Darby, Nicole Louise v Department of Human Services &

[2009] VCC 1484

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION
SERIOUS INJURY LIST
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-02984

NICOLE LOUISE DARBY	Plaintiff
v
DEPARTMENT OF HUMAN SERVICES	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Ballarat
DATE OF HEARING:	26, 27 August and 2 September 2009
DATE OF JUDGMENT:	11 September 2009
CASE MAY BE CITED AS:	Darby, Nicole Louise v Department of Human Services & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 1484

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 - serious injury application – pain and suffering and economic loss – soft tissue injury to neck – whether consequences “very considerable”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A Jordan SC with	Saines Lucas
Mr M A Nightingale
For the Defendants	Mr M R Titshall QC with	Herbert Geer
Mr I S Gourlay
HIS HONOUR:

Preliminary

1          On 4 August 2001, when the plaintiff was working as a carer for the first defendant, she was assaulted by a large and strong client, as a result of which she suffered injury to her cervical spine with referred pain to her left shoulder.

2          She claims that her capacity for employment has been significantly restricted, and in particular she is now able to work only two, and sometimes three days per week in lighter duties.

3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant on 4 August 2001.

4 Mr Jordan, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine, or neck. The application is thus brought under subsection (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.

5          In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.

6          I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the neck.

7 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her without injury earnings in the three year period before and after injury, as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.

8          The plaintiff, her general practitioner, Dr Scott Taylor; the plaintiff’s consultant physician, Dr Capes, and the plaintiff’s consultant orthopaedic specialist, Mr Kierce, were called to give evidence and be cross-examined. In addition, medical reports, radiology reports and other material were tendered into evidence. I have read all the tendered material.

9          On behalf of the defendants, Mr Titshall outlined the position of his client as follows:

• He claimed this was a “range” case, that is, when measured in comparison to other cases in the range of neck injuries, it was at the very lower end.

• The plaintiff recovered from the soft tissue injury suffered in August 2001, and to the extent there were ongoing problems, they were related to another incident of approximately June 2004.

• The consequences which the plaintiff claimed to be suffering from at the present were not permanent.

• A significant issue was the plaintiff’s current work capacity. It was submitted that if the plaintiff had a reduced capacity, it was not a result of the claimed injury.

Relevant Background

10        The plaintiff was born in Ballarat in 1974 and is currently thirty-five years of age. She has a teenage son and is in a de facto relationship. She was educated to Year 11 and then commenced an apprenticeship as a hairdresser. She worked in that capacity, with time off on occasions for her son’s upbringing and education, until 2000. At that time, she commenced employment with the first defendant as a carer, having completed a Certificate in Community Services at Ballarat University. In December 2000, she commenced work at the Errad Street CRU, a facility for young clients who were autistic and mostly wheelchair bound. On 4 August 2001, she was assaulted by a large and strong client while at a “sleepover” while she was staying overnight at the premises. She claims to have suffered an injury to her cervical spine. At the time of the incident, the plaintiff was working approximately 32.25 hours per week, earning approximately $436.34 gross per week.[1]

[1]             See employer claim report - Defendant’s Court Book (“DCB”) 4-5

11        Before injury, she claimed to be very active and in good health and, particularly, had not suffered any injury to her neck or shoulders. She regularly attended aerobics, lifting weights “with the boys”, took dancing classes, and would run regularly for fitness and enjoyment. There was no limitation in her ability to carry out domestic tasks.

12        The plaintiff’s income from personal exertion is set forth in the plaintiff’s materials.[2] In the year ended June 1999, she earned $14,459 gross; for the year ended June 2000, she earned $21,385 gross; to June 2001, she earned $35,907 gross; and in the year ended June 2002, she earned $36,957 gross, which included payments of weekly compensation. For the year ended June 2009, the plaintiff earned $27,745 gross.

