Escalante v Adidem Pty Ltd

[2011] VCC 1188

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-03842

JOSEFA ESCALANTE	Plaintiff
v
ADIDEM PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 28 July 2011
DATE OF JUDGMENT:	12 August 2011
CASE MAY BE CITED AS:	Escalante v Adidem Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1188

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – whether the plaintiff suffered a compensable injury – whether the loss of earning capacity consequences were serious – a finding of loss of earning capacity consequences does not necessitate in a separate finding of pain and suffering consequences – presence of a secondary psychiatric condition – whether any disentangling was called for: section 134AB (38)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC with	Maurice Blackburn
Ms Pilipasidis
For the Defendant	Ms H Donmez	Thomsons lawyers
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed 31 August 2010 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.

3          Mr J Mighell SC appeared with Ms M Pilipasidis of Counsel for the plaintiff and Ms H Donmez of Counsel appeared for the defendant.

4          The plaintiff submitted that she suffered a serious permanent impairment or loss of the function of her neck.

5          The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

• Dr Thomas, consultant in rehabilitation and pain medicine, gave evidence and was cross-examined;

• Ms Green, psychologist, gave evidence and was cross-examined;

• Ms Angel, human resources consultant, gave evidence and was cross- examined;

• The plaintiff tendered an open letter of the defendant’s solicitors: Exhibit A;

• The plaintiff tendered her terms and conditions of employment: Exhibit B;

• The plaintiff tendered her Court Book (“PCB”), pages 15-108: Exhibit C;

• The defendant tendered its Court Book (“DCB”), pages 15-128: Exhibit 1;

• The defendant tendered the plaintiff's terms and conditions of employment dated 1 October 2007: Exhibit 2;

• The defendant tendered the plaintiff's terms and conditions of employment dated 17 March-31 May 2008: Exhibit 3.

The Statutory Scheme

6          The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that she has suffered a “serious permanent impairment or loss of a body function”.

7          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that she suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by sub-section (19)(a), sub-section (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe".
(f)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(g)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(h)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(i)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(j)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(k)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(l)	I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

[3]             Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

The Plaintiff’s Background and the Incident

8          The plaintiff was born on 6 July 1965 in El Salvador. She is now forty-six years of age. She is a widow. She has two adult children.

9          The plaintiff migrated to Australia in 1987. She first entered the workforce in 1986 in factory work. In 2006, she commenced employment with the defendant at its factory premises at Mulgrave as a picker and packer.

10        The tasks which the plaintiff was required to undertake involved lifting trays of stock, and lifting and manoeuvring boxes and other items of stock. She describes that work as being repetitive, and at times heavy work.

11        In about January 2008, the plaintiff was performing picking and packing work. She experienced sudden pain in her right shoulder and neck. She experienced pain in her right arm and noticed swelling in the fingers of her right hand. She obtained treatment through first aid provided by the defendant.

The Plaintiff's Medical Treatment

12        After initially suffering injury, the plaintiff continued working. She first saw Dr Mendis, general practitioner, on 7 February 2008. On that occasion the plaintiff complained of constant right shoulder pain aggravated on movement. Dr Mendis prescribed the plaintiff Celebrex (an anti-inflammatory) and recommended that she undertake light duties only.

13        Dr Mendis referred the plaintiff to have an x-ray. The appearances on the x-ray were normal. The plaintiff returned to see Dr Mendis on 28 March 2008, and then again on 26 June 2008. On the first occasion he referred her to have an ultrasound of her right shoulder. He then referred her to have physiotherapy, which did not improve her condition. On the second occasion he referred her to Mr Robin, orthopaedic surgeon.[4]

[4]             PCB 25-26

14        The plaintiff first saw Mr Robin on 1 July 2008. On examination, Mr Robin was left with the clinical impression that the plaintiff had features of rotator cuff impingement and tendinitis with a possible rotator cuff tear and also features of a cervical disc injury with brachial neuralgia. He referred her to have an MRI scan of both her cervical spine and her right shoulder. The MRI scans were taken in July 2008. The results of the MRI scans were confirmation of a full thickness tear of the right supraspinatus tendon and cervical disc pathology at C4-5 and C5-6.

