Copland v Victorian WorkCover Authority
[2010] VCC 1979
•13 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01201
| JANET COPLAND | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| TIGER ANGEL PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 and 25 November 2010 |
| DATE OF JUDGMENT: | 13 December 2010 |
| CASE MAY BE CITED AS: | Copland v Victorian WorkCover Authority & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1979 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered an injury – whether the plaintiff suffered a similar injury previously – whether the injury resulted in pain and suffering consequences which were at least very considerable: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Alessi & Kemp Pty Ltd |
| For the Defendants | Mr R Middleton SC with | Hall & Wilcox |
| Ms A Ryan | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the second defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Ms A MacTiernan of Counsel appeared for the plaintiff and Mr R Middleton SC appeared with Ms A Ryan of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is her neck.
5 The following evidence was adduced during the hearing.
(a) The plaintiff gave evidence and was cross-examined. (b) Mr C Thomas, consultant in rehabilitation and pain medicine, gave evidence and was cross-examined. (b) The plaintiff tendered his Court Book ("PCB"), pages 22-41; 41A-118; 136; 147-171, and from the defendants’ Court Book (“DCB”), pages 20-25: Exhibit A. (c) The defendants tendered their Court Book, pages 1-2; 5-14; 17; 26-29; 38- 45; 46-57; 173, and 176-194: Exhibit 1. 6 The application is brought under the definition of “serious injury” contained sub-s.(37)(a) of the Act which requires the plaintiff to prove that she has suffered a "permanent serious impairment or loss of a body function".
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999. (b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future. (c) Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which when judged by comparison with other cases in the range of possible impairment or losses of a body function may fairly be described as being more than "significant" or "marked" and as being as least "very considerable". (d) Sub-s.(38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of "serious injury" and not otherwise. (e) In conformity with Barwon Spinners Pty Ltd and Others v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the "very considerable" test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application. [1] (2005) 14 VR 622, at paragraph 11
8 I am required by s.344AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born in Scotland on 4 July 1957. She is now fifty-three years of age. She is a married woman. She is the carer for her two grandchildren.
10 The plaintiff commenced employment with the second defendant on 15 October 1998. She was employed as a machinist.
11 The plaintiff spent most of her time undertaking machining work. She described the work she was required to perform as follows:
“… Sewing the leather was not that difficult because the machine was fitted with a special foot which ‘walked’ the leather through the machine. However the garments were heavy and awkward to move around between sewing different parts. The most difficult jobs were hammering and glueing the pieces of leather at a table, and stretching the leather. The shoulders of the jackets and the knees of the trousers were fitted with padded segments. To make these pieces the leather had to be stretched onto an elastic backing. To make these pieces I would get an elastic panel which measured about 20 inches by 10 inches. I would have to stretch it, over at (sic) large frame so that it ended up being about 3 times its original size. I then had to place the leather over the elastic and pull and stretch it as the leather, with the backing, went through a sewing machine. This was a very hard job … . Another job involved glueing and hammering the seams. I could do this process 4 or 5 times on any item of clothing. What would happen is that the machinist would sew some panels together. I worked at a very high table, which was about just below my breast height. I would then open the seams, glue down the sides, and then hammer them flat. … I would also glue the bottom of the lining into the suit. … .[2]
[2] PCB 23-24
12 The tasks described by the plaintiff were intended to be rotated through all of the machinists; however, two other female workers refused to do the stretching work. As a result, the plaintiff was required to undertake more of the stretching tasks.
The Transport Accident
13 The plaintiff suffered the onset of pain in her neck in the mid to latter part of 2000. She did not immediately associate the onset of neck pain to her work with the second defendant. At first she considered that it was probably related to a transport accident which occurred on 20 April 1999.
14 However, the evidence demonstrates that by whatever means the plaintiff got it into her mind that her neck injury had any relationship with the transport accident, it is very unlikely to have been the cause of its onset.
