous antibiotics and some treatment at the Warrnambool hospital. The internal fixation pin was removed on 10 December 2007, and the plaintiff was referred to a hand therapist.
24 In his report of 28 May 2008, Mr Berger described the plaintiff as presenting with a very complex and severe injury to her right wrist. He referred to the fact that she had already had two reconstructions of the scapholunate ligament. He was also of the view that she had suffered an injury to the right shoulder. In a supplementary letter of 11 June 2008, he expressed the view that recent x-rays had shown recurrence of instability in the wrist joint and he suspected that the plaintiff would be troubled by ongoing discomfort “that will permanently limit her activities to return to full normal duties (sic)”. Depending on the ultimate recovery, he felt that the plaintiff may be capable of full-time clerical or lighter duties not involving heavy and repetitive lifting and gripping. He did add the caveat, “Whether this type of employment is available to Mrs Cooley or whether she has suitable training is another issue …”.
25 On 12 August 2008, the plaintiff was seen by Mr Francis Lyons, orthopaedic surgeon, upon the referral of Dr Mooney. This was more for the purposes of examination and assessment of her right shoulder. It would appear from the report of Mr Lyons of 14 May 2009 that the plaintiff had undergone an ultrasound-guided injection of local anaesthetic and cortisone into the right shoulder in early 2007. Mr Lyons’ assessment was that the plaintiff had symptoms and findings pointing towards a diagnosis of rotator cuff tendonitis and impingement and possibly some minor tearing of the rotator cuff. He expressed the view that it was appropriate that the plaintiff consider surgery in the form of an arthroscopic decompression of the rotator cuff tendons. For a variety of reasons, there seems to have been a delay in relation to the performance of this surgery, which has still not been undertaken.
26 Returning to the treatment of the plaintiff’s right wrist, she was seen again by Mr Berger on 12 November 2008. Apart from any shoulder troubles, she had continuing pain in the right wrist radiating up to the forearm, which pain was sharp at times and was aggravated by wrist movement. She was wearing a splint at all times. On examination, Mr Berger found the plaintiff’s wrist to be very irritable and painful and described her condition as remaining problematic and preventing any return to normal activities. Because of her ongoing pain, it was decided to proceed with a total wrist fusion. This was performed on 6 July 2009.
27 Mr Berger reviewed the plaintiff on 27 August 2009. X-rays at that time showed that the wrist fusion was uniting slowly. Because of pain, an injection of local anaesthetic was organised. As at the time of his report of 3 September 2009, Mr Berger was of the view that the prognosis for the return of reasonable hand function was good, but the plaintiff would have a permanent impairment due to the arthrodesis. He did not believe that she would be able to return “to full-time work as a cleaner at a milk factory”, but believed that she would be left with restrictions as far as gripping and repetitive activities were concerned, “and certainly would have restrictions with any activity that required wrist movement”. He expressed the view that the pain in the wrist and the subsequent wrist fusion would have a permanent impact on some activities that required wrist movement.
28 Thus, it would seem that the plaintiff has had no fewer than six surgical procedures performed upon her right wrist. She has had the internal fixation, together with the insertion of K-wires; the removal of K-wires under general anaesthetic; arthroscopy performed by Mr Berger; a wrist reconstruction also performed by him; removal of the internal fixation pin; and ultimately fusion, again performed by Mr Berger. Possible surgical procedures to the right shoulder and again to the wrist, in relation to carpel tunnel syndrome, loom, but, as stated, by agreement I shall leave consideration of them to one side insofar as they affect questions of stabilisation and permanence.
29 The plaintiff has also been examined for medico-legal purposes. As stated, she was seen by Mr Damien Ireland, this being on 24 March 2010. He noted that her current treatment included the use of a moulded plastic splint which was worn 12 hours a day and that she was taking methadone daily together with some anti-depressants. Upon examination, he noticed obvious deformity of the right wrist with multiple healed surgical scars. He noted her grip strength to be 15kg on the right compared to 36kg on the left. He also noted, between the last and second last operations, a diagnosis of De Quervain’s tenosynovitis of the right wrist was made, and this was treated conservatively. Mr Ireland described the injury to the right wrist and forearm as being severe. He stated that the internal fixation device used for the arthrodesis was prominent and tender on the dorsum of the third metacarpal. He contemplated the possible removal of the internal fixation device. Mr Ireland described the plaintiff as being unsuited to any form of manual work. As shall be discussed, he also expressed the view that, should appropriate light duties, factory work or other type of work for which she was suited, given her limited education and work experience, be found, breaks would be required if and when the plaintiff experienced pain in the right wrist. He described certain duties which might be appropriate work for the plaintiff, but also issued the caveat that her ability to return to alternate duties, whether on a full-time or a part-time basis, would depend on the type of work and her initial response to it.
