Elias-Mikre v Royal Melbourne Hospital (Melbourne Health)
[2013] VCC 1860
•2 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02871
| ZELALEM ELIAS-MIKRE | Plaintiff |
| v | |
| ROYAL MELBOURNE HOSPITAL (MELBOURNE HEALTH) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 November 2013 | |
DATE OF JUDGMENT: | 2 December 2013 | |
CASE MAY BE CITED AS: | Elias-Mikre v Royal Melbourne Hospital (Melbourne Health) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1860 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to the spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Transport Accident Commission v Kamel [2011] VSCA 110; Kelso v Tatiara Meats [2007] VSCA 267; Dwyer v Calco Timber (No 2) [2008] VSCA 260; Doolan v Rayners Sawmills [2008] VSCA 219; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment:Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.
Application dismissed as to pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with Mr M Ruddle | Nowicki Carbone |
| For the Defendant | Ms A M Sheehan | Hall and Wilcox |
HIS HONOUR:
1 In this application for leave, pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings for the recovery of pain and suffering and pecuniary loss damages, the plaintiff relies on an injury to her spine. The impairment is to the spine. The paragraph (c) aspect was not pursued.[1]
[1]Transcript (“T”) 1 and 4
2 The plaintiff relies on a compensable injury suffered in the course of employment between 2003 and 29 July 2010. The defendant admits the plaintiff suffered the subject compensable injury.[2]
[2]T23
3 The issue for determination is whether the consequences of the impairment are such that the definition of “serious injury” is satisfied under paragraph (a).[3]
[3]Section 134AB(37) and T 25
4 The test is when judged by comparison with other cases in the range of possible impairments or losses of body function, whether the consequences can be fairly described as being “at least very considerable”.[4]
[4]Section 134AB(38)(c)
5 The principal claim is that the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more.[5] In effect, the plaintiff’s case is that she is permanently unfit for suitable employment. Pain and suffering consequences are also said to be serious.
[5]Section 134AB(e)(i)
6 The plaintiff is aged thirty-five years. She came from Ethiopia to Australia in 1999 and found employment shortly after attending English classes for some three months or so. Her English is broken and an interpreter was required in court but most of her evidence was given directly. She found work in 2000 as a cleaner for the next two years and then worked as a kitchenhand for some months while also working a second job. In about early 2003, she started, via an employment agency, to work for Melbourne Health as a patient services assistant. Apart from going back to Ethiopia to visit family, she worked there until finally ceasing on 29 July 2010.[6]
[6]Plaintiff’s Court Book (“PCB”) 7-8
7 The back injury was first suffered in 2006 and she required a few days off.[7] She aggravated it again in July 2009 and treatment continued again at an increased level.[8] She had about one month off work and eventually got back to full hours which she slowly built up over a period of some seven months or so.[9] She was pregnant but said the reason for going off work finally on 29 July 2010 was because of her back.[10] Generally her health otherwise has been good. She has two sons, born on 24 February 2011 and on 29 July 2012.
[7]PCB 17a
[8]PCB 8-9
[9]PCB 12
[10]PCB 176
8 The plaintiff’s treatment has included a lot of radiological investigation, several general practitioners, medication, including narcotic Panadeine Forte, referral to specialist orthopaedic and neurosurgeons, hospital treatment at the Royal Melbourne Hospital Pain Clinic, as well as exercises and physiotherapy, together with hydrotherapy. Her treatment at times has obviously been interrupted by the two pregnancies. I accept the evidence of the need for medication for daily pain, and it points to a very considerable consequence of itself.[11]
[11]Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph 68 and Kelso v Tatiara Meats [2007] VSCA 267 at paragraph 199
9 The plaintiff presented as a reliable and matter of fact witness who did not exaggerate her complaints. She has limited support from her partner but stoically puts up with her symptoms and considerable responsibilities as a mother. Her stoicism does not disadvantage her.[12] In court she needed to constantly change her posture and sit and stand, which I found was consistent with her complaints in that regard. She cannot see herself getting back into any work that she is familiar with. She said her pain is increasing and nothing is working in terms of treatment, and she seems to have reached an acceptance of that situation.
[12]Dwyer v Calco Timber (No 2) [2008] VSCA 260 at paragraph 3 and Transport Accident Commission v Kamel (supra) at paragraph 67
10 She is a woman who has overcome much in life and, without much support, approaches her duties as a mother conscientiously and largely on her own.[13] I found her motivated in relation to dealing with the problems life has dealt her, as well as in regard to employment. This is consistent with her history after arriving in this country.
