Day v State of Victoria (Department of Education and Training)
[2016] VCC 1533
•20 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05458
| KATHERINE MAREE DAY | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2016 | |
DATE OF JUDGMENT: | 20 October 2016 | |
CASE MAY BE CITED AS: | Day v State of Victoria (Department of Education and Training) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1533 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to commence a proceeding to recover damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Clarke | Adviceline Injury Lawyers |
| For the Defendant | Mr R Stanley | Thomson Geer |
HIS HONOUR:
Background and Issues
1 This proceeding was commenced by the plaintiff by Originating Motion seeking leave, pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”), to commence a common law proceeding against the defendant as her former employer, claiming damages for pain and suffering only.
2 The plaintiff’s case is that she suffered an injury arising out of or during the course of her employment as a teacher of children with special needs, on 31 August 2010. There is no issue that the plaintiff was injured when she was attempting to restrain an autistic child. The plaintiff was forced to wrestle with the child on the floor (“the incident”). The plaintiff’s case is that during the course of the incident, she suffered a soft tissue injury to her back. She claims that as a result of the incident, she suffers from ongoing permanent impairment of the spine, within the meaning of s134AB(37)(a) of the Act. Despite the fishing cross-examination, there is no evidence of the plaintiff having suffered back pain prior to the incident.[1]
[1]Transcript (“T”) 11
3 The defendant argues that the evidence does not permit me to make a finding as to the exact nature of the injury suffered by the plaintiff (if any). For reasons that follow, I reject that submission.
4 Further, the defendant argues that the evidence shows that some of the pain and suffering consequences claimed to have been suffered by the plaintiff are not organic in nature but are psychological. In those circumstances, it submits the plaintiff has not discharged the onus that she bears to disentangle the consequences caused by any organic injury from the consequences resulting from any psychological cause. For reasons that follow, I also reject that submission.
5 The defendant also argues that the evidence does not permit me to make a finding that the consequences of any impairment for the plaintiff are permanent, that is, likely to continue into the foreseeable future. For reasons that follow, I also reject that submission.
6 Finally, the defendant submits that the injury suffered by the plaintiff is not a “serious injury” within the meaning of the Act. For reasons that follow, I reject that submission.
7 For the reasons that follow, this application must succeed and the plaintiff is given leave, pursuant to s134AB(16)(b) of the Act, to commence a common law proceeding against the defendant claiming damages for pain and suffering.
8 The plaintiff bears the onus of proof that the pain and suffering consequences of her injury are “serious” within the meaning of s134AB(38)(c). This issue is to be determined, having regard to all of the evidence.
9 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that she suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and, as being at least very considerable” within s134AB(38)(c).
10 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of her employment and, what consequences (if any) were suffered and continue to be suffered by her. Having examined all of the evidence, I find that the plaintiff has discharged the onus that she bears, of proving on the balance of probabilities that the pain and suffering consequences to her from a soft tissue injury to her spine may fairly be described as being more than significant or marked and, as being at least very considerable, within the meaning of the Act.
11 The plaintiff filed and served two affidavits in support of her application. Those affidavits were sworn on 9 July 2015[2] (“the first affidavit”) and 27 September 2016[3] (“the second affidavit”).
[2]Plaintiff’s Court Book (“PCB”) 1-13
[3]PCB 14-17
12 In addition, the plaintiff was called for cross-examination and was cross-examined by at length by Mr Stanley, counsel for the defendant. There was no direct challenge to the credit of the plaintiff, and she was not challenged as to the accuracy of the contents of her affidavits. The plaintiff was an impressive witness answering all questions put to her in a direct and forthright manner. The evidence given by her in her affidavits as to what occurred and the pain and suffering consequences for her from her injury was not the subject of any direct challenge. I thus can and, do accept, the plaintiff as a witness of truth and, I accept the unchallenged evidence she has given as to the pain and suffering consequences she continues to endure from the injury she suffered.
