Davenport, Gaile v Rentokil Initial Pty Ltd
[2010] VCC 112
•23 February 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01131
| GAILE DAVENPORT | Plaintiff |
| v | |
| RENTOKIL INITIAL PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 and 17 February 2010 |
| DATE OF JUDGMENT: | 23 February 2010 |
| CASE MAY BE CITED AS: | Davenport, Gaile v Rentokil Initial Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0112 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – the plaintiff suffered an injury to her lower back in 2001 and again in 2003 – whether the plaintiff suffered an injury which resulted in an impairment which was permanent and with consequences which met the statutory test for pain and suffering and loss of earning capacity resulting from either incident – whether the consequences of the 2001 incident and the 2003 incident could both constitute serious injury – RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 – leave granted for both pain and suffering and loss of earning capacity: section 134AB (38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Maurice Blackburn, Lawyers |
| Mr J Goldberg | ||
| For the Defendant | Mr T Ryan | Herbert Geer, Lawyers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 23 March 2009 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Richards SC appeared with Mr J Goldberg of Counsel for the plaintiff and Mr T Ryan of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered the following evidence:
ƒ
The Plaintiff's Court Book ("PCB") pages 11-67, and from the Defendant’s Court Book ("DCB"), pages 12-19, 45-47 and 51-54: Exhibit A
• The defendant tendered the following evidence:
ƒ video film of the plaintiff taken on 19 June 2009: Exhibit 1 ƒ video film of the plaintiff taken on 1 February 2010: Exhibit 2 ƒ extract of the medical records of the MW Medical Centre: Exhibit 3 ƒ radiological examinations of the plaintiff: Exhibit 4 ƒ letter of Pink to the plaintiff dated 12 July 2007: Exhibit 5 ƒ Comminsure documents: Exhibit 6 ƒ the Defendants Court Book, pages 1-11, 21-44 and 56-79: Exhibit 7 ƒ report of Dr Carless, general practitioner, dated 6 November 2008:
Exhibit 8.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] [1994] 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 24 March 1955. She is now fifty five years of age. She is divorced. She has no children who are dependent upon her.
10 The plaintiff commenced employment with the defendant as a delivery driver in 1999.
11 On 3 December 2001, the plaintiff suffered injury to her lower back when placing nappy bins from a trolley onto a truck. As she lifted a bin she lost her balance and fell onto the roadway on her lower back.[5]
[5] PCB 13
12 On 6 November 2003, the plaintiff suffered another injury to her lower back when lifting a bin of nappies.[6] On this occasion the plaintiff developed pain in her left buttock and leg which occasionally extended as far as her left calf and foot.
[6] PCB 15
13 The plaintiff swore two affidavits, on 18 November 2008 and 15 February 2010. Her evidence-in-chief comprised an adoption of the matters deposed to by her in the two affidavits, and adding that the contents of the affidavits were true and correct.
14 However, during the plaintiff's cross-examination, it became evident to me that the plaintiff was easily confused. She had a very low emotional tolerance to the cross-examination conducted by Mr Ryan. That is not to say that there was anything offensive in the cross-examination conducted by Mr Ryan, but quite the contrary, it was conducted in an even-handed and respectful manner.
15 The evidence disclosed that the plaintiff left school when she was ten years of age. On my estimate she is unlikely to have gone much beyond what used to be called Grade 3, but which is now is called Year 3. On that evidence alone it would appear that she has had the most basic education.
16 I watched the plaintiff closely while she gave her evidence. It occurred to me that she found the cross-examination of her to be an arduous and trying exercise, and so much so that on numerous occasions she became confused and gave up, almost conceding any point put to her. Her exasperation often led to her breaking into tears.
17 It was very clear to me that I was dealing with a woman with the most basic education and whose capacity to communicate in the environment of a courtroom using any degree of sophisticated language was beyond her. She struck me as being a very simple, unintelligent woman without any intellectual sophistication at all.
