Costa v Department of Sustainability & Environment
[2013] VCC 868
•13 June 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01869
| ELAINE MARGARET COSTA | Plaintiff |
| v | |
| DEPARTMENT OF SUTAINABILITY & ENVIRONMENT | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 12 June 2013 | |
DATE OF JUDGMENT: | 13 June 2013 | |
CASE MAY BE CITED AS: | Costa v Department of Sustainability & Environment & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 868 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment:Leave granted to the plaintiff to issue common law proceedings for pain and suffering damages only with respect to the injuries sustained in the course of her employment with the first defendant during August and September 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with Mr K D Mueller | Saines & Partners |
| For the Defendants | Mr P B Jens with Mr S A Smith | Herbert Geer |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming pain and suffering damages by reason of an injury suffered by her in the course of her employment with the first defendant.
2 The injury relied upon by the plaintiff in the application involves an injury in the form of a disc prolapse at the C6 level of her cervical spine. The relevant impairment of body function is that of the cervical 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 Little purpose is served in detailing the content of the plaintiff’s affidavits and that of her husband. Essentially the content of those affidavits is not in dispute. The issues which arise for my determination are whether or not the plaintiff has established the causation of her injury, namely that it was associated with her work process, and secondly, the requisite severity of consequences associated with that injury.
5 Before turning to my analysis and determination of the issue as to causation which arises in this application, it is appropriate that I make a number of findings as to the facts which I am satisfied that the plaintiff has established on the balance of probabilities in this proceeding.
6 Firstly, I am satisfied that the plaintiff presented as a reliable and honest witness for the following reasons. None of the medical practitioners who have examined the plaintiff – be it Mr Simm, who has assessed the plaintiff on two occasions on behalf of the defendants; Mr Schofield, who has assessed her on a number of occasions, or any other of the plaintiff’s treating or consulting medical practitioners – commented to the effect that the plaintiff presented to them as anything other than a truthful and reliable historian who did not seek to exaggerate or embellish her symptoms or the effect of those symptoms upon her.
7 Further, in my opinion, the plaintiff’s action in seeking to alleviate the effect of her incapacity upon both herself and her family by finding alternate light work on a full-time basis speaks, in my opinion, as to the presence of an attitude in her consistent with that noted by her medical practitioners, that she seeks to minimise the consequences of her condition and does not exaggerate them.
8 Thirdly, the plaintiff’s demeanour when giving evidence which, in my opinion, gave rise to no impression that the plaintiff was doing otherwise than attempting to give a fair account of her capacity for employment. It was also consistent with the findings to which I have earlier referred. An example of this being the plaintiff’s concession readily volunteered about her capacity to continue to drive a motor vehicle.
9 Lastly, the plaintiff’s evidence as to her capacity for activity is consistent with my expectation of that capacity given the condition with which she presents in her cervical spine as commented upon by the various medical practitioners who have assessed her. I should also say that the consistency between the plaintiff’s affidavit evidence as to her capacity for activity and that of her partner, which evidence I have already commented upon, is not really the subject of challenge is a further demonstration of the plaintiff’s reliability.
10 For these reasons I accept the plaintiff’s evidence not only as to the nature of her incapacity at the present time but also as to the way in which her symptoms developed and progressed between August and September 2009 to a level which eventually became for her intolerable.
11 Whilst it is put on behalf of the defendants that the plaintiff was presenting prior to August 2009 with a condition in her neck which was the manifestation of the disc protrusion at the C6-7 level largely responsible for her current symptoms and incapacity, I am satisfied that the plaintiff’s evidence to the effect that she suffered only from periodic symptoms in her neck prior to the relevant period which were effectively managed by a few consecutive physiotherapy sessions and from which she made a full recovery as the result of that management should be accepted for the following reasons:
· Firstly, this position supported by the plaintiff’s capacity prior to August 2009 to undertake the physical components of the casual work she undertook as a nurse, there being no dispute in the medical evidence that this capacity is now lost to her.
· Secondly, this position is further supported by the plaintiff’s history and pattern of attendance for physiotherapy treatment during the period between 2005 and June 2009. The relevant history being described in the medical records of the Ballan Physiotherapy Centre and the Newington Physiotherapy Clinic.
12 The plaintiff’s pattern of attendances during this period was as follows:
· 2005, the plaintiff attended for physiotherapy on two occasions, on 10 August 2005 and 15 August 2005.
