Dixon v Victorian WorkCover Authority
[2015] VCC 347
•27 March 2015
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03209
| MARILYN MAY DIXON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 10 February 2015 (Warrnambool) and 16 February 2015 (Melbourne) | |
DATE OF JUDGMENT: | 27 March 2015 | |
CASE MAY BE CITED AS: | Dixon v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 347 | |
REASONS FOR JUDGMENT
---
Catchwords: Accident Compensation Act 1985 – s134AB – injury to neck and right shoulder, such injuries to be viewed separately – reliance upon paragraph (a) of the definition of serious injury – leave sought in relation to pain and suffering damages only – whether burden of proof discharged in relation to each injury – factors to be considered
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
Background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. The plaintiff relies upon paragraph (a) of the definition of serious injury contained in s134AB(37) of the Act. The injury relied upon is to the neck and right shoulder, and it was stated at the outset that the injuries were to be viewed separately ― see Transcript (hereinafter referred to as “T”) 1. This was confirmed at the conclusion of the case ― see T77. The injuries are said to have arisen due to the plaintiff lifting and handling a large number of folded cardboard boxes, known as blanks, during the course of her employment as a process worker for National Foods Pty Ltd. The plaintiff seems to have been based at that entity’s factory at Cobden, where she lives, whilst on occasions working for it at a factory in the Timboon area.
2 Mr N Bird of counsel with Mr I Fehring of counsel appeared on behalf of the plaintiff. Mr W R Middleton QC with Ms D Manova of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without opposition.
Factual background
(a) The plaintiff’s background, education and employment history
3 The plaintiff is aged fifty-nine years, she having been born on 4 July 1955. She is a divorced woman with two adult children. She lives alone, save, as she said, for two cats. She attended school to Year 10 level at Terang High School, but did not complete that year. She initially worked at a cake shop in Terang. She then worked for some 22 years for the Heytesbury Shire as a home carer and then at adult day centres at Cobden and Timboon. During this time, she qualified as a personal care attendant. In 2000, she left Heytesbury Shire and obtained employment with Bonlac, at first working as a packer of milk powder and then at a different factory where “long life” milk was processed and bottled. She also did some quality control work. When National Foods Pty Ltd purchased the plant where the “long life” milk was processed and bottled, she commenced employment with it, continuing to work for it for some seven years at that factory. It was during that period that she allegedly suffered the injuries.
4 As the plaintiff is not seeking leave in respect of pecuniary loss damages, a detailed examination of her pre-injury rates of pay, earning capacity and the like is not required, although to some extent she does seek to rely upon loss of this particular job with National Foods Pty Ltd, and the salary obtained there as factors which can be considered in relation to pain and suffering. Obviously, there is a very real limit as to how far this can be taken.
5 The other observation which I would make is that the plaintiff obviously had a very solid employment record over the years, and I would agree with this submission made by Mr Bird in his closing address.
(b) The plaintiff as a witness
6 I accept the plaintiff as a witness of truth. I agree with Mr Bird that she had a straightforward, if at times a little unusual, and direct way of answering questions. I note that Dr Murray Grave, musculoskeletal physician, who treated the plaintiff, referred to her in his report of 4 December 2012 as being pleasant and cooperative. Examining the plaintiff at the request of the defendant, Mr Ian Jones, orthopaedic surgeon, in his report of 3 September 2014, described her as presenting her history in a straightforward manner with no evidence of any embellishment or exaggeration. I agree with the observations of these medical witnesses. As shall be discussed, I am not of the view that her credit was damaged in any substantial way in cross-examination, despite Mr Middleton’s best efforts, and I find the plaintiff to be a witness whose evidence can be, and is, accepted.
State of the plaintiff’s health prior to the injury
7 The plaintiff has sworn that, over the years, she had experienced some difficulties with hypertension and depression, along with occasional low back pain and sciatica. Mr Timothy Gale, general surgeon, examining on behalf of the defendant, noted the history of elevated blood pressure and depression, along with some treatment for migraine. He also noted that the plaintiff had previously suffered a heavy fall on her bottom at work, this being recorded by her general practitioner, Dr Griffiths. Following this incident, the plaintiff complained of a stiff neck and tingling in her lower limbs, but all movements and reflexes were normal. The diagnosis was of a soft-tissue injury to the neck and back. Mr Gale has recorded that symptoms from this incident apparently resolved completely in the fullness of time. I have no reason to doubt this. As shall be discussed, radiological investigation in November 2008 revealed some disc degeneration in the cervical spine. However, I am satisfied that, as at June 2008, as she has sworn, the plaintiff was unrestricted in her work and that there was no interference in her personal or domestic life by reason of any pre-existing condition.