The Issues
18 Mr Ryan submitted that the following were the serious impediments facing the plaintiff in successfully proving that she had suffered a serious injury:
(a) whether the plaintiff suffered injury on 3 December 2001; (b)
whether the plaintiff recovered from the injury she suffered on 3 December 2001 and before the second incident of 6 November 2003;
(c) whether the plaintiff recovered from the injury of 6 November 2003; (d) the plaintiff's credit. 19 Mr Richards, on the other hand, submitted that there was nothing in the plaintiff’s evidence which could lead me to conclude other than I should accept her as a witness of truth, and furthermore, that her evidence together with the medical evidence, disclosed an undeniable case of serious injury.
Did the Incidents Occur?
20 The plaintiff deposed to the fact that the incidents occurred on 3 December 2001 and 6 November 2003 respectively. During cross-examination, her confusion led her to express some doubt about when the incidents occurred, but invariably she identified the year when the incidents occurred.
21 During her re-examination conducted by Mr Richards, the plaintiff was taken to a worker’s claim form relevant to the incident of 3 December 2001. She read the form. She said the handwriting on the form was hers. She said that the signature on the form was hers, and that she completed the form on 5 December 2001.[7]
[7] DCB 12-14
22 During similar re-examination conducted by Mr Richards, the plaintiff was taken to an accident/incident report form. She read the form. She said the handwriting on the form was hers. She said the signature on the form was hers, and that she completed the form on 25 November 2003.[8]
[8] DCB 51-54
23 The Court of Appeal has observed on a number of occasions that the role of the trial judge is to take account of all of the evidence.[9] It is not a matter of looking at the plaintiff's oral evidence in isolation.
[9] Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17, per Ashley JA, at paragraphs 47-49; Cakir v Arnott [2007] VSCA 104, per Neave JA, at paragraph 47; and Grace v Elmasri & Transport Accident Commission [2009] VSCA 111, the Court, at paragraph 136
24 The fact that the plaintiff expressed some doubt regarding the dates upon which the incidents occurred resulted more from her inability to tolerate giving evidence, and not by the failure of the plaintiff to make every effort to tell the truth. Indeed, whilst Mr Ryan submitted that the plaintiff's credit was in issue, it was not an attack on her credit based upon her evidence not being truthful, but rather whether her evidence was reliable.
25 It is abundantly clear to me that the worker's claim form and the accident/incident report form were prepared contemporaneously with the occurrence of the incidents. They corroborate the plaintiff's evidence contained in her affidavits.
26 I have no hesitation in accepting that what the plaintiff deposed to in her affidavits regarding the dates upon which the incidents occurred is true and I am fortified in reaching that conclusion by the worker's claim form and the accident/incident report form.
27 The second part of Mr Ryan's attack upon the plaintiff's credit on this issue was whether I can accept that what the plaintiff says occurred on each of those dates is accurate.
28 In a serious injury application it is necessary for me to determine whether the plaintiff has suffered a compensable injury as the starting point, but not to make any findings necessarily as to whether the incident said to cause a compensable injury occurred in any particular way. That is surely a matter for the damages trial.
The 2001 Incident
29 The plaintiff saw Dr Towie, general practitioner,[10] on 4 December 2001. His clinical notes refer to a lower back strain.[11] They are otherwise difficult to decipher. In a handwritten report dated 19 July 2008, he expanded upon his clinical notes, describing the plaintiff as suffering a left sacroiliac joint sprain, which he understood to be a work injury.[12]
[10] I was informed by both counsel that Dr Towie tragically passed away in the Black Saturday bushfires
[11] Exhibit 3
[12] PCB 25
30 Dr Towie referred the plaintiff to Mr Wilde, orthopaedic surgeon. The plaintiff first saw him on 5 March 2004, and then on 17 October 2006 and 6 May 2008.
31 The history obtained by Mr Wilde is not accurate in terms of the dates when the incidents occurred.[13] However, what Mr Wilde did obtain was a history that there were two incidents which resulted in injury to the plaintiff’s lower back.
[13] PCB 29
32 At the time when Mr Wilde examined the plaintiff he had available a CT scan taken on 11 December 2001, a CT scan taken on 9 December 2003, and a CT scan dated 21 August 2006. Mr Wilde considered that the second CT scan demonstrated small disc bulges/prolapses at L3-4 and L4-5. He thought that the lesion that L4-5 was significant and was probably causing displacement and compromise of the plaintiff's right L5 nerve root.
