Daffey v Alfred Health

[2011] VCC 1466

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-04483

JULIE DAFFEY	Plaintiff
v
ALFRED HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2011
DATE OF JUDGMENT:	16 December 2011
CASE MAY BE CITED AS:	Daffey v Alfred Health
MEDIUM NEUTRAL CITATION:	[2011] VCC 1466

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Causation – whether incapacity results from or is materially contributed to by compensable injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Clark Toop & Taylor
Mr M Walsh
For the Defendant	Ms R Kaye	Hall & Wilcox
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding seeking damages for injuries suffered by her to her lumbar spine by reason of an incident which occurred in the course of her employment with the defendant on 5 August 2005 (“the 2005 injury”).

2          In the application, the plaintiff relies upon two affidavits sworn by her on 21 April 2010 and 11 July 2011 respectively, together with an affidavit sworn by Natalia Rachenka on 11 July 2011. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise the parties rely upon medical reports tendered by them.

3          At the outset, it is appropriate to note that it is not contested by the defendant that the plaintiff's present incapacity is such that it is appropriately described as “serious”, such that it would warrant the plaintiff being granted leave to commence a proceeding against the defendant seeking damages for both the pecuniary and non-pecuniary loss consequences of the 2005 injury, if it the plaintiff establishes that the 2005 injury continues to be a contributing factor to her present incapacity. It is put on behalf of the defendant however that this is not the case, and in making that submission the defendant points to:

• The plaintiff's return to work following the 2005 injury; and

• The plaintiff’s continued employment until the date upon which she suffered a further injury to her low-back whilst employed as a neonatal intensive care nurse at the Monash Monash Medical Centre on 24 March 2008 (“the 2008 injury”);

as factors which implicate the 2008 injury as being the cause of her present
incapacity.

4          Having regard to the finding required of me by the parties, much of the evidence contained in the affidavits prepared in support of the plaintiff's application becomes irrelevant, save for the material as to the issue of the causation of the plaintiff's present incapacity. This material may be summarised as follows.

5          In the first affidavit, the plaintiff said that as a result of the 2005 injury:

•  She developed low-back pain extending into her buttocks and right leg, and that following that incident she was:

“…off work for a number of weeks to the best of my recollection. I returned to work on 15 August 2005 working five hours and then slowly increased my hours. Dr Sharpe also referred me for a CT scan on 10 October 2005. My understanding is that this demonstrated a moderate disc bulge flattening the interior spinal theca at L4-5 and a minimal broad-based disc bulge at L3-4.

I was treated conservatively and returned to work on a light duties certificate but I resigned from my employment shortly thereafter to try and seek a lighter form of employment. I found lighter employment in the latter part of 2005 with a plastic surgeon, Mr Ross. I remained with him over a period of some three months through until approximately February 2006.

Thereafter, I pursued agency work which was beneficial because I was able to work around my symptoms and work hours that suited me and my levels of pain. I was suffering persistent lower back pain and referred right leg symptoms throughout this period and as a result required a Norspan morphine patch. Because of these persisting symptoms, Dr Sharpe referred me to a neurosurgeon, Mr Malham, in March 2007.”

• Dr Malham (the plaintiff’s treating neurosurgeon) referred her to a pain management specialist, Dr Verrills, who she initially consulted in April 2007. She said that Dr Verrills performed a procedure involving a right sacroiliac joint block on 8 May 2007 and subsequently, in June 2007, a further procedure involving a medial branch block. The plaintiff said that she subsequently underwent a right sacroiliac joint radio-frequency neurotomy on 6 March 2007 at the hands of Dr Verrills, but that this procedure did not lead to any improvement in her symptoms and that her right leg pain was, if anything, worse following this procedure than it was beforehand.

• Despite suffering ongoing symptoms:

“I resumed my nursing, commencing at Monash Medical Centre in Clayton Road, Clayton on 1 October 2007. I was employed as a nurse in the neonatal intensive care unit and my thinking at the time was in such a unit I would be undertaking the lightest forms of manual work, handling very small babies, and that this would be within my physical capacities. Unfortunately, even that sort of work was beyond me.