[13]T37-38
11 There are a large number of medical reports across the two Court Books and at the outset it should be said that it is really the up-to-date opinions that are of most use in terms of assessing the consequences now in 2013. This is an application where no doctors gave oral evidence and the task is to reach conclusions on reports without the doctor’s explanation. This is often difficult.
12 Dealing with the order of treating doctors, while there is no particular medical evidence about the 2006 injury which only required minimal treatment, there is a note from the Royal Melbourne Hospital of the plaintiff attending on 13 July 2009 after the trolley incident that has led to her major difficulties. Back and leg pain were noted and painkillers and physiotherapy ordered. She was admitted overnight for hospital treatment on that occasion.[14]
[14]PCB 62b-c
13 The plaintiff then went to her local doctor, Dr S Naidu, in Brunswick on 22 July 2009. A CT scan followed and the doctor reported central disc protrusions at L4-5 and L5-S1 “… contacting L5-S1 nerve roots”.[15] Treatment was active with medication, hydrotherapy, physiotherapy and a referral to a specialist, and she was given WorkCover certification off work. In addition, pool and gym treatment were recommended.[16] A back brace and TENS machine have also been required.[17] The first actual report from Dr Naidu confirms the handwritten notes about the initial attendance at this clinic.[18] Her treatment is indicative of a level of pain that I find is at least a very considerable consequence.[19]
[15]PCB 23b
[16]PCB 23c-e
[17]PCB 17b
[18]PCB 23f
[19]PCB 16, 17c
14 The plaintiff was referred to Mr David de la Harpe, orthopaedic surgeon, in October 2009. She attended the general practitioner on multiple occasions from July 2009 onwards. He noted local massage was also tried. It was then confirmed on 30 June 2010 that she was pregnant and the treatment at the clinic ceased in February 2011. No prognosis is really given in this first report but it is clear her conservative treatment was very extensive and active. The diagnosis was the two-level disc bulges with nerve root contact at L5 and S1.[20] This two-level pathology for a woman just then in her 30s is significant.
[20]PCB 23g
15 Mr de la Harpe diagnosed mechanical problems in the degenerative spine and thought she was limited to lifting 5 kilograms maximum, with no sitting or standing for more than thirty minutes without changing posture. He also thought no repetitive bending or twisting should occur. These limits would remain for the foreseeable future and he thought the condition was stable.[21]
[21]PCB 38
16 Mr de la Harpe reviewed the plaintiff in December 2012 when the diagnosis was aggravation of pre-existing degenerative disc disease caused by work.[22] His views were decidedly pessimistic on this second occasion. He considered:
“I do not believe Ms Elias has a capacity for unrestricted pre-injury or manual employment. I believe the injuries preclude her from participating in social, recreational, domestic and employment activities.”[23]
[22]PCB 39
[23]PCB 40
17 The restrictions were permanent and the prognosis was poor. He thought surgery would not benefit her. Pain and suffering consequences are clearly indicated; however, in saying she is unfit for “unrestricted” employment, I do not conclude he thought her permanently unfit for suitable employment. I accept these views of the treating specialist surgeon who first saw her over four years ago and then had the advantage of seeing her again last year.
18 A Dr P Hegarty, at the Staff Health Service at the Royal Melbourne Hospital, took over the general practitioner treatment and reported in November 2011 that the pain was now chronic. The plaintiff was unable to work in even modified duties.[24] His diagnosis was “… low-back pain from L4-5 and L5-S1 disc prolapses”.[25]
[24]PCB 27
[25]PCB 28a
19 His long series of reports and letters include the opinion that pregnancy was not relevant to her work capacity. She did not have a current work capacity, in his view, putting pregnancy aside.[26] He organised a referral to a neurosurgeon, as well as conservative treatment and home help with childcare.
[26]PCB 28c
20 All these are indicative of very serious consequences for this young lady. He said, in January 2013, “… she remains in pain virtually all the time”.[27] His very up-to-date report of 21 October 2013 saw the prognosis described as poor. He said to be able to return to the workforce in the future she will need multidisciplinary programs as recommended by Mr D’Urso. To date these have not occurred. He said:
“She will remain unable to undertake any physical work. She is unable to leave and to do computer courses, or other retraining, due to her constant pain, and her inability to sit for any length of time.”[28]
[27]PCB 33
[28]PCB 33d
21 However, he ended by saying if she could do such a rehabilitation program, “… then their (sic) remains the potential for her to join the workforce even if part time initially, in the future”.[29] I do not read his last comment as supporting a permanent incapacity for suitable employment. I read it as saying effectively it is too early to say.
