Evans v Liquorland (Australia) Pty Ltd
[2014] VCC 323
•26 March 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-05340
| STEPHANIE MARIE ALYCE EVANS | Plaintiff |
| v | |
| LIQUORLAND (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 13 March 2014 | |
DATE OF JUDGMENT: | 26 March 2014 | |
CASE MAY BE CITED AS: | Evans v Liquorland (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 323 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – facial injury – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti SC with Mr R N Morrow | Nevin Lenne & Gross |
| For the Defendant | Ms K A Galpin with Mr D C Oldfield | Herbert Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on 7 August 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the face (nerve damage).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged twenty-six, having been born in January 1988. After Year 12, she undertook tertiary studies at Deakin University. She has worked at the Australian Taxation Office (“ATO”) since August 2013.
14 The plaintiff started work with Coles Myrtleford in 2003 as a fifteen-year-old casual. At the age of eighteen, she was moved to Liquorland Myrtleford, where she was given a permanent part-time job. In 2008, she moved to the Belmont store, whilst still studying at university.
15 On the said date, the plaintiff was working in the liquor store at Belmont when she was assaulted by a female customer, who punched her in the face and left eye (“the assault”).
16 The plaintiff attended Dr Sowerby on 9 August 2010. He told her to come back when the swelling and bruising on her face settled down.
17 The plaintiff did not put in a compensation claim immediately. She just wanted the injury to go away and the incident to fade away. The defendant provided her with some counselling. Over the next two weeks, the plaintiff was placed at another store where she was not required to work alone.
18 After a couple of weeks, the plaintiff’s left eye started to hurt again. She did not go to the doctor immediately, but about a month-and-a-half after the incident, she saw Dr Yoong at Belmont, who organised facial x‑rays, which were performed on 12 October 2010. These investigations did not show any fractures.
19 The plaintiff had suffered a previous left shoulder injury on 30 December 2009, the subject of a different serious injury application. The defendant advised her to just get over the assault.
20 The plaintiff continued work and university commitments from September to November 2010. She finished her degree at Deakin and moved to Myrtleford and quit her job with the defendant. The plaintiff then obtained work at Coles Myrtleford.
21 The plaintiff thought her eye still did not feel right, so she saw Dr Hassan at Standish Street Clinic in Myrtleford. He referred her to an eye specialist, Dr Heine, who did not think she was suffering from loss of vision but rather a nerve-related problem. He advised it might settle after six weeks and, if not, he would refer the plaintiff to a neurologist.
22 Dr Heine thought there was a possibility that the plaintiff might need to take epileptic medication, Endep, to help the nerve heal.
23 The plaintiff denied there was an improvement in her condition in the first six months after the incident. There was in fact a worsening, thus the plaintiff started taking medication.[3]
[3]Transcript “T”26
24 The plaintiff’s eye pain continued unabated. It was often a throbbing or spasming type pain. As it did not settle, she was eventually referred by Dr Devereux in Bright to neurologist, Dr Ring, whom she saw in May 2011. He prescribed Endep, which initially helped. He then put the plaintiff on Lyrica. However, she was scared of the possible side-effects, including suicidal ideation, and she ended up going back on Endep, which she was still taking when she swore her first affidavit in June 2013.
25 The plaintiff started an internship at the ATO in Wodonga in April 2011.
26 As of June 2013, the plaintiff continued to suffer from significant pain extending beneath her left eye along the outside of her nose, back towards the top, and into the left eye again. She also had a feeling of numbness in her left cheek. She experienced jabs of pain, more throbbing, just above the left eye. At times, she experienced a tingling sensation which came on for no reason.
27 The plaintiff was then taking one 50-milligram tablet of Endep at night, to help her sleep. She also took Nurofen for the tingling type sensation. She had been taking Endep for two or so years, apart from a month when she took Lyrica. The plaintiff then needed to take Zantac for reflux caused by the medication. She found she grinded her teeth in her sleep.
28 The plaintiff’s pain in her left eye region was constant. The Endep helped to take the edge off it. The pain in her left eye was increased by stress, tiredness and when squinting. Trying to wean off Endep made the plaintiff feel nauseous and sick. She had also taken Nurofen for pain in the past.