33 Mr Wilde looked at the third CT scan at the time when he reviewed the plaintiff on 17 October 2006. He did not consider that there was any change shown on that CT scan when compared with the second CT scan.
34 In the meantime, he referred the plaintiff to have a CT-guided epidural injection on 11 March 2004 at the Epworth Hospital. The plaintiff reported significant improvement in her pain. She had a second epidural injection on 26 October 2006 with a similar result.
35 However, when Mr Wilde reviewed the plaintiff on 17 October 2006, he obtained a history from her that she was suffering pain in her lower back as a result of the work that she was required to perform which involved a lot of bending and standing.
36 In his first report dated 5 November 2006,[14] Mr Wilde was of the opinion that the plaintiff had suffered an aggravation of lumbar spondylosis with intermittent right leg radiculopathy. He considered that she was fit for light duties work, but not her pre-injury work. He was of the opinion that she should have restrictions imposed upon her, namely, bending, lifting and twisting, and he observed that lifting sanitary bins in the back of trucks would be difficult for her to undertake.
[14] PCB 29-35
37 In his second report dated 3 September 2008,[15] Mr Wilde essentially expressed a similar opinion. The only significant difference is that he described the plaintiff’s prognosis as guarded to poor, and that the plaintiff would probably never recover. He recommended a regime of regular exercise comprising walking, bike riding, exercises, hydrotherapy, swimming, cessation of smoking and loss of weight.
[15] PCB 36-41
38 Mr Wilde referred to the plaintiff suffering right-sided radiculopathy. However, the plaintiff denied ever having suffered any right-sided leg pain. She was adamant that she had only ever suffered left-sided leg pain. Her evidence is seriously at odds with the observations of Mr Wilde, who persistently referred to the plaintiff suffering right-sided leg pain.
39 Mixing up left and right when facing a person in an attempt to identify their left side from the right side is a common enough experience. It is difficult to accept that a clinical practitioner of the rank of Mr Wilde would make such a mistake. However, I prefer the evidence of the plaintiff that Mr Wilde has made a simple error for two reasons: firstly, I accept her evidence that she has never suffered right-sided leg pain; and secondly, all the other medical evidence has other medical examiners identifying the plaintiff's left leg as the source of her radicular pain.
40 The plaintiff continued to see Dr Towie. His last report is dated 18 August 2008. At that stage he was of the opinion that the plaintiff had suffered an injury to an intervertebral disc at L4-5 with an annular bulge compromising the right L5 nerve root within its lateral recess. He was of the opinion that the injury was consistent with the plaintiff's history of injury which occurred in December 2001, and again in November 2003.
41 Dr Towie referred the plaintiff to have an MRI scan which was taken on 4 June 2008.[16] The radiologist was of the opinion that the appearances on the MRI scan showed disc bulges with annular tears at L3-4 and L4-5 which is consistent with the opinion of Dr Towie.
[16] DCB 45
42 Dr Towie was of the opinion that the plaintiff had a capacity for alternative duties which would not aggravate of her lower back injury. He considered that stock work, administrative duties or very light delivery duties would be appropriate. He added that if she undertook driving duties, that there was a likelihood that she would suffer an aggravation of her lower back injury.
43 Dr Towie referred the plaintiff to Dr Thomas, consultant in rehabilitation and pain medicine.[17] The plaintiff saw him on 23 July 2008. He did not obtain a history of the second incident. He found it difficult to identify the exact aetiology of the plaintiff’s lower back pain. However, he rather unhelpfully described the plaintiff as having a work capacity within limitations without delineating what those limitations were.
[17] DCB 26-27
44 Since the untimely death of Dr Towie, the plaintiff has seen Dr Miller, general practitioner, who prescribes her Tramadol for pain relief.
The Other Medical Evidence
45 The plaintiff was referred to Dr Horsley, occupational physician.[18] The plaintiff saw her on 14 October 2009. Dr Horsley obtained an accurate history of the occurrence of both incidents. She was of the opinion that the plaintiff has suffered mechanical back pain with left-sided radicular leg pain and some clinical radicular signs.