The injuries, their treatment and diagnoses
8 I am satisfied that the symptoms of the injuries developed effectively from early June 2008. The development of symptoms ultimately led to her seeing her general practitioner, Dr Andrew Griffiths, on 21 October 2008, and I shall turn to details of her treatment shortly.
9 However, I would say at this stage that the attack on her credit or reliability, based upon whether she has been asserting that a specific injury occurred on 1 June 2008, did not succeed in causing me to form an adverse view of her. True it is that her claim form of 21 October 2008 gives the date of injury as being 1 June 2008. However, the plaintiff explained that she filled in the claim form with the assistance of Mr James Lane, an officer of National Foods Pty Ltd, to whom she reported the injuries. They discussed when the symptoms had commenced and 1 June 2008 was the date at which they arrived. Further, I note that Question 21 on the claim form, which seeks information as to what caused or contributed to the injury or condition, has been answered in the following terms:
“Lifting cardboard to place in machine worsened over time”.
I note that Mr Lane, whose position is described as being production manager, signed the claim form on behalf of the employer.
10 The medical histories in relation to this issue vary a little, but are essentially consistent with the plaintiff’s explanation. The brief history contained in the report of Dr Griffiths is simply that on 21 October 2008, when she apparently presented to him and which was also the day upon which the claim form was completed, she had pain into her right shoulder and upper limb, aggravated by neck rotation, this being consistent with cervical radiculopathy. The report of Mr Jason Hill, physiotherapist, has a history of the plaintiff performing duties involving the lifting of cardboard boxes and the like and reporting significant right shoulder pain and pain of the cervical spine in June 2008, although also referring to it as an injury sustained on 1 June 2008. Dr Grave, who also treated the plaintiff, has a history containing a reference to the injury developing around 1 June 2008 as a result of work and that pain developed thereafter, becoming more persistent over time. Mr Thomas Kossmann, orthopaedic surgeon, who saw the plaintiff for medico-legal purposes at the request of her solicitors, has a history of injury “in around June 2008” and this becoming progressively worse. Mr Timothy Gale, general surgeon, examining on behalf of the defendant, has a history of an incident on about 1 June 2008 and of duties involving repetitive lifting of cardboard sheets from a pallet. There was then a history of the pain later spreading and becoming more severe. To Mr Jones, also examining on behalf of the defendant, the history given was of no specific injury, but the noticing of symptoms, culminating in the plaintiff’s visit to Dr Griffiths.
11 To my mind, not a great deal hinges on this. The plaintiff has done her best to estimate when symptoms commenced. They developed thereafter. I would refer to the plaintiff’s evidence in cross-examination at T11 and following. In addition, I would point out that, in its letter of 9 June 2011, the defendant’s insurer accepted liability for the payment of an impairment benefit in respect of injuries to the right shoulder and neck, whilst rejecting injuries to the lower back and right arm. Admittedly, the letter of acceptance refers to an incident on 1 June 2008, but whether that is simply lifted from the claim form or not is uncertain. Generally, in relation to the effect of the acceptance of a claim for statutory benefits, I would refer to the decision of the Court of Appeal, and particularly that of Ashley JA, in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171.
12 Returning to the history of treatment of the plaintiff, as stated, she attended Dr Griffiths on 21 October 2008. She had pain in her right shoulder and upper limb, aggravated by neck rotation. Dr Griffiths thought that this was consistent with cervical radiculopathy. On a subsequent visit, she mentioned clicking in the right shoulder. Dr Griffiths had difficulty in determining how much shoulder pain was due to shoulder pathology and how much was referred from the neck, feeling that it was likely that she had pain coming from both. His concluding remark in this very brief report is that “As far as I’m aware the problem has resolved”. However, as is apparent from another brief report from Dr Griffiths, this one being of 30 July 2014, it is clear that he was no longer of the view that the problem may have resolved. In that report, he stated that the plaintiff had cervical disc disease. She had referred pain into the right upper limb, but had continued to work, although having ongoing symptoms. Dr Griffiths felt that the injury alone was the cause of her symptoms and that she may require analgesia and physiotherapy in the future. His conclusion was that she was likely to have symptoms of neck pain and referred pain to the right upper limb and altered sensation in her right hand in the future, but he could not predict the frequency, duration and severity of symptoms. However, work that she did in the future was likely to affect her condition. I might add that the plaintiff, in her direct fashion, stated that Dr Griffiths was not doing anything for her, but that she would not change doctors because he was “the man in charge of the case” ― see T17.