In the latter part of March, I was assisting a mother to learn to breastfeed her baby and I was up and down a number of times to and from a kneeling position and over the days thereafter my back condition began to steadily deteriorate again. I noticed the gradual onset of referred left leg pain. There was no real incident to cause this pain other than the fact that I already had a problematic lower back.

As earlier mentioned, even prior to that time, I'd been prescribed morphine in the form of Norspan patches, in addition Panamax and Endep taken at night. I took a week off but when I returned to work my pain increased and after a day or two I stopped work.”

6          The plaintiff said that as the result of the 2008 injury, the pain which she was suffering from was mainly on the left side with left-sided knee pain, whereas previously it had been on her right side.

7          The plaintiff's second affidavit and the affidavit of Ms Rachenko largely deal with the ongoing incapacity associated with the plaintiff's condition and as such, they do not bear on the causation issue which arises.

The Viva Voce Evidence

8          In the course of her viva voce evidence, the plaintiff described the 2008 injury in the following way:

“When it happened I was changing to get out of my theatre gear and I bent over and I couldn't straighten up because of the pain. It continued to be severe enough to interrupt my sleep and stop; it was like hitting a brick wall. I – I just couldn't do any socialising or any of my normal duties.”[1]

[1]             Transcript 13

9          The plaintiff described her symptoms between the occurrence of the 2005 injury and the 2008 injury[2] as follows:

“At night it was very sore, very sore and my leg was – it felt as though it

didn't belong to me. I had that feeling from sciatica.”

[2]             Transcript 15

10        The plaintiff described during this period employing Neurontin, in the form of a Fentanyl patch, and then a Norspan patch, and she said she took –

“Valium or whathaveyou to calm me down so that I could at least get

some rest.”

11        In the course of cross-examination, the plaintiff was questioned as to the agency work she performed after the 2005 injury. She said that on average she worked three days a week, and when it was put to her that her work varied depending on what the agency had available, she replied[3] that it was her condition which dictated her working hours.

[3]             Transcript 21

12        The plaintiff accepted that in October 2007, she had sought a full-time position with the Monash Medical Centre. It was put to the plaintiff that on the whole she was fairly pain-free at this time. The plaintiff did not accept this proposition. The plaintiff was asked:[4]

[4]             Transcript 22

Q:	“No, you weren't fit and healthy?---
A:	No, no, I - - -
Q:	So you say you had pain in that period?---
A:	Yes."

13        In re-examination, the plaintiff was questioned as to the effect which her pain had had upon her during the period between 2005 and 2008 and gave the following evidence:[5]

[5]             Transcript 56

Q:	"Then you were having a time when you were at work and you had pain. When you came home afterwards, what effect was that having on your mood?---
A:	If the pain was excessive then my mood would drop but you sort of – that's why I kept working to try and beat that effect.
Q:	You spoke before of when you came home from work after a day at Monash that your back was such that you had to - - -?---
A:	Lie down.
Q:	Lie down. How was it for you having to spend your evenings incapacitated in that way?---
A:	Very frustrating and very – well, it was depression, that's why I had to keep going, I didn't want to give into the pain then."

The Causation Issue

14        In deciding the issue of causation, the approach which I should adopt is guided by the following authoritative statements;

15          In Transport Industries Insurance Co Ltd v Longmuir,[6] Tadgell JA stated:

“… The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”[7]

[6] [1997] 1 VR 125

[7]             at 141

16        In Tubemakers of Australia Ltd v Fernandez,[8] the High Court, in discussing the issue of causation and the approach which should be taken as to its analysis, cited the decision of Bendix Mintex Pty Ltd & Exxon Ltd, Jsekbarb Pty Ltd; Barnes Ors v Barnes,[9] wherein it is stated:

“… the trier of fact is entitled (indeed encouraged) to take a ‘robust and pragmatic approach’ to proof of causation. The inability to call lay or expert evidence that shows the precise way in which something has happened is not fatal.”