29 The plaintiff had good and bad days. She had some benefit from Endep, and had flare-ups when she went off it; however, because of that medication, she had become more short tempered and less focused.
30 The jabbing pain came on a couple of times a week, and on a bad day it could be as bad as seven out of ten.
31 The plaintiff continued to feel tired, even though she went to bed about 9.30pm and got up at 10.00am. She often had feelings of vagueness.
32 The plaintiff finished her internship after eighteen months. The ATO accommodated her shoulder problems and also the problem with her left eye, in that she was allowed to get off the computer when her left eye became painful and tired.
33 After she left the ATO, the plaintiff worked at a restaurant, Gigi’s, in Beechworth; however, because of her injury, she had to quit that job. She was working split shifts, going to bed at midnight and starting work at 8.00am the next day.
34 The increased stress and tiredness from that job caused an increase of pain in her left eye region and the throbbing sensation to a significant degree. As a result, the plaintiff felt agitated and short tempered, and she had to quit that job.
35 The plaintiff was under a lot of stress in this job and she was constantly tired. Both her eye and shoulder injury came into play causing her to quit. The plaintiff did not mention her eye injury in her affidavit relating to her shoulder application as it was not relevant. She was not misleading anyone by not mentioning it.[4]
[4]Transcript (“T”) 39
36 The plaintiff did speak to her doctor about problems with her eye at work and he suggested an increase in Endep.[5] She had horrible sleeping patterns, leading to a depressive mood because she could not function properly.[6]
[5]T41
[6]T43
37 As of June 2013, the plaintiff worked as a bar waitress at the Savoy Club in Myrtleford. She felt she would like to return to studying, but felt as though she lacked the ability to concentrate and focus. She had started a TAFE Certificate III course in Business and Medical Administration. She had problems with concentration, and also difficulty getting to class in Wangaratta due to a painful eye episode, and travel was difficult because of eye pain.
38 The plaintiff completed the three-month condensed course, travelling four days a week from Myrtelford to Wangaratta.[7]
[7]T44
39 The plaintiff was affected by her facial pain in other ways.
40 The plaintiff was constantly in fear of a soccer ball coming in contact with her eye. Also, whenever she was active, she felt the throbbing sensation in her left eye worsen.
41 The plaintiff found that if she became overheated playing soccer or going to the gym, she developed a throbbing type pain in the left eye, which she described as a dull aching type pain, although sometimes it could become sharp and shooting and it left her feeling unwell and exhausted for hours. The pain was worse when she was tired after sport.
42 The plaintiff also felt numbness on her left cheek. She was forever feeling excessively tired during the day, a situation which she attributed to her medication.
43 The plaintiff’s eye condition had also affected her sexual relationship, with the throbbing in the left eye region and the medication affecting her sexual drive. The throbbing also radiated down into her teeth. Once she consulted a dentist to pull her tooth out because the pain was so bad, but he advised her that it was simply referred pain from her eye/nerve injury.[8]
[8]T56
44 The plaintiff was “freaked out” and extremely distressed when her impairment claim went to the Medical Panel and she was advised her condition was permanent, as she was then only twenty-five. It worried her to have to take Endep for many years.
45 The plaintiff had to take care when driving, as medication made her feel drowsy.
46 The plaintiff was no longer socially active as she used to be, previously going to clubs and pubs, dancing and socialising. By 10.30pm, she was already exhausted and at home. On one occasion, she had to get a taxi home early from a hens’ night which cost her $100. She found mixing her medication with alcohol had an adverse effect.
47 The plaintiff then did not think she would be fit to go back to school. She was thinking about doing a thesis, but did not think she would cope.
48 The plaintiff’s dosage of Endep increased from 25 to 50 milligrams in mid 2013.
49 The plaintiff deposed in February 2014 that the Endep had become less effective in controlling her pain. Taking that medication, she found it harder to function at work and outside work due to extreme fatigue. In November 2013, when the plaintiff was referred to Dr Todhunter, he altered her medication to nortriptyline, 50 milligrams per day. He had written to the insurer seeking funding for a nerve block procedure.