13 It is also apparent that Dr Griffiths referred the plaintiff for an MRI of her cervical spine, this apparently being carried out on 28 November 2008. The conclusion of the radiologist was that no neurocompressive lesion was demonstrated, but that the plaintiff had multi-level intervertebral disc mild degeneration, with a left lateral C6/7 mild disc protrusion into the left C7 neural exit foramen, although no impingement on the left C7 nerve root was shown. An ultrasound of the right shoulder, apparently also organised by Dr Griffiths on 27 February 2009, was normal. In addition, the employer’s Incident Report of 21 October 2008 records that the plaintiff had soreness in her right shoulder which had been worsening slowly over time, but she had not thought a lot about it. She had returned to work with assistance being rendered when appropriate.
14 On 15 December 2008, the plaintiff attended upon Mr Jason Hill, physiotherapist. He found full shoulder flexion and abduction, but some other restrictions and decreased strength of the shoulder. He found a mildly positive impingement test, and trigger points through the rotator cuff and trapezius and surrounding musculature. There was some restriction of cervical spine movements, especially right rotation, with tightness particularly at C3/4 on the right. A series of questionnaires was completed and some tests performed. The results of these tests essentially were that the plaintiff had a significant level of disability, functioning at approximately 50 per cent of normal capacity for the right shoulder. Physiotherapy management by Mr Hill continued into mid-2009, being discontinued in late July of that year. The plaintiff had remained at work on modified duties and was continuing to have right neck and shoulder pain as at that time. Mr Hill thought that the prognosis for full recovery was poor, also alluding to some non-physical factors, such as depression and a dissatisfaction with the level of work support, that may have contributed in some way to the lack of physical progress.
15 Dr Grave saw the plaintiff on three occasions, these being between 3 October 2012 and 4 December 2012. The plaintiff described to Dr Grave how the pain affected her daily life, referring to such items as carrying groceries and difficulties with driving and using a seat belt. Dr Grave noted that the plaintiff had an abnormal posture, with her right shoulder much lower than the left and a tilt of the neck to the right. He thought that the plaintiff may have developed a myofascial pain syndrome, also noting that she breathed in a manner associated with notable tightness of the upper thoracic musculature and neck musculature. She had restricted rib cage motion. Dr Grave instructed the plaintiff in various exercises. He did not think that there was nerve root involvement in the pain presentation. When last seen on 4 December 2012, the plaintiff’s posture was better and she was encouraged to continue her exercises for another three months. I note as a matter of interest that, whilst Dr Grave seems to have had available to him the radiologist’s reports in relation to the right shoulder, he does not seem to have had the MRI of her neck. I note in passing that the plaintiff considered Dr Grave to be “brilliant” ― see T17.
16 The above represents the totality of the medical reports placed in evidence from those who have treated the plaintiff.
17 The plaintiff was also examined for medico‑legal purposes. As previously stated, Mr Kossmann saw the plaintiff at the request of her solicitors, reporting on 4 March 2013. She complained to him of right shoulder pain and of sleep disturbance. She also mentioned that she had high blood pressure, high cholesterol and suffered from depression. She was coping with her present work on a part-time basis in an aged care facility. She referred to the various restrictions placed upon her activities by her cervical spine condition. The diagnosis of Mr Kossmann was of discogenic pain from the cervical spine on the basis of multilevel intervertebral disc degeneration with a left lateral C6/7 right disc protrusion into the left C7 neural exit foramen without compression of the nerve. I might say that this diagnosis reads as being very similar to the conclusion of the radiologist who performed the MRI, save that the word “mild” has been omitted by Mr Kossmann in relation to both the degree of degeneration and of disc protrusion. In any event, Mr Kossmann’s prognosis was that the plaintiff was suffering from undulating pain in the cervical spine from time to time and required conservative treatment in the form of medication, physiotherapy, hydrotherapy and possibly acupuncture. He did not believe that she had a capacity to perform her pre-injury duties, referring to her inability to work above shoulder height. He regarded this incapacity as being permanent and likely to last for the foreseeable future. He did not regard her as being able to work at a full-time capacity in her present occupation for the foreseeable future. He also regarded her as being restricted in relation to social, domestic and recreational activities. He considered her likely to suffer from intermittent, undulating pain in the cervical spine, requiring conservative treatment, in the future.
18 Mr Kossmann saw the plaintiff again, reporting on 10 February 2015. The diagnosis reached by Mr Kossmann was the same as in his earlier report, save that he added the word “Depression”. Again, on each occasion, his principal diagnosis seems to be identical with the report of the radiologist following the MRI performed on 28 November 2009, save for the omission of the word “mild”. He again regarded her as restricted in relation to her employment and related activities. However, he thought that her present psychological state may have been a barrier to an increase in her working hours. He also regarded her as being restricted, by reason of her physical injury, in relation to various social, domestic and recreational activities. He regarded the prognosis as guarded, also referring to worsening depression.