15        Mr Robin recommended that the plaintiff undergo surgery on her right shoulder. He performed that surgery on 2 October 2008. He decompressed the subacromial space and the AC joint, and repaired the full thickness tear of the supraspinatus tendon.

16        Mr Robin reviewed the plaintiff on a number of occasions. The last occasion was 1 May 2009. He was of the opinion that she had obtained a good result from surgery, in that the movements of her right shoulder were approaching normal. However, he still harboured the opinion that she had suffered a cervical disc injury and cervical brachialgia.[5]

[5]             PCB 39

17        Dr Mendis reviewed the plaintiff on a number of occasions after the surgery. He liaised with the defendant and organised for the plaintiff to return to work on light duties for two hours per day, two days per week, commencing on 1 March 2009. She persisted with that working regime for two months. She stopped working due to an aggravation of her right shoulder pain.

18        Dr Mendis referred the plaintiff to Mr Xenos, neurosurgeon, regarding her neck injury. The plaintiff saw Mr Xenos on one occasion on 25 May 2009. Mr Xenos recorded a lengthy history from the plaintiff regarding the work she did for the defendant and its relationship with the onset of pain in her right shoulder and neck.

19        Mr Xenos had the MRI scan of July 2008. It was his opinion that it demonstrated multilevel degenerative changes from C3-4 down to C5-6 but predominantly at the C5-6 level where there was a right-sided focal disc prolapse and a bony spur formation which he considered was causing some nerve root compression. It also demonstrated that the C4-5 disc space was also degenerate with some bulging centrally; however, he was not convinced that it was clinically relevant.

20        Mr Xenos discussed the question of surgery with the plaintiff. Specifically, he suggested a C5-6 discectomy and fusion which would not help the plaintiff’s chronic neck and right shoulder pain, but would alleviate the symptoms of pain and paresthesia in her right arm. He suggested the plaintiff consider her options.[6]

[6]             PCB 46-47

21        Dr Mendis referred the plaintiff to Mr Drnda, neurosurgeon, for a second opinion. The plaintiff saw Mr Drnda on one occasion only on 29 June 2009. He also reviewed the MRI scan of July 2008. He recorded a lengthy history regarding the work she did for the defendant and its relationship with the onset of pain in her right shoulder and neck.

22        Mr Drnda considered that the plaintiff was not a suitable candidate for the surgical treatment proposed by Mr Xenos. He organised for a further MRI scan. He did not see the actual scan, but read the report of the radiologist. It would appear that he expected that the plaintiff would see him again for a review. She did not. He noted that the degenerative changes had progressed, demonstrating further degenerative changes at C4-5 and C5-6.

23        Mr Drnda considered that the plaintiff's work probably accelerated the degenerative changes in her cervical spine.[7]

[7]             PCB 50-51

24        Dr Mendis says he referred the plaintiff to Dr Thomas, consultant in rehabilitation and pain medicine.[8] However, it would appear that the plaintiff did not see Dr Thomas for treatment. She was referred to him by her solicitors for the purpose of obtaining a medico-legal opinion.

[8]             PCB 34

25        Dr Mendis has continued to treat the plaintiff. In his last report dated 13 July 2011,[9] he said that the plaintiff’s neck pain had increased, and that she evidenced further restriction of movement in her neck in all directions. He said that she was unable to sleep at night due to constant pain. He prescribed Panadeine Forte to relieve the pain. He also said that her mental condition had deteriorated. He changed her medication for the treatment of depression from Cipramil to Efexor. He was of the opinion that the plaintiff was unfit for work, and furthermore, he was of the opinion that she was likely to be unfit for work in the future.

[9]             PCB 32-35

The Medico-Legal Opinions

26        Dr Thomas examined the plaintiff on 3 March 2011. In his report dated 9 March 2011, he was of the opinion that the plaintiff was fit for very light process work lifting less than 1 kilogram frequently at bench level only. If work of that kind could be found for her, he considered that she could work 24 hours per week. He was of the opinion that she was no longer fit for work as a picker and packer.[10]