[8] (1976) 50 ALJR 720

[9] (1997) 42 NSWLR 307

17        In Tabet v Gett,[10] Kiefel J observed:

“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”[11]

[10] (2010) 240 CLR 537

[11]           at paragraph [111]

18        In Roads & Traffic Authority v Royal,[12] Kirby J listed the following common law principles which had been accepted by the High Court as governing contested issues of causation as follows:

[12] (2008) ALR 653; Whilst his Honour was in the minority, no issue arises as to the statement of general principle as to causation expressed by him

(i)	Causation is essentially a question of fact. The decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience;
(ii)	The burden of proving causation is upon the plaintiff, the standard of proof that must be met is the balance of probabilities;
(iii)	Whilst the ‘but for’ test may be useful in defining the outer limits of liability where causation is contested, it is not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations;
(iv)	Where several acts or omissions on the part of contesting parties are alleged to be causes-in-fact of a claimant's damage, the resolution of the contest presents a question of fact that is itself to be decided by reference to the foregoing considerations. The search is not necessarily for ‘the’ cause because, in some cases, two or more factors may be found to have contributed in a legally relevant way to the damage that occasions the action. If … a conclusion is reached that two or more causes have played a part in causing the damage, legal liability will attach so long as a nominated cause is held to have ‘materially contributed’ to that result;
(v)	The way in which individual decision-makers ought to reason to their conclusions about contested issues of causation-in-fact cannot be expressed in terms of imperative rules of universal application. As with most legal reasoning, several considerations will typically combine to bring the mind of the decision-maker to his or her conclusion about the preferable view of the facts.

19        Finally, in Grech v Orica & Anor,[13] Ashley JA made the following comments:

“… it cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible — it will be a matter for determination according to the evidence in the particular case — that each of two or more compensable injuries is a legally sufficient cause of the same consequences.

The second of those propositions turns on the words of the Act. Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. 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 argued by Hill & Bingeman that, given such a history of construction, the causal requirement imported by ‘material contribution’ should be taken to be a lesser requirement still than that encompassed by decisions construing the words ‘results from’. 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.”

[13] [2006] 14 VR 602

20        At this point it is appropriate to observe that even in the absence of any consideration of the medical evidence in the matter, it is my opinion that the application of commonsense leads one naturally to question how was it that such an everyday activity as that which the plaintiff was involved at the time of the 2008 incident[14] gave rise the disabling condition with which the plaintiff presently presents; and suggests the contribution of some significant pre- existing condition.

[14]           The plaintiff’s symptoms came on in association with her instructing a mother in breastfeeding which involved her in bending and squatting.

The Medical Evidence

21        In a report dated 18 March 2009, the plaintiff's treating general practitioner reported as follows:

“This lady injured her back at work in August 2005. She was working as an operating theatre nurse and was wearing lead aprons to reduce exposure to harmful X-rays. The apron was too heavy and resulted in a lower back injury which forced her to cease work. She then took up work as an office manager for a plastic surgeon but lasted only three months due to recurrent back pain. She did brief periods of nursing through an agency and was requiring daily painkillers to control her pain.

She took a position as a paediatric neonatal nurse at the Monash Hospital. Unfortunately, in March 2008, she had a major flare- up of her pain with a new symptom of left-sided sciatica. Her work in a neonatal ward was a major contributor to this exacerbation.”

22        Dr Paul Verrills (a specialist in pain medicine and pain management), in a report dated 10 July 2008, states that he first saw the plaintiff in March 2007 and obtained a history from her that she had injured her back whilst working at the Sandringham Hospital in October 2005. He described the plaintiff presenting at that time with some referred pain into the right leg, opining:

“In my view this was a deep somatic type referral pattern and not an

acute radicular type pattern. She had no left leg pain.”