[2]             Plaintiff’s Court Book (“PCB”) 72

The Injury and Its Consequences

13        On 4 August 2001, the plaintiff was assaulted by a client in the course of a “sleepover”. The woman was large and aggressive, rolled on top of the plaintiff causing her head to bend backwards. She suffered pain in her neck and the upper part of her spine, and pain in the left shoulder. The plaintiff completed a shift that evening as she was the only person at the residence and worked the next day also, a Sunday. On Monday, she consulted her general practitioner, Dr Taylor. He referred her for physiotherapy and the plaintiff complained to him of pain in the left side of her neck, left upper back and left shoulder.[3] Dr Taylor considered the plaintiff as suffering a soft tissue injury to her neck. She was certified fit for return to work with restrictions in the heavier duties. By November 2001, the plaintiff was able to return to her usual duties and, although Dr Taylor records that she was to avoid sleepovers,[4] she did stay overnight on occasions. By January 2002, Dr Taylor noted a full range of movements with fluctuating neck discomfort. She was still receiving occasional physiotherapy. In March 2003, the plaintiff suffered an aggravation to her left shoulder while at work. By this time, Dr Taylor was prescribing Nurofen Plus, an analgesic.

[3]             PCB 21

[4]             PCB 22

14        In 2003 and 2004, the plaintiff worked in different accommodation and Dr Taylor’s report records[5] that in May 2004 she attended with anxiety and distress as a result of rosters at the premises, and hours of work.

[5]             PCB 22

15        In June 2004, the plaintiff suffered a further episode of neck pain when she was pushed by another client while at work. This caused an increase in her treatment, including chiropractic and massage. Dr Taylor considered this an exacerbation of her soft tissue injury.

16        In December 2004, Dr Taylor referred her to Mr McKechnie, an exercise consultant and masseur. She has remained in Mr McKechnie’s care to the present time. In 2006, Dr Taylor referred the plaintiff to Mr David Mitchell, orthopaedic specialist. He received a history of ongoing neck pain, headaches and muscle spasm. There was some crepitus in the left shoulder, but with a full range of movement.

17        An x-ray had been taken of her cervical spine in October 2004[6] which showed some mild restriction in flexion. A CT scan was taken in February 2006[7] which showed bulges at C4-5 and C5-6, but without neural impingement or compromise. There was some loss of spinal lordosis possibly due to muscle spasm. Mr Mitchell arranged an MRI scan in May 2006 which concluded early degenerative changes at C4-5 and C5-6 but without canal stenosis nor neural compression. A small amount of fluid was present upon MRI examination of the left shoulder.[8] Mr Mitchell described the MRI scans as being normal for the plaintiff’s age.[9] The left shoulder was injected by Mr Mitchell with cortisone and he prescribed Panadol Osteo for the pain. Mr Mitchell considered the plaintiff’s problems more to do with pain management and referred her to Dr de Graaff at Cedar Court Rehabilitation Hospital (“Cedar Court”).[10] He received a history of constant neck pain with referral to the left side, and was with paraesthesia in the left arm to the little finger. The plaintiff also reported dizziness. He considered the plaintiff had multiple soft tissue injuries as a result of her work as a carer over the years and thought the symptoms consistent with myofascial syndrome. There was potential for improvement and he recommended a week long course at Cedar Court. This, however, required her to live in for one to two weeks and she did not go through with the program.

[6]             PCB 67

[7]             PCB 68

[8]             PCB 70

[9]             PCB 32

[10]           PCB 36-38

18        In July 2006, by reason of the necessary modification in her duties and her inability to cope because of her neck problems, she was advised by the first defendant there was no longer a suitable position available for her. She said she was devastated as a result.[11] Up until that time, the plaintiff was both working for the first defendant and undertaking a Diploma of Welfare and Community Development at Ballarat University, which she had commenced in July 2005 on a part-time basis.

[11]           T 71

19        Eventually, in February 2007, she commenced employment as a housing information and referral officer working between 30 and 35 hours a fortnight for Uniting Care, an arm of the Uniting Church.

20        In October 2006, the plaintiff received injections at Cedar Court for trigger points to the left side of her neck and left shoulder. Dr Taylor also diagnosed a soft tissue myofascial syndrome affecting the left side of the plaintiff’s neck, left shoulder and left upper back. He noted that the injury had a fluctuating course, being aggravated from time to time with her work over the years. The plaintiff had also received treatment from an osteopath and chiropractor. She undertook an exercise program at the gymnasium, although not the aggressive lifting of weights she had previously done.