50 There are side effects from the nortriptyline which Dr Devereux finally prescribed early this year. Very recently, the plaintiff has started having disturbances, nightmares and waking during the night, causing a lot of fatigue as she has to get up early in the morning to go to work.[9]
[9]T15
51 The plaintiff has told Dr Devereux about the nightmares. He intends to monitor the plaintiff’s progress in this regard.[10] He is hoping they will subside and if this does not happen, he will consider changing her medication. The nightmares are very vivid and terrifying and after them, the plaintiff wakes up more tired than she was before she went to bed.[11]
[10]T47
[11]T55
52 The groggy feeling during the day has resolved since the plaintiff stopped Endep; however, she is quite tired by the time she takes the nortriptyline.[12]
[12]T22
53 The plaintiff continues to work at the ATO as an operations officer, processing and allocating payments tax payments. She works 7 hours, 21 minutes a day. She is allowed the flexibility of starting late or finishing early as long as she makes up the time later.
54 As the plaintiff has found it harder and harder to do her job with fatigue and left-eye pain, she is continuing in debt of time, needing to make up hours of work. Her pain has not prevented her from working but it has stopped her working a full day. Her manager is very understanding and is aware of the plaintiff’s condition.[13]
[13]T30
55 The plaintiff breaks up tasks during the day, getting up from her computer and walking around the office so she does not have pain from staring at the screen for too long.[14]
[14]T54
56 In addition, the plaintiff finds the 40 to 45- minute drive from Myrtleford to Albury extremely difficult. It is very hard for her to concentrate that early in the morning. She has to break up longer drives.[15] She has a rest from prolonged concentration – squinting driving into the sun increases her pain.[16] She also rests because of her neck and shoulder problem. The plaintiff’s father has driven her to an early morning appointment in Melbourne.
[15]T34
[16]T36
57 The plaintiff intends to move to Wodonga in the near future. She is waiting before her case finishes before she does so, as before that time she does not want to make any big decisions.[17]
[17]T46
58 The plaintiff’s pain is concentrated in her face around her left eye, and it worsens when she gets fatigued. She suffers episodes of deep ache and throbbing pain which last up to an hour-and-a-half. The ache around her left eye is constant, and throbbing pain occurs in addition, at least on a weekly basis.
59 No matter what medication the plaintiff takes, the pain is still there.[18] She does not get the really awful pain all the time. She just gets a dull ache that can vary in intensity. Then, over time, and depending on the circumstances, the pain can get a lot worse. The pain is unpredictable but it has stabilised a lot more. The spasms have reduced but there has been no improvement in the baseline pain.[19]
[18]T26
[19]T27
60 The plaintiff tended to get very vague with hung-over type feelings whilst taking Endep. Those feelings had considerably cut down since she changed medication. The plaintiff then said those feelings had in fact resolved.[20]
[20]T30
61 Over the course of the day, the plaintiff gets dull aches that go from under her eyebrow and her eye that can proceed into a throbbing sensation. When the pain is really bad, it goes down to the plaintiff’s cheekbone and at times it has gone to her jaw. The pain is horrible.
62 The plaintiff’s sleep has been affected in a similar way on her new medication as with Endep. Due to lack of sleep, the plaintiff has problems concentrating and she gets upset very easily and she has a tendency to forget things very easily which makes work very difficult.[21]
[21]T57
63 In addition to the effect upon her work, the left-eye injury continues to affect the plaintiff socially. She finds it hard to cope going out, as she becomes easily fatigued, and only a small amount of alcohol seems to affect her greatly.
64 The plaintiff plays soccer with Myrtleford Savoy Club. She trains Monday and Thursday nights for an hour-and-a-half after work. The plaintiff agreed she volunteered at a Melbourne Heart function on a very hot day in February this year. That weekend she had also been out the night before with friends and she took her dog to training. If the plaintiff medicates, “things are not going to physically exert her”.[22]
[22]T33
65 The plaintiff also attends the gym during the week. Before soccer training commenced, the plaintiff had two gym sessions a week with a personal trainer plus another session at the gym with a friend.[23]
[23]T25
66 Sporting activities increased the plaintiff’s pain but she played through and took extra medication like Panadeine Extra, Panadeine and Nurofen. The plaintiff agreed she had very busy days at work followed by a lot of activity after work.[24]
[24]T28
67 The plaintiff sees Dr Devereux in Bright to monitor her medication and its side effects. He has a rapport with the plaintiff and is more understanding of her Endep history.[25] She has recently starting seeing him again, having last seen him in 2011. Until early this year, the plaintiff was seeing Dr Javeria Iftikhar in Wodonga.