13 The plaintiff also called in aid an affidavit from her partner, Denton Thomas, as to his observations of the way in which the plaintiff’s daily life is affected by the consequences of her injury. That affidavit was sworn on 27 September 2016.[4] Mr Thomas was not required for cross-examination. I can therefore rely upon and, accept the content of his affidavit.
[4]PCB 20-22
14 The plaintiff also relied upon an affidavit filed by Christina Jasem, a work colleague of hers, as to her observations of the ways in which the plaintiff is affected by her back injury. That affidavit was sworn on 23 September 2016.[5] Ms Jasem also was not required for cross-examination. I can therefore rely upon and accept the content of her affidavit.
[5]PCB 18-19
15 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit A the Plaintiff’s Court Book (“PCB”) pages 1 to 85J inclusive.
16 I admitted into evidence as exhibit 1, on behalf of the defendant, surveillance film of some of the plaintiff’s movements on 11 August 2016. That showed the plaintiff, accompanied by her uncle and her eight-month old child in Albert Street, East Melbourne on 11 August 2016 before and, after attending, at a medical appointment arranged by the defendant. The plaintiff can be observed bending to attend to her child in a pram. She can also be observed carrying the child about 200 metres in the street and placing the child in a child restraint in a car. In my observation, the film showed that the plaintiff was very careful in the way she slowly entered the car to take up her position behind the wheel. If the film of the plaintiff’s movements was tendered to give the lie to the plaintiff’s evidence in her affidavits as to the consequences for her of her injury, it failed. The plaintiff has never said that she cannot attend to her child or carry her child. What she has said is that if she does so there are pain and suffering consequences for her. In my view, little or no weight can be placed upon the evidence disclosed in exhibit 1, to draw any inference adverse to the plaintiff’s case.
17 The defendant also filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit 2 the Defendant’s Court Book (“DCB”) pages 1 to 29 inclusive.
The Plaintiff’s evidence
18 Much of the plaintiff’s evidence is uncontroversial, and, as I said earlier, was not challenged in cross-examination. However, in order to show a defined pathway of reasoning and, that I have taken into account all of the evidence, I need to set out here in a summary way the plaintiff’s evidence.
19 The plaintiff is now aged thirty-seven. She completed Year 12 of her schooling education in Queensland and later graduated with a degree in teaching from ACU in 2008. Thereafter, she taught in primary schools and continued living in Victoria. She commenced working at the Ascot Vale Special School in 2010.[6] It was here that the incident occurred involving a child who had severe autism. In her first affidavit, the plaintiff sets out in detail what happened in the incident and it is not necessary that I here repeat it.[7]
[6]PCB 2, paragraph [5]
[7]PCB 2-3, paragraph [7]
20 The plaintiff said that immediately after the incident she noticed pain in her back which continued to increase over the course of the day. By 9.30pm that night, she said –
“I was in tears from the pain in my back. I took some nurofen plus that night, thinking it would help. Over the next few days, my back was very sore and I was stiff, but I assumed that this was just a strain which would improve in a couple of days.”[8]
(sic)
[8]PCB 3, paragraph [9]
21 The plaintiff said that on 3 September 2010, she consulted a musculoskeletal specialist who assessed her and recommended osteopathy. She was subsequently treated by an osteopath.[9] The plaintiff continued to work as a special needs teacher at the Ascot Vale Special School. She said that she “loved” her job but the pain in her back continued and her condition deteriorated and, by the end of 2011, she described her back pain as being “constant and horrible”. She said it significantly affected her ability to perform basic tasks of daily living such as cooking, laundry, changing sheets, driving the car and emptying the kitchen bin.[10]