[18] PCB 47-53
46 Dr Horsley was of the opinion that the plaintiff should avoid repetitive overreaching; repetitive pushing and pulling; sitting for greater than one hour before changing position; standing for greater than one hour before changing position; prolonged walking for greater than 20 to 30 minutes without a rest break, and driving for greater than 20 to 23 minutes without taking a rest break.
47 Dr Horsley was of the opinion that the plaintiff was permanently unfit for her previous duties with the defendant. She referred to the plaintiff’s difficulties with literacy, and her limitations in undertaking work only in a manual setting. She forecast that the plaintiff could “possibly” work for up to 15 to 20 hours, describing her work capacity as being theoretical.
48 The plaintiff was referred to Mr Khan, orthopaedic surgeon.[19] The plaintiff saw him on 8 February 2010. Mr Khan obtained an accurate history of the occurrence of both incidents. Mr Khan was of the opinion that the plaintiff had suffered disc disruption at L3-4 and L4-5 with left-sided nerve root compromise resulting in left-sided sciatica.
[19] PCB 66a-66h
49 Mr Khan was of the opinion that the plaintiff was totally unfit for her pre-injury duties, and because of her limited education and skills, he did not believe she was a suitable candidate for a retraining or education program. Furthermore, he was essentially of the opinion that the plaintiff was unfit for work.
50 The plaintiff was referred to Mr Doig, orthopaedic surgeon, by the defendant.[20] She saw him on 6 June 2002, that is, after the occurrence of the first incident, but before the occurrence of the second incident. Mr Doig was of the opinion that the plaintiff suffered a severe strain to her lower back. He was uncertain whether the strain had affected the discs in her lower back. He was of the opinion that she had a capacity to go back to her pre-injury work, which indeed is what she did. He was otherwise guarded, essentially being of the opinion that it was a matter of seeing how the plaintiff coped with a return to work.
[20] DCB 43-44
51 The plaintiff was referred to Dr Yong, occupational physician, by the defendant.[21] The plaintiff saw him on 23 April 2008. He did not obtain a history of the second incident. Dr Yong was of the opinion that the plaintiff was suffering from lumbar spondylosis. He considered she had a work capacity, but was not fit for her pre-injury duties. He considered that the imposition of restrictions of a similar kind referred to by Mr Wilde and Dr Horsley were appropriate.
[21] DCB 31-38
52 Dr Yong was asked to review a vocational assessment undertaken by Healthe Work.[22] He considered that the three employment options of product examiner, product assembler and sales assistant were suitable for the plaintiff.
[22] DCB 37-38 and 69-79
53 The plaintiff was referred to Mr Jones, orthopaedic surgeon, by the defendant.[23] The plaintiff saw him on 15 May 2008. He did not obtain a history of the first incident. He was asked to consider the same material which was referred to Dr Yong. He arrived at the same opinion as Dr Yong regarding the plaintiff's capacity to return to suitable employment.
[23] DCB 28-30
54 The plaintiff was referred to Mr Conroy, general surgeon, by the defendant.[24] He examined the plaintiff on 22 May 2007. Mr Conroy did not obtain a history of the first incident. His opinion is of limited use because it was directed to an impairment assessment. However, he was of the opinion that she had aggravated lumbar spondylosis.
[24] DCB 39-42
55 The plaintiff was referred to Mr Shannon, orthopaedic surgeon, by the defendant.[25] He examined the plaintiff on 23 February 2009. He did not obtain a history of the second incident. He was of the opinion that the plaintiff was suffering from degenerative changes at L3-4 and L4-5 without major focal disc prolapse. He found an absent left ankle reflex.
[25] DCB 21-25
56 Mr Shannon was of the opinion that the plaintiff did not have a capacity for her pre-injury duties and that she was fit for light work. He was of the opinion that the plaintiff could work as an assembly worker, product examiner or in the light process work.[26]
[26] DCB 25a-b
57 The only other medical evidence which I was asked to consider was a claim for total and permanent disablement benefits made by the plaintiff. It was supported by a report prepared by Dr Towie dated 12 March 2008,[27] and an assessment of the plaintiff conducted by Dr Carless, physician, on 6 November 2008.