23        Dr Verrills commented that the plaintiff was employing Panadeine Forte as her main analgesic at that time and that she was also using anti-inflammatories. He said that on 8 May 2007, he undertook a right sacroiliac joint intra-articular block upon the plaintiff and that on 19 June 2007, he undertook a controlled medial branch block. He said on 6 August 2007, he undertook a right sacroiliac joint radio-frequency neurotomy and that when he reviewed the plaintiff on 13 August 2007, he was told that her right leg pain was worse than before and that when he reviewed her again on 29 November 2007, the plaintiff told him that she had failed to have any response to her radio- frequency neurotomy and she continued to complain of neuropathic pain in the right buttocks, the groin and the posterior thigh.

24        Dr Verrills commented:

“I noted that she continued to work but in my notes I wrote that I felt that this reflected more her commitment and passion for her job. Her pain was fluctuating, at times severe and she required Oxycontin and Valium intermittently. At that time, I added Norspan 5 and Lyrica as medication options. In January 2005, I increased the Norspan up to 10, the Lyrica had caused some side-effects and I recommended that she stop that.

On 27 May 2008, Ms Daffey presented, telling me that she had a new pain. She had developed left-sided sciatica down the left leg to her toes. She had developed numbness in an L5 distribution with shooting pains into the ankle. There was no clear precipitating event. She said she simply turned whilst instructing a mother on breastfeeding. She said this incident occurred about eight weeks prior to me seeing her on 27 May 2008."

25        As at 10 July 2008, Dr Verrills opined:

“It is my view that this worker's injury is most likely related to her employment. While there was no major lifting or similar incident in precipitating her L5 pain, it did come on in the workplace and she relates it to a twisting movement whilst instructing a mother in her role as a nurse.[15]

I do not believe her current presentation of left leg radicular pain is in any material way related to her older right sacroiliac joint injury from 2005.”

[15] Clearly in this statement, Dr Verrills is referring to the 2008 incident.

26        In a further report dated 24 December 2010, Dr Verrills commented:

“This lady has two diagnoses including right sacroiliac joint pain and left L5 nerve root compromise associated with a left L4-5 disc protrusion. It is considered that both injuries are related to her employment.”

27        The plaintiff consulted Mr Greg Malham, a neurosurgeon, on 6 March 2007, at which time she presented with right lower limb pain radiating to her right buttocks and into her right groin. Other than referring the plaintiff for an MRI scan on 16 March 2007, Mr Malham provided little treatment for the plaintiff at that time. After March 2007, Mr Malham monitored the plaintiff's condition through correspondence sent to him by Mr Verrills, who reported:

• that he had undertaken a right sacroiliac joint injection on 8 May 2007; a further procedure on 9 June 2007 and third procedure on 6 August 2007;

• that as at 29 November 2007, the plaintiff had ongoing neuropathic pain in her right buttocks radiating to the right posterior thigh and that therefore he had commenced treatment in the form of Lyrica and Norspan patches;

• that as at 10 January 2008, given the plaintiff’s ongoing pain, her Norspan was increased to 10 milligrams and the Lyrica was stopped secondary to tiredness;

28        As at 6 October 2009, Dr Malham commented that:

“… the last correspondence from Dr Paul Verrills dated 4 June 2009 reported that Ms Daffey had developed new left radicular pain with associated left L5 sensory numbness and investigated with updated MRI lumbar spine, 3 June 2008. This demonstrated compression of the left L5 nerve root within the subarticular recess secondary to a moderate size L4-5 disc bulge and more focal lateral left-sided protrusion. Elsewhere, there were only mild disc bulges.”

opined that the plaintiff presented with:

“… possible L4-5 disc injury with discogenic pain and right L5 radicular

pain, right sacroiliac joint pain"

and commented:

“I have reviewed all the information currently available to me and in my opinion Ms Daffey suffered a work injury in October 2005 which was a significant contributing factor to her L4-5 disc injury with initially right- sided and then left radicular pain with associated right sacroiliac pain ….