21        She has remained working at Uniting Care to the present. The work is largely non-physical and does not involve lifting of patients and the like. The duties are more clerical and office related, although permit her to move around the facility regularly. Her hours have varied between 30 hours per fortnight, up to 45 hours per fortnight. In January and February 2009, the plaintiff worked fulltime, five days per week for a period of about four weeks. She was unable to cope with these hours and consulted Dr Taylor. Over the period from March to May 2009, the plaintiff worked about seven days per fortnight.[12] She claims she is limited to two days per week; otherwise she is unable to cope with the pain in her neck.

[12]           PCB 19C

22        The plaintiff gave evidence[13] that her recent pays lips record the following:

[13]           Transcript (“T”) 48, Exhibit A

Fortnight Ended	Hours Worked
2 July 2009	38.5
19 July 2009	38.0
30 July 2009	16.7

(plus 1 week’s leave)

13 August 2009	34.4
30 August 2009	31.9

23        At the present time, the plaintiff takes two to six Panadol Osteo tablets per day for pain. She also takes Lexapro, an anti-depressant, each day. She attends the chiropractor once a week and Mr McKechnie for exercise and massage each fortnight.

24        As a result of injury, she claims to have a reduced capacity to undertake the recreational, domestic and sporting activities she used to enjoy. She states[14] that it is difficult for her to undertake tasks above shoulder height. Heavier domestic duties such as vacuuming, lifting baskets of washing and making of the beds are all difficult. She has interrupted sleep from time to time. Although she goes to the gymnasium for exercises, she does not participate in aerobics nor dancing classes.

[14]           PCB 18

25        In cross-examination, she conceded that from time to time after her injury, she continued to undertake sleepovers. She regularly drove the minibus to transport patients around Ballarat and sometimes farther afield, including to Melbourne. After her return to the work after the incident, she worked normal hours for a period of 18 months or two years. She walks regularly for between half and an hour, occasionally breaking into a run. She goes to the gym regularly and has an exercise program. She undertakes hydrotherapy at the gymnasium. She still drives regularly, taking her son to and from school, doing the shopping and the like, although now has an automatic car. She undertakes all the necessary family shopping although struggles to control the supermarket trolley. She has been in a de facto relationship since 2005, and holidays with her partner and son, including camping at Lakes Entrance recently, when sleep was difficult because she used an air mattress. She goes and watches her son, who is a cross-country runner, and is able to look after him although not play with him in the same manner as before.

Medical Evidence

26        Dr Taylor, the plaintiff’s general practitioner throughout, provided a number of medical reports[15] and attended to give evidence and be cross-examined. I found Dr Taylor a straightforward and competent witness with a very considerable knowledge of the plaintiff’s condition. I have already referred to Dr Taylor’s treatment. He noted the CT scan of February 2006 was essentially normal as was the MRI scan of June 2006. He noted in October 2006 the plaintiff was working two days a week for Uniting Care in a student placement and, in addition, studying three days a week at a TAFE college pursuing her Certificate in Welfare and Community Development. He concluded the plaintiff was suffering a myofascial syndrome affecting the left side of her neck, left shoulder and left upper back. He said this had a fluctuating course of severity and was aggravated from time to time by other incidents with clients. He noted a wide range of treatment including painkilling and anti-inflammatory medication, treatment by a physiotherapist, exercise physiologist, osteopath and chiropractor, together with an exercise program and an assessment at a pain management clinic, Cedar Court.

[15]           PCB 20-30b

27        In July 2009,[16] Dr Taylor said that the plaintiff, despite earlier attempts to increase her hours, was limited to two days work per week given her neck injury.

[16]           PCB 30a

28        In cross-examination, he confirmed that in his view the plaintiff had not suffered any disc injury. He described the condition as a myofascial pain disorder which was a non-specific injury to the muscles, ligaments and tendons of the neck and shoulder. He said it could not be seen upon radiological investigation, and while most persons with such an injury generally recover, there was a proportion where the condition became chronic. He confirmed that generally when he examined the plaintiff she had a full range of movement of the neck and shoulder, although with some pain at the extremes. He said the plaintiff’s condition was manageable over the years 2003 to 2005 with some medication from time to time, and up to October 2006 there had been no active treatment apart from prescription of medication. Of more recent times when the plaintiff had attempted to work for more than two days per week, there was an increase in pain and a consequent need for further medication. He considered that her work capacity was dictated by the pain. Although her complaints of pain were subjective, having examined her over the years he accepted her self assessment of pain.