[29]PCB 33 b
22 Mr A Morokoff, neurosurgeon, saw the plaintiff only once on 2 August 2011 at the referral of Dr Hegarty. His diagnosis was an L4-5 and L5-S1 disc injury and he did not feel cortisone injection treatment would help, but analgesics and exercises may. He referred her to the Royal Melbourne Hospital Pain Clinic. After seeing her once he could not comment on stability.[30]
[30]PCB 26b
23 A series of letters from the Royal Melbourne Hospital Pain Clinic have been tendered.[31] These largely speak for themselves. The considerable conservative treatment is listed for what is recorded as “a burning pain at the lower back” and “a stabbing knife-like pain” in the leg associated with pins and needles down to the heel.[32] She had been taking too much medication, it seemed, and she needed advice regarding this.[33] This is consistent with her complaint of daily constant pain.
[31]PCB 62d-67(v)
[32]PCB 63-64 and 67(i)
[33]PCB 67
24 The last report in this series lists the extent of the complaints that impacted on nearly every aspect of daily life.[34] Panadeine Forte of six to eight tablets per day, plus four paracetamol was recorded but there were side effects.[35] It was predominantly discogenic pain[36] and medication dosages changed at times. The medication I accept has been very considerable when she was able to take it at the times she was not pregnant. Physiotherapy was organised but it is clear that the “medical interventional options are limited”. [37]
[34]PCB 67(ii)
[35]PCB 67(iii)
[36]PCB 67(iv)
[37]PCB 67(v)
25 What is clear from the involvement at the Pain Clinic is that, in spite of a number of treatment modalities, there has really been little progress overall. I accept the complaints the plaintiff makes of pain and disabilities as accurate. The daily consequences she describes I find are very considerable.
26 The overall picture from the material from these treating doctors is a rather pessimistic one for this thirty-five-year-old plaintiff. I accept the consequences that have been described will remain for the foreseeable future.
27 Dr H Sutcliffe, occupational physician, saw the plaintiff in September 2012 for medico-legal purposes. She saw the plaintiff again in September 2013. She diagnosed disc injury.[38] The prognosis was poor.[39]
[38]PCB 49-50, 53f and 53g
[39]PCB 50 and 53h
28 She thought that with appropriate training, increased English literacy and restrictions on duties, “…she would be able to return to work for 3 hours, 4 days a week initially”.[40] To go above this would increase the risk of injury.
[40]PCB 52
29 In the 2013 report, she said:
“I believe that Ms Elias-Mikre has no capacity for her pre-injury occupation as a patient services attendant now or into the foreseeable future as a result of the work-related physical injuries sustained with disc derangement at L4-5 and L5-S1. She can no longer perform the heavy duties required, including cleaning, bending, twisting, turning, lifting and removal of rubbish.”[41]
[41]PCB 53g-h
30 These restrictions were permanent and she had a poor prognosis. I conclude from Dr Sutcliffe’s reports that heavy work is permanently out of the question but she does not really address suitable alternative duties specifically.
31 I accept when she said about very considerable consequences outside work:
“As a result of the persisting pain following the injury Ms Elias-Mikre has sustained very substantial adverse impact on her capacity for activities of daily living in domestic, social and leisure tasks in particular. She has limited capacity for sitting and standing and as a result has had an adverse effect on all of these aspects of her life. This likely to continue into the future.”[42]
[42]PCB 53h
32 The medico-legal evidence included Mr P D’Urso, neurosurgeon, who in September 2013 diagnosed injuries to the lumbar spine. This involved aggravation of degenerative changes and he noted L4-5 and L5-S1 annular tears and minor disc prolapse in the degenerative change. There appeared to be some facet arthropathy at L5-S1.[43] Conservative treatment was recommended but as a last resort two level interbody fusions could be considered.
[43]PCB 67o
33 Regarding work, he thought she “… has no capacity for unrestricted or pre-injury employment. I consider her to have a permanent incapacity for unrestricted manual employment or pre-injury employment”.[44] This was a permanent situation with respect to heavy manual work. She may have a capacity he thought for part-time light employment. He hoped she would improve with time.[45] His evidence does not support a permanent loss of 40 per cent or more when one considers suitable alternative employment.