[9]PCB 4, paragraph [10]
[10]PCB 4, paragraph [12]
22 The plaintiff consulted her general practitioner, who prescribed Panadeine Forte for her pain and referred her to Dr Robert Gassin at the Metro Spinal Clinic. He prescribed Celebrex.[11] This evidence is confirmed by a medical report from Dr Gassin dated 21 December 2011. In that report, the doctor reports that examination of the plaintiff showed that she had a full range of movement in the thoracic and cervical spines but she was tender to palpation at the level of T5‑6 on both sides and she was also tender over the sternal attachment of the fifth rib. Dr Gassin opined that it was difficult to ascertain the source of the plaintiff’s pain but he recommended Celebrex in the first instance and, if this did not serve to manage the pain, then a trial of Tramal. He added, “she may well require a consultation with [a] psychologist who’s expertise is pain management”.[12]
[11]PCB 5, paragraph [12]
[12]PCB 65A
23 The plaintiff was for a short period of time referred to and received some treatment from a psychologist as a result of the recommendation of Dr Gassin. That psychologist was David Field whom she began seeing around June 2012. The plaintiff said that by this time “I was in a terrible way. I was in constant high level pain, which had become an awful kind of ‘normal’”.[13]
[13]PCB 5, paragraph [15]
24 It is because of this that the defendant argues that some of the pain and suffering consequences claimed by the plaintiff are psychologically based. It is from this evidence and, the fact the plaintiff for a short period was prescribed a low dosage anti-depressant Pristiq, that the defendant argues that the plaintiff has failed to disentangle the consequences psychologically caused from the consequences organically caused. I do not accept this argument. In my view, the evidence shows no more than it was the opinion of Dr Gassin that the plaintiff would benefit from the counselling of a psychologist to deal with the pain and suffering consequences to her from a physical injury. In my view, the evidence does not show that the pain and suffering consequences claimed by the plaintiff are psychologically caused.
25 The plaintiff renewed her contract as a special needs teacher at the close of the 2011 school year. Her contract was renewed for the first six months of the 2012 school year. The plaintiff said that over the Christmas break of 2011-2012, she was able to rest and did as little as possible and her back pain improved “slightly” over the holiday period. But, she said her pain was far too intense to enable her to manage a five-day working week and when she returned to work it was in a part-time capacity only of three days per week. However, the nature of her work increased her back pain and she was not able to work the reduced hours, and three days per week was reduced to two days per week. The plaintiff endeavoured to cope by resting and by taking medication in the form of Panadeine Forte, Mersyndol day strength and, Mobic, as an anti-inflammatory.[14]
[14]PCB 5, paragraph [13]
26 The plaintiff had adverse gastric reaction to some of the medication (Celebrex and Indocid) which led to a prescription of Mobic. She was also prescribed Endone for pain relief.[15]
[15]PCB 5, paragraph [14]
27 During the course of 2012, the plaintiff attempted, unsuccessfully, to increase her work hours. She said that although she was in a terrible amount of pain, she attempted to increase her hours because the school at which she was teaching had made it clear that it could not continue to employ her on a part-time basis. During the third term of the 2012 school year, the plaintiff was told by the school principal that she wanted her “gone by the end of the term”. It was made clear to her that the problem was not the quality of her work but only her capacity to only work part-time which was causing the school financial difficulty.[16] The plaintiff, at a young age, has therefore lost the ability to continue to work in her chosen profession and, in my opinion, this is a significant consequence for her given that her vocation and training was to work with students requiring special needs.