29        Mr Mitchell, orthopaedic specialist, provided various letters and reports.[17] He arranged the CT scan and MRI scan of 2006 and referred the plaintiff to Cedar Court for assessment. He thought her problems were more in the nature of pain management than orthopaedic and thought she was suffering from a shoulder hand syndrome and myofascial syndrome.

[17]           PCB 31-35

30        Dr de Graaff of Cedar Court reported in September 2006.[18] He said that the plaintiff had suffered multiple soft tissue injuries a work over the years and the features were consistent with a myofascial syndrome. He arranged injections of trigger points in her neck and shoulders. He prescribed Panadol Osteo and thought there was some room for improvement in her condition.

[18]           PCB 36-38

31        Dr Capes, an industrial physician, provided reports of May 2008 and March 2009.[19] He also attended to give evidence and be cross-examined. He considered the plaintiff had suffered an aggravation and possible acceleration of cervical disc degenerative disease, and the development of a rotator cuff injury to the left shoulder. He considered the plaintiff was quite handicapped by her condition. As to work capacity, he considered the plaintiff was capable only of five hours per day, three days a week.

[19]           PCB 39-46

32        In cross-examination, he said that there would be benefit in arthroscopic surgery to the shoulder to determine the pathology. It was put to Dr Capes that other doctors had described a myofascial syndrome. He said that such a disorder was not well known, nor had been the subject of significant investigation. He was unable to give any firm opinion on the matter. He gave evidence that he considered there had been a deterioration in the plaintiff’s condition as shown from the original x-ray of 2004 through the CT and MRI scans of 2006. At one point[20] he stated that the x-rays showed “discs”. I was unimpressed with this evidence of Dr Capes. He appeared to me to be attempting to interpret the radiology in a manner to suit his evidence. I do not accept his evidence about the aggravation of the underlying disc disease, nor as to the rotator cuff injury.

[20]           T 89

33        Mr Kierce, orthopaedic specialist, provided a number of reports from April 2008 to August 2009[21] and attended to give evidence and be cross examined. His opinion was that the plaintiff had suffered an injury to her cervical spine in the incident of August 2001 with referred pain to the left shoulder blade area, although he did not consider there had been an injury of the shoulder girdle itself. His view that the injury to the cervical spine was significant was consistent with the findings of “persistent extension of the C5-C6 articulation”. He initially[22] considered the plaintiff as suitable for full-time, but restricted duties. He found no psychological nor functional overlay. He explained the left shoulder problem as being a problem related to muscles extending from the cervical spine to the shoulder, being disrupted. That, he said, led to a restriction in movement of the shoulder which in itself caused tightness and muscle spasm. If restriction of movement of the shoulder girdle is sufficiently extensive, it could lead to adhesive capsulitis or even a frozen shoulder. In his report of 18 March 2009, he considered the plaintiff would be able to cope with working 30 hours per week, in her restricted duties at Uniting Care, “but this remains to be seen, as she is just attempting this again”. When he examined the plaintiff on the final occasion in August 2009 he noted the plaintiff had attempted to work longer hours earlier in the year, but was unable to cope with the work and that her self-admitted limit was 15 hours per week.

[21]           PCB 47-66F

[22]           PCB 56

34        It is somewhat unusual that Mr Kierce’s opinion as to the work capacity changed from 30 hours per week in March 2009 to 15 hours per week to August 2009. His initial assessment, however, was based upon the plaintiff undergoing a suitable trial, and feeling able to work for longer hours, and this turned out not to be the case.