[44]PCB 67o
[45]PCB 67p
34 The medico-legal opinions arranged by the defendant included one from Mr Kendall-Francis, surgeon, in 2010. It is too dated now to assist very much in evaluating the current consequences. Nevertheless, he diagnosed multi-level constitutional degenerative changes with “… quite severe left lower limb motor and sensory abnormalities”.[46] He thought there was no current work capacity at that stage but it is now some three years ago.[47] She needed to be reviewed.
[46]PCB 67e
[47]PCB 67f
35 Mr P Kudelka, orthopaedic surgeon, saw the plaintiff in March 2012 when she was some 14 weeks’ pregnant. He diagnosed aggravation degenerative change. He thought, “I think the patient effectively has no current work capacity because of her pregnancy, her back injury and her lack of education and training and other than physically demanding tasks”.[48] A little further he stated, “I do not believe the patient would have no current work capacity indefinitely but is likely to have a permanent impairment with respect to physically demanding tasks involving mechanical strains on her spine”.[49] Again, he saw permanent incapacity but for physically demanding work and not work generally.
[48]Defendant’s Court Book (“DCB”) 63
[49]DCB 63
36 Due to her being pregnant at the time he was asked to comment further. In a letter of 12 April 2012, he said that if she was not pregnant “ … she could return to part-time work, however she is unable to do any bending, stooping, or lifting because she has a back injury as well as being pregnant”.[50] This does not support a permanent loss of 40 per cent or more for suitable employment.
[50]DCB 83
37 Very early opinions have been tendered by the defendant from Dr Chris Baker, who saw the plaintiff over four years ago, Mr D Nye, who saw the plaintiff about three years ago, and from Dr M Brown, who saw the plaintiff in June 2011. These opinions are all outdated and are of limited use.
38 Dr Baker, occupational medicine specialist, saw the plaintiff only once. The opinion was that her condition was aggravation of degenerative disease but was obviously not stable at that stage.[51]
[51]DCB 92-93
39 Mr Nye, neurosurgeon, also saw the plaintiff only once. It is also of little assistance. He diagnosed an aggravation of pre-existing degeneration with no current work capacity because of the condition, as well as her pregnancy at that time.[52]
[52]DCB 82
40 Dr Brown saw the plaintiff once and he thought that her condition was primarily constitutional in nature and he thought it was likely that employment had caused some exacerbation but its effects had ceased. He thought she had a current work capacity for her modified pre-injury duties or alternative duties.[53] However, he thought that she should not work at alternative duties involving regular bending, heavy lifting or other physically demanding tasks. He found some inconsistencies at physical examination. He thought there was an element of depression present. However, as I read his report, he considered that she certainly suffered from some organic back pain. He repeated the limit on regular bending or heavy lifting which I read as related to a physical impediment. Other than those restrictions he considered she was able to work.
[53]DCB 57
41 A more up-to-date opinion is from Mr M Dooley, orthopaedic surgeon, in November 2012 and October 2013.[54] He also diagnosed the aggravation of pre-existing degenerative changes in the low back. He thought invasive treatment would be unpredictable in relation to any improvement.[55] As to work capacity, he said:
[54]DCB 46-49
[55]DCB 49
“From an orthopaedic viewpoint only, Ms Elias-Mikre would be advised to avoid heavy physical activity and work that involved a lot of bending, lifting and twisting. She has the physical capacity to carry out light physical work and clerical duties.”
He then added:
“I believe that she does have the physical capacity to return to light duties clerical work such as that would be involved in the carrying out of light cleaning, customer service, clerk and kitchen-hand type work”.[56]
[56]DCB 49
42 He noted that the level of symptoms was greater than he would expect to see from her condition. His view supports incapacity for heavy physical work only.
43 In 2013, he said:
“Ms Elias-Mikre would be unable to carry out regular heavy physical work or work that involved a lot of bending, lifting and manoeuvring. She has a physical capacity to carry out light physical work and clerical duties.”[57]
[57]DCB 49c
44 I do not read him as questioning whether the plaintiff’s complaints are genuine, but he was now of the view, in 2013, that they are more due to the psychological reaction to her situation than the organic injury.[58] The “bending, lifting and manoeuvring” she is unable to perform at work is relevant to the multiple daily demands on any mother of two youngsters, and supports serious consequences regarding loss of enjoyment of life.