15 The relevant evidence given by the plaintiff regarding the transport accident and its aftermath was as follows:
“Q: In Dr Cohen’s report that Mr Middleton took you to he’s got the
history and he thought you might have given this history:‘The problem started three years ago when I was coming home from work and my husband was driving me. The car was stationary and another car ran into the back of us.’
So were you coming home from work or going to the dentist?---
A: I was coming home from work, my husband come (sic) from work
to pick me up to take me to the dentist.Q: Nothing happened as a direct consequence of this however?--- A: Yes. Q: This was just before the Christmas holidays?--- A: Yes. Q: Has there been an accident apart from April 1999?--- A: No, I was only in one car accident and that’s when the car was hit
from the back. I’ve never been in any other car accident.”[3][3] Transcript 41-42
16 Mr Middleton took up the subject of whether the plaintiff’s neck injury found its cause in the transport accident:
“Q: Was it because that you thought your neck complaint had its
origins in the car accident?---A:
Yeah, well I'd - yeah. I thought that when we'd been hit - we were at the traffic lights and the car had hit the back of - hit the back of my husband's car, I thought maybe that's why I was sore. But when I went to see Clayton Thomas and that, they says to me, ‘No, it's not because your injury is longer than that’, that date, and it was more likely it was caused through my work.”[4]
[4] Transcript 17-18
17 Despite the impression the plaintiff’s onset of neck pain may have been associated with the transport accident, it became clear that there was no basis for her impression in that regard.
18 A lot of time was spent by Mr Middleton cross-examining the plaintiff about claim forms which she completed and correspondence entered into by her present solicitors, focusing in on whether the transport accident was responsible for the onset of neck pain. However, the primary evidence is consistent with the plaintiff’s work with the second defendant being the cause of the onset of her neck pain.
19 Firstly, following the occurrence of the transport accident, the plaintiff did not seek any medical treatment between the date of its occurrence and when she first sought medical treatment for the neck injury from Dr Abuel on 1 February 2001.[5] She did suffer neck pain following the occurrence of the transport accident.[6] At one point during cross examination, the plaintiff said that over the Christmas period following the transport accident, she experienced more pain in her neck.[7]
[5] PCB 42
[6] Transcript 18 and 21
[7] Transcript 21-22
20 Secondly, the plaintiff did not have any time off between the date of the occurrence of the transport accident and the onset of the neck pain which she says was caused by her work.
21 Thirdly, the plaintiff carried the wrong impression about the cause of her neck pain up until she was examined by Dr Thomas, whose strong clinical impression was that the onset of her neck pain had nothing to do with the transport accident, but was related to her work.
22 There are a number of features of the evidence of Dr Thomas which have led me to conclude that the onset of her neck pain was due to her work:
•
Firstly, Dr Thomas was of the opinion that the nature of the work undertaken by the plaintiff was more likely to have resulted in strain on her neck. He referred to his experience with machinists who use their non-dominant arm to perform more strenuous tasks, together with flexion of the neck, creating a posture which imposed forces on the neck.[8]
•
Secondly, if the transport accident resulted in an injury to her neck, then he would have expected to see evidence of an injury contemporaneously with the transport accident. The maximum delay between the transport accident and the onset of symptoms which he considered would be acceptable, in terms of causation, would be weeks.[9]
•
Thirdly, and although he acknowledged that the question of causation was something like a jigsaw puzzle,[10] he was never of the opinion that there was any issue of causation, that is, between the onset of the plaintiff’s neck pain and her work.[11]
•
Fourthly, Dr Thomas’ strong impression was that the plaintiff did not attribute the neck pain to the transport accident, but rather she might have asked him whether he thought it was related. After giving due consideration to her clinical presentation, and the history he obtained from her of her work with the second defendant, he was comfortable in concluding that her neck injury was caused by her work.[12]
[8] Transcript 57-58 and 83-84
[9] Transcript 60-61
[10] Transcripts 68
[11] Transcript 71
[12] Transcript 66
23 Mr Middleton tested Dr Thomas on practically every issue on which Dr Thomas relied in reaching the conclusion that the plaintiff’s work was responsible for the onset of her neck pain. It was my impression that Dr Thomas, ultimately, did not depart from the opinions expressed in his two principal reports that the plaintiff’s work was the cause of the onset of her neck pain.[13]
[13] PCB 59-62 and 63-67
24 I accept the plaintiff’s evidence that she was involved in a transport accident which resulted in her suffering some neck pain, but it was very likely to have been negligible, measured by the fact that she had no medical treatment nor any time off work. In the context of the transport accident, I do not accept that the plaintiff accurately stated the persistence of symptoms of her neck injury as persisting into the following Christmas. That seems to have no basis, because again, she had no medical treatment nor any time off work which I would have expected to have been the case had her neck injury persisted and worsened over the Christmas period.
