Davey v Victorian WorkCover Authority
[2018] VCC 908
•22 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05001
| ROSEMARY DAVEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 May 2018 | |
DATE OF JUDGMENT: | 22 June 2018 | |
CASE MAY BE CITED AS: | Davey v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 908 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to the cervical spine – injury to the right wrist – pain and suffering damages and loss of earning capacity damages – whether the injury occurred in the course of employment – whether the plaintiff’s neck injury was caused as a result of the incident at the workplace – whether the plaintiff satisfies the threshold test for serious injury in respect of loss of earning capacity and pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Victorian WorkCover Authority v Michaels [2009] VSCA 261; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; Reid Stockfeeds Pty Ltd v Lindhe (2008) 176 IR 255; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Jones v Dunkel (1959) 101 CLR 298; Principe v Transport Accident Commission [2016] VSCA 205; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application for serious injury certificate for pain and suffering damages and loss of earning capacity in respect to the injury to the plaintiff’s cervical spine on 20 March 2012 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J F Perry | Michael Faltermaier Lawyers |
| For the Defendant | Mr M F Fleming QC with Ms K M Manning | Wisewould Mahony Lawyers |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 9 November 2016. The plaintiff applies for leave in respect of two injuries received in the one incident on 20 March 2012. The first injury was to the plaintiff’s right wrist. The second injury was to the plaintiff’s cervical spine. Both of these injuries are said to have occurred in the course of the plaintiff’s employment with True Value Solar Pty Ltd (“TVS”), where the plaintiff was employed as a customer care officer.
2 The application in respect of the two injuries requires the plaintiff to satisfy the test set out in s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages in respect of the injury to her right wrist and the injury to her cervical spine. The Court is required to determine the consequences of each of the individual injuries to be satisfied that leave be given in each case.
4 In this case, the defendant disputed that the incident which occurred on 20 March 2012, resulting in any injury to the plaintiff, occurred “in the course of employment”. Mr Fleming, on behalf of the defendant, submitted that the Court had to be satisfied that the injuries to the plaintiff occurred in the course of employment. He stated that even if the Court found in favour of the plaintiff in this originating motion application, that finding did not preclude the defendant from defending any claim for damages on the basis that the injury was not in the course of employment.
5 The following evidence was adduced in the course of the hearing:
·A view was conducted on the first day of the hearing, 28 May 2018.
·The plaintiff gave evidence and was cross-examined.
·The plaintiff’s general practitioner, Dr McIntyre, gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§ The Plaintiff’s Court Book (“PCB”), pages 1 to 17, 17(xiii) to 17(xxiv), 20 to 23, 30 to 37, 43 to 51, 66 to 108 and 114 to 140.
·The defendant tendered the following pages from the Defendant’s Court Book (“DCB”):
§Exhibit 1, DCB pages 1 to 8 and 21 to 120.
6 Mr Fleming, on behalf of the defendant, identified the issues in this application as follows:
(i)The accident involving the plaintiff on 20 March 2012 did not occur in the course of employment;
(ii)The right wrist injury suffered by the plaintiff has resolved and no longer causes the plaintiff any consequences;
(iii)The alleged cervical injury or neck injury to the plaintiff was not caused in the course of the fall she had on 20 March 2012;
(iv)The complaint of Pain Syndrome made by the plaintiff is a psychiatric-based injury and must be disentangled from the physical consequences of the right wrist and neck injury as alleged by the plaintiff.
7 The plaintiff’s credibility was called into question during the course of the proceeding. I have had the opportunity of observing the plaintiff while she was giving evidence and she impressed me as a person who is a frank, realistic and sensible witness. The plaintiff has had a long and successful work career and shows all the signs of making every endeavour to obtain employment, but is simply unable to as a result of her injuries. I note the plaintiff is a recipient of the Disability Support Pension.
The statutory scheme
8 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
9 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 or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(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]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (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) Sub-section (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) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) 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 ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
10 I am required 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 injury to the Plaintiff on 20 March 2012
11 The plaintiff outlines the circumstances of the injury to her right wrist and subsequently, her neck, in the following terms:
“The injury occurred at approximately 9.20 p.m. as I was walking from my office to my car which was parked nearby. I was on my way home from work. It was dark, and there was no artificial lighting in the area. I crossed the grassed area in which trees were planted and in which rocks were positioned as a landscaping feature. Because it was so dark I caught my left foot on one of these rocks. I lost my balance and my right foot went down on a rock and I slipped backwards and rolled and fell onto my right hand side. I fell very heavily.”[3]
[3]PCB 1
12 The plaintiff also noted in that same affidavit that she had fractured her right wrist and was taken to the Knox Hospital for surgery and repair. The plaintiff subsequently became aware of symptoms in her neck and right shoulder, which resulted in a two-level anterior cervical decompression and fusion at C5-6 and C6-7 on 27 May 2013.
Did the Plaintiff’s injuries arise out of or in the course of employment with TVS?
13 In this proceeding, the first critical issue to be determined is whether or not the incident which resulted in injury to the plaintiff arose out of or in the course of her employment with TVS.
14 On 15 March 2018, Mr Fleming, for the defendant, submitted that if the Court finds the injury was caused in the course of the employment, then the defendant is not estopped from running the same defence in the damages trial. As this proceeding is interlocutory, there is no issue estoppel applicable to the defendant.
15 On the other hand, if I find that the injuries did not occur in the course of the plaintiff’s employment with TVS, then the plaintiff’s application for serious injury is to be dismissed. Unless the plaintiff successfully appeals my decision, she is barred from bringing proceedings against her employer to recover damages for the injuries to her wrist and neck.
16 The evidence on the issue of “in the course of employment” in this case was given by seven witnesses. Each of the seven witnesses have sworn affidavits prior to the hearing commencing. Six of those witnesses were cross-examined in the course of the hearing. The parties agreed and requested that the Court attend for a view at the scene of the plaintiff’s injury. That view took place on the first day of the hearing, on 28 May 2018.
17 The defendant relied on the affidavit of Kiro Vrtanoski sworn on 27 October 2017. Mr Vrtanoski was not working at TVS at the time of the plaintiff’s injury.