35        Dr David Murphy, rehabilitation physician, examined the plaintiff in July 2008 and reported in August of that year.[23] He provided a further letter to the plaintiff’s solicitors of June 2009.[24] He considered the plaintiff as suffering a myofascial pain syndrome stemming from the injury of 4 August 2001. Given the condition had persisted since 2001, he thought it chronic and although there may be some slow improvement over the years, it was unlikely to improve. The plaintiff had a significant reduced capacity for the activities of daily living. She had a capacity for work providing she was not required to reach beyond shoulder height nor expected to repetitively lift weights in excess of five kilograms. He considered her work at Uniting Care suitable but thought she would have difficulty working more than 15 hours per week. In describing the myofascial pain syndrome, he stated that that was an organic condition. He thought the plaintiff had a secondary mood disorder which was a psychological condition.

[23]           PCB 66G-66K

[24]           PCB 66L

36        Various radiological reports were tendered.[25] These showed generally minor disc bulges at C4-5 and C5-6 without neural impingement or compromise.

[25]           PCB 67-71

37        On behalf of the defendants, the plaintiff was examined by Mr Schutz, surgeon, in November 2001 and February 2002.[26] These reports were of only limited use given their age. He considered the plaintiff as suffering a soft tissue injury to the muscles or ligaments of the neck and noted she was working full-time over that period. He considered there was no objective evidence of injury of the cervical spine and that there would be no restriction in her work capacity, or ability to undertake domestic duties.

[26]           DCB 16-25

38        The plaintiff was examined by Mr Drinkwater, chiropractor, in November 2002. Again this report is dated, and his opinion is of little assistance.

39        The plaintiff was examined by Mr Khan, orthopaedic surgeon, in October 2007.[27] He diagnosed the plaintiff as suffering a soft tissue injury to her cervical spine in the form of an aggravation of mild pre-existing disc degeneration at C4-5 and C5-6. He also considered the plaintiff had developed chronic rotator cuff tendonopathy. He thought there was a prospect of improvement, but her prognosis in the long term was guarded. The plaintiff, he said, was not able to return to her pre-injury duties, but was able to undertake suitable restricted duties. He considered that the symptoms had both organic and non-organic bases.

[27]           DCB 67-76

40        The plaintiff was examined by Mr Polke, orthopaedic surgeon, in June 2008.[28] He obtained a history of ongoing right sided neck pain with referred pain to the shoulder and claims of paraesthesia down the left fifth finger. Examination revealed a full range of neck movements without neurological deficit. He considered the plaintiff as suffering a mild soft tissue injury to her cervical spine. He thought the long-term progress was good and that her condition appeared to be related to the incident of 4 August 2001. He considered there may be a transient right ulnar nerve injury, unrelated to her employment. He did not consider the plaintiff had any permanent work incapacity and that she could return to her previous job, avoiding heavy lifting and having to constantly move her neck. The symptoms, he said, were complicated by depression.

[28]           DCB77-83

41        Finally, the plaintiff was examined by Dr Karna, rheumatologist, in February 2009.[29] He obtained a history that after the incident, the plaintiff was eventually cleared for normal duties but struggled to maintain full work capacity given her ongoing pain, headaches, dizziness and referred pain to the left arm. He noted a further incident in 2004 which caused an aggravation of the symptoms. Upon examination, there was an excellent range of movement. His impression was that the plaintiff had suffered a soft tissue injury to her cervical spine involving the muscles and ligaments of the neck and possibly the left shoulder. He did not think there was any intrinsic structural pathology in the neck. He considered the plaintiff had developed a myofascial pain syndrome with tender points. This, he said, was a psychosomatic sequelae to the original injury. He said that her original injury had healed, but the ongoing pain was driven by psychogenic/psychosocial factors. There were a number of workplace issues and predicaments which affected the condition. He thought she had the capacity to work on a full-time basis.

[29]           DCB 94-97

Conclusions as to the Medical Evidence

42        There are differing views from the various practitioners as to the nature, name and extent of the injuries suffered by the plaintiff in the incident of August 2001. The plaintiff’s general practitioner, Dr Taylor, treating orthopaedic specialist, Mr Mitchell and rehabilitation specialist, Dr de Graaff, and consultant rehabilitation specialist, Dr Murphy, all consider the plaintiff suffers a myofascial pain syndrome or disorder. All these doctors appear to accept it as an organic disorder. The consultants, Dr Capes and Mr Kierce, are of the view the plaintiff has suffered an aggravation of the underlying disc degeneration at two cervical levels.