[25]T22
68 No matter what medication the plaintiff takes, the pain is still there.[26] She does not get the really awful pain all the time. She just gets a dull ache that can vary in intensity. Then, over time, and depending on the circumstance, the pain can get a lot worse. The pain is unpredictable but it has stabilised a lot more.
[26]T26
69 The plaintiff is no longer having as many spontaneous bursts of throbbing pain; however, she gets breakthrough pain when she is under stress. It can be quite debilitating and she has to go home and lie down.
70 When the plaintiff saw Dr Todhunter, she was desperate and distressed. She really wanted the pain to go away. She paid $200 for the appointment. Initially she was going ahead with the procedure he suggested but having discussed it with her parents, she had decided she did not want to go ahead with it because of the risks of further nerve damage and scarring.[27]
[27]T53
71 The plaintiff got somewhat confused, saying she had lost her train of thought when discussing Dr Todhunter’s proposed treatment.[28]
[28]T52
Treaters
72 Dr Devereux at Bright Medical Centre reported in August 2013. He saw the plaintiff on several occasions between March and July 2011.
73 The plaintiff told him in April 2011 that the pain was worse when stressed or tired. Dr Devereux initially diagnosed neuropathic pain, secondary to damage to one of the superficial nerves. He referred the plaintiff to Dr Ring.
74 Dr Devereux agreed that given the plaintiff’s timeframe and ongoing pain, there was a good chance she would always have decreased function because of the injury.
75 Dr Devereux had started the plaintiff on Endep which was showing initial signs of good effect and they were slowly increasing the dose when he last saw.
76 Dr Devereux did not consider that the pain as such should exclude the plaintiff from any work activities in the future; however, he noted the drowsiness that occurred for some people on that medication may make it difficult to do activities that required intense concentration – a situation that could be mitigated by a change of medication if appropriate.
77 During 2011, Dr Devereux discussed the neuropathic pain in the plaintiff’s left eye which he believed was secondary to an infra orbital nerve injury leading to ongoing neuropathic pain. He noted when he last saw the plaintiff in July 2011, she was responding quite well to the Endep medication and was continuing to have breakthrough pain but this was manageable.
78 Dr Iftikhar treated the plaintiff from June 2013. In October 2013, she reported that she had seen the plaintiff a few times, one of which was pertaining to her worsening pain symptoms.
79 Dr Iftikhar reported in February 2014 that the plaintiff felt her pain was not well managed with the current regime of Endep and she was experiencing side effects constantly. Consequently, the plaintiff was referred to a pain management specialist, who suggested changing to a different medication which was followed through.
80 Dr Iftikhar agreed with the diagnosis of trigeminal neuralgia.
81 Based on reviews of the plaintiff, Dr Iftikhar thought it most likely that the pain issues were probably causing a psychological stress, noting the plaintiff was seeing a psychologist. In her view, although there were no reports of any direct impairment regarding work capacity, the side effects of the plaintiff’s medications, namely Endep causing drowsiness, could most likely be indirectly incapacitating the plaintiff’s work capacity.
82 Dr Iftikhar noted the plaintiff was under the care of a pain management specialist. She last saw the plaintiff in December 2013 pertaining to the change in medications requested by the specialist and had not seen the plaintiff since to comment on how she was coping with the change in medication.
83 Dr Ring, neurologist, saw the plaintiff on referral from Dr Devereux in May 2011 with a presentation of left peri orbital pain following the assault.
84 The plaintiff complained of pain around the left eye with a dull persistent pressure above the eye that was constant and a more severe sharpish pain in the eye on the lateral side of the nose. At times, that region felt a bit tingly and there was reduced sensation on the left cheek. At times, the plaintiff suffered blepharospasm.