18 Mr Vrtanoski described the plaintiff’s duties with TVS as follows:
“The Applicant’s duties with the Respondent as a Sales Consultant involved answering inbound sales inquiries, promoting sales and upgrading solutions to new and existing customers, data entry and handling the outbound cold calls. Prior to the alleged incident the Applicant had transferred into the Customer Care Department and her duties involved interacting with customers by phone, resolving customer enquiries, achieving performance targets relating to customer service quality, working call centre based metrics adherence, data entry, administrative duties and refund processing. There was no requirement for her to travel as part of her employment, other than between her place of residence and Unit 8, 170-180 Rooks Road, Vermont.”[4]
[4]DCB 2
19 Mr Vrtanoski also stated the area where the plaintiff was injured was not part of the work area or the premises leased by TVS. The evidence in this case is the property at 170-180 Rooks Road, Vermont, was not leased by TVS until 1 January 2012, some two to three months after the plaintiff was injured.[5]
[5]DCB 69-112
20 The evidence from the witnesses in this case supports a finding on the balance of probabilities that the garden area where the plaintiff was injured was adjacent to the designated TVS parking area and was under the care and control of TVS. The TVS employees walked across this garden area to access the Stairway Church car park on the opposite side of Rooks Road from the TVS premises. The plaintiff referred to the area as a path.[6]
[6]Transcript (“T”) 102
21 Ms Nicole Lunin referred to the route taken by herself and the plaintiff as “walking in a direct line”.[7] Benjamin Titshall described the course of travel across the nature strip as “a natural thing to do”.[8] Jason Bone described the area as “a well-worn track and we were all cutting through there”.[9]
[7]T141
[8]T151
[9]T158
22 I accept that the area across the grass garden with the ornamental rocks was part of the premises under the control of TVS. It was part of the garden area that was not fenced off from the public footpath area to Rooks Road. I also find that it was commonly used by TVS staff to access the car park across Rooks Road at the Stairway Church car park. I further accept that the management of TVS knew of the practice of the TVS staff taking the “short cut” across the garden area to access the car park at the Stairway Church.
23 The plaintiff described the circumstances of her injury in her first affidavit. I have previously referred to this in these Reasons. She stated:
“The injury occurred at approximately 9.20 p.m. as I was walking from my office to my car which was parked nearby. I was on my way home from work. It was dark, and there was no artificial lighting in the area. I crossed the grassed area in which trees were planted and in which rocks were positioned as a landscaping feature. Because it was so dark I caught my left foot on one of these rocks. I lost my balance and my right foot went down on a rock and I slipped backwards and rolled and fell onto my right hand side. I fell very heavily.”[10]
[10]PCB 1 at paragraph [5]
24 I accept that the plaintiff fell and injured herself in an area of the premises that was under the care and control of her employer, TVS. I also find that the employer knew the plaintiff and other staff members traversed this area of the premises when coming to and leaving from work.
25 The plaintiff gave evidence that she moved her vehicle from the Stairway Church car park at the evening meal break which occurred at 5.00pm to 6.00pm. This occurred on the day of her injury. The reason the plaintiff moved her vehicle was that when she was to finish work it was dark and not safe to go over to the Stairway Church car park. The plaintiff gave evidence that she had been instructed to move her car from the church car park to car spaces on the TVS premises, if they were available. This instruction was given to all staff who worked late and would have to go to the church car park in the dark.[11]
[11]PCB 17(xiv)
26 On the day of her injury, the plaintiff moved her vehicle from the church car park to an area described in the evidence as a “disused bus stop”. At the view conducted on the first day of the hearing, the plaintiff pointed out to all the parties, and myself, exactly where she had parked her vehicle prior to the accident. The area where the plaintiff parked her car was an old entrance/driveway of an abandoned factory. It was not a disused bus stop. The driveway area was on the other side of Rooks Road and almost directly opposite the TVS building and the car park area at TVS. It was close to the garden area where the plaintiff fell and injured herself.
27 The plaintiff’s evidence is that she moved her car from the Stairway Church car park and was unable to find a vacant car park in the designated TVS car park, nor the area described as being Number 4. She stated she then drove out of the factory complex area and parked over the road in the “disused bus stop” as it was closest to her work. The plaintiff said that she had seen other TVS workers park in that same area prior to the day of her accident.
28 The plaintiff also gave evidence that she and other TVS staff had been given a token or card by TVS to display on their car when they parked in the Stairway Church car park. Mr Brett Fraser stated that no card was ever printed for TVS staff to place on their cars.[12] Mr Fraser denied that staff were encouraged to park in the Stairway Church car park.[13] Mr Fraser denied that the staff were told to bring their cars closer to the TVS building after 6.00pm for safety reasons.[14]
[12]T168
[13]T167
[14]T170
29 I accept the evidence of the plaintiff, Nicole Lunin[15] and Jason Bone,[16] that TVS staff were instructed to park their cars in the Stairway Church car park. I also accept that TVS staff, including the plaintiff, were instructed or encouraged to move their vehicles from the Stairway Church car park to be closer to the TVS building if working after dark, and that was to be done for safety reasons.
[15]T142 and T145
[16]T154
30 At the time and place where the plaintiff was injured, she was following the instructions and work practices of her employer, TVS, when going to and from the work premises. I reject Mr Fleming’s submission that the plaintiff was not acting in the course of her employment immediately when she walked out the front of the TVS building.
31 The plaintiff gave evidence that she had a work phone with her after she had finished work at TVS on 20 March 2012. She stated as follows:
Q:“So there were no further work duties for you that night; you were able to go home and do whatever you wanted to do?---
A:I did have a work phone that I would check when I got home, that I might have to call back people from the sales department for sales so I had two phones, personal and work, and so I checked that.
Q: In the third of your affidavits at paragraph 3 you said.”
HIS HONOUR:
Q: “What page, Mr Fleming?”
MR FLEMING:
Q: “(xvii).