25 The fact that the plaintiff gave different histories to different examining medical practitioners about the transport accident, and about the onset of neck pain arising out of it, and the period over which she had suffered neck pain, must again be seen in the context of the plaintiff and her obvious inability to give an accurate history.[14]
[14] The plaintiff also worked for Berkley Apparel. Dr Thomas made a note that the plaintiff had suffered a neck injury while working for the employer
26 Furthermore, much was made of a letter written by the plaintiff’s present solicitors to a medical practitioner for the purpose of obtaining evidence to investigate the claim arising out of the transport accident.[15] On the face of the letter, it would appear that the plaintiff gave her present solicitors instructions that the transport accident resulted in her suffering injuries to her neck, shoulders/arms, lower back, and from headaches. However, the author of the letter pointed to the delay in the onset of the symptoms of neck pain for the purpose of the recipient of the letter understanding that there was a potential causation question relevant to the opinion being sought:
“… The injuries did not manifest until approximately late last year when
she consulted you for treatment.”[16]
[15] DCB 181-182
[16] The letter is dated 27 August 2002, directed to Dr Bay
27 The basis for the letter appears to be rooted in the plaintiff’s misguided view that the transport accident may have been the cause of the onset of her neck pain because at that stage she was unable to explain its onset.
28 I do not accept that the material put to the plaintiff is of such weight that it undermines the credit of the plaintiff or undermines the thesis advanced by Dr Thomas that the transport accident caused the plaintiff’s neck pain.[17]
[17] All of the other issues raised by Mr Middleton seemed to me to be likewise to have been based upon the plaintiff’s own misguided view
Employment with Barkley Apparel
29 The plaintiff worked with Barkley Apparel as a machinist for about four years. She suffered an injury to her shoulder for which she had medical treatment, and with that medical treatment the problem resolved completely.[18]
[18] Transcript 15
30 However, the issue raised by Mr Middleton, regarding Barkley Apparel, came from a cryptic note made by Dr Thomas in his clinical records:
“C/o sore neck when at Barkley Apparel.”[19]
[19] Exhibit 2
31 Mr Middleton cross-examined Dr Thomas on whether it was his understanding that the history was that the plaintiff had suffered from a longstanding problem predating her employment with the second defendant. However, Dr Thomas was at pains to try to unravel what the cryptic note meant, and the best he could do was the following:[20]
[20] Transcript 65
“Q:
Now, Barkley Apparel was employment that she had in 1997, before she in fact comes to the current defendant. Or did you think Barkley Apparel was the defendant here?---
A: I didn't have any - - - Q: Didn't really know?--- A: Didn't know. Q:
Would that mean that there was in the origin of this lady's complaint a starting point at Barkley Apparel, from your history? -- -
A:
You know, once again I don't have all the pieces of the jigsaw puzzle. What does that mean? I don't know. You know, as I said before, in a treating capacity I only get the information that I get from the patient.”