[16]PCB 6, paragraph [16]
28 In 2013, the plaintiff worked two days per week as a nanny. She was able to make adjustments to do this work. However, she continued to suffer pain and, required medication.[17] The plaintiff commenced, but soon ceased, teaching English to a group of women and also commenced a course to further her qualifications. This commitment was for three hours one night per week, however the level of medication needed by the plaintiff had undesirable effects upon her, leaving her exhausted the next day and she soon ceased these pursuits.[18] The plaintiff deposed, and I accept, that during the course of 2013 she became emotional and depressed because the consequences to her from the physical injury she suffered in the incident had imposed severe restrictions on her life and, importantly, halted her career as a special needs teacher. She discussed this with her general practitioner who prescribed the antidepressant, Pristiq 50mg, the plaintiff used this low dosage medication for a short time but ceased in January 2014.[19]
[17]PCB 6-7, paragraph [17] 7 [18]
[18]PCB 7, paragraph [19]
[19]PCB 7, paragraph [20]
29 The plaintiff said that her back pain began to improve during 2013 and she commenced working with Autism Victoria on a casual basis.[20] After she commenced this work, the kind of work she was asked to perform became more onerous and she was forced to take breaks during the course of the day to enable her to lie down and rest. During 2014, the plaintiff worked full time for Autism Victoria. Her work involved writing content for a website accessed by teachers of students on the autism spectrum. She was not working with children. By April 2014, she had been promoted to her current role, that of change and development coordinator. She certifies schools and disability organisations that have excellent practice in autism support. She assists schools that are working towards achieving this certification.
[20]T15
30 In her first affidavit, the plaintiff said that she takes painkillers that enable her to sit for extended periods of time but she has flexitime arrangements that enable her to cope with the consequences of her injury for her work:
“… I sometimes arrive at work late or leave early due to back pain. When I am having a ‘good day’ I sometimes work a little longer to compensate for the bad days. My manager and I work in an office away from my other colleagues. When my back pain is too strong from sitting for an extended period of time, I shut the office door and lie on the office floor for ten minutes or so. Then I go for a short walk around the office. This sometimes makes it possible for me to work for another 45 minutes or so. I have a hot-water bottle in the office, which I use on my back sometimes as I sit in my chair. My workstation has been set up by a colleague who has university level-training in ergonomics – I have an adjustable chair, a foot stool, a keyboard wrist cushion and a pedestal for my computer screen which all contribute to make it easier for me.”[21]
[21]PCB 8-9, paragraph [22]
31 At the time that the plaintiff swore her first affidavit, she continued to experience pain in her mid to lower back, particularly between the shoulder blades. She conceded that there were some days where she has almost no pain at all. The plaintiff said her pain was unpredictable and there was no way of telling what her condition would be by the end of the working day. The plaintiff said that her pain generally increases by sitting or standing in one spot for any length of time. Sometimes she is required to take Tramadol or Mersyndol whilst at work in order to cope.[22] I accept all of this evidence.
[22]PCB 9, paragraph [24]
32 When the plaintiff swore her first affidavit, she was in the early stages of pregnancy. She now has an eight-month-old child. She said her ability to drive a motor vehicle has been limited by her injury. On good days she can drive for up to one-and-a-half hours before the need to stop. On bad days this can be reduced to a maximum of 20 minutes. She has interrupted sleep several nights a week.[23]
[23]PCB 10, paragraphs [26] – [28]
33 The plaintiff’s pain increases when bending and this has limited her ability with carrying out domestic tasks such as sweeping, vacuuming, laundry and changing bed linen.[24] The plaintiff is a member of a community choir and the plaintiff’s injury has restricted her ability to partake in the activities of the choir.[25]
[24]PCB 11, paragraph [29]
[25]PCB 11, paragraph [30]
34 In paragraphs 31 to 34 of her first affidavit, the plaintiff sets out a number of activities and pursuits that she has been restricted in partaking in because of her injury. As I said earlier, none of this evidence was challenged and I accept what the plaintiff has deposed to.