85 Dr Ring noted stress, squinting and glare tended to make the plaintiff’s pain worse.
86 On examination, there was diminished sensation over the left cheek.
87 Dr Ring thought it appeared the plaintiff had sustained an injury to the left infra orbital nerve. He noted she had both a constant dull ache around the left eye, as well as intermittent neuropathic pain over the left cheek and lateral nose.
88 Dr Ring commenced the plaintiff on Endep, 10 milligrams at night, and under supervision of her general practitioner. He thought, if she tolerated the medication, the dose could be incremented as required and Gabapentan, Lyrica and Cabamazepine may be reasonable alternatives.
89 On 10 December 2012, Dr Iddagoda at Daintree Medical Centre in Wodonga noted neuropathic pain as being one of the reasons for the visit. 50 milligrams of Endep was prescribed. There was a note – “? peripheral neuropathy.”
90 On 20 December 2012, Dr Iddagoda noted an increased dosage of Endep was suggested. It was noted there was two years since the injury and the plaintiff had trouble with adjustment and coping, “felt headaches were worse, trouble with sleep, anxious and worried, needed support”.
91 On 17 January 2013, Dr Iddagoda noted “work related stress, depressed mood, troubled sleep”.
92 On 23 January 2013, Dr Iddagoda noted the plaintiff had to resign from her job – “felt better, less stress and coping better.”
93 Dr Todhunter reported in December 2013 that he had seen the plaintiff in November that year with the presenting problem of left facial pain post trauma in the assault.
94 Dr Todhunter’s provisional diagnosis was neuropathic pain in the distribution of the supraorbital, trochlear, infraorbital and oriculo temporal nerves involving that aspect of the trigeminal nerve distribution on the left side of the face.
95 Dr Todhunter noted the plaintiff was on Endep, which helped her sleep, but made her feel drowsy and hung over during the day. He suggested she change to nortriptyline, reducing the Endep to 25 milligrams and starting the other medication at 25 milligrams at night for two weeks and then topping up the Endep and increasing the nortriptyline to 50 milligrams at night.
96 If she tolerated that, which would be much less sedating, then he thought the plaintiff might be able to take a small dose of perhaps 10 milligrams in the morning, which could give her more effect in the day.
97 Dr Todhunter requested authority to undertake a pulsed radiofrequency lesion of the above mentioned nerves to see if that would reduce sensitivity and pain.
98 Dr Todhunter advised that the plaintiff would need to be reassured that in a normal situation for someone with ongoing pain, she had actually coped well and in terms of finding alternative work and working full time, this was therapeutic. The plaintiff also needed to continue her efforts at socialising which were difficult at times, as she got sleepy at night.
99 Whilst other treatments may be more effective for pain, such as peripheral nerve stimulation, Dr Todhunter advised the risk of undertaking those would outweigh the benefit, certainly currently in terms of scarring around her face and the risk of leads eroding through the skin.
100 Dr Todhunter discussed the procedure with the plaintiff, detailing how it would be done, the risks, including infection and nerve damage in particular, and the aim of the procedure in terms of its benefit, as well as other treatment options.
Medico-legal evidence
101 Dr Nave, eye specialist, first examined the plaintiff on the defendant’s behalf in February 2011. He then diagnosed left post-traumatic ocular neuralgia as a direct result of the assault.
102 Dr Nave felt the current pain management would appear to be satisfactory and no other treatment was required. He then anticipated continuing improvement in the plaintiff’s symptoms with decrease in the frequency and severity of the ocular pain. He then thought it might take six months for the pain to clear altogether and in the meantime, the plaintiff could continue taking Nurofen as required.
103 Professor Davis, neurologist, examined the plaintiff on the defendant’s behalf in July 2012.
104 On examination, the plaintiff indicated there was mild reduction of sensation just above the left eye in the medial aspect of the orbit in the region of the inner canthus and below the left eye in the infra orbital nerve territory.
105 Professor Davis concluded the plaintiff had a protracted pain syndrome involving the left orbit which was chiefly a chronic and rather non specific pain with a fairly minor component that might suggest some damage to the branches of the trigeminal nerve involving some branches in the left infra orbital nerve region, but some other fine branches of the first division trigeminal nerve (above the left eye and medial orbit). However, he thought the bulk of the pain was rather non specific.