19 The defendant has also had the plaintiff examined for medico‑legal purposes. Mr Timothy Gale, general surgeon, saw the plaintiff on 11 February 2011. This seems essentially to have been for the purposes of an Independent Impairment Assessment pursuant to the AMA Guides. The plaintiff complained of such things as shoulder discomfort, pins and needles over the hands and forearms in a non-anatomical distribution, slight tightness in the base of the neck and other symptoms. Upon examination, Mr Gale found an unrestricted range of neck movements, save with extreme lateral tilting to the left, which caused minor discomfort on the top of the right shoulder and at the base of the neck. He found no definite, objective neurological abnormality. His diagnosis, which was combined with an Impairment Assessment, was essentially to the effect that predominant pathology was in the shoulder and that the plaintiff had suffered no significant neck condition as a result of the relevant injury. Whilst Mr Gale was aware of the multi-level disc degenerative changes demonstrated upon radiological investigation, he thought that his evaluation would suggest that this condition was essentially free of symptoms. He felt that the prognosis was good, although there may be some minor ongoing symptoms in relation to the right shoulder girdle. He considered the plaintiff’s level of impairment to be stabilised. Mr Gale did not believe that any neck impairment related to the relevant injury, but was prepared to make an assessment in relation to restrictions in the use of the right shoulder.
20 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors on 4 September 2014. Upon clinical assessment, a full range of cervical spine movement was revealed. Neurological examination of both upper limbs was normal. There was some slight tenderness of the right trapezius muscle. Mr Jones viewed an MRI scan of 4 July 2014, which, in his opinion, revealed changes consistent with multi-level degenerative disc disease, most pronounced at the C5/6 level. Whilst there was mild disc space reduction, there was no evidence of any associated neural compression.
21 I might say that this MRI scan of 4 July 2014 viewed by Mr Jones is something of a mystery. There is no reference to it in the report of Dr Griffiths of 30 July 2014, some 26 days after it was apparently performed. According to the second report of Mr Kossmann of 10 February 2015, the only report of an MRI of the cervical spine supplied to him was that of 28 November 2008. Similarly, in the list of documents enclosed in the letter of referral to Mr Jones, such documents being listed in his report of 2 September 2014, the only MRI of the cervical spine to which reference is made is that of 28 November 2008. However, in the body of his report there is quite detailed reference to an MRI of 4 July 2014. Who ordered it and what became of it remain mysteries. In commenting upon the issues at the commencement of the case, Mr Middleton stated as follows:
“There is an original MRI scan, at p1 (of the Defendant’s Court Book), that concludes there is multi-level intervertebral disc mild degeneration to the lateral C‑7 mild disc protrusion. I think there are some more recent investigations which essentially confirm that.”
22 That may be a reference to an MRI of 4 July 2014, but, if so, it is essentially the only reference to it in the case, other than what is contained in the report of Mr Jones. Further, whilst it is said to reveal changes consistent with multi-level degenerative disc disease, which was also essentially stated in the radiologist’s report in 2008, the mysterious scan of July 2014 allegedly shows degeneration most pronounced at the C5/6 level, whereas that of 28 November 2008 shows problems, including a mild protrusion, at the C6/7 level. There may not be a great deal of difference between the two MRI reports, but in the circumstances I think it wisest to ignore the reference to that of 4 July 2014. I cannot be satisfied that some error has not occurred. Whilst degeneration at another level may have occurred between November 2008 and July 2014, it would be strange indeed if the degeneration previously seen at C5/6 had disappeared. Given all of the above, I cannot rule out the possibility that the MRI of 4 July 2014 is not one which concerns the plaintiff.
23 In any event, Mr Jones was of the view that there was no clinical evidence of pathology affecting the plaintiff’s right shoulder. However, Mr Jones was of the opinion that the plaintiff suffered from multi-level degenerative disc disease, most pronounced at the C5/6 level. He believed that it was the pathology in the plaintiff’s cervical spine that was the source of symptoms emanating from the right shoulder girdle. He thought that the outlook for the neck was one of varying degrees of neck pain and stiffness, slowly deteriorating in the extreme long term. The outlook for the shoulders was normal. He believed that the plaintiff’s work activity may have caused some exacerbation of the mild degenerative disease which affected her cervical spine, although believing that the effects of this aggravation had resolved. He was also of the view that the symptoms of pain affecting the plaintiff’s right shoulder girdle could be exacerbated by high demand activities requiring heavy pulling, pushing or lifting using the dominant right arm.