[27] Exhibit 6
58 Dr Towie referred to the plaintiff having suffered an L4-5 disc prolapse, as well as other medical conditions. The assessment of Dr Carless refers to the plaintiff having a moderately severe back condition.
59 Mr Ryan tendered the report prepared by Dr Towie to demonstrate that the plaintiff had other disabling conditions, and not just a disabling lower back condition. He tendered the assessment of Dr Carless as a prior inconsistent statement relevant to when the plaintiff worked and when she stopped work.
60 The medical material relevant to the plaintiff's application for benefits for total and permanent incapacity is of limited relevance to this application. Firstly, they are directed to a private insurer for the purpose of meeting requirements of that private insurer in order to obtain a favourable determination that the plaintiff was entitled to a monetary benefit. Secondly, apart from making reference to the plaintiff’s lower back problem, they really do not amount to useful material relevant to the issues raised by this application.
The Plaintiff's Evidence
61 As a result of the incident of 3 December 2001, the plaintiff was given a couple of days off work by Dr Towie. After the first CT scan was taken she was put off work for eight weeks. Her first attempt to return to work failed and she went off work again.
62 The plaintiff returned to work in October 2002 on a graduated return, and over a couple of months increased to eight hours per day, five days per week doing light work. She was pain-free for about three months. However, in early 2003, the niggles that she was experiencing in her lower back increased as a result of being required to lift and bend. She was put back onto light duties and after a couple of months returned to full time work.
63 Before the second incident of 6 November 2003, the plaintiff was able to cope with her work, although she experienced an occasional niggle. Following the occurrence of that incident, the plaintiff was off work until about January 2004. She experienced significant improvement from the epidurals organised by Mr Wilde and was able to work with restrictions relevant to lifting and bending.
64 However, new management was put into place. The plaintiff was required to undertake heavy work and a full range of duties in a warehouse, including washing bins and nappies, which resulted in a worsening of her lower back pain. The plaintiff stopped working all together in late 2006.[28]
[28] PCB 13-19
65 Mr Ryan cross-examined the plaintiff about when it was that she stopped work. Her evidence on that score was confusing. However, Mr Ryan asked the plaintiff to look at payroll records. The records show that on 30 August 2006, the plaintiff commenced receiving weekly payments of compensation. It was put to her that she stopped work in August 2006 and did not return. She said that if the documents demonstrated what Mr Ryan was putting to her then she would accept that she stopped work in August 2006.
66 During her oral evidence the plaintiff repeatedly said that she could probably do some work some hours per day, but would be unreliable. She said that her condition fluctuates from day to day.[29]
[29] Transcript 17, 73, 74, 95, 111-112
67 Mr Ryan cross-examined the plaintiff regarding her prior medical history submitting that the plaintiff suffered from a number of conditions which were likely to have caused her some impairment of function and were likely to have interfered with her capacity to function daily and in a work setting.
68 True it is that the plaintiff saw Dr Towie for a number of unrelated medical conditions, however, none of them figure in any significant way in any of the medical opinions which were put before me. It occurred to me, like so many people in the community, as the plaintiff advanced in years she suffered varying degrees of ill-health, but not to the extent that it interfered with her capacity to function generally and in a work setting.
69 I reject the submission out of hand that in some way the mere existence of those other medical conditions impact upon the plaintiff's reliance on the impairment of the function of her lower back as producing consequences in terms of pain and suffering and loss of earning capacity.
Which Incident/injury?
70 Mr Ryan did not contend that the plaintiff had not suffered an injury which had caused an impairment of the plaintiff’s lower back which was permanent. Rather, he submitted that the consequences of the impairment did not meet the statutory test for the pain and suffering or loss of earning capacity.
71 Mr Richards submitted the contrary, and relied on what was said in R J Gilbertsons Pty Ltd v Skorsis.[30], particularly the observations made by Buchanan JA that an earlier injury could be serious even though a subsequent injury or aggravation of the same condition was needed to produce an impairment or loss of a body function, and that the later aggravation may also be serious although it would not have caused an impairment or loss of a body function but for the occurrence of the earlier injury.