I call it affidavit 3, Ms Davey. It’s dated 13 March 2018, 17(xiii). You said in that affidavit you had sustained your injuries, ‘when I was walking from the employer’s work premises to where I parked my car after I finished work’. So you had finished your work for the day, hadn’t you?---
A: Yes. I had finished the work in customer care.
Q:You had finished. You had no further work duties to carry out that day; you were able to go home, watch television and do whatever you wanted to did [scil do]. That's correct, isn’t it?---
A:Yes. I suppose so, yes.”[17]
[17]T86, Line (“L”) 4–23
32 In the weeks before her accident, the plaintiff had changed her duties from full-time sales staff at TVS to customer care role, working five days a fortnight. Even though the plaintiff’s work duties had changed, she continued to have the work phone and take calls from TVS clients.
33 In her evidence, the plaintiff stated:
Q:“It was suggested that you had no further work duties that evening and I think you agreed with that. Correct?---
A:Yes.
Q:You made some reference to a phone?---
A:Yes.
Q:What were you talking about?---
A:Even though I had dropped my hours and had gone into a casual position in customer care from the sales department two weeks prior, I still had my phone, my mobile phone, from the sales department which had potential sales clients in it and existing salespeople that I had sold solar to, who would ring me regarding either purchasing or their installation.
Q:When might they do that; ring you, I mean?---
A:Any time.
Q:Any time?---
A:Any time.
Q:Did you ever receive calls when you got home?---
A:Yes, I did.
Q:Was that a frequent occurrence ?---
A:Yes.
Q:Frequent?---
A:Frequent.”
HIS HONOUR:
Q: “This was when you were on the sales team?---
A:Yes.
Q:Did you have any when you were down at customer care?---
A:Yes. I did take it with me.
Q:No, did you have any phone calls when you were in customer care?---
A:Yes, I did.
Q:Were you asked to retain that phone by your employers as a run-off from your sales work?---
A:No, I was not asked. That was my choice.
Q: You chose to do that?---
A: Yes, I did.”[18]
[18]T119, L1 – T120, L6
34 I accept the plaintiff’s evidence that she did have the TVS phone with her on the night of her accident. I accept that she took the phone with her to receive calls from TVS customers, as she had done in the past. The plaintiff readily stated taking the phone home was her choice and not a work instruction. Nevertheless, at the time of her accident, the plaintiff did have her TVS phone with her and was able to field customer enquiries while not physically at the TVS premises at 170-180 Rooks Road, Vermont. Mr Fraser described the TVS business as a “telesales operation”.[19] The TVS business was mainly conducted over telephones. When the plaintiff took her TVS work phone with her she was making herself available to TVS clients to conduct business either in the sales or customer care area. I find that the plaintiff was acting in the course of her employment when leaving the work premises at 170-180 Rooks Road, Vermont on 20 March 2012, as she still had the capacity and inclination to field TVS calls if required.
[19]T170
35 The finding that the plaintiff was injured in the course of her employment with TVS is because her injury was suffered in the course of the activities done as part of the work which the plaintiff was engaged to perform. The plaintiff was required to park her vehicle in the Stairway Church car park and not in the factory complex parking area. After-hours parking was to be done as close as possible to the TVS building for safety reasons. The plaintiff was encouraged during her evening break to move her vehicle from the Stairway Church car park to a closer car park. The plaintiff was unable to find a car park at the factory complex and parked her vehicle as close as she could to her work premises.
36 The plaintiff was injured while crossing the TVS premises’ car park and adjoining garden area towards her car, which was across Rooks Road in Vermont.
37 At the time of her injury, the plaintiff had a TVS work phone with her. She had used this phone to field or take customer calls after work hours in the past. The TVS business was a telesales operation and relied on extended-hours phone access between staff and the customers. While the plaintiff was not using the phone at the time of the accident, this fact is a further matter to be taken into account when deciding whether the plaintiff was injured in the course of activities done as part of her work for TVS.
38 In making the finding that the plaintiff was injured in the course of her employment with TVS, I have taken into account the judicial pronouncements on the law relating to “in the course of employment”.
39 The starting point is:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties.”[20]
[20]Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133
40 In Victorian WorkCover Authority v Michaels,[21] the Court of Appeal considered the case where an accountancy lecturer was injured in a book shop while buying books for a lecturing course he was to conduct in the future. The work contract had not commenced and the injury did not occur at or near the work premises. The Court stated, at paragraphs 15 and 16, as follows:
“In the present case, the injury was suffered seven days before the respondent was to commence his teaching duties. Counsel for the appellant relied much on this interval, referring to the statement in Henderson’s case to the effect that an entitlement may be incidental to the performance of work where the accident arises shortly before the beginning of the actual work. They contended that the requirement of temporal proximity to the commencement of duties expressed in the words ‘shortly before the beginning of actual work’ was such that an accident could not be said to be suffered in the course of employment unless it immediately preceded the commencement of the work.
We are not persuaded that the expression “in the course of his employment” should be considered in such a rigid way. Although it is very much encrusted with decades of judicial exposition, it must be to the words of the statute that we turn when considering a novel situation. We accept that, in general, the greater the interval between the injury and the commencement of work, the greater the employee’s difficulty in demonstrating the required relationship. But this is an essentially factual issue which must be considered in all the circumstances. These circumstances will include the nature of the employment and the activity undertaken at the time of the injury and its relationship to the work which the employee was engaged to perform. What must be shown is that the injury was suffered in the course of activities done as part of the work which the employee was engaged to perform.”[22]
(Footnotes omitted.)
[21][2009] VSCA 261
[22]Victorian WorkCover Authority v Michaels (ibid) at paragraphs [15]-[16]
41 Kyrou J, in Reid Stockfeeds Pty Ltd v Lindhe,[23] in considering the issue of “in the course of employment”, made the following statements at paragraphs [15] to [19] of that authority:
[23](2008) 176 IR 255
“The words ‘in the course of’ employment include the work or service that the employee is employed to perform and anything which is incidental to the work or service. There need not be a causal connection between the employment (or its incidents) and the injury. In Henderson v Commissioner of Railways (WA), Dixon J stated:
‘To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work … Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.’