30 Mr Peter Scott, senior consultant surgeon, has examined the plaintiff on behalf of the defendant on three occasions, and has reported after each. His first examination of 9 November 2006 pre-dated any treatment by Mr Berger and has been overtaken by events. His second examination of 20 July 2009 was only two weeks after the performance of the fusion. Thus, when he saw the plaintiff, she was having a great deal of pain and discomfort. Understandably, Mr Scott regarded the prognosis as uncertain at that time and suggested a later review. His third report is of 19 January 2010 and follows examination on that day. He noted weakness of the power of the right wrist and evidence of reduced appreciation of pin prick. The plaintiff was still complaining of pain in the area of the fusion and Mr Scott noted a hypersensitive scar extending over the dorsal or extensor surface of the forearm and across the wrist. Mr Scott’s diagnosis concluded as follows:
“She could be best described as suffering from a chronic upper limb pain syndrome at this point in time, with ongoing organic disability referrable to the carpel tunnel, right upper limb and possibly incompletely fused wrist joint.”
31 Mr Scott expressed the view that the plaintiff’s condition was not stabilised, the prognosis was quite uncertain and that she was unfit for work. In respect of his last observation, it would seem that he took into account various factors such as the possible carpel tunnel condition, the shoulder injury and the plaintiff’s depressive condition, in addition to her wrist problems. He was uncertain as to her future work ability, and concluded as follows:
“The prognosis is uncertain as the condition has not stabilised and further developments, including a possible carpel tunnel syndrome, have yet to be clarified.”
32 The plaintiff has been seen by two consultant psychiatrists for medico-legal purposes since her last surgical procedure. I appreciate that, in this application, the plaintiff was relying solely upon sub-paragraph (a) of the definition of serious injury, but psychological and psychiatric consequences may still be relevant, at least for the purposes of possible exclusion, if for no other reason.
33 Dr Lester Walton saw the plaintiff at the request of her solicitors on 1 March 2010. He diagnosed her as suffering from a post-traumatic stress disorder with an additional diagnosis of a depressive disorder. He was of the view that these conditions were work-caused. He regarded her psychiatric condition as stabilised and doubted that she would derive significant benefit from psychological counselling. He expressed the view that there was no psychiatric impairment unrelated to the accident.
34 Dr Martin van der Linden, who had previously seen the plaintiff on 1 April 2008, saw her again on 11 September 2009 at the request of the defendant. Whilst he believed that she presented with ongoing symptoms of post- traumatic stress disorder with depressed and anxious mood, which he believed to be of mild intensity, and that she also suffered from an adjustment disorder with depressed and anxious mood secondary to her wrist injury, he expressed the following view:
“Currently her activities of daily living and any restrictions in her ability to carry these out, is primarily related to her physical limitations and the recent breakdown of her long-term relationship”.
35 He also believed that there had been exacerbation by her dismissal from work. He was of the view that she needed referral to a psychiatrist, and that the prognosis was guarded. He concluded as follows:
“With regards to her adjustment disorder with depressed and anxious mood, as this is secondary to her right upper limb injury, and this appears to be a chronic condition, it is likely that her adjustment disorder will also be chronic.”
36 I also note an opinion of a Medical Panel, such opinion being dated 2 October 2008. The Panel consisted of an occupational physician, an orthopaedic surgeon and a psychiatrist. At the time, the plaintiff was still employed by the defendant on light duties. The relevant question addressed to the Panel and its answer were as follows:
“Is the worker likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury?
Answer: Yes.”
I appreciate that the opinion of a Medical Panel in a matter such as this is not binding and simply becomes part of the overall evidence. I shall treat it as such.