[30] at 394
72 Therefore, Mr Richards submitted that the injuries suffered by the plaintiff in the first incident and the second incident were capable of satisfying the statutory test.
73 I think the better view in this case is that the plaintiff suffered a significant resolution of the symptoms in her lower back following the first incident, and indeed, she admits as much in a candid fashion in her affidavits.
74 It was not until the second incident occurred that the appearance on the CT scan taken on 9 December 2003 showed evidence of disc prolapses at L3-4 and L4-5. The subsequent CT and MRI scans demonstrated the same abnormalities.
75 Mr Wilde reviewed the CT scan. At the time of review he had the earlier CT scan taken on 11 December 2001, which showed mild bulging at both levels but no prolapses. It is clear enough to me, on reading his analysis of the radiology, that he considered the pathology which was of significance was what he described as small disc bulges/prolapses at L3-4 and L4-5.
76 The conclusion I have reached is that the plaintiff suffered an injury to her lower back as a result of the first incident. It resulted in an impairment of the function of the plaintiff’s lower back, and although the plaintiff described her subsequent problems as niggling pain, that probably constitutes a level of impairment which had the characteristics of being permanent. However, it could not be said that the consequences to the plaintiff between the first incident and the second incident could meet the statutory test for the pain and suffering or loss of earning capacity.
77 It may very well have been the case that there was some disc abnormalities at L3-4 and L4-5 before the occurrence of the second incident, but it was only after the second incident that the disc abnormalities were of significance and identifiable as the cause of the plaintiff’s lower back pain and radicular pain affecting her left leg.
78 The alteration in the course of events for the plaintiff was being dramatic. It is clear that she had increasing difficulty coping with her work, especially when the tasks she was required to perform were altered by the new management. The incidence of pain in her lower back and intermittent left leg pain became a significant feature of the injury as it affected her in her work and her general activities.
79 The foregoing appears to me to be consistent with the opinions of Mr Wilde, and confirmed by the opinions of Dr Towie, Dr Horsley and Mr Khan. Furthermore, the opinions of Mr Doig, Dr Yong, Mr Jones, Mr Conroy, Dr Thomas and Mr Shannon also confirm that the plaintiff suffered an injury to her lower back.
80 The fact that the histories given to a number of medical practitioners does not disclose a history of both incidents does weigh against the plaintiff's credit, however, in the end all of the medical practitioners understood that the plaintiff had suffered an injury to her lower back at the time when they examined her and were able to diagnose the injury. The absence of a description of particular incidents did not impair their ability to undertake that task.
81 In conclusion, I find that the major injury suffered by the plaintiff to her lower back occurred as a result of the second incident.
Serious Injury
Pain and Suffering
82 Following the occurrence of the second incident, the plaintiff’s necessity for medical treatment increased dramatically. The plaintiff required treatment from Dr Towie, and later from Dr Miller, for the purpose of obtaining referral to physiotherapy and to obtain medication to obtain pain-relief.
83 The plaintiff's treatment extended to referral to Mr Wilde and the necessity for two epidural injections which provided her with some reduction in the pain she was experiencing, but not long-lasting reduction.
84 The plaintiff now sees Dr Miller. I accept the plaintiff’s evidence that she is prescribed painkilling medication and takes it when her pain worsens. I also accept the plaintiff’s evidence that her pain levels fluctuate from day to day between being tolerable to intolerable, and depending upon how a day unfolds, her capacity to move with freedom can be seriously restricted.
85 I do not accept the attack made upon the plaintiff by Mr Ryan that the consequences of the impairment of function of her lower back resolved, evidenced by her capacity to work until August 2006. It is abundantly clear from the plaintiff's evidence that she was struggling with that work, finally reaching a point where she could work no longer.
86 I accept the plaintiff’s evidence that in addition to the pain which she suffers in her lower back, she also has intermittent pain in her left leg which more often than not comes on when the pain in her lower back is severe. The pain she experiences interferes with her ability to sleep. It makes her tired, lethargic and irritable. It has interfered with her ability to engage in social and recreational activities.[31]
[31] PCB 24c-24e
87 The plaintiff struck me as being a well-motivated individual who stuck it out in her work with the defendant for as long she was able to. I have no hesitation in accepting her evidence that when she stopped working it was because she was no longer able to work because of the injury to her lower back.