I will refer to the above quoted principle as ‘the Henderson principle’. In Humphrey Earl Ltd v Speechley, Dixon J repeated the key elements of the Henderson principle without the word ‘actual’ in the final line.
Many cases have applied the Henderson principle, with some retaining the word ‘actual’, and others omitting it. Although not all of the cases have used the same language as Dixon J in Henderson and Speechley, they have all required that there be a nexus (which has sometimes been very slight indeed) between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service. The outcomes of the cases have varied and have largely turned on their facts. A trend, however, can be discerned towards the adoption of a more liberal approach to whether something is ‘in the course of’ employment. It is only possible to reconcile the application of the Henderson principle with decisions in many modern cases by a strained interpretation of the words ‘in order to carry out his actual duties’.
One area where the application of the Henderson principle — particularly the words ‘in order to carry out his actual duties’ — has led to difficulties is where the injury occurred in the course of an activity that took place during an interval or interlude, such as where the activity took place outside the normal workplace or outside the normal working hours (such as a lunch break). In Hatzimanolis v ANI Corporation Ltd, the High Court authoritatively stated the principle to be applied in interval or interlude cases. The statement of the principle is set out in the quotation from the Magistrate’s decision in paragraph of this judgment.
The High Court in Hatzimanolis did not reformulate the legal principles that apply where there is no interval or interlude. In particular, the High Court did not decide that in cases that do not involve an interval or interlude, the mere fact that an injury occurs during the prescribed work hours and at the specified place of employment is sufficient (irrespective of whether the activity that resulted in the injury was part of the work the employee was employed to perform or incidental to it) to warrant a finding that the injury occurred in the course of employment. The Henderson principle continues to apply in cases that do not involve an interval or interlude.”[24]
[24](Supra) at paragraphs [15]-[19]
42 In the Employer’s Claim Form, at Question 8, the following entry was made by the witness, Jade Smith:
“[I]njury happened due to poor lighting out front of building. Rosemary was walking to the remote car park that we instruct employees to park in. She walked over grassed area rather than walking up onto the footpath as it is quicker. Not sure if we are liable or if the landlord is?”[25]
[25]DCB 68
43 Ms Smith, the author of the Employer’s Claim Form, swore an affidavit dated 9 April 2018. In that affidavit, she stated as follows:
“Employees were encouraged by management to move their cars if they were working late for safety reasons. However, to my knowledge, there was no specific instruction from True Value Solar Pty Ltd to its employees to move their cars closer to the premises if they were working after 6:00pm. The Sales Team were typically quite busy towards the end of each month and there would be upwards of twenty Sales Consultants working back late at that time. I believe that not all of these employees would have moved their cars. It was a personal choice.
There was also no specific instruction, that I can recall, as to where employees were to move their cars to, if they were working late. There was certainly no instruction for employees to move their cars to the discussed bus stop. They were free to park wherever they wished. I am not personally aware that there was a bus stop in the street. If there was, then the option of the disused bus stop as a nearby place to park after dark would have been the Plaintiff’s choice and made for her own purposes.
…
I completed the Employer Claim Form dated 26 March 2012. In that claim form I stated ‘Injury happened due to poor lighting out front of building. Rosemary was walking to the remote car park that we instruct employees to park in. She walked over the grassed area rather than walking up onto the footpath as it is quicker. Not sure if we are liable or the landlord is.’ In the claim form the ‘remote car park’ I was referring to was the church car park, not the disused bus stop. I have used the word ‘instruct’, however on reflection I do not now believe that is the correct work. Staff were encouraged to park in the church carpark if there were no car spaces near the building. They were not specifically instructed to park there.”[26]
[26]DCB 4-5 at paragraphs [9]-[10] and [13]
44 Ms Smith, in re-examination by counsel for the defendant, relating to the issue of instruction or encouragement, stated as follows:
“… I don't know and that was the reason why I think we had written it in the claim form. We weren't sure whether The Plaintiff’s background it was a liability for the employer or the landlord and that was based on a discussion that I had had with the insurer.”[27]
[27]T64, L29 – T65, L3
45 I find that Ms Smith filled in this Employer’s Claim Form after conversations with the worker’s compensation insurer and other people within the business of TVS. When she used the word “instruct” in the Claim Form, that was an informed use of the word. The entry in the Claim Form by Ms Smith was made contemporaneously with the time of the accident affecting the plaintiff, and was made at a time when the full ramifications of the accident were not to be known to anyone. I find that it was clear that the employees were instructed to park in the churchyard car park.
46 In applying the law as set out above and the analysis of the evidence in this case, there is nexus between the plaintiff’s injury and her employment with TVS in that she was performing tasks incidental to her employment, and hence the injury occurred to the plaintiff in the course of her employment with TVS.
The Plaintiff’s background
47 The plaintiff was born in 1959 and is now fifty-eight years old.
48 The plaintiff was previously married. She has one child, aged twenty-seven. Her son has some ongoing health issues and she remains in contact with him.
49 The plaintiff was educated to Year 12 in Hobart.[28] Between 1978 and 1980, the plaintiff trained to be a registered nurse. From 1983 to 1985, the plaintiff worked as a nurse.[29] In 1985, the plaintiff changed her form of employment to working as a dealer at the Wrest Point Casino in Hobart. She was promoted in her employment within Wrest Point Casino to ultimately being a workplace reform program coordinator. In 1994, the plaintiff changed her employment to Crown Casino. She continued in the role as a trainer at Crown Casino until 1997.
[28]PCB 8 at paragraph [3]
[29]PCB 9
50 Since 1998, the plaintiff has worked as a masseuse, both in a full-time and part-time capacity. The plaintiff continued working as a masseuse until late 2016, but has not worked in that capacity since that time.[30]
[30]PCB 2 at paragraph [6]
51 Between 2006 and 2009, the plaintiff worked as a dance instructor. In 2011, she commenced her employment with TVS in this case.
52 The plaintiff had surgery on her right wrist on 21 March 2012, the day after the accident concerned in this case. By November 2012, the plaintiff had returned to work and had increased her time to full-time hours.