24 On balance, I am inclined to the view that the symptoms or consequences of injury which the plaintiff has suffered emanate from her neck and not from her right shoulder. This is essentially the view of Mr Kossmann and Mr Jones. The more recent report of Dr Griffiths would indicate that the pain in the right upper limb is referred from the neck. The report of the physiotherapist, Mr Hill, is somewhat inconclusive as to the origins of the pain and dysfunction. Only Mr Gale, seeing the plaintiff some four years ago, attributes the bulk of the plaintiff’s symptomatology to the right shoulder.
25 In the circumstances, the opinions of Dr Griffiths, Mr Kossmann and Mr Jones seem to me to be logical and preferable. Accordingly, I accept that the principal injury suffered by the plaintiff has been to the neck and that any consequences suffered in the right upper limb emanate from that injury.
26 As a result of that finding, I have reached the conclusion that the plaintiff does not have a discrete right shoulder injury which satisfies the statutory test. Rather, any problems or consequences involving the right shoulder result from the injury to the neck.
27 In relation to the neck injury, I accept the diagnosis of Mr Kossmann, which seems to be based on the MRI of 28 November 2008. I accept that the plaintiff has multi-level intervertebral disc degeneration and that the injury suffered by her involved the aggravation of those degenerative changes. Mr Jones seems to have come to a similar view, although also referring to the MRI of 4 July 2014. I appreciate that Mr Jones is of the view that the effects of any work-related aggravation have now resolved, but that is a different issue. However, essentially his diagnosis is also one of exacerbation of degenerative disease of the cervical spine. I accept that the injury suffered by the plaintiff is one of aggravation of degenerative disease of the cervical spine as opined by Dr Griffiths, Mr Kossmann and Mr Jones.
28 Whilst the injury is in the nature of an aggravation (or an exacerbation, to employ the wording of Mr Jones), there is no suggestion that the plaintiff suffered from pain or symptoms in the region of the cervical spine, right shoulder or right upper limb prior to June 2008. If, as I have found, the plaintiff was asymptomatic prior to the workplace injury, the symptoms, consequences and the restrictions from which she has suffered result from that workplace injury. I would refer to what has been said by the Court of Appeal in De Agostino v Leatch & Anor [2011] VSCA 249, which in turn referred to the decisions in Humphries & Anor v Poljak [1992] 2 VR 129 and Petkovski v Galletti [1994] 1 VR 436.
29 I am also satisfied that the plaintiff’s ongoing symptoms and consequences continue to result from the workplace injury. I appreciate that Mr Jones seems to be of the view that the effects of the possible aggravation had resolved as at the time of his examination on 4 September 2014. Even if it is not spelt out precisely, the clear inference from the reports of Mr Kossmann, the more recent of which is dated 10 February 2015, is that the workplace injury continues to be responsible for the plaintiff’s symptoms and consequences. In addition, if a person who has asymptomatic spinal degenerative disease prior to the occurrence of a particular incident of injury and thereafter has ongoing symptoms, it seems to me to be a very difficult task to ascertain when or why the effects of such aggravation or exacerbation have ceased and the underlying condition, previously asymptomatic, has now, in effect taken over. In short, I do not accept the proposition advanced by Mr Jones in this regard.
30 Further, I accept that the impairment or loss of body function suffered by the plaintiff is permanent within the meaning of the definition contained in s134AB(37) of the Act. I have already stated that I do not accept the proposition advanced by Mr Jones. Whilst Dr Griffiths stated that the frequency, duration and severity of symptoms are impossible to predict, Mr Kossmann has referred to the plaintiff’s incapacity in relation to performing her pre-injury duties as being permanent and likely to last for the foreseeable future. He has used similar wording in relation to aspects of her restrictions involving social, domestic and recreational activities. Mr Gale, whilst concentrating on what he perceived to be a shoulder injury, was prepared to make a whole person impairment assessment pursuant to the AMA Guides, an ingredient of which assessment is permanence. Further, the plaintiff has suffered from symptoms and consequences relating to her injury for a period in excess of 6 ½ years. In the circumstances, I am prepared to find that the requirement of permanence of impairment or loss of a body function, in this case the cervical spine, has been satisfied.