88 In terms of pain and suffering, I find that the plaintiff suffered an injury to her lower back as a result of the second incident. I find that the injury was probably an aggravation of the pre-existing degenerative changes in the plaintiff’s lower back which progressed to the disc abnormalities referred to by Mr Wilde, or alternatively, caused the disc abnormalities.
89 I find that the injury resulting from the second incident has caused an impairment of the function of the plaintiff’s lower back, and that the impairment is permanent.
90 The consequences to the plaintiff bear all the characteristics of consequences which deserve the description “at least very considerable”. She has persistent pain. The pain varies and often worsens. She has intermittent left leg pain. She requires medication to deal with the worsening pain. She is no longer able to engage in social and recreational activities of the breadth which she was given to engage in before she suffered the injury resulting from the second incident.
91 The films shown of the plaintiff are of no consequence insofar as the plaintiff's credit is concerned. They merely show the plaintiff, among other things, driving a car; filling it with petrol at service stations; standing and walking in the street; and otherwise undertaking movements which did not appear to involve anything which conflicted with her orally evidence.
92 Furthermore, the current medical evidence seems to be all one way, and that is, that the plaintiff is no longer fit for her pre-injury duties and is only fit for lighter work with significant restrictions in order for the plaintiff to avoid movements and postures which may provoke an aggravation of the condition of her lower back.
93 It is for the foregoing reasons that I find that the plaintiff has suffered a serious injury. I make that ultimate finding after making a comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Loss of Earning Capacity
94 The sole issue relevant to the plaintiff’s claim for loss of earning capacity is whether she has the capacity to undertake the work referred to in the report of Healthe Work commented upon by Dr Yong and Mr Shannon.[32]
[32] Job descriptions for product examiners, product assemblers and sales assistant referred to at DCB 74-75
95 The opinions of Dr Yong and Mr Shannon are in stark contrast to the opinions of Dr Horsley and Mr Khan. In short, Dr Horsley expressed an opinion on the plaintiff's capacity to undertake work as theoretical, and Mr Khan did not believe the plaintiff would be capable of returning to work in any capacity.
96 I prefer the opinions of Dr Horsley and Mr Khan in concluding that the plaintiff has no capacity to undertake suitable employment.
97 Firstly, the findings I have made of the grade of the disablement suffered by the plaintiff are significantly greater than the opinions expressed by Dr Yong and Mr Shannon. I prefer the opinion of Dr Horsley because she is expert in occupational medicine. Mr Khan, like Dr Horsley, has made a very detailed analysis not only of the organic nature of the plaintiff's injury and its consequences, but also of the plaintiff's capacity to be retrained and rehabilitated given her age, educational background and very limited skills.
98 The plaintiff's educational level can only be described as very poor. Her training and experience in the workplace is very limited. The description given of the work she did was consistent with her being a base labourer. Apart from driving a truck, she was engaged in manual handling almost exclusively when she last worked for the defendant.
99 It must not be forgotten that the plaintiff is now fifty five years of age. It may be, in some situations, that at fifty five years of age some workers are capable of being retrained, rehabilitated and reassigned to work, but I find it an unacceptable proposition given my view of the plaintiff that there is any likelihood of that occurring.[33]
[33] See the definition of "suitable employment" in section 5(1) of the Act
100 Mr Richards made a number of submissions, in the alternative, that if I accepted the opinion of Dr Horsley that the plaintiff could theoretically undertake work, that the plaintiff would inevitably prove a loss of earning capacity of 40 per cent or more.[34]
[34] Transcript 138-139
101 However, the conclusion I have reached is that this is not a claim for loss of earning capacity which depends upon the undertaking of an arithmetic calculation of the plaintiff's capacity for suitable employment for reasons which I have made plain above.
102 Therefore, I find that the consequences to the plaintiff in terms of loss of earning capacity have rendered her permanently unfit for suitable employment. I make that ultimate finding after making a comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Conclusion
103 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
104 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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