32 My impression of the cross-examination of the plaintiff regarding any injury she suffered when working with Barkley Apparel, was that it was principally a shoulder injury from which she made a complete recovery.[21] I am not satisfied that the plaintiff suffered an injury to her neck either in a transport accident or at Barkley Apparel.
[21] Transcript 14-16
33 Before moving to the other evidence, it is an opportune time to observe that an application for serious injury is a gateway application. The obligation of the trial judge is to give consideration to all of the evidence. In doing so, it is not for the trial judge to find an explanation for problems which emerge in the plaintiff’s case. Rather, it is to look at the evidence objectively and ask whether the evidence supports the conclusion contended for by the plaintiff, that despite the problems in the plaintiff’s case, there is a logical, plausible and readily available explanation in the evidence which supports it.
34 After considering all of the evidence, I am not satisfied that the plaintiff suffered an injury to her neck with Barkley Apparel or in the transport accident, and if she did, it was insignificant and of no real account in connection with whether the plaintiff’s work with the second defendant produced an injury to her neck.
The Plaintiff’s Medical Treatment
35 The plaintiff first saw Dr Abuel on 1 February 2001 complaining of pain in her neck and left upper limb. Examination revealed restriction in the normal range of movement in the plaintiff’s neck.
36 Dr Abuel referred the plaintiff to have plain x-rays of her neck. The first of those x-rays was taken on 5 February 2001. According to Dr Abuel, that x-ray showed mild narrowing of the C5-6 intervertebral joint. That abnormality was confirmed on a later plain x-ray which was taken on 7 August 2002.
37 The plaintiff was subsequently seen by a number of specialists. She was next seen by Dr Thomas. She was referred to Mr Kavar, neurosurgeon, some time in 2002.[22] She was later referred to Mr Han, neurosurgeon, in early 2005, and Mr Maartens, neurosurgeon.[23] Her treatment was principally provided by Dr Abuel and Dr Thomas.
[22] No medical report was produced by the plaintiff relevant to the treatment provided by Mr Kavar
[23] No medical report was produced by the plaintiff relevant to the treatment provided by Mr Maartens
38 The plaintiff was referred to have a considerable number of radiological investigations. She was referred to have plain x-rays on 5 February 2001;[24] 15 August 2001;[25] 7 August 2002;[26] 13 August 2002;[27] 31 March 2003[28] and 16 November 2007.[29] She was referred to have CT scans on 12 February 2001;[30] 23 September 2004;[31] 4 September 2008[32] and 12 February 2010.[33] She was referred to have MRI scan on 4 July 2003;[34] 21 January 2005[35] and 13 July 2010.[36] She was referred to have a bone scan on 16 August 2003.[37]
[24] PCB 71
[25] PCB 72
[26] PCB 73
[27] PCB 80
[28] PCB 74
[29] PCB 74A
[30] PCB 75-76
[31] PCB 77
[32] PCB78
[33] PCB 79
[34] PCB 81
[35] PCB 82-83
[36] PCB 84-86
[37] PCB 87
39 It is clear from the reports of the medical practitioners who treated the plaintiff that the radiological investigations were undertaken in an endeavour to unearth the cause of the complaints made by the plaintiff of pain in her neck and left upper limb. The opinions of the plaintiff’s treating medical practitioners are essentially very similar.
40 Dr Abuel recorded that in mid-2010, the plaintiff was complaining of severe left-sided neck pain radiating down into her left upper limb. Examination revealed that all movements of the plaintiff’s neck were limited due to pain, and there was evidence of mildly reduced power in the plaintiff’s left upper limb.
41 It was as a consequence of the plaintiff’s presentation in mid-2010 that provoked Dr Abuel to refer the plaintiff to Mr Maartens. By that stage, Dr Abuel had referred the plaintiff to have physiotherapy. The plaintiff had also had steroid injections to her neck. Neither treatment was of any benefit to the plaintiff.[38]
[38] PCB 54
42 Dr Abuel had prescribed the plaintiff painkilling and anti-inflammatory medication. However, the plaintiff was very sensitive to the use of that medication. She developed significant upset to her stomach, which resulted in her being unable to use any medications save for Paracetamol, and to a lesser extent, Panadeine Forte.