53 The plaintiff continued to have increasing symptoms in her neck. On 27 May 2013, the plaintiff had a two-level anterior cervical decompression and fusion at C5-6 and C6-7. In June 2013, the plaintiff returned to work part time, four hours per day. The plaintiff increased her hours to full-time hours in July 2013. By March 2014, the plaintiff was having difficulty working full time. In April 2014, her hours were reduced to sixteen hours per week. In May 2014, the plaintiff was offered a redundancy package by TVS and she returned to Tasmania to live.
54 In the period of June 2014 until August 2015, the plaintiff worked as a sales representative with Wyndham Resort Seven Mile Beach.[31]
[31]PCB 9 at paragraph [5]
55 By October 2016, the plaintiff had ceased all employment. She was unable to continue with her massage business.
Medical treatment following an injury to the right wrist
56 Immediately after the accident on 20 March 2012, the plaintiff was taken home by a fellow worker from TVS. She was then taken from home to the Knox Hospital. The plaintiff was admitted to Knox Hospital on 20 March 2012.
57 On 21 March 2012, Mr David Booth, orthopaedic surgeon, operated on the plaintiff’s right wrist. The operation required bone grafts and plating to ensure the bones knitted in the plaintiff’s right wrist.[32] The plaintiff was then referred to Melbourne Hand Therapy for treatment.
[32]PCB 90
58 The plaintiff has attended general practitioner, Dr Tiffane McIntyre, since the time of her injury on 20 March 2012. Dr McIntrye noted, in May 2012, that the plaintiff was unable to drive and was struggling with wrist pain, stiffness and neck pain.[33]
[33]PCB 43
59 On 30 July 2012, the plaintiff had a day operation to remove the volar locking plate and undergo a median nerve release, known as a carpal tunnel operation. The operating surgeon on that occasion was Mr Peter Maloney.[34] The plaintiff had been complaining of pain going up her arm to her right shoulder. Mr Maloney referred the plaintiff to a physiotherapist for her right shoulder complaints.[35]
[34]PCB 75
[35]PCB 75
60 The plaintiff continued to receive physiotherapy treatment for her right arm and right shoulder pain and symptoms. In early 2013, the physiotherapist referred the plaintiff for an MRI scan of her neck. The plaintiff was then referred to Mr Myron Rogers, neurosurgeon, by her general practitioner. Mr Rogers reported that the MRI scan of the plaintiff’s cervical spine at the levels of C5-6 and C6-7 indicated there was severe bilateral foraminal narrowing. On 27 May 2013, Mr Rogers performed the operation of a two-level spinal cord and nerve decompression with inter-body grafting (cornerstone cages and bone substitute).[36]
[36]PCB 83
61 On 1 May 2017, the plaintiff underwent a left carpal tunnel release by Mr Peter Maloney.[37] This operation is not relevant or part of the application before the Court.
[37]PCB 11
62 The defendant relied on the fact that the plaintiff did not make any complaint in her Worker’s Compensation Claim Form about neck pain as a result of the accident on 20 March 2012. The plaintiff’s evidence was that she had experienced pain, which Mr Maloney described as going from her wrist, up her arm and into her right shoulder. The pain also extended into her right chest wall. The evidence from the plaintiff was that she had been told by her surgeon, Mr Booth, that the pain would manifest itself by going up her arm. The plaintiff accepted that advice from her surgeon. She continued to see her general practitioner, Dr McIntyre, who gave evidence that when she saw the plaintiff on 7 June 2012, while she did not specifically refer to neck or cervical spine discomfort, the plaintiff did give a history of symptoms that the doctor would describe as radiating from her cervical spine at that time.[38]
[38]T130
63 It is understandable that the plaintiff may have thought that the pain in her right shoulder and neck region was referred from her right wrist in the early stages of her recuperation from the wrist injury. It is clear from the evidence of the medical practitioners that the plaintiff’s symptoms were ultimately being referred from her neck down her right arm.[39]
[39]T138
64 It is to be noted that the first direct record by Dr McIntyre of a neck complaint from the plaintiff was made on 21 February 2013.[40] It was shortly after that complaint that Dr McIntyre referred the plaintiff to Mr Rogers and the consequent surgery. Dr McIntyre stated that the massage work performed by the plaintiff would not be the cause of her neck injury. She refuted that proposition when it was put to her in cross-examination.[41] Dr McIntyre noted, however, that the plaintiff’s right wrist had recovered sufficiently for her to continue with her massage work by December 2012.[42] I accept the plaintiff’s evidence that her neck symptoms returned approximately eighteen months after her surgery to the neck in May 2013.[43] The plaintiff underwent an MRI scan on 20 July 2015 at the direction of Mr Rogers. Mr Rogers noted a flattening of the right existing C7 root secondary to large right uncal osteophytes at C6-7.[44]
[40]T131
[41]T137
[42]T139
[43]T115
[44]PCB 87
65 The plaintiff gave evidence that she lies flat in bed with a pillow under her right arm to relieve her pain and heaviness in her right arm.[45]
[45]T125
66 I accept that the plaintiff has a very considerable disability as a result of the neck injury and pain resulting from it, which is now referred down her right arm through the right shoulder.
Medical opinions
Dr Tiffane McIntyre, General Practitioner
67 Dr McIntyre prepared two reports dated 5 March 2013 and 9 August 2017, in respect of this matter. Dr McIntyre also gave evidence, and was cross-examined about the plaintiff’s condition and complaints.
68 In her report dated 9 August 2017, Dr McIntyre stated:
“She had been diagnosed with ‘Chronic Pain Syndrome’ due to her ongoing neck and arm pain and associated symptoms that had developed as a result of this initiated by her original injury in March 2012.
She had ongoing headaches, neck pain, numbness into arms and hands.”[46]
[46]PCB 44
69 Dr McIntyre’s evidence was that the plaintiff had an organic basis for these complaints of pain from her neck into her arms, and her headaches, which she described as occipital headaches.