[58]DCB 49c
45 Dr David Barton, occupational physician, reported in August 2013. While he noted some disc desiccation and disc bulging on the four MRI scans, he thought there was a significant degree of overlay.[59] She may have developed “a mild soft tissue injury” complicated by a degree of illness behaviour and functional overlay.[60] He thought she had no physical incapacity for her pre-injury work. I do not accept this view as it is inconsistent with the vast majority of doctors who have seen the plaintiff on both sides and placed restrictions on her physical capacity for heavy work and activity. He does not mention receiving any material from any treating doctors or anyone else for that matter.
[59]DCB 96(d)
[60]DCB 96e
46 Dr Barton’s opinion relies on only one examination of the plaintiff many years after her injury was sustained and apart from alluding to inconsistencies that he pointed to as supporting a significant degree of overlay, I do not accept his opinion that from a physical perspective there is no work incapacity at all. His views are unacceptable in the face of a large body of other evidence from people better equipped to form opinions having seen her more often and with more documentation.
47 Two reports from Dr R Wilkie, consultant radiologist, have been tendered.[61] He was asked to comment on the radiology but he was not given all of it. For example, the MRI scan of 4 October 2010[62] was not included. He looked at four reports and agreed with some comments and disagreed with others. He answered questions put to him on what is really a causation issue. He does not assist in gauging consequences of the admitted compensable injury. He then reviewed some up to date scanning and there is reference to an MRI scan of 23 November 2013 which is obviously a misprint.[63] Dr Wilkie commented on the lack of any real progression of the pathology as shown in the radiology but said nothing really about the consequences.
[61]DCB 50 and 54(a)
[62]PCB 22
[63]DCB 54(b)
48 The defendant showed video activities over five dates between 22 November 2012 and 8 November 2013.[64] This totalled a little over 30 minutes and really only showed some of the activities the plaintiff said she could do in her affidavit. She said she drives a car, puts young children into car seats and goes out to have coffee with friends.[65] The film did not impact on her credit.
[64]Exhibit 1
[65]PCB 17c
49 She demonstrated in court the postures needed to place her small children in car seats[66] and there was nothing in the video evidence that was inconsistent with that. Moreover, there were no repetitive, sustained or heavy activities shown. It is admitted that surveillance totalled some 45.7 hours and included nine other days in addition to the five dates shown in the video. Looking at the film overall, it did not dissuade me from a conclusion that the plaintiff was honest and reliable.
[66]T58-60
50 The vocational assessment material from Ms S George, occupational therapist, is found in a report of 27 August 2013 and a further report on 28 October 2013.[67] Looking at retraining and alternative employment, Ms George formed the view that on the open labour market there was no unrestricted recognised occupation that the plaintiff was suitable for following her injury. This was a permanent situation.[68]
[67]PCB 67q and 67z(iii)
[68]PCB 67r
51 After an analysis of a number of suggested alternative occupations that she investigated, the plaintiff was found to have a lack of capacity.[69] With regard to the question of retraining or rehabilitation, she thought that it was unlikely to lead to any suitable recognised occupation in the open labour market for the plaintiff. She pointed to the difficulties by way of language and computer skills that faced this plaintiff in terms of any retraining. She laboured under the misapprehension the plaintiff had received occupational rehabilitation services which failed to lead to employment.[70] In fact the plaintiff had only seen Ayres once and she was then pregnant and rehabilitation had not really occurred. It is untested as to its benefits or otherwise.
[69]PCB 67u-67w
[70]PCB 67w
52 The second report of Ms George really dealt with some suggested occupations with reference to up-to-date reports of Mr Dooley and Dr Barton provided to the defendant. She looked at the suggested occupations. She found after analysing these that the plaintiff did not have the capacity for those jobs.
53 It is the medical opinions that are the principal source of evidence in relation to capacity for employment. The vast majority of doctors agree the plaintiff is permanently unfit for pre-injury and other heavy duties. Ms George goes further than that. In effect she says the plaintiff is permanently and totally unemployable. I do not accept this opinion.