37 Finally, along with counsel, I inspected the plaintiff’s right wrist. The scarring in the area of the right wrist was quite apparent. The skin also appeared blotchy. The area in which the internal fixation device had been inserted was quite apparent. Whilst the plaintiff did not attempt any particularly difficult movements of the arm or wrist, I also noted that, as one would expect, her range of movements appeared to be quite limited. The appearance of her lower arm and wrist was certainly consistent with her experiencing very substantial difficulties and restrictions. Whilst, obviously, pain cannot be seen, this also looked like a painful forearm, wrist and hand.
38 In summary, I am of the view that the plaintiff suffered a severe crushing injury to the right arm and wrist which has resulted in the surgical procedures described, and has left her with an arthrodesed right wrist. I also accept that there is ongoing pain, particularly if the plaintiff knocks or bumps her wrist or even turns it the wrong way.
39 The plaintiff stated in her oral evidence that if she accidentally knocked her right arm in any way, it hurt a lot and she would “… pretty much have pain for the rest of the day with it”. When asked how hard she would have to knock it before it hurt, she answered, “Tapping it on the table or bumping when I walked out the door”. The plaintiff also described getting pain if she tried to use her wrist in any sort of repetitive way or if, for example, she turned it the wrong way, which would create sharp pain. That the plaintiff experiences pain in the right wrist in the various circumstances which she has described is something which I readily accept.
40 I am asked to assume stabilisation and permanence within the meaning of the act, and shall do so. In relation to psychiatric and psychological consequences of the injury, I shall not take them into account as is required by the Act. In any event, whilst there have undoubtedly been consequences of this nature, the view that I have formed is that it is primarily the plaintiff’s physical symptoms and restrictions which impact upon her capacity for employment. The view of Dr van der Linden, examining on behalf of the defendant, would seem at least in part to coincide with this, and Dr Walton, concentrating more on the level of impairment, has not addressed the issue of work capacity in any clear fashion. The conclusion which I have reached in relation to psychiatric and psychological consequences is the result of my consideration of all the medical material and my observation of the plaintiff in the witness box and in the court. I also note that Dr Walton has described the plaintiff as someone who impresses as being quite resilient in the face of pain.
(c) Developments since the injury 41 I have already set out the sequence of medical treatment which occurred after the occurrence of the injury. I shall now turn to developments in relation to employment, rehabilitation and the like. Given the concession that has been made in relation to pain and suffering, I need only refer to general pain, disability and restrictions insofar as they have some bearing upon the work performed by the plaintiff, her capacity for employment, her involvement in rehabilitation and the like.
42 After the initial incident of injury, the plaintiff did not return to her employment with the defendant until approximately August 2006. Initially, she worked two hours per day three days per week performing very light duties such as the running of errands and the performance of some paperwork and basic computer work. As has been set out above, she underwent further surgical procedures. Following the reconstruction of her wrist on 12 October 2007, she developed an infection and was hospitalised for approximately eight days. At that time she was off work for about one month, and then returned, ultimately building up to four hours per day, five days per week doing light duties. These included the placing of stickers on cheese, and the packing and repacking of cheese when a machine malfunctioned. I accept that this happened frequently. The plaintiff wore a wrist brace whilst performing her work, but found some of it difficult. I note a report of Dr Mooney of 3 June 2008 in which she states that the plaintiff had been slow recovering but had returned to work for three hours a day, “very much doing light duties as she is unable to lift any weight”. Dr Mooney also noted that, “I feel her current work restrictions are unlikely to be lifted and hence the opportunity for her to consider additional employment is unlikely”.
43 By the time of Dr Mooney’s report of 11 November 2008, there had been further developments. The plaintiff had been feeling pressured into doing different duties when compared to those that had been agreed, this agreement apparently following consultation between the defendant, the plaintiff and her medical advisors. She had been directed to areas of work concerning which there had been no agreement and which created problems for her. The plaintiff could carry out certain administration duties and the like, but had difficulties working on the sticker application line and the cheese conveyer. It was about two days after this report of Dr Mooney’s that the plaintiff’s services with the defendant were terminated by it, this being allegedly on the basis that it had no appropriate alternative duties for the plaintiff to perform. Of course, this termination of the plaintiff’s employment pre-dated the further surgery performed by Mr Berger.