43        The defendants’ specialists, Messrs Khan and Polke, believe the plaintiff has suffered a modest soft tissue injury from which she has substantially recovered, and that there is an element of psychological overlay. Dr Karna believes the plaintiff suffers a myofascial pain syndrome, but that it has a psychological rather than organic basis.

44        Mr Jordan submits that it is not necessary, even notwithstanding the views of Ashley JA in Grech v Orica Australia Pty Ltd & Anor[30] to determine precisely the nature of the injury the plaintiff suffered in 2001. It is rather, he says, a matter to determine that the plaintiff did suffer an injury to her cervical spine, whatever its label, and then determine the nature and extent of the consequences flowing from the injury.

[30] (2006) VSCA 172

45        Given the circumstances of this case, and submissions put by Mr Titshall, I am of the view it is appropriate to determine not only the nature and extent of injury, but precisely what that injury was and is. I was impressed by the evidence of the plaintiff’s general practitioner. He, above all other doctors, has seen the plaintiff regularly. Likewise, Mr Mitchell and Dr de Graaff have treated the plaintiff on a number of occasions. I prefer their assessment and description of the plaintiff’s injury as being a myofascial pain disorder. It may be that there has been, to some extent, an aggravation of an underlying degenerative disease at two lumbar levels, but predominantly I accept that the injury as being one to the muscles, ligaments, tendons and supporting structures of the neck.

46        I prefer the views of those doctors, and Dr Murphy, that the disorder from which the plaintiff is suffering is organic, and not a psychological disorder. There may be an element of anxiety and depression which contributes to the plaintiff’s pain presentation, but I do not believe, in the circumstances of this case, it is anything more than minor.

47        I accept generally the views of the doctors that the pathology in the plaintiff’s cervical spine is modest only, and there is little, by way of objective investigation, to confirm precisely the nature and extent of physical injury.

48        I accept the explanation of Mr Kierce as to the nature of the plaintiff’s shoulder injury, that there has been some damage to the muscles connecting the cervical spine to the shoulder, which has led to tightness and muscle spasm, and restriction of movement in that area. I thus consider that the problem with the shoulder is related specifically to the neck, and not a separate injury. In submission, Mr Titshall did not seek to argue otherwise.

49        In terms of work capacity, I prefer the opinions of those doctors who have most recently treated and examined the plaintiff. I accept that the plaintiff has no capacity to return to work which involves heavy or repetitive lifting, use of her arms at shoulder height or above, or employment which places any significant strain on the cervical spine.

50        Given the lack of objective findings on radiology, those doctors, like myself, are reliant upon the plaintiff’s assessment of her capacity to undertake work duties, and the hours that she is capable of doing that work. Dr Taylor particularly is of the view the plaintiff is not capable of increasing the work hours beyond the two to three days per week she is currently doing. Other consultants have come to a similar view.

Credibility of the Plaintiff

51        Given, in this case, I am heavily reliant upon accepting the evidence of the plaintiff as to her pain, and work capacity, it is necessary to assess her credibility. No attack was mounted by Mr Titshall, and he did not submit there was a basis upon which to reject the plaintiff’s evidence.

52        Having assessed the plaintiff in the witness box, I have concluded that she is an honest and truthful witness. Her evidence was believable, and she made the concessions which one would expect of an honest witness. I accept that she has suffered ongoing pain in her neck since August 2001, that it restricts her in a range of activities that she previously enjoyed, and, most importantly, in working 30 or so hours per fortnight is approximately the limit of her capacity to undertake work for Uniting Care.

Submissions of Behalf of the Defendants

53        Mr Titshall contended that after the injury, the plaintiff improved significantly and was able, for a period of 18 months or two years, to resume her previous duties, on an unrestricted basis, and to return to many activities which she had previously enjoyed. He said that the course of the plaintiff’s recovery changed significantly in June 2004 when she suffered an aggravation of her neck problem when pushed by a client at the facility. From that point on, he said, her course took a downhill turn.