70 Dr McIntyre prescribed the following medication for the plaintiff:
“…
Gabapentin 300 mg daily
Endep (Amitryptyline (sic)) 25 mg daily
Panadeine forte 4 tabs daily
Zoloft (Sertraline) 75 mg daily
Diazepam 5,mg prn
Panadol osteo 6 tabs daily.”[47]
[47]PCB 44
Dr Paivi Bakker, General Practitioner
71 Dr Paivi Bakker was the plaintiff’s general practitioner when she resided in Hobart. Dr Bakker had commenced treating the plaintiff on 27 May 2014. Dr Bakker referred the plaintiff to Dr Hilton Francis, a pain specialist. This referral occurred in July 2015. Dr Bakker prescribed the medications of Endep, Panadeine Forte, Gabapentin and Zoloft to try and manage the plaintiff’s symptoms. The effect of Dr Bakker’s evidence is that he is part of a continuum of medical treatment that the plaintiff had been undergoing since her injury in March 2012. Dr Bakker noted that the plaintiff had suffered from Depression as a secondary result of the physical injury to her wrist and neck.
Mr Myron Rogers, Neurosurgeon
72 In his report dated 20 November 2017, Mr Myron Rogers diagnosed the plaintiff as suffering from a right C7 radiculopathy. Mr Rogers noted that there was some improvement in the symptomatic right C7 radiculopathy after the operation which was conducted in May 2013.[48]
[48]PCB 81–82
Mr David Booth, Orthopaedic Surgeon
73 Mr David Booth was the surgeon who operated on the plaintiff’s right wrist on 21 March 2012.[49] Mr Booth noted that, at that time, the plaintiff did not make any complaint about her neck.[50] The defendant relied on this lack of complaint by the plaintiff concerning her neck symptoms on the day of the operation for her right wrist. The plaintiff had a Colles fracture repair to her right wrist on 21 March 2012.
[49]PCB 90–92
[50]PCB 91
Mr Hilton Francis, Pain Specialist and Consultant Rheumatologist
74 The plaintiff had been referred to Mr Hilton Francis in September 2015. He had a history from the plaintiff that she had fractured her right forearm and injured her neck.
75 In his second report, dated 8 September 2016, Mr Francis noted as follows:
“The diagnosis in this lady is residual right arm symptoms associated with fracture from carpal tunnel syndrome and low grade CRPS affecting the shoulder.
It is associated with a fatiguing out during the day. She has also had issues with her neck requiring surgery. She still has residual neck pain, pain radiating to her arms and cervicogenic headache.
She has gone on and developed secondary issues with sleep disturbance, depression and centralised pain features consistent with low grade fibromyalgia.”[51]
[51]PCB 36
76 Mr Francis’s opinion, at that stage, was that the plaintiff had little likelihood of returning to substantive work in the future.[52]
[52]PCB 37
Mr David Brownbill, Neurosurgeon
77 The plaintiff was referred to Mr Brownbill for medico-legal reporting in this case. In his report dated 9 August 2017, Mr Brownbill took a very comprehensive history of the plaintiff’s physical injuries, both from the past, and relevant to this application. Mr Brownbill noted as follows:
“Noting that she did not have any previous neck pain with the onset of pain with radiation after the described fall with continuing pain and the radiologically demonstrated changes I consider this lady in that fall sustained aggravation of cervical spine degenerative changes giving rise to nerve root compression with neck pain and right radiating arm pain.”[53]
[53]PCB 50
78 Mr Brownbill went on to state that the neck pain will continue without untoward neurological sequelae.[54] His opinion was that the plaintiff’s neck injury and neck pain was sustained in the fall of March 2012.[55] Mr Brownbill went on to say that the plaintiff may have had some capacity for work on a graded return to work, avoiding any heavy lifting or holding her neck in a fixed position. He then stated:
“… It is not certain that she would be able to continue with any such employment in an ongoing or reliable fashion.”[56]
[54]PCB 50
[55]PCB 51
[56]PCB 51
Mr Peter Maloney, Surgeon
79 Mr Peter Maloney has performed a right and left hand carpal tunnel release for the plaintiff. The left-hand-side operation was performed on 1 May 2017. This is not part of the application by the plaintiff in this case.
80 In his report dated 10 November 2017, Mr Maloney indicated that it may be appropriate for the plaintiff to have a further surgical release for the carpal tunnel on her right side to provide some relief for the symptoms indicated in the nerve study.[57]
[57]PCB 76
Dr Robyn Horsley, Occupational Physician
81 The plaintiff was sent to Dr Robyn Horsley for medico-legal reporting and review. Dr Horsley prepared a report dated 5 February 2018 in respect of this application. Dr Horsley confirmed that the plaintiff’s current medication was:
§“Zoloft - 75mg per day;
§Panadeine Forte - two tablets / twice per day;
§Endep 20mg - two tablets per night;
§Gabapentin 300mg - two to three tablets per week;
§Mobic - one tablet on an ‘as needs’ basis, averaging once per week;
§Valium prescribed in February 2017 by her GP for anxiety - 5mg - two to three tablets per week;
§Intermittent Panadol.”[58]
[58]PCB 94
82 In Dr Horsley’s opinion, there was no evidence of Complex Regional Pain Syndrome on the day of her examination.[59] Dr Horsley gave her opinion as follows:
“I believe that this fall has been a significant contributory factor, on a background of pre-existing degenerative change in the cervical spine. She sustained a fracture of the right wrist and has ongoing sequelae. She developed complex regional pain syndrome. On history, she does still have intermittent symptoms of CRPS, but there was no evidence of CRPS on clinical assessment today. She presents with a chronic pain syndrome and considerable disability.”[60]
[59]PCB 99
[60]PCB 103
83 Dr Horsley went on to state that the plaintiff has come to the end of her working life as a result of the injury to her neck and resultant ongoing cervicogenic headaches.[61]
[61]PCB 104
The Defendant’s medical opinions
Mr Ian Jones, Orthopaedic Surgeon
84 Mr Ian Jones prepared two reports dated 8 September 2016 and 14 August 2017. In his first report, Mr Jones gave the opinion as follows:
“This patient’s neck complaint would preclude her from engaging in any physical employment, particularly that involving pulling, pushing or lifting. Her right wrist condition would similarly restrict her in terms of heavy gripping or lifting using her dominant right hand. In spite of these restrictions, the patient, I believe, does have a capacity to undertake clerical work, at least on a restricted duty basis initially. Depending on her progress, it is possible this patient may be able to resume full time clerical work.”[62]
[62]DCB 30