44 The plaintiff has not engaged in remunerative employment since that termination. Her estranged husband has a business, namely Cool Chassis Pty Ltd, an enterprise concerned with racing cars. I accept that her association with this is very limited. She may go there when she is in Warrnambool, or to pick up her son, visit a doctor or the like. The portion of the surveillance material dealing with sweeping and cobweb removal took place at these premises. In relation to that, her husband had asked her to clean up as he had a client coming, so she swept the floor and removed the cobwebs. This took place over a very short time, and, as I have previously stated, I was not particularly impressed with the surveillance. It seemed to me to neither damage the plaintiff’s credit in any way nor be particularly helpful in demonstrating any capacity for work. In addition, there is nothing to suggest that she obtains any remuneration from any activity associated with this business.
45 Other than the return to work plans prepared during the period of the plaintiff’s employment with the defendant, there is no evidence of any other attempt made by or on behalf of the defendant in relation to rehabilitation, vocational assessment and the like. Certainly there is no evidence of any such activity since the plaintiff was effectively sacked or retrenched by the defendant in November 2008. The only vocational assessment placed in evidence before me is that which was conducted by Mr Bill Radley, who saw the plaintiff on behalf of her solicitors on 12 November 2009 and who has provided two detailed reports dated 21 November 2009 and 22 November 2009. I shall return to a consideration of them in my ruling which follows. As shall be discussed, his second report includes references to a vocational assessment report prepared on behalf of the defendant prior to the fusion surgery.
Ruling 46
Bearing in mind the manner in which the issues have been confined, the concession which has been made and the assumptions which I am asked to draw, the required ruling is of a somewhat narrow ambit. I would repeat that I am to assume that the requirement for permanence of consequences has been satisfied – see pp39 and 42 of the transcript.
47
Having considered all of the available evidence, including that of the plaintiff and what I observed of her generally, and of her right wrist in particular, I am satisfied that she has discharged the burden of proof in relation to pecuniary loss damages. I have arrived at this conclusion for the following reasons which are not listed in order of importance:
(a)
The balance of the medical evidence available since the fusion operation performed by Mr Berger on 6 July 2009 seems to me to point towards the finding which I have reached. The report of Mr Berger of 3 September 2009 was written during the plaintiff’s early post-operative period. At that time, Mr Berger believed the plaintiff would be capable of a graded return to activities in approximately two to three months, but the activities to which he was referring are not specified as being employment activities. Rather, he refers to finger manipulations and light lifting but no activity that involves repetitive wrist movement. He did not anticipate that the plaintiff would be able to return to full-time work as a cleaner at a milk factory. He believed that she would be left with restrictions as far as gripping and repetitive activities were concerned, and certainly insofar as any activity that required wrist movement. The bottom line is that Mr Berger’s most recent report was completed too soon after the fusion surgery for him to be able to make any clear statement as to the plaintiff’s work capacity, but to me it seems that he was ringing some warning bells. That he could not be more definite is fully understandable.
Mr Damien Ireland reported to the plaintiff’s solicitors on 24 March 2010. True it is that he expressed the view that the plaintiff could perform non-manual work on a part-time, and possibly a full-time basis, but his observations must be seen in context, and particularly the context of the restrictions which he would impose. Lifting would be limited to less than five kilograms, the work should preferably be sedentary, it would have to be work for which the plaintiff’s limited education and work experience is suited, and she would require breaks if and when she experienced pain in the right wrist. Given that if the plaintiff does such things as knocking her hand against a table, bumping it against a door or turning it the wrong way, she experiences pain which can last for the balance of the day, the last mentioned restriction alone poses real problems. The other restrictions are onerous enough, particularly if it was added to them that the plaintiff cannot, for obvious reasons, engage in anything which requires repetitive wrist movement or, indeed, flexibility in that area. It is little wonder that Mr Ireland has added the overall caveat that the plaintiff’s ability to return to alternate duties of a non-manual kind would depend upon the type of work and her initial response to it. Realistically, it is difficult to imagine any employer taking on a person who is subject to such restrictions, and self-employment in positions such as a cleaner seems out of the question.