[10]           PCB 68

27        Ms Donmez cross-examined Dr Thomas as to whether the plaintiff was fit for jobs which were light in nature, and in particular, as a pharmacy assistant. Ms Donmez put the opinions of Mr Brown, occupational physician, Mr Klug, neurosurgeon, and Mr Simm, orthopaedic surgeon[11] relevant to their assessments that the plaintiff had a capacity for suitable employment. Dr Thomas did not alter his opinion that with the restrictions he referred to in his report, the plaintiff could not work more than 24 hours.[12]

[11]           Each were engaged by the defendant

[12]           Transcript 65-68

28        However, in re-examination, Dr Thomas essentially described his opinion of the plaintiff's capacity to work as only theoretical. He said that jobs do not exist with the restrictions which he would place on the plaintiff. In relation to being a pharmacy assistant, he was aware, through his own exposure to a pharmacy when he worked as a general practitioner, that she would not only be unfit for that work, but that her capacity for employment was very, very limited.[13]

[13]           Transcript 69-71

29        Mr Bittar, neurosurgeon, examined the plaintiff on 10 March 2011. He was of the opinion that the plaintiff was suffering from an aggravation of cervical spondylosis caused by the work she undertook with the defendant. He was of the opinion that her work capacity was “zero” and that situation was likely to be permanent. He suggested that theoretically she would be able to work no more than two hours per day.[14]

[14]           PCB 73

30        Dr Mutton, consultant occupational physician, examined the plaintiff on 9 January 2009 and 1 June 2009. He was of the opinion that the plaintiff had suffered an aggravation of pre-existing cervical spondylosis and that it may have progressed to radiculopathy; that is, the pain in both shoulders and upper limbs. At the time when he examined the plaintiff on 1 June 2000, he was of the opinion that the plaintiff had no capacity for work; however, that opinion was based upon both the aggravation of the cervical spondylosis and her right shoulder.[15] He noted that she was progressing satisfactorily with her right shoulder.[16]

[15]           DCB 31

[16]           DCB 32

31        Dr Brown, occupational physician, examined the plaintiff on 22 July 2008, 23 March 2010 and 27 April 2011. The plaintiff reported a number of conditions to Dr Brown, including pain in her right shoulder; her neck; her right elbow and her wrists.[17]

[17]           DCB 44-46 and DCB 48-49

32        Dr Brown diagnosed the plaintiff as suffering from rotator cuff symptoms in both shoulders and symptoms suggestive of bilateral carpal tunnel syndrome. He considered that there had been no aggravation of the cervical spondylosis. He also considered that there was not much to find on physical examination of her right elbow. It would appear that he then expressed an opinion based upon the accepted injury to her right shoulder, that the plaintiff could not undertake unrestricted packing tasks, but was fit for work as a pharmacy assistant, sales assistant and customer service clerk full-time, and that she was a candidate for retraining.[18]

[18]           DCB 49-50

33        Mr Klug examined the plaintiff on 8 September 2009 and 13 April 2011. He was of the opinion that the plaintiff was suffering from symptoms of a rotator cuff injury in her right shoulder which had not fully resolved. He was also of the opinion that the plaintiff was suffering from symptomatic cervical spondylosis; however, he was less certain about whether it was aggravated by her work, but he considered that was not possible to exclude a relationship with her work.

34        Mr Klug was of the opinion that the plaintiff had a partial incapacity to undertake restricted types of employment. He could see no reason why she could not undertake retraining if required. After examining the plaintiff on the second occasion, he was of the opinion that she could work as a sales assistant in a pharmacy, as a general sales assistant and as a customer service clerk.[19]

[19]           DCB 56-57 and DCB 65-66

35        Mr Simm, orthopaedic surgeon, examined the plaintiff on 18 April 2011. He was of the opinion that the plaintiff had suffered an aggravation of cervical disc degeneration with referred symptoms into her right shoulder girdle and arm. He also noted that the plaintiff was continuing to complain of symptoms in her right shoulder and also in her left shoulder. He considered that she had an established pattern of pain with features of chronic pain. He considered that she was not fit for her pre-injury employment, but was fit to undertake employment as a sales assistant in a pharmacy, general sales assistant and a customer service clerk.[20]

[20]           DCB 79-80

36        Both Mr Klug and Mr Simm were of the opinion that the plaintiff was not immediately fit for full-time employment in relation to the occupations on which their opinions were sought. Both were of the opinion that the plaintiff would need to commence limited hours with a graduated return in mind.[21]

[21]           Mr Klug at DCB 66 and Mr Simm at DCB 80

Serious Injury

37        I accept the plaintiff's evidence that the work which she was required to undertake as a picker and packer was physically arduous work which placed a degree of stress and strain on her neck which resulted in an aggravation of pre-existing cervical spondylosis which remains symptomatic.