Ms Daffey's condition is unlikely to significantly deteriorate but she may be troubled by ongoing recurrent episodes of low-back pain and lower limb pain. Initial presentation was of an L4-5 disc injury with clinical features of right L5 radicular pain, the latest pain being left radicular pain secondary to a more focal left L4-5 disc prolapse indicates progression of the L4-5 disc injury. A more focal recent L4-5 disc protrusion may deteriorate and increase in size causing worsening L5 radicular pain necessitating further L5 epidural injections.”

29        In a report dated 9 August 2011, Dr Malham described the plaintiff's work as a neonatal intensive care unit nurse as involving a work injury which occurred in 2008 and described that work as being a significant contributing factor to her right sacroiliac joint pain and her left L5 disc injury and subsequent prolapse causing her left L5 radiculopathy.[16]

[16]. In describing the 2008 injury in this manner I do not understand Mr Malham to be excluding the 2005 injury as also being a cause of those symptoms given his comment that the 2008 injury involved a

30        Mr Kevin King, an orthopaedic surgeon, reported upon the plaintiff's condition on 12 August 2009 and 5 July 2011. In my opinion, Mr King obtained a very accurate history from the plaintiff as to the onset of her symptoms in August 2005, their presence thereafter and the effect of the March 2008 incident upon those symptoms.

31        As to causation, Mr King opined:

“She gives a very clear and detailed history of a very abrupt onset of severe disabling pain and right-sided sciatica in the course of a heavy operating theatre session on 5 August 2005 when she was wearing a very heavy protective lead apron for a long period of some hours. It is reasonable to assume that during this period she did develop some damage to lumbar discs and associated ligamentous structures. This trauma being superimposed on what would be longstanding pre-existing but seemingly completely symptomless degenerative changes in her spine consistent with her age and the heavy occupation as a trained nurse over the years.

It is a reasonable assumption that the heavy work that she was doing on this particular day in the operating theatre compounded by wearing a heavy, awkward protective lead apron, precipitated for the first time the onset of significant low back pain with some disc bulging and right-sided sciatica. The MRI scan does show stenosis at the L4-5 level which would have been readily aggravated by some mild superimposed disc bulging and she has continued to be disabled ever since by persisting low back pain and right-sided sciatica.

She eventually got back to lighter work and while working in the neonatal intensive care unit nursery at Monash medical centre in March 2008, she seems to have superimposed further, relatively mild, but nonetheless definite trauma on the already inflamed and painful lumbar discs and associated ligamentous structures in the lumbar sacral region. This further aggravation seems to have caused spinal canal stenosis presumably due to more disc bulging resulting in left-sided sciatica as well.”

32        In a further report, dated 5 July 2007, Mr King opined:

“It is still my opinion that her major problems are related to the abrupt onset of severe disabling lower back pain and sciatica in the course of a heavy operating theatre session on 5 August 2005 when she was wearing a heavy protective apron for a long period of some hours with a further aggravation whilst working in the neonatal intensive care unit at the Monash Medical Centre in March 2007 aggravating her pre-existing injury.”

33        Mr Michael Khan, an orthopaedic surgeon, reported on 5 August 2011 as

progression of the 2005 injury.

follows:

"During the course of her occupation at the Sandringham Hospital on 5 August 2005, which was a Friday at the end of a busy week in the operating theatre, she had been wearing a heavy lead apron during the day assisting in a number of orthopaedic procedures. These lead aprons were heavy and she was bending over to remove the lead apron and trying to put on her clothes and she could not straight up. Her pain in the lower part of her back, which on extension of the lumbar spine after bending forward, radiated down to her buttocks and down to her right leg."

34        Mr Kahn said that following the 2005 injury, the plaintiff had kept working for agencies and was prescribed painkillers, including Norspan and morphine patches, to control her pain but that she continued to have low-back pain and pain affecting her right leg.

35        He said that in March 2008, during the course of her work at the Monash Medical Centre as a neonatal intensive care nurse while she was teaching a mother to breastfeed:

“… during this demonstration she was kneeling and bending on a number of occasions twisting and turning her lower back. She gradually developed an aggravation of pain her back which was associated with pain down her left leg.”