The report of Mr Scott, examining on behalf of the defendant, of 19 January 2010 contains the statement that the plaintiff’s condition has not stabilised and she is unfit for work. Whilst he has taken a number of factors into account, there is nothing in his report that gives the defendant any comfort. The answer referred to above is in response to a question or enquiry clearly referring to the earlier return to work plans and the fact that such work was allegedly administrative in nature. Despite being pointed in that direction, Mr Scott has simply stated that the plaintiff is unfit for work and, given that I am to assume stabilisation and permanence, this will continue to be the case.
(b)
As stated, the only post-fusion vocational assessment report available (and for the moment I am leaving to one side a somewhat convoluted report from Mr Mark Zampatti, a physiotherapist reporting to the plaintiff’s solicitors) is that of Mr Bill Radley, psychologist and vocational counsellor. Mr Radley’s lengthy reports contained the following conclusions. The plaintiff’s transferrable work skills are of an unskilled and semi-skilled nature, and she has no qualifications, experience or training in work of a higher occupational skill level. He found her to have limited interpersonal and social communication skills which, when combined with her general appearance, speech and vocabulary, suggested to him that she had only a “very mild” aptitude for work of a general public contact nature “and then only in much better circumstances”. His assessment of her level of general intelligence was that it was in the low/average range. Mr Radley had a large amount of material made available to him in addition to the information gleaned from his meeting with the plaintiff. His conclusion was that she had no capacity to return to her pre-injury, or similar, occupation now or in the foreseeable future. Further, Mr Radley assessed the plaintiff as having no capacity to return to any type of alternative employment for which she currently has the necessary skills, training and/or experience, and found that she had no current work capacity. In addition, he found that she had no capacity for any type of occupational retraining unless she made significant progress in managing her mood and chronic pain. Of course, as I keep repeating, I am to assume that the consequences of her injury are stabilised and permanent.
In his supplementary report, Mr Radley dealt with various employment positions suggested in a report of 25 March 2008 from Recovre Rehabilitation. This report, which obviously pre-dates the fusion surgery, was apparently organised on behalf of the defendant. It was not placed in evidence before me. In any event, Mr Radley concluded that it was not reasonable or realistic to suggest that the plaintiff had a current work capacity in relation to any of the suggested occupations. Indeed, he concluded that it would seem impossible to argue that the plaintiff had a current work capacity.
I accept the opinions expressed by Mr Radley.
I might add that I have left to one side the report of Mr Zampatti, physiotherapist, because it was produced comparatively shortly after the fusion surgery and any conclusions are, of necessity, somewhat speculative. In addition, it recommends further rehabilitation and vocational assessment be undertaken. Further, I found much of this lengthy document to be only of marginal assistance.
(c) In his closing address, Mr Scanlon placed considerable emphasis upon the evidence of the plaintiff to the effect that she believed that she could perform light duties, at least on a part-time basis. However, that evidence must also be seen in context. The observations of the various medical examiners must also be borne in mind. Firstly, I would agree with Mr Ireland that, if anything, the plaintiff tends to understate her symptoms. That was certainly the impression which I gained. Secondly, the plaintiff’s attitude towards continuing in the workforce has patently been admirable, as she continued in her attempts to carry on working despite surgical intervention and despite the restrictions from which she suffered. She persisted until she was dismissed, apparently because the defendant, which has all the appearance of a sizeable organisation, could find no suitable work for her. When questioned about particular jobs that she might be able to perform, she gave answers such as, “Probably, answer a phone yes, with my left hand”. This was typical of her attitude which, given the various medical opinions and that of Mr Radley, struck me as somewhat optimistic. Perhaps her attitude, as well as the best context in which to view her evidence concerning her capacity to perform light work, is most accurately summarised in the following question and answer:
“So if you were working, as it were, out the back, you know, as I say doing dishes, cleaning up, that’s the sort of work you could do?---Probably. I’d give it a go anyway. I wouldn’t guarantee it but I’d give it a go, I always have a go at everything.”