85 In his second report, Mr Jones stated as follows:
“… The restrictions and symptoms in this patient’s right wrist are consistent with the injury sustained and the treatment undertaken. I can find no evidence of any relationship between her neck complaint, right shoulder condition and the recent surgery to her left hand as being related to the fall on 20 March 2012.”[63]
[63]DCB 35
Dr Michael Baynes, Occupational Physician
86 Dr Baynes prepared two reports dated 8 September 2016 and 12 September 2017. In his first report, Dr Baynes noted:
“Ms Davey is suffering from chronic pain affecting the right neck, shoulder and upper trunk as well as referred pain into the right arm. This is associated initially with a comminuted fracture of the right wrist undergoing an open reduction with secondary development of carpal tunnel syndrome requiring an open carpal tunnel surgical procedure which was effective.”[64]
[64]DCB 40
87 Mr Baynes was of the opinion, at that time, that the plaintiff was suited for work in a supervisory or management capacity.[65]
[65]DCB 41
88 In his 2017 report, Mr Baynes noted the medications the plaintiff was taking as being Panadeine Forte, four a day; Gabapentin, three to four times per week, and Endep at night.[66] He noted that the plaintiff:
“Ms Davey continues to suffer chronic pain affecting the right side of the neck, shoulder and right lateral trunk. [S]he continues to suffer pain over the right wrist with intermittent swelling associated with a comminuted wrist fracture undergoing an open reduction.”[67]
[66]DCB 45
[67]DCB 46-47
89 Mr Baynes went on to say that the plaintiff has a capacity to return to full-time work as long as she could rotate her tasks and be self-paced. He stated:
“I believe the worker would need to return to work on a part-time basis working around 25hr per week with a progressive increased to full-time hours with work hardening. This is due to the amount of time off work and recovery from planned surgery on the right wrist.”[68]
Ansett Australia Ltd v Taylor[69]
[68]DCB 47
[69][2006] VSCA 171
90 The plaintiff relied on the fact that the defendant had accepted and paid for the surgery to the plaintiff’s neck and subsequent treatment. The plaintiff relied upon such payments to refute the defendant’s position that the neck injury was not related to the accident of 20 March 2012. There was no evidence from the defendant’s insurers to explain why any such payments were made in this case.
91 I do not accept that payment by a worker’s compensation insurer for various treatments for injuries to the plaintiff amounts to a concession or admission that the employer accepts the injury is part of the work.
92 The Court of Appeal, in the case of Sednaoui v Amac Corrosion Protection Pty Ltd[70] set out that such payments did not amount to a concession by the defendant. Further, the Court of Appeal noted that, at best, it remained a Jones v Dunkel[71] type argument, in that the judge may be prepared to infer that such a witness would not have assisted the case of the employer.
[70][2017] VSCA 66
[71](1959) 101 CLR 298
93 The Court of Appeal went on to say:
“…This was a case that far more readily lent itself to being decided by reference to the evidence of the witnesses who were called and cross-examined before the judge.”[72]
[72]Sednaoui v Amac Corrosion Protection Pty Ltd (ibid) at paragraph [64]
94 Those words of wisdom from the Court of Appeal apply directly to this case and the appropriate way to decide these cases is to have regard to the evidence in each particular case, rather than a blanket approach to admissions concerning payments by insurers for medical treatment or operations. The Court of Appeal in Sednaoui looked at the application of the Ansett Australia Ltd v Taylor[73] principle, as it is called, and stated as follows:
[73][2006] VSCA 171
“Before leaving our analysis, we should observe that during the course of oral argument it appeared to be submitted by the applicant that Ansett v Taylor was to be understood as stating, as authoritative propositions of law, that:
(a) the acceptance of a claim form (and the payment of compensation subsequent thereto) was an admission that should ordinarily (and, perhaps, in all but exceptional circumstances) be regarded as very significant; and
(b) such an admission was to be regarded as very significant, albeit not conclusive, because an employer, in a particular case, might be able to satisfactorily explain its conduct.
Ansett v Taylor is not authority for any such propositions of law. The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.
Similarly, while an employer/respondent may, in a particular case, be able to explain the circumstances of a particular admission so as to reduce the weight that might be given to it, the mere failure by such a party to call such evidence, without more, does not mandate a conclusion favourable to the claimant/worker. As with most questions of admissibility and weight, each case is dependent upon its own facts and circumstances.”[74]
[74](Supra) at paragraphs [66]-[68]
95 While I accept the employer’s worker’s compensation insurer has made payments for the operation to the plaintiff’s neck and right carpal tunnel release, I do not accept that those payments amount to an admission that, in particular, the neck injury is related to work as far as the defendant is concerned.
Delay in complaints by the Plaintiff concerning her neck symptoms
96 The Court of Appeal has looked at the issue of the lateness of complaint by a plaintiff in respect of symptoms and later seeking to establish the injury is a result of a subject accident. In the case of Principe v Transport Accident Commission, the Court of Appeal considered this problem. The Court stated:
“As has been observed before, in many cases of the present kind, the question of whether a particular accident was a cause of a particular injury often depends upon complaints made by, and observations made of, the injured person over the days, weeks and months following the relevant accident.
As a general proposition, it may be observed that relevant injuries often manifest themselves within a very short period of time after a particular traumatic event. Sometimes, however, injuries do not manifest themselves immediately. Moreover, on occasions, victims of traumatic events do not initially complain about all of the injuries about which they later make complaint. As has also been observed before, sometimes an initially more painful injury (described as a ‘distracting injury’) masks, or distracts an injured person from, a second injury about which complaint is not initially made. In the present case, it will be recalled that Professor Bittar referred to the applicant’s initial neck pain as ‘a distracting injury’.