· 2006, the plaintiff attended for physiotherapy treatment on two occasions, on 21 June 2006 and 30 June 2006.
· 2007, the plaintiff had five treatments of physiotherapy, three in January 2007 and two in February. The pattern in that instance was of five effectively consecutive treatments.
· 2009, the plaintiff attended for two treatments for physiotherapy, on 19 June and 22 June 2009.
13 This pattern of attendances is, in my opinion, consistent with the plaintiff’s evidence that her need for physiotherapy arose as the result of isolated aggravations of a condition which thereafter resolved. It is to be contrasted with the pattern of treatment which arose in the period between August 2009 and thereafter.
14 This is to be contrasted with the plaintiff’s pattern of attendances after the subject injury which involved the plaintiff attending the Newington Physiotherapy Centre for treatment on:
· 24 August 2009
· 31 August 2009
· 2 September 2009
· 7 September 2009
· 14 September 2009
· 17 September 2009 and
· 21 September 2009
with continuing symptoms of neck and arm pain.
15 Those presentations prompted the plaintiff’s referral for a CT scan of the cervical spine in September 2009 and her subsequent referral to Mr O’Brien, the neurosurgeon, in December of that year, at which time she was still suffering from the condition with which she had presented in August. Thereafter there was a pattern of regular attendances by the plaintiff upon Mr Roberts, her physiotherapist, in the 2010 year.
16 Taking into account the alteration in pattern of attendances, the history before the relevant date, being August 2009, and that after, a compelling picture is presented as to the change in the plaintiff’s symptoms, namely symptoms which manifested themselves when aggravated by activity and subsequently symptoms which, following the relevant date, which became permanent in their presence.
17 For these reasons, that the plaintiff, prior to August 2009, did not suffer from a chronic condition which gave rise to constant symptoms of neck pain, but rather a condition which was aggravated occasionally and which completely resolved is consistent with the plaintiff’s evidence, and I am satisfied that that is the case. I am further satisfied that the plaintiff’s capacity for activity pre-August 2009 was as described by both the plaintiff and her husband in their affidavits and that this capacity for activity was altered permanently by the onset of the symptoms in her cervical spine which arose in the manner described by her in her affidavits during August and September 2009.
18 In the context of these findings, I turn to consider the two opinions expressed by Mr Simm on behalf of the defendants as to causation; as contrasted to those expressed by Mr Schofield on behalf of the plaintiff as to causation; and the position put by the defendants that the plaintiff has not established the causal nexus between her current incapacity and the work process undertaken by her during the relevant period in 2009.
19 In his initial report dated 20 March 2012, Mr Simm took no real issue with causation in this case, opining, at that time:
· The diagnosis is constitutional, multi-level cervical disc degeneration. The changes are most marked at the C6-7 level where there was a large right C6-7 disc protrusion impinging on descending the right C7 nerve root.
· The disc protrusion occurred as the result of degenerative changes in the annulus of the disc. She was first aware of symptoms from this pathology whilst undertaking repetitive rotational movements of the head and neck, performing stressful work duties at what she described was an unsatisfactory workstation, seated on an unsatisfactory chair.
· Whilst the work duties described would involve some postural loading of the neck, one would not expect these work duties to cause a cervical disc protrusion unless there was severe compromise of the integrity of the annulus of the disc from degenerative changes.
· The fact that she first noted the symptoms at work is probably more coincidence than causation. The relatively mild increase in loading of the cervical discs to undertake the work duties described could have occurred as the result of numerous non-work related activities at around that time.
· However, it is apparently a matter of record that the physical demands of performing her work duties at that time were responsible for initiating and aggravating the symptoms from the underlying pathology. On the basis of this history, it appears that the work duties were the last straw which led to the largely spontaneous protrusion of the degenerative disc.
20 I note in passing that at this time, that is at March 2012, Mr Simm opined that the plaintiff presented with no evidence of non-organic or psychological contribution to her current clinical presentation, and further opined that:
“The plaintiff now has chronic symptoms from advanced cervical disc degeneration and I expect her condition to persist as described in this report with no prospect of improvement in the future. She will be permanently confined to relatively light activities. Strenuous activities with the upper limbs, particularly in the overhead position, will result in a marked increase in symptoms. She will also have difficulty sustaining prolonged static postures of the head and neck.”