The plaintiff, to her credit, might well have the approach that she believes she could “give it a go”. Whether any employer would engage her or whether she has the capacity to last in light employment is a different matter. It is to be remembered that, in the opinion of Mr Scott, she is unfit for work. In the opinion of Mr Ireland, she may have the capacity for suitable employment, but the restrictions, as described, are of very considerable magnitude. Apart from the other restrictions, she would need to be able to take a break from work when she experienced pain in the right wrist. She experiences such pain if she knocks it, bumps it or turns it the wrong way. Knocking or bumping the wrist causes the pain to persist for the rest of the day. In other words, the onset of pain at, say, breakfast time could result in the plaintiff needing leave of absence for that particular working day.
Of course, there is added to this the opinion of Mr Radley. He believes that the plaintiff has no current work capacity and, currently (and therefore permanently pursuant to the assumption made), no capacity for any type of occupational re-training. I do not wish in any way to dampen the positive approach which the plaintiff has exhibited. However, when the balance of the evidence is considered and the plaintiff’s own statements are viewed in context, the overall conclusion remains the same. She has no earning capacity. I am of the opinion that this is so whether her situation be viewed in terms of the “real world” or in terms of interpretation of the Act.
(d)
I am not of the view that s.134AB(38)(g) operates to the detriment of the plaintiff. As stated, in my opinion, her attitude towards rehabilitation and the reasonableness of her attempts to participate in rehabilitation or re-training have been exemplary. She participated in return to work plans, even when the defendant assigned to her duties concerning which there had been no agreement. Ultimately, her services were terminated, and I accept that this was because the defendant, ostensibly a substantial employer, could find no suitable duties for her.
(e)
The evidence is that the plaintiff’s claim for statutory benefits was accepted, and she is still in receipt of weekly payments of compensation at the appropriate rate for someone who is totally incapacitated. When this is combined with the assumptions or concessions made in relation to permanence and stabilisation, it seems to me that there is some scope for at least a limited application of the observations of the Court of Appeal in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171. Mr Scanlon pointed out that the fact that the plaintiff is still in receipt of such payments is the result of a settlement, and also argued that such a concession by or on behalf of the defendant is a factor that could be taken into account but was not overriding or binding. Whether or not the plaintiff is in receipt of payments for total incapacity pursuant to court orders or terms of settlement (and it is not clear whether or not a court order exists, there only being reference in submissions to an agreed state of affairs pursuant to terms of settlement) does not seem to me to be a matter of great moment. The fact of the matter is that the defendant, or an entity on its behalf, is making the payments. Essentially I would agree with the second limb of Mr Scanlon’s submission, but would point out the following statement by Ashley JA in Taylor:
“But in cases where liability in relation to such a claim was accepted, I consider that the acceptance would stand only as an admission by the Authority or self-insurer, speaking for the employer, that such injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim…I consider that such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct”.
I appreciate that Ashley JA was directing his observations towards an initial admission of acceptance, but there seem to me to be some parallels between an admission of that kind and an effective admission that a person is totally incapacitated within the meaning of the Act. Indeed, some emphasis might be added to those parallels when it is considered that, in the present case, payments were terminated and then resumed – see transcript page 19. Certainly I agree with Mr Scanlon that such conduct in relation to weekly payments does not represent an admission that is overriding or binding. Rather, the fact of the payments is a factor which, as he conceded, I can take into account. Given that there has been no explanation in this particular case as to why payments for total incapacity were resumed, the fact of such resumption seems to me to be another factor which lends some support to the conclusion at which I had arrived in any event.
(f)
I should add that, in coming to the conclusion at which I have arrived, I have essentially left to one side difficulties, pain and restrictions which the plaintiff is suffering in relation to the injury to the right shoulder. On the balance of the medical evidence, this is also related to the incident of injury. I accept her evidence that she is also suffering debilitating symptoms in that regard and intends to proceed to surgery. Whether it was intended that I take into account the injury to the shoulder within the parameters of the concession made is not entirely clear. However, I have reached my decision without having had to consider the shoulder injury. The existence of it would only reinforce that decision.
Conclusion
48 In summary, the plaintiff is successful. It was conceded that she should have leave in respect of the bringing of proceedings for pain and suffering damages. I have found that she has discharged the burden of proof in respect of leave for proceedings for pecuniary loss damages. Those orders shall be made accordingly. I shall hear the parties as to any ancillary orders that are required.
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