54 The difficulty faced by the plaintiff in this case concerns the onus placed on her by s134AB(38)(g).
55 The three affidavits provided no evidence whatsoever about retraining or rehabilitation attempts.[71] No oral evidence was led on the topic. I raised the question of paragraph (g) in submissions.[72] Overnight I gave the parties the option of applying to reopen their cases and tender additional evidence.[73] This was in spite of the case being adjourned part heard on the second day of the hearing on 6 February 2013 due to inadequate affidavit evidence.[74]
[71]T114-115, 117
[72]T114-115
[73]T118-119
[74]Transcript of Judge Hogan February 5-6, 2013, pages 36-39
56 With leave the next day, a short affidavit from the plaintiff was tendered with exhibits[75], as well as one from the defendant.[76] In the plaintiff’s affidavit it is said:
“I did a Certificate I at Victoria University for approximately two months. I funded the course. I could not continue with Certificate II because I could not sit due to the pain, and I had difficulty concentrating in class.”[77]
[75]Exhibit C
[76]Exhibit 3
[77]Exhibit C
57 There is no information as to when this course was done, what skills, if any, she received, and whether she was pregnant at the time.
58 Ms George recorded that it was in 2010.[78] Whether the course was before or after she went off work, or how advanced into the pregnancy she was, is just not mentioned.
[78]PCB 67w
59 The further affidavit provided by the defendant consists of a letter to the plaintiff on 6 January 2012 that indicated her entitlement to choose one of three rehabilitation providers and suggesting she do so.[79] The plaintiff did not reply. The insurer then wrote on 3 February 2012, made the choice for her and appointed Ayres Management Services.[80]
[79]Exhibit E, letter ZEM1
[80]Exhibit C, letter ZEM2
60 The plaintiff was assessed by that group on 6 March 2012.[81] They identified suitable jobs but were awaiting confirmation of her current work capacity and were aware she was 14 weeks pregnant.[82] The plaintiff needed to be reviewed in twelve months with the benefit of current medical opinion was the considered position.[83] The report stated:
“… she should be considered for retraining in the area of English literacy and computer skills in order to increase her transferrable skill base and increase chances of securing employment. Medical opinion in respect to her capacity to complete such training should be sought prior to arranging such training.”[84]
[81]Exhibit C, report ZEM3
[82]Exhibit C, page 2
[83]Exhibit C, page 13
[84]Exhibit C, page 13
61 It seems that neither Ayres nor the plaintiff have done anything further with respect to rehabilitation and retraining since that report.
62 The defendant pointed critically to the fact the plaintiff had not contacted Ayres to follow up after her second child was born. I do not find there is anything unreasonable about the plaintiff having done nothing over the last sixteen months or so by way of attempts to rehabilitate or retrain. She has had her hands full with her two infant sons. She is on her own.[85] However, the fact remains her residual capacity is largely untested. She worked full time up until July 2010 and, whilst she said she went off work due to back pain, she also knew she was pregnant at that time.[86]
[85]T37-38
[86]PCB 17b
63 She is still very young and the question of rehabilitation and retraining has really not been explored.
64 With her family commitments there has really been no prospect for her to even consider rehabilitation or retraining at the time of this application. The heavy onus is nevertheless on her of proving an inability to be retrained or rehabilitated, or undertake suitable employment or any employment including alternative employment or further or additional employment.[87]
[87]Doolan v Rayners Sawmills [2008] VSCA 219 at paragraph 107
65 Looking at the medical evidence overall, I am not persuaded the plaintiff has discharged the onus placed on her by paragraph (g). I accept she has a permanent incapacity for her old duties or other heavy work; however this does not amount to a permanent loss of 40 per cent or more capacity for suitable employment. The plaintiff has failed to discharge the onus with respect to proving the requisite loss of earning capacity.
66 In relation to pain and suffering consequences, the judgment is an evaluative one involving a synthesis of fact and degree.[88] Her young age is relevant.[89] I am satisfied that on all the evidence in this case the plaintiff’s daily life, which is impacted by constant pain, leads to a conclusion that these consequences can be fairly judged in the range of possible impairments as being at least very considerable. I accept her pain is chronic and her leg pain is worsening.[90] There is virtually no contest on the matters she deposes to in her affidavits, in terms of her home life and the difficulties she has in that regard by way of housework, reliability and handling her children. The limits on her capacity to sit and stand for long periods are very considerable consequences in themselves. Consequently, I find that the pain and suffering consequences have reached the requisite degree.
[88]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph 59
[89]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraphs 74-75
[90]PCB 17c
67 Accordingly, I dismiss the application for leave to bring proceedings for pecuniary loss damages but grant leave with respect to pain and suffering damages.
68 I will hear the parties as to costs.
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