43 Dr Abuel did not provide a specific diagnosis of the plaintiff’s injury. That is clear from her many reports. She accepted that the plaintiff had suffered an injury to her neck with pain radiating into her left upper limb. However, she described what she considered to be the disabling impact of the plaintiff’s neck injury in the following way:
“As far as work is concerned, Janet does not have the capacity to do her pre-injury duties as a machinist or cleaner. Her injury has affected her domestic, recreational, personal and social life. She finds it difficult to do household chores such as cleaning and hanging clothes. She cannot sleep well at night, feels tired most of the time, and unable to go out with friends.”[39]
[39] PCB 54
44 Dr Thomas saw the plaintiff in October 2001. He was satisfied from the history given to him by the plaintiff that it was her work with the second defendant which was the cause of her neck pain, and not the other causes contended for by the defendants.
45 Dr Thomas prescribed the plaintiff medication, but her sensitivity to that medication prevented her from using it. He also referred her to have physiotherapy.
46 The injections referred to by Dr Abuel were undertaken at the instigation of Dr Thomas. The plaintiff had those injections on 19 January 2004. It would appear that they were not undertaken by Dr Thomas, but by another medical practitioner. Dr Thomas described them as injections involving a local anaesthetic and corticosteroid injected into the C4-5 in C5-6 facet joints. When he reviewed the plaintiff, she reported to him that since having the injections, the pain in her neck had increased and that she had developed headaches.
47 Dr Thomas was of the opinion that the plaintiff was suffering from symptomatic cervical spondylosis and that the pain in her left upper limb, and principally in her left shoulder, was referred pain from her neck.[40] It would appear that Dr Thomas last saw the plaintiff on 24 March 2004.
[40] PCB 66
48 The plaintiff first saw Mr Han in January 2005. He referred her to have an MRI scan which was taken on 21 January 2005. He subsequently reviewed her on 25 February 2005. He was of the opinion that the MRI scan demonstrated disc degeneration at C4-5 and C5-6 without any clear evidence of nerve root impingement or spinal cord compression. He was of the opinion that the plaintiff was suffering from cervical spondylosis. He suggested that the preferred treatment was by prescription of analgesics; however, he noted her sensitivity to the use of medication.[41]
[41] PCB 68-69
Other Medical Evidence
49 The plaintiff was examined by a number of medical practitioners on a medico- legal basis. All appear to agree that the plaintiff suffered an aggravation of degenerative changes in her neck caused by her work with the second defendant.[42] The only medical practitioner who was of the opinion that the plaintiff’s neck pain was unrelated to her work was Dr Brown. He examined the plaintiff for the defendants on 20 January 2009.[43]
[42] The medical practitioners who are of that opinion are Mr Doig, orthopaedic surgeon, who examined the plaintiff for the defendants on 14 February 2003 and 6 August 2003 (at PCB 89-93); Dr Karna, rheumatologist, who examined the plaintiff for the defendants on 19 December 2003 (at PCB 94-95); Mr Dooley, orthopaedic surgeon, who examined the plaintiff for the defendants on 10 March 2005 (at PCB 96-99); Dr Rowe, occupational physician (by implication), who examined the plaintiff on 17 March 2004 (at DCB 20-23); Dr Kostos, rheumatologist, who examined the plaintiff for the defendants on 28 July 2004 (at DCB 26-29); Dr Fraser, rheumatologist, who examined the plaintiff for the defendants on 12 January 2005 and 21 January 2009 (at DCB 38-45); Mr O’Brien, orthopaedic surgeon, who examined the plaintiff on 23 June 2010 (at PCB 103-106), and Dr Horsley, occupational physician, who examined the plaintiff on 26 July 2010 (at PCB 109-118);
[43] DCB 46-51
50 However, despite broad acceptance that the plaintiff’s work resulted in her suffering an aggravation of degenerative changes in her neck, not all the medical practitioners agree that she continues to suffer from neck pain resulting from the aggravation of degenerative changes in her neck.