21 The analysis by Mr Simm as to causation in the course of his report in June 2012 is in turn consistent with the approach adopted by the Court of Appeal In Grech v Orica Australia Pty Ltd & Anor[1] (2006) 14 VR 602, which is binding on me in my analysis of causation in this instance, namely:
“… The concept of ‘material contribution’ was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words ‘results from’ had been construed to require much less than that injury be the sole cause of a consequence. … It is unnecessary to say whether that proposition should be accepted. It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”
[1](2006) 14 VR 602
22 In his second report, Mr Simm took a different position with respect to causation. He opined at that time that it was unlikely that the plaintiff’s presentation was contributed to by her work process. The basis of that opinion commenced with a finding or a conclusion by Mr Simm that the plaintiff had presented with the history of ongoing cervical symptoms with the requirement for physiotherapy treatment from the time of her transport accident in 2004 until her subsequent presentation in 2009, and that she had a significant history of symptoms of neck pain without a history of sustaining injury in 2009.
23 On the basis of those conclusions, Mr Simm opined:
“It is now evident that the plaintiff’s work duties did not initiate symptoms which were established prior to the period of employment. The physiotherapy record does not record a specific aggravation of symptoms from the work duties. Protrusion of the cervical disc may have preceded this period of employment as this may be part of the natural course of the pathology of cervical disc degeneration. Alternatively, protrusion of the cervical disc may have occurred at around the time of the change in her work duties but I think this would be more coincidence rather than causation that the cervical disc was related to work duties.”
24 Insofar as this conclusion by Mr Simm is based upon the conclusion to which I have referred by him, namely that the plaintiff presented prior to 2009 with a continuing condition in her cervical spine which was responsible for symptoms, which conclusion in turn is inconsistent with the findings which I have made, the justification for the alteration in the position taken by Mr Simm as to causation between his two reports is largely undermined.
25 While Mr Simm comments upon the absence of any complaint in a temporal sense as to the onset of the plaintiff’s symptoms in August 2009 and the work process which she was then engaged in, he does so relying completely upon the notes of the Newington Physiotherapy Clinic, ignoring firstly, the plaintiff’s statements as to the nature of the activity which she was required to undertake and the onset of severe symptoms associated with that activity, which I accept; and secondly, the statement by her treating physiotherapist, Mr Roberts, in his report of 10 August 2011, that the plaintiff’s symptoms were related to a new employment process which required her to move her head repetitively as she viewed two computer sensors.
26 Taking into account this evidence, when combined with the affidavit evidence of both the plaintiff and her husband, which is largely unchallenged and describes the change in the plaintiff’s symptoms and capacities following September 2009, and further, having heard the plaintiff's evidence as to the position that she was required to adopt in undertaking the relevant activities and both the nature of the neck movements required of her in the performance of her duties and the repetitive nature of those movements, which evidence satisfies me that the plaintiff was engaged in a work process which may well have imposed pressure on her cervical spine such as to exacerbate a degenerative condition and so resulting in a change in that condition from mild intermittent symptoms into continuous and permanent symptoms, I am not satisfied that the approach taken by Mr Simm in his analysis of causation is well founded or that that analysis is persuasive.
27 It is put on behalf of the defendants that the analysis by Mr Schofield as to causation is flawed by reason of the lack of access by him to the plaintiff’s relevant treatment history at the Newington Physiotherapy Clinic. I note that at the time of expressing his opinion, Mr Schofield had access not only to the reports of Mr Simm, which set out the relevant history, but more importantly, to the affidavit of the plaintiff sworn on 15 April 2013 which detailed the history of the plaintiff'’ attendances at both the Ballan and the Newington Clinics between August and June 2009. In my opinion, this provided Mr Schofield with a good basis upon which to analyse the plaintiff’s presentation, in terms of symptoms, prior to the relevant dates.
28 Further, the position put by the defendants with respect to Mr Schofield ignores the fact that Mr Schofield based his opinion upon his acceptance of the plaintiff’s evidence that until her symptoms were provoked in a meaningful way between August and September 2009 she was largely pain free. It is clear that this evidence was a significant plank for the findings made by Mr Schofield. His acceptance of this evidence is also consistent with my acceptance of the evidence.