36        Mr Khan expressed the following opinion:

"This lady initially has developed pain in the lower back with pain referred down the right buttock and thigh affecting her lower limb in the anterior lateral aspect of the thigh and right leg. This was consistent with an injury during the course of her work on 5 August 2005. As a result of this injury, she developed discogenic pain at the L4-5 level with a minor disc bulge. This has been considerably aggravated at the L4-5 level by the disc prolapse. She has also had a facet joint arthroplasty in the two lower lumbar discs.

As a result of this, she was unable to perform any activity for a while involving excessive bending, extending the spine after forward flexion, turning and twisting. This condition was treated along conservative lines. She managed to recover sufficiently to be able to return to the work as described above.

During the course of her work as a neonatal intensive care nurse at the end of March 2008 she injured her back again aggravate the pre-existing disc degeneration and the disc bulge at L4-5 with referred pain down the back of the left leg due to the left side of disc bulge.

The condition since then has become worse. She was treated fairly intensively and the details of her treatment by various specialists have been described above.”

37        I will not, in the course of these reasons, make mention of the reports of Mr Blombery, a consultant vascular physician, who has opined as to the plaintiff's treatment in a number of reports which have been exhibited by the plaintiff, as those reports add little to the causation issue.

38        Mr John O'Brien, an orthopaedic surgeon, examined the plaintiff on behalf of the defendant. In a report dated 18 April 2007, Mr O’Brien opined that the plaintiff's history suggested that her employment in August 2005 was a specific contributing factor to her back pain. Having regard to the fact that Mr O'Brien's report pre-dates the 2008 injury, it does little to advance the issues which arise as to causation in the case.

39        Mr Jonathan Hooper, an orthopaedic surgeon, in a report dated May 2008, obtained from the plaintiff the following history:

• She was a neonatal nurse working at South Health. In the course of her work, she developed back pain. She had no accident or injury as such and had she felt the pain coming on later and then developed left-sided leg pain;

• She had a past history of backache going back to 2005 associated with her work as a theatre nurse at the Sandringham Hospital. At the time she was treated by nerve root ablation and this settled the pain down, though she was complaining of right-sided leg pain since that time. She felt that she could not get back to theatre work and hence got the job working in the neonatal nursery as the work was not heavy.

40        Mr Hooper opined that the condition with which the plaintiff presented at the time of his examination was an aggravation of her pre-existing problem and it was the aggravation and acceleration which had precipitated her symptoms. He concluded:

“Therefore this woman has a long history of back pain and leg pain. She has had further exacerbation this time with back pain and left-sided leg pain.”

41        In a further report dated 19 May 2008, Mr Hooper opined:

“My opinion is as stated to you that she had degenerative disc disease in her back, that is age-related. This has been aggravated by her work as a theatre nurse at the Sandringham Hospital and more lately by her work as a neonatal nurse at the Monash Medical Centre.

Her work was not the cause of the underlying pathology but it can be argued that at work, together with other activities of daily living, had aggravated her back condition and I therefore do not choose to change the opinions stated in my report.”

42        In a report dated 7 November 2008, Mr David Brownbill, a neurosurgeon, opined:

“On the information provided, I consider this lady had a pre-existing lumbar intervertebral degenerative changes which were aggravated by her two described incidents of 2005 and 2008 with the radiation of pain on the first occasion down the right leg and on the second down the left leg.

I consider on the information provided, that this lady has suffered an aggravation of pre-existing asymptomatic lumbar spine degenerative changes by forces sustained in the described work incidents of August 2005 and March 2008.”

43        In a report dated 2 June 2010, Mr Kevin Siu, a neurosurgeon, comments:

“Julie Daffey sustained an injury in March 2008 when she turned and twisted her back. This was against the background of back injury in 2005 and 2006. There is evidence that there may have been compression of the L5 nerve root on the left but the present MRI does not show an obvious disc prolapse at L4-5 compressing the L5 nerve root. It is conceivable that the injury in 2005/2006 could have resulted in nerve root compression but from the history alone I did not get the impression that it was a severe injury and that she was off work for any length of time. There was a change of occupation but she's been a neonatal intensive care nurse for the last 18 months and was coping well.