38        Furthermore, I accept the evidence of Dr Mendis, Mr Robin, Mr Xenos, Dr Drnda, Dr Thomas, Mr Bittar, Dr Mutton and Mr Simm that the nature of the plaintiff's work resulted in an aggravation of pre-existing cervical spondylosis, that it impairs the function of the plaintiff's neck and that the impairment is permanent.

39        I do not accept the evidence of Dr Brown that there was no aggravation of the pre-existing cervical spondylosis, nor the evidence of Mr Klug that there is any doubt that such an aggravation occurred.

40        The plaintiff gave her evidence in a straightforward, uncomplicated and entirely believable fashion. She adopted the evidence contained in her affidavits sworn 12 April 2010 and 27 July 2011. She also gave oral evidence and was the subject of extensive cross-examination conducted by Mr Donmez, the purpose of which was to test whether the plaintiff was as disabled as she stated in her affidavits. The cross-examination was directed largely to the plaintiff's claim for loss of earning capacity consequences, with very little being directed to the plaintiff's pain and suffering consequences.

41        I accept the plaintiff's evidence that she developed pain in her neck with pain referred through her right shoulder and into her arm, extending down as far as her hand.

42        I accept the plaintiff's evidence that she suffered a discrete injury to her right shoulder which was treated by Mr Robin. I accept Mr Robin’s evidence that after he operated on the plaintiff’s right shoulder, that she gradually experienced a rate of recovery to the point where she had almost full movement of her right shoulder.

43        The extent of the recovery experienced by the plaintiff then left the question whether the remaining pain she was experiencing through her right shoulder and into her arm and hand was referred pain from her neck. It would appear that the preponderance of medical evidence of the treating medical practitioners is that the pain through her right shoulder and into her arm and hand is referred pain from her neck. I accept that evidence.

44        The plaintiff sought medical treatment early on from Dr Mendis and then from other medical practitioners on referral by Dr Mendis. After the surgery performed by Mr Robin, the focus of attention became the plaintiff's continued complaints of pain and disablement resulting from the injury to her neck.

45        It seems to me that there is a strong body of evidence comprising the opinions of Dr Mendis, Mr Xenos, Mr Drnda, Dr Thomas, Mr Bittar and Mr Simm that the plaintiff did suffer an aggravation of cervical spondylosis, and that it is actively symptomatic.

46        It is obvious that the medical opinions are divided as to the extent that the aggravation of the cervical spondylosis disables the plaintiff, however, it is clear that Dr Mendis, Mr Xenos, Dr Thomas and Mr Bittar consider that the plaintiff is not only unfit for her former employment, but in the case of Dr Mendis, Dr Thomas and Mr Bittar, that she is effectively unfit for any work for which is qualified given her age, training, experience and capacity to be retrained.

47        Mr Klug and Mr Simm are of the opinion that the plaintiff is fit for suitable work. They each referred to three occupations which they considered suitable. However, they were guarded in their opinions, in that they suggested that the plaintiff commence with a graduated return. The inference I draw from that is that a ‘steady as you go’ approach would need to be taken by an employer and the plaintiff, and if the plaintiff coped with the tasks relevant to that suitable employment, that an assessment would need to be made regarding whether the hours and tasks could and should be increased.

48        I was particularly impressed by the evidence of Dr Thomas who is in clinical practice making assessments of injured workers and the extent to which they can be returned to suitable employment. Mr Donmez contrasted his opinion with the opinions of Dr Brown, Mr Klug and Mr Simm. Dr Thomas considered their opinions, and having done so, was not prepared to alter his own opinion in any material way.

49        I prefer the opinion of Dr Thomas that theoretically the plaintiff has a capacity for very, very light work lifting no more than 1 kilogram frequently and working at bench height. In the end, Dr Thomas consigned his own opinion to really being unworkable, because it does not fit with any known job description. He dismissed the suggestion made by Mr Donmez that the three occupations on which Mr Klug and Mr Simm made comment were suitable forms of employment for the plaintiff.