106 Professor Davis thought it would be reasonable to assume there was an organic component reflecting some damage to trigeminal nerve branches. He thought the pain was reasonably controlled by Endep, noting it was not typical of the lancinating pains seen in classical trigeminal neuralgia.
107 Professor Davis thought the plaintiff had an impairment that could be considered a form of atypical facial pain and her condition had stabilised and she had a reasonably good prognosis.
108 Dr Brooder, consultant neurologist, examined the plaintiff in February 2014 in relation to her left shoulder and her facial nerve problem.
109 Dr Brooder thought there was a residual neuralgia involving the terminal branches of the infra orbital branch of the plaintiff’s left trigeminal nerve.
110 Dr Brooder considered it was likely that the plaintiff had suffered a permanent impairment or permanent loss of functioning of the infra orbital branch of the left trigeminal nerve because of the assault. He thought, because of the assault, the plaintiff was not precluded in relation to any social, domestic or recreational activities. However, she was restricted in her ability to pursue increased recreational activities during the warmer weather.
111 Further, Dr Brooder thought, because of the assault and the dependence upon pain modifying medications, the plaintiff was restricted in relation to employment or activities that required concentration or that may be potentially interrupted by distracting pain. He thought this impairment was permanent.
112 Dr Brooder thought the plaintiff required further treatment involving regular pain modifying medication and the intermittent use of analgesic medication.
113 Dr Brooder concluded the prognosis for the plaintiff’s assault injury remained somewhat guarded. He noted she had now been subject to persistent symptoms involving her left eye over a period of three-and-a-half years and over that time, her symptoms had failed to resolve. He considered she was going to remain subject to persistent left eye symptoms to some degree indefinitely.
114 The Medical Panel on 5 December 2012 concluded the plaintiff had a 10 per cent whole person impairment resulting from the accepted eye and facial nerve injury when assessed in accordance with s91 of the Act and that impairment was permanent.
Compensation documents
115 On 25 March 2012, the plaintiff lodged an impairment benefits claim for her eye injury and facial nerve damage. Her weekly payments claim was dated 13 January 2011.
116 On 9 August 2012, the plaintiff was advised liability had been accepted for eye and facial nerve impairment.
The Defendant’s medical evidence
117 Notes of attendances at Daintree Medical Centre during 2012 indicated that the plaintiff was prescribed Panadeine Forte on six occasions. It was prescribed for facial pain on 21 May 2012 and for stress on 20 December 2012. The other prescriptions were for unrelated problems.
Medico-legal evidence
118 Dr Nave re-examined the plaintiff in December 2013. Dr Nave then noted the history was consistent with post-traumatic left ocular neuralgia.
119 Dr Nave thought that condition was generally controlled by Endep but it affected the plaintiff’s working, domestic and recreational activities when the pain recurred at times.
120 Dr Nave noted there appeared to be a consensus of opinion that the plaintiff’s ongoing symptoms were due to persistent left facial nerve neuralgia resulting from the assault.
121 As it was now over three years since the assault, Dr Nave thought the plaintiff’s condition would appear to be stable and neuralgia may persist indefinitely. He thought the ocular condition could not be considered to have resolved.
122 Dr Nave noted it was not very unusual for post-traumatic neuralgia to become chronic.
123 From what he had been told by the plaintiff, it appeared to Dr Nave that the symptoms were moderately well controlled by her current medication. He gained the impression she was totally open and honest regarding her ongoing symptoms and he did not believe that psychological factors were involved. He did not believe the plaintiff’s physical injuries caused any significant limitation to her ability to work or study.
124 The plaintiff was examined by psychiatrist, Dr Shan, in February 2011 and December 2013. These reports were not referred to in submissions, so I do not intend to comment further on them.
Shoulder claim
125 The defendant tendered three affidavits sworn by the plaintiff in relation to her left shoulder application pursuant to s134AB.
126 In cross-examination, the plaintiff was taken to paragraph 8 of her May 2013 affidavit where she described problems doing her job at Gigi’s Restaurant due to her shoulder injury. She deposed that she found the duties too difficult to perform and she was disappointed because of her incapacity and pain, she had to leave that employment.