35 When the plaintiff swore her second affidavit in September 2016, she said that she continued to suffer daily pain and discomfort in her back, particularly in the mid back region. She said sometimes the pain extends into her lower back and up towards her shoulders and neck. Her unchallenged evidence was –
“… My pain fluctuates in intensity, usually depending on my level of activity. On good days, I have pain free periods, whilst on bad days I have pain from the moment I wake until the moment I fall asleep that night. The good days are infrequent and in general, any pain free period will be early in the day, and the pain will then return and increase with activity throughout the day.”[26]
[26]PCB 14, paragraph [2]; T19
36 The plaintiff’s son was born in February 2016. The plaintiff deposed that her back pain and discomfort increased significantly during her pregnancy and she had constant back pain during the last six months of her pregnancy. She said that she struggled at work as a result and took frequent rest breaks throughout the day and was often reliant upon pain-relief medication. She had physiotherapy during the course of her pregnancy.[27]
[27]PCB 14-15, paragraph [3]
37 The plaintiff deposed that she has significant difficulty performing many tasks associated with her son because of her back injury. These include “getting him in and out of his cot, holding him for extended periods of time, bathing him, getting him in and out of the car, breastfeeding him …”.[28] The plaintiff continues to take medication which is restricted because of breastfeeding. She does take Tramadol on occasion but this affects her ability to be alert when caring for her son.[29] The plaintiff questions whether she would be able to cope with having more than one child and, I accept that this is potentially a significant consequence for her.[30]
[28]PCB 15, paragraph [4] and T20-21
[29]PCB 15, paragraph [6]
[30]PCB 16, paragraphs [8] – [10]
Corroborating evidence
38 Christine Jasem is a work colleague of the plaintiff at Autism Victoria. In her affidavit, she corroborates the evidence of the plaintiff, so far as her work is affected and the adjustments she must make to cope with it.[31]
[31]PCB 18
39 The plaintiff’s partner, Denton Thomas, in his affidavit, also corroborates what the plaintiff has deposed to in terms of the effects of her injury within the home, caring for their child and the adverse effect on their relationship.[32] I accept that evidence.
[32]PCB 20
Medical evidence
40 The plaintiff’s general practitioner provided a report to the defendant on 20 April 2012. The doctor said, amongst other things, that the nature of the plaintiff’s injury has been difficult to pinpoint. She added that a CT scan of the thoracic spine showed a scoliosis with associated muscle spasm.[33] In her report, the plaintiff’s general practitioner said:
“Katherine has suffered severe chronic back pain since this incident which is worsened by being at work as a teacher, and tends to improve in the school holidays when she is able to rest more often. The pain has been severe enough to impair her ability to undertake activities of daily living at times. She has also suffered from symptoms of depression associated with the pain.”
[33]PCB 23
41 In a subsequent report dated 3 August 2012, Dr Rayner was of the opinion that it would be better for the plaintiff’s health if she were to undertake an alternative type of work long term.[34]
[34]PCB 28
42 In yet a later report on 4 April of this year, Dr Rayner described the injury suffered by the plaintiff in the incident as being “a severe thoracic back injury”.[35] She added:
“Her mental health is affected with difficulty sleeping and irritability at times.
She continues to need daily analgesia for her chronic back pain but is restricted in the medication she can take whilst breastfeeding. She is hoping to continue osteopathy and regular yoga but is finding this hard to access with a newborn baby.”[36]
[35]PCB 64
[36]PCB 65
43 Dr Gassin, in a report dated 18 July 2014, reported that the plaintiff suffered from somatic thoracic back pain. He thought the source of the pain most likely to be what he described as “an irritable structure in the thoracic region”.[37]
[37]PCB 69
44 Mr Stephen Doig, an orthopaedic surgeon, saw the plaintiff for medico-legal purposes and first reported on 17 November 2014. He diagnosed a soft tissue injury of the thoracic spine. He added:
“… As a consequence I consider both her employment and her capacity for work has been affected by the injury in terms of her preinjury duties. She is certainly suitable for alternative employment and in fact is doing that at this stage. Her activities of daily living have been significant[ly] affected as well.”[38]
[38]PCB 74-76
45 In a subsequent report dated 9 August 2016, Mr Doig reported:
“My assessment on this lady is essentially unchanged. Again from the history that she has given it would appear that she had a significant injury to the thoracic spine and this would appear to be a torsional type injury…
... The prognosis here is somewhat guarded. I felt last time she would continue to have some problems into the foreseeable future and I consider that [it] is still likely that that will continue.”[39]
[39]PCB 80-81
46 Dr Amanda Sillcock, is an occupational physician who saw the plaintiff for medico-legal purposes on behalf of the defendant on 29 March 2012. When the plaintiff went to Dr Sillcock, she took an x-ray of her thoracic spine which Dr Sillcock said “showed a moderately severe thoracic scoliosis”.[40] It was her opinion that the plaintiff is suffering from a chronic thoracic strain superimposed on a pre-existing scoliosis.[41]
[40]PCB 85A
[41]PCB 85B
47 Dr David Fish, a consultant occupational and environmental physician, also saw the plaintiff on behalf of the defendant. His opinion contained in his report dated 20 February 2015 concurs with Dr Sillcock.[42]
[42]PCB 85J
48 Dr John Wilson, an occupational physician, first saw the plaintiff at the request of the defendant on 12 July 2013. In his report dated the same day, Dr Wilson said he was unable to make a diagnosis. He went on to say:
“… Given that chronicity of the worker’s symptoms and the fact there has been no real improvement over the last 18 months, it begs the question as to whether the worker is developing a pain disorder. Certainly there are some features of her presentation which resembled fibromyalgia.”[43]
[43]DCB 8
49 Dr Daniel Lewis, a rheumatologist, also saw the plaintiff at the request of the defendant on 7 November 2013. He reported that the plaintiff presented with “non-specific thoracic pain”. He said the clinical examination did not reveal any anatomical or pathological abnormality and he found that the radiological investigations were unhelpful “as there is no correlation between the radiological appearance and clinical symptoms”. Unlike Dr Wilson, who had seen the plaintiff four months earlier, he found “no symptoms of fibromyalgia”.[44]
[44]DCB 20
50 I find it interesting that neither Dr Wilson nor Dr Lewis made any comment about the plaintiff’s thoracic scoliosis or the fact of there being a possibility of there being a soft tissue strain superimposed upon the thoracic scoliosis demonstrated by x-ray. Dr Lewis was of the opinion that the plaintiff was not capable of returning to her pre-injury profession.[45]
[45]DCB 21
51 Finally, Dr Peter Boys, an orthopaedic surgeon, who saw the plaintiff at the request of the defendant in August of this year, thought that the plaintiff suffered from –
“… a local soft tissue injury to the mid-thoracic region on 31.08.2010. An injury to the supporting muscles and ligaments of the mid-back would appear to have occurred at that time.”[46]
[46]DCB 27
Submissions
52 In his submissions, Mr Stanley, who appeared on behalf of the defendant, submitted that the plaintiff had not discharged the onus of proving the nature of the injury she sustained in the incident. He relied upon those passages from the reports of Dr Wilson and Dr Lewis that I earlier referred to. Whilst he accepted that some of the medical opinion was to the effect that the plaintiff suffered a soft tissue injury to the thoracic spine, he urged me not to accept this evidence absent MRI imaging.[47] I do not accept that submission. The plaintiff’s thoracic spine has been x-rayed and there is a CT scan. No specialist has suggested that there should be an MRI scan carried out. The plaintiff has a demonstrated scoliosis to the thoracic spine and I accept the opinions of Mr Doig, Dr Gassin, Dr Sillcock, Dr Fish and Dr Peter Boys and, the plaintiff’s general practitioner, Dr Rayner, that in the incident, the plaintiff probably suffered a soft tissue injury to the thoracic spine superimposed on a pre-existing thoracic scoliosis. This has caused her pain and suffering and consequences to almost every aspect of her daily life and has resulted in the need for her to seek a career change.