31 There is then the question of any psychological or psychiatric consequences of the physical injury which, pursuant to s134AB(38)(h), are to be taken into account only for the purposes of paragraph (c) of the definition, which paragraph is not relied upon in the present case. Neither party put before me any reports from psychologists or psychiatrists. However, in his more recent report, Mr Kossmann expressed the view that the plaintiff was suffering from depression. He also thought that there was a possibility that the plaintiff might be able to increase her working hours, but believed that her present psychological state was a barrier to this. After she had been treated adequately for depression, she may, in his opinion, be able to increase her working hours. He recommended referral to a psychiatrist. He thought that she may require counselling for depression, and suggested a review of her work capacity in some 12 months’ time and following such referral to a psychiatrist. He also seems to have been of the view that she was being treated with medication in this regard. In her evidence, the plaintiff stated that she had “got worse” since seeing Mr Jones in September 2014. When asked what part of her body had got worse, she said that it was her “mental state probably as much as the physical state” – see T37. She stated that she had found “the whole thing” very depressing. She also agreed that she had suffered depression prior to June of 2008, commenting that it was fair to say that she was susceptible to feeling “a bit sad”. However, she agreed that she had previously suffered from depression for which she had medical treatment involving the taking of medication.
32 I accept that the plaintiff has a tendency to become depressed and that there was probably some pre-disposition in this regard. Of course, psychological or psychiatric factors shall not be taken into account, but the evidence currently available does not persuade me that these are great. Certainly, in the witness box the plaintiff did not impress me as the type of person who would allow mental factors to prevent her from engaging in activities for which she was otherwise fit. There is no reference in the most current report of her treating general practitioner, Dr Griffiths, to her suffering from depressive symptoms in recent times. I appreciate that, as stated, the plaintiff has stated that she found the situation very depressing, but, in the absence of specialist evidence to the contrary, it seems that it is her physical injury which is the predominant cause of the incapacity from which she suffers. It is then a question of whether that physical incapacity is sufficient to satisfy the requirements of the statutory test.
Other developments since the injury
33 I have already described the course of the plaintiff’s medical treatment. In relation to her work activities, the plaintiff continued in her employment with National Foods Pty Ltd until 2 February 2010, when she was informed that she was being made redundant. Prior to this, she had continued performing much the same sort of work as previously, save that the number of blanks or boxes in her bundle was reduced. Whether that reduction in the number of boxes was from 100 to 50 or 50 to 25 became something of a contentious point. In her earlier affidavit, the reduction was described as being 50 to 25. In the plaintiff’s oral evidence, it was described as being from 100 to 50 – see, for example, T43 – T45. My overall conclusion is that this issue does not damage the credit of the plaintiff. The point in question is that the system of work was altered so that the plaintiff took twice as many trips with the folded boxes, but only taking half as many on each trip. I am not of the view that she was trying to mislead the Court nor, as put by Mr Middleton, that it was indicative of her preparedness to say anything in the witness box that would support her case. That is not the impression which I formed. The impression that I formed was that it was a genuine error, which she was prepared to try and correct. She admitted that she had made a mistake.
34 In any event, the plaintiff was made redundant, with some others in February 2010. The factory remained open for approximately another 10 months and then all jobs were lost. The plaintiff freely admitted that, had she not been made redundant, she would have worked on and if, after the factory was sold and closed, new ownership had re-employed her, she would have stayed on working in that job. However, she also stated that the modification to the work in relation to having to pick up half the number of boxes in a load was specifically directed to her – see T15.
35 After being made redundant, the plaintiff was unemployed for a few months, but applied for various jobs. Ultimately she obtained work in an adult day care centre at Terang, where she worked from June until December 2010. Then, in January 2011, she obtained employment with Cobden & District Health Services in Cobden, and she has continued to work there. Although she is qualified as a personal care attendant, she does not do work of that nature, which involves feeding, showering, washing, clothing residents and the like. Rather, she makes and serves breakfasts, does some laundry work and performs some kitchen duties. As I understand it, the work presently performed by the plaintiff is on a part-time basis. The history taken by Mr Kossmann would indicate that she works some 15 hours a week. I would also refer to her evidence at T42. Of course, as stated earlier, the plaintiff is seeking leave only in relation to pain and suffering damages.
Ruling
36 As was said by Brooking JA, in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 939, in serious injury applications the credit of the applicant is of great importance. This statement was referred to and repeated more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.
37 It seems to me that this is particularly so when some of the indicia which are frequently referred to (see, for example, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69) are not present. This was pointed out by Mr Middleton in his outline of the issues given at the commencement of the case (see T8 and T9) and, to some extent, in his closing address (and T56 and T57). If, for example, there has not been a substantial amount of treatment or if a plaintiff is not consuming a large amount of medication, the credit of that particular plaintiff could be seen as taking on a role of even greater importance.