50        Ultimately, what is or is not suitable must be determined by a number of factors. Firstly, it is necessary to critically analyse the plaintiff’s age, training and experience, capacity for various forms of employment and her transferable skills. Each of these matters invariably crop up in serious injury applications where loss of earning capacity consequences are debated.

51        Secondly, it is necessary for me to determine a characterisation of the plaintiff's skills, experience, capacity be retrained and transferable skills. Ms Donmez urged upon me the fact that the plaintiff was fit for work as a pharmacy assistant because of training she undertook with her niece some time in 2005. She undertook a trial of two months with a pharmacy and then obtained a permanent position with the pharmacy in Glen Waverley. She stopped working because of the late hours she was expected to work which her late husband found unreasonable, and otherwise she needed to be home to be with her children.[22]

[22]           Transcript 12-13

52        It would appear that the plaintiff's flirtation with being a pharmacy assistant was short-lived because she then took up employment with the defendant in 2006. She ceased working with the defendant altogether probably around April/May 2009. So the plaintiff spent six months as a pharmacy assistant and three years in factory work. According to the matters elicited by Mr Donmez during cross-examination, the plaintiff had performed similar factory work with various employers from about 1996.

53        I think to characterise the plaintiff as a person who would be a neat fit into work as a pharmacy assistant, sales assistant or customer service clerk has an air of the unrealistic about it. The plaintiff's English was adequate. She did not strike me as someone who had a very sophisticated understanding beyond a relatively basic to moderate level. It was an impression I gained as I watched her give her evidence. I accept the plaintiff's evidence that her capacity to read and write in the English language is modest.

54        Dr Thomas has sufficient knowledge of what tasks a pharmacy assistant would undertake to discount the plaintiff having the capacity to undertake the work. A sales assistant would likely undertake the same sort of work; that is, handling stock and displays on shop floor shelving. It is likely that a customer service clerk would be involved in similar work.[23]

[23]           The job descriptions are referred to in a Vocational Assessment Report undertaken by Ayres Management Services at DCB 93-102, but also in other materials produced by the same organisation at DCB 103-112.

55        The three occupations would likely involve the plaintiff in the necessity to undertake reading, writing and the use of a computer, and the latter is certainly part of the job description for a customer service clerk.[24] It seems to me that on the evidence I accept regarding the plaintiff's vocational background, together with her language skills and her capacity to read and write in the English language, place her in a position where she appears to me to be unsuitable to undertake that kind of employment.

[24]           DCB 100

56        In any event, I accept the evidence of Mr Thomas. He did not alter his opinion, and furthermore, he put his opinion in stark focus during re- examination when he observed that it was unlikely there was a job available which the plaintiff could do given what he considered to be her residual capacity to function in a working environment.

57        In the end, I am satisfied that the plaintiff has no realistic capacity to undertake suitable employment. In these circumstances, it is unnecessary for me to separately consider the question of pain and suffering consequences.[25]

[25]           Advanced Wire & Cable Pty Ltd v Abdulle (supra)

Disentangling

58        Ms Donmez submitted that the plaintiff was suffering from a psychiatric condition secondary to the injury to her neck, and probably also her right shoulder, and from the other conditions which have been mentioned in some of the histories taken by medical examiners.

59        Ms Donmez submitted that in the presence of a secondary psychiatric condition, that the so-called disentangling was called for. I do not agree. I made several observations during Ms Donmez’s final address directed to the principles of law which guide a judge where there is a primary or secondary psychiatric condition which is symptomatic and it contributes to the consequences of a physical injury.

60         The approach which a judge is required to take is very well summarised by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd:[26]

[26] [2008] VSCA 167

“If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.

In Shock Records Pty Ltd & Anor v Matthew James Jones Bell AJA, said (in the context of consideration of the economic consequences of impairment) that,

‘... we saw that s. 134AB(38)(e) required the judge to determine whether Mr Jones’s loss of earning capacity was ‘40 per centum or more’. Taken together with the other elements of the test, this required her Honour to be satisfied that, among other things, Mr Jones’s back injury of itself caused a loss of earning capacity of this degree, which required her to exclude the contribution of the other medical conditions and, of course, the psychiatric or psychological consequences of the back injury.