[47]T44
53 Mr Stanley further submitted that the plaintiff had not disentangled the consequences to her caused by her physical condition from those consequences “influenced or exacerbated by the psychological” condition.[48] I also do not accept the submission. In my view, the evidence of the plaintiff’s psychological condition only shows that for a short period of time since the incident, she required modest anti-depressant medication to cope with the stress caused to her because she had to cease work as a special needs teacher. After a few months, she ceased anti-depressant medication and continued with her life, including working life, as best she could but she continues to suffer pain and suffering consequences as set out in her affidavit. This is not a case where the pain and suffering consequences caused by any psychological injury need to be disentangled. In my view, the evidence clearly shows that all of the adverse consequences from which the plaintiff suffers have been caused by her soft tissue injury to her thoracic spine superimposed upon her thoracic scoliosis.
[48]T45
54 Mr Stanley submitted that the plaintiff had not proved that the consequences to her from the injury were permanent. As I understood this submission, before the consequences could be said to be “serious” within the meaning of the Act, it needed to be demonstrated that the consequences were permanent, in the sense that they were likely to continue into the foreseeable future. Whilst the submission of law is correct, I have formed the strong view on the evidence in this case that the consequences for the plaintiff are likely to proceed into the foreseeable future and are therefore permanent. The incident occurred more than six years ago. The plaintiff has continued to suffer constant chronic pain and restriction of movement on an almost daily basis since that time and she requires fairly strong medication for pain relief, including anti-inflammatory medication. That situation has not changed and is likely to continue into the foreseeable future. I therefore reject this submission.
55 Mr Stanley drew attention to what he said was “minimal treatment” which the plaintiff is receiving in order to demonstrate that the consequences of her impairment were not serious. The nature of the injury to the plaintiff is that of the soft tissue injury. It is to the plaintiff’s credit, in my view, that she has restricted the treatment she has received. She obviously benefits from rest from time to time but the consequences from her injury in the form of pain repeatedly arise from attending to the normal tasks of her work and family. The evidence is that she takes appropriate medication. The fact that the plaintiff is not constantly knocking on the door of her general practitioner, in the circumstances of this case, ought not be used against her.
56 Mr Stanley also pointed to the way in which the plaintiff has been able to live her life. She can still work, albeit in a capacity not originally of her choosing. She is still able to undertake some household tasks and to enjoy holidays et cetera. I accept that the evidence discloses that the plaintiff can do all of these things. However, the evidence clearly discloses that the plaintiff can only do these things with continued ongoing permanent pain and suffering consequences for her.
57 Mr Clarke, who appeared on behalf of the plaintiff, submitted that having regard to the way the plaintiff was cross-examined, I should accept her as a witness of truth. As I have indicated, I accept this submission.
58 Mr Clarke also submitted that the video footage submitted by the defendant is not inconsistent with the plaintiff’s case. For the reasons that I have set out above, I also accept this submission.
59 Counsel pointed to the fact that there was no challenge to the evidence of the two supporting witnesses. For the reasons set out above, I also accept this submission.
60 A reading of the plaintiffs two affidavits which were not challenged sets out in full the extent and degree of pain and suffering consequences endured for the last five to six years by the plaintiff. As I have said earlier, I accept this evidence. The plaintiff has proved that as a result of the incident, she suffered a soft tissue injury to the thoracic spine superimposed upon a thoracic scoliosis. That injury and, the consequences of it for the plaintiff are, in my view, permanent and she has suffered from an ongoing permanent serious impairment or loss of body function to the spine. The consequences to her of that impairment, including ongoing pain and suffering and limitation of movement, sleep interference, inability to continue with her pre-incident employment and therefore loss of vocation are, in my view, serious. This is particularly so, having regard to her relatively young age and the fact that she is a mother with a young child who hopes to increase the size of her family. The consequences for the plaintiff may fairly be described as being more than significant or marked and as being at least very considerable within the meaning of the Act.
Decision
61 For these reasons, the plaintiff succeeds on her Originating Motion. The plaintiff will be granted leave pursuant to s134AB(16)(b) of the Act to commence a proceeding to recover damages for pain and suffering.
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