54 He accepted the diagnosis of Dr Taylor that in the original incident the plaintiff had suffered a soft tissue injury to the muscles, tendons and ligaments of her neck. He accepted that she was now suffering a myofascial pain syndrome, but that it was unrelated to the original injury, from which she had substantially recovered. To the extent that the current condition had an organic basis, it was related to the aggravation of June 2004 rather than to the injury of August 2001, and, in addition, had a significant psychological component relating to the plaintiff’s stress, anxiety and depression. This, he said, arose as a result of a number of causes, including the difficulties being, until recently, a sole parent, problems described by Dr Taylor in 2004 relating to uncertainties of rosters and hours of work,[31] and possibly other causes.

[31]           PCB 20

55        In support of this submission, he referred to the evidence of Dr Taylor[32] where the plaintiff reported returning to normal duties, and normal hours of work, including driving buses and undertaking sleepovers. Over this period, he said the plaintiff was receiving minimal treatment.

[32]           T 25-26

56        A difficulty with this argument is that there is little if any support from any of the doctors for the proposition. There is no opinion to the effect that given the plaintiff resumed her work and many of her domestic tasks before mid 2004, and then suffered the further aggravation at that time, that it is the aggravation which is the real cause of her present symptoms. There has been no close examination of any injury sustained in June 2004 and it consequences.

57        Further, Mr. Titshall submits that the plaintiff’s condition could not be said to be permanent. There was a range in various of the practitioners’ reports to improvement and to the fluctuating course of her condition.

Conclusions

58        Mr Jordan submits, which I accept, that very much of this case turns upon the acceptance of the evidence of the plaintiff, both viva voce and in her affidavits, and in the histories provided to doctors, of the nature and extent of her symptoms. He accepted that there was no dramatic pathology nor other objective signs of injury. He said the plaintiff suffered a soft tissue injury not only to the muscles, ligaments and tendons of the neck, but also the discs. The injury was physically based and that the plaintiff was the best judge of her ability to maintain employment.

59        As stated, I am satisfied the plaintiff has suffered a myofascial pain syndrome, arising from the incident of August 2001. There is no doubt the plaintiff’s condition did improve over a period of time, enabling her to return to full-time duties undertaking more or less the same tasks she undertook before injury, but as stated by Dr Taylor, the plaintiff’s condition has had a fluctuating course.[33] I accept the evidence of the plaintiff that she has never really been without pain in her neck, and referred pain into her left shoulder. I accept that this pain has required ongoing treatment from Dr Taylor, for a period at Cedar Court, and even to the present time chiropractic treatment once a week, and exercise and massage with Mr McKechnie each fortnight. Throughout, the plaintiff has taken prescription pain relieving medication, recently in the form of Panadol Osteo and that this medical regime is expected to continue.

[33]           PCB 24

60        In terms of the permanency of the condition, the authorities have defined that to mean “for the foreseeable future”. I am satisfied that the plaintiff’s injuries and the consequences which flow are likely to persist in the long term. There is no medical opinion to the effect that there is any form of treatment which is likely to lead to any significant improvement. Most practitioners are of the view that there is unlikely to be any significant relief into the future.[34]

[34]           Dr Capes - PCB 45; Mr Kierce - PCB 66F; Dr Murphy - PCB 66L

61        Given the ongoing complaints of pain, treatment and medication, even although the plaintiff did return to employment duties, I am of the view that her current condition is related to the August 2001 incident. She has suffered a fluctuating course, with improvements from time to time, and then aggravations as a result of various incidents at work, including June 2004. As Dr Taylor stated,[35] her condition is better if she rests, and flares if she is more active, doing normal duties and the activities of daily living.

[35]           T 21

62        I am satisfied that the plaintiff’s present capacity is in the order of 15 hours per week. She presently works seven and a half hours each Thursday and Friday, and for an hour or two each Monday. This is less than half the hours she was working before the incident and returns an income significantly less than 60 per cent of her pre-injury income.

63 I am thus satisfied the plaintiff meets the tests prescribed by s.134AB(38)(e)(i). I am satisfied that this loss is directly related to the injury sustained to her cervical spine in August 2001.

64        It follows that the plaintiff, in addition, necessarily achieves the “very considerable” level in respect of pain and suffering.[36]

[36]           See Advanced Wire and Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170

65        I shall make consequent orders after consulting with counsel.

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