A judge is quite capable of making such a determination once he or she has reached the point of being properly satisfied that the plaintiff’s injury is enough in itself to cause a loss of earnings capacity of 40 per centum or more. How much disentangling or stripping away is necessary to reach that point will depend upon the circumstances of the given case. If the submissions of counsel for Shock Records mean that, even after reaching that point, a judge still has to identify and quantify all of the other potential causes, I cannot agree with it.’

And, in the circumstances of that case, that

‘as the judge saw it, once the back pain was found to arise from the work injury, it was obvious, because the pain was so severe, that the major contributor to Mr Jones’s loss of earnings capacity was the work injury. Having reached that point, her Honour felt there was no need to quantify the contribution of the other minor causes. No more “disentangling” or “stripping away”, to use the words of counsel for Shock Records, needed to be done.’

In my respectful opinion, those statements were correct in principle.

I should refer also to certain observations of Redlich JA in Zivolic v Hella
Australia Pty Ltd:

‘Although [the judge at first instance] spoke, in the language of Barwon Spinners Pty Ltd & Ors v Podolak, of ‘disentangling’ the relevant injury, it was unnecessary for him to do so in the light of the accepted medical evidence concerning her physical injury which the plaintiff relied upon. Where an application is made under s 134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s 134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff's condition as found at trial and which may be the consequence of multiple causes.

The use of such terminology, which is not to be found in the Act, may, as it did in this case, lead the trial Judge to conclude that the plaintiff necessarily had an obligation to demonstrate the nature and extent of the psychiatric or psychological injury, so that it could be excluded when assessing whether the plaintiff had suffered a serious injury within s 134AB(37)(a) or (b). Whether it will be necessary in a particular case for a plaintiff to do so, that is to say, to unravel the plaintiff's condition and exclude the consequences of another contributing cause, will depend upon whether the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff.[27]’”

[27]           paragraphs 19-22

61        Most of the medical examiners have approached the assessment of the plaintiff's neck injury on the footing that it is a discrete injury with definable pathology which has given rise to identifiable consequences both in terms of pain and suffering and loss of earning capacity. Whilst there was certainly mention of the plaintiff suffering from a secondary psychiatric condition in the reports of Dr Mendis, and a referral to a psychologist, as well as the prescription of Cipramil and the Efexor, that of itself does not call for any disentangling.

62        What is clear to me is that the Court of Appeal has made clear, that if I am of the view that the consequences contended for are based upon a physical injury, and that there is no amplification or exaggeration of those consequences by a secondary psychiatric condition, then there is no call for me to undertake the so-called step disentanglement.

63        Furthermore, Ashley JA observed that even if there is some degree of amplification or exaggeration, that is not the end of the matter. It boils down to what the evidence discloses. It seems to me that if there is a major physical injury together with a major secondary psychiatric condition, it would be alarming if the law were that where there is some difficulty in defining with some precision what consequences are caused by the physical injury as opposed to the major secondary psychiatric injury, then the plaintiff must fail. What strikes me as very clear is that the Court of Appeal does not advocate that sort of dogmatic blinkered approach.

64        I cannot see that there is a factual circumstance present here which calls for any disentangling. The mere reference to the plaintiff suffering a secondary psychiatric condition with the need for treatment is the starting point for the submission made by Ms Donmez, but a simple analysis of the evidence demonstrates that the submission has no merit whatsoever.

The Other Medical Conditions

65        Although Ms Donmez did not submit that I should weigh into the balance the injury to the plaintiff's right shoulder and her complaints of pain in her left shoulder, right elbow and wrists, I intend to make some observations of what I have made of those complaints.

66        In Dressing v Porter,[28] Ashley JA made abundantly clear the approach which the trial judge is required to take where there might be other physical conditions which also result in consequences:

“This should next be said. In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test."[29]

[28] [2006] VSCA 215

[29]           paragraph 47

67        For the sake of completeness, I am satisfied that loss of earning capacity consequences resulting from the injury to the plaintiff's neck and the impairment of it are responsible for the loss of earning capacity consequences which I have found to be present, and which are the basis for my finding that the plaintiff has suffered serious injury.

Conclusion

68 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.

69        After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

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