38 As I have previously stated, I find the plaintiff to be a witness of truth and I have referred to the observations of a couple of medical examiners, one (Mr Jones) examining on behalf of the defendant. Accordingly, I accept her evidence as to the symptoms and consequences of injury from which she suffers. Whilst bearing in mind that she is currently receiving minimal treatment and is essentially taking over-the-counter medication, I find that, when the relevant comparison is made, the statutory test has been satisfied. In so finding, I point to the following matters, which are not listed in order of importance or significance.
(a)In her affidavit of 21 November 2013, the plaintiff referred to a constant burning pain in her right shoulder and a “real ache” in her neck, which ache is there “all the time”. In her affidavit of 4 February 2015, apart from adopting what had been said in the earlier affidavit as being true and correct, the plaintiff stated that “My neck is very painful now.” She also swore that she continues to have pain “all the time”, the condition of her shoulder and neck being unchanged since her earlier affidavit. Of course, I have already found that the symptoms and consequences from which she suffers principally emanate from the neck, this being consistent with the views of Mr Kossmann and Mr Jones, as well as with the radiological findings. I note that, when seen by Mr Kossmann in February of this year, the plaintiff was complaining of more frequent episodes of pain in the right shoulder and the right side of the neck, which she rated as being between 5 and 8 on a scale from 1 to 10. I also note that, whilst his report is somewhat confusing and he believes that the effect of the work injury has now worn off, Mr Jones has stated that the outlook for the plaintiff is one of varying degrees of neck pain and stiffness, which will slowly deteriorate in the extreme long term.
I accept the plaintiff’s sworn evidence that she has pain all the time. Constant pain is one of the indicia referred to in Haden Engineering and the subsequent cases. The plaintiff is aged 59 years. There is nothing to suggest that her life expectancy is other than normal. She has already been suffering this pain for a period approaching seven years and it is distinctly possible that she will continue to suffer it, with some deterioration, for many years to come.
(b)In relation to pain, the plaintiff has continued to work on a part-time basis. In her more recent affidavit she describes how she struggles at work and that, by the end of the day, she is usually in a great deal of pain in her shoulder and neck. This is despite the fact that she is essentially not performing the duties for which she is qualified. It is to her credit that she has continued in employment, albeit part-time. The exacerbation of pain which she experiences at the end of the working day seems to me to be something which should also be taken into account.
(c)In her affidavit of 21 November 2013, the plaintiff swore that she wakes every night with neck and shoulder pain. Frequently she would get up, have a cup of tea and walk around until the pain subsided. In her affidavit of 4 February 2015, the plaintiff swore that she continued to be troubled at night with neck and shoulder pain, often waking because of it. Interference with sleep is another factor of significance referred to in Haden Engineering and subsequent cases.
(d)In relation to employment, I accept that the plaintiff enjoyed the type of work which she did with National Foods Pty Ltd. She enjoyed the camaraderie of the workplace, but also had various qualifications. These included qualifications in occupational health and safety, first aid, and manual handling. She also had a forklift licence. She had also undergone chemical training, along with fire extinguisher and safety training. She has sworn that she not only enjoyed her work, but that she was proud of these qualifications. Despite the closing down of the factory at which she worked, there is apparently another milk and butter factory in the district. Were she physically able to perform it, it seems apparent that the plaintiff would have been attracted by work of this kind, assuming that her former place of employment did not reopen.
(e)I also accept that, because of her injury, there are a number of activities in which the plaintiff can no longer participate, or is restricted in her participation. I would refer to the following.
(i)The plaintiff has referred to difficulties which she encounters in performing such things as her domestic duties, including work in the kitchen. These have been referred to in both her affidavit of 29 November 2013 and that of 4 February 2015. She has referred to all sorts of problems which she encounters, including such matters as washing and combing her hair, cleaning her teeth, dressing, cutting up of vegetables, opening jars and bottles, changing bed linen, vacuuming, housecleaning and the like. In cross-examination, she referred to the fact that she could hang washing on a line with difficulty – see T21. In re-examination, she confirmed that the difficulties set out in her affidavit of 21 November 2013, which essentially involved those set out above, still exist – see T39. She also referred to difficulties which she might encounter in attempting to do repairs around the house.
(ii)In relation to difficulties encountered when doing her hair and the like, she stated in cross-examination that she had difficulty in combing her hair – see T30.
(iii)In her affidavit of 21 November 2013, the plaintiff had sworn as to certain difficulties which she meets in relation to kitchen duties, these involving the cutting up of vegetables, opening jars and bottles and the like. In her subsequent affidavit, she referred to the difficulty of obtaining items from high shelves in supermarkets. She was cross-examined as to such difficulties at T31. Essentially, she did not resile from what she had sworn in her affidavits, but said that she still had difficulty in doing such things as opening jars and bottles and that she no longer cut up hard vegetables at all.