It's reasonable to say that she had made a full if not nearly full recovery from her injury of 2005/2006 however the injury of March 2008 is therefore most likely an aggravation of her per-existing lumbar spondylosis.”

44        The history obtained by Mr Siu that the plaintiff had made a full recovery from the 2005 incident does not accord with the evidence in the case. This, in my opinion, diminishes the reliance that might be placed on Mr Siu’s opinion as to causation. Equally, however, Mr Siu does not exclude the 2005 injury as being implicated in the condition with which the plaintiff presented to him at the time of his examination.

45        Whilst Dr Verrills does not support the analysis of Mr Malham, Mr King and Mr Khan as to the contribution of the 2005 injury to the plaintiff's present incapacity, I am of the opinion that the specialists practicing in the field of neurosurgery and orthopaedic surgery are better positioned to opine as to the causation of the plaintiff's lumbar disc injury than Dr Verrills, whose specialty is in essentially pain management, and I prefer those opinions to that of Dr Verrills.

Findings

46        The evidence satisfies me that the 2005 injury caused significant symptoms to the plaintiff, the effects of which persisted in a significant way up until the 2008 injury. I accept the plaintiff's description of continuing symptoms during the period between the two injuries, such that those symptoms required her to employ narcotic pain control and to modify her life to attempt to accommodate her symptoms.

47        The severity of the symptoms associated with the 2005 injury is evidenced by the fact that the plaintiff underwent three procedures at the hands of Dr Verrills; the third procedure being undertaken in November 2007 ( only five months before the occurrence of the 2008 injury), following which the plaintiff was reporting no real improvement in her condition. It is further supported by the fact that late in 2007 Dr Verrills was questioning the plaintiff's capacity to work, commenting that her continued work reflected more upon her commitment and passion for her employment; and was also increasing his prescription of narcotic medication to control the plaintiff’s symptoms.

48        The fact that the plaintiff was employing narcotic medication and was having difficulty coping with the duties involved in her work at the Monash Medical Centre [17] in the manner in which she has described, attests in my opinion, to the serious nature of the 2005 injury and the ongoing consequences to the plaintiff of that injury as at the time the 2008 injury occurred.

[17]             I am satisfied that this work involved relatively light duties.

49        It is clear that the 2008 injury involved the L4-5 disc which had been rendered symptomatic by the 2005 injury.

• Mr Malham described the latter injury as involving a progression of the former;

• Mr King described the 2008 injury as imposing mild trauma upon already inflamed and painful discs and ligamentous structures in the lumbar spine associated with and caused by the 2005 injury;

• Mr Khan described the 2008 injury as aggravating the pre-existing disc degeneration and disc bulges at the L4-5 level.

50        I interpret each of these opinions as involving the same concept; namely, that a disc, the integrity of which had been significantly compromised by the 2005 injury, was further compromised by a relatively trivial event, the end disabling result being materially contributed to by both events.

51        The reports of Mr O'Brien, Mr Hooper and Mr Brownbill each implicate the 2005 incident as being a cause of the plaintiff's incapacity and are, in my opinion, generally consistent with the reports of Mr Malham, Mr Khan and Mr King to which I have referred.

52        I am satisfied that the 2005 injury remains a significant contributing factor to the plaintiff's present incapacity .and that her present incapacity “results from and is materially contributed to by the 2005 injury. In my opinion, the relative improbability of such an everyday activity as that involved in the 2008 injury occasioning such serious consequences upon the plaintiff in the absence of the 2005 injury having caused a vulnerable disc with a significantly reduced tolerance for the stress associated with everyday activity; presents a compelling case for that proposition.

53        For the reasons which I have given, I am satisfied that the plaintiff has established that her present incapacity results from and is materially contributed to by the 2005 injury.

54        Given the finding I have made, it follows that the plaintiff is entitled to the leave which she seeks in this application.

55        I will hear the parties as to the precise form of the order sought and also upon the issue of costs.

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