Overview
127 The plaintiff suffered a compensable injury to her facial nerve in the assault. Liability was accepted for her claims.
128 The consensus of medical opinion is that the plaintiff suffers from post-traumatic left ocular neuralgia.
129 There is no suggestion of any functional component in the plaintiff’s presentation and her facial impairment has a significant organic basis.
Credit
130 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[29]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[29](2010) 31 VR 1 at paragraph [12]
131 I accept the plaintiff was a truthful, credible witness who became confused at times giving evidence, in particular when explaining the treatment suggested by Dr Todhunter.[30]
[30]T71
132 The plaintiff’s evidence about the reasons for leaving Gigis and her belief that severe facial pain was in fact a toothache were confirmed in her general practitioner’s notes.
133 The assessment of the pain experience will comprise, inter alia, what the plaintiff says about her pain to doctors and to the Court: per Maxwell P in Haden Engineering v McKinnon.[31]
[31](supra) at paragraph [11]
134 The plaintiff describes two types of facial pain: a constant dull ache and a throbbing/spasming on other occasions. The pain extends from below her left eyebrow down into her cheekbone.
135 The plaintiff is on a significant medication regime for neuropathic pain, having been prescribed Endep in the past and more recently, nortriptyline. There is no suggestion the need for this medication will cease in the foreseeable future.
136 In addition to this medication, on occasions of more severe pain, the plaintiff requires “top up” medication such as Panadeine, Panadol Extra and Nurofen on an infrequent basis.
137 As Dodds Streeton JA stated in Kelso v Tatiara Meat Company Pty Ltd,[32] where chronic pain was a prominent feature of the appellant’s case, “the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.
[32][2007] VSCA 267 at paragraph [199]
138 The plaintiff was prescribed increasing dosages of Endep, starting on 10 milligrams and ultimately being prescribed 50 milligrams. She suffered significant side effects whilst taking that medication, including drowsiness and a feeling of being hung over. Whilst problems of this nature have largely resolved since her recent change in medication, nortriptyline produces new side effects, particularly vivid and terrifying nightmares which the plaintiff has reported to Dr Devereux. As a result of her nightmares, the plaintiff wakes up fatigued and relives her dreams during the day.
139 Dr Todhunter is the only medical practitioner who has suggested further treatment other than medication for neuropathic pain; however, the plaintiff is reluctant to go ahead with it because of the possible complications he explained to her. The plaintiff described how she was so desperate to seek some resolution of her pain that she paid $200 to see Dr Todhunter.
140 The plaintiff is now aged only twenty six.
141 In Stijepic v One Force Group Aust Pty Ltd,[33] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[33][2009] VSCA 181 at paragraph [43]
142 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
143 The plaintiff’s pain affects her ability to concentrate and results in her having difficulty working a full day. She always owes hours which she is required to make up. The plaintiff is able to move between work stations so she is not looking at the computer for too long doing the same task. At times, she has required time off work because of her facial pain.[34]
[34]T57
144 As Dr Nave stated in 2013, the plaintiff’s activities that required concentration may be potentially interrupted for the foreseeable future and she was going to remain subject to persistent left eye symptoms to some degree indefinitely. Dr Iddagoda noted problems with concentration on 1 November 2011.
145 The plaintiff has problems driving for extended periods. As she reported to Dr Ring, squinting looking onto the sun when driving increased her facial pain.
146 The plaintiff continues to engage in an active sporting life playing soccer and attending the gym. However, her facial pain increases when she is tired after sport or when she is overheated. She takes top up medication to enable her to play sport. The plaintiff is somewhat nervous about being hit by a soccer ball and has attended the doctor in the past when this occurred.[35]
[35]Attendance on Dr Iddagoda on 6 September 2013
147 I accept that the plaintiff’s facial pain is permanent, having continued for three and a half years.
148 Whilst the plaintiff is able to work full time and engage in sporting and social pursuits, I consider that her constant pain and the need for significant medication and the side effects thereof and the interference with daily activities are consequences which meet the test of seriousness.
149 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering in relation to her left facial nerve injury.
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