29 I am satisfied, in the context of my finding, that the plaintiff did not present prior to August 2009 with a condition in her cervical spine which was responsible for chronic symptoms. That statement made by Mr Schofield which seemed to form the basis of his opinion as to causation, namely that “your client was pain free at the commencement of her duties in September 2009 and those duties were followed very rapidly by the onset of neck pain and severe right arm pain likely due to the degree of rotation and other movements including extension of your client’s neck and a gradual onset of pain over a three week period”, represents an accurate analysis of the analysis which pertained at the time. I am satisfied that the opinion expressed by Mr Schofield, taking into account the plaintiff’s history, is more persuasive than that of Mr Simm. It follows that I am satisfied that the findings and conclusions by Mr Schofield gave rise to an appropriate platform from which to consider the issue of causation in this instance and I prefer his analysis as to causation to that of Mr Simm.
30 My finding in this respect is further reinforced by reason of the Ansett Australia Ltd v Taylor[2] point which arises in this case and further, by the opinions expressed by Dr Capes, Mr Huffam and Mr Roberts which support causation in this instance, and that by Mr O’Brien does not quarrel with causation.
[2][2006] VSCA 171
31 Whilst it is put on behalf of the defendants that the absence of up-to-date reports from the plaintiff’s treating medical practitioners gives rise to an impediment to my task in determining the nature of the plaintiff’s current medical state and the permanence of the consequences associated with that state, I do not accept that position.
32 Mr Huffam saw the plaintiff in April 2011. Mr Schofield first examined the plaintiff in September 2011. Each of these medical practitioners at that time expressed the position that the plaintiff’s condition was largely stabilised. Mr Simm first assessed the plaintiff in March 2012. I have already commented that at that time he expressed the position that the plaintiff presented with chronic symptoms which were likely to persist with no prospect of improvement in the future and that those symptoms were associated with the presence of a condition of advanced degeneration of the plaintiff’s cervical spine.
33 This evidence, when combined with the fact that the plaintiff has managed her condition since 2011 essentially by employing physiotherapy and the use of analgesia, which regime of management was not criticised by any of the medical practitioners who have opined in the matter, leads me to the conclusion that the absence of up-to-date medical material from the plaintiff’s general practitioner or Mr O’Brien, forms no impediment to the task required of me, namely in assessing the permanence of the plaintiff’s condition, which I am satisfied is permanent, or the consequences of that condition upon her at this time.
34 In deciding the issues which arise for me 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 body function may be fairly 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 and impairment has occasioned upon her and determine where the facts of this case sit in the broad spectrum of cases.
35 I am required to take into account not only what symptoms the plaintiff has and what she is precluded from doing, but also what limits there are to her symptoms and to her inhibition with respect to activity. The Court of Appeal has commented that 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 has been retained. I take into account the fact that the plaintiff retains a capacity to engage in full-time work of a light nature and that her condition is managed by what might be described as a modest intake of non-prescription medication and conservative treatment by way of physiotherapy.
36 Equally, I take into account the opinion expressed by Mr Simm that the plaintiff’s condition is permanent and I am satisfied that, given the nature of that condition, namely one sponsored by an ongoing degenerative process, that any change which may occur with respect to the condition is unlikely to involve an alleviation of symptoms and is more likely to involve an increase in symptoms.
37 There is no issue that the plaintiff’s condition is such that it has denied her the ability to pursue her vocation as a nurse, which she came to after undertaking her training at the Ballarat University, which she commenced at the age of approximately 39 years of age.
38 I accept the plaintiff’s evidence that this vocation was important to her, notwithstanding that she had married it with her employment with the first defendant. I accept her evidence that it provided both the plaintiff and her family with a measure of financial security and also that it figured significantly in her future planning, in that it offered her the prospect of remunerative employment which was likely to be available to her on a part-time basis when the financial commitments associated with the raising and educating of her three children decreased as they completed their education process.
39 The loss of a vocation is one which, by itself, in my opinion, in this instance gives rise to a very significant consequence for the plaintiff involving as it does the necessity for her to completely change the structure of her working life and her future plans. Further, the loss of the income available to the plaintiff associated the loss of that vocation conservatively estimated by her to be in the vicinity of $15,000 per annum and the associated financial insecurity associated with that loss is not to be underestimated.
40 Taking into account these findings and the content of the plaintiff’s two affidavits and the affidavit of her husband, which set out in detail the further consequences to the plaintiff of her condition impacting upon her life, her leisure activities and her work activities in the manner which she has described, I am satisfied that the consequences of the plaintiff’s incapacity is such that they meet the definition of “serious injury” as employed by the Accident Compensation Act 1985 and accordingly the plaintiff is entitled to the leave sought by her in this application.
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