51 Dr Rowe was of the opinion that the plaintiff’s prognosis was reasonably good, however, he did not re-examine the plaintiff. He did not say that the plaintiff would make a complete recovery, and therefore, I infer that he expected improvement, but beyond that it is not possible to make much more of his opinion.[44]
[44] DCB 23
52 Dr Kostos accepted that the plaintiff’s work was a significant contributing factor to her neck symptoms at the time she was working, but as a result of a history he recorded that the pain had worsened since she ceased work that at some stage her work, had ceased to materially contribute to her symptoms. The condition which he diagnosed was dominated by pre-existing constitutional problems and non-physical factors. He was more inclined to the view that her incapacity was influenced significantly by non-physical factors. He concluded by saying that he considered her prognosis to be poor.[45]
[45] DCB 28
53 Dr Fraser expressed a very similar opinion to Dr Kostos, that the plaintiff’s work had ceased to materially contribute to her symptoms.[46] However, unlike Dr Kostos, he was of the opinion that the plaintiff was unfit for work requiring prolonged neck flexion or rapid, repetitive neck movements.[47] The latter opinion expressed by Dr Fraser is consistent with the opinions of a number of other medical practitioners. Essentially, that was that the plaintiff is not fit for her pre-injury work with the second defendant, and whatever work she may be fit for must be the subject of restrictions.[48]
[46] DCB 39, 41-42 and 44
[47] DCB 45
[48] Dr Abuel at PCB 54; Mr Doig at PCB 93; Dr Karna at PCB 95; Mr O’Brien at PCB 106, and Dr Horsley at PCB 117
Serious Injury
54 Mr Middleton submitted that I could not be satisfied that the plaintiff suffered an injury which was capable of identification, and therefore, the plaintiff’s application for serious injury failed at the first hurdle.
55 After reviewing the medical evidence, I am not persuaded that there is any merit in that submission. I think the intention of the legislature was to ensure that a trial judge identify the injury in order to then be able to identify the body function said to be impaired. That, of course, relies on the evidence to point to an injury as the starting point, but it does not require the trial judge to be satisfied of the precise pathological process at work which is said to be the injury.
56 It is tolerably clear that the plaintiff suffered from pre-existing degenerative changes in her neck. The medical evidence, which I accept, is that the plaintiff suffered an aggravation of those degenerative changes. I have no difficulty in concluding that the aggravation is the injury, and indeed, ‘injury’ is defined to include an aggravation of a pre-existing injury or disease.[49]
[49] See the definition of “injury” in section 5(1) of the Act
57 Having identified the injury, I have no difficulty in concluding that the body function which has been impaired is the neck, with referred pain into the left upper limb, and principally, into the left shoulder.
58 The real question which arises for consideration in this application is whether the impairment of the function of the plaintiff’s neck has pain and suffering consequences which meet the statutory test.
59 The plaintiff struck me as a very sad looking woman who looked older than her chronological years. There is no doubt in my mind that her life has been very hard. Her lack of any qualifications outfitted her for basic factory work. The work she did with the second defendant was basic factory work, which struck me as very arduous and physically demanding work.
60 Tragedy has been a part of the plaintiff’s life. Her husband has undergone three major spinal operations, and relies upon a spinal cord stimulator for pain relief. Her son has been imprisoned, leaving the plaintiff with the responsibility for the care of his two children, which she has undertaken willingly.
61 I have no doubt that the plaintiff gave her evidence truthfully, although it was littered with statements by her that she was unable to remember details regarding events which were of importance to her application for serious injury. I have dealt with many of those earlier in these Reasons for Judgment.