All of that said, in general terms it may be accepted that the greater the period of time between a particular traumatic event and a particular complaint of injury, the less likely the traumatic event might be said to be a cause of the injury.”[75]
[75]at paragraphs [78]-[80]
97 In this particular case, I accept the evidence of Dr McIntyre, the general practitioner, that as early as June 2012, the plaintiff was making complaints which would be consistent with a referral of symptoms from her neck. I accept the plaintiff’s evidence that she had been told by her surgeon, Mr Booth, that the pain would refer up from her wrist rather than, as she subsequently described, being referred from her neck, down her right arm to her wrist. It is clear in this case that the Colles fracture and the immediate pain relating to the right wrist injury and its resultant carpal tunnel release in July 2012, were the immediate and distracting injuries and sources of pain for the plaintiff. Nevertheless, it was within six months of that time that the plaintiff’s neck condition was diagnosed and had been identified pursuant to an MRI examination. The surgery followed accordingly. I accept that the plaintiff continues to have symptoms from her neck, as described in her evidence.
98 I do not accept the defendant’s submissions that the lack of complaint at the time of making her worker’s compensation claim and, subsequently, until as late as February 2013, amounts to a lack of complaint about the relevant symptoms coming from the plaintiff’s neck as a result of the injury on 20 March 2012.
The consequences of the injury to the Plaintiff
99 The plaintiff has given evidence, and I accept it, that she has the following consequences in relation to the injuries resulting from the fall on 20 March 2012.
Pain
100 I accept the plaintiff has had, and continues to have, significant pain resulting from the injury to her neck. The pain is referred up into her occipital headaches and is also referred down her right shoulder towards her arm.
101 In relation to the right wrist, the medical evidence in this case is that the plaintiff has largely recovered as a result of the two operations on her right wrist. The first operation was successful in re-uniting her wrist. The plaintiff was able to resume massage activities by December 2012. The carpal tunnel release performed by Mr Maloney has also been successful, and the pain arising from the injury to her wrist has predominantly settled.
102 Nevertheless, the pain referred from the plaintiff’s neck and the symptoms which go down her right arm, are a very considerable consequence for her, and continues to be so.
Sleep
103 The plaintiff has given evidence, and I accept, that she sleeps without a pillow under her head. Instead, the pillow is placed under her right arm in order to alleviate the pain and heaviness from the referred symptoms from her neck. The plaintiff’s sleep is interrupted and I find that that is a very considerable consequence. The plaintiff’s inability to obtain or gain proper rest for a long period of time is permanent and is of great significance to her. The fact that a person cannot obtain proper sleep is a very considerable consequence.
Medication
104 In the course of these Reasons, I have listed the medications the plaintiff is currently taking. These medications are prescribed for her by her general practitioner and have been noted by the specialists who have treated her over the course of time. The medications are necessary to alleviate the pain symptoms that the plaintiff suffers as a result of her neck injury. I find that the necessity for the plaintiff to continue to take the amount and array of medications to alleviate her symptoms is a very considerable consequence for her.
Work
105 The plaintiff has always been a person who has obtained employment and maintained employment. She was a good worker at TVS. She has worked as a nurse, in the casinos, as a masseuse, as a sales consultant and as a trainer. The plaintiff has had a long and successful history of obtaining employment and maintaining employment. This employment has been maintained even after her surgery to her neck. The fact is that the plaintiff is unable, now, to engage in employment at all. She has been certified as a disability pensioner since October 2015. The plaintiff is at the end of her working life. I consider this a very considerable consequence, particularly for the plaintiff, given that she has been a person who has engaged in constant and varied employment activities over her life time.
Activities of daily living
106 I accept the plaintiff’s evidence that she has been able to, with difficulty, perform most of the activities of daily living. Nevertheless, I do accept her evidence that she has withdrawn from social life, and that her life as a result of that has been diminished. The cause for this withdrawal from social interaction, including her dance instruction, is a direct result of her physical injuries and, in particular, the injury to her neck. I find that this consequence is a very considerable consequence for her.
Conclusion
107 Based on the findings of fact, and the medical condition as I find it to be for the plaintiff, the plaintiff has satisfied the statutory test to grant leave to bring proceedings for pain and suffering damages in respect of the injury to her neck arising from the incident which occurred in the course of her employment on 20 March 2012. The application in respect to the plaintiff’s right wrist for pain and suffering damages is dismissed.
108 In regard to the plaintiff’s application for serious injury certification for loss of earning capacity, the plaintiff has to prove that she has a loss of earning capacity of 40 per cent or more. The loss of earning capacity must be permanent. The measurement of loss of earning capacity is a comparison between without injury earnings and the capacity of after injury earnings. The plaintiff’s after injury earnings, I find, have been extinguished, in the sense that she is unable to earn an income in suitable employment. The plaintiff’s pre-injury earnings was approximately $49,000 gross per annum.[76]
[76]PCB 116
109 I conclude that the plaintiff has satisfied the statutory test for loss of earning capacity and that such loss of earning capacity is permanent for the foreseeable future.
110 I do not find that the plaintiff’s loss of earning capacity is related to her right wrist injury. The loss of earning capacity is a direct result of the injury to the plaintiff’s neck as a result of the incident on 20 March 2012.
Conduct of the proceeding
111 This application by the plaintiff took place over three days. The application commenced with a view of the scene of the accident. This type of application is a preliminary application, not a full trial. Brooking J, in Petkovski v Galletti,[77] foreshadowed and bemoaned the prospect that these originating motion applications could take up to five days and become a full-blown trial. This case is one of those instances of the process being overtaken by unnecessary complication and lack of appropriate preparation in the presentation of the case. The Plaintiff’s Court Book in this case was a very complex and difficult set of documents to navigate. The page numbering dissolving into roman numerals is only one of the symptoms of this problem. The “need” to call the number of witnesses that were cross-examined in this case must be questioned. I note one of the witnesses came from New South Wales. The process that took place in this litigation brings no credit to the legal profession or the preliminary process set up to determine what cases should be allowed to proceed to a damages trial.
[77][1994] 1 VR 436
Order
112 The plaintiff is granted leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of an injury to her neck suffered in the course of her employment with TVS on 20 March 2012.
113 I will hear the parties on costs.
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