(iv)The plaintiff has sworn as to difficulties encountered when driving. She has sworn that she cannot drive for longer than 20 minutes before being conscious of aches in her neck and right shoulder. In cross-examination, she confirmed that she could not drive for longer than 20 minutes and essentially gave evidence, which I accept, in relation to problems which she encounters – see T32.
(v)I also accept the plaintiff’s sworn evidence that she was a passionate gardener. I accept that, because of her difficulties, she has since poisoned her front lawn so that she does not have to mow it – see T33. She had attempted to use a petrol mower for whatever work has to be done, but has reverted to an electric mower. She does no hoeing, raking or vigorous garden work – see T38. Her description of the garden was that it was really “pretty dismal” – see T39.
(f)The plaintiff has also sworn as to difficulties she faces when going camping, an activity to which she was particularly looking forward in the future. In cross-examination, she stated that she had a Toyota Hi-Ace van effectively set up for camping, this vehicle being fitted with a bed and a kitchenette. She has been on trips, but the distances which she has covered have been described as between 70 and 100 kilometres – see T34 and T35. They have been leisurely trips involving older people. Her last trip was approximately 10 months before the hearing of this case. She also stated that she had not been camping since the last trip because things became “a little bit too much”, even though it was a small van and she still got “very tired and achy from driving” – see T37 – 38.
(g)In her affidavit of 21 November 2013, the plaintiff also described that she had difficulty in swimming overarm, no longer went swimming very often and used to really enjoy it. As far as I can see, this was not challenged in cross-examination. Accordingly, it is a consequence of injury which I accept.
(h)Whilst the plaintiff would not appear to be taking a significant amount, if any, of prescribed medication, I accept that she has been using over-the-counter painkillers. She said that Dr Griffiths had given her prescriptions for Codalgin Forte, “but I just buy lots of painkillers from the supermarket” – see T16. She also said that she had found that she was having to take painkillers more often than the two or three tablets once or twice a week which she mentioned to Mr Jones. At T24, the plaintiff said that she had taken “a fair few painkillers for quite a while”. In re-examination, she stated that did have some Codalgin Forte at home, but has found that it is no more effective than three Panadol. The view that I formed is that the plaintiff, at least currently, frequently takes over-the-counter painkilling medication. I accept that, as sworn to in her affidavit of 21 November 2013, she takes quite a lot of over-the-counter medication during the course of a working day, also on occasions taking it after she has been performing housework duties. I accept that, at times, she takes three Panadol at a time, finding this to be as effective as Codalgin Forte. The level of medication which she is taking might not be as high as in some other cases which the Court sees, but I am satisfied that she does take painkilling medication on a regular basis and sometimes taking multiple tablets.
39 I have previously referred to the fact that the plaintiff has continued in employment, albeit on a part-time basis. It is also apparent that she continued working for National Foods Pty Ltd until her employment was terminated. She also gave evidence that, had it not been so terminated, she could have continued on performing what she described as modified duties. Mr Middleton referred me to the observations of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 in relation to the possible impact of a capacity to engage in employment on an application for leave in respect of pain and suffering damages. Very fairly, he also referred me to the observations concerning such remarks contained in decisions such as Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181. In the circumstances, I do not regard the fact that the plaintiff was able to continue in full-time employment, performing duties which she described as modified, as being unfavourable to her application for pain and suffering damages. As was pointed out in Stijepic, the most that could be said of the observations of Chernov JA in Sumbul was that, if a worker successfully returns to alternative duties, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the injury are serious. However, the evidence as a whole must be considered. In the present case, there is no argument but that the plaintiff still had the capacity to continue with the duties, which she described as modified, after the injury and until her services with National Foods Pty Ltd was terminated. There is also no argument but that, had her services not been so terminated, she would have continued on performing those modified duties. However, there is also no dispute but that she is now working on a part-time basis. The fact that she cannot perform all duties for which she is qualified was not the subject of any successful challenge. When the evidence is considered as a whole, as, according to the decision in Stijepic, it should be, it does not seem to me that the plaintiff’s employment capacity since the injury should play a major part in the consideration of the plaintiff’s pain and suffering consequences.
40 Having considered all of the above, I am of the opinion that the pain and suffering consequences of the impairment or loss of body function which the plaintiff has in relation to her neck are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
41 The plaintiff is successful. She is a witness of truth who has discharged the burden of proof. Leave is given to her to bring proceedings in which she seeks pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
0
6
0