62 Without any question, the plaintiff was a hardworking woman. That demonstrates a person of strength, commitment and capacity to endure arduous and physically demanding work. I am all the more fortified in that view by reason of the fact that the plaintiff has essentially being the breadwinner in her family because of her husband’s parlous state of health, and at the same time has endeavoured to run a home and look after her grandchildren.
63 I accept the plaintiff’s evidence that in the course of her employment with the second defendant, she was exposed to arduous and physically demanding work. This placed significant strain on her neck which resulted in a significant aggravation of her pre-existing degenerative changes. In addition, the aggravation of the degenerative changes resulted in referred pain into her left upper limb, mainly affecting her left shoulder.
64 It is abundantly clear from the reports of Dr Abuel that the plaintiff has been seriously troubled by the pain in her neck and left upper limb. So much so that Dr Abuel considered it to be of such gravity that the plaintiff was referred to have numerous radiological investigations and examinations by surgeons, no doubt in an endeavour to determine the cause of her neck pain for the purpose of providing the plaintiff with optimum treatment.
65 Initially the plaintiff suffered fairly constant neck and left shoulder pain which led her to stop working on 31 July 2002. She developed headaches after having the injections referred to by Dr Abuel and Dr Thomas. She also experienced a heavy feeling in her left arm, something like a burning sensation.[50]
[50] PCB 26-27 and 35-37
66 The plaintiff has difficulty moving her neck properly. She is unable to use most analgesic medication to assist her in relieving the pain. She is restricted to using medication such as Panadol which is far less effective than stronger analgesic medication. Lying down does not relieve her pain. She has tried using different pillows in the hope that it will help her obtain relief from the pain, but that has not worked. She wakes four or five times a night in pain. The interruption of her sleep pattern has resulted in her being tired during the day, and reducing her energy. She is restricted in driving a car and using public transport.[51]
[51] PCB 37
67 The plaintiff has been affected in a number of ways in undertaking domestic chores and looking after her house and her grandchildren. She bought pots with two handles because she cannot lift one-handled pots due to the problems with her left upper limb. She is only able to vacuum for fifteen minutes a week, whereas before she could do so for an hour. She described herself as being rather obsessive about her housework. She purchased a squeegee so that members of the family, when having a shower, could take it in turns to clean the shower . She purchased an appliance to help her open jars, again because of weakness in her left upper limb.
68 Mr Middleton submitted that the plaintiff is able to look after her home, see to her husband’s needs and those of her grandchildren, and therefore, not much has really changed in her life despite suffering from some pain and suffering consequences of the injury to her neck.
69 Whilst there is some truth in the submission made by Mr Middleton, it ignores the reality of the plaintiff’s life and what it amounted to before she suffered injury. Sure enough she was responsible for being the breadwinner in the family, looking after the home, looking after her husband, and her grandchildren; however, there is a marked contrast which I think is easily demonstrated from the medical evidence and the evidence of the plaintiff.
70 It is very clear to me that she is no longer the woman who was capable of undertaking arduous and physically demanding work. She is in constant pain. Very few aspects of her life are free from the restrictions which the pain causes: for example, cooking, vacuuming, cleaning, sleeping and being able to move her neck in a fashion necessary to undertake the myriad of activities which daily life involves.
71 I think it is a grave mistake to underestimate the impact of an impairment of function of the kind the plaintiff has suffered, because her life appeared to be rather more mundane than other workers who have engaged in more extensive domestic, sporting and recreational activities. The measurement I am required to make in determining whether the pain and suffering consequences meet the statutory test is to focus in on the consequences as they affect the plaintiff.
72 The conclusion I have reached is that there are major pain and suffering consequences which the plaintiff now has to endure which were not present before she suffered the injury to her neck. I consider that the pain and suffering consequences which I have summarised above do constitute pain and suffering consequences which meet the statutory test. I have reached that conclusion by making the comparison which I am required to make.
Conclusion
73 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